Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell

[2009] NSWCA 198

New South Wales

Court of Appeal

CITATION:	Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Raymond Sewell [2009] NSWCA 198
HEARING DATE(S):	12 June 2009
JUDGMENT DATE:	15 July 2009
JUDGMENT OF:	Spigelman CJ at 1; Macfarlan JA at 86; Young JA at 87
DECISION:	Summons dismissed with costs.
CATCHWORDS:	INDUSTRIAL LAW – whether privative provision applies to review of Police Commissioner’s removal order under Police Act 1990 (NSW) - STATUTORY INTERPRETATION – privative clause – purposive interpretation – context of provisions – clear statement principle – whether s 179 of Industrial Relations Act 1996 (NSW) applies to a review under Div 1C of Pt 9 of Police Act 1990 (NSW) – Industrial Relations Act 1996 (NSW) s 179 – Police Act 1990 (NSW) ss 181D(7A), 181G - ADMINISTRATIVE LAW – Hickman principle – whether decisions of Industrial Relations Commission and Full Bench violated Hickman principle – whether alleged errors, individually or cumulatively, meant decisions not reasonably capable of reference to Commission’s power or breached inviolable limitations or restraints on Commission’s jurisdiction or constituted failure to observe condition essential to valid action - POLICE – review of Police Commissioner’s removal order – role of integrity – importance of Commissioner losing confidence in officer – Police Act 1990 (NSW) ss 7(a), 181D, 181E, 181F - WORDS AND PHRASES – “have regard to” – “integrity”
LEGISLATION CITED:	Industrial Relations Act 1996 Police Act 1990 Supreme Court Act 1970
CASES CITED:	Baxter v New South Wales Clickers’ Association (1909) 10 CLR 114 Craig v South Australia (1994–1995) 184 CLR 103 Evans v Marmont (1997) 42 NSWLR 70 Magrath v Goldsborough, Mort and Company Limited (1932) 47 CLR 121 Mitchforce Pty Ltd v Industrial Relations Commission of New South Wales [2003] NSWCA 151; (2003) 57 NSWLR 212 O’Toole v Charles David Pty Ltd (1990–1991) 171 CLR 232 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 Police Service Board v Morris (1984–1985) 156 CLR 397 R v Fell (1831) B & C 380; 109 ER 828 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 R v Justices of West Riding of Yorkshire (1834) 1 Ad & E 563; 110 ER 1322 R v Murray; Ex parte Proctor (1949) 77 CLR 387 R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 9; (2001) 207 CLR 72 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589
PARTIES:	Commissioner of Police for New South Wales (Applicant) Industrial Relations Commission of New South Wales (First Respondent) Raymond Sewell (Second Respondent)
FILE NUMBER(S):	CA 40435/08
COUNSEL:	M Kimber SC, A Searle (Applicant) S Crawshaw SC, A Metcalfe (Second Respondent)
SOLICITORS:	Crown Solicitor’s Office (Applicant) Walter Madden Jenkins (Second Respondent)
LOWER COURT JURISDICTION:	Industrial Relations Commission of New South Wales
LOWER COURT FILE NUMBER(S):	IRC 1259 of 2007 IRC 627 of 2008
LOWER COURT JUDICIAL OFFICER:	IRC 1259 of 2007: Haylen J
LOWER COURT DATE OF DECISION:	IRC 1259 of 2007: 6 May 2008 IRC 627 of 2008: 8 August 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Sewell v New South Wales Police Force [2008] NSWIRComm 93 Commissioner of Police v Sewell [2008] NSWIRComm 147

- 17 -

CA 40435/08

SPIGELMAN CJ
MACFARLAN JA
YOUNG JA

Wednesday 15 July 2009

Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Raymond Sewell

FACTS
Pursuant to s 181D(1) of the Police Act 1990, the Commissioner of Police made an order removing Mr Sewell (“the second respondent”) from the New South Wales Police Force. The basis for the order was the Commissioner’s loss of confidence in the second respondent’s suitability to continue as a police officer.

Pursuant to s 181E(1) of the Police Act , the second respondent applied to the Industrial Relations Commission for review of that decision. Justice Haylen upheld the application and reinstated the second respondent as a police officer. The Full Bench of the Industrial Relations Commission refused leave to appeal and upheld Justice Haylen’s decision.

The applicant invokes the Court of Appeal’s supervisory jurisdiction with respect to the Industrial Relations Commission proceedings.

HELD ( per Spigelman CJ, Young and Macfarlan JJA agreeing )
Applicability of s 179 of the Industrial Relations Act 1996 to a review under Div 1C of Pt 9 of the Police Act

1. Section 181G(1) of the Police Act is a clear statement that Parliament intended that s 179 of the Industrial Relations Act 1996 (“IR Act”) is a “provision”, within the meaning of s 181G(1) of the Police Act , that applies Pt 6 of Ch 2 of the IR Act, in relation to unfair dismissals, to applications for review under Div 1C of Pt 9 the Police Act . This conclusion is supported by the broader context of s 181G(1): [27]–[28].

Baxter v New South Wales Clickers’ Association (1909) 10 CLR 114; Magrath v Goldsborough, Mort and Company Limited (1932) 47 CLR 121; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 applied.
R v Fell (1831) B & C 380; 109 ER 828; R v Justices of West Riding of Yorkshire (1834) 1 Ad & E 563; 110 ER 1322 considered.

2. There is nothing inherently contradictory about the prospect of the same complaint being the subject of alternative remedial mechanisms, namely, merits review by an administrative tribunal and judicial review by a court: [23]–[25].

Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 9; (2001) 207 CLR 72 applied.


The Hickman Principle Issue

3. None of the propositions advanced by the applicant, either individually or collectively, are capable of falling within the Hickman principle, whether as a decision not reasonably capable of reference to the power given to the Commission, or as a breach of an inviolable limitation or restraint on the Commission’s jurisdiction or failure to observe a condition essential to valid action: [60]–[64] [68] [84].

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; R v Murray; Ex parte Proctor (1949) 77 CLR 387 applied.

4. Justice Haylen and the Full Bench considered the matters which s 181F required the Commission to take into account, including the second respondent’s integrity and the integrity of the Police Force: [69] [75]–[78].

R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; R vToohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; Evans vMarmont (1997) 42 NSWLR 70; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 applied.
Police Service Board v Morris (1984–1985) 156 CLR 397 referred to.


ORDERS

Summons dismissed with costs.

CA 40435/08

SPIGELMAN CJ
MACFARLAN JA
YOUNG JA

Wednesday 15 July 2009

Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Raymond Sewell

Judgment

1 SPIGELMAN CJ: The applicant invokes the supervisory jurisdiction of this Court under s 69, s 48(1)(a)(ii), s 48(2)(c) and s 48(2)(d) of the Supreme Court Act 1970, with respect to proceedings in the Industrial Relations Commission of New South Wales instituted by the second respondent (“Mr Sewell” or “the respondent”).

2 Pursuant to the provisions of the Police Act 1990, to which I will refer, the Commissioner of Police made an order removing Mr Sewell from the New South Wales Police Force. Pursuant to that same Act, Mr Sewell applied to the Industrial Relations Commission for review of that decision. Justice Haylen upheld the application and made orders reinstating Mr Sewell as a police officer. (Sewell v New South Wales Police Force [2008] NSWIRComm 93; (2008) 174 IR 247.) The Full Bench of the Industrial Relations Commission refused leave to appeal. (Commissioner of Police v Sewell [2008] NSWIRComm 147; (2008) 180 IR 91.)

3 The power exercised by the Commissioner turned on his loss of confidence in the suitability of the respondent to continue as a police officer. The jurisdiction exercised by the Industrial Relations Commission required a finding that the removal was “harsh, unreasonable or unjust”.

4 It is unnecessary to set out the facts and matters which caused the Commissioner to make the removal order. They were, in large measure, accepted by Haylen J on the evidence before him. Nevertheless, his Honour concluded that the order for removal was harsh, in the light of all of the circumstances. This was a judgment which the statute authorised his Honour to make. The issue is whether there was a relevant legal error in the formulation of that judgment by Haylen J, or by the Full Bench when upholding that conclusion.

The Legislative Scheme

5 The directly relevant provisions of the Police Act are found in Pt 9, specifically Div 1B and Div 1C.

6 Section 181D in Div 1B relevantly provides:

“(1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer’s suitability to continue as a police officer, having regard to the police officer’s competence, integrity, performance or conduct.
…
(7) Except as provided by Division 1C:
(a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and
(b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section.
In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission.
(7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action.”

7 Division 1C is concerned with a review of the Commissioner’s decision under Div 1B. It relevantly provides:

“ 181E Review generally
(1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission ) for a review of the order on the ground that the removal is harsh, unreasonable or unjust.

…

181F Proceedings on a review
(1) In conducting a review under this Division, the Commission must proceed as follows:
(a) firstly, it must consider the Commissioner’s reasons for the decision to remove the applicant from the NSW Police Force,
(b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust,
(c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant’s case.
(2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.
(3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to:
(a) the interests of the applicant, and
(b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1)).
181G Application of Industrial Relations Act 1996 to reviews
(1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications:
(a) section 83 (Application of Part) is to be read as if subsection (3) were omitted,
(b) section 85 (Time for making applications) is to be read:
(i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and
(ii) as if subsection (3) were omitted,
(c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant’s claim by conciliation must not subsequently be involved in the conduct of proceedings on the review,
(d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted,
(e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2)(a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made,
(f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless:
(i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or
(ii) the Commission gives leave.
…”

Section 181G(2) makes more detailed provision with respect to the grant of leave pursuant to s 181G(1)(f)(ii). It does not need to be set out.

8 Other provisions of the Act were relied upon with respect to particular submissions and I will refer to those provisions when dealing with the relevant submissions.

9 As set out above, s 181G(1) of the Police Act applies provisions of the Industrial Relations Act 1996 (the “IR Act”) to an application for a review under Div 1C of the Police Act in the same way as they apply to an application under Pt 6 (Unfair dismissals) of Ch 2 of the IR Act.

10 One issue in the present case turns on s 179(1) of the IR Act, which provides that a decision of the Commission, extended by s 179(4) to a purported decision, may not be reviewed. It is pertinent to note that the exclusion in s 179(4) of the IR Act is not relevant to the present case. That subsection provides that s 179 does not apply to a decision on an issue of the Commission’s jurisdiction of the Full Bench of the Commission in Court Session or of the Commission in Court Session where the Full Bench has refused leave to appeal.

11 Pursuant to s 151A and s 152 of the IR Act, when sitting in Court Session the Commission is a superior court of record, to be known as the Industrial Court of New South Wales. However, the unfair dismissal provisions of the IR Act are not conferred on the Commission in Court Session (s 153).

12 The matter is put beyond doubt by the express provision in s 181K(3) of the Police Act which states:

“Proceedings on a review under Division 1C, or on an appeal from the decision of the Commission on a review under Division 1C, are taken not to be proceedings of the Commission in Court Session.”

Issues on the Appeal

13 The first issue to be determined is whether the privative provision in s 179 of the IR Act applies to a review under Div 1C of the Police Act. The respondent contends that s 179 is a ‘provision of the Industrial Relations Act 1996’ within the meaning of s 181G, which applies to an application under Pt 6 (Unfair Dismissals) of Ch 2 of the IR Act. The applicant contends that s 181G of the Police Act should be interpreted so as not to pick up s 179 with respect to a review under Div 1C.

14 If the applicant is correct in this first submission, then, he contends, as the Commission was sitting as an administrative tribunal not as a court, its decision is susceptible to judicial review without restriction by the privative clause and on the broader basis appropriate to an administrative decision-maker. He relies on Craig v South Australia (1994-1995) 184 CLR 103 esp at 179. On that basis the applicant made detailed submissions alleging various errors of a kind which would justify this Court exercising its supervisory jurisdiction.

15 If, contrary to the applicant’s contention, s 179 does apply, then the applicant contends that the decision of the Commissioner of Police violated the Hickman principle. (See R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, as applied to s 179 of the IR Act by this Court in Mitchforce Pty Ltd v Industrial Relations Commission of New South Wales [2003] NSWCA 151; (2003) 57 NSWLR 212.) In this respect, the applicant’s submissions drew on many of the errors which he alleged had been committed in its case for judicial review. It will be necessary to identify which of these errors the applicant contended were also relevant to the Hickman principle issue.

16 The respondent submits that the Hickman principle has not been contravened. Indeed, it submits that there was no jurisdictional error at all, let alone one of the character required by the Hickman principle.

The Privative Clause Issue

17 In support of its contention that the word “provisions” in s 181G(1) does not pick up s 179 of the IR Act, the applicant invoked a principle of interpretation applicable where a privative clause appears in a general act establishing a tribunal, but a specific act, relevantly the Police Act, confers jurisdiction with respect to a particular subject matter.

18 The applicant adopted the following statement by the learned authors of Judicial Review of Administrative Action, 4^th ed (2009) Lawbook Co at 955, together with the authorities therein relied upon:

“The general principle is that in the absence of express words, the general Act’s privative clause does not apply to the tribunal’s particular jurisdiction unless the implication is unavoidable”.

19 This proposition is the application in a particular context of the general approach to the interpretation of privative provisions that requires a clear statement by Parliament before it is taken to intend to abrogate fundamental rights and freedoms, of which the right of access to the courts is a particular example. (See, for example, Baxter v New South Wales Clickers’ Association (1909) 10 CLR 114 esp at 145-6; Magrath v Goldsborough, Mort and Company Limited (1932) 47 CLR 121 at 134; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 esp at [30]-[32].)

20 The applicant submits that, by force of s 181D(7A), set out at [6] above, the power of this Court to exercise a supervisory jurisdiction over the decision of a Commissioner to remove a police officer is affirmed. He noted that the grounds of review by the Industrial Relations Commission, under s 181E of the Police Act, could encompass grounds which could also be the subject of an application for judicial review of a decision of the Commissioner in the Supreme Court.

21 The applicant submits that it would be “perverse” to suggest that the Court of Appeal could review the Commissioner’s removal order, on appeal from a decision by a judge of the Supreme Court, but would not have the power to exercise a supervisory jurisdiction with respect to the same or similar decision made by the Industrial Relations Commission.

22 On this basis, he submits, s 179 should not be found to apply to decisions by the Industrial Relations Commission under the provisions of the Police Act.

23 In my opinion there is nothing inherently contradictory about the prospect of the same complaint being the subject of alternative remedial mechanisms. This situation has often arisen. For example, a person aggrieved by an administrative decision will often have rights to proceed on the merits, by appeal to an administrative tribunal or, alternatively, by way of judicial review to a court. This occurs under both State and federal legislation. (See, for example, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 9; (2001) 207 CLR 72 at [15].)

24 There is no reason to interpret a statutory scheme so as to permit a court which could, if an application were made to it, exercise a supervisory jurisdiction over a first instance decision-maker, so that an appellate division of the court has the same jurisdiction when that first instance decision has been the subject of review by a second decision-maker. Indeed, the very fact that the original decision is subject to review, particularly by a specialist tribunal, makes it likely that a privative provision impinging upon the review decision was intended to apply.

25 Such alternative routes will sometimes overlap and give rise to difficulties, for example, with respect to the exercise of a discretion. But that is not a reason to adopt a strained interpretation of one scheme so that it operates, in substance, in the same way as the other.

26 As set out at [7] above, s 181G(1) makes a number of specific modifications to the scheme with respect to unfair dismissals under Pt 6 of the IR Act in its application to a review of a decision under the Police Act. Several of the provisions modified are sections found in Pt 6 of Ch 2 of the IR Act. However, there are also modifications of s 162 and s 163 of the IR Act, which are provisions found in Pt 5 of Ch 4 of the IR Act, entitled “Procedure and powers of Commission”. Section 179 is also found in Pt 5 of Ch 4.

27 This is an unequivocal indication that Parliament has given attention to matters concerning the procedure and powers of the Industrial Relations Commission, as well as to the substantive provisions of the unfair dismissal provisions, when determining which of the “provisions” applicable to proceedings under Pt 6 of Ch 2 of the IR Act should apply to proceedings for review of decisions under Pt 9 of the Police Act. The clear statement principle has, in my opinion, been satisfied.

28 I am reinforced in this conclusion by the broader context of the particular provisions which fall to be interpreted in the present case.

29 Part 9 of the Police Act is concerned with management of conduct within the NSW Police Force. Division 1 is concerned with misconduct and unsatisfactory performance. Division 1A provides for review of a Commissioner’s order, made under Div 1, by the Industrial Relations Commission. The present case, however, is concerned with a decision under Div 1B, which is entitled “Summary removal of police officers in whom Commissioner does not have confidence”. Division 1C provides for review of a Commissioner’s decision and does so in terms which are, in a number of respects, more restrictive than those applicable in Div 1A.

30 Plainly this is intended to ensure that the Commissioner’s decision on matters concerning his confidence in officers of the NSW Police Force, leading to an order for summary removal, are more difficult to overturn than the Commissioner’s decisions with respect to misconduct and unsatisfactory performance, leading to less drastic sanctions such as reduction of rank or seniority.

31 It is also pertinent to note that s 181E(1), set out at [7] above, restricts the jurisdiction of the Industrial Relations Commission to a review on the grounds that the removal was “harsh, unreasonable or unjust”. Section 174(1) with respect to the review of the Commissioner’s order under Div 1 goes beyond this to permit review on the basis that “the order is beyond power or is harsh, unreasonable or unjust”.

32 Section 173(9) and s 173(10), with respect to decisions concerned with misconduct and unsatisfactory performance, are in the same terms as s 181D(7) and s 181D(7A), with respect to decisions on summary removal.

33 Of particular relevance for present purposes is s 179(1) which provides:

“In the application of Part 5 of Chapter 4 of the Industrial Relations Act 1996 to proceedings under this Division, the provisions of sections 163, 167, 169(4), 172, 181 and 184 of that Act do not have effect.”

34 Like the provisions of s 181G, which I have discussed at [26]-[27] above, this section is concerned with the very part of the IR Act which contains s 179. In this respect it is, if anything, even clearer that Parliament turned its attention to the operation of the privative clause with respect to decisions under Div 1A and determined that it would be operative.

35 Finally, with respect to the statutory context, it is pertinent to note that the Police Act confers no remedial power capable of being exercised by the Commission on an appeal. That power is found in the IR Act.

36 Section 181G is the provision which applies the IR Act scheme for unfair dismissals, of which perhaps the most significant section is s 89 of the IR Act which sets out the orders able to be made by the Commission. These include orders for reinstatement, remuneration, continuity and compensation. Each of the powers in s 89 of the IR Act is specified as a power to make an “order”.

37 In this regard it is pertinent to note that the word “decision” in s 179 is defined by sub-s (7) to include “any award or order”. The proposition for which the applicant must contend is that the word “decision” in s 179(1), which expressly extends to an “order”, does not apply to an order under s 89 of the IR Act, in circumstances where there is no power to make an order in the Police Act. In my opinion, this is an element of the statutory context which indicates that the applicant’s contention should be rejected.

38 There may be provisions of one legislative scheme that, although not expressly excluded, are implicitly excluded, for example, s 84 of the IR Act makes provision for an application in terms that are not entirely consistent with s 181E of the Police Act. However, such drafting oversights are not a basis for reinterpreting the scheme as a whole.

39 This analysis is further reinforced by the conclusion reached in a number of the authorities set out by Professor Mark Aronson and his co-authors in support of the proposition set out in [18] above.

40 In R v Fell (1831) B & C 380; 109 ER 828, the issue was whether or not a privative provision in an Act applied to proceedings under subsequent legislation. The Court determined that the following section, specifically the reference to “provisions”, was sufficient to pick up the privative clause:

“That all and every the powers, provisions, exemptions, penalties, forfeitures, payments, remedies, matters, and things respectively contained in the said hereinbefore recited Acts, (save and except such parts thereof as are expressly varied, altered, or otherwise provided for by this Act) shall respectively be as good, valid, and effectual for carrying this Act into execution, as if the same had respectively been repealed and re-enacted in the body of this Act.”

41 To similar effect is the decision in R v Justices of West Riding of Yorkshire (1834) 1 Ad & E 563; 110 ER 1322 at 574. A privative provision in pre-existing legislation was found to be picked up, specifically as “articles, matters and things”, pursuant to the following section of a subsequent Act:

“all and every the powers, provisions, exemptions, rules, remedies, regulations, penalties, forfeitures, articles, matters, and things whatsoever therein contained, (except as varied by this Act, and with some other exceptions not material,) shall be and are hereby declared to be in full force and effect, and shall extend to and be used, executed, applied, enforced, and put in execution, to all intents and purposes, as to this Act, and the several matters and things therein contained, for making, completing, preserving, and maintaining the cuts, canals, railways, and works to be made by virtue of this Act, and for carrying the several purposes of this Act into execution, in as full, ample, and beneficial a manner, to all intents, constructions, and purposes whatsoever, as if the same had been severally, separately, and respectively repeated and re-enacted in the body of this Act, and made part thereof.”

42 These two sections are somewhat more expansive than the section presently under consideration. They reflect parliamentary drafting practice of the early 19^th century, which was more verbose than that of contemporary drafters, perhaps necessarily so at a time when matters of form were given much greater emphasis than they are given in contemporary jurisprudence.

43 In my opinion the reference to “provisions”, in the particular context of s 181G(1), has the same effect. The applicant’s submissions that s 179 of the IR Act does not apply should be rejected.

44 Accordingly, it is not necessary to consider the applicant’s detailed submissions alleging errors on the part of the Commission sitting as a tribunal. The issue posed for this Court is whether or not the applicant can bring himself within the Hickman principle.

The Hickman Principle Issue

45 The applicant does not rely on the first two propositions in Justice Dixon’s threefold formulation in Hickman supra at 614-615. He does not, accordingly, contend that the decisions of Haylen J and of the Full Bench were not a bona fide attempt to exercise the power of the Industrial Relations Commission or that they did not relate to the subject matter of the legislation.

46 The applicant does, however, contend that each decision was not reasonably capable of reference to the power given to the Commission. This was the third of the original threefold formulation given by Dixon J in Hickman, as affirmed by his Honour in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 398-9.

47 The applicant also asserts that each decision breached statutory constraints which operated as inviolable limitations or restraints on the jurisdiction of the Commission. A proposition to this effect was described by Brennan J as a “fourth condition”, if not inherent in the threefold Hickman formulation. (See O’Toole v Charles David Pty Ltd (1990-1991) 171 CLR 232 at 274; see also Plaintiff S157/2002 supra esp at [20]-[21], [26], [65]-[66], [70], [76], [157], [159]-[160].)

48 An alternative way that the applicant put this proposition was that it constituted a failure to comply with a legislative condition “essential to valid action”, being a form of words found in R v Murray; Ex parte Proctor supra at 400, and which was one way of expressing the “inviolable limitations or restraint” proposition. (See Mitchforce supra at [85].)

49 The distinction between these two aspects of the Hickman principle was not further addressed by the applicant. Indeed, the applicant relied on the same basic assertions with respect to each matter. Each was said to arise because of “the extent to which the IRC misunderstood the nature of its jurisdiction, misconceived its duty and failed to apply itself to the question which was prescribed by the statutory conferral of jurisdiction”.

50 A submission to the effect that s 179 did not apply to “jurisdictional errors apparent on the face of the record” was not pressed.

51 In his written submission in reply, the applicant contended that s 179 would not protect the decision, for violation of the Hickman principle, because “with respect to the Commissioner’s integrity ground for removal” the Commission failed “to make a decision required by the Police Act”.

52 The applicant further submitted that s 179 would not protect the decision from the failure by the Commission, either at first instance or on appeal, “to ask … whether the order made by the Commissioner to remove the [respondent] for loss of confidence as to his suitability to continue as a police officer on the basis of his lack of integrity was ‘harsh, unreasonable or unjust’ and complying with this legislative condition was ‘essential to valid action’”. (Emphasis in original.)

53 In oral submissions the applicant referred to the submissions he had advanced as constituting jurisdictional error generally, which would have been relevant if s 179 of the IR Act had not applied, and identified which of the alleged errors were so fundamental as to violate the Hickman principle. They were that the Commissioner proceeded on the basis that:

(i) a review under s 181E of the Police Act was of the same character as an unfair dismissal application under s 84 of the IR Act;

(ii) there were no special considerations that applied to police as opposed to any other person objecting to unfair dismissal and that there was no special relationship involved;

(iii) the nature of the review undertaken by the Commission was not affected by the fact that the foundation of the removal order was a loss of confidence in the police officer;

(iv) the Commission could proceed without regard to the fact that it was the Commissioner himself who had lost confidence and removed the officer from the Force. The Commissioner was responsible for the management and control of the Force.

54 In oral submissions in reply, the applicant focussed on two alleged errors:

(i) The Commission failed to consider the Commissioner’s reasons for his decision to remove the respondent based on the ground of integrity, as mandated by s 181F(1)(a) of the Police Act .

(ii) The Commission failed to consider the applicant’s case before it in support of the decision to remove the respondent, as mandated by s 181F(1)(c) of the Police Act .

55 These alleged failures “to consider the case” were said to “demonstrate [that] fundamental requirements for valid action were not met”, in the sense that mandatory prerequisites for valid action were not met and that they constituted an “inviolable limitation on [the] capacity [of the Commission] to function”.

56 Finally, the applicant contended that the Hickman principle is satisfied if an error of the following character is established:

(i) ‘failing to have regard to the statutory context and misconstruing the statute’;

(ii) ‘failing to reach a conclusion on a matter that the tribunal was required to answer’.

57 This last submission was no doubt intended to invoke some of the alleged errors put on the basis that this Court was not restricted by s 179. However, it was not suggested that anything more was involved than the list set out at [53] and [54] above. No other attempt was made to specify this wide ranging proposition, which plainly goes beyond the Hickman principle.

58 The submissions in this Court directed to the Full Bench were primarily concerned with its failure to rectify the alleged errors of Haylen J. Other than in this respect, no submission was made identifying why any of the alleged errors made by the Full Bench represented a violation of the Hickman principle.

59 I do not find it necessary to consider whether any of these propositions, if made out on the facts, constitute jurisdictional error. Some would, in my opinion, be properly characterised as errors within jurisdiction even in the case of a tribunal.

60 In my opinion, none of the propositions advanced, either individually or collectively, are capable of falling within the Hickman principle, whether as a decision not reasonably capable of reference to the power or as a breach of an inviolable limitation or restraint or a failure to observe a condition essential to valid action.

61 With respect to the propositions set out at [53] above, reflected in the submission at [56] above, each proposition rises no higher than an allegation of a defect in reasoning. No attempt was made by the applicant to specifically link the matters complained of to the terminology of the two aspects of the Hickman principle on which he relied. The alleged errors of the Commission were variously described as “fundamental” or equivalent language. Such an approach does not articulate why it is said that, because of the defects specified, the decision was not “reasonably capable of reference to the power” being exercised. Nor was there any articulation of why anything put was a condition “essential to valid action”. The applicant’s submissions went no further than saying that the error or errors allegedly committed involved a very important part of the legislative scheme. That is not enough. Even if all these propositions were made out, and for reasons I will set out below they are not made out, they could not, individually or collectively, constitute a violation of the Hickman principle.

62 With respect to the propositions set out at [54] above, no attempt was made to articulate why they would have involved a condition for “valid action”, or otherwise represented a failure to observe an inviolable restraint. They could have constituted a jurisdictional error, but they do not have the additional quality required for the Hickman principle.

63 In any event, the submission is transparently wrong. The very structure of Justice Haylen’s judgment followed precisely the requirements of s 181F(1) of the Police Act. His Honour considered the three matters that he was required to consider. Under the subheading “The Commissioner’s Reasons”, his Honour addressed s 181F(1)(a) at [82]-[86]. His Honour’s next subheading, referring to s 181F(1)(b), was “The Applicant’s Case” which he discussed at [87]-[109]. His Honour’s next subheading was “Commissioner’s Case in Answer” under which, at [110]-[123], his Honour proceeded to observe s 181F(1)(c).

64 No doubt the applicant does not believe full justice was done to his reasons and arguments. However, there is no proper basis for a submission that Haylen J ‘failed to consider’ the mandatory requirements of s 181F(1). At best, his Honour did not give the facts, matters and circumstances on which the applicant relied the weight which the applicant believes they deserved. I can detect no jurisdictional error, let alone a breach of the Hickman principle in the analysis of Haylen J.

65 In support of the various alternative formulations of the applicant’s submissions on the Hickman principle, primary emphasis was given to the issue of integrity of the respondence. This appears to be the basis of the proposition set out at [51] above, repeated in the emphases given in the proposition set out at [52] above, as well as providing the foundation for each of the assertions set out at [53] and [54] above.

66 This contention arose because of the fact that, in addition to the respondent’s inappropriate conduct, being a number of incidents of sexual harassment, he was found both by the applicant, and by Haylen J, not to have acted with candour and frankness in the investigation phase, leading up to the applicant’s decision to remove him, and also, by his Honour, in the context of the evidence given before the Industrial Relations Commission.

67 The integrity issue was closely related, in the various formulations in the applicant’s submissions, to the fact that it was the Commissioner who, inter alia, on the basis of integrity, had lost confidence in the respondent. The central significance of the role of the Commissioner for the management and control of the Police Force (for which the Police Act clearly provides) was said to reinforce the various propositions for which the applicant contended.

68 The proposition set out at [52] above, which was not the subject of oral elaboration, appears to turn on this matter. An alleged ‘failure to ask’ a question is not, of itself, contravention of an “essential” condition for validity. In any event, it is clear that Haylen J did ask himself whether the removal order was “harsh, unreasonable or unjust”. The applicant’s submission depends, it appears, on the emphasis added by the applicant to the words “loss of confidence”, “suitability to continue as a police officer” and “lack of integrity”. In this regard, the applicant focuses on the weight which the Commission should have given to these considerations. That, however, was a matter for the Commission. I can detect no jurisdictional error, let alone a contravention of the Hickman principle.

69 The importance of integrity for members of the Police Force is well established in the authorities (see, for example, Police Service Board v Morris (1984-1985) 156 CLR 397 at [412]) and in the statutory regime.

70 Section 7(a) of the Police Act, as reflected in the NSW Police Force Code of Conduct and Ethics and the NSW Police Force Statement of Values, states that each member of the Police Force is to act in a manner which “places integrity above all”.

71 With respect to this matter it is pertinent to refer again to the Commission’s obligation in s 181F(3)(b), which specifically states that the Commission “must have regard to the public interest”, and that the public interest includes:

“the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1).”

72 Although s 181F(3)(b) uses language of institutional integrity, rather than of personal integrity as identified in s 7(a) of the Police Act, in its particular context the reference to “integrity of the … Force” should be understood as encompassing any issues of integrity that arise with respect to the order for removal of the particular officer to which the review by the Commission relates.

73 A statutory requirement to “have regard to” a specific matter, requires the Court to give the matter weight as a fundamental element in the decision-making process. (R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333, 337-338; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at [71]-[73]). An equivalent formulation is that the matter so identified must be the focal point of the decision-making process. (See Evans v Marmont (1997) 42 NSWLR 70 at 79-80; Zhang supra at [73].)

74 The significance of the Commissioner’s particular responsibilities is also highlighted by s 181F(1), set out at [7] above, which imposes a requirement on the Commission, by par (a), to consider the Commissioner’s reasons for the removal decision and, by par (c), to consider the case presented by the Commissioner before the Industrial Relations Commission.

75 The central significance for the decision-making process in the Industrial Relations Commission of any issue of integrity that has been raised and of the Commissioner’s role in the legislative scheme can be accepted. Nevertheless, the entire point of the provision for review in Div 1C of the Police Act is precisely to enable the Industrial Relations Commission to overturn the Commissioner’s decision on the basis of a finding, to be made by the Industrial Relations Commission, that “the removal is harsh, unreasonable or unjust”.

76 It cannot be, and was not directly, suggested that the Police Commissioner’s decision on matters of this kind can be regarded as determinative. Without saying so, as a matter of substance, that is what the applicant sought to achieve in this Court. Of course, that is inconsistent with the conferral of a power of review on the Industrial Relations Commission.

77 The matters referred to in s 181F, most relevantly s 181F(3)(b), are entitled to weight as a fundamental element in the decision-making process. Indeed, the section, in its overall context, is an indication that these considerations are entitled to substantial weight. However, that does not mean that a failure to give them substantial weight, even if established and found to constitute a jurisdictional error, will constitute a violation of the Hickman principle.

78 In any event, in each of the respects on which the applicant relies, it is, in my opinion, clear that both Haylen J and the Full Bench gave consideration to the matters which s 181F required the Commission to take into account.

79 It is sufficient to quote the following extracts from the judgment of Haylen J.

With respect to the requirements of Div 1C his Honour said at [80]:
“[T]here could be justification for the Commissioner losing confidence in an officer but such a penalty as removal may be, on proper assessment, harsh or unjust in the circumstances. This approach involves a balancing exercise, requiring consideration be given to the interests of the applicant and the public interest, including the integrity of the New South Wales Police and the fact that the Commissioner had made an order for removal.”
Under the subheading “The Commissioner’s Reasons”, his Honour made several references to the issue of integrity (for example, at [85] (a), (b) and (c)).
Under the subheading “The Applicant’s Case”, his Honour made findings of fact that the respondent was “less than frank during the course of the investigation” and made reference to inconsistencies between answers given during the investigation and answers given in the Commission (at [87]).
Under the subheading “Commissioner’s Case in Answer”, his Honour referred to submissions made on behalf of the applicant and concluded at [122]: “Mr Sewell’s lack of candour is also an important element in assessing the seriousness of his conduct”.
His Honour then proceeded under a subheading entitled “Balancing the Considerations on Review” (at [124]-[132]). His Honour referred to many of the matters said by the applicant not to have been taken into account. For example, his Honour reiterated his finding that Mr Sewell “was less than frank in his responses” (at [127]). His Honour then made express reference to the elements of the statutory scheme when he said:
“[128] … In this balancing exercise, the Police Act , by s 181F(3) requires the Commission to have regard to the interests of the applicant and also to have regard to the public interests, including the interests of maintaining the integrity of New South Wales Police and the fact that the Commissioner for Police had made an order under s 181D(1).
[129] There can be no issue that it is in the public interest to maintain the integrity of the New South Wales Police Service. Actions taken by police officers on or off duty may be of such seriousness that it compromises the integrity of the Police Service and demands the highest penalty, dismissal. The Commissioner, having regard to the nature of the allegations and the breaches of police policy, determined that the penalty of dismissal was appropriate and that he could not condone Mr Sewell’s actions. These are significant matters and weigh heavily with the Commission on review. The Commission on review is also to have regard to the interests of the applicant.”
His Honour went on to balance the conflicting considerations and came to the conclusion that the removal was “harsh and unfair” and the respondent “should be given a second chance” (at [131]).

80 I can see no relevant oversight in this analysis. The matters said not to have been given appropriate weight are all referred to. Indeed, as his Honour said at [129] as quoted, they “weigh heavily with the Commission on review”.

81 The Full Bench also clearly referred to the issues now sought to be relied upon. Their Honours said at [14]:

“A further matter which requires comment concerns the issue of integrity raised by the appellant during oral submissions in the context of whether Haylen J fell into error by not taking the issue into account (or sufficiently taking the issue into account) in the exercise of discretion when determining relief. We think it is important to emphasise the relevance of the public interest to this exercise of discretion. A necessary component of the public interest, in the present circumstances, was the respondent's integrity, which the appellant had linked to what has been described as the respondent's, ‘lack of candour’ and, his, ‘less than frank’ responses, when giving evidence.”

82 Their Honours also said at [16]:

“The appellant's case on appeal was, we think, ultimately that his Honour failed to give sufficient consideration to the issue of integrity based on findings of untruthfulness by the investigating police, and based on his Honour's own findings as to lack of candour and frankness. In any event we do not accept as correct that his Honour failed to take these matters into account, or, as we shall now discuss, failed to give sufficient attention to them.”

83 Their Honours made a number of further references to the issue of integrity, which are unnecessary to set out.

84 Even if it had been established, and I am not satisfied that it is established, that the Commission failed to give the mandatory considerations substantial weight, that would not be enough to establish a violation of the Hickman principle. Any such failure could constitute a jurisdictional error, rather than an error within jurisdiction, although that is itself a debatable proposition. However, it does not involve a mandatory prerequisite for “valid action”, let alone a decision “not reasonably capable of reference to the power given to the Commission”.

Conclusion

85 The summons should be dismissed with costs.

86 MACFARLAN JA: I agree with Spigelman CJ.

I agree with the Chief Justice.

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