SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: PARTIES: O Keefe & Ors v Commissioner of the Queensland Police Service [2016] QCA 205 CHRISTOPHER LAWRENCE O KEEFE (first appellant) NATHAN IRWIN (second appellant) BARRY WELLINGTON (third appellant) STEPHEN FLANAGAN (fourth appellant) v COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: Appeal No 35 of 2016 SC No 5741 of 2015 DIVISION: PROCEEDING: Court of Appeal General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane [2015] QSC 335 DELIVERED ON: 19 August 2016 DELIVERED AT: Brisbane HEARING DATE: 19 May 2016 JUDGES: ORDERS: CATCHWORDS: Gotterson and Morrison and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. Appeal dismissed. 2. The appellants are to pay the respondent s costs of the appeal on the standard basis. POLICE INTERNAL ADMINISTRATION DISCIPLINE AND DISMISSAL FOR MISCONDUCT QUEENSLAND where each appellant was either stood down or suspended from their duties as police officers where each of the appellants sought a statement of reasons pursuant to s 32 of the Judicial Review Act 1991 (Qld) where the Commissioner of the Queensland Police Service obtained relief in the Trial Division that the appellants were not entitled to make a request for a statement of reasons in respect of their standing down or suspension by virtue of Item (1) of Class 3 of Schedule 2 of the Judicial Review Act 1991 (Qld) where the appellants appealed against the decision of the Trial Division, alleging that the decisions to stand down or suspend were not decisions made

2 COUNSEL: SOLICITORS: 2 in relation to the investigation of persons for corruption under the Crime and Corruption Act 2001 where it is further submitted that there was no evidence of an investigation of persons for corruption under the Crime and Corruption Act 2001 whether, upon a proper construction of Item (1) of Class 3 of Schedule 2 of the Judicial Review Act 1991 (Qld), the decision to stand down or suspend each appellant was a decision in relation to the investigation of persons for corruption under the Crime and Corruption Act 2001 (Qld) Crime and Corruption Act 2001 (Qld), s 15, s 41, s 45, s 47, s 48, sch 2 Judicial Review Act 1991 (Qld), s 31, s 32, sch 2 Police Service Administration Act 1990 (Qld), s 1.4, s 4.8, s 6.1, s 6.3, s 6.4, s 7.4 Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, cited Hocken v Pointing [1993] 2 Qd R 659; [1993] QSC 31, cited P J Davis QC, with A Scott, for the appellants J M Horton QC, with A Marinac, for the respondent Queensland Police Union Legal Group for the appellants Public Safety Business Agency Legal Services for the respondent [1] GOTTERSON JA: Each of the appellants is a police officer within the Queensland Police Service ( QPS ). Each of them has been served with a Stand Down Notice, in the case of the First Appellant, in August 2013 and in the case of the other appellants, in May In each case, the notice is stated to be given pursuant to s 6.1(1) and (d) of the Police Service Administration Act 1990 (Qld) ( PSA Act ). 1 A fifth police officer who had also been served with a Stand Down Notice in May 2015, 2 was, with the appellants, a party to the proceeding in the Trial Division from which this appeal has emanated. He is not an appellant in the appeal. [2] Each Stand Down Notice advised the police officer to whom it was addressed that he was the subject of an investigation regarding allegations against him. The conduct alleged against the officer was summarised. It was described in the notice as of a serious nature. [3] A Suspension Notice was served on the First Appellant in June This notice notified the First Appellant that he was suspended forthwith without the loss of salary and allowances. [4] A show cause proceeding against the First Appellant initiated in June resulted in the service of a Suspension Notice (Without Remuneration) on him in July These notices are exhibited to an affidavit of Ms B J Wadley sworn on 12 June 2015: AB They are, respectively Exhibit QPS1 dated 13 August 2013 (First Appellant): AB34-35; Exhibit QPS11 dated 13 May 2015 (Second Appellant): AB ; Exhibit QPS13 dated 20 May 2015 (Third Appellant): AB ; and Exhibit QPS17 dated 22 May 2015 (Fourth Appellant): AB Affidavit of Ms B J Wadley; Exhibit QPS15 dated 21 May 2015: AB Ibid Exhibit QPS2 dated 20 June 2014: AB The Show Cause Notice was combined with the Suspension Notice Exhibit QPS2. 5 Affidavit of Ms B J Wadley; Exhibit QPS4 dated 8 July 2014: AB49-53.

3 3 This notice is stated to be given pursuant to s 6.1(1)(ii), and (e), and s 6.3 of the PSA Act. The initiating notice referred to an investigation into an allegation of misconduct by the First Appellant. There was attached to it an Executive Briefing Note which detailed the conduct the subject of the investigation. That conduct corresponded with the conduct which had been detailed in the First Appellant s Stand Down Notice. [5] On 11 May 2015, the First Appellant, by way of a submission from his legal representative, requested a reconsideration of his employment status pursuant to s 6.1(1)(ii) and s 6.1(2) of the PSA Act. 6 By letter dated 15 May 2015, the First Appellant was advised by the Deputy Commissioner (Specialist Operations) of the QPS that the responsible decision maker had reconsidered his employment status and that, as a result, the QPS did not intend, at that time, to revoke his suspension without pay. 7 [6] On 18 May 2015, the legal representative wrote to the Deputy Commissioner (Specialist Operations). 8 This correspondence referred to the decision advised on 15 May and sought a statement of reasons for this decision outlined within your Stand Down Notice pursuant to s 32 of the Judicial Review Act 1991 (Qld) ( JR Act ). This Court was informed at the hearing of the appeal that it is common ground that the decision for which reasons were sought was, in fact, the suspension without remuneration decision and that the reference to the Stand Down Notice was in error. 9 The correspondence intimated that if there was a failure to provide a proper statement of reasons within the timeframe permitted by s 33 of the JR Act, instructions were held to file for relief in the Supreme Court. [7] In the case of each of the other appellants, the legal representative wrote in May 2015 to the Assistant Commissioner of the QPS referring to the appellant s Stand Down Notice. 10 The correspondence sought a statement of reasons for the decision outlined within your Stand Down Notice pursuant to s 32. A like intimation concerning the filing for relief was also given by the correspondence. [8] On 12 June 2015, the Commissioner of the QPS, the respondent to this appeal, commenced a proceeding by way of originating application, to which each of the appellants and the fifth member of the QPS to whom I have referred, were named as the First to Fifth Respondents. The principal relief sought was an order pursuant to s 39 of the JR Act that each respondent was not entitled to make a request for a statement of reasons under s 32 of the Act in respect of their standing down or suspension (as the case may be) by the Applicant. [9] An order in those terms was made by a judge of the Trial Division on 7 December On 4 January 2016, the appellants filed a notice of appeal against that order. 11 Statutory provisions relevant to the appeal [10] PSA Act: The PSA Act provides for the maintenance, the membership, and the development and administration of the QPS. 12 The Commissioner of Police is 6 Ibid Exhibit QPS8 : AB Ibid Exhibit QPS9 : AB Ibid Exhibit QPS10 : AB Appeal Transcript 1-6 ll24-27; 1-22 ll Affidavit of Ms B J Wadley; Exhibit QPS12 dated 15 May 2015 (Second Appellant): AB106-7; Exhibit QPS14 dated 22 May 2015 (Third Appellant): AB ; and Exhibit QPS18 dated 26 May 2015 (Fourth Appellant): AB AB PSA Act s1.3.

4 4 responsible for the efficient and proper administration, management and functioning of the QPS in accordance with the law. 13 The Commissioner is, by s 4.8(3) of the PSA Act, authorised to do, or cause to be done, all such lawful acts and things as the Commissioner considers necessary or convenient for the efficient and proper discharge of this responsibility. [11] Section 6.1 of the PSA Act empowers the Commissioner to stand down and suspend police officers. It provides as follows: (1) If it appears to the commissioner, on reasonable grounds that (i) (ii) (iii) an officer is liable to be dealt with for corrupt conduct; or an officer is liable to disciplinary action under section 7.4; or the efficient and proper discharge of the prescribed responsibility might be prejudiced, if the officer s employment is continued; or an officer is charged with an indictable offence; or an officer is unfit for reasons of health to such an extent that the officer should not be subject to the duties of a constable; the commissioner may (d) (e) stand down the officer from duty as an officer and direct the person stood down to perform such duties as the commissioner thinks fit; or suspend the officer from duty. (2) The commissioner may at any time revoke a standing down or suspension imposed under subsection (1). Under s 6.3(1), a suspended officer is entitled to be paid unless the Commissioner otherwise determines in a particular case. An officer who is stood down or suspended is relieved of the powers and duties of a constable at common law or under any Act or law. 14 [12] For the purposes of the PSA Act, the term corrupt conduct has the meaning given to it by s 15 of the Crime and Corruption Act 2001 (Qld) ( CC Act ), set out later in these reasons. [13] Disciplinary action under s 7.4 connotes action in respect of misconduct or a breach of discipline, the former of which is defined in s 1.4 of the PSA Act to mean conduct that is disgraceful, improper or unbecoming an officer; or 13 Ibid s 4.8(1). 14 PSA Act s 6.4.

5 5 shows unfitness to be or continue as an officer; or does not meet the standard of conduct the community reasonably expects of a police officer. A police officer is liable to disciplinary action if a prescribed officer considers that the officer s conduct is misconduct or a breach of discipline. 15 If the prescribed officer finds misconduct, the Commissioner must notify the Crime and Corruption Commission ( CCC ) and the officer within 14 days. 16 [14] JR Act: Section 32 is in Part 4 of the JR Act (ss 31-40). Part 4 contains provisions for a process by which a request for a statement of reasons for certain decisions may be made. Section 32(1) operates where a person makes a decision to which this part applies. Under this provision, a person who is entitled to apply for judicial review of such a decision may request the decision maker to provide a written statement in relation to the decision. The statement, when given, must contain the reasons for the decision. 17 [15] The expression decision to which this part applies is defined in s 31 in Part 4 to mean a decision to which this Act applies subject to two exceptions. It is not in dispute in this appeal that the suspension and the stand downs here were each brought into effect by a decision to which the JR Act applies, as that expression is defined in s 4 of the JR Act. Each is a decision of an administrative character made under an enactment within the meaning of the JR Act. [16] The definitional exception that is presently relevant is a decision which is included in a class of decisions set out in Schedule 2 to the JR Act. 18 Schedule 2 lists some 16 classes of decisions. Class 3 is headed Corruption etc. and comprises the following: (1) Decisions in relation to the investigation of persons for corruption under the Crime and Corruption Act (2) Decisions in relation to the initiation of matters in the original jurisdiction of QCAT under the Crime and Corruption Act [17] The learned primary judge found that the suspension decision and each of the stand down decisions was a decision within Item (1) of Class 3 because it was a decision in relation to the investigation of a person for corruption under the CC Act. On the basis of that finding, each decision was held to be not one to which s 32(1) applied. [18] CC Act: The word corruption is defined under the CC Act to mean corrupt conduct and police misconduct. 19 The term corrupt conduct is defined in s 15 of the CC Act. The definition is in the following terms: (1) Corrupt conduct means conduct of a person, regardless of whether the person holds or held an appointment, that adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of 15 Ibid s 7.4(2). 16 Ibid s 7.4(2A). 17 JR Act s Section CC Act Schedule 2.

6 (d) (i) (ii) 6 a unit of public administration; or a person holding an appointment; and results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph in a way that (i) (ii) (iii) is not honest or is not impartial; or involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and is engaged in for the purpose of providing a benefit to the person or another person or causing a detriment to another person; and would, if proved, be (i) (ii) a criminal offence; or a disciplinary breach providing reasonable grounds for terminating the person s services, if the person is or were the holder of an appointment. (2) Without limiting subsection (1), conduct that involves any of the following could be corrupt conduct under subsection (1) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) abuse of public office; bribery, including bribery relating to an election; extortion; obtaining or offering a secret commission; fraud; stealing; forgery; perverting the course of justice; an offence relating to an electoral donation; loss of revenue of the State; sedition; homicide, serious assault or assault occasioning bodily harm or grievous bodily harm; obtaining a financial benefit from procuring prostitution or from unlawful prostitution engaged in by another person; illegal drug trafficking; illegal gambling.

7 7 [19] The definition of the term police misconduct is found in Schedule 2 to the CC Act. In terms that replicate essential features of the definition of misconduct in the PSA Act, police misconduct is defined to mean: conduct, other than corrupt conduct, of a police officer that is disgraceful, improper or unbecoming a police officer; or shows unfitness to be or continue as a police officer; or does not meet the standard of conduct the community reasonably expects of a police officer. Corrupt conduct and police misconduct are, therefore, mutually exclusive concepts in the context of the CC Act. Thus, where the conduct of a police officer is corrupt conduct, it is not also police misconduct. [20] Division 4 of Part 3 of the CC Act is concerned with dealing with complaints. Subdivision 1 thereof (ss 41, 42) concerns the Commissioner of Police. Under s 41(1), the Commissioner has primary responsibility for dealing with complaints about, or information or matter the Commissioner reasonably suspects involves, police misconduct. The CCC is responsible for monitoring how the Commissioner deals with police misconduct. 20 In discharging that role, the CCC may review and audit the way the Commissioner deals with a complaint of police misconduct and may assume responsibility for and complete an investigation by the Commissioner into police misconduct. 21 [21] By contrast, the Commissioner is given responsibility by s 41(2) to deal with a complaint about, or information or matter involving corrupt conduct which is limited to that referred to the Commissioner by the CCC. That is because, under s 45(1) of the CC Act, the CCC has primary responsibility for dealing with complaints about corrupt conduct which it may do by exercising powers conferred on it by Chapter 3 of the CC Act. The CCC may itself investigate the complaint or may refer it to a public official, such as the Commissioner of Police, to deal with it subject to the CCC s monitoring role. 22 [22] The expression deal with is given a defined meaning by Schedule 2 of the CC Act for the context of a complaint about corruption or information or matter involving corruption. Since corruption includes police misconduct, this meaning is apt to inform the scope of the responsibility which the Commissioner and the CCC are respectively given by s 41(1) and s 45(1) for dealing with complaints. The meaning given is includes (d) (e) investigate the complaint, information or matter; and gather evidence for (i) (ii) 20 CC Act s 45(2). 21 Ibid s 47(1),. 22 Ibid s 46(2), ; s 48(1), (d). prosecutions for offences; or disciplinary proceedings; and refer the complaint, information or matter to an appropriate authority to start a prosecution or disciplinary proceeding; and start a disciplinary proceeding; and take other action, including managerial action, to address the complaint in an appropriate way.

8 The judgment at first instance 8 [23] At first instance, the Commissioner, as applicant, submitted that a decision to stand down or suspend a police officer made under s 6.1 of the PSA Act is a decision in relation to the investigation of persons for corruption under the CC Act and hence is within the ambit of Item (1) of Class 3 in Schedule 2 of the JR Act. If it is, then the decision is not one to which Part 4 of the JR Act applies by means of the relevant exception in the definition in s 31 thereof. [24] The learned primary judge gave separate consideration to three parts or elements of the exception, namely, that the decision be: in relation to; the investigation of persons; for corruption under the CC Act. [25] His Honour was satisfied that the conduct notified to be under investigation in each Stand Down Notice was conduct which, if substantiated, would be corrupt conduct or police misconduct as defined in the CC Act and, hence, would be corruption under the CC Act. He held a similar view with respect to the conduct under investigation to which the decision to suspend the First Appellant was referenced. 23 [26] The learned primary judge was further satisfied that the decision to suspend or stand down the police officer concerned was a decision made in relation to the investigation of the police officer for corruption. The decision, his Honour observed, was at the least, ancillary or incidental [to the investigation] or made in assistance thereof. 24 [27] Consistently with this, his Honour found that each decision was one that was in relation to the investigation of a person for corruption under the CC Act and therefore was not a decision to which Part 4 of the JR Act applied. Accordingly, none of the respondents to the application was entitled to request a statement of reasons for the decision under s 32(1) thereof. 25 Grounds of appeal [28] The Notice of Appeal contends that, in so finding, the learned primary judge erred in two respects, namely: (i) (ii) There was no evidence of an investigation of the [the appellants] for corruption under the Crime and Corruption Act 2001 ; alternatively The decisions were not, on the proper construction of clause 3(1) of Schedule 2 of the Judicial Review Act 1991, decisions made in relation to any investigation of the applicants (if there was an investigation) for corruption under the Crime and Corruption Act [29] The appellants further contend that his Honour should have held that the decisions did not fall within Item (1) of Class 3 and were not within the exception to the category of decisions to which Part 4 of the JR Act applies. The application should have been dismissed. 23 Reasons [23]. 24 Reasons [25]. 25 Reasons [27]. 26 AB147.

9 9 [30] It is convenient to consider the constructional issues raised by the second ground of appeal first. Ground Two [31] Central to this ground of appeal is a construction of Item (1) in Class 3 which requires that, in order to fall within it, both the decision and the investigation to which it relates be under the CC Act. This construction, it is submitted, is supported by a number of factors. The first is that, as beneficial legislation, the JR Act ought to be interpreted broadly with the consequence that Schedule 2, which is restrictive of decisions for which reasons must be given, ought to be interpreted narrowly. Williams J (as his Honour then was) had adopted such an approach to the interpretation of Class 7 in Schedule 2 in Hocken v Pointing. 27 [32] Secondly, it is further submitted, a construction which requires the decision to have been made under the CC Act would be contextually conformable with two other classes in Schedule 2, namely, Class 4 and Class 5. Each of those classes refers to decisions made under nominated provisions in the CC Act by the CCC or a commission officer. [33] Adopting this construction, the appellants urge a conclusion that the decisions here are not within Item (1). They do so by arguing, firstly, that the decisions were made under the PSA Act and not the CC Act and, secondly, that the investigation in the context of which each decision was made, was carried out under the PSA Act and not the CC Act. [34] Against this construction, the Commissioner submits that the prepositional phrase under the Crime and Corruption Act 2001 at the end of Item (1) qualifies only the word corruption which immediately precedes it. The phrase does not qualify either the word decisions or the expression investigation of persons. As an alternative construction, the Commissioner submits that the prepositional phrase qualifies the composite expression in relation to the investigation of persons for corruption and further submits that the investigations here were of such a character. [35] I do not accept the appellants submission that Item (1) requires that the decision be made under the CC Act in the sense that that Act must be the source of the express or implied power to make the decision that was made. There are two aspects to the drafting of Schedule 2 which, in my view, persuasively suggest that that is not intended. [36] The first aspect is that, in contrast to Class 3, the words made under the Crime and Corruption Act 2001 are used in Classes 4 and 5 to qualify the word decisions. That form of qualification clearly indicates that the decision is to be one under the CC Act. The word made is not used in Item (1) in connection with the prepositional phrase. Its absence indicates that decisions need not be made under the CC Act in order for them to fall within Item (1) in Class 3. [37] The second aspect is related to the first. The words in relation to immediately follow, and evidently qualify, the word decisions in Item (1). By contrast, the prepositional phrase is distanced from the word decisions. This structure suggests that the prepositional phrase is not intended to be a separate and independent qualification of the word decisions. [38] Nor do I accept the construction for which the Commissioner primarily contends. It is one that accords a minimal role to the prepositional phrase of indirectly supplying 27 [1993] 2 Qd R 659 at 661.

10 10 a definition for the word corruption in context and in absence of a definition for it in the JR Act or the Acts Interpretation Act 1954 (Qld). [39] To my mind, the prepositional phrase does supply a definition, but is intended to do more than that. I understand it to qualify the composite expression which precedes it, namely, in relation to the investigation of persons for corruption under the Crime and Corruption Act In this respect, its structure is comparable with Item (2) in Class 3 where the same prepositional phrase evidently qualifies the composite expression in relation to the initiation of matters in the original jurisdiction of QCAT. [40] On the footing that the investigation of persons for corruption must be under the CC Act, the appellants submit that only an investigation carried out by the CCC in exercise of powers conferred on it by the CC Act, can satisfy that requirement. In oral submissions, senior counsel for the appellants said: Whereas we submit that on a proper construction, it is only investigations into corruption, which would include policed misconduct, it is only investigations which are done under the Crime and Corruption Act. And there s a distinction, we submit, between an investigation which is done under the Crime and Corruption Act, being one done by the Commission in exercise of powers under that Act, and one done by the Commissioner exercising powers under the Police Service Administration Act. 28 Counsel completed the submission with the proposition that an investigation of persons for corruption under the PSA Act is not an investigation under the CC Act. Hence, a decision in relation to such an investigation could not fall within Item (1). 29 [41] In my view, the distinction which the appellants seek to draw in this submission is not a valid one. It takes no account of the statutory responsibilities cast on the Commissioner by the CC Act to deal with complaints about, or information or matter the Commissioner reasonably suspects, involves police misconduct and to deal with complaints about, or information or matter involving, corrupt conduct referred by the CCC. [42] It will be recalled that the expression deal with is defined widely in Schedule 2 of the CC Act. The expression includes investigating the complaint, information or matter, and taking other action, including managerial action, to address the complaint in any appropriate way. I consider that an investigation of a complaint, information or matter involving police misconduct or a referred complaint, information or matter involving corrupt conduct undertaken by the Commissioner in order to discharge the applicable statutory responsibility, would constitute an investigation of the person or persons concerned for corruption under the CC Act. It is under the CC Act because that Act expressly requires the Commissioner to deal with the complaint by investigating it. 30 [43] It may be that, in order to discharge these responsibilities in any given case, the Commissioner exercises authorisations or powers conferred by the PSA Act, for example, the comprehensive authorisation conferred by s 4.8(3) to investigate the complaint, information or matter. However, the word under does not connote exclusivity of source of a statutory responsibility, authorisation or power. Therefore, 28 Appeal Transcript 1-15 ll Ibid ll Cf Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 per Gummow, Callinan and Heydon JJ at [89].

11 11 the circumstance that the immediate source of the authority or power relied on to conduct the investigation resides in the PSA Act, does not have the consequence that the investigation is not, or is no longer, under the CC Act. It is, and continues to be, an investigation undertaken in the course of dealing with a complaint, information or matter, in discharge of the Commissioner s statutory responsibility under the CC Act. [44] Further, there are two aspects to the drafting of Item (1) which suggest that it is not intended to be confined to investigations carried out by the CCC. The first is that, whereas the CC Act contains a definition of corruption investigation as an investigation conducted by the CCC in the performance of its corruption functions, Item (1) speaks of an investigation of persons for corruption under the CC Act, and not of a corruption investigation under the CC Act. The second is that Classes 4 and 5 in Schedule 2 speak of decisions made by the CCC or a commission officer. Class 3, by contrast, does not qualify the investigation as one conducted by the CCC or a commission officer. [45] The appellants have not succeeded on the constructional issues they have raised in support of this ground of appeal. It therefore cannot succeed. I note that the appellants did not submit that a decision to suspend or stand down a police officer made under the PSA Act was incapable of being made in relation to an investigation of a person for corruption under the CC Act. They did not challenge the finding of the learned primary judge to the contrary to which I have referred. I would express my agreement with his Honour s finding in this respect. It is amply justified by the authorities concerning the ambit of the expression in relation to to which he referred. 31 Ground One [46] This ground of appeal contends that there was no evidence before the learned primary judge of investigation of the appellants for corruption under the CC Act. To a large degree, this contention depends, for its force, upon adoption of the construction unsuccessfully advanced in relation to Ground Two that the investigation be one undertaken in exercise of investigative powers conferred by the CC Act. [47] In the case of the appellants other than the First Appellant, the Stand Down Notice notified the police officer concerned that he was the subject of an investigation regarding the conduct detailed in the notice. The conduct was described as of a serious nature. The notice contained the following advice: [a]fter considering all relevant factors, in particular the serious nature of the alleged conduct, the direct conflict between the alleged conduct and your functions as a police officer and the need to protect the reputation of the Service, I have decided it is appropriate to take stand down action. 32 [48] It will be recalled that under the CC Act, corruption includes police misconduct. The definition of police misconduct in the CC Act includes conduct that does not meet the standard of conduct the community reasonably expects of a police officer. Having regard particularly to that aspect of the definition and the reference to direct conflict between the alleged conduct and the functions of a police officer, I consider that each Stand Down Notice evidenced that the conduct detailed in it was the subject of an investigation into alleged police misconduct on the part of the officer to whom the Stand Down Notice was addressed. 31 Hatfield v Health Insurance Commission (1987) 15 FCR 487 per Davies J at 491-3; O Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356 per McHugh J at 376; Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 per French CJ and Hayne J at [25]. 32 AB104, 108, 116.

12 12 [49] The position for the First Appellant is beyond argument in this respect. His Stand Down Notice described the conduct detailed in it as alleged misconduct and advised that investigations had been conducted into it. 33 The Suspension Notice given in June 2014 referred to direct conflict between the alleged criminal conduct and the First Appellant s functions as a police officer. 34 The Suspension (Without Remuneration) Notice given in July 2014 referred to investigations into an allegation of alleged misconduct. 35 [50] For these reasons, this ground of appeal cannot succeed. Disposition [51] As neither ground of appeal has succeeded, this appeal must be dismissed. The appellants ought to pay the Commissioner s costs of the appeal on the standard basis. Orders [52] I would propose the following orders: 1. Appeal dismissed. 2. The appellants are to pay the respondent s costs of the appeal on the standard basis. [53] MORRISON JA: I have read the reasons of Gotterson JA and agree with those reasons and the orders his Honour proposes. [54] PHILIP McMURDO JA: I agree with Gotterson JA. 33 AB AB AB49.