Connie & Ors v O'Sullivan [2000] QSC 307

SUPREME COURT OF QUEENSLAND CITATION: Connie & Ors v O’Sullivan [2000] QSC 307 PARTIES: GRANT ARTHUR FRANCIS CONNIE (first applicant) DEBORAH SUZETTE MALONE (second applicant) CHRISTOPHER BRIAN DUHIG (third applicant) BRETT ANDREW JENSEN (fourth applicant) v JAMES PARTICK O’SULLIVAN (respondent) FILE NO: 6930/00 DIVISION: Trial PROCEEDING Civil DELIVERED ON: 8 September 2000 DELIVERED AT: Brisbane HEARING DATE: 28 August 2000 JUDGE: White J ORDER: Dismiss the application CATCHWORDS: Review of Police Commissioner’s decision and conduct - lateral transfer - whether advertised - whether selection on merit required - whether unjust discrimination - Police Service Administration Act 1990 Police Service Administration Act 1990, s5.1, s5.2(1), s5.2(2)(a), s5.2(2)(b), s5.2(3) Police Service Administration Regulation 1990, reg 4.2, reg 4.2A Police Service Ranks Regulation 1991, reg 4(1) Waters v Public Transport Corporation (1991) 173 CLR 349 COUNSEL: J A Logan SC for the applicants P Flanagan for the respondent -- 1 of 7 -- 2 SOLICITORS: Gilshenan & Luton for the applicants C J Strohfield, Queensland Police Service Solicitor for the respondent [1] This is an application pursuant to the Judicial Review Act 1991 brought by four serving police officers the first two of whom are senior constables and the third and fourth of whom are constables. On 2 June 2000 the following appeared in the Queensland Police Gazette (deleting irrelevant material) “TRANSFER AT LEVEL OPPORTUNITIES SENIOR CONSTABLES/CONSTABLES VACANCIES Vacancies for Senior Constables and Constables exist at the following centres … Applications (QP 31) addressing the selection criteria and brief resume should reach the Human Resources Manager of the Region or Command … in which the vacancy exists … no later than 5 pm, Monday, 19 June 2000 … Appointments to these vacancies will be by Lateral Transfer. Job Descriptions and specific information requirements relating to particular vacancies are available on the Bulletin Board. GENERAL VACANCIES … North Coast Region … .. • *Investigator, Sunshine Coast District CIB Detective/PC (Refer Note 3)… ” Note 3 is not relevant to this application. [2] Each of the applicants applied by completing, as instructed, form QP 31 “Application For Transfer,” item 1 of which read “I hereby apply for transfer to Sunshine Coast Criminal Investigation Branch.” A selection panel was formed within the Region to consider the applications received from twenty officers. According to Mr David Gill, Director of Human Resources in the Queensland Police Service, the notice ought to have been qualified with the notation that preference would be given to constables over senior constables. This was to reduce the imbalance between those ranks in the North Coast Region. It was omitted in error and not adverted to until the panel’s recommendations were received by the Acting Assistant Commissioner. -- 2 of 7 -- 3 [3] On 20 July each of the applicants was advised that the previous “expressions of interest” advertisement was cancelled, and that the position would be “re- advertised” in the near future reflecting “that constables are particularly sought and will be given preference. In the event no suitable constables can be nominated then senior constables may be selected”. Each of the applicants deposes to having an expectation of selection from information informally passed on to him or her in the service. There would appear to be more than one position available. [4] A fresh Gazettal appeared on 21 July 2000 with the notation expressing a preference for constables. Mr Gill states that “Currently, the North Coast Region of the QPS, and the Sunshine Coast District in particular, has an abnormally high proportion of Senior Constables - they currently outnumber the Constables instead of the reverse - and the QPS is committed to a reversal of that situation over time with the specific objective of reducing the proportion of Senior Constables to between 30% and 43% of the overall Constables/Senior Constable numbers. In terms of the Sunshine Coast CIB in particular, the situation is no different. Instead of a normal rank structure of 8 Senior Constables and 14 Constables there are, currently, 12 Senior Constables and 5 Constables with five vacancies to be filled” paras 16,17. This is not disputed. [5] The issue for consideration is the appropriate procedure for filling these positions. The applicants contend that having “ advertised” the positions these are merit-based applications and the QPS is obliged to follow the proper process for such appointments provided for by s5.2(2)(a) of the Police Service Administration Act 1990 (“the Act”). The respondent, on the other hand, maintains that these are merely lateral transfers to which the procedures for selection on merit do not apply. It is submitted that the mere placing of a notice in the Gazette seeking “expressions of interest” in respect of such transfers which is a convenient and appropriate way of ascertaining who is interested in such a transfer does not, of itself constitute an “advertisement” for applications so as to bring into operation the provisions of s5.2(2)(a) of the Act. [6] The ranks of senior constable and constable are separate ranks within the police service, s5.1 of the Act and reg 4(1) of the Police Service Ranks Regulation 1991. The appointment to police officer positions is governed by s5.2 of the Act. Section 5.2(2) provides that a decision to appoint a person as a police recruit or to a police officer position must be made by fair and equitable procedures that “(a) include inviting applications and selection on the basis of the merit of the applicants; and (b) prevent unjust discrimination, whether in favour of or against a person.” -- 3 of 7 -- 4 By subs(3), where a decision is made to transfer a police officer on a basis prescribed by regulation, “the decision need not involve the procedures mentioned in subs(2)(a)”. The “transfer” of a police officer to a position means “ … the appointment of a police officer to a position in which the police officer will hold the same rank and be entitled to at least the same level of salary.” s5.2(1) [7] Regulation 4.2 of the Police Service Administration Regulation 1990 concerns transfers, vacancies and promotions. Regulation 4.2A was inserted in 1993 and provides “A basis specified in - (a) an industrial agreement between the Commissioner and the Queensland Police Union of Employees and Queensland Officers’Union of Employees; or (b) an award replacing the agreement; is a basis for the transfer of an officer under section 5.2(3) and (4) of the Act”. An industrial agreement was made in the Queensland Industrial Relations Commission entitled “Police Service Award-State Lateral Transfers Industrial Agreement” on 14 September 1993 (“the Industrial Agreement”). It was made between the Commissioner of Police and the Queensland Police Officers’ Union of Employees and Queensland Police “Union of Employees” (No 1A49 of 1993). It was therefore an agreement of the kind contemplated by reg 4.2A to which s5.2(3) applies. [8] Clause 1. 3 defines “lateral transfer” to mean “The process of transferring (in response to one or more operational factors), within the Queensland Police Service, an employee at such employee’s existing rank to a position at an equivalent rank without advertisement of that position: Provided that no employee will suffer a reduction in ordinary salary as a result of lateral transfer”. Operational factors are variables which affect the deployment of staff in the Police Service. “For the purposes of this Agreement operational factors are:- (a) organisational restructuring; (b) management of staffing issues; (c) health or compassionate grounds; (d) service in isolated or difficult postings; (e) re-deployment to/from surplus; (f) re-deployment after extended leave or return from secondment (g) assistance in meeting EEO requirements” cl 1.3(4). [9] Part 2 of the Industrial Agreement sets out the circumstances in which lateral transfers might be utilised. Clause 2.1(1) commences “When deciding not to -- 4 of 7 -- 5 advertise a vacancy consideration shall be given to … ” and then sets matters to which the Commissioner shall have reference. In considering lateral transfers the Commissioner is assisted by a Transfer Advisory Committee, which considers submissions for lateral transfers by assessing the various operational factors, cl 4.1. [10] The Act does not use the expression “lateral” transfer but the Explanatory Note to the 1993 Bill to amend the Act does so. The focus of the Note is to recognise that the Commissioner is given express authority by the amendments to transfer police officers where previously there was some doubt about the existence and extent of such a general transfer power. There is nothing in the Note of particular assistance but when referring to the Transfer Advisory Committee established by the Industrial Agreement the Note states “Applications for transfers to “non-advertised positions”, (whether initiated by management or the individual) will be considered by the Committee. The Committee will then provide the Commissioner with advice regarding the relative merits of each application. Where appropriate the positions may then be filled by the transfer of an officer without the position being advertised as vacant. In all other circumstances the vacant position will be advertised.” When a position is advertised in the latter sense a different procedure as set out in the Human Resource Management Manual is followed which clearly seeks to give effect to appropriate policies and procedures for merit selection. These include the use of referees’ reports and the appointment of selection panel members external to the region and/or the QPS. This is not a procedure envisaged in the Industrial Agreement for lateral transfers. [11] The applicants contend that the positions as investigators at the Sunshine Coast CIB were “advertised” because the availability of those positions was notified in the Queensland Police Gazette. If that were the case then those positions were not lateral transfers and the procedure for filling those positions is governed by s5.2(2)(a) of the Act and reg 4.2 of the Police Service Administration Regulation 1990. The applicants contend that that is so, despite the words “Appointment to these vacancies will be by Lateral Transfer” appearing in the notification. [12] The applicants must be taken to be familiar with the Industrial Agreement which determined that lateral transfer positions were to be non-advertised positions in the sense of not attracting the operation of s5.2(2)(a) of the Act. It is not inconsistent with the “non-advertised” nature of lateral transfers for management to make known its intention, when it decides for operational reasons that transfers should take place, by notification in the Queensland Police Gazette. Clause 1.3 of the Industrial Agreement envisages that on occasion more than one person might be identified as a potential transferee. When this occurs “closed merit” selection is applied. That is defined as “A process of selection used in a transfer situation where the vacancy is not advertised, but more than one person has been identified as potential transferees. Thus, merit selection is applied within the closed pool of employees on the same rank wishing to -- 5 of 7 -- 6 transfer, rather than within a wider pool which would be created by advertising the vacancy.” [13] An effective way of informing an employee who may be interested is by inviting expressions of interest via the Gazette. By doing so there has been no departure from the procedures required by reg 4.2A and the Industrial Agreement. [14] Mr J Logan SC for the applicants submitted that even if the positions were lateral transfers and not advertised merit positions a senior constable was entitled to seek transfer to a senior constable position at the Sunshine Coast since there was no limitation noted on the 2 June 2000 in the Gazette notice. Accepting that, it was open to the Commissioner to cancel that notification when the error was discovered. No entitlement accrued to any senior constable who had notified his or her interest in the position. [15] The applicants who are senior constables appear to suggest that it is discriminatory for management to express a preference for constables whilst calling for expressions of interest from both constables and senior constables. All decisions to appoint including the transfer of a person to a police officer position must be made by fair and equitable procedures “that prevent unjust discrimination whether in favour of or against a person,” s.5.2(2)(b). The Act contains no definition of “unjust discrimination”. In Waters v Public Transport Corporation (1991) 173 CLR 349, Mason C J and Gaudron J observed at 357 “Within the Australian legal system, it is usual for anti- discrimination legislation to ban discriminatory practices in terms which deal separately with treatment which differentiates by reason of some irrelevant or impermissible consideration and with practices which, although not overtly differentiating on that basis, have the same or substantially the same effect.” Discrimination on the basis of whether a person is a senior constable or a constable does not appear to be impermissible so as to constitute discrimination in the legal sense. Both the Industrial Agreement and the Commissioner’s responsibilities reflect staffing and deployment matters. Further, any discrimination must be “unjust discrimination”. There is no basis for characterising the preference for constables over senior constables to address the imbalance in the numbers in those ranks in the Sunshine Coast Region as unjust. [16] If, however, for relevant operational reasons, no constable who has expressed an interest in a transfer is thought capable of fulfilling the position, the Commissioner, assisted by the Transfer Advisory Committee may consider any senior constable who has expressed such an interest. The preference for constables does not mean that management may not call for expressions of interest from senior constables as well as constables. [17] The respondent has not departed from the procedural requirements of the Act, the Regulations or the Industrial Agreement with respect to the position(s) of -- 6 of 7 -- 7 Investigator, Sunshine Coast District in placing either the notice of 2 June 2000 or that of 21 July 2000 in the Queensland Police Gazette and in proposing to consider any applications for lateral transfer in the manner indicated. [18] The application is dismissed. I will hear submissions as to costs. -- 7 of 7 --