This statement is intended to assist the media to understand the legislative complexity regarding the CMC's inability to seek review of a matter before the Queensland Civil and Administrative Tribunal (QCAT). Please note from the outset, this relates to police misconduct - not official misconduct. Police misconduct is primarily the responsibility of the Police Commissioner.
CMC power to seek review of QPS discipline decisions in QCAT
The CMC may recommend to the QPS that it consider taking disciplinary proceedings either for police misconduct or official misconduct.
Police misconduct is conduct that:
- is disgraceful, improper or unbecoming an officer; or
- shows unfitness to continue as an officers; or
- does not meet the standard of conduct the community reasonably expects of a police officer.
Process for police misconduct
When the CMC refers alleged police misconduct to the QPS to consider disciplinary proceedings, the QPS appoints a prescribed officer to consider the matter and decide whether or not to initiate disciplinary proceedings.
In the Palm Island case Deputy Commissioner Kathy Rynders was the prescribed officer.
If the decision of the prescribed officer is not to initiate such proceedings, under the current legislation the CMC has no power to request QCAT to review that decision because it is not a 'reviewable' decision as defined by the Crime and Misconduct Act 2001. DC Rynders has decided not to initiate such proceedings. Therefore, the decision is not 'reviewable' (See Crime and Misconduct Act 2001 - Section 219G & Section 219BA).
The reason why the decision is not reviewable becomes very technical. The explanation is as follows:
The definition of "reviewable decision" requires either
(a) a decision made in relation to an allegation of misconduct against a prescribed person; or
(b) a finding mentioned in the Police Service Administration Act 1990 ... that misconduct is proved.
DC Rynders did not make a finding of the kind mentioned in (b).
In order to meet the terms of (a) there must be a decision "in relation to an allegation of misconduct". Counsel's advice was that this when read with other provisions connotes that there must be a disciplinary proceeding on foot.
DC Rynders was asked to consider whether disciplinary proceedings for police misconduct should be initiated on the basis of the CMC's report. She did not formulate any allegations of misconduct against the officers for the purposes of disciplinary proceedings. Hence her decision did not meet the definition of 'reviewable' decision in (a).
Had DC Rynders initiated a disciplinary proceeding and had she come to a decision at the conclusion of that process and the CMC had not been satisfied with that decision, then it had the power to seek review of that decision by QCAT as this decision would have been a reviewable decision (See Crime and Misconduct Act 2001 - Section 219G & Section 219BA).
Below is additional information about official misconduct. However, the CMC is not pursuing allegations of official misconduct and our request for changes to the law does not relate to official misconduct.
Official misconduct
Official misconduct is conduct involving the exercise of a police officer's powers that is dishonest or not impartial or a breach of trust that could, if proved, be:
- a criminal offence; or
- a disciplinary breach providing reasonable grounds for terminating the person's services, if the person is or was the holder of an appointment.
The CMC can take the matter directly to QCAT to commence disciplinary proceedings. This is called referring a matter in its 'original jurisdiction' (See Crime and Misconduct Act 2001 - Section 219F).
The Police Commissioner is correct when he says that the CMC has the power to refer the matter of official misconduct to the QCAT; however, in this case we are referring to police misconduct for which we do not have the same powers.
