The Crime and Corruption Commission (CCC) has lost a bid to keep confidential the punishment handed to three police officers found to have engaged in corrupt conduct in 2016.
In a decision published on Friday, the Queensland Civil and Administrative Tribunal (QCAT) refused the CCC’s application for a non-publication order in relation to Naomi C’Ann Shearer and her two colleagues, who were involved in an incident at a vehicle interception on the Sunshine Coast seven years ago.
In December 2018, then Detective Senior Constable Shearer pleaded guilty to offence of Refusal by Public Officer to Perform Duty over the incident, in which a Victorian police officer on holiday at Alexandra Headland avoided a breath test via her expressing an opinion to other police officers as to what she would do in the circucmstances.
In 2021, QCAT concluded the conduct amounted to corrupt conduct but did not find that the disciplinary breach provided reasonable grounds for terminating her employment with Queensland Police Service (QPS).
In the latest tribunal hearing, CCC sought a finding that disciplinary charges of corrupt conduct against Ms Shearer were proved, and that dismissal was appropriate.
Both Ms Shearer and CCC raised in their submissions that the identifying details of the disciplinary sanctions imposed on the officers should be subject to a non-publication order, because such sanctions imposed internally through the QPS were confidential and it was not in the public interest for them to be published.
“I specifically requested submissions from the CCC as to what particular quality makes the information in question confidential information which should be protected from publication in the public interest,” Senior Member Fitzpatrick said.
“Apart from the bare submission that the information is treated as confidential no further submission has been made on this point.”
Senior Member Fitzpatrick said she did not think it was as simple as characterising information as confidential and concluding that it was therefore not in the public interest to publish that information.
“There is a high bar to jump in that the tribunal can only act if the order is ‘necessary’,” she said.
“That statutory imperative is set in the context of the order being necessary in the interests of justice, which draws upon the fundamental principle of open justice.
“I do not consider that the public interest is served by preventing publication of relevant evidence in this matter when set against the public interest in open justice, which in my view is heightened in matters of police conduct.
“I am not satisfied that the CCC has shown special circumstances to justify making an order to prevent publication of the disciplinary sanctions.
“Nor would it seem practical to anonymise the officers by reference to their sanctions. The officers have been named in the proceeding and their conduct has been examined in the first decision in the matter.”
Two of the officers provided signed statements and would have been called to provide evidence before the tribunal had Ms Shearer contested the charge, she added.
Senior Member Fitzpatrick said “the horse has bolted”.
“It is not possible at this stage to prohibit publication of the officer’s name in relation to the conduct which occurred during the incident,” she said.
Ms Shearer resigned from the QPS in November 2021 after 13 years in the service. Disciplinary sanctions imposed on the other officers involved in the conduct included a reduction in pay until completion of community service and training.
CCC submitted that a disciplinary declaration was required due to several factors, including that Ms Shearer’s conduct was serious and resulted in a finding of corrupt conduct; that her conduct would cause the public to lose confidence in the QPS; and that she advised other officers not to disclose the incident.
“In my view, had Ms Shearer remained in the Police Service, she would not be considered unfit to serve and she would have been disciplined in accordance with the range of other sanctions available in circumstances of misconduct, short of dismissal,” Senior Member Fitzpatrick said.
“Taking all these matters into account I am of the view that Ms Shearer made an ill-considered comment to a colleague who bore the primary responsibility to administer a breath test.”
The CCC did not challenge the disciplinary sanctions imposed on the other officers, so they stood as a reasonable response from the QPS to the conduct of the officers, and so, Ms Shearer should not receive a different penalty, Senior Member Fitzpatrick said.
She said Section 219IA of the Crime and Corruption Act 2001 (Qld) provided that the tribunal did not have jurisdiction to make a discipline declaration in relation to any disciplinary action which would have been made, if Ms Shearer remained a police officer, other than dismissal, suspension from duty without pay for at least three months, probation, or demotion.
“As a result of this finding and in view of the terms of s 219IA of the CC Act I am unable to make a disciplinary declaration as I have concluded that dismissal, suspension, probation, demotion or reduction in rank are not disciplinary findings I would have made under s 219I(1) if Ms Shearer’s employment had not ended.”
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