Commissioner of Police v Eaton

Case [2013] HCA 2

HIGH COURT OF AUSTRALIA

HEYDON, CRENNAN, KIEFEL, BELL AND GAGELER JJ

COMMISSIONER OF POLICE  APPELLANT

AND

DAVID GRANT EATON & ANOR  RESPONDENTS

Commissioner of Police v Eaton

[2013] HCA 2

8 February 2013

S230/2012

ORDER

1. Appeal allowed.

2. Set aside orders (a), (b) and (c) of the Court of Appeal of the Supreme Court of New South Wales made on 6 March 2012 and, in their place, order that the appeal to the Court of Appeal be dismissed.

3.Set aside the orders of the Full Bench of the Industrial Relations Commission of New South Wales made on 24 March 2012.

4.The appellant pay the first respondent's costs of the proceedings in this Court.

On appeal from the Supreme Court of New South Wales

Representation

M J Leeming SC with M C L Seck for the appellant (instructed by Bartier Perry)

S Crawshaw SC with P F Lowson and A L Howell for the first respondent (instructed by Walter Madden Jenkins)

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Commissioner of Police v Eaton

Jurisdiction – Subject matter jurisdiction – Industrial Relations Commission of New South Wales ("IR Commission") – Probationary police officer dismissed by Commissioner of Police under s 80(3) of the Police Act 1990 (NSW) – Probationary police officer applied to IR Commission under s 84(1) of the Industrial Relations Act 1996 (NSW) claiming dismissal was harsh, unreasonable or unjust – Whether IR Commission has jurisdiction under Pt 6 of Ch 2 of the Industrial Relations Act to determine unfair dismissal claim regarding dismissal under s 80(3) of the Police Act.

Statutes – Statutory interpretation – Implied repeal – Part 6 of Ch 2 of the Industrial Relations Act 1996 (NSW) allows public sector employees to challenge dismissal as harsh, unreasonable or unjust – Section 80(3) of the Police Act 1990 (NSW) permits Commissioner of Police to dismiss probationary police officers from the New South Wales Police Force at any time and without reason – Inconsistency and incoherence between provisions of the Industrial Relations Act and the Police Act – Whether Parliament intended the general provisions of the Industrial Relations Act to affect the operation of the earlier specific provisions of the Police Act.

Words and phrases – "generalia specialibus non derogant", "harsh, unreasonable or unjust", "implied repeal", "legislative intention", "probationary police officer", "unfair dismissal".

Industrial Relations Act 1996 (NSW), Ch 2 Pt 6, s 84(1).
Police Act 1990 (NSW), Pt 9 Div 1C, ss 80(3), 218.

  1. HEYDON J.   This is an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales ("the Court of Appeal").  The appellant is the Commissioner of Police ("the Commissioner").  David Grant Eaton ("the first respondent") is a probationary constable whom the Commissioner purportedly dismissed.  The second respondent is the Industrial Relations Commission of New South Wales ("the Commission").  The appeal…

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Commissioner of Police v Eaton [2013] HCA 2
Case
[2013] HCA 2
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Commissioner of Police against a decision of the Court of Appeal of New South Wales. The dispute concerned whether the Industrial Relations Commission of New South Wales had jurisdiction to hear an unfair dismissal claim brought by a probationary police officer who had been dismissed by the Commissioner of Police under section 80(3) of the *Police Act 1990* (NSW). The probationary officer contended that their dismissal was harsh, unreasonable, or unjust, and sought to have this reviewed under Part 6 of Chapter 2 of the *Industrial Relations Act 1996* (NSW).

The central legal issue before the High Court was one of statutory interpretation: whether the general provisions of the *Industrial Relations Act 1996* (NSW) regarding unfair dismissal claims applied to a dismissal made under the specific, and more restrictive, power granted to the Commissioner of Police by section 80(3) of the *Police Act 1990* (NSW). This involved determining if Parliament intended the broader unfair dismissal regime to override the specific power to dismiss probationary police officers at any time and without reason, or if the specific provisions of the *Police Act* were intended to prevail.

The High Court allowed the appeal, holding that the general provisions of the *Industrial Relations Act 1996* (NSW) did not apply to dismissals made under section 80(3) of the *Police Act 1990* (NSW). The Court reasoned that applying the unfair dismissal provisions would create an internal inconsistency within the *Police Act*, as section 80(3) expressly permits dismissal without reason, while the unfair dismissal regime requires consideration of reasons. Applying the principle of statutory construction that general provisions do not override specific provisions where inconsistency would arise, the Court concluded that the specific power under the *Police Act* was intended to be exclusive in this context. The Court therefore set aside the orders of the Court of Appeal and the Industrial Relations Commission, dismissing the probationary officer's claim.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders (a), (b) and (c) of the Court of Appeal of the Supreme Court of New South Wales made on 6 March 2012 and, in their place, order that the appeal to the Court of Appeal be dismissed.

3. Set aside the orders of the Full Bench of the Industrial Relations Commission of New South Wales made on 24 March 2012.

4. The appellant pay the first respondent's costs of the proceedings in this Court.

Background

Background to the litigation

Section 80 may be compared with another provision in the Police Act, s 181D. The parties correctly agreed that that section does not apply to probationary constables. Section 181D creates a power to remove non‑probationary police officers. The s 80(3) power to dismiss probationary constables is much less restricted than the s 181D power to remove non‑probationary police officers. Section 181D provides in part:"(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. …(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."The s 80(3) power of dismissal can be exercised "at any time". The s 181D power of removal can be exercised only after notice has been given, an opportunity to make written submissions has been supplied, and the duty to take them into consideration has been carried out. The s 80(3) power can be exercised "without giving any reason." A notice issued under s 181D must set out the grounds on which the Commissioner proposes to remove the police officer. And if a police officer removed by a s 181D order applies to the Commission for a review of the order under s 181E(1) on the ground that the removal is harsh, unreasonable or unjust, the Commission's first duty is to consider those reasons. In contrast, s 88(b) of the IR Act creates only a power to consider the reasons for the dismissal of an employee which is the subject of a claim under s 84(1).The facts On 11 May 2007, the first respondent was appointed as a constable of police on probation in the NSW Police Force. From about April 2008, there were disputes between the first respondent and his superiors about his conduct. On 4 February 2009, Assistant Commissioner Corboy issued a notice foreshadowing the first respondent's dismissal from the Force pursuant to s 80(3) of the Police Act. On 22 July 2009, Assistant Commissioner Corboy, as the delegate of the Commissioner, dismissed the first respondent.The legal issue It was common ground that the power to dismiss probationary constables under s 80(3) of the Police Act and the power to remove non-probationary officers under s 181D are distinct. The former power cannot be employed in relation to non-probationary officers, and the latter power cannot be employed in relation to probationary constables. It was also common ground that the capacity of a removed non-probationary officer to obtain a review of the removal under s 181E did not apply to a dismissed probationary officer. And it was common ground that a decision to dismiss a probationary constable under s 80(3) is reviewable for jurisdictional error. In the Court of Appeal, that proposition was incorrectly treated as an answer to the Commissioner's case[1]. But the question is not whether a s 80(3) decision is reviewable in that sense. The question is whether, in addition, a s 80(3) decision can be challenged under s 84(1) of the IR Act. That legal issue arises in the following way. [1]Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30 at [148].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEYDON J CRENNAN, KIEFEL AND BELL JJ GAGELER J
The conclusion reached by the Full Bench is, with respect, correct. The Full Bench construed s 218 as leaving intact the power of the IR Commission to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act[96].[96]Commissioner of Police v Eaton (2011) 207 IR 209 at 226 [63].Conclusion and orders The IR Act may apply generally to the Police Act, but not where the operation of the former produces an internal inconsistency in the latter. Such an effect, which would be reached if a decision under s 80(3) of the Police Act were subject to review under Pt 6 of the IR Act, cannot be taken as intended. The conclusion reached concerning the non-application of Pt 6 of the IR Act to a decision made under s 80(3) may further be tested by reference to s 218 of the Police Act and the rule of construction mentioned at the outset of these reasons[97]. In each case, the general provisions of the IR Act do not apply in the face of the special, and inconsistent, terms of s 80(3) of the Police Act.[97]At [46]. The appeal should be allowed and the orders proposed by Heydon J made. The question in this appeal is whether Pt 6 of Ch 2 of the Industrial Relations Act 1996 (NSW) ("the IR Act") applies to the dismissal by the Commissioner of Police of a probationary police officer under s 80(3) of the Police Act 1990 (NSW) ("the Police Act"). The Court of Appeal of the Supreme Court of New South Wales (Bathurst CJ, Handley and Tobias AJJA) concluded unanimously that it does[98]. I agree with that conclusion and would dismiss the appeal.[98]Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30.Principles The question is wholly one of statutory construction: to be determined through the attribution of legal meaning – and consequently legal operation – to the text of the two statutes in a context which includes their mutual referencing and the history of their amendment. The resolution of the question is guided by common law principles which reflect and inform conventional legislative practice and thereby form part of the "rules of interpretation accepted by all arms of government in the system of representative democracy"[99].[99]Zheng v Cai (2009) 239 CLR 446 at 456 [28]; [2009] HCA 52 quoted in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 592 [43]; [2011] HCA 10. One principle (reflecting an approach to legislative drafting of very long standing) is that the text of a statute is ordinarily to be read as speaking continuously in the present[100]. A corollary of that principle is that, where a statute is amended, the statute and the amending statute are "to be read together as a combined statement of the will of the legislature"[101]. Another principle (reflecting at root no more than a convention of language) is that the legal meaning of a statutory text ordinarily corresponds with the textual meaning most appropriate to its context[102].[100]Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 986 [104]; 190 ALR 601 at 626-627; [2002] HCA 30; R v Ireland [1998] AC 147 at 158. See eg Attorney-General for Queensland v Attorney-General for the Commonwealth (1915) 20 CLR 148 at 174; [1915] HCA 39; Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) (2003) 219 CLR 325 at 337-338 [9]; [2003] HCA 65.[101]Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463; [1995] HCA 44.[102]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78]; [1998] HCA 28 quoted in Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]; [2000] HCA 7; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]; [2009] HCA 41.

Ratio Decidendi

Legal Principle Established

Established by: HEYDON J, CRENNAN, KIEFEL AND BELL JJ, GAGELER J

It may be said that the Commissioner has long had the power to dismiss or remove police officers. The antecedent provision to s 80(3) was r 11(b) of the Police Rules 1977, made under the Police Regulation Act 1899 (NSW), which provided that a probationary member of the NSW Police Force could be discharged or dismissed by the Commissioner "without any reason being assigned". On the other hand, an unfair dismissal regime has operated in New South Wales since at least 1991[37]. The possibility that it may have operated earlier was addressed in submissions filed subsequent to the hearing of the appeal, but this need not be gone into. Under the Industrial Relations Act 1991 (NSW), the regime was expressed to apply "despite … any other Act"[38], but that provision was not re-enacted in the IR Act in 1996. The operation of the IR Act by reference to the Police Act is the subject of express provision, s 218 of the Police Act, which will require consideration later in these reasons.[37]The Industrial Arbitration (Unfair Dismissal) Amendment Act 1991 (NSW), Sched 1 inserted such a regime into the Industrial Arbitration Act 1940 (NSW). The Industrial Relations Act 1991 (NSW), s 750(1) repealed the 1940 Act and, by Pt 8 of Ch 3, re-enacted an unfair dismissal regime.[38]Industrial Relations Act 1991, s 255(1)(a).The structure and operation of the Police Act The NSW Police Force established by the Police Act is comprised principally of the Commissioner, the Senior Executive Service and other police officers[39]. The Senior Executive Service is comprised of executive officers[40]. Aside from those officers and the Commissioner, all other police officers are referred to as non-executive officers[41]. The Commissioner has responsibility for the management and control of the NSW Police Force, subject to the direction of the relevant Minister[42].[39]Police Act 1990, s 5.[40]Police Act 1990, ss 32(1) (definition of "executive officer"), 33(1).[41]Police Act 1990, ss 62, 63.[42]Police Act 1990, s 8(1). Non-executive police officers include probationary constables. As the term suggests, such constables are on probation until they are confirmed as officers of the NSW Police Force. In O'Rourke v Miller[43], Gibbs CJ said that "probation is a time of testing or trial and a probationer whose conduct, character or qualifications fail to meet the test need not be confirmed in the office to which he was provisionally appointed."[43](1985) 156 CLR 342 at 350; [1985] HCA 24. Clauses 13 and 14 of the Police Regulation 2008[44] deal with the process of confirmation of appointment as a constable. In addition to completion of initial basic training and a period of probation, cl 13 requires a satisfactory fitness report concerning the probationer before an appointment can be confirmed. Amongst the matters which the fitness report is to address pursuant to cl 14 are the probationary constable's integrity and conduct. Integrity is a value of the NSW Police Force; so much is stated in the Police Act[45]. It is against this background that ss 80(1) and 80(3) respectively provide that, subject to the Act and its attendant regulations, the Commissioner may appoint a person as a police constable and may dismiss a probationary police constable at any time and without giving any reason.[44]Made pursuant to Police Act 1990, s 219.[45]Police Act 1990, s 7.