Crime and Misconduct Commission v Assistant Commissioner, Queensland Police Service & Anor [2013] QCAT 231

CITATION: Crime & Misconduct Commission v Assistant Commissioner, Queensland Police Service & Anor [2013] QCAT 231 PARTIES: Crime & Misconduct Commission (Applicant/Appellant) v Assistant Commissioner Doyle, Queensland Police Service (First Respondent) and Benjamin Arndt (Second Respondent) APPLICATION NUMBER: OCR081-13 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Michelle Howard, Member DELIVERED ON: 10 May 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Mr Benjamin Arndt’s application to strike out the review application is dismissed; 2. I declare that the review application was filed within time; 3. The application for an extension of time to file the review application is dismissed. CATCHWORDS: POLICE DISCIPLINARY PROCEEDINGS- APPLICATION FOR STRIKING OUT OF APPLICATION – whether there is a reviewable decision POLICE DISCIPLINARY PROCEEDINGS- APPLICATION FOR EXTENSION OF TIME TO FILE PROCEEDING – where required to be filed within 14 days of decision being announced – where application filed within 14 days of announcement to applicant – where previously announced to second respondent -- 1 of 7 -- 2 POLICE DISCIPLINARY PROCEEDINGS- ROLE OF DECISION-MAKER – role is to assist tribunal – where submissions not filed by decision-maker – where reliance placed on submissions of second respondent Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 21 and s 47 Crime and Misconduct Act 2001 (Qld), s 50(4), s 219B, s 219BA, s 219G and Schedule 2 Police Service Administration Act 1990 (Qld), s 7.4, s 7A.4 and s 7A.5 Anderson-Barr v QPS [2010] QCAT 562 Jones v QPS [2013] QCAT 1 APPEARANCES and REPRESENTATION (if any): 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 Misconduct Commission (CMC) has sought to review a decision of 19 October 2012, not to take disciplinary action against a police officer and instead to provide managerial guidance which was made by an Assistant Commissioner, Queensland Police Service (QPS). The police officer concerned was the second respondent, Mr Arndt, who is a serving police officer. The application was filed on 12 March 2013, together with an application for extension of time to file the application given that the decision to which it related was made on 19 October 2012. Mr Arndt’s application to strike out the review application [2] Mr Arndt submits that the CMC’s application is lacking in substance. He submits that the Tribunal does not have jurisdiction to deal with the matter. He asks for the application to be struck out under s 47 of the QCAT Act. Section 47 provides for dismissal or striking out of a proceeding which is, among other things, misconceived or lacking in substance. Background [3] The factual background relates to the actions of Mr Arndt during the arrest1 of an elderly man, Mr Rowe, near a public toilet at the intersection of Albert Street and the Queen Street Mall in Brisbane city on 9 July 2006. 1 The circumstances were considered in Arndt v Rowe [2011] QDC 313. -- 2 of 7 -- 3 Arising out of the events, Mr Arndt was found guilty of assault by a Magistrate on a private prosecution. He was fined $1000. No conviction was recorded. [4] Following the alleged assault, the CMC received a complaint from Mr Rowe about his treatment. The complaint also related to other matters and persons which are not relevant here. The complaint was investigated by the CMC, which concluded that the allegation of unlawful assault was substantiated. The CMC wrote to the QPS on 4 July 2012 advising the outcome of its investigation and enclosing a copy of its report for the purpose of QPS taking disciplinary action. It requested advice about the nature and outcome of action taken. QPS finally responded on 22 February 2013, advising among other things that managerial guidance was provided to Mr Arndt. QPS Action [5] In the meantime, in a memorandum dated 19 October 2012 to the Assistant Commissioner, Metropolitan North Region, Assistant Commissioner Doyle, Ethical Standards Command wrote regarding the allegation that Mr Arndt unlawfully assaulted Mr Rowe during his arrest and other matters which are not relevant here.2 He accepts the judicial findings that the force used by Mr Arndt was not justified in the circumstances and that the allegation of unlawful assault is substantiated.3 However, he concludes that additional training and managerial guidance is the appropriate action to be taken, rather than disciplinary action. He requests advice from the Assistant Commissioner, Metropolitan North Region in relation to the outcome of the matter. [6] Subsequently, the Acting Assistant Commissioner, Metropolitan North Region wrote to Mr Arndt on 26 October 2012. In his memorandum, he advised Mr Arndt that the complaint by Mr Rowe about wrongful arrest and use of excessive force has been the subject of a disciplinary investigation and reviews by the CMC. He says, in respect of the alleged unlawful assault that the Assistant Commissioner, Ethical Standards Command concluded there was sufficient evidence of misconduct having occurred to support the allegation and made a decision that he should be provided with managerial guidance in relation to the allegation. He then confirmed that managerial guidance was provided on 25 October 2012. He further informed Mr Arndt that no further action would be taken in relation to the complaint and no adverse reference would be placed on his personal file. [7] As discussed earlier, QPS did not provide advice of the outcome to the CMC until its correspondence dated 22 February, 2013. What is a reviewable decision? 2 Paragraph 1(iv). 3 Paragraph 6. -- 3 of 7 -- 4 [8] The crux of Mr Arndt’s argument is that a reviewable decision has not been made and that therefore, the Tribunal has no jurisdiction. He submits that jurisdiction only arises under s 219G of the Crime and Misconduct Act 2001 (Qld) (CMC Act), where a finding of misconduct has been made against an officer or an allegation of misconduct has been found not to have been substantiated. [9] He relies upon the decisions in Anderson-Barr v QPS4 and Jones v QPS5 to support this argument. He concedes that in Anderson-Barr the proceeding was decided without reference to some relevant statutory provisions. In Jones, a decision had not been made about whether disciplinary proceedings would be commenced. The Tribunal decided that there was no reviewable decision. Here, he says a disciplinary process has not been constituted or conducted. He has not been subject to any disciplinary charges or called upon to respond to them. [10] QPS did not file any detailed submissions. It relies upon the submissions made by Mr Arndt. [11] The CMC submits that the decision to implement managerial guidance and not to implement disciplinary action is a reviewable decision, having regard to s 219BA and s 219G. It says that Jones supports its arguments, as in this instance, a decision has been made not to proceed with disciplinary action. [12] The Tribunal has jurisdiction to review decisions which it is given power to review by an enabling Act.6 It is uncontroversial that the CMC Act provides for the Tribunal to review specified decisions made about police officers and former police officers on the application of the CMC.7 [13] For Part 2 of Chapter 5 of the CMC Act in which the relevant provisions are contained, a reviewable decision has the definition of reviewable decision specified in section 219BA: s 219B. Section 219BA(1) provides for two types of reviewable decision. A reviewable decision includes relevantly (a) a decision made in relation to an allegation of misconduct against a prescribed person.8 [14] The second category of decisions referred to in the definition in sub- paragraph (b) of the definition of reviewable decision provides for decisions to be reviewable when, (in deciding a breach of discipline) a finding of misconduct is made about a serving or former police officer as provided for in specified sections of the Police Service Administration Act 1990 (Qld) (PSA Act).9 Accordingly, sub-paragraph (b) can not be relevant 4 [2010] QCAT 562. 5 [2013] QCAT 1. 6 QCAT Act, s17. 7 CMC Act, Chapter 5, Part 2, especially s 219B, s 219C, s 219G and s 219H. 8 There are exclusion relating to decisions made by a court or QCAT which are not relevant. 9 The definition refers to the PSA Act, s 7.4(2A)(b) and s 7A.5(1)(b). -- 4 of 7 -- 5 in this instance, because there has not been a finding of misconduct made in deciding a breach of discipline. [15] Sub-paragraph (a) of the definition of reviewable decision is broad. It contains a number of elements: that is, there must be a decision, which has been made, in relation to an allegation of misconduct against a prescribed person. [16] Decision and allegation are not defined. Accordingly, they have their ordinary meaning. The phrase, in relation to, in context indicates that any decision about or concerning an allegation of misconduct against a prescribed person is sufficient. [17] Schedule 2 defines a prescribed person by reference to s 50(3), which is not relevant here, and s 50(4). By virtue of s 50(4), a prescribed person includes a serving police officer: s 50(4)(a)(i). The definition of prescribed person as set out in s 50(4) is refined to some extent for the purposes of Chapter 5 Part 2 in s 219BA(2). However, the amendments as far as they relate to police officers relate to s 50(4)(a)(ii) concerning disciplinary declarations against police officers who are no longer serving, and so are not relevant here. [18] Misconduct is defined in the CMC Act to include police misconduct: Schedule 2. Police misconduct is then defined to include conduct which is improper or unbecoming an officer, or does not meet the standard of conduct the community reasonably expects of a police officer: CMC Act Schedule 2. [19] The CMC Act provides that the CMC may apply to QCAT for review of a reviewable decision: s 219G(1). If the reviewable decision relates to a decision or finding about misconduct in relation to a serving police officer or former police officer (as mentioned in the PSA Act, s 7.4(2A), s 7A.4 or s 7A.5), the application for review must be made within 14 days after the decision or finding,10 or otherwise, within 14 days after the day on which the decision was announced.11 Is there a reviewable decision? [20] Having regard to the definition of reviewable decision in sub-paragraph (a) in s 219BA, has a decision been made in relation to an allegation of misconduct against a prescribed person? [21] An allegation has been made by the CMC of misconduct against Mr Arndt, namely unlawful assault. Assistant Commissioner Doyle, Ethical Standards Command considered the allegation substantiated, decided not to take disciplinary action, and instead to give managerial guidance to Mr Arndt. That is, he made a decision about the allegation. 10 CMC Act, s 219G(2)(a). 11 CMC Act, s 219G(2)(b). -- 5 of 7 -- 6 [22] The Acting Assistant Commissioner, Metropolitan North Region refers to the conduct as misconduct. The CMC considered it misconduct. I accept that such conduct is capable of being characterised as misconduct as defined in the CMC Act. [23] Mr Arndt is a serving police officer. He is therefore a prescribed person under s 50(4)(a). [24] All of the elements of the definition in sub-paragraph (a) are met. I am satisfied that the decision made by Assistant Commissioner Doyle, Ethical Standards Command was a decision in relation to an allegation of misconduct, namely, unlawful assault, against Mr Arndt. I therefore accept that it is a reviewable decision. [25] Therefore, the application does not lack substance. Accordingly, the application to strike out the CMC’s application is dismissed. Observation about the role of decision-maker in the application [26] The role of the decision-maker in review proceedings is to assist the Tribunal to decide the matter.12 It is somewhat surprising that QPS agrees with Mr Arndt on each and every submission made and has no submissions to add at all. I make this observation as the role to assist is an active one, and general agreement with Mr Arndt’s application and submissions would not, having regard to the decision-maker’s responsibilities to assist the Tribunal, obviate the need for submissions by the decision-maker if its views were not identical in all respects. [27] Of course, if there is agreement on every point, further submissions would not be necessary. Although the Tribunal does not need or wish to receive repetitive submissions which add nothing, it is greatly assisted in performing its review jurisdiction functions by diligent assistance from decision-makers. The CMC’s application for extension of time [28] The reviewable decision was made on 19 October 2012. The application for review was not filed until 12 March 2013. As discussed earlier, under s 219G(2)(b), which is applicable in this case, an application for review must be made within 14 days of when the decision was announced. The Tribunal may extend the time for the filing of an application by virtue of s 61(1) of the QCAT Act. [29] The CMC submits that it was announced on either 19 October 2012, or 26 October 2012, these being the dates respectively on which Assistant Commissioner Doyle, Ethical Standards Command advised the Assistant Commissioner, Metropolitan North Region and the day on which the Acting Assistant Commissioner, Metropolitan North Region advised 12 QCAT Act, s 21(1). -- 6 of 7 -- 7 Mr Arndt. I consider that although it was announced to Mr Arndt at that time, it was not announced to the CMC, until much later. [30] The term announced is not defined and so it bears its ordinary meaning. It would make a nonsense of the right to review for a time limit to run from a time before a party was made aware of the decision concerned. In my view, in context, announced means announced or made known to the party who has a right to review the decision. That is, in this instance, when it was announced or made known to the CMC. [31] It is not necessary for me to consider whether an extension of time should be granted. The decision was announced or made known to the CMC in correspondence from QPS dated 22 February 2013, which was a Friday. It is date-stamped received by the CMC on 26 February 2013, the following Tuesday. The application for review was filed 14 days later on 12 March. It follows that it was filed, within 14 days after the decision was announced to the CMC, that is, when notification of it was received by it in the ordinary course of the post. That is, the application was filed in time. I make a declaration to this effect. [32] Mr Arndt was not to know that the decision was not announced to the CMC when it was announced to him. This was in all likelihood, and reasonably so, his expectation. It would also have been appropriate practice in my view. That being the case, he no doubt thought the consequences relating to the events concerned had been finalised. That is unfortunate, but does not bear on my interpretation of the provision. [33] For completeness, I make the observation that if in the course of disciplinary action, an allegation of misconduct is decided or a finding of misconduct is made against a serving police officer or a former police officer, the CMC must be promptly notified.13 It does not appear that there is a statutory requirement for similar prompt notification to the CMC in circumstances such as these. This appears to be a shortfall in the relevant legislation. [34] The application for extension of time is dismissed. 13 PSA Act, s7.4(2A), s 7A.5. -- 7 of 7 --