Crime and Corruption Commission v Deputy Commissioner Ross Barnett & Anor [2016] QCAT 254

CITATION: Crime and Corruption Commission v Deputy Commissioner Ross Barnett & Anor [2016] QCAT 254 PARTIES: Crime and Corruption Commission (Applicant) v Deputy Commissioner Ross Barnett (First Respondent) Craig Hopkins (Second Respondent) APPLICATION NUMBER: OCR231-15 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member McLennan DELIVERED ON: 26 July 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to strike out the Crime and Corruption Commission review application dated 24 December 2015 is dismissed. CATCHWORDS: POLICE OFFICERS - DISCIPLINE - dismissal with conditions – disciplinary order suspended - dismissal from matters to be heard before tribunal – improper purpose - statutory interpretation Crime and Corruption Act 2001 (Qld), s 4, s 5, s 219BA, s 219G, s 219J, s 219L Police Service (Discipline) Regulations 1990 (Qld), s 5, s 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 24, s 47 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 -- 1 of 8 -- 2 Yeo v Brisbane Polo Club Inc [2013] QCAT 261 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] The Crime and Corruption Commission (‘CCC’) applied to the Queensland Civil and Administrative Tribunal (‘tribunal’) for review of a decision made by Deputy Commissioner Ross Barnett (‘Barnett’) (‘review application’).1 The basis of the review application was that the suspended sanction condition imposed by Barnett that ‘you do not commit any acts of misconduct for a period of two years from the date this sanction is imposed’ was contrary to s 12 of the Police Service (Discipline) Regulations 1990 (‘Regulations’). [2] In a Notice of Formal Finding Misconduct dated 21 December 2015, Barnett found misconduct substantiated and dismissed Constable Craig Hopkins (‘Hopkins’) from the Queensland Police Service (‘QPS’). Pursuant to s 5 of the Regulations2 Barnett suspended the dismissal conditional that Hopkins: a) not commit any acts of misconduct for a period of two years from the date the sanction was imposed; b) that he perform 50 hours of community service in the following 12 months; c) that he meet with a Human Services Officer (HSO) once a month for the following six months or such longer period recommended by the HSO; and d) he was eligible to progress to Constable pay point 1.3 subject to normal industrial arrangements on the date of the imposition of the sanction with future progressions occurring on the anniversary of that date. [3] Barnett specified that the sanction was not imposed under s 12 of the Regulations: I have not decided you should be dismissed and then suspended the sanction under section 12 of the Regulations. The appropriate sanction for your conduct is a suspended dismissal with conditions to address your behaviour and prevent the recurrence of any similar misconduct. This sanction not only sends a message that the conduct is totally unacceptable, it will also serve as a lingering reminder for you to act appropriately in the future.3 1 Received in the tribunal 24 December 2015. 2 Notice of Formal Finding Misconduct, p 15. 3 Ibid. -- 2 of 8 -- 3 [4] The CCC provided a preliminary statement of issues it intended to raise in its review application4 and stated: The suspended sanction imposed is contrary to the Police Service (Discipline) Regulations 1990 (the Regulations). Deputy Commissioner Barnett did not suspend the sanction against Constable Hopkins pursuant to section 12 of the Regulations, but rather purported to do so as part of an order under section 5, adding his own conditions to the suspended sanction. Accordingly, the CCC contends that this suspension was made contrary to the Regulations. [5] The CCC sought, upon review of the original decision by the tribunal, a declaration that the issuing of the suspended sanction under s 5 of the Regulations is contrary to the Regulations and return of the matter to the QPS for imposition of a sanction that properly reflects the Regulations.5 [6] In an application for miscellaneous matters6 Hopkins as Applicant7 sought the dismissal or strike out (the strike out application) of the CCC review application. The basis of the strike out application is that the substantive proceedings brought in the review application by the CCC should be dismissed: a) the Applicant (CCC) has failed to engage the jurisdiction; and b) the proceedings are: i) frivolous, vexatious or misconceived; or ii) lacking in substance; or iii) otherwise an abuse of process. [7] Accompanying the strike out application were submissions8 prepared by Mr Gnech, solicitor for Hopkins. [8] In a document dated 31 May 2016 the QPS makes no submission on the appropriateness of Hopkins’ strike out application to dismiss the CCC review application but does submit that the foundation of the original decision made pursuant to s 5 of the Regulations was correct. [9] An outline of submissions for the CCC re the strike out application was filed in the tribunal on 6 June 2016. [10] Submissions were filed in reply on 14 June 2016 by Mr Gnech. [11] On 15 June 2016 Mr Gnech filed submissions: ‘Further reply – application to strike out substantive proceedings’ on behalf of Hopkins. 4 Received in the tribunal 10 February 2016. 5 Application to review a decision dated 24 December 2015: Briefly describe what you want to happen. 6 Received in the tribunal 25 May 2016. 7 Hopkins is Second Respondent in the substantive proceedings brought by the CCC. 8 Dated 24 May 2016. -- 3 of 8 -- 4 [12] The tribunal must address the strike out application to dismiss the review application brought by the CCC. [13] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides the power for the tribunal to dismiss or strike out if the tribunal considers a proceeding or part of a proceeding is unjustified: (1) This section applies if the tribunal considers a proceeding or a part of a proceeding is— (a) frivolous, vexatious or misconceived; or (b) lacking in substance; or (c) otherwise an abuse of process. (2) The tribunal may— (a) if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or (b) for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding— (i) make its final decision in the proceeding in the applicant’s favour; or (ii) order that the party who brought the part before the tribunal be removed from the proceeding; or ... (3) The tribunal may act under subsection (2) on the application of a party to the proceeding or on the tribunal’s own initiative. [14] The tribunal is mindful that it should exercise appropriate caution in this strike out application so that the interests of justice and the parties can be met. It is necessary for the tribunal to state the tests it should apply in consideration of the strike out application: A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner ... But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.9 [15] The tribunal has recognised the applicability of the principles enunciated in Dey and related cases in considering s 47 strike out applications.10 The CCC review application would need to be plainly without merit and lacking an arguable basis for the tribunal to exercise its power pursuant to s 47 of the QCAT Act. 9 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (‘Dey’), per Dixon J page 91; in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, this test was cited with approval by Barwick CJ at [10]. 10 See Yeo v Brisbane Polo Club Inc [2013] QCAT 261 fn 13. -- 4 of 8 -- 5 Jurisdiction [16] Mr Gnech for Hopkins recognises11 that the CCC has the authority pursuant to Crime and Corruption Act 2001 (‘CC Act’), s 219G to file the review application to the tribunal. He states that engaging the jurisdiction must also only be for the furtherance of the CCC’s objectives and functions pursuant to s 4 and s 5 CC Act.12 He concedes that the Notice of Formal Finding Misconduct dated 21 December 2015 constitutes a reviewable decision.13 [17] Mr Gnech submits that the tribunal should dismiss the CCC’s review application on the basis that it fails to address the adequacy of the actual sanction and instead has adopted a ‘hypothetical’ grievance based on the actual law used by the decision maker.14 Because s 19 of the QCAT Act confers on the tribunal any relevant power available to the original decision maker to suspend the sanction then the CCC review application is ‘irrelevant and hypothetical’15 so the CCC has failed to engage the jurisdiction required by s 219G of the CC Act. By ‘irrelevant’ and his use of s 19 QCAT Act, the tribunal understands Mr Gnech to mean that the review application is also a duplication. [18] Mr Gnech asserts that the CCC review application is wrongly founded on political motive and disapproval of the use by the QPS of suspension as a sanction.16 Mr Gnech regards the review application as based on improper, ulterior purpose. He states that: ‘One may only assume the true intent of the review application filed by the CCC’.17 The tribunal cannot assume but must apply the tests as outlined above to the material before it. [19] In the outline of submissions in the strike out application18 counsel for the CCC Ms Freeman submits that the Hopkins application has no merit and should be dismissed. He states that suspended sanction is contrary to the Regulations in that it is condition a) which that is not permitted by s 12 of the Regulations. Thus the CCC review application is made on the basis that the decision of the Deputy Commissioner is ultra vires.19 [20] In relation to the engagement of jurisdiction, Ms Freeman submits that the tribunal’s review jurisdiction is conferred in a legislative scheme contained in both the enabling Act20 which is the CC Act and the QCAT Act. 11 Applicant submissions, application to strike out substantive proceedings, 24 May 2016, p 2. 12 Ibid. 13 CC Act, s 219BA. 14 Applicant submissions, application to strike out substantive proceedings, 24 May 2016, p 3. 15 Ibid, p 4. 16 Ibid, pp 4 -5. 17 Ibid, p 6. 18 Dated 5 June 2016. 19 Outline of submissions for CCC re: strike out application, 5 June 2016, p 2. 20 QCAT Act, s 17. -- 5 of 8 -- 6 [21] The tribunal notes that s 17 of the QCAT Act provides: (1) The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act. [22] The CCC has identified (and Mr Gnech for Hopkins recognises) a reviewable decision in the Notice of Formal Finding – Misconduct dated 21 December 2015. The CCC has the authority conferred by s 219G of the CC Act to make the application and has complied with the requirements of that section to make the review application to the tribunal. The tribunal considers that the review application pursuant to s 219G of the CC Act is properly founded and has triggered the review jurisdiction of the tribunal. [23] The tribunal notes that in the exercise of its review jurisdiction, s 19 of the QCAT Act provides that the tribunal must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made21 and may perform the functions conferred on the tribunal by these Acts.22 Additionally, in its review of the reviewable decision, the tribunal has all the powers conferred on the original decision- maker.23 [24] As noted, the requirements conferred by the enabling Act to which s 19 QCAT Act refers have been complied with. The fact that the tribunal may act with the same or similar powers conferred by the enabling Act or the QCAT Act does not alter the legitimacy of the CCC application before this tribunal. [25] The tribunal considers that all that was required to be done to establish the fact of a review application validly lodged in the tribunal has been done. [26] Section 24 of the QCAT Act provides the functions for the tribunal’s review jurisdiction. In addition to the power to confirm or amend the decision24 or set aside the decision and substitute its own decision25 the tribunal may: set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.26 [27] Counsel for the CCC submits that there are additional powers open to the tribunal in the enabling Act.27 Section 219J CC Act provides that, on a finding of corruption being proved, the tribunal may impose on the person any discipline even though the original decision-maker’s power to impose the discipline may have been restricted. The tribunal also has power to 21 QCAT Act, s 19(a). 22 Ibid, s 19(b). 23 Ibid, s 19(c). 24 Ibid, s 24(1)(a). 25 Ibid, s 24(1)(b). 26 Ibid, s 24(1)(c). 27 Outline of submissions for CCC re: strike out application, pp 4-5. -- 6 of 8 -- 7 suspend a discipline if it considers it appropriate.28 It may set conditions and must set an operational period for the suspension.29 [28] Counsel for the CCC states however that s 219L is not applicable in the review application because the CCC seeks an order pursuant to s 24(1)(c) of QCAT Act where the tribunal would order the return of the decision for reconsideration by the original decision-maker with directions the tribunal considers appropriate. [29] The tribunal considers that its jurisdiction has been properly engaged to enable its review of the reviewable decision made on 21 December 2015. Section 47 QCAT Act [30] In relation to the assertion by Mr Gnech for Hopkins, that the CCC review application is vexatious, misconceived or lacking in substance, the tribunal considers it appropriate to have regard to the statutory purposes of the CCC. [31] The tribunal notes that, where relevant, in s 4 of the CC Act the broad purposes that inform the CCC include: (1) The main purposes of this Act are— (a) to combat and reduce the incidence of major crime; and (b) to continuously improve the integrity of, and to reduce the incidence of corruption in, the public sector. [32] It is s 4(1)(b) which is significant in this present context. There are two limbs to s 4(1)(b)30 and the tribunal considers both limbs are germane to answer the assertion by Mr Gnech that the tribunal should exercise the power provided in s 47 of the QCAT Act. [33] In the first limb ‘continuously improve’ the tribunal considers that the phrase, particularly in the word ‘continuously’, requires of the CCC a vigilant monitoring and active intervention role in the broadest oversight of the public sector. The tribunal considers ‘continuously improve the integrity’ requires maintenance of probity, of systemic soundness in public administration so that it functions appropriately within the scope of the power conferred on it. [34] The second limb ‘to reduce the incidence of corruption’ involves a broad sense of corruption. This is that a broad purpose of the CCC is to ensure that every branch of the public sector exercises its powers in the manner in which it is required by statute to do so and for the purposes for which those 28 CC Act, s 219L(2). 29 Ibid, s 219L(3). 30 Mr Gnech also recognises two limbs in this paragraph but the tribunal does not adopt his wording. See Further reply – application to strike out substantive proceedings page 2. -- 7 of 8 -- 8 powers were conferred.31 Underlying this second limb is the enhancement of proper practice in public administration. [35] In s 5 of the CC Act the main purposes are to be achieved, where relevant by: (3) Also, the commission is to — (a) investigate cases of corrupt conduct, particularly more serious cases of corrupt conduct; and (b) help units of public administration to deal effectively and appropriately with corruption by increasing their capacity to do so. [36] An aspect of the assistance in s 5(3)(b) the CCC may provide to the QPS which is a unit of public administration, is to ensure that it acts with legal fidelity to the statutes whereby discipline is imposed in cases of misconduct amongst its officers. To move outside the scope of legality would be to corrupt or change the granted power. [37] Mr Gnech may or may not be correct in his assertions as to the real intent of the CCC review application and the purported CCC dissatisfaction with the suspension power in cases of police misconduct.32 Based on the material before the tribunal and upon consideration of the purposes contained in s 4 and s 5 of the CC Act, however, the tribunal considers that the CCC review application may be perceived to be legitimately in pursuit of those statutory purposes. [38] The CCC submission that the QPS has acted ultra vires is a serious question that is able to be argued on its merits before the tribunal. There is no evidence of any wrongful intention to oppress Hopkins or abuse the proper processes of the tribunal’s jurisdiction. The tribunal considers that the CCC is acting within power and for its required purposes. [39] For these reasons, the tribunal dismisses the strike out application. It follows that the tribunal will not consider costs. 31 See: Honourable James Spigelman ACJ NSW (as he then was), ‘The integrity branch of government’, 2004 AIAL National Lecture Series on Administrative Law No 2, Lecture 1, p 2, the first lecture in the 2004 national lecture series for the Australian Institute of Administrative Law. 32 Applicant submissions, application to strike out substantive proceedings, 24 May 2016, p 6. -- 8 of 8 --