Commissioner of Police, New South Wales Police Force v Zisopoulos

[2020] NSWCA 236

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236

Hearing dates:

3 September 2020

Date of orders:

28 September 2020

Decision date:

28 September 2020

Before:

Bell P at [1]; Macfarlan JA at [95]; Wright J at [100]

Decision:

Summons dismissed with costs

Catchwords:

ADMINISTRATIVE LAW – judicial review of decisions of Industrial Relations Commission relating to removal of officer from NSW Police Force – whether IRC erred in law and failed to exercise jurisdiction whilst undertaking statutory task of review under s 181E of the Police Act 1990 (NSW) – whether IRC misapplied s 181F(2) concerning onus of proof – legal, tactical and evidential burdens of proof considered – where decision was not affected by jurisdictional error.

INDUSTRIAL RELATIONS – Industrial Relations Commission – whether the removal of an officer from the NSW Police Force was “harsh, unreasonable or unjust” – whether IRC erred in law and failed to exercise jurisdiction whilst undertaking statutory task of review under s 181E of the Police Act 1990 (NSW) – whether IRC misapplied s 181F(2) concerning onus of proof – legal, tactical and evidential burdens of proof considered.

POLICE – officer removed from NSW Police Force pursuant to s 181D(1) of the Police Act 1990 (NSW) for alleged voluntary consumption of illicit drugs –officer successfully reviewed dismissal pursuant to s 181E of the Police Act – whether IRC misapplied s 181F(2) concerning onus of proof – legal, tactical and evidential burdens of proof considered.

STATUTORY INTERPRETATION – construction of s 181F(2) of the Police Act 1990 (NSW) – whether the removal of an officer from the NSW Police Force was “harsh, unreasonable or unjust”.

Legislation Cited:

Industrial Relations Act 1996 (NSW) s 84(1)

Police Act 1990 (NSW) ss 80(3), 181D, 181E, 181F, 181G, Pt 9 Div 1C, Pt 10A

Police Legislation Further Amendment Act 1996 (NSW)

Police Service Act 1990 (NSW) s 181B

Police Service Amendment Act 1997 (NSW)

Cases Cited:

Amoco Oil Co. v Parpada Shipping Co. Ltd

(The “George S.”) [1989] 1 Lloyd’s Law Reports 369

Anchor Products Ltd v Hedges (1966) 115 CLR 493; [1966] HCA 70

Batterham v QSR Limited (2006) 225 CLR 237; [2006] HCA 23

Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715; [2020] HCA 27

Bigg v New South Wales Police Service (1998) 80 IR 434

Brady (Inspector of Taxes) v Group Lotus Car Cos plc [1987] 2 All ER 674

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Byrne v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24

Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2

Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWSC 622

Cottle v NSW Commissioner of Police; Police Association of New South Wales v Commissioner of Police (NSW Police Force) [2020] NSWCA 159

Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75

Henderson v State of Queensland (2014) 255 CLR 1; [2014] HCA 52

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; [1980] FCA 85

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Momcilovic v R (2011) 245 CLR 1; [2011] HCA 34

Oswald v New South Wales Police Service (1999) 90 IR 42

Polyaire Pty Ltd v K-Aire Pty Ltd (2005) 221 CLR 287; [2005] HCA 32

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

R v LK (2010) 241 CLR 177; [2010] HCA 17

Starr v Commissioner of Police [2001] NSWIRComm 226

Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5

Tredinnick v Commissioner of Police [2016] NSWIRComm 14

Victoria v Commonwealth ("Payroll Tax case") (1971) 122 CLR 353; [1971] HCA 16

Wang v Crestell Industries Pty Ltd (1997) 71 IR 454

Texts Cited:

C R Williams, “Burdens and Standards in Civil Litigation” (2003) 25 Syd Law Review 165

Category:

Principal judgment

Parties:

Commissioner of Police, New South Wales Police Force (Appellant)
George Zisopoulos (First Respondent)
Industrial Relations Commission of NSW (Second Respondent) (Submitting Appearance)

Representation:

Counsel:

J K Kirk SC with Y Shariff (Appellant)
N C Hutley SC with B D Eurell (First Respondent)

Solicitors:

Maddocks (Appellant)
Nicole Dunn Lawyers (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2019/368386

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Industrial Relations Commission of New South Wales

Citation:

[2018] NSWIRComm 1011

[2019] NSWIRComm 1073

Date of Decision:

7 March 2018
4 October 2019

Before:

Commissioner Murphy
Chief Commissioner Kite SC; Commissioner Stanton; Acting Magistrate Abood

File Number(s):

2016/00384458
2018/00084066

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr George Zisopoulos (Mr Zisopoulos) was a member of the NSW Police Force from 1999 to 2015. On 16 April 2015, he was subjected to a random drug test at Newtown Local Area Command, which returned positive results for MDMA and methylamphetamine.

On 30 March 2016, Mr Zisopoulos was served with a notice pursuant to s 181D(3)(a) of the Police Act 1990 (NSW) (the Act), in which the Commissioner of Police (the Police Commissioner) indicated that there were reasonable grounds on which it could be concluded, on the balance of probabilities and having regard to the seriousness of the allegation, that Mr Zisopoulos voluntarily consumed a prohibited drug and that the drug levels detected were not a result of any external contamination occasioned by exposure to drugs in Mr Zisopoulos’ work environment. On 19 December 2016, by an order made under s 181D(1) of the Act, Mr Zisopoulos was removed from the NSW Police Force.

On 22 December 2016, Mr Zisopoulos filed an application for relief in relation to unfair dismissal in the NSW Industrial Relations Commission (the IRC), claiming that his removal was harsh, unreasonable or unjust on the basis that (a) he denied voluntarily ingesting either MDMA or methylamphetamine, and (b) the positive hair test results were capable of being interpreted as being caused by environmental contamination of the hair by those substances, or that such external contamination could not be ruled out.

Murphy C upheld the application for review, and ordered that Mr Zisopoulos be reinstated to the NSW Police Force at the rank and incremental level he held at the date of his removal. Murphy C noted that s 181F(2) of the Act made it clear that Mr Zisopoulos bore the burden of establishing that his removal was harsh, unreasonable or unjust. After referring at length to the decision of the Full Bench of the IRC in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 (Tredinnick), Murphy C outlined that he was “satisfied that the applicant has produced sufficient evidence to cast doubt upon the finding by the [Police Commissioner] that [Mr Zisopoulos] consumed prohibited drugs so that the evidentiary burden of establishing that fact has shifted to the [Police Commissioner]”. Murphy C concluded that, in light of the expert evidence before him, external contamination of Mr Zisopoulos’ hair as a result of handling MDMA and methylamphetamine as part of his duties as a police officer was at least “as likely” or “more likely” an explanation for his test results, than was ingestion of the drugs by him.

The Police Commissioner appealed to the Full Bench of the IRC, on grounds which included that Murphy C erred in properly applying the onus arising under s 181F of the Act, and that Murphy C erred by failing to adhere to s 181F(2) of the Act by concluding that the evidentiary burden moved from Mr Zisopoulos to the Police Commissioner.

The Full Bench of the IRC dismissed the appeal, holding that there was nothing in Murphy C’s reasons to support the proposition that he misunderstood or misapplied either s 181F(2) of the Act or the principles which were established in Tredinnick.

The Police Commissioner sought judicial review of the decision of the Full Bench, and an extension of time in which to seek judicial review of the decision of Murphy C. The essence of the applications was that the approach adopted by both Murphy C and the Full Bench contravened s 181F(2) of the Act, which places the burden of establishing that a police officer’s removal from the NSW Police Force is harsh, unreasonable or unjust “at all times” on the police officer who seeks to review the decision.

The principal issues which arose were whether the reasoning of both Murphy C and the Full Bench of the IRC misconceived the onus under s 181F(2), and whether the Full Bench and Murphy C conflated the legal onus with a shifting evidentiary onus.

The Court held (Bell P, Macfarlan JA agreeing, Wright J dissenting), dismissing the summons with costs:

1. By Bell P, Macfarlan JA agreeing: Neither the decision of Murphy C nor that of the Full Bench of the IRC was affected by jurisdictional error. Neither held that the Police Commissioner had any legal burden, either at the outset of the s 181E review or during the course of the review. The Police Commissioner had predicated his decision to remove Mr Zisopoulos on his own satisfaction to the Briginshaw standard that Mr Zisopoulos had voluntarily ingested the drugs. Murphy C and the Full Bench held that sufficient doubt was raised in relation to this conclusion so that the decision to remove the police officer could not be founded on the Briginshaw standard which the Police Commissioner set for himself. It was open in the circumstances for Murphy C to conclude that the removal decision was harsh, unreasonable or unjust: [89]; [95].

By Wright J: In light of his reasons as a whole, Murphy C erred by failing to apply s 181F(2) of the Act in the review proceedings before him. Murphy C’s reasoning was to place the burden of proof and persuasion on the Police Commissioner in relation to whether Mr Zisopoulos’ positive tests results were caused by misconduct by the voluntary ingestion of illicit drugs, after at least some doubt had been cast by Mr Zisopoulos on the Police Commissioner’s original findings to that effect. Because of his error in the application of s 181F(2), Murphy C identified a wrong issue, asked himself the wrong question and failed to exercise the jurisdiction conferred on the IRC by Div 1C of Pt 9 of the Act. Accordingly, Murphy C’s decision was affected by jurisdictional error: [184], [201]-[202].

The Full Bench erred in concluding that Murphy C had not failed to comply with s 181F(2) when dealing with the s 181E(1) review. The appeal against Murphy C’s orders should have been allowed: [216].

2. By Bell P, Macfarlan JA agreeing: In a review by the IRC of a decision under s 181E of the Act, the central issue will always be whether or not the decision to remove the officer was harsh, unreasonable or unjust. The nuanced nature of a s 181E review based on these criteria is one the legislature has entrusted to a specialist tribunal. Assessment as to whether a particular decision of the Police Commissioner engages the statutory criteria necessarily must have regard to the basis and reasoning employed by the Police Commissioner in any given case: [82]-[84]; [95].

3. By Bell P, Macfarlan JA agreeing: When “sufficient doubt” is raised as to the Police Commissioner’s decision to remove an officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of evidence before the IRC, namely that the impugned removal decision was not harsh, unreasonable or unjust: [85]; [95].

4. By Wright J: Murphy C was not considering a shifting “evidentiary burden” or a “tactical onus”; rather, he was unequivocally reasoning that once it was accepted that there was something more than minimal evidence which cast doubt on the Police Commissioner’s conclusion that Mr Zisopoulos had engaged in misconduct by ingesting prohibited drugs, the Police Commissioner was required to prove, on the balance of probabilities, that the misconduct had occurred, if the removal was not to be found to be harsh, unreasonable or unjust: [183].

Judgment

1. BELL P: The Commissioner of Police (the Police Commissioner) seeks judicial review of a decision of the Full Bench of the NSW Industrial Relations Commission (IRC) (Commissioner of Police (NSW) v Zisopoulos (2019) 291 IR 150; [2019] NSWIRComm 1073 (the Full Bench Decision)) and an extension of time in which to seek judicial review of an earlier decision of Murphy C in Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011 (the First Instance Decision) relating to the removal of Mr George Zisopoulos (Mr Zisopoulos) from the NSW Police Force.

2. The Full Bench Decision was an unsuccessful appeal by the Police Commissioner from the First Instance Decision in which Mr Zisopoulos successfully reviewed, pursuant to s 181E of the Police Act 1990 (NSW) (the Act), the Police Commissioner’s decision pursuant to s 181D(1) of the Act, to remove him from the NSW Police Force. The basis of the Police Commissioner’s underlying decision to remove Mr Zisopoulos was the Police Commissioner’s satisfaction that Mr Zisopoulos “consumed a prohibited drug, resulting in [him] testing positive for MDMA and methylamphetamine.” The Commissioner considered there to be:

“reasonable grounds on which it could be concluded, on the balance of probabilities, and having regard to the seriousness of the allegation, that you voluntarily consumed a prohibited drug and the drug levels detected are not a result of any external contamination.”

3. The applications for judicial review were removed to the Court of Appeal on the motion of the Police Commissioner: Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWSC 622.

4. Both Murphy C and the Full Bench held, following an earlier decision of the Full Bench in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 (Tredinnick), that, if the applicant for review under s 181E of the Act produced sufficient evidence to “cast doubt” upon the reasons of the Police Commissioner which led to the removal of the applicant from the NSW Police Force, the Commissioner would then bear the evidential burden of establishing that the applicant had engaged in the relevant misconduct that led to the police officer’s removal.

5. The essence of the applications for judicial review is that this approach was wrong and contravened s 181F(2) of the Act, which places the burden of establishing that the police officer’s removal from the NSW Police Force is harsh, unreasonable or unjust “at all times” on the police officer who seeks to review the Police Commissioner’s decision.

Statutory framework, legislative history and case law

6. It is convenient at this point to set out the relevant sections of the Act and to note their legislative history and relevant case law.

7. Part 9 of the Act, comprising ss 173-187, is entitled “Management of conduct within NSW Police Force”. Part 9 comprises 8 divisions. It has been the subject of consideration by the High Court in Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 (Eaton) and, most recently, by this Court in Cottle v NSW Commissioner of Police; Police Association of New South Wales v Commissioner of Police (NSW Police Force) [2020] NSWCA 159 (Cottle).

8. Mr Kirk SC, who appeared with Mr Shariff for the Police Commissioner, emphasised that Divs 1B and 1C of Pt 9 were introduced respectively by the Police Legislation Further Amendment Act 1996 (NSW) (the 1996 Act) and the Police Service Amendment Act 1997 (NSW) (the 1997 Act).

9. The 1996 Act followed the “Interim report: immediate measures for the reform of the Police Service of New South Wales” of the Wood Royal Commission into the New South Wales Police Service, but predated the Royal Commission’s final report. The 1996 Act introduced s 181D into the Act, providing for the Police Commissioner summarily to remove police officers in whom the Police Commissioner did not have confidence. The 1996 Act also introduced Pt 10A into the Act, which was entitled “Integrity testing of police officers” and provided for the conducting by the Police Commissioner of integrity testing programs and provision for the testing of police officers for alcohol and prohibited drugs.

10. The 1997 Act provided for the review by the IRC of decisions of the Police Commissioner removing a police officer by order under s 181D of the Act. In the Second Reading Speech, the then Police Minister said (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 June 1997 at 10562-10563):

“The legislation before the House arises from the royal commission’s final report. It deals with a single issue, that is, the industrial rights flowing from the termination of employment of police officers under the provisions commonly referred to as commissioner’s confidence. If a single issue had to be isolated as crucial to reform of the Police Service it would have to be the ability of the commissioner to divest the service of those who fail to meet it standards. Without the means to quickly and efficiently terminate the employment of individuals who cannot or will not comply with minimum standards of integrity, conduct and competence, it is doubtful that we will ever reap the full benefits of the reform process.

The old system clearly did not work. It was cumbersome, protracted and legalistic. It effectively meant that the corrupt and the hopeless could seek sanctuary and remain within the Police Service. The system required the proving of departmental charges before the Police Tribunal. After the tribunal had made a recommendation, action was taken on the basis of its findings. The action was then subject to appeal to the Government and Related Employees Appeal Tribunal, GREAT, which routinely put dismissed officers back into the service. The system could be manipulated and beaten. Corrupt officers knew that, and took comfort from it[.]

Basically, the system sheltered those who least deserved it, and failed the people of New South Wales, who looked to the Police Service to be a model of honesty, integrity and community service. In November 1996 this Parliament threw out the old system. Responding to the Immediate Measures Interim Report of the Royal Commission, section 181D was introduced into the Police Service Act. For the first time the Commissioner of Police was given a fast and effective way to rid the service of those who had forfeited the right to be police officers in this State. Of course, section 181B had previously allowed the removal of officers suspected of criminal or corrupt behaviour, but only in the limited circumstances of information arising from the royal commission.

Section 181D extended Commissioner Ryan’s power to ensure he is not only the most powerful police commissioner in the history of this State but also in Australia. The Carr Government is determined to ensure that Commissioner Ryan’s Police Service contains only officers in whom he has confidence. That is why the current bill only affects the processes after the police officer has been removed from the Police Service. Commissioner Ryan’s power to remove corrupt and inept officers remains unaffected. After the introduction of section 181D, the Premier and I, after consultation with caucus, agreed the post-dismissal process - the appeal rights, if you like - should be revisited after the final report of the royal commission was delivered.”

The Minister noted that Division 1C struck:

“…a balance between the spirit of the royal commission recommendations and existing industrial law and practice in New South Wales. The result is a process that retains the commissioner’s power to ensure that the service is able to quickly free itself of those who fail to live up to professional standards of integrity, competence and behaviour, but also protects against injustice[.]

It is that simple - the bill is anti-corruption but also anti-injustice. The bill accommodates the unique nature of policing, overcomes the problems of past appeal processes, and puts the police officer on a similar footing to other employees under the Industrial Relations Act. …

The bill provides police officers with the right to go to the Industrial Relations Commission to seek review of a dismissal decision. Again, whilst similar to the protection provided to other workers under the unfair dismissal provisions of the Industrial Relations Act, it is not identical as there are some important differences ..”

11. Section 181D, falling within Div 1B of Pt 9, empowers the Police Commissioner to remove a police officer in whom he or she has lost confidence, having regard to the officer’s competence, integrity, performance or conduct. Sub-sections (1)-(4) are in the following terms:

“181D  Commissioner may remove police officers

(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.

(2)     ….

(3)   Before making an order under this section, the Commissioner:

(a)     must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer’s suitability to continue as a police officer, and

(b)     must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and

(c)    must take into consideration any written submissions received from the police officer during that period.

(4)   The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force.”

12. Except as provided by Div 1C, “no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section”, noting “tribunal” is defined to mean “a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission”: s 181D(7) of the Act.

13. Division 1C of Pt 9, comprising ss 181E-181J, is entitled “Review of Commissioner’s decision under Division 1B”. Section 181E 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.

(2)     An application under this section does not operate to stay the operation of the order in respect of which it is made.

(3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant’s suitability to continue as a police officer, as referred to in section 181D (1).”

14. Section 181F makes specific provision for the proceedings on a review, with sub-section (1) providing that:

“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.”

15. This sub-section structures the conduct of any review by the IRC. It will be seen that, in his reasons, Murphy C followed this sequential structure and reliance was placed on it by Mr Hutley SC, who appeared with Mr Eurell for Mr Zisopoulos, to explain and defend the attack made on the decisions of both Murphy C and the Full Bench.

16. Sections 181F(2) of the Act, which is of central significance to the current proceedings, provides:

“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.”

17. Particular emphasis was placed by the Police Commissioner on the phrase “at all times”. The Police Commissioner also submitted that the reference to any “practice to the contrary” may well have been intended to be a reference to the practice reflected in Wang v Crestell Industries Pty Ltd (1997) 71 IR 454 at 463-4 and more generally in unfair dismissal cases dealt with by the IRC whereby the employer is required, in such cases, to establish and justify the basis for dismissal, even though the application for relief is brought by the dismissed former employee.

18. Returning to the Act, s 181F(3) provides that:

“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)).”

19. Mr Kirk submitted that these mandatory considerations emphasise the importance and significance of the Police Commissioner’s power summarily to remove an officer pursuant to s 181D of the Act.

20. In the context of a consideration of the statutory provisions, Mr Kirk also placed reliance upon certain passages from Eaton. That case was concerned with whether or not a probationary constable had any right of review of a decision to dismiss him or her pursuant to s 80(3) of the Act and, in particular, whether or not a dismissed probationary constable could seek review pursuant of s 84(1) of the Industrial Relations Act 1996 (NSW) on the basis that the dismissal was harsh, unreasonable or unjust. The Police Commissioner successfully submitted in that case that the existence of such a right would be anomalous in light of the more bespoke provisions relating to the removal of police officers pursuant to s 181D of the Act.

21. Reliance was placed on the judgment of Heydon J and the joint judgment of Crennan, Kiefel and Bell JJ which together comprised the majority (Gageler J dissented). In particular, reliance was placed on [26] of Heydon J’s decision, in which his Honour said:

“One anomaly is that if dismissed probationary constables could make applications under s 84(1) they would be in a better position than non-probationary officers. The rights of review s 181E gives to the latter in relation to s 181D removals would be more qualified than those s 84(1) gives to the former in relation to s 80(3) dismissals. In proceedings under s 84(1), where the dismissal has taken place because of alleged criminal activity, the employer bears the burden of proving that the crime was committed. But in proceedings under s 181E for review on the ground that removal was harsh, unreasonable or unjust, the applicant bears the burden of proving that the crime was not committed. That is because the applicant has, under s 181F(2), the burden of establishing that the applicant's removal from the NSW Police Force was harsh, unreasonable or unjust. The consequences of s 181F(2) are not narrow or trivial. They are significant in view of the fact that s 201 of the Police Act renders it a criminal offence for a police officer to neglect or refuse to obey any lawful order or carry out any lawful duty as a police officer. The scope for criminal offences by police officers, and for removal because of them, is thus wide.” (emphasis added, footnote omitted).

22. Reliance was also placed on [69] and [76] of the plurality decision:

“69. A claimant under s 181E of the Police Act bears the onus of proving that a dismissal was harsh, unreasonable or unjust. There is no equivalent provision in the IR Act, which in general terms empowers the IR Commission to determine its own procedures. In the Court of Appeal, Tobias A-JA observed that in practice the IR Commission usually places the onus of proof on the applicant for relief, although the Full Bench has held that the employer must establish misconduct, where this is alleged in a case of dismissal. Dismissals under s 80(3) of the Police Act may well involve questions of integrity and misconduct.

…

76. The regime provided for in Pt 9 of the Police Act for the claims of confirmed police officers evidences a concern that the processes of Pt 6 of the IR Act are not in all respects appropriate to be applied to decisions of the Commissioner to dismiss or make other like orders. Part 9 maintains a focus on the Commissioner's decision, a focus which is not provided by the general provisions of the IR Act. Part 9 elevates the Commissioner's decision to one of public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force. The placing of the burden of proof upon the police officer dismissed is consistent with the weight to be given to the Commissioner's decision, as is the provision which prevents a review of that decision by reference to additional material.” (footnotes omitted).

23. It is not absolutely clear what provision of the Act the plurality decision was referring to in the last sentence of [76], but it may have been to s 181G(1)(f) which permits the admission of “new evidence” but only on notice and with the leave of the IRC.

Background to and history of the proceedings

24. Mr Zisopoulos was a member of the NSW Police Force from 1999 to 2015.

25. On 16 April 2015, he was subjected to a random urine drug test at Newtown Local Area Command. The initial screening of his urine returned a “non-negative” result for amphetamines, opiates and benzodiazepines. Mr Zisopoulos was advised at the time that his urine sample would be sent for further laboratory analysis to confirm that the medications which he had been taking caused the non-negative results.

26. Later on the same day, Mr Zisopoulos was required to provide a hair sample for further testing, which returned positive results for MDMA and methylamphetamine.

27. On 30 March 2016, Mr Zisopoulos was served with a notice pursuant to s 181D(3)(a) of the Act (Section 181D Notice) which, as noted at [2] above, included the following:

“There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, and having regard to the seriousness of the allegation, that you consumed a prohibited drug, resulting in you testing positive for MDMA and methylamphetamine.

…

I consider there to be reasonable grounds on which it could be concluded, on the balance of probabilities, and having regard to the seriousness of the allegation, that you voluntarily consumed a prohibited drug and the drug levels detected are not a result of any external contamination”. (emphasis added).

28. On 6 June 2016, Mr Zisopoulos submitted a response to the Section 181D Notice in which he denied the allegation of voluntary consumption of the drugs.

29. On 19 December 2016, by an order made under s 181D(1) of the Act, Mr Zisopoulos was removed from the NSW Police Force. The terms of that order were as follows:

“I, Andrew Phillip Scipione, Commissioner of Police, having considered your conduct and integrity, do not have confidence in your suitability to continue as a police officer. By this Order, I remove you from the New South Wales Police Force.

In reaching my decision, I have carefully considered the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990 and the evidence contained in the supporting documentation, which were served on you. I have also taken into account your written response provided by your legal representative.

The reasons for my decision are annexed hereto under the heading ‘Statement of Reasons’.

Your removal takes effect from the date of this order”.

30. The Police Commissioner’s Statement of Reasons (the Reasons) were lengthy, running to some ten pages. After setting out the background facts, the Reasons then contain a section headed “Allegation”, which was in these terms, mirroring the Section 181D Notice:

“I must assess, on the balance of probabilities and having regard to the seriousness of the Allegation, if it is more likely that you voluntarily consumed illicit drugs or if the presence of the drugs arose from another cause.

For the reasons set out below, I am satisfied that you consumed a prohibited drug, resulting in you testing positive for MDMA and methylamphetamine, in respect of which the drug levels detected are not explicable by any external contamination.

In the circumstances, I find that your conduct was contrary to the Police Act 1990, the Police Regulation 2008 (as in force at the relevant time) the NSW Police Force Handbook, the Drug Misuse and Trafficking Act 1985, the NSW Police Force Drug and Alcohol Policy, and the NSW Police Force Code of Conduct and Ethics.” (emphasis added).

31. Interpolating here, it should be noted that in both the Section 181D(1) Notice and the Reasons, the Police Commissioner identified a standard of proof (balance of probabilities) coupled with a Briginshaw rider (“having regard to the seriousness of the allegation”): see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. There was no direct statutory reason for the Police Commissioner to choose this standard of proof or to require satisfaction in the Briginshaw sense, namely by reference to the seriousness of the allegations. There may have been sound reasons for the Police Commissioner to do so, but the important point for present purposes is that he was not obliged to do so.

32. It may, for example, be open to the Police Commissioner to remove an officer in circumstances where he had reasonable suspicion that the officer had engaged in serious criminal conduct but could not be satisfied of the commission of that conduct either to the civil or criminal standard, cf. Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62; [1980] FCA 85. Depending on the context, however, the very existence of such reasonable suspicion may be sufficient for the Police Commissioner to exercise the s 181D removal power, if the existence of that suspicion has caused the Police Commissioner not to 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. It is perhaps useful, in this context, to set out the following exchange in the course of argument in this Court:

“KIRK:   … Let’s say seized money or drugs go missing and it can’t be established with a Briginshaw gloss in the full glare of silked up legal proceedings in the IRC, that it was Smith who took them, but there’s very good reasons still to think that it was Smith who took them. Or to give a more significant example, that there’s been a leak of information about an undercover officer or an informant, and it can’t conclusively be proved with a Briginshaw gloss that it was Smith who leaked it, but there’s very good reasons to think that Smith did. Smith is a danger to the police service and to the community and although it’s possible that Smith is innocent there is good reason to remove him or her.

BELL P:   A corollary of that is that it’s not necessarily harsh for the Police Commissioner to remove an officer where he, the Police Commissioner, is not even satisfied on the balance of probabilities that something has happened.

KIRK:      Correct.

BELL P:   There could be a situation where he has reasonable grounds to believe that something has happened, to borrow that language from other statutory contexts, and whether or not those reasonable grounds meet some other legal standard, some higher legal standard, it may be perfectly reasonable, given the context and the purpose of the act and the conferral of the powers for him to so act.

KIRK:      Precisely so …”

33. The Police Commissioner is invested with a significant measure of discretion under s 181D(1), subject to satisfaction of the statutory procedural fairness requirements in s 181D(3) and the obligation to provide reasons by virtue of s 181D(4). The mandatory requirement imposed by s 181F(3)(b) to take into account, as part of the consideration of the public interest, “the fact that the Commissioner made the order pursuant to section 181D (1)” highlights the deference to be given to the Police Commissioner’s decision, a point also emphasised in the Second Reading Speech. But any such decision is also subject to the right of review pursuant to s 181E of the Act.

34. Returning to the Reasons, the Police Commissioner noted that:

“I have carefully considered the issues you raised in your Response, the scientific evidence and expert reports, the Police evidence regarding your exposure to illicit drugs and any other matters to which I have referred below.

…

I have taken into account that you state in your Response that, as part of your employment duties, you have been exposed to illicit drugs on a regular basis in the workplace, and that you may have been ‘unwittingly’ exposed outside of work (although there is no evidence in support of this other than the contents of your Response). I have also considered the sections of your Response regarding the verifiability and reliability of the test results and the alleged breaches in the drug and alcohol testing procedures that were followed.

I have considered the contents of all of the expert reports, to which I have referred above. Dr Lewis and Ms Lindsay each opine that your test results could be ascribable to use, while Mr Farrar opines that the test results do not provide evidence that the presence of illicit drugs was due to ingestion. However, each expert agrees that it is possible that the levels of drugs reported could have been due to external contamination (although Dr Lewis notes that ‘one can eliminate environmental contamination as a likely source’).

Although I have considered your explanation, Police records show that you have had only limited exposure to illicit drugs during the approximately three month period preceding testing. Consequently, although I recognise that the levels of illicit drugs reported are at the lower level of reporting, I do not accept that your non-negative test results are explained by environmental contamination or ‘unwitting’ exposure or ingestion (either at or outside of work).

…

I have had regard to the scientific evidence and the associated expert reports. Despite the expert agreement regarding external contamination, I prefer the evidence of Dr Lewis and Mr Lindsay that your test results are ascribable to one off or occasional use of MOMA and methylamphetamine.

Having considered all of the above matters, I do not find your denials that you have consumed illicit drugs credible, and I have concluded that you have voluntarily consumed prohibited drugs, namely, MDMA and methylamphetamine. In addition, I have to conclude that you have been less than candid in your Response to me.

…

As I have stated above, I do not find your denials that you have taken illicit drugs to be credible, and I am concerned about your honesty. In these circumstances, I can no longer rely upon your integrity as a police officer to perform policing duties in the future.

…

I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer”. (emphasis in original).

35. On 22 December 2016, Mr Zisopoulos filed an application for relief in relation to unfair dismissal in the IRC. Before the IRC, Mr Zisopoulos claimed that his removal was harsh, unreasonable or unjust on the basis that (a) he denied voluntarily ingesting either MDMA or methylamphetamine, and (b) the positive hair test results were capable of being interpreted as being caused by environmental contamination of the hair by those substances, or that such external contamination could not be ruled out.

35. Before the IRC, it was accepted by Mr Zisopoulos that his removal would not have been harsh, unreasonable or unjust had he in fact voluntarily consumed prohibited drugs but he denied this and, as shall be seen, led expert evidence seeking to establish and made a submission recorded by Murphy C at [131] of the First Instance Decision that “the overwhelming consensus of the experts was that the test results are consistent with external contamination.”

36. Equally, both before the IRC and in this Court, it was not suggested that Mr Zisopoulos’ removal by the Commissioner would not have met the statutory criteria of harsh, unreasonable or unjust if it were established that the positive hair test results manifesting drugs were in fact caused by “environmental contamination”, that is to say, by exposure to the drugs in the course of his duty, as opposed to voluntary ingestion. Indeed, in argument before this Court, Mr Kirk both positively put and accepted that this was a binary issue upon which the ultimate issue for determination under s 181E(1) of the Act turned.

Decision of Commissioner Murphy

38. On 7 March 2018, Murphy C upheld the application for review, and ordered that Mr Zisopoulos be reinstated to the NSW Police Force at the rank and incremental level he held at the date of his removal.

39. In a section of his reasons entitled “Onus of proof”, Murphy C noted that “[s]ection 181F(2) of the Police Act makes it clear that [Mr Zisopoulos] bears the burden of establishing that his removal from the NSWPF was harsh, unreasonable or unjust”: at [140].

40. After referring at length to the decision of the Full Bench in Tredinnick, Murphy C outlined (at [142]) that he was “satisfied that the applicant has produced sufficient evidence to cast doubt upon the finding by the [Police Commissioner] that [Mr Zisopoulos] consumed prohibited drugs so that the evidentiary burden of establishing that fact has shifted to the [Police Commissioner]”. This conclusion was advanced at the end of the section of Murphy C’s decision entitled “Onus of proof”.

41. Murphy C structured his analysis of the ultimate issue before him under the general heading “Was the removal of the applicant harsh, unreasonable or unjust?” with the following sub-headings:

• The Statement of Reasons (at [150]-[156]);

• The applicant’s exposure to drugs at work (at [157]-[162]);

• The wash procedure (at [163]-[164]);

• The positive test results – voluntary use or external contamination? (at [165]-[167]);

• The case presented by the respondent (at [168]-[180]);

• The evidentiary burden (at [181]-[190]).

42. Under the sub-heading “The positive test results – voluntary use or external contamination?”, Murphy C recorded at [165]-[167] that:

“165.   In addition to the concession made by Ms Lindsay that recent external contamination cannot be excluded, the expert scientific evidence upon which [Mr Zisopoulos] relies to support the proposition that the positive test results were due to external contamination can be summarised as follows:

Dr Robertson

[Mr Zisopoulos’] test results may have been due to occasional use during the time period represented by the hair sample and/or environmental contamination. It cannot be established which of these possibilities is more likely than the other.

Dr Fu

Environmental contamination is the most likely cause of [Mr Zisopoulos’] hair testing results (first report). External contamination cannot be ruled out as the cause of the positive results of prohibited drugs in the hair of [Mr Zisopoulos] (supplementary report).

Mr Farrar

The available information does not, on the balance of probabilities, support the allegation of consumption of prohibited drugs by [Mr Zisopoulos].

166.   Against these opinions, Dr Lewis concluded that, based on his opinion as to the low probability of external contamination, it was highly likely that the prohibited drugs were consumed by [Mr Zisopoulos]. However, under cross-examination, Dr Lewis conceded that environmental contamination was a ‘feasible’ explanation, ‘unlikely’ but not ‘impossible’.

167.   Dr Lewis agreed with senior counsel for [Mr Zisopoulos] that, if environmental contamination could not be eliminated as a cause, ‘as a matter of science it’s unsafe to espouse a conclusion that ingestion was the reason for the positive result’.” (emphasis in original).

43. At [180], within the section sub-headed “The case presented by the respondent” and following a consideration of the Police Commissioner’s submissions in light of the expert evidence before him, Murphy C concluded that:

“Contrary to [the Police Commissioner’s] contention that [Mr Zisopoulos’] case invites an admixture of theoretical possibility, speculation and surmise, the evidence of the expert witnesses, which I accept, has demonstrated that external contamination of [Mr Zisopoulos’] hair, as a result of handling MDMA and methylamphetamine as part of his duties as a police officer, is more than a theoretical possibility but is at least as likely, or more likely, an explanation for the test results of [Mr Zisopoulos’] hair sample than is ingestion of the drugs by the applicant.”

44. Under the final sub-heading of this section of his reasons – “The evidentiary burden” – Murphy C first made reference to the facts of Tredinnick and then to the first instance and Full Bench decisions in that matter, having already referred extensively to the Full Bench decision earlier in his reasons under the heading “Onus of proof”. He evidently returned to Tredinnick for the purposes of drawing a comparison and contrast with the present case. Tredinnick also concerned a review under s 181E of a s 181D(1) removal, on the basis of Mr Tredinnick having returned a positive drug test some 6 days after he had participated in a drug raid, during which he handled a significant quantity of what was termed “sticky cannabis”. He had proposed, in the alternative to voluntary ingestion on his part, two possible explanations for the positive test result, namely dermal absorption or inhalation of the drug during the seizure and subsequent processing of the cannabis or, secondly, involuntary ingestion, in the days after the raid, of cannabis resin or particles of leaf or flower which had adhered to Mr Tredinnick’s load bearing vest during the seizure and subsequent processing of the drug.

45. At [185]-[190] of his reasons, Murphy C concluded:

“185.    The expert evidence in Tredinnick was, in effect, that the appellant’s innocent explanations for his positive test result were, according to Dr Lewis, impossible and, according to Dr Robertson, ‘unlikely’ in relation to the first scenario and ‘cannot be excluded as a possible source’ in relation to the second scenario.

186.    By contrast, the expert evidence in the present matter is that the applicant’s innocent explanation for his positive test result is ‘feasible’, ‘unlikely’ but not ‘impossible’ according to Dr Lewis; ‘cannot be excluded’ according to Ms Lindsay; equally as likely as occasional use of the drugs, according to Dr Robertson; and the ‘most likely cause’ according to Dr Fu. Mr Farrar opined that the available information did not support the allegation of consumption of the drugs.

187.    As was noted by the Full Bench in Tredinnick, whilst the applicant bears the burden of establishing that his removal was harsh, unreasonable or unjust, the evidentiary burden may shift to the respondent when the applicant leads sufficient evidence to cast doubt on the respondent’s finding of misconduct. That has occurred in this case as a consequence of the evidence of Dr Robertson, Dr Fu and Mr Farrar.

188.    In contrast to the expert evidence in Tredinnick, the expert evidence in the present matter weighs heavily in favour of the applicant’s explanation of environmental contamination as the cause of the positive test result of his hair sample.

189.    I find that the respondent has not satisfied the evidentiary burden of proving, on the balance of probabilities, but adopting the approach to the assessment of the evidence espoused by Dixon J in Briginshaw v Briginshaw ([1938] 60 CLR 336), that the applicant used prohibited drugs, namely, MDMA and methylamphetamine.

190.    It follows that I find that the removal of the applicant was harsh, unreasonable and unjust.” (emphasis in original).

The Full Bench decision

46. The Police Commissioner sought leave to appeal to the Full Bench of the IRC. Leave was granted in respect of three grounds of appeal, namely that Murphy C erred in properly applying the onus arising under s 181F of the Act, that Murphy C erred by failing to adhere to s 181F(2) of the Act by concluding that the evidentiary burden moved from Mr Zisopoulos, and that Murphy C failed to properly consider, or consider at all, s 181F(3) of the Act, requiring that the IRC “must” have regard to the public interest when making its decision. That final issue has fallen away in the present proceedings.

47. On 4 October 2019, the Full Bench of the IRC dismissed the appeal. The Full Bench held, with respect to the first two of the grounds, that there was “nothing in Commissioner Murphy’s reasons to support the proposition that he has misunderstood or misapplied either s 181F(2) or the principles which were established in Tredinnick”, and that Murphy C had held that Mr Zisopoulos had “established flaws” in some of the reasons of the Police Commissioner: at [30].

48. Like Murphy C, the Full Bench made extensive reference to Tredinnick for the purposes of considering the attack on Murphy C’s reasons. At [23], the Full Bench observed that:

“…unlike unfair dismissal proceedings, concerned with termination for serious misconduct in which the employer is required to prove the fact of misconduct, the Commissioner of Police is not required to do so – unless, as will be seen, an applicant succeeds in shifting the evidentiary burden. The obligation of the Commissioner extends no higher than answering the applicant’s case.” (emphasis in original).

49. At [24], the Full Bench made the point that:

“The burden on the applicant for review is to demonstrate the flaw in the respondent’s reasons. That may be done, as the Commission said at [66] by bringing ‘evidence to explain why the Certificate did not demonstrate the consumption of illicit drugs’. Establishing that proposition need not go so far as proving, as the appellant submits, that an applicant did not in fact consume illicit drugs or that the test result was ‘caused by actual external contamination’.” (emphasis in original).

50. At [26]-[27], the Full Bench observed that an applicant for review was “required to prove that the decision to remove him is harsh, unreasonable or unjust”, and that that burden “can be satisfied by casting sufficient doubt on the Commissioner’s reasoning process as to justify the Commission’s intervention.” The Full Bench then cited extensively from the decision of Walton J VP (as his Honour then was) in Starr v Commissioner of Police [2001] NSWIRComm 226 at [171]-[176] and [179] (Starr), concluding at [28] that:

“These passages identify and make clear, stripped of the technical expressions of legal and evidentiary burdens, the process by which a matter before the Commission is to be considered. The first point of reference is the reasons of the appellant. In his decision the Commissioner examined those reasons. The next step is to consider the case brought by the respondent to establish a flaw (or flaws) in those reasons sufficient to justify the intervention of the Commission. In other words, that the flaw (or flaws) is sufficient to lead to a conclusion that removal is harsh, unreasonable or unjust. The Commissioner identified a flaw in the appellant’s reasons based on the case brought by the respondent. The principal flaw was that the evidence considered by the appellant was inadequate to support the factual findings made. Accordingly, the final step is to consider the case brought by the Commissioner of Police in answer to the applicant’s case. In this case, the Commissioner was not persuaded that the evidence led by the appellant satisfied the ‘burden to produce evidence vindicating the factual findings made’ – Starr at [176].”

51. In two important paragraphs ([29]-[30]), the Full Bench then said that:

“The appellant’s submissions commence on the premise that the respondent, in order to satisfy the legal burden, must prove that an adverse test result is caused by environmental contamination and nothing other than that will suffice … That is not consistent with or supported by the authorities on which the appellant relies. It also conflates the s 181D process …. ‘Casting doubt’ on the appellant’s reasons is only the second stage of the process. It is not the end point but it does have the effect of shifting the evidentiary burden to the appellant. It is then for the appellant, through his case in answer, to demonstrate that the factual conclusions reached were justified.

We see nothing in Commissioner Murphy’s reasons to support the proposition that he has misunderstood or misapplied either s 181F(2) or the principles which were established in Tredinnick”. (emphasis added).

The Full Bench then referred to certain factual conclusions which Murphy C had made and which had been summarised at [10(9)] of the Full Bench Decision, before continuing at [30]:

“The allegation in this case is quite serious being an allegation of criminal conduct by a serving police officer. That requires convincing proof on the balance of probabilities. The Commissioner was satisfied that the evidence before the appellant, including the expert evidence, did not reach that standard. Added to that was the evidence of which the appellant was not aware, or which was understated.”

52. At [39], the Full Bench also held that:

“The questions to be considered by the Commissioner were whether the respondent’s case cast sufficient doubt on the appellant’s reasons and, if so, whether the appellant’s answer to that case was sufficient to justify the factual findings. We reiterate it is wrong therefore to examine the adequacy of the evidence only from the perspective of whether the respondent proved environmental exposure.”

53. In a later section of its reasons, the Full Bench considered an attack on the adequacy of Mr Zisopoulos’ evidence before Murphy C: at [41]-[59]. In this section of the judgment, the Full Bench shifted from its earlier reference to evidence which raised or cast a “sufficient doubt” (see the passage cited at [52] above) to the expression “sufficient evidence to cast doubt”: see at [44] and [46]. Viewed in context, and in light of the judgment as a whole, I do not consider these two references to be inconsistent with the earlier thrust of the Full Bench’s analysis which, properly understood, was concerned with shifting tactical evidentiary burdens.

54. Important to note in view of the Police Commissioner’s challenge is [46] of the Full Bench’s judgment, as follows:

“More importantly many of the appellant’s grounds attack the Commissioner’s findings or lack of findings about actual exposure. That demonstrates the misconception in the appellant’s challenge. The respondent led sufficient evidence to cast doubt on the factual findings on which the appellant’s decision was based. Once that is done it falls to the appellant to prove to the requisite standard that the respondent voluntarily ingested the prohibited drugs. In that context it does not matter whether actual exposure is proved. No doubt an applicant’s case would be stronger if he/she can prove actual exposure but it is not an essential in every case.” (emphasis in original).

The application for judicial review

55. In its Summons, the Police Commissioner seeks judicial review both of the decision of Murphy C and of the Full Bench on the following grounds:

“8. Pursuant to s 181F(2) of the Police Act, the Officer had at all times in the course of the IRC proceedings the burden of establishing that his removal from the New South Wales Police Force was harsh, unreasonable or unjust, despite any law or practice to the contrary.

9. The burden imposed under that section on an applicant for review under s 181E(1) of that Act provides:

(a)    for a legal onus of proof and persuasion which is borne by the applicant for review, and which onus remains constantly on the applicant; and

(b) an onus which is not satisfied or discharged merely by the applicant leading sufficient evidence to cast doubt on the [Police Commissioner’s] reasons for removing the applicant from the New South Wales Police Force by an order made in writing under s 181D(1) of the Police Act.

10. The effect of the reasoning and approach of both Murphy C and the Full Bench was to place the burden of proof and persuasion on the [Police Commissioner], at least once some doubt had been cast on the factual finding by the [Police Commissioner] in question, contrary to the terms of s 181F(2) and to a proper understanding of the notion of a legal burden of proof and persuasion.

11.    In the premises, Murphy C and the Full Bench each engaged in legal and jurisdictional error by:

(a) misconstruing s 181F(2), misdirecting themselves and asking themselves the wrong question in undertaking the statutory task of review under s 181E of the Police Act;

(b)    misunderstanding the notice of ‘evidential burden’, by treating this as though the legal burden of proof and persuasion shifts from the applicant for review once some doubt has been cast on the finding of fact in question;

(c)    thereby constructively failing to exercise their respective jurisdictions.

12. As the decision of the Full Bench relevantly was based upon the same reasoning as that of Murphy C, and as the errors are such that the Officer’s application for review has not yet properly been dealt with, it is appropriate that both decisions (and not merely that of the Full Bench) be set aside, and that time be extended pursuant to UCPR rule 59.10(2) to enable this to occur with respect to the First Instance Decision”.

56. The relief sought in the Summons was relevantly as follows:

“1 A declaration that the burden imposed under s 181F(2) of the Police Act 1990 (NSW) (Police Act) on an applicant for review under s 181E(1) of that Act provides for:

(a)    a legal onus of proof and persuasion which is borne by the applicant for review, and which onus remains constantly on the applicant; and

(b) an onus which is not satisfied or discharged merely by the applicant leading sufficient evidence to cast doubt on the reasons of the Commissioner of Police for removing the applicant from the NSW Police Force by an order made under s 181D(1) of the Police Act.

2    A writ in the nature of certiorari issued to the Industrial Relations Commission of New South Wales (IRC) which:

(a)    removes into this Court the appeal proceedings in the IRC with file number 2018/00084066 (Appeal Proceedings) and the orders of the Full Bench (Full Bench Orders) in those proceedings as pronounced in the decision of the IRC in Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073 (Full Bench Decision);

(b)    removes into this Court the proceedings in the IRC with file number 2016/00384458 (First Instance Proceedings) and the orders of the IRC in those proceedings (First Instance Orders) as pronounced in Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011 (First Instance Decision);

(c)   quashes the Full Bench Orders;

(d)   quashes the First Instance Orders.

3    A writ in the nature of mandamus directing the IRC to:

(a)   hear and determine the First Instance Proceedings according to law;

(b)   alternatively to (a), hear and determine the Appeal Proceedings in accordance with law.

4 To the extent that prayers 2(b) and 3(a) require an extension of time, leave be granted to the Plaintiff to have such an extension pursuant to rule 59.10(2) of the UCPR.

5    Such other or further orders as the Court determines to be appropriate.

6   Costs”.

Submissions on appeal

Police Commissioner’s submissions

57. In written submissions, the Police Commissioner contended that Murphy C and the Full Bench of the IRC misconstrued s 181F(2) of the Act, misdirected themselves and asked themselves the wrong question in undertaking the statutory task of review under s 181E of the Act. The Police Commissioner submitted that both Murphy C and the Full Bench thus erred in law and failed to exercise their respective jurisdictions.

58. The Police Commissioner submitted that it is:

“…axiomatic that for the purposes of the review under s 181E(1) of the Police Act, s 181F(2) provides that the legal onus of proof and persuasion to establish the legislative requirement for review – that the removal was harsh, unreasonable or unjust – is borne by the applicant (the police officer), and remains constantly (‘at all times’) on them.

The legal or persuasive burden or onus of proof is the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved (or disproved) either by a preponderance of the evidence or beyond reasonable doubt, as the case may be. The legal or persuasive burden may be contrasted with an evidential burden. The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact”. (footnotes omitted).

59. The Police Commissioner submitted that the reasoning of both Murphy C and the Full Bench of the IRC misconceived the onus under s 181F(2), and that they conflated the legal onus with a shifting evidentiary onus. The Police Commissioner noted that, either directly or indirectly, the Full Bench in Tredinnick (which was drawn on heavily both by Murphy C and the Full Bench in the current matter) relied upon a line of authority concerned with a different statutory scheme, namely s 181B of the then Police Service Act 1990 (NSW), and where the question of the shifting evidentiary onus was raised in the context of a failure to comply with the necessary procedural requirements (see Bigg v New South Wales Police Service (1998) 80 IR 434 (Bigg); and Oswald v New South Wales Police Service (1999) 90 IR 42 (Oswald)).

60. The Police Commissioner submitted that at no stage did the earlier decisions in Bigg and Oswald suggest that the “evidentiary” onus could shift to the Police Commissioner to establish the misconduct and, if they did, they would have the effect of shifting the “legal” onus. The Police Commissioner thus submitted that the suggestion that the “evidentiary burden” can shift to establish the police officer’s misconduct conflates legal and evidentiary burdens, and is contrary to s 181F(2) of the Act, which places the burden “at all times” on the police officer to establish that the removal was harsh, unreasonable or unjust.

61. In oral submissions, Mr Kirk reminded the Court of the basal distinction between legal onus and evidential or evidentiary onus, and drew extensively on an article by C R Williams, “Burdens and Standards in Civil Litigation” (2003) 25 Syd Law Review 165, in which the author highlighted the scope for confusion which sometimes arises from this distinction, and preferred to describe what is frequently described as an evidential onus as a “tactical onus”. In this context, Mr Kirk embraced the following observations of Sir Nicolas Browne-Wilkinson VC (as his Honour then was) in Brady (Inspector of Taxes) v Group Lotus Car Cos plc [1987] 2 All ER 674 at 686-687 (Brady) that:

“The evidential burden of proof is not the same as the basic burden of proof. According to well-known principles, the burden of proof lies normally on the person alleging the fact, but in the present case it is established on the person seeking to set aside the assessment. That burden of proof in technical terms stays throughout where it starts. If, on the other hand, evidence is given which in the absence of other evidence or other factors would be sufficient to discharge the burden, then as a matter of ordinary common sense and judicial method the tribunal will decide that the burden of proof has been discharged. That is all that is meant by a shift in the evidential burden. In my experience, every time the phrase ‘evidential burden’ is used it leads to error, particularly when the tribunal in question consists of laymen; for myself I think it could well be done without.” (emphasis added).

62. Mr Kirk accepted, on behalf of the Police Commissioner, that in a s 181E review, notwithstanding the language of s 181F(2), the Police Commissioner could come under a “tactical onus”: see, for example, Henderson v State of Queensland (2014) 255 CLR 1 at [90]; [2014] HCA 52 (Henderson). However, in embracing the observations in Brady, Mr Kirk urged the Court to eschew the language of “evidential burden” and to make it plain, in its reasons for judgment, that its use is not apposite and is apt to generate error when deployed in the context of a s 181E review, especially in circumstances where s 181F(2) emphatically states that the onus rests on the applicant for review “at all times”.

63. Mr Kirk’s fundamental submission was that the effect of the reasoning of Murphy C and the Full Bench was to shift and impose the legal burden on the Police Commissioner to establish that Mr Zisopoulos had in fact ingested drugs, the traces of which were found in his hair sample. He particularly fastened upon Murphy C’s statement at [189] that the Police Commissioner had:

“…not satisfied the evidentiary burden of proving, on the balance of probabilities, but adopting the approach to the assessment of the evidence espoused by Dixon J in Briginshaw v Briginshaw ([1938] 60 CLR 336), that the applicant used prohibited drugs, namely, MDMA and methylamphetamine”,

and the Full Bench’s statement at [29] that:

“‘Casting doubt’ on the appellant’s reasons is only the second stage of the process. It is not the end point but it does have the effect of shifting the evidentiary burden to the appellant. It is then for the appellant, through his case in answer, to demonstrate that the factual conclusions reached were justified”.

Mr Kirk further noted the Full Bench’s statement at [30] that:

“The allegation in this case is quite serious being an allegation of criminal conduct by a serving police officer. That requires convincing proof on the balance of probabilities. The Commissioner [Murphy C] was satisfied that the evidence before the appellant [the Police Commissioner], including the expert evidence, did not reach that standard.”   

64. These passages, of course, have to be read in their full context. This is a matter that was emphasised by Mr Hutley on behalf of Mr Zisopoulos and to which it will be necessary to return. On the other hand, Mr Kirk noted that the references to Briginshaw and to the need for “convincing proof” were not appropriate to a discussion of shifting evidentiary or tactical burdens, but was language that was more appropriately used in the context of discharge of a legal burden of proof to a particular standard.

Mr Zisopoulos’ submissions

65. Mr Hutley pointed to [59] of the Full Bench Decision, where it was recorded that the “findings of [Murphy C] were open to him on the evidence”. Murphy C’s key factual findings were contained in [180] and [187]-[188] of the First Instance Decision, in which he found that the expert evidence demonstrated that external contamination of Mr Zisopoulos’ hair, as a result of handling MDMA and methylamphetamine as part of his duties as a police officer, was at least “as likely” or “more likely” an explanation for the test results of his hair sample, than was ingestion of the drugs by him: see at [43] and [45] above. Murphy C also found, in aspects of his reasons emphasised by the Full Bench in its decision at [30], that:

• Mr Zisopoulos was on duty when both MDMA and methylamphetamine were accepted at Newtown Local Area Command one week before collection of the hair sample: at [159];

• The Police Commissioner apparently was not aware of this when reaching his decision: at [160]; and

• there were a number of occasions in the period leading up to the collection of the hair sample when it was “likely” that Mr Zisopoulos came into contact with the drugs: at [162].

66. Mr Hutley submitted that the Police Commissioner’s argument constituted a de facto challenge to the merits of the decision, and that Murphy C’s statement at [187] that the evidentiary burden may shift to the Police Commissioner did not amount to a reversal of burden that rested on Mr Zisopoulos to establish that his removal was “harsh, unreasonable or unjust”. He submitted that this was simply an observation concerning the practicalities involved in the resolution of competing and shifting evidentiary cases that arise in the course of a contested factual dispute and, in any event, was superfluous and not determinative of the success or failure of Mr Zisopoulos’ application because it was Murphy C’s factual findings which were the basis upon which Mr Zisopoulos ultimately succeeded.

67. In oral submissions, Mr Hutley made it clear that there was no argument that the legal burden remained at all times on his client to establish that the Police Commissioner’s decision to remove him from the Police Force was harsh, unreasonable or unjust. Moreover, he said, this was also clearly understood both by Murphy C and the Full Bench in their respective decisions. In this context, he submitted that there was no point or utility in making the declaration sought in prayer 1(a) of the Summons: see [56] above.

68. Secondly, he submitted that there was nothing novel or wrong about Murphy C, the Full Bench or the Tredinnick Bench referring to an evidentiary burden, especially when these references were juxtaposed with clear and distinct references to the legal burden remaining on the applicant for relief under s 181E(1) at all times. This distinction was a familiar one regularly drawn by courts and tribunals, including most recently by the High Court in Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715; [2020] HCA 27 at [29], [39], [42] and [66]; see also Henderson at [90]. Reference was also made to Momcilovic v R (2011) 245 CLR 1; [2011] HCA 34 at [665]; Purkess v Crittenden (1965) 114 CLR 164 at 168; [1965] HCA 34; and Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75 at [7]

69. The distinction was also referred to by Lord Donaldson of Lymington MR in Amoco Oil Co. v Parpada Shipping Co. Ltd(The “George S.”) [1989] 1 Lloyd’s Law Reports 369 at 370 (Amoco), in a passage cited both in Tredinnick (and in turn picked up by the Full Bench (at [25]) in the present case):

“I now turn to the burden of proof. It is trite law that the legal burden lies upon the claimant. He who alleges must prove. The appellants allege a short delivery and consequential loss and they must prove both. How they prove it and the evidential burden involved is another matter. Proof must be met by counterproof and that in turn by a reinforcement of the original proof (Smith v. Bedouin per Lord Shand at p. 79). If at any particular stage in the evidence one party would succeed, it is for the other party to adduce further or better evidence and, if he does so and thereby achieves a contingently winning position, the first party must do likewise or lose. In other words, the evidential burden swings or may swing between the parties throughout the hearing, but in the end, in the context of a claim for short delivery, the owner of the cargo must prove the short delivery if he is to succeed in his claim and the shipowner must either prevent his doing so or prove affirmatively that, although there was indeed a short delivery, it occurred in circumstances for which he was not responsible.”

70. Picking up the language of Amoco in written submissions, Mr Hutley submitted that there was no error of law on the face of the record, and that the references to evidentiary burden were:

“…simply an expression of the ex post facto evaluative judgments made by the IRC about the shifting evidentiary position that had occurred in real time in the course of the hearing. The references to shifting evidentiary burden do not concern a legal question or constitute a misstatement of the law, but rather a record of what had transpired to place the First Defendant in a winning position based on the evidence”.

71. Thirdly, Mr Hutley submitted that it was hardly surprising or remarkable that the IRC should engage in a discussion of shifting evidential or evidentiary burdens in circumstances where s 181F(1) very deliberately mandated an iterative approach to be followed when conducting a review under s 181E of a removal decision of the Police Commissioner pursuant to s 181D. This was most clearly seen in [28] of the Full Bench Decision, extracted at [50] above.

72. Fourthly, he submitted that references to “raising a doubt” were properly to be understood, in context, as raising a sufficient doubt to cast the evidentiary burden on to the Police Commissioner to sustain the basis for his decision to remove Mr Zisopoulos from the Police Force.

73. In relation to the passages relied upon by the Police Commissioner in Eaton, Mr Hutley submitted that the observations of Heydon J did not attract the support of the other members of the majority insofar as his Honour had held that “in proceedings under s 181E … the applicant bears the burden of proving that the crime was not committed”, that this observation did not form part of the ratio of the decision, and that to read his Honour’s observation as requiring a removed police officer to disprove the occurrence of the event is “simply unsustainable”.

Consideration: substance or semantics?

74. Mr Kirk accepted that if, on a proper reading, the references in the decisions of Murphy C and the Full Bench to evidentiary onus were to nothing more than what Professor Williams had described as the shifting or “tactical” onus (see [61] above), the basis of the appeal largely fell away. Of course, he did not accept that this was the proper reading of the decisions.

75. In my view, it is a proper reading, although there are sentences and phrases in both the decision of Murphy C and the Full Bench, as well as Tredinnick which, taken out of context or when read in isolation, might be thought to suggest otherwise. The reasons under challenge must, however, be read as a whole and must be considered fairly: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 29; [1996] HCA 6; Victoria v Commonwealth ("Payroll Tax case") (1971) 122 CLR 353 at 402; [1971] HCA 16; Anchor Products Ltd v Hedges (1966) 115 CLR 493 at 501; [1966] HCA 70; Polyaire Pty Ltd v K-Aire Pty Ltd (2005) 221 CLR 287; [2005] HCA 32 at [50]; Batterham v QSR Limited (2006) 225 CLR 237; [2006] HCA 23 at [20]; R v LK (2010) 241 CLR 177; [2010] HCA 17 at [85].

76. Critical to this reading is an appreciation that the Police Commissioner predicated his removal decision on his own satisfaction, to the Briginshaw standard, that Mr Zisopoulos had voluntarily ingested the drugs. He set out his reasoning process and the material and matters upon which he relied in the Reasons. In Briginshaw, Dixon J famously explored the relationship between a standard of satisfaction and the seriousness of the question calling for that satisfaction. In that case, one of adultery in a matrimonial cause, his Honour said (at 368) that:

“the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation.”

77. As explained at [31]-[32] above, the Police Commissioner was not obliged by statute to satisfy himself to the standard he prescribed but, having done so, he exposed himself to an attack on his decision by reference to the very standard of satisfaction he set himself.

78. The point is thus not that the Police Commissioner had a Briginshaw standard to meet either under s 181D or on a review of a s 181D decision under s 181E. Rather it is that, having predicated his removal decision on satisfaction to that standard, if the IRC, on review, reached the conclusion that the Police Commissioner could not have been so satisfied in light of the material in evidence before it, it is not difficult to understand how a conclusion that the removal decision was harsh, unreasonable or unjust could be warranted or justified.

79. Such a conclusion could be arrived at, moreover, without the removed officer necessarily needing to establish “not X”, where the Police Commissioner predicated his decision on the existence of “X”. If, for example, as in the present case, the Police Commissioner not only predicated his decision on X being the case on the balance of probabilities but also on being “comfortably satisfied that X was the case” given the seriousness of X, and the IRC concluded that he could not have been comfortably satisfied that X was the case, a finding that the removal was harsh, unreasonable or unjust would, at the very least, be open. Questions of degree may be involved.

80. Plainly, if the removed officer in fact convinced the IRC, on the balance of probabilities or even beyond reasonable doubt, that X was not the case, the more likely the conclusion could be reached that a removal based on X was harsh, unreasonable or unjust. The Full Bench made the same point at [46]: see [54] above.

81. Equally if, in his Reasons, the Police Commissioner had expressed the opinion that the strong possibility (falling short of “on the balance of probabilities”) that a police officer had done or been involved in X caused him to lose confidence in the officer, then demonstrating that the Police Commissioner could not have been comfortably satisfied of X would not, for that reason, result in a conclusion that the removal was harsh, unreasonable or unjust because the predicate of the Police Commissioner’s decision would not necessarily have been undermined. (Whether the existence of a strong possibility or a reasonable or strong suspicion would be sufficient to warrant removal so as to survive a s 181E review may depend on the context, as the example given in [32] above illustrates).

82. The central issue will always be whether or not the decision to remove the officer was “harsh, unreasonable or unjust”. These concepts overlap but are not synonymous. The three criteria may be established in various ways or by different means. And they are alternatives. So much is illustrated in the following well known passage taken from the joint judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; [1995] HCA 24:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

83. The nuanced nature of a s 181E review based upon the statutory criteria of harsh, unreasonable or unjust is one that the legislature has entrusted to a specialist tribunal in the form of the IRC. The IRC’s review is not “de novo” but, on the other hand, as Mr Kirk accepted in oral argument, is closer to a merits review than judicial review. Assessment as to whether a particular decision of the Police Commissioner engages the statutory criteria necessarily must have regard to the basis and reasoning employed by the Police Commissioner in any given case.

168. Unfortunately, no findings as to that issue were made. The statement at [188] that “the expert evidence in the present matter weighs heavily in favour of the applicant’s explanation of environmental contamination as the cause of the positive test result of his hair sample” falls short of a finding on that issue. Such a finding would, at least, have required an analysis of which of the experts’ various, inconsistent opinions should be rejected and why and which should be accepted and why. That was not done. No finding was made, on the balance of probabilities, at [188] or elsewhere that Mr Zisopoulos’s positive test results were due to contamination not ingestion.

169. In this portion of his reasons, Murphy C’s only actual “finding” was in [189] where it was said:

“I find that the respondent has not satisfied the evidentiary burden of proving, on the balance of probabilities, but adopting the approach to the assessment of the evidence espoused by Dixon J in Briginshaw v Briginshaw ([1938] 60 CLR 336), that the applicant used prohibited drugs, namely, MDMA and methylamphetamine”.

173. That “finding”, such as it was, was not directly relevant to Mr Zisopoulos’s case that the positive drug test results were due to contamination.

174. In order to reach a properly informed view as to the Murphy C’s reasoning process, it is important to identify what paragraphs [187] to [190] did not concern.

175. The language and expression of the reasoning at [187] to [190], in the context of the reasons as a whole, demonstrate that this reasoning does not relate to the Police Commissioner’s state of satisfaction on the balance of probabilities referred to in his statement of reasons in support of the removal order. In fact, the effect of the evidence before the Police Commissioner had been considered by Murphy C earlier in his reasons at [150] to [155], where it was noted that the Police Commissioner had preferred the evidence of Dr Lewis and Ms Lindsay that the applicant’s test results were ascribable to one-off or occasional use of the two prohibited drugs. In those paragraphs of Murphy C’s reasons, the removal was not found to be harsh, unreasonable or unjust on that basis, no doubt because the Police Commissioner’s finding was clearly open. In these circumstances, at [187] to [190], Murphy C, was not addressing whether the Police Commissioner’s conclusion was reasonably open on the material before the Police Commissioner. Furthermore, the terms of [187] to [190] do not support the contention that Murphy C reached the conclusion that the Police Commissioner could not have been satisfied, to the standard referred to in the Police Commissioner’s reasons, on the basis of the material before Murphy C. No such case was presented by Mr Zisopoulos. The Police Commissioner was not required to respond to such a case. As a result, it is not surprising that no such finding on that issue was made by Murphy C, at [187] to [190] or elsewhere in his reasons.

176. Murphy C was not, at [187] to [190], considering whether the removal was harsh, unreasonable or unjust because the Police Commissioner had set a standard of proof for himself in his statement of reasons which, on the material before IRC, Murphy C found was not met. This was not part of the case that Mr Zisopoulos had presented, in accordance with s 181F(1)(b). Murphy C’s language at [187] to [190] does not indicate that this is the case he was considering. Further and in any event, it is far from clear that a removal would be harsh, unreasonable or unjust simply on the basis that the IRC reached, having regard to different evidence, a different view on a relevant factual matter from the Police Commissioner, if on the evidence before the IRC it was open to reach the same conclusion that the Police Commissioner had reached in his statement of reasons. Neither the Police Commissioner nor Mr Zisopoulos made, or was required to make, submissions on such an issue before Murphy C since it never arose before him.

177. Nor does the reasoning at [187] to [190] relate to Mr Zisopoulos’s contentions that his removal was harsh, unreasonable or unjust because: Ms Abadir was not authorised to conduct hair sampling; the testing of his hair sample was invalid; or, the results were invalid because of failure to comply with relevant legislative requirements. Those parts of Mr Zisopoulos’s case were dealt with and rejected by Murphy C at [143], [145] and [149].

178. The remaining basis on which Mr Zisopoulos contended that his removal was harsh, unreasonable or unjust, which was under consideration by Murphy C at [186] to [190], was identified by Murphy C at [173] in the following terms:

“It is not in issue that the applicant’s hair sample tested positive for MDMA and methylamphetamine. The issue is whether those test results were due to voluntary ingestion of the drugs by the applicant or environmental contamination of his hair.”

179. Thus, it is manifest that the issue before Murphy C at [187] to [190] was whether, on the whole of the evidence before the IRC, Mr Zisopoulos had established that his removal was harsh, unreasonable or unjust because he had not, in fact, engaged in misconduct by voluntarily consuming prohibited drugs and the positive test results were the product of contamination. As has already been noted, Murphy C did not make a finding as to that factual issue, which he had identified at [11] and [173] as the foundation of Mr Zisopoulos’s case

180. The final step in Murphy C’s reasoning was that the conclusion at [190] that Mr Zisopoulos’s removal was harsh, unreasonable or unjust “follows” from Murphy C’s finding that the Police Commissioner had not satisfied the burden of proving, on the balance of probabilities, bearing in mind the Briginshaw considerations, that Mr Zisopoulos’s positive drug test was the result of consumption of prohibited drugs. Such a conclusion could only follow, however, if the Police Commissioner were under some obligation or burden to establish that fact. No other basis for concluding that Mr Zisopoulos’s removal was harsh, unreasonable or unjust was identified in Murphy C’s reasons as the basis for his ultimate conclusion reached, and the orders made, by him. Murphy C’s explicit foreshadowing of this approach at [142] confirms me in my view.

181. In these circumstances, it appears to me that, in this case, Murphy C’s reasoning process leading to his conclusion at [190] that Mr Zisopoulos’s removal was harsh, unreasonable or unjust involved imposing an obligation or burden on the Police Commissioner in the IRC proceedings to establish that Mr Zisopoulos had consumed illicit drugs. Indeed, Murphy C identified, at [187], that such a burden was imposed “when the applicant leads sufficient evidence to cast doubt on the respondent’s finding of misconduct”.

182. It was evident from the language in which Murphy C’s reasoning was expressed that, in a case where the removal order was based on a finding by the Police Commissioner of misconduct, if the applicant led “sufficient evidence to cast doubt on” that finding, it would always follow on Murphy C’s approach that the removal was harsh, unreasonable or unjust, unless the Police Commissioner established that the applicant had actually engaged in misconduct.

183. On a fair and not overly technical reading of the reasons as a whole including the passage at [187] to [190], Murphy C was not considering the tactical evidentiary burden of proof which shifts during the cases of the parties according to what evidence each party adduces from time to time. Despite using in [189] the words “evidentiary burden”, Murphy C was unequivocally reasoning in [187] to [190] that, once it was accepted that there was some, more than minimal evidence that cast doubt on the Police Commissioner’s conclusion that Mr Zisopoulos had engaged in misconduct by ingesting prohibited drugs, the Police Commissioner was required to prove on the balance of probabilities, bearing in mind the Briginshaw considerations, that the misconduct had occurred, if the removal was not to be found to be harsh, unreasonable or unjust. Such a requirement should not properly be described as a shifting “evidentiary burden” or a “tactical onus”.

184. Having regard to the reasons as a whole, I accept the Police Commissioner’s contention that the effect of Murphy C’s reasoning was to place the burden of proof and persuasion on the Police Commissioner in relation to whether Mr Zisopoulos’s positive test results were caused by misconduct by the voluntary ingestion of illicit drugs, after at least some doubt had been cast by Mr Zisopoulos on the Police Commissioner’s original findings to that effect.

Was Murphy C’s approach contrary to s 181F(2)

185. Section 181F of the Police Act provides for the procedure to be followed when conducting a review under s 181E. Some of the matters in s 181F(1)(a), (b) and (c) have been referred to already. Subsection (2) provides:

“(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.”

186. The use of the words “the burden of establishing” in the context of proceedings indicates that what is being referred to is “the onus of proof”, to use the words of the plurality in Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [76] where it was held:

“A claimant under s 181E of the Police Act bears the onus of proving that a dismissal was harsh, unreasonable or unjust [under s 181F(2)]. There is no equivalent provision in the IR Act, which in general terms empowers the IR Commission to determine its own procedures. In the Court of Appeal, Tobias AJA observed that in practice the IR Commission usually places the onus of proof on the applicant for relief, although the Full Bench has held that the employer must establish misconduct, where this is alleged in a case of dismissal. …”. (footnotes omitted)

187. Thus, s 181F(2) has the effect that the practice which has been held to apply in relation to the review of the dismissal of an employee on the ground that the dismissal was harsh, unreasonable or unjust under s 84(1) of the Industrial Relations Act does not apply in applications under s 181E of the Police Act. In relation to applications under s 84(1), the Full Bench held in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463-464:

“The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. …”.

188. The burden, which by virtue of s 181F(2) an applicant under s 181E(1) bears at all times, of establishing that the removal 181F(2) was harsh, unreasonable or unjust involves two aspects:

1. the applicant must establish all of the factual elements upon which the applicant relies to the requisite standard of proof; and

2. the applicant must make good the propositions that those factual elements justify the conclusion that the removal was “harsh”, or “unreasonable” or “unjust” on the proper construction of those words in s 181E(1) of the Police Act.

It was not in dispute in the present case that the requisite standard in this context was the civil standard of proof on the balance of probabilities.

189. What that burden actually entailed in Mr Zisopoulos’s case, as in the case of every other applicant under s 181E, depended upon the particular grounds put forward in his case presented in accordance with s 181F(1)(b). As explained above, the part of the case that was before Murphy C in [187] to [190] was Mr Zisopoulos’s contention that he had not engaged in misconduct by ingesting prohibited drugs and that his positive drug test was caused by environmental contamination.

190. Examples of the bases upon which an applicant might present a case that removal was harsh, unreasonable or unjust can be drawn from cases such as Byrne. These include:

1. the removal was harsh because of its consequences for the personal and economic situation of the officer or because the removal was disproportionate to the gravity of the misconduct in respect of which the Police Commissioner acted;

2. the removal was unreasonable because it was based upon inferences which could not reasonably have been drawn from the material before the Police Commissioner; and

3. the removal was unjust because the employee was not guilty of the misconduct on which the Police Commissioner acted.

191. There are no doubt other bases upon which it could be contended that removal by the Police Commissioner was harsh, unreasonable or unjust. Nonetheless, in all applications under Div 1C of Pt 9 of the Police Act, including those based on the grounds identified in Byrne, the IRC must also 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))”,

by virtue of s 181F(3). Thus, it is most significant that s 181D(1) establishes that the power of removal arises “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”.

192. As a result, it is unlikely that the burden of establishing that a decision to remove a police officer is harsh, unreasonable or unjust so as to justify the IRC’s intervention may be satisfied in a given case simply by “casting doubt” on the Police Commissioner’s reasoning process. Indeed, the use of such language, even coupled with the qualification that the doubt be “sufficient”, does not reflect the terms of the statutory test nor is it necessarily consistent with the process and considerations identified in s 181F and elsewhere in Div 1C of Pt 9 of the Police Act.

193. In relation to at least part of the case presented by Mr Zisopoulos, the effect of s 181F(2) was to impose on him, at all times, the burden of proving that he did not engage in the relevant misconduct and the test results could be otherwise explained. Merely leading sufficient evidence to “cast doubt” on whether he had engaged in misconduct was not sufficient to discharge the burden of establishing that his removal was harsh, unreasonable or unjust on the basis relied upon. Nor was it correct, as Mr Zisopoulos effectively submitted to Murphy C (as recorded at [139]), that it was not incumbent upon him to prove actual contamination but, rather, all he had to establish was that the risk of contamination was real and not a fanciful or unmeritorious claim.

194. It is true that Murphy C referred to the terms of s 181F(2) of the Police Act at [140] and said that this provision made it “clear that the applicant bears the burden of establishing that his removal from the NSWPF was harsh, unreasonable or unjust”. It is also true that the Full Bench in Tredinnick, from which Murphy C quoted at length, referred to s 181F(2) and endorsed a submission at [69] in the following terms:

“ Section 181F(2) may be construed as merely stating the general proposition that the applicant must establish his or her case. See also Commissioner of Police v Eaton (2013) 252 CLR 1 at [26], [69] and [76]; and Hudson v Commissioner of Police [2016] NSWIRComm 1031 at [12]. This proposition does not preclude the possibility that an evidentiary burden may shift during the proceedings. The structure of the review contained in s181F(1) must involve some shift in the burdens depending on the portion of the case being considered by the Commission: Starr v Commissioner of Police [2001] NSWIRComm 226 at [176].”

195. Nonetheless, the substance of the reasoning of Murphy C in the passage from [187] to [190] of his reasons, when read in the context of his reasons as a whole and in light of the case Mr Zisopoulos presented, was to adopt the practice applicable in s 84(1) applications set out in Wang, provided only that the applicant under s 181E(1) led “sufficient evidence to cast doubt on” the Police Commissioner’s finding of misconduct. This, however, is the “law or practice” that s 181F(2) rendered inapplicable in a review under Div 1B of Pt 9 of the Police Act.

196. Murphy C did not specify, in his reasons, how he determined whether “sufficient evidence to cast doubt on” the Police Commissioner’s finding of misconduct had been led. It may be that Murphy C accepted the submission made by Mr Zisopoulos that “it was not incumbent upon the applicant to prove actual contamination but, rather, the applicant had established that the risk of contamination was real and not a fanciful or unmeritorious claim”. If so, that was inconsistent with the operation of s 181F(2). In addition, a finding that a risk of contamination was real and not fanciful would not support a conclusion that that removal on basis of misconduct by ingestion was necessarily harsh, unreasonable or unjust, especially bearing in mind the mandatory consideration under s 181F(3)(b).

197. For the reasons given above, Murphy C’s reference at [187] to an “evidentiary burden” shifting to the Police Commissioner was inapt, given the task before Murphy C at that stage of his reasons for decision. The task, at that stage of his reasons, was to determine whether Mr Zisopoulos had discharged the burden of establishing that his removal was harsh, unreasonable or unjust on the basis of the case presented by him, namely that he had not engaged in misconduct by ingesting illicit drugs but that the positive test results were due to contamination.

198. In reaching his conclusion at [190] Murphy C did not proceed on the basis that the burden of establishing that the removal of Mr Zisopoulos from the NSW Police Force was harsh, unreasonable or unjust was, at all times, on Mr Zisopoulos and not on the Police Commissioner. The substance of Murphy C’s reasoning was that once Mr Zisopoulos had led “sufficient evidence to cast doubt on” the Police Commissioner’s finding of misconduct, the burden shifted to the Police Commissioner to establish that the removal was not harsh, unreasonable or unjust because the misconduct had in fact occurred. This, in my view, flows from the natural meaning of [189] and [190] in the context of the reasons as a whole, including [11], [142] and [173]. Such reasoning is contrary to the approach to the IRC’s task required by s 181F(2).

199. In the circumstances and in light of his reasons as a whole, Murphy C erred by failing to apply s 181F(2) in the review proceedings before him.

200. The use of expressions such as “evidentiary burden”, “an evidentiary burden [that] may shift during the proceedings” and “sufficient evidence to cast doubt on” is particularly unhelpful in applications under s 181E of the Police Act. This is because those expressions, which may be appropriate in application under s 84(1) of the Industrial Relations Act 1996 (NSW) (“IR Act”), do not reflect the approach inherent in, and terminology of, s 181F(2). Perhaps in this regard the maxim verba intentioni, non e contra, debent inservire should be kept in mind. Section 181F(2) specifies that the applicant has, “at all times”, the “burden of establishing that the removal was harsh, unreasonable or unjust”. Referring to a “burden” which “shifts” and evidence being “sufficient to cast doubt” is ill suited to proceedings governed by s 181F(2). The present case is an example of how using those expressions leads into error.

Did Murphy C’s approach involve jurisdictional error?

201. In light of s 181F(2) and the case presented by Mr Zisopoulos under s 181F(1)(b), the question was never whether the Police Commissioner had or had not satisfied a burden (however described) of proving, on the balance of probabilities and bearing in mind the Briginshaw considerations, that Mr Zisopoulos had engaged in misconduct by using prohibited drugs, as Murphy C’s reasons assumed in [142] and [189]. Because of his error in the application of s 181F(2), Murphy C identified a wrong issue and asked himself the wrong question. He also failed to exercise the jurisdiction conferred on the IRC by Div 1C of Pt 9 of the Police Act in accordance with those statutory provisions or exceeded the authority or powers given by those provisions. Accordingly, Murphy C’s decision was affected by jurisdictional error: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81].

202. On this basis, Murphy C’s decision is liable to be set aside.

The Full Bench’s decision

203. The Full Bench granted leave to appeal on a number of grounds but dismissed the appeal from Murphy C’s decision: Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073. The questions concerning whether Murphy C had failed properly to apply s 181F(2) of the Police Act were the subject of the grant of leave. The Full Bench also granted leave on the question whether Murphy C erred in not considering the public interest aspect of the decision to remove Mr Zisopoulos, as required by s 181F(3)(b). The appeal on this ground was rejected. No review has been sought in that regard. Leave was refused on other grounds concerning the adequacy of the evidence before the IRC at first instance.

204. The Full Bench, like Murphy C, relied on and explained the earlier decision in Tredinnick. Having regard to that decision, the Full Bench in the present case held at [23]:

“Thus unlike unfair dismissal proceedings, concerned with termination for serious misconduct in which the employer is required to prove the fact of misconduct, the Commissioner of Police is not required to do so – unless, as will be seen, an applicant succeeds in shifting the evidentiary burden. The obligation of the Commissioner extends no higher than answering the applicant’s case. The emphasised passages [from Tredinnick] in (1) and (2) at make that proposition clear. The emphasised sentence in (3) identifies the burden imposed on the applicant for review. It should be noted that the burden on the appellant [sic, applicant] is to demonstrate “the flaw or inadequacy in [the appellant’s] [sic, the Police Commissioner’s] reasons”. That, as the Full Bench went on to observe, may be done in a number of ways.”

205. The first sentence of this passage contrasts the position of an employer in a review of a dismissal under s 84(1) of the IR Act with the position of the Police Commissioner in a review of a removal under s 181E(1) of the Police Act. As explained in Wang, which has been referred to above, in a s 84(1) review, if the employee has been dismissed for serious misconduct involving criminal activity, the employer must establish, to the reasonable satisfaction of the IRC, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred on the balance of probabilities bearing in mind the Briginshaw considerations: Wang at 463-464. The Full Bench then said that the Police Commissioner in a s 181E(1) review, was “not required to do so – unless, as will be seen, an applicant succeeds in shifting the evidentiary burden”.

206. This latter statement leads irresistibly to the conclusion that the Police Commissioner does bear the burden of establishing on the balance probabilities, bearing in mind the Briginshaw considerations, that a police officer removed on the basis of misconduct, was guilty of misconduct if the applicant officer “succeeds in shifting the evidentiary burden”. This, however, is incorrect. It involves a misunderstanding of the nature of the an “evidential” or “tactical” burden and it is inconsistent with s 181F(2). Merely leading some evidence at one point in a hearing in relation to the issue of whether X occurred so that the tactical, evidentiary burden is shifted to the other party, does not mean that the other party thereupon bears the burden of establishing that X did or did not occur on the balance of probabilities. Section 181F(2) of the Police Act expressly provides that the burden of establishing that the removal is harsh, unreasonable or unjust, in all cases including cases of removal for misconduct, remains “at all times” on the applicant for review. This first sentence of [23] of the Full Bench’s reasons encapsulates the precise error into which Murphy C fell, especially at [142] and [187] to [190] in his reasons.

207. The problem with the Full Bench’s statement in [23] is not cured by the statement that the “obligation of the [Police] Commissioner extends no higher than answering the applicant’s case”. If, as in this case, the applicant’s case includes that he did not engage in the misconduct and the positive test results can be explained otherwise, there is never, by virtue of s 181F(2), a burden on the Police Commissioner to answer the applicant’s case by proving on the balance of probabilities, bearing in mind the Briginshaw considerations, that the applicant did engage in misconduct.

208. Furthermore, the error inherent in [23] is not corrected by the statement that “the burden on the appellant [sic, applicant] is to demonstrate “the flaw or inadequacy in [the Police Commissioner’s] reasons”. Section 181F(2) describes the burden as being “establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust”. A flaw in the Police Commissioner’s reasoning may lead to the removal being “unreasonable”, as explained in Byrne, which has been referred to above. But, where the applicant’s case is that the removal is “unjust” because the applicant did not engage in the misconduct found by the Police Commissioner, the burden remains “at all times” on the applicant to establish the factual foundation that the applicant did not engage in misconduct.

209. The error inherent in the Full Bench’s approach was confirmed by the following statement in [46] of their reasons:

“The respondent [Mr Zisopoulos] led sufficient evidence to cast doubt on the factual findings on which the appellant’s [the Police Commissioner’s] decision was based. Once that is done it falls to the appellant [the Police Commissioner] to prove to the requisite standard that the respondent voluntarily ingested the prohibited drugs.”

210. This comment concerned the evidence led before the IRC and whether, on that evidence, the Police Commissioner had proved on the balance of probabilities, bearing in mind the Briginshaw considerations, that Mr Zisopoulos had engaged in misconduct by ingesting the prohibited drugs. That approach is contrary to s 181F(2) in a case such as the present, where Mr Zisopoulos relevantly contended that the removal was unjust because he did not engage in misconduct and the positive test results were due to contamination.

211. This analysis of these passages from the Full Bench’s reasons is sufficient to establish that the Full Bench was wrong to conclude that Murphy C had not failed to comply with s 181F(2) when dealing with the s 181E(1) review.

212. One final comment, however, may be made. At [30], the Full Bench stated:

“The allegation in this case is quite serious being an allegation of criminal conduct by a serving police officer. That requires convincing proof on the balance of probabilities. The Commissioner [Murphy C] was satisfied that the evidence before the appellant [the Police Commissioner], including the expert evidence, did not reach that standard. Added to that was the evidence of which the appellant was not aware, or which was understated.”

213. On my reading of Murphy C’s reasons, he did not make a finding that he was satisfied that the evidence before the Police Commissioner, including the expert evidence, did not reach the requisite standard. Murphy C’s reasoning and consideration manifestly involved all the evidence before him and was not limited to evidence before the Police Commissioner. At least one reason why Murphy C did not make such a finding was that this was not the case that Mr Zisopoulos presented. Further and in any event, a removal may be “unreasonable” because the finding of misconduct by the Commissioner was not open on the material before him, as explained in Byrne. A finding that the IRC was not satisfied to the requisite standard on the material before the Police Commissioner does not establish that the finding was not open to the Police Commissioner on that material.

214. The Full Bench’s confusion appears to me to stem from a failure to identify clearly the case presented by the applicant for review as to why it is contended that the removal was harsh, unreasonable or unjust. As observed above, s 181F(2) imposes “at all times” on an applicant the burden of establishing that the removal was harsh, unreasonable or unjust which involves:

1. proving to the requisite standard the factual elements upon which the applicant relies; and,

2. making good the propositions that those factual elements justify the conclusion that the removal was “harsh”, or “unreasonable” or “unjust” on the proper construction of those words.

215. The reasoning of the Full Bench provides another example of why the use of expressions such a “shifting” burden, “evidentiary burden” and “casting doubt” should not be used in the context of review proceedings under Div 1C of the Police Act in which s 181F(2) expressly establishes the nature of the burden and the fact that it does not shift at any point from the applicant for review.

216. For these reasons, I am of the view that the Full Bench’s decision was wrong and the appeal against Murphy C’s orders should have been allowed. Nonetheless, because Murphy C’s orders are liable to be set aside on the bases set out above, the Full Bench’s decision and orders fall, in effect, with Murphy C’s decision and orders.

Conclusion and orders

217. Although the orders of Murphy C are liable to be set aside for jurisdictional error, it was appropriate for the Police Commissioner to exhaust his right of appeal to the Full Bench before seeking judicial review in this Court. Further, Mr Zisopoulos did not oppose an extension being granted. In these circumstances, the time in which the Police Commission may seek review of Murphy C’s orders should be extended to the date of filing of the summons in this matter.

218. There do not appear to me to be any discretionary reasons why relief should not be granted in the present case, and I did not understand that Mr Zisopoulos contended that there were any substantial grounds on which relief of the nature sought in the summons should not be ordered.

219. Although the Police Commissioner has sought declaratory relief in prayer 1 of the summons, it does not appear to me to be necessary since it in effect merely repeats the terms of s 181F(2) and otherwise it is more appropriately dealt with by way of the reasons for judgment which explain the operation of s 181F(2) of the Police Act in the present case.

220. The parties have not made submissions on costs. Consequently, I would not propose to make any order in relation to costs at this stage.

221. Accordingly, the orders that the Court should make are:

1. The time for filing the application for judicial review in respect of the orders of Murphy C made on 7 March 2018 in proceedings 2016/00384458 in the Industrial Relations Commission of New South Wales is extended to 22 November 2019.

2. Proceedings 2018/00084006 in the Industrial Relations Commission of New South Wales are removed into this Court and the orders of the Full Bench of the Industrial Relations Commission made on 4 October 2019 in those proceedings are quashed.

3. Proceedings 2016/00384458 in the Industrial Relations Commission of New South Wales are removed into this Court and the orders of Murphy C made on 7 March 2018 in those proceedings are quashed.

4. Proceedings 2016/00384458 are remitted to the Industrial Relations Commission to be heard and determined in accordance with law.

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Decision last updated: 28 September 2020