The Queensland police service was warned more than a dozen times that its discipline system was being run in a way that was unlawful, “entirely improper and concerning” – but refused to change practices that could ultimately render more than 300 officer misconduct sanctions invalid.
A court of appeal decision last month found the way Queensland police appointed “prescribed officers” to run disciplinary proceedings was not valid.
Guardian Australia reported last week that the decision had effectively overturned 300 disciplinary sanctions imposed since 2020, including the sackings of 26 officers and matters related to domestic violence and sexual harassment.
Last week the police commissioner, Katarina Carroll, told reporters: “Honestly we did not even foresee this … we were acting in good intent.”
Guardian Australia can reveal legal concerns about the way police handled discipline cases were raised internally more than two years ago and that lawyers representing police officers sounded repeated warnings about the unlawfulness of processes being used to discipline them.
In January 2021, several senior police officers from the information and discipline support services unit – a section of the QPS legal division – began to query and raise legal concern about arrangements put in place to enact the new discipline system, which had come into effect the previous year.
Sources say several emergency meetings to discuss concerns about discipline processes were held in early 2021, and that the QPS sought external legal advice at the time.
It is understood these internal concerns about the process became the catalyst for individual officers to then formally challenge their discipline referrals.
‘Improper and concerning conduct’
Court of appeal documents show the first such challenge was made in May 2021 by an officer accused of using excessive force on two people who were handcuffed and lying on their stomachs.
The allegations included claims the senior sergeant pushed a woman’s face into the ground four times, then kicked her on the top of the head.
The officer was referred to a prescribed officer “at the rank of chief superintendent”. But the Office of State Discipline instead allocated the case to an assistant commissioner, who had the power to impose tougher sanctions.
The court documents show that the officer’s lawyer, Calvin Gnech, wrote to the QPS on May 31, 2021, claiming the process was invalid.
“The QPS must now follow the law which is in force,” Gnech wrote.
“It is entirely improper and concerning conduct, and perhaps even misconduct itself, for some unknown person to arbitrarily override the law and [appoint a prescribed officer].”
Gnech subsequently told Guardian Australia he had taken on at least 12 cases of police officers challenging the legitimacy of the discipline process, and said he had written a similar letter to the QPS on every occasion.
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Concerns raised internally in early 2021, which were ultimately validated by the court of appeal, related to the role of the Office of State Discipline in appointing “prescribed officers” to start disciplinary proceedings against police officers.
Under the Police Service Administration Act, the police commissioner is responsible for deciding whether to refer complaints to a prescribed officer.
In practice, the commissioner (via a delegate) sent hundreds of such referrals to the Office of State Discipline in a way that did not name a specific prescribed officer.
The Office of State Discipline then held a “senior management group” meeting every Tuesday during which new referrals were allocated to prescribed officers. The court found the Office of State Discipline had no power to make such appointments.
After an officer challenged his disciplinary notice, the QPS made a minor change to the wording of its referrals. Thereafter cases were sent to the Office of State Discipline without specifying the appropriate rank of the prescribed officer.
Sources say this was designed as a workaround to give the Office of State Discipline more flexibility when deciding which prescribed officer to appoint, and what potential sanctions could be considered.
But they say the change only made matters worse.
The generic referrals to the Office of State Discipline exposed a fundamental problem – that the office was making appointments, but had no legal power to do so – and prompted further claims the process was invalid.
Conflicting views
Asked when she became aware of issues, Carroll referred to the senior sergeant’s case and said she was alerted to his challenge in about June 2021.
Police did not respond to subsequent questions attempting to clarify whether the commissioner was also aware of meetings and broad concerns raised internally prior to this date.
Carroll said the QPS sought three pieces of legal advice in relation to the senior sergeant’s matter and that “it was our legal advice that a prescribed officer is a prescribed officer, regardless of who it is, but the courts found differently”.
“The legal advice was that we should continue with [the discipline process against the senior sergeant] because of the behaviour being so concerning.”
Guardian Australia understands, via police sources, there were conflicting legal views about the validity of the QPS discipline system; that opinions differed between external lawyers asked to provide advice, civilian lawyers working in police legal services and the legally-qualified sworn officers working on discipline matters who first raised concerns.
Those sources say the police justification for its actions – that it followed legal advice – is misleading.
Police did not respond to questions about why they required three separate legal opinions.
The police minister, Mark Ryan, said the court decision amounted to a “technical interpretation” of the discipline legislation.
Senior officers said the issue of concern now was not that police had lost a court case on a technicality, but that the decision exposed the failure of multiple people to appreciate the risks and consequences of ultimately losing those legal challenges.
They say the voiding of disciplinary sanctions would have been prevented had clear and valid concerns been addressed earlier by the QPS.
“This has happened because they were pig-headed,” says one senior police officer with knowledge of internal meetings in 2021.
“They had qualified, experienced people with law degrees who know the discipline system inside-out saying there was a big problem.”
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