Anderson-Barr v Queensland Police Service [2010] QCAT 562

CITATION: Anderson-Barr v Queensland Police Service [2010] QCAT 562 PARTIES: Mr Peter John Anderson-Barr v Queensland Police Service APPLICATION NUMBER: OCR225-10 MATTER TYPE: Occupational regulation matters HEARING DATE: Decision on the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe DELIVERED ON: 9 November 2010 DELIVERED AT: Brisbane ORDERS MADE: The proceeding is dismissed. CATCHWORDS : JURISDICTION – disciplinary proceedings – where applicant seeks review of outcome of complaint against other officers – whether a reviewable decision – whether a prescribed person Queensland Civil and Administrative Tribunal Act 2009 s17 Crime and Misconduct Act 2001 ss 219B, 219BA, 219C, 219F, 219G and 219K APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 -- 1 of 4 -- REASONS FOR DECISION 1. Sergeant Anderson-Barr lodged complaints with the Queensland Police Service, the nature of which have not been disclosed to the tribunal. By letter dated 6 August 2010, the Service advised Sergeant Anderson-Barr that: a) The Crime and Misconduct Commission had assessed his complaints and determined that the matter should be dealt with through the grievance process. b) The Service advised the Commission of the outcome of the grievance process in February 2010. The Commission advised that, on consideration of the outcome of that process, it had finalised its investigation and had no further requirements of the Service. c) Advice as to the outcome of the grievance process had already been provided to him. 2. Sergeant Anderson-Barr has filed an application to review this decision. He says: a) The behaviour the subject of his complaints is a matter of misconduct, not industrial complaint. b) The complaints cannot be dealt with through the grievance procedure. c) The final report from the Service makes no reference to the complaints. 3. A preliminary question has arisen as to whether the tribunal has jurisdiction to hear Sergeant Anderson-Barr’s application. The submissions 4. The Service submits that the tribunal does not have jurisdiction because: a) Section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) provides that the tribunal’s review jurisdiction is the jurisdiction conferred by an enabling Act. b) Section 219BA of the Crime and Misconduct Act 2001(“CM Act”) sets out the meaning of “reviewable decision”. That definition refers to a decision made against a “prescribed person”. c) Section 219BA(2) defines “prescribed person” as a person against whom a disciplinary declaration has been made or, in respect of an appeal by the Crime and Misconduct Commission, a person against whom, according to the appeal, a disciplinary declaration should have been made. d) Sergeant Anderson-Barr is not a prescribed person because there is no finding of misconduct against him. e) Because Sergeant Anderson-Barr is not a prescribed person, the decision is not a reviewable decision. -- 2 of 4 -- f) The tribunal does not have the power to direct the way in which a matter should be investigated or to review the investigation profess. 5. Sergeant Anderson-Barr submits that the tribunal has jurisdiction because: a) It is obvious that his complaints amount to police misconduct. b) Because the Service refers to sections of the CM Act, it has accepted that the complaints refer to misconduct. c) Section 219BA of the CM Act, which defines the term “reviewable decision” shows that a reviewable decision does not relate solely to a disciplinary declaration imposed but to any decision that relates to an allegation of misconduct. The “decision” Sergeant Anderson- Barr wants to review is the Service’s decision to class his complaints as industrial, not to conduct any form of inquiry and not to comply with s44(5) of the CM Act. d) Section 219G of the CM Act relates only to a decision where a disciplinary declaration has been made and is silent on the effect of there being no “prescribed person”. In that case, the provisions of the QCAT Act apply. e) Once a matter is referred to investigation, QCAT can monitor the progress of that investigation. The law 6. Section 17 of the QCAT Act states: (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. (2) For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision. 7. The enabling Act is the CM Act. If it does not confer jurisdiction, the tribunal cannot hear the application. 8. The tribunal’s jurisdiction is set out in s219C of the CM Act; it has jurisdiction to conduct disciplinary proceedings. 9. A disciplinary proceeding is defined in s219B of the CM Act as: a) a proceeding under section 219F for official misconduct alleged to have been committed by a prescribed person; or b) a proceeding under section 219G for a reviewable decision. 10. Section 219F requires that the proceeding be against a prescribed person. “Prescribed person” is defined in s219BA as a person against whom a disciplinary declaration has been made or against whom, in an appeal by the Commission, it is alleged a disciplinary declaration should have been made. No disciplinary declaration has been made against Sergeant Anderson-Barr nor does the Commission allege that a disciplinary declaration should have been made. Consequently, -- 3 of 4 -- Sergeant Anderson-Barr cannot be a prescribed person and, therefore, there is no proceeding that falls within s219F. 11. Section 219G limits the parties who can bring proceedings before QCAT. Only the Commission or the person against whom a reviewable decision has been made can apply for a review of the decision. Once again, as there is no reviewable decision against Sergeant Anderson-Barr, he is not a person who falls within s219G 12. While I understand Sergeant Anderson-Barr’s arguments, I do not agree that a reviewable decision is not restricted to decision where a disciplinary declaration is imposed. Sections 219F and G are clear on their face but cannot be read in isolation. The combined effect of Chapter 5 Part 2 of the CM Act is to limit QCAT’s review jurisdiction to matters where a disciplinary declaration has been imposed. 13. It is true that, pursuant to s219K, QCAT has the power to refer matters for investigation. Before QCAT can avail itself of that power, it must first be satisfied that it has jurisdiction. As I have already indicated, it does not have jurisdiction. It is also important to note that QCAT’s power is limited to referring the matter for investigation and adjourning proceedings until that investigation is complete. It does not have power to “oversee” any investigation. Conclusion 14. Sergeant Anderson-Barr is not a prescribed person within the meaning of the CM Act. 15. Because Sergeant Anderson-Barr is not a prescribed person, the decision presently before the tribunal is not a reviewable decision. 16. The tribunal does not have jurisdiction. The proceeding should be dismissed. -- 4 of 4 --