Commissioner of Police v Eaton

[2012] HCATrans 260

[2012] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S230 of 2012

B e t w e e n -

COMMISSIONER OF POLICE

Appellant

and

DAVID GRANT EATON

First Respondent

INDUSTRIAL RELATIONS COMMISSION OF NSW

Second Respondent

HEYDON J
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 OCTOBER 2012, AT 10.16 AM

Copyright in the High Court of Australia

MR M.J. LEEMING, SC:   May it please the Court, I appear with my learned friend, MR M.C.L. SECK, for the appellant.  (instructed by Bartier Perry)

MR S. CRAWSHAW, SC:   If the Court pleases, I appear with my learned friends, MS P.F. LOWSON and MR A.L. HOWELL, for the first respondent.  (instructed by Walter Madden Jenkins)

HEYDON J:   The second respondent has filed a submitting appearance, I think.  Yes, Mr Leeming.

MR LEEMING:  Thank you, your Honour. The question on the appeal is whether the jurisdiction of the Industrial Relations Commission concerning unfair dismissals – I use that term for a reason, deliberately being vague – is engaged following the dismissal of a probationary officer, pursuant to section 80(3) of the Police Act 1990. The answer to that question, in our submission, will involve first of all a consideration of both the Police Act and the Industrial Relations Act.  Within the Police Act the most important provisions are the three provisions dealing with dismissal of officers. One of them is section 51, an ancestor of which was considered by this Court in Jarratt’s Case; I will come to that.

Section 80(3) is the provision with which we are concerned and all of those in stark contrast with a suite of provisions commencing with 181D, which deal with the dismissal of confirmed police officers.  Now, there is to be seen, we say, from the textual differences there and some contextual differences, a scheme which on its face excludes ordinary rights of unfair dismissal of persons in the nature of Mr Eaton who have been probationary constables and the subject of an exercise of the section 80(3) power.  Section 218 buried in the back of the Act in the Miscellaneous section is central to the case for two quite different reasons.  On a fair reading of the reasons of the Court of Appeal it was determinative.  We say that is quite wrong.

We say, in fact, it is determinative in our favour because it is section 218 that displaces the principles upon which my learned friend relies of implied repeal and engages the principles identified in paragraph 1 of our outline of oral argument.  This is a case where if ever there were two pieces of legislation informing different Acts but which are enmeshed each with the other dealing with overlapping subject matters, they fall to be construed together, harmoniously, in a Project Blue Sky sense but - although there are two Acts.

Section 218 confirms that and so, with great respect, one, we disagree with the construction of 218 given by the Court of Appeal and embraced by my learned friends and, secondly, we disagree with the methodology that has been imposed.  I am really taking this from paragraphs 2 and 9 of my learned friend’s submissions.  He says, in effect, there are two strings to his bow.  First of all, I have to get over the very difficult threshold of implied repeal and, secondly, even if I do that then 218 knocks me out.  I say, no, 218 means this is a case where a legal meaning is to be afforded to a bundle of legislation, two Acts on the same subject matter which in terms – see 218 – refer each to the other and the approach to be taken is one looks at the inconsistent provisions.  There is a deal of inconsistency on the face.

There is real work to be done in affording legal meaning which has to diverge from the literal mean of provisions but when one does that one will reach, we say, the same conclusion as the Full Bench of the Industrial Relations Commission. Having said all that, this is a case principally about statutory construction. I think the bulk of what I will be doing this morning is taking your Honours to the provisions. In the course of doing that, most of the points that I wish to make will be made and I will be able very concisely to return to the three points: the text of section 80, the contrasting provisions otherwise, and what we say is the correct meaning of 218.

If I can then deal with the legislation, first of all with the Industrial Relations Act, I am in your Honours’ hands entirely.  Your Honours can proceed from the form of that Act as annexed to our submissions or from Reprint 6 which is almost entirely accurate for the relevant dates.

HEYDON J:   Is it entirely accurate for the relevant sections?

MR LEEMING:   With one minor exception.  I will tell the Court about that.  Very happily, I can say that the Police Act was reprinted only a few weeks after the dismissal and commencement of proceedings in the Commission and it is entirely accurate, if the Court is relying upon Reprint 9 of the Police Act.  In the Industrial Relations Act, the starting point for present purposes is section 83.

I will try for that reason consistently to refer to section 83 and section 80 sub (3) of the Police Act because for our side we found it terribly confusing. Section 83 of the Industrial Relations Act in Part 6 of Chapter 2 applies to the dismissal of any public sector employee - subsection (1)(a).  That includes a police officer; no question about that.  The definition is in the dictionary.  Subsection (2) gives an exempting power through the regulations.

CRENNAN J:   Do you treat a probationary constable as a police officer?

MR LEEMING:   Yes, absolutely.  He or she is also deemed to be an employee, which matters for some aspects of this Act but is not directly relevant to the matters that concern us.  Subtracting then from the general statement in 83(1A) is a scope to exempt by the regulations relied upon by my learned friend in the Court of Appeal and the Court will see (2)(b), which picks up in terms:

employees serving a period of probation or qualifying period –

Now, regulations have been made pursuant to that exempting provision and so a class of probationary employees are excluded from the application of part in that fashion.  There is no dispute that Mr Eaton is not within that excluded class, that is why we are here.  He is not within that excluded class for reasons perhaps I should make plain.  If the Court were to go to page 295 of the appeal book in paragraph 82 and 83 of Justice Tobias’ reasons, one has the relevant extracts of the Industrial Relations (General) Regulations 2001, page 295, paragraph 82 of the reasons, and your Honours can see that first of all in the head of the paragraph the:

period of probation . . . is determined in advance –

Mr Eaton’s was not.  Secondly, it must be “3 months or less” in (i), and for police constables, except in very unusual circumstances, it is a minimum of 6 months before those men and women can go on the streets wearing weapons and deploy them.

Thirdly, his Honour Justice Tobias in paragraph 83 says that clause 6(2) is of relevance perhaps, and there is no need to go into this in any detail. That is a further reason why the clause does not apply. There may be a question over whether there is a dismissal under statute or a dismissal under a contract of employment, but for at least the first two reasons there is no question that the regulations do not exempt Mr Eaton. Returning to section 83 of the Industrial Relations Act, subsection (3) refers to something my learned friend relies upon at the very end. Erroneously it carves out Part 5 of the Police Service Act 1990.

Now, the Police Act 1990 was originally enacted as the Police Service Act 1990. This is one of a number of occasions where the statute has not caught up with it. Of course I accept that is a reference to the Act now known as the Police Act 1990. Part 5 to which I will come deals with more senior police officers, SES officers, and there is no question that they are excluded, doubly excluded in fact, from these provisions.

GAGELER J:   Mr Leeming, are you coming back to section 83(2)?

MR LEEMING:   I am because your Honour is asking me, I was not otherwise intending to.

GAGELER J:   I just wanted to ask a question about paragraph 7 of your written reply, the second sentence of that paragraph.

MR LEEMING:  Any regulation made under s83(2)(b)?

GAGELER J:   Yes, is that a submission related to the scope of the regulation‑making power?

MR LEEMING:   I can see how your Honour might read it in that way.  I am not here to say that the scope of the regulation‑making power would exclude a regulation that extended say a period of probation for five years, if that is what is beneath your Honour’s question.

GAGELER J:   No.  Well, it is related to what is beneath my question.  Would it be possible to have a regulation that exempted a class of employees serving a period of probation where the class is defined by the nature of the employment?

MR LEEMING:   In my submission, yes, and it is not something that arises today.  It is possible if one did make a regulation in those terms then there might be a question about whether it was within the scope.  I am not sure whether that would be controversial or not, but we would say yes, indeed.

GAGELER J:   But might not the regulation‑making power itself provide an answer to the reconciliation of the two statutes?

MR LEEMING:   I certainly do not exclude the possibility of it doing so and I embrace the proposition that one looks at all of these provisions and construes them together.  The fact that the regulation‑making power in terms picks out and singles out for special treatment at least a sub‑class of probationary employees is significant, we would say.  It evinces an intention that is certainly not foreign to the scheme of the IR Act that a class of people whose employment needs, in the future at some stage, to be confirmed is not intended to be part of this regime. 

Now, of course, there is a difficulty because, to flesh out the extent of the exemption one has to go to the actual regulation that has been made and I have pointed out that does not assist us in this case.  But we do say yes, it does support what we say about the absence of inaptness in reading constraints into what prima facie are generally worded provisions.  Does that assist your Honour?

GAGELER J:   Yes, thank you.

MR LEEMING:   I am grateful.  I was intending to come to that and it was more efficient to do it then and there.  More briefly, can I draw the Court’s attention to two things in subsection (5) of 83.  The first is that there is an extended definition of “dismissal” such that if an employee is dismissed by reason of the commission of an offence that is deemed to be a dismissal to engage these provisions, and one unusual thing about the New South Wales Police Force is that it is an offence – 201 of the Act – to fail to obey a lawful order, and that is the sort of conduct that is quite apt to lead to exercises of these various powers to dismiss either confirmed or probationary officers. 

The second thing is, to answer your Honour Justice Heydon’s question, the definition of “federal award”, if your Honours are using the reprint, is the only provision that was amended subsequent to the dismissal and commencement of proceedings in the Commission.  If your Honours have references to fair work – the entire definition of “federal award” is different in the Act in its relevant form and that is completely irrelevant for the purposes of this appeal.

HEYDON J:   But the correct definition is:

Federal award means an award within the meaning of the Workplace Relations Act 1996 of the Commonwealth.

MR LEEMING:   Yes, your Honour.  Then 84 in the Industrial Relations Act is the creation of a freestanding statutory right that has two elements, as your Honours can see at section 84(1).  The first is the employer dismisses an employee and the second is an employee makes a claim.  The claim has to be that the dismissal is harsh, unjust or unreasonable. 

If those two jurisdictional facts are satisfied, then the employee has a statutory right to apply to the Commission for something called the claim to be dealt with under this part, and I will emphasise and continue to emphasise the word “claim” to distinguish it from the modified regime that applies when a confirmed police officer is dismissed and a different form, aptly but misleadingly called judicial review, takes place, aptly because necessarily the Commission is compelled to exercise its modified power judicially.  Only the five remaining judicial members of the Commission can hear and determine those – and they are no longer called claims – those applications.  It is quite different from judicial review but there are a number of similarities.

So, 84 then is the gateway and to be contrasted in due course to 181D and following the modified provisions under the Police Act.  Section 85 permits this new statutory provision to commence no later than 21 days after the dismissal with, in subsection (3), a right to apply for an extension of time for cause, and, again, that is something that modified in provisions I will take the Court to later.  Section 86 imposes an obligation on the Commission to:

Endeavour . . . to settle the applicant’s claim by conciliation.

Section 87 imposes an obligation to determine the claim if conciliation has been unsuccessful, and engages the various orders in 89 to which I will come. In determining the claim, section 88 identifies some permissible relevant considerations:

may, if appropriate, take into account –

They include whether a reason was given, if it was given, whether it had a basis in fact, “whether the applicant was given an opportunity to make out a defence”, whether there was a warning, all things related to questions of procedural fairness, “nature of the duties of the applicant immediately before the dismissal”, “whether or not the applicant required reinstatement or re‑employment” and “such other matters as the Commission considers relevant.” So, a very wide‑ranging freestanding inquiry, in no way confined to the matters that were before the donee of the power dismissing the employee. What is absent from section 88 is any Peko‑Wallsend mandatory relevant consideration that needs to be taken into account.

These provisions, of course, apply to all sorts of employees these days; nurses, teachers in public schools and the like. The sorts of orders that can be given by the Commission are set out in section 89, and the Court will be familiar with their general nature. Before leaving this Act, can I identify just two other provisions that are relevant either to my or my learned friend’s arguments while we are there? The first is section 6, which has a “Definition of industrial matters”, and the Court probably knows from the written submissions there are references to what is and what is not an industrial matter through the Police Act. Section 6(1) defines an industrial matter quite generally:

matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.

There are examples that are given.  Can I identify three of those?  In paragraph (b) of subsection (2), the remuneration of employees, paragraph (e):

the termination of employment of . . . any person or class of persons in an industry –

It is perfectly plain that the dismissal of an employee that might engage the unfair dismissal regime is an industrial matter.  Paragraph (g):

procedures for the resolution of industrial disputes –

Your Honours, the reason I identified those three undoubted examples of industrial matters can be found in section 146 of the Act, which my learned friend relies upon in subsection (2), and I rely upon in subsection (1). If the Court has 146, the first subsection identifies functions of the Commission. The first three of them point squarely to three of those examples of industrial matters that I have just taken the Court to:

(a)       setting remuneration and other conditions of employment,

(b)       resolving industrial disputes,

(c)       hearing and determining other industrial matters,

We would say very comfortably, unfair dismissal, that freestanding statutory right, squarely would fall within 146(1)(c), the hearing and determination. If it cannot be conciliated then the exercise of power, taking into account the section 88 matters and making a section 89 order.

My learned friend, properly, directs the Court to 146(2) where here there is what on its face looks like a mandatory relevant consideration.  That is the “public interest” in the exercise of its functions, including, we would accept, of course, the unfair dismissal function.  Public interest is perhaps a notoriously vague word and it has a very particular slant in this section.  The objects of the Act which are to do with harmonious industrial relations, to put it very, very generally, and the state of the economy of New South Wales and the likely effect of its decisions on that economy.

Quite a different form of public interest is invoked and required to be borne in mind in the modified provisions that apply in that process which I have admittedly misleadingly styled “judicial review” under 181D and so on.  Your Honours, those are the provisions in the Industrial Relations Act that I take the Court to.  Most of the burden of my task is to persuade your Honours that when that Act is to be construed in connection with what is now known as the Police Act 1990 there is no authority for the Commission to decide a claim that a probationary constable has been unfairly dismissed.

It is convenient to start with the structure and that can be seen both by the table of contents and by section 5 of the Act.  There is something called “The NSW Police Force”.  If the Court has section 5, it identifies four component members of it.  That articulation of the composition of the New South Wales Police Force informs very much the structure of the Act.  So the Commissioner has Part 4 devoted to his or her functions, obligations, duties and rights.

The SES members – that is the second component/subclass of the Force – are dealt with in Part 5. All other police officers are dealt with in Part 6. Administrative officers are dealt with in Part 6A. Temporary employees are dealt with in Part 7.

HEYDON J:   A probationary constable is not a temporary employee.

MR LEEMING:   No, he is not and so we accept he or she is a police officer.  However, although it is certainly possible and desirable to pass over the general provisions relating to employment of all members of the police force in Part 8 and also to pass over Part 8A complaints, or perhaps only to note in passing that it is the insertion of that very large Part 8A that has led to the renumbering that has it in turn led to a couple of errors, in our submissions, that I will take the Court to in a moment.

Part 9, “Management of Conduct within the Police Force” is the provision, as the Court can see, which contains provisions in Division 1 for taking action which is going to fall short of dismissal, and there are elaborate provisions for review of that in 173 and following and, secondly, and most relevantly in terms of the second aspect of my argument which is the anomaly of probationary constables enjoying rights that are wholly aligned with, say, nurses and teachers, and very distinct from the carefully…..rights of confirmed police officers.

That comes out of provisions 181D to 181K in Divisions 1B to 1D and 181D is, as I identified, the third main provision in the Act conferring “power to remove a police officer”. This time it confirmed police officer. Part 10 contains section 201. No need to go there; that is the provision that makes it an offence to disobey a lawful order. I am going to come back in detail to 181D and following. One can pass over Parts 10A and Part 11 and then in Part 12 and the miscellaneous parts, that is where the Court will find section 218.

Now, that puts it in context and your Honours already observed that the section that was the source of the power exercised in relation to Mr Eaton is section 80 which is found in Part 6. Can I go there now, for the purpose of first comparing it to section 51, the Jarratt provision dismissing SES officers, and then contrasting it with the 181D and following provisions, misleadingly judicial review provisions in the event there has been a dismissal of a confirmed officer.

CRENNAN J: Just on that note, would section 181D be capable of applying to a probationary constable?

MR LEEMING:   We would say no, and in an appeal which is full of disputes between us at the Bar table, your Honour has lighted upon a matter where there is, as I understand it, unanimity.  There certainly was below.

CRENNAN J:   Sweetness and light?

MR LEEMING:   Sweetness and light.  We both agree that it cannot.  We would say that if ever there was a clear case for application of Anthony Hordern principles, when one sees the directness of section 80(3) at any time without giving any reason - and one thing you cannot do under 181D is exercise the power at any time; you have to give reasons and there has got to be notice – it is a very clear case, we would say, where there is exclusivity.  So there is an implied negative.  That certainly was common ground.  In other words, the only way to dismiss a probationary constable is through 80(3).  I do not apprehend that sense has changed today.

So, turning to the text of section 80, can I identify in subsection (1) something that recurs in the particular nature of the police force, the requirement that the appointed person be of good character.  There are references I will take the Court to, to the integrity of officers in the police force and the police force as a whole.  There is a requirement in subsection (2) that he or she be appointed on probation according with the regulations, “is to be appointed” are words of command, we would say, uncontroversially.  The regulations that matter are regulations 12, 13 and 14.  One place where they may be found is page 37 of the materials attached to our submissions.  They are also reproduced in the judgments below.

It is convenience if I go there now to deal with a couple of matters. If the Court has regulation 12 of the Police Regulation 2008 – I am at page 37 of our bundle of statutory materials – this is impacts upon the question of the regulation that I referred to. So that person is to be appointed on probation for a period of a year or for a longer or shorter period, but not less than six months. The Court will remember the three‑month provision in the current Industrial Relations Regulation. There is scope to waive it if you have previously served as a police officer somewhere else, in sub regulation (2) and there is a provision about seniority in sub regulation (3).

Now, having been appointed a probationary officer which is the only way into the force at this level – I think one can come in as an SES member without going through this, but at the lower levels this is the gateway in – then regulation 13 qualifies this second step – we would say inherent in the very notion of probation, something has to be proved, that is why it is apt to call these people “probationary constables”.  The confirmation that is inherent in the notion of probation is subject to the three specified matters:

(a)the successful completion of initial basic training, as determined by the Commissioner, and

(b)      the completion of the period of probation, and

(c)      a satisfactory fitness report –

Fitness is not merely medical fitness.  Fitness reports are the subject of the last regulation I wish to take the Court to, 14, which is headed “Fitness report for probationary constables”, and again there is a negative command in (1):

The appointment of a probationary constable is not to be confirmed unless –

there has been a report by a designated officer that he or she is –

fit to discharge satisfactorily the duties of constable.

Again, it is not altogether surprising that one, there is a long history of probationary constables and two, this period of probation, given the important powers that constables exercise in the community, demand a possibly lengthy period of probation.  So the elements of fitness report are set out in subclause (2):

(a)       medical . . . 

(b)      aptitude for the discharge of the duties of constable, and –

Then there is another reference to “integrity” –

(c)      competence, integrity, performance and conduct.

are to be dealt with in the fitness report.  I do not think I need to take the Court to any of the balance of that regulation or any subsequent regulation.  So that fills out – if I return to section 80 – the appointment power in section 80(1).  The dismissal power that was exercised in this case, of course, is in subsection (3) and that contains three terms that I have already identified.  I will do it now hopefully for the last time. 

The subject of the power probationary police officers and the power may be exercised “at any time and without giving any reason”. Now, that is similar – not identical with but similar to the section 51 power that applies to SES officers. Can I go there immediately?

GAGELER J:   May I ask you a question about the relationship between subsections (1) and (3) before you do that? 

MR LEEMING:   Yes.

GAGELER J:   You drew our attention to the power of confirmation of appointment in regulation 13.  Is non‑confirmation of appointment simply part of the process contemplated by subsection (1) or is it dismissal, within the meaning of subsection (3)?

MR LEEMING:   I suppose like many questions the answer depends on what your Honour means by “non‑confirmation of appointment”.  In a sense there is non‑confirmation of appointment at all times until either there has been dismissal or resignation or discharge for medical reasons, or some other reason that removes the person from the force.  Until there has been confirmation the person remains a probationary police officer.  In other words, as far as the legislation goes there is nothing I can point to to identify a particular non‑confirmation power. 

Your Honour may be thinking of some of the earlier legislation that is the subject of appeals in this Court which have quite different regimes and I can take your Honours to that in due course.  But here there is no separate step of non‑confirmation.  The Act is what it is and the regulation merely requires, in a qualified way, there to be confirmation.

GAGELER J:   So, if a person is appointed as a police officer on probation for a period and the period ends without confirmation of appointment is that person dismissed within the meaning of subsection (3)?

MR LEEMING:   I take your point.  No.  I mean, the fact of the matter is there are probationary constables who have been probationary for years.  It is difficult in the factual world to cease being a probationary constable in less than a year because one has to do the remaining three components of a course, conducted by Charles Sturt University, leading to an associate degree, each of those components takes 16 weeks. 

If one is sick or one fails and applies again or one takes maternity leave in the course of it one can easily imagine probationary constables that are continuing to be probationary constables.  They do not suddenly drop out, they are still being paid.  How legally that works may be answered by 12(1)(b) of the regulation, certainly there is power to direct that the person serves additional time as a probationary, and there is no maximum to that in the body of the regulation.

CRENNAN J:   But, as you noted before, Mr Leeming, it does put one in mind of Wurth and Tully and the observations of Chief Justice Street to the effect that, I think if I recall correctly, refusal to appoint to a permanent position at the end of a probationary period is not a dismissal and that of course then bore on the jurisdictional issue, and I think what Justice Gageler is trying to elicit from you is whether, you know, there is something short of dismissal that is available in the context of non‑confirmation of a probationary ‑ ‑ ‑

MR LEEMING:   I am not here to say that there is.  I accept that in a voluntary way the police officer in a whole lot of ways can exit but the question your Honours are directing to me is whether the Commissioner or his delegate can cause that long serving probationer, like a long serving midshipman who never passed his lieutenant’s exam to leave the Royal Navy, and there is no other power that I am here to point to. 

That is different from the provisions, unusually, for example, where, as one can see, defectively in some of these cases where there was no power to dismiss early a probationary and one had to wait until the very end in O’Rourke, a bizarre legislative regime, eyebrows were raised by the members of the High Court but that was that case.  Now this is different, we do have that power undoubtedly.

The only questions are to what extent may it be reviewed.  Just on that front, of course, we – contrary to something which might be inferred from the reasons of Justice Tobias in the Court of Appeal, we accept that the exercise of the section 80(3) power is susceptible to review, for jurisdictional error, including absence of procedural fairness.  The question is whether some provisions in the Industrial Relations Commission are available, that is the question of construction.  But we are certainly not here to say that the exercise of power under subsection (3) of section 80 is unreviewable.

Now, I have got more to say about section 80 and the words that are used, but if I can first of all compare with 51 then go into the detail of 181D so that the Court can see the context on which the submissions are being made and then I can return to, I think, what lies behind your Honour Justice Crennan’s question to me. I wanted to correct something that is perhaps misleading in our submissions in relation to section 51, so this is:

An executive officer may be removed from office at any time for any or no reason and without notice –

Your Honours may have thought, from what is said in paragraph 13 of our submissions, that it was that formulation, 51, that was considered by this Court in Jarratt’s Case, Jarratt v The Commissioner of Police 224 CLR 44. It is true that that was the form that that section was in at the time this appeal was heard but the legislature had very quickly, having lost at first instance before Justice Simpson, amended the legislation.

It was common ground in Jarratt that an earlier form of section 51 was in play. The easiest way to see that, if your Honours have Jarratt, is to go to page 60 of volume 224 CLR and in a footnote to the joint reasons of Justices McHugh, Gummow and Hayne, footnote (49) – I am sorry for the font, but one can see the history. It is correctly set out in paragraph 49 originally:

removal on the recommendation of the Police Board.

Then, as set out in the text in the body of paragraph 49, at the time Mr Jarratt was removed, then after Justice Simpson’s decision in 2002 the Act was amended to include those words “for any or no reason and without notice”. It was common ground in Jarratt that whether procedural fairness needed to be afforded was to be determined on the previous legislation, not the form as it presently is.

HEYDON J:   We really need to leave out the three lines beginning “considered in Jarratt” do we not, from paragraph 13?

MR LEEMING: Yes, your Honour. Now, lastly, in Part 5, dealing with executive officers, could I invite the Court to go to section 44 of the Police Act.  It is one of two provisions identified in 218.  It is something that is at the forefront of my learned friend’s argument, I think, and it dovetails, perhaps unnecessarily, with the provision I took the Court to in the Industrial Relations Act making it clear beyond any argument that executive officers could not approach the Commission complaining of unfair dismissal. 

Section 44 has two, perhaps three, relevant provisions. The first is subsection (2), which excludes from the scope of industrial matter, as defined in another Act, employment of executive officers. So, here is the first example, clear beyond day of what Francis Bennion would call, indirect express amendment. One cannot obtain the legal meaning of section 6 of the Industrial Relations Act what is an industrial matter just by looking at that section, one needs to look at that together with, so far, subsection (2) of section 44.

There is also subsection (2A) which excludes Part 6 and Part 9 of that Act in relation to the employment of an executive officer, and can I, while we are there, refer the Court to subsection (7), there is an uncompromising no “prohibition, certiorari or mandamus, or for a declaration or injunction” clause that is not much different from what the Privy Council considered in…..Case and plainly on its proper construction would not exclude review for jurisdictional error by the Supreme Court of New South Wales.

For reasons that are probably obvious, there are quite substantial similarities between section 51 and section 80(3). “At any time” is identical and 80(3) has “without giving any reason” which is perhaps slightly less forceful than “for any or no reason and without notice”. All that is in stark contrast with the provisions that apply to the overwhelming majority of the police force, the confirmed police officers who are neither probationary nor temporaries nor SES.

The power to dismiss them is found in section 181D. There was formerly 181A, B and C, which were special provisions, now repealed, their effect is spent, that enabled the Commissioner to dismiss a confirmed officer by reason of material in Commissioner Wood’s Royal Commission, and those provisions were exercised I think on a number of occasions. No need to go there, but that is the reason why we do not have A, B and C and we start at D.

Section 181D permits an order in writing to be made by the Commissioner removing from the force if the Commissioner does not have confidence in the officer’s suitability to continue as a police officer, having regard to four things: “competence, integrity, performance or conduct”. There is a qualification in subsection (2) for Commissioner level. Natural justice, to an extent, is ensured or mandated by subsection (3) – 21 days written notice, obligation to take into account written submissions. It is also confirmed in subsection (4), so reasons are mandated, obviously in contrast to 80(3).

Then there is what I would call a futurus provision in subsection (7) which, in my submission, at least arguably is effective. Perhaps there is a question about whether it is wholly effective in its terms or whether there is still some scope for judicial review in the Supreme Court. It does not arise in this case. But a particular means of review, which I have been calling judicial review, is permitted in Division 1C, which is the carve‑out from subsection (7) of 181D.

The answer to the question I just pointed to perhaps now comes in (7)(a) which expressly confirms the jurisdiction of the Supreme Court. There are probably discretionary considerations that apply if one is turning down the “judicial review proceedings” in the Commission set out in Division 1C, commencing at 181E.

CRENNAN J:   What about the point that I understood to be made in argument in Jarrat and accepted by some of the judges, perhaps in particular by Justice Callinan at paragraph 134, and that was that section 51 and section 181D are capable of standing together and they are applicable in different circumstances, circumstances of urgency and circumstances where urgency is not a consideration? I am just picking this point up in the context of you distinguishing section 51 and section 80(3) and what is provided for in relation to section 181D.

MR LEEMING:   Yes.  I take your Honour’s point.  I may be wrong about this, I think his Honour Justice Callinan was the only – it is unnecessary to reasoning because of the do or die ‑ ‑ ‑

CRENNAN J:   I know the focus was on 51 and procedural fairness, yes.

MR LEEMING: Quite, and existence. But, yes, there is qualified acceptance which goes against me to an extent by his Honour on the question of, if I can use this word, compatibility between something like 80(3), namely, section 51, and 181D. Again I say ‑ ‑ ‑

CRENNAN J:   Go back to your common position about section 181.

MR LEEMING:   Yes, and I go further and maintain it is the right position because the contrast is just so stark.

KIEFEL J: Mr Leeming, the fact that some of these critical provisions, including section 51 and Part 9 were either amended or completely inserted subsequent to the Industrial Relations Act 1996, does that tell us anything about an approach necessary to be taken to the construction of the two Acts or is it neutral?

MR LEEMING:   I think I am going to say it is something that supports me and my learned friend is going to say it is something that supports him.  At a higher level, it is part of the enmeshing, each with more entanglement, each with the other, because it is not merely – and, of course, the provisions get amended repeatedly in an extraordinarily complicated way.

KIEFEL J:   That is a factor that Justice Handley refers, I think on more than one occasion.

MR LEEMING:   I have something to say about that because we use it for the opposite purpose.  There is, to an extent, certainly an available conventional approach of implied repeal and later specific provisions having their own force and subtracting from the generality of what precedes them in a conventional way of construction.

KIEFEL J:   But that is not the starting point.

MR LEEMING:   We would say that what makes this unusual – what makes this, to be candid about it, completely different from Ferdinands is that one does not have a freestanding regime that has a whole lot of incompatible features with another freestanding regime.  Here we have something which is entangled which has on about 20 occasions references, each to the other, and at all times has had 218 – the key to it – identifying some relationship between them.

In answering your Honour’s question we would say this is a case where primarily the legal meaning of the combined provisions will be obtained simply by looking at the body of law as it is now, at the relevant time in 2009 and doing one’s best to identify what is the least unattractive legal meaning of the whole.  I say least unattractive for a purpose because there is no perfect solution to this problem.

KIEFEL J:   Does the enmeshing that you refer to which you rely upon to require an approach of synthesising, as much as one can, the two Acts, does the enmeshing reinforce the presumption that the two Acts are meant to be read together so that the historical adaptation of the Act by reference to the Industrial Relations Act is a message that the presumption operates?

MR LEEMING:   Yes, we say that exactly.  Because, I am about to descend into – perhaps it is convenient to concisely ask the Court to go to the most recent appellate decision that we have found that deals with these principles.  Your Honours should have on the Bench a copy of the decision of Trajkoski 41 WAR 105. The leading reasons are those of his Honour Justice Buss, Justice Owen agreed. I just want to take the Court to one page, which contains paragraph 50. It is page 116. Going back to an earlier decision of this Court, when the Interpretation Act (NSW) did, in terms, provide that amending legislation had to be read as a single whole – it does not anymore - that is Sweeney v Fitzhardinge.  His Honour said:

It is well‑established that where two or more statutory enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly –

This is more than overlapping, this is – I am using the language of enmesh or entanglement because, in my submission, that is a fair description of the extent to which different provisions are applied and modified in different ways under this combined regime.  We have also given your Honours a copy of Sweeney v Fitzhardinge, there is no need to go there, but there his Honour Sir Samuel Griffith you do not need any Interpretation Act to get here and this Court said the same in Commissioner of Stamps v Telegraph Investment Company 184 CLR 453 at 463. No need to go there. What Justice Kirby said, that is reproduced in paragraph 51 of Trajkoski, certainly resonated for me, especially the bracketed words:

Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation.

Now, that is what we would say is the appropriate course to adopt.  Your Honours have seen so far just the beginning of the enmeshing or entanglement of these two regimes that, in my submission, makes this is a very, very strong case for the application of that principle.  Of course if one has, what one might call “ordinary express amendment”, delete those words – or as we saw in Jarratt’s Case, insert the words “at any time for any or no reason” in the section, then there is no question that you have to read the amending provision with the original Act because that is textural amendment.  The recurring approach of parliamentary draftsmen in this regime is “indirect express amendment”, which is helpful because as the amending legislation goes through you can see, as the Court will see in just a moment, exactly what the force has.  But, the fact that that alternative approach has been adopted does not, in our submission, subtract from that being the appropriate principle.

So to return to section 181E, the premise is that there has been an exercise of the 181D power, dismissal for want of confidence on a confirmed police officer.  Your Honours will recall that under the Industrial Relations Act the recurring word was a “claim”.  The two jurisdictional facts were dismissal and then a claim of unjust, unreasonable or harshness.  Here the recurring word appropriately is “review”.  So 181E identifies “Review generally” and here the police officer may apply for a review of the order that the removal was “harsh, unreasonable or unjust”.  There then follow about a dozen provisions, which distinguish themselves from the way in which a claim under the unmodified Acts, say made by a nurse or a teacher, would play out.

I will just deal with them in order, if I might. The first of those is in section 181E(3) and this is advantageous to the dismissed, confirmed officer because here, like many cases of judicial review say in the Federal Court, the decision‑maker is under an obligation to provide the bundle of materials as the Court can see in 181E(3). That does not exist for a nurse or a teacher. Then in 181F(1) there is quite a different procedure to be adopted than the very free flowing provisions in section 88. As the Court may recall there were no mandatory relevant considerations. There are a whole lot of things that the Commission can take into account including anything it thinks appropriate.

The first step is to look at the reasons for review. The second step is to look at the applicant’s case and then the third step is to look at the case presented by the Commissioner. So this is quite unusual. This is commanding the Commission to do its job in a particular order and in a particular way, and each of those three things are conspicuous by their absence in section 88. These are things that must be considered. They are mandatory relevant considerations by the Commission. Then there is 181F(2), which requires the applicant to discharge:

at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust.

And, so that there is no doubt about it, it adds –

This subsection has effect despite any law or practice to the contrary.

An appropriate reading of law in that sense would be Briginshaw and would include common law principles we would say.  “Practice to the contrary” can be seen in decisions of the Commission extracted conveniently enough at page 324 of the appeal book there in Justice Tobias’ reasons, when dealing with this very point.  His Honour reproduced the same extract of the same decision on which I rely, Wang v Crestell Industries Pty Ltd (1997) 73 IR 454.

Understandably where, as might often be the case, exercise of power to dismiss is because of belief of criminal activity and it is easy to see how that could apply, given section 201 of the Police Act.  Normally “onus”, as the Full Bench there said:

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.

So there in a very dramatic way is a reversal adverse to the dismissed confirmed officer of the ordinary state of affairs in the Commission.  Now, can I turn to 181F(3).  In addition to 181F(1) mandatory relevant considerations here are two more.  It might be thought that (3)(a) does not add very much, how could the Commission determine one of these things without having regard to the interests of the applicant, so my reliance really is placed on paragraph (b), “the public interest” and here we have a different articulation of public interest from that general provision in 146(2) that my learned friend relies upon.

Yes, we agree that the Commission is required to have regard to the public interest through two different means.  He says that is there anyway for a probationary constable because of 146(2) but that is economic public interest.  This:

public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force –

And as your Honours know, “integrity” is part of that fitness review at the end of probation and one of the gateways, the fit and proper person in order to become a probationary constable.  If I can then turn to 181G, there is a series of six examples of indirect express amendment.  Paragraph (a) matters very little.  Paragraph (b) again is subtractive of the rights enjoyed by police officers because the Court may recall nurses and teachers, if I can keep using for convenience that general expression, have 21 days and they can apply for extra time under section 85(3).  Confirmed police officers, using this review proceeding, only have a non‑extendable period of 14 days to kick off proceedings.

Subsection (c) has a small but different role.  There is a requirement in section 86 that a conciliating judicial member take no part in the ultimate determination of a claim.  One might think that is not particularly surprising.  It is to be contrasted with section 173 – no need to go there – which gives a right to someone to object to the hearing of their claim if the judicial officer has participated but here it is a mandatory requirement.

Subsection (d) does not matter; (e) does not much matter but one can see, again, the difference.  Recurring through this is a detailed legislative intention to alter, often to attenuate against the interests of the dismissed confirmed police officer the provisions that would otherwise apply.

GAGELER J: Mr Leeming, can I just ask you about that? Do you not read Division 1C through the prism of section 181D(7) simply as a self‑contained regime that picks up, to some extent, the provisions found elsewhere?

MR LEEMING:   I do.  I am content for it to be read that way.

GAGELER J:   Yes.

MR LEEMING:   In a way this is like section 79, picking up State laws and making them applicable in a melded way.  These are surrogate State laws being applied to a review by a dismissed confirmed police officer.  Perhaps if there is a distinction that matters more than any and fleshes out what I have been referring to, the importance of the review provisions, it is 181G(f), because the new concept is introduced of new evidence.  If ever there is a provision that makes it plain that this is a very different creature, and I am here agreeing with your Honour Justice Gageler, a new and different self‑contained regime is picked up, new evidence may not be adduced.

It is perhaps poorly drafted but the premise is it is to be read together, one might think, with 181E(3), “the documents and other material on which the Commissioner has relied” are required to be handed over to the applicant.  That constitutes the evidence.  If the applicant wishes to point to anything else then one has, in effect, some sort of fresh evidence application set out in the way mandated by 181G(f).

CRENNAN J:   Of course, leave can be given in relation to ‑ ‑ ‑

MR LEEMING:   Of course, and readily so, and must be given in certain circumstances in paragraph (ii) and a great deal of attention, as your Honour can see, has been given to the facility for extra evidence to be given.  My point is simply this, the notion of new evidence itself strongly confirms this is closer to review rather than a freestanding ‑ ‑ ‑

CRENNAN J:   De novo.

MR LEEMING:   ‑ ‑ ‑ statutory right standing on top of the dismissal, which is what his Honour Justice Handley referred to.  So, your Honours can see the detail of subsection (2) fleshing out how leave can be given and how in some circumstances it must be given.  The detail does not matter.  It is the fact that there is this regime to expand the evidentiary basis, which is quite starkly different from that which applies to nurses and teachers. 

In 181H - I do not know whether your Honours are minded to hear from me about this - but I am told there are occasions, and quite regularly, when the employer goes into the witness box to defend his or her dismissal of the nurse or the teacher.  That is quite different from what is mandated in 181H because they are not compellable unless the Commissioner gives leave and section 181H(2) makes a very high standard, one might think, for the applicant to make out extraordinary grounds exist for giving leave in those cases.

I am almost at the end, happily.  Section 181I, again, does something which reflects the potential which is, we would say, with respect, real for criminality to be involved in the exercise of the dismissal under these provisions, which turn on a lack of confidence, and so given that, protection in a place where the rules of evidence do not apply is given by reference to 128.  As your Honours can see in 181I, again, that is not something that applies for nurses and teachers. 

Lastly, in 181K, I have said a couple of times accurately, but misleadingly one might call this judicial review.  Section 181K is the provision that requires judicial members of the Commission to be conducting this freestanding quasi‑judicial review process.  Non‑judicial members are not permitted to do so.

So those provisions are new and more recent and many of them pick up in terms and alter the operation of the Industrial Relations Act and they are the provisions that apply to the overwhelming majority, one might think, of dismissals from the New South Wales Police Service.  There is more of them, and I am not going to take the Court to them, but in the provisions commencing with 173, which is activity taken by the Commissioner short of dismissal, it might involve demotion, it might involve restricted duties, it might involve something lesser like a warning, once again, as your Honours can see in 173, there are the more minor category of non‑reviewable actions, which I can put to one side, but then if there be reviewable action, and your Honours can see subsection (2) identifies matters that affect the police officer’s status or his or her salary.

Then again there is a separate proceeding set out, review with lots of qualifications, in the Industrial Relations Commission. There is an error in our submissions which my learned friends have correctly pointed out, 173 has a complicated history, it postdates the provision on which my learned friend relies, 218. So if your Honours would correct what we said in paragraph 14, it is wrong to say, as we do in paragraph 14, that:

Part 9 Division 1, [was] enacted at the same time as s80 and s218 –

Your Honours might just cross out those words and accept my apologies.  Now, can I turn to the provision which was dispositive before the Court of Appeal and which is the second string to my learned friend’s bow, which is section 218?  I think we are still in furious agreement at the Bar table that this is another provision that cannot possibly mean what it says.  The Industrial Relations Act 1996 is not affected by anything in this Act. I have taken your Honours only to about half of the provisions which squarely say here is how the Industrial Relations Act is picked up in a modified way for freestanding procedures.  I have also taken your Honours to one provision, section 44, which is one of the provisions picked up on 218(2).

Can I first of all tell your Honours something about the history of this?  Its words have remained the same, save for the references to statutes, as originally enacted.  Wherever your Honours can see “Industrial Relations Act 1996” was written “Industrial Arbitration Act 1940”. In 1991 ‑ ‑ ‑

KIEFEL J:   It was section 117 in the 1940 Act, was it?

MR LEEMING:   It was section 117, and I said 1991 and I am wrong.  In 1993 two changes happened.  Instead of being section 117, it became section 218, and your Honours actually have in my learned friend’s helpful bundle of materials the provision that achieved that.  There is no need to go there, but it is page 21 of his bundle, item 10.  The same Act made another change.  It did so in item 5.  That was to replace all references to the Industrial Arbitration Act 1940 by references to the Industrial Relations Act 1991.

Then the only other change that happened to this provision was that which can be found on page 31 of my learned friend’s bundle in a 1996 Act, Statute Law (Miscellaneous Provisions) Act (No 2) 1996. In Schedule 4, item 4.40[1], those references to Industrial Relations Act 1991 were replaced by references to Industrial Relations Act 1996. In 1993, a whole lot of other parts to do with complaints and a few other things were inserted into the middle of the Act. That was the reason for the renumbering.

I say all that because it is fairly plain that an available construction of this was that it was intended to fend off any notion of implied repeal, that this 1990 Act somehow impliedly, save in respect of sections 44 and 89 to which I am about to come, impliedly revealed the 1940 Industrial Arbitration Act.  It is quite appropriate in more recent legislation to put provisions like 218(1) in for that purpose.

If that be right then that function was entirely spent once the 1940 Act was replaced by the 1991 Act, and then again by the 1996 Act.  That is the first peculiarity about it.  It looks as though they have been updating changes to the names of the legislation without attending to the underlying meaning. 

The second, if I may so, respectfully, criticism I have is that it is very difficult to give any meaning to the concluding words of subsection (2).  It is quite plain that subsection (2) qualifies the otherwise unqualified obligations or content of subsection (1) and two provisions are singled out for special attention, sections 44 and 89.  They still may have their affect upon the Industrial Relations Act, but it is, with respect, very hard to see what those concluding words or any provision of the Industrial Relations Act 1996 could have. That is after all, one might think, not affected by subsection (1), so how would subsection (1) limit any of its provisions? It is not necessary for the Court to go there, but I just make the point this is a “difficult to construe” section.

KIEFEL J: Is it possible that section 218 is meant to apply one way, so to speak, that is, that the Industrial Relations Act is not meant to be read by reference to the Police Act?

MR LEEMING:   I think that is, in a sense, what my learned friend is saying, and we say that, with respect, cannot be so, and we are in another happy territory of common ground, and quite appropriately so.  All of those litany of provisions which pick up and qualify and affect the operation of the Industrial Relations Act must, we say, be given their meaning in the terms.  So 21 days goes down to 14 days, that ‑ ‑ ‑

KIEFEL J: But, there is a distinction, is there not, between how section 218 might refer to the terms of the Industrial Relations Act as distinct from its operation?

MR LEEMING:   Accepting that, nonetheless, we would say one has the earlier privative type provisions that say if you are, say, a confirmed police officer and you are dismissed there is nothing else you can do except go down the special division which has the new and freestanding and qualified, modified versions of the Industrial Relations Act applying. 

So, what I have put very cumbersomely is this. The starting point in section 83 of the Industrial Relations Act is any public service employee who is dismissed can put their hand up for unfair dismissal, and on these specific regimes, one of which I have taken the Court to from 181D and following, is not something which is identified in 218, and we say must, on its proper construction, subtract from the otherwise general language of section 83 of the Industrial Relations Act.

So your Honour is right, and there are two aspects to it. There is the qualifying and attenuating aspects of it, and giving some extra rights too, but there is also the gateway aspect of it, and necessarily, we say, those provisions which provide the modified or attenuated regime also have an effect at the gateway, in other words, confirmed police officers do not have a choice to take unmodified 21 days, section 88, open standing no relevant considerations or to take the review provisions starting with 181D. It is only the latter and that is a necessary effect on the Industrial Relations Act. 

It is that which is the unpacking of what I said when we submit that 218(1) cannot mean what it says, that is to say, its legal meaning is necessarily different from its literal meaning because otherwise one would have this provision in the miscellaneous part at the very end wagging the dog, all of those provisions which cannot have a force if the generality of section 83 in the Industrial Relations Act means what it says.

KIEFEL J:   But can you take the question of the possibility that section 218 is addressed only to the construction of the Industrial Relations Act one step further?  That is to say, to try to give some meaning to it, that the Industrial Relations Act, where it is meant to operate other than with respect to the Police Act, is not to be construed by reference to anything that is said in this Act.  That is what I really intended to say in the first place when I said can you read it to operate only one way with respect to the construction of the Industrial Relations Act by itself?

MR LEEMING:   Your Honour has therefore identified a certain sensitivity on my part to 218.  I do not disagree with your Honour.  It is only one way.  It is not a complete one‑way street.  It has a lesser meaning than its literal meaning, but I accept completely it is identifying a relationship between these two pieces of legislation and that relationship is a one‑way street.  The first question is was the Court of Appeal wrong to say it is – I think in Justice Tobias’ words – “a complete answer” and we say one has to do a lot more work, in order for it to be a complete answer. 

One has to identify what its legal meaning is and it certainly is something less than wherever you see a provision that has not expressly been amended then it is in play, in its unamended form.  That is what is grappled with by the Full Bench of the Commission when they say the essential aspects of the scheme under the Police Act are preserved, notwithstanding 218. 

So it certainly has some force, but not enough radically, we would say, to subvert something which is not expressed, save in the language of section 80 to which I will come, but necessarily follows from the nature of the force and the nature of probationary appointment, namely there are all these extra rights that somehow are opened because they fall within the literal meaning – that is probationary police officers – fall within the literal meaning of public sector employees. 

Now, there is more to say because in addition to the qualification in subsection (2) there are two carve outs, section 44 and 89. Again the parliamentary draftsman has not covered himself or herself with glory. There is no section 89. Can I tell your Honours that there was once Division 6 of the Police Act and that was replaced by Division 6 and Division 6A and Division 6B, all at the same time.

The last provision of earlier Division 6 was section 89 and the last division of the new and current section 6B was section 88. Third time lucky again we are all in furious agreement at the Bar table that the effect of section 68(3) of the Interpretation Act (NSW) in section 88 is something called a “corresponding provision” to the repealed Act. So a reference here to section 89 is to be taken as a reference to section 88 of the current Act. Can I go there now and once again this is something which in terms excludes from the scope of what is an industrial matter a certain class of matters, questions or disputes. The Court can see that in 88(1).

Can I tell the Court that the legislation that affected that change is – there is no need to go there – the Police Amendment (Police Promotion) Act 2006, Schedule 1, item [5].  Can I also tell the Court that as originally enacted the Police Service Act 1990 only contained two examples of indirect express amendment, the sections that were then section 44 and section 89, which is a matter of historical fact. That is probably some indication as to what the subtraction in section 44(2) and 89 is directed to. Now, of course, there are many, many, many more references in the Act to the Industrial Relations Act and subsection (2) has not caught up with that, or there is some other explanation.  But they are part of the ingredients for the task of giving legal meaning to these provisions.

Now, when one has as here questions of inconsistency on the body of a statute – perhaps I can start more slowly.  There are two questions of inconsistency and perhaps it is best to be distinct about it because I cannot imagine there is any dispute about the first.  The first is this, that 218 in a sense is inconsistent with a whole swathe of earlier provisions in the same Act, just as many privative clauses are, if read literally, inconsistent with a whole swathe of provisions and like many privative clauses this is buried at the back of the Act as well.

There is a task of giving legal meaning to 218 which in a completely conventional way seeks to harmonise its goals in the same statute achieving a coherent goal in a Project Blue Sky sort of way.  Secondly, and perhaps controversially, I am not sure, we say that because of that indirect express amendment that your Honours have seen throughout one looks at both statutes together and seeks to place a harmonious goal, Telegraph, Sweeney, and Trajkoski from Western Australia.

There we part company with the Court of Appeal, respectfully, and respectfully with our learned friends, and we say it is quite wrong to look at all the Act, work out whether there is implied repeal or not and then if there is say, nonetheless, 218 saves it.  In other words, we say there is a one‑step process.  If you look at all of these provisions, seek – perhaps optimistically as Justice Kirby was in Permanent Trustee, admittedly often the hypothesis is sorely tried – but seek to find a rational integration.

Different language has been used in different decisions for this course.  The recurring language we have reproduced in paragraph 27 of our submissions that occurs most often is seeking to identify a clear intention – there is references to a process of reconciliation and identifying leading provisions and subordinate provisions.  At the end of the day, in a conventional way, one looks at text and one looks at context and one looks at the competing legal meanings that can be afforded to the provisions and in this case we say the position is relatively stark because there is no halfway house. 

Either there is the construction given by the Commission is the correct legal meaning of this suite of provisions and a dismissed probationary officer has ordinary judicial review rights in the Supreme Court for jurisdictional error and we expressly conceded, including procedural fairness below and I am not here to say anything to the contrary here and now; or, the Court of Appeal is right and my learned friend is right and quite a different regime which it would be wrong to call judicial review applies to probationary constables who may be dismissed after a week or three years, depending on how their period of probation has been.

Now, the considerations that we say support the view that I contend for are, first of all, there is misplaced reliance on section 218.  If one accepts the proposition that its legal meaning cannot be its literal meaning – one has to look at the process as a single stage – then, with respect, the dispositive reason of both Justice Tobias especially and also, as I read it, Justice Handley, cannot stand.  I understand my learned friend is seeking to adopt that.  That is the second string to his bow I have referred to.

Further, the distinction that was relied upon by Justice Tobias is the illusive distinction.  We have set out in some little detail in paragraphs 32 to the end of our submissions this difference between what is implied and what is inferential.  The short propositions are that that is a distinction tremendously important when one is dealing with a demurrer, which is where this all came from, conceivably significant if the question as it was in the decision of Justice Kirby on which Justice Tobias relied - if the question is unless otherwise expressly provided, as in Rose v Hvric, and you have to give force to that attempt to attenuate ordinary principles of applied repeal, and so one has, unless otherwise expressly provided, does that somehow subtract from implicit or implied provision in a legislative instrument?  We have got none of that.

So the simple proposition - there is no reference to “expressed” or “implied” in 218.  The question is give it a meaning and there is no justification, we would say with respect, for embarking upon a course of applying distinctions, themselves difficult in the wrong context, to this particular provision.  Thirdly, and very much as a fall back – and if this was standing by itself it probably would not be sufficient – but we do get some comfort out of what appears on its face at 218 – 218 is a difficult provision.  No‑one at the Bar table is going to disagree with that.  But one thing it does not do is limit section 89.  It is common ground that means 88.

There are a class of industrial matters that would be industrial matters if the Industrial Relations Act were considered by itself but which are taken not to be. That is the effect of section 88(1). I indicated at the outset that industrial matters are defined in the Industrial Relations Act and they include undoubtedly dismissal, termination of employment. 

It is certainly consistent with the goals and purposes to be discerned in this complicated legislative regime that there are subtractions from the operation of the Industrial Relations Act when one gets to dismissal of employees. I point in section 88 to some wide language because, if I go back to section 88(1), any matter, question or dispute relating to a failure to appoint a person to a vacant non‑executive position is taken not to be an industrial matter and therefore outside some aspects of the Commission’s jurisdiction.

So, it is not too far to go to say the failure to confirm a probationary officer instead of confirming he or she has been dismissed under 80(3), is apt to fall within the words “any matter, question or dispute relating to such a failure to appoint”.  Now, by itself that would not subtract from words with give jurisdiction to the Industrial Relations Commission that are designed to be beneficial to people who have been dismissed, but it is not by itself.

It is however a consideration that suggests there is something to be said for 218 not having the unqualified meaning for which my learned friend contends.  Thankfully, perhaps, that is all I wanted to say about 218.  I have also said all that I want to say in answer to, especially your Honour Justice Kiefel’s questions to me, the differences that can be seen out of all of these provisions, different nature of review and the content of that review under 181D is itself different and ‑ ‑ ‑

CRENNAN J:   What about section – I am sorry, I did not mean to cut you off.

MR LEEMING:   Your Honour did not.

CRENNAN J: If you are finished with section 218, what about section 405 of the Industrial Relations Act, to which I think Justice Handley made reference in his decision.

MR LEEMING:   Yes, we, in an already complicated statutory regime we do not see how that has any impact at all.  I think my learned friend is going to seek to persuade your Honours that it has some impact.  We say that it is something your Honours can safely ignore.  Can I then return to what might perhaps be the starting point, which is the test of section 80 and simply take the Court to two decisions if I might, that I have already given some mention to. 

The first is O’Rourke v Miller 156 CLR 342 to really pick up what Sir Harry Gibbs said about analogous words in this very context, dismissal of police officers. Can I ask the Court to turn to page 356 of the report where in his Honour Justice Wilson’s reasons in the middle of the page your Honours can see reproduced section 9(1) of the Act dealing with a power peripherally - it was not the subject of the appeal - the closing words of 9(1):

notwithstanding anything in Part V of this Act may dismiss or discharge any police cadet at any time.

Those are the words that Justice Gibbs, at page 349, described in the first full paragraphs in contrast with the operative divisions that were in play in that appeal.  His Honour said:

The provisions of s 8(4) may be compared with those of ss 9(1) –

to which I have just taken the Court:

which give the Chief Commissioner an unfettered power to dismiss a police cadet –

And, there is also section 112 which deals with police reservists.  I am not going to take the Court there.  Can I further take the Court to page 357?

KIEFEL J:   Does his Honour though mean unfettered, in terms of time because that was the question before the court, was it not?

MR LEEMING:   Your Honour is right, the adverb takes its context from the issues in the appeal and it is peripheral in the sense that it is by way of contrast to the power that was purportedly exercised in that case.  The focus there was in terms of time.  The other aspect that comes out of the same appeal though comes from this notion of probationary.  While one is there one can see at 357 towards the bottom of the page in Justice Wilson’s reasons something that I mentioned at the outset, this notion of probationary itself picked up in the regulation‑making power that your Honour Justice Gageler referred me to at the outset.  There is a useful passage from Justice Wilson in the last paragraph, 10 lines up from the bottom:

On appointment a constable becomes a member of the police force for all purposes save only that his appointment is subject to a period of probation of two years.  In this context the word “probation” has the effect of suspending the final appointment until the appointee “has by his conduct proved himself to be fit to fill it” –

Justice Gibbs makes a similar reference at page 350, although I think to be fair his Honour there is merely reproducing a submission that was made rather than expressing something in his reasons.  That is at about line 7 on page 350.  Lastly Chief Justice Street in Ex parteWurth; Re Tully [1955] 55 SR (NSW) 47 deals with the same point.

I do not think there is anything controversial about this, but again it is probation and again we are dealing with a legislative regime that picks up appointments on probation but it is quite different because this is the case where there is a distinction between dismissal and annulment and there is certainly no such distinction in the Police Act (1990).  It is page 49, the last paragraph on the page which, unlike the present case, commences, “The scheme of the Act is clear.”.

Can I invite the Court to read the two sentences that follow that dealing with the “fixed period of testing or trial” consistently with the entomology of the word.  Now, it is those textual considerations square and fair on section 80(3) that make it hard to reconcile oneself to a legal meaning of this suite of provisions that says some form of judicial review is given to confirm police officers who are dismissed, who lose the confidence of the Commissioner, but where there is an elaborate protection by way of procedural fairness and reasons and review.

Contrast that with section 80(3) it might be said against me there is not the same sort of elaborate words.  That is true and that is in my favour, I would say.  Those words are to be given exactly their force.  Their context is a “probationary officer” and why, certainly not likely, we would say, would the court give a legal meaning to these which gives a completely different form of review that is freestanding.  Not judicial review, but freestanding provisions for harsh, unjust and unreasonable dismissal in the Commission, in the event that the section 80(3) power is exercised.

We have also made reference to the notion of the force being a disciplined force, partly that lies under what I have said about section 201. In the skeleton we handed up this morning there are some references. I do not propose to take the Court to them here and now but in paragraph 9 we have referred to passages in reasons of this Court in three cases in the last 20 years, New South Wales v Fahy, Ferdinands itself and Public Service Board v Morris.  There is obviously something different that has been recognised for a long time and it is obvious between the police force and nurses or teachers or the other sorts of employees for whom unfair dismissal provisions are engaged.

We say, for those reasons, the Full Bench was correct in paragraphs, in particular, 32 to 36.  Page 239 of the appeal book contains the reasons of the Full Bench which, as we read them, are sensitive to the difficulties one has in reconciling the terms of the power and its context for probationary constables to the ordinary unfair dismissal provisions with which that Commission is well‑acquainted.  We invite the Court to follow the reasons in those paragraphs. 

We have set out in our written submissions the reasons why we say at each of these three levels – the text of section 80, the conflicting provisions and the legal meaning of section 218 – there is, with respect, error in both what Justice Handley said and what Justice Tobias has reasoned, the Chief Justice agreed with both.  Unless the Court invited me to do so I was not proposing to go back over the matters dealt with in writing.

BELL J: Can I take up one matter with you in relation to Justice Handley’s reasons at appeal book 274 at paragraphs 14 and 15, looking at the legislative history and the recognition that it would seem the idea of a review before the Commission for probationary constables had been accepted in the sense that it was the practise, and recognised as such, and then one gets subsequent amendments to the Police Act including the insertion of Part 9 which, as you acknowledge, is confined to confirmed officers.

MR LEEMING:   Yes.

BELL J: In the circumstances, what is to be said about his Honour’s reasoning at paragraph 15?

MR LEEMING:   Two things.  On the facts, your Honour is completely correct, and perhaps I should take your Honours now to page 53 of the appeal book because not only for a deal of time was it accepted by my client that probationary constables who were dismissed could invoke the provisions.  That is what Mr Eaton on the evidence was told in writing in the last paragraph on page 53, and some months – it may be six months after he went to proceedings – he was told no.  There was another proceeding in the Court. We are now taking a jurisdictional point.  Now, that certainly reflects an inconsistent stance on behalf of my client, but it does not affect the legal question, which is, well, what is the legal meaning of this and does the Commission have jurisdiction?

BELL J:   I think Justice Handley thought it did.  I think he was taking a rather different point which was in circumstances in which, rightly or wrongly the Commissioner has never taken the point, when it is understood that the law operates in a certain way one might expect the Parliament to have attended to that.

MR LEEMING:   That is the second aspect.  That is most attractively known as legislation by silence.  So there is a notion which is, if I may say so, difficult to reconcile.  There are some authorities in this Court, although none recently of which I am aware, that embrace the notion that the legal meaning of the statute can change following a period of time in which a certain course of conduct is taken and maybe some decisions have been made even if on its true legal meaning that was not the case.  I can give your Honours ‑ ‑ ‑

BELL J:   I am not sure that his Honour was thinking of it in those terms, Mr Leeming.  Your argument draws significantly on the suggested inconsistency respecting the introduction in 1996 of Part 9.

MR LEEMING:   Yes.

BELL J:   That does not raise the point you have – or so it seems to me – that ‑ ‑ ‑

MR LEEMING: Well, then, and perhaps as often is the case I have been over‑elaborate. I do read his Honour as saying squarely in paragraphs 15 and 16 at page 274 a submission that is often put would have been so easy to change and here he can say with force, and after all, lots and lots of changes have been made along the way, but our answer to that is simply, ultimately, those are merely rhetorical submission often made by counsel. Yes, it is easy to say it would have been easier to have made it different, it would have been easy for a regulation to have been enacted but, with respect, we say that is merely rhetorical.

The question is, what is the legal meaning of the words and the fact that it is easy – said to be easy – I am not quite sure what that means, actually – to have done something different does not absolve the task of identifying the legal meaning of the words which are part of the law of New South Wales.

BELL J:   But to the extent the argument depends on suggested difficulties arising from a comparison between 218 and the provisions of section 80 and a recognition that it had been understood that there was provision for review of decisions to dismiss and the introduction of Part 9 seems to me ‑ ‑ ‑

MR LEEMING:   I am not here to say that those difficulties are practical.  I hope I have confined the submission to anomalous legal consequences.  As your Honour says, as I candidly admit, the stance now taken is different from that which has been taken many times and I cannot be heard to say that there were practical difficulties in that earlier stance which we say, with respect, was mistaken.  Everyone misunderstood, including the Commission, the nature of its jurisdiction.  I merely pointed to the legal anomalies in a disciplined force of the most junior people having superior rights to those who are confirmed.

KIEFEL J: Do you accept, as I think his Honour expresses, that there was a window – a short period – where probationary constables had available to them the unfair dismissal regime when it first came into effect, that is to say, before all of the provisions, especially Part 9, which now give the Police Act the operation that enmeshes it more so with the Industrial Relations Act?

MR LEEMING:   There is a complication that has brought it about because of the replacement of arbitration by a more modern system.  I think the answer is no.  I am conscious, because it is a hypothetical question, what was the situation under repealed legislation, we have not said anything in writing about.

KIEFEL J:   No, I am sorry, I did not mean under the repealed legislation.  I meant the Police Act came into force in 1990.  The unfair dismissal regime – I am sorry, you say it was in place before the Police Act and then it was ‑ ‑ ‑

MR LEEMING:   There is arbitration ‑ ‑ ‑

KIEFEL J:   I see, there is a complication.

MR LEEMING:   ‑ ‑ ‑ when Police Service Act 1990 first came in and then the 1991 Act and it is – I am happy to concede it is a complicated question. I think my answer is no. I am conscious we have not given your Honour any assistance by way of development of that argument. We do say though, even if that be the case, for the reasons I have already said, the appropriate approach here, where there has been I think dozens of amendments of each legislation since 1990, is to look at the statutes as they presently are.

KIEFEL J:   But am I right in thinking, as his Honour says, that, putting aside the question of arbitration, when the unfair dismissal regime came in in the 1991 Act, was there a period where it could be said more clearly that it could have applied to a probationary constable because the provisions upon which you rely, the later amendments and the Part 9 provisions, had not come into effect?

MR LEEMING:   I have to concede that.  It could be said more clearly, absolutely, because there are less indirect express amendments that I can point to.  Your Honour must be right there.

KIEFEL J:   But your point is that you should simply have regard to the Act in its now form, regardless of whether there was that window?

MR LEEMING:   Yes, your Honour.

KIEFEL J:   Thank you.  I am sorry I was not clear before.

GAGELER J: Mr Leeming, can I just take you back to section 218(1)? I just want to understand your affirmative submission about that provision.

MR LEEMING:   Yes.

GAGELER J:   Now, I understand you to say that it does not mean what it says and I understand you to say that there is a need to engage in a process of rational integration.  There are two questions.  One is what does it mean?  The other is what part does it play in that process of rational integration?

MR LEEMING:   Second question first.  It plays a part.  It does not play a decisive part.  That is reflective of its position right down at the end.  But I accept it, like about another dozen provisions in the legislation, is expressly directed to the relationship between two Acts and so has a real role to play.  We say, one, it is spent.  So one has regard to it but in its context where it was directed to displacing a notion of implied repeal of the 1940 Arbitration Act, it has no longer any purpose now that ‑ ‑ ‑

GAGELER J:   When did it cease to have that purpose?

MR LEEMING:   In 1993 when it – in fact in 1991 when the Industrial Relations Act 1991 repealed the 1940 Arbitration Act.  So when there was no longer an earlier piece of legislation, the implied repeal of which had to be fended off – that happened when the 1940 Act was replaced by the 1991 Act – then one could have removed 218(1) then and there.

GAGELER J:   Instead it was actually amended.

MR LEEMING:   Instead it was amended to refer to the now later legislation, amended twice, and I have not taken your Honour to it.  Well, in fact, your Honour can see it is amended in one of those Statutory Law (Miscellaneous Provisions), wherever you see Industrial Relations Act 1991 replace Industrial Relations Act 1996. So yes, it was amended subsequently but in a rolled up way that is seen from my learned friend’s bundle of historical materials at page 31. So yes, but not too much weight, we would say, with respect, can be given to that amendment which was rolled up with three other amendments to the same effect.

But alternatively, if your Honours do not accept that its spent because its sole purpose was fending off implied repeal, we – I will give your Honour a negative answer then a positive answer.  The negative answer is its effect is not confined in a Rose v Hvric sense.  That is to say, you need to find an express reference or amendment to the Industrial Relations Act in order to fend off 218(1). 

What I have just said, I have attempted to encapsulate Justice Tobias’s reasons at the very end of his reason. He says it all turns on a difference between inferential and implicit. On any view, as far as section 80(3) goes, there is nothing that expressly displaces the ordinary operation of the Industrial Relations Act, therefore 218 is trump.  That is too narrow. 

It is too narrow because the task of it giving legal meaning to the whole requires an analysis of the whole and there is nothing special, especially in a provision like this that does not refer to express amendment to the essential aspects of the Police Act.  So, the approach adopted by the Full Bench deals with this in terms at page 63, appeal book 253.  Perhaps your Honours might find – so, we embrace the whole of the reasons of the members of the Full Bench and a lot of what I have said is reflected, repeatedly to effect, for example, in paragraph 61:

[section] 218(1) cannot mean what is prima facie expressed –

Hence, as they say in paragraph 62, it must have some other meaning.  The Full Bench resists the proposition that one carves out from the operation of 218 the express provisions that cut down from the Industrial Relations Act and embrace a conclusion of the legal meaning in 63:

We would construe this provision as leaving intact the power of the Commission to deal with industrial matters covering police officers unless especially restricted by some provision of the Police Act.

I read that “especially restricted” as picking up the same sorts of language that appears in the cases that we have identified in the paragraph that I referred to, paragraph 27, identifying a clear intention which can be done short of express reference.  For the reasons that I have said, there is to be found a clear intention, notwithstanding absence of express words, that given what confirm police officers have by way of review of decisions to dismiss them, there is not to be taken to have been conferred any unfair dismissal provisions in relation to the dismissal of probationary constables. 

So, embedded in the adverb “especially” are the same sorts of notions of identifying what is the really important and clearly expressed which can come from things like structure of the Act. Your Honour, will not have failed to notice that section 80 is up in the appointments provision, just like section 51, and one looks at context as well and why likely would

you conclude that this Act, although it does not say so in terms, maybe it is one of those things that is so obvious it goes without saying, a probationary person still has to prove himself or herself, does not have a right of unfair dismissal, but if there be some legal error or absence of procedural fairness then judicial review is available in the usual way.  May it please the Court.

HEYDON J:   Yes, Mr Crawshaw.

MR CRAWSHAW:   If I could start, as my learned friend did, with the statutory language, our fundamental proposition is that the actual statutory language of the Police Act and the Industrial Relations Act does not suggest inconsistency or at least does not suggest such inconsistency that it could be concluded that the provisions of the Police Act cannot stand or live together, or cannot be reconciled with a merits review by the Industrial Relations Commission under the Industrial Relations Act.  That, of course, is the test that Justice Gaudron posited in Saraswati and it was applied in Ferdinands by Justices Gummow and Hayne at paragraph 18, page 138.  It was also cited by Justice Handley in the Court of Appeal.

I think we make the point in our written submissions that although positing that question the Industrial Relations Commission did not answer or reach a conclusion in terms of not standing or living together, their conclusion went no further than inconsistency - paragraph 36 of their decision. 

Now, if I could just firstly just go to some of my learned friend’s points about section 80(3), which is the anchor of the appellant’s case, the first point we make is that – and I think this is a fundamental consideration for your Honour’s consideration of the whole of the case, not just on interpreting section 80(3) and its interaction - there is a distinction between the provisions relating to termination and the provisions relating to merits review of that termination.  In Ferdinands the Court found, particularly in the judgment of Justices Gummow and Hayne, that the system was a comprehensive system not just in relation to termination, but also in relation to the merits review provisions.  You see that particularly at paragraph 57.

HEYDON J:   Of 225 CLR 130.

MR CRAWSHAW:   I was not actually going to take your Honours to it at this point in time, but ‑ ‑ ‑

HEYDON J:   When we read paragraph 57 later we need to know which page.

MR CRAWSHAW:   I was going to paragraph 57 later.  I was just saying, by way of introduction, there is that distinction that is drawn in that case between the statutory provisions relating to termination and the statutory provisions relating to merits review and our learned friend’s submissions tend to just blur that dichotomy.  For example, while there is a respectable argument that there is a comprehensive provisions in the Police Act in terms of the termination provisions, that does not necessarily lead to the conclusion that there is comprehensive provisions in relation to merits review of terminations, and that is the fundamental distinction between this case and Ferdinands.

If I could come back to section 80(3) and it goes to that distinction, in terms of the first way our learned friends argue it.  Could I make this point and it is a fairly basic point, but it is a point that is overlooked by the appellant that the provisions relate to merits review only ever arise when there is a termination.  So in that sense the provisions relating to merits review constitute a separate power from the provisions relating to termination. 

Now, our learned friends refer to the provisions of section 80(3) and the power to dismiss without reasons.  We deal with that proposition in our written submissions at paragraph 13 and, in particular, point to the proposition that in a sense that is no different than what happens with any other employers who are non‑statutory employers. 

At common law an employer can dismiss at any time.  In some situations the contract of employment does not address the question of notice.  There may be implied a reasonable notice period, but that does not change the time of dismissal.  It just means you have to give notice of the dismissal.  The dismissal still occurs when the notice is given.  Similarly, at common law there was no requirement to give reasons so in that sense it is no different.

Our learned friend also goes to the question of the nature of the probationary employment and says well that is something that you get from section 80(3).  Well that is self‑evident, but citing cases like O’Rourke and Tully take the matter nowhere.  We do not dispute the nature of probationary employment in cases that, in general terms, spell out the nature of probationary employment of police officers.  That is not the issue.  What is in issue is the types of probationary employment that are excluded by the legislation.

The unfair dismissal provisions of the Industrial Relations Act take into account the notion of probationary employment in section 83(2)(b) and the regulations made thereunder. But those provisions do not provide for a blanket exemption for probationary employees. They in turn say certain types of probationary employees are excluded and it is common ground that the first respondent did not fall within that exemption.

Now, if I could just deal with the provisions relating to the dismissal – or the termination provisions of the Police Act.  My learned friend has taken you to them, and so in relation to police officers, they come into three categories.  Firstly, there are the probationary police officers under section 80(3).  Secondly, as it presently stands, termination of confirmed police officers can only occur through the removal provisions of Part 9, though we note that that position only stands since 1998. 

In fact, even after the insertion of the removal provisions in their latest form in 1997, the power of dismissal and, indeed, review of dismissal still remained by virtue of the Police Act. It was only the 1998 Act that changed that. I will come back to that question. Then in relation to executive police officers you have section 51 of the Police Act as described in Jarratt, which my learned friend took you to.

Now, if I could then move on to the provisions for merits review of those terminations.  We accept that the Police Act deals comprehensively with the legislative jurisdiction for merits review of removal of confirmed police officers and executive police officers. A removal under section 181D, as you have heard, is subject to a merits review by the IRC pursuant to the provisions of Division 1C, but importantly section 181D(7) excludes any other sort of merits review, so you have a comprehensive provision with an exclusion.

In relation to executive police officers we say they are also dealt with comprehensively by way of exclusion, and I think our learned friend is taking it as section 44(2A) that excludes any review by the Industrial Relations Commission of the removal of those officers pursuant to section 51. Hence we say firstly that the absence of any provision in the Police Act dealing with the question of merits review of a decision to dismiss a probationary police officer is, by way of contrast with those provisions applying to confirmed police officers and executive police officers, which deal comprehensively with the question of merits review and, indeed, in each instance, expressly provide for the exclusion of the Industrial Relations Commission unfair dismissal jurisdiction.

The notion that Part 9 excludes merits review by the Industrial Relations Commission of probationary police officers is indeed belied by the fact that when the legislature addressed the question of exclusion of merits review by the Industrial Relations Commission in the Police Act, both in section 181D(7) and in section 44(2A), it did so expressly and in a straightforward manner, and you would expect – and my learned friend keeps talking about Project Blue Sky, if you look at the statutory context as a whole you would expect in that context that if there was to be an exclusion of the unfair dismissal jurisdiction of the IRC in relation to probationary police constables the legislature would have similarly manifested its intention in the same straightforward way as it has in section 181D(7) and section 44(2A).

I think my learned friend took you to Jarratt (2005) 224 CLR 44 and had given as passages from which he was going to read, paragraphs 22 and 29. Those are passages where their Honours in that case said the particular provision was important for what it did not say, as much as for what it did say. We say, similarly, given the provisions of section 181D(7) and section 44(2A) that the provisions of section 80(3) are important for what they do not say as much as for what they do say, namely they do not say that the jurisdiction of the IRC is excluded.

Our learned friends seek to, on the one hand, embrace the idea that the legislation has to be read as a whole and, on the other hand, in relation to those particular provisions – I think you can see this from their reply at paragraph 4. They say section 181D(7) and section 44(2A) “were inserted at different times” and must be seen in the context in which they were inserted. Well, that is not the modern approach that my learned friend urged on you orally and we do not have any problem with that modern approach that he suggested.

We did supply this morning a copy of the decision of Commissioner of Stamps (SA)v Telegraph Investment Company (1995) 184 CLR 453 and we particularly rely on the passage at page 463 of that case in the judgment of the then Chief Justice and Justices Dawson and Toohey. The particular paragraph that we rely on is the paragraph in the middle of the page, the first full paragraph that talks about the section in that case being:

declaratory and represents the modern approach to the construction of an amended statute.  The result is that both the Act which is amended and the amending Act are to be read together as a combined statement of the will of the legislature.

We say that is apposite, when considering those exclusionary provisions, in relation to the very question that is before you, namely the exclusion of the Industrial Relations Commission that is found elsewhere in the Police Act (NSW).

When we are looking at the legislation as a whole, and in this case we are in agreement with the approach that there is an enmeshing, to use my learned friend’s term, of the Industrial Relations Act and the Police Act in terms of various provisions, what is very high in terms of statutory context in relation to probationary employees are the terms of section 83(2)(b) of the Industrial Relations Act.  It is common ground the exclusions to be found there as a result of the regulations made under that provision are not applicable to the first respondent.

Those provisions, in terms of statutory context we would submit, are the most important provisions.  Now, perhaps if I could take your Honours to the decision in Ferdinands (2006) 225 CLR 130 now? We make the point in our outline of oral argument at paragraph 8 that that decision does not support the appellant’s case and we refer to significant differences between the South Australian legislation considered there, and the Police Act (NSW) and those differences are elaborated on in our written submissions at paragraph 20 to 24.

We make the particular point that the South Australian legislation considered in Ferdinands contained a comprehensive merits review of terminations for all categories of police officers, including probationary police officers.  The only limitation in the South Australian legislation was a limited one in relation to a termination after conviction for an offence and as the court pointed out in Ferdinands there was obviously a right of appeal against that decision, in any event. But the crux of the decision of Justices Gummow and Hayne can be found at paragraphs 55 to 57 which I think our learned friends said they were going to cite, no doubt for that reason because – this is at page 148 of the report.

Perhaps I should go to paragraph 54 first.  From paragraph 50 onward their Honours set out some matters, which could be said to show an inconsistency or incompatibility between the industrial legislation and the police legislation in South Australia and I could go to those paragraphs and distinguish them but they are not the important paragraphs because in paragraph 54 their Honours said:

Standing alone, the considerations just mentioned would not demonstrate explicit or implicit contradiction –

Then the explicit or the implicit contradiction is found by their Honours at paragraphs 55 to 57. You will see some significant differences. Firstly, in paragraph 55 it is pointed out that in the South Australian legislation the Police Act dealt:

comprehensively not only with the questions of appointment and termination of appointment of members of SA Police, but also with what decisions of the Police Commissioner to terminate appointment of a member are to be subject to review –

I have already made the point that while we accept in the Police Act (NSW) it may be said that the questions of appointment and termination are dealt with comprehensively, that is not the case with the questions of decisions to be subject to review. In particular, the Police Act says nothing by way of inclusion or, indeed, exclusion of merits review in relation to the case of probationary police constables.  After all, every police officer is at one point a probationary police officer.  So it is a major category of area that is not covered and therefore you cannot, we say, put an argument that the question of merits review is dealt with comprehensively.

Paragraph 56 points out another important point of distinction between the South Australian legislation and the industrial legislation in South Australia, namely that if the argument was contrary to what was found in Ferdinands, the Police Commissioner’s action would be judged against the standard of harsh, unjust or unreasonable, without also committing the body, namely the Industrial Commission in South Australia, to make an assessment of lesser forms of disciplinary action. 

Now, that is not the case in New South Wales, because if probationary police constables have access to the unfair dismissal jurisdiction the test that is applied is harsh, unjust or unreasonable. But also, under Division 1C of Part 9 in relation to confirmed police officers, the test is also harsh, unjust or unreasonable.

BELL J:   But there is a significant difference when one goes to 181F(3), which requires the Commission in addressing that question to have regard both to the circumstance that the Commissioner made the order under 181D and the public interest.  Now, those considerations are notably absent from the review provided under sections 83 to 88.

MR CRAWSHAW:   Well, with respect, we do not accept the proposition that there is a significant difference there.  We deal with that and the other arguments about differences in our written submissions at paragraph 30.

BELL J:   In doing so you adopt, as it were, the analysis of Justice Tobias respecting the absence of difference for practical purposes, as it were?

MR CRAWSHAW: I think we go a little further because what we were met with was an assertion in our learned friend’s submissions that these were differences without any elaboration. So we wanted to inform the court in practical terms what was the difference and, indeed, how Part 9 had been applied by the Industrial Relations Commission compared to its application of the unfair dismissal jurisdiction in its normal sense. In relation to the points your Honour raises - I could come back to these points because I was going to deal with - my learned friend raised them as well, but the public interest is a criterion under the unfair dismissal jurisdiction by virtue of section 146.

BELL J:   So one takes into account, amongst other things, the condition of the New South Wales economy in determining ‑ ‑ ‑

MR CRAWSHAW: Well, that is my learned friend’s submissions, but it is not confined that. Section 146(2) says – and this is in relation to all of its functions:

The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to –

including the state of the economy. Now, it would be an unusual case in relation to dismissal of a probationary police officer where the state of economy would be particularly relevant, but section 146(2) is not confined to consideration of the state of the economy. It is a public interest test and the state of the economy is a mandatory consideration.

BELL J:   I think the point that is taken against you is that under the special provisions for review in Part 9, the Commission is directed to take into account considerations of maintaining the integrity of the New South Wales Police Force, and this within the broader context of the particular nature of policing as distinct from other forms of public sector employment.

Now, not only is that absent from the scheme that generally applies to public service employees, but one does face the other matter to which attention was directed in the appellant’s submissions. If you just go to section 83(5) and you see the notion of what is embraced by “dismissal”, one sees that the Commission might take into account circumstances involving as harsh, unjust or unreasonable the dismissal of a person because in their private capacity they have been convicted of an offence or something of that nature.

MR CRAWSHAW:   Under Part 9 there is no exclusion of jurisdiction in the case of officers that have been convicted of offences.  That is another point of distinction with Ferdinands.  Under Part 9 there have been numerous cases that have considered confirmed police officers who have been convicted of offences and whether that conviction met the test of “harsh, unjust and unreasonable”.

BELL J:   Putting to one side how the Commission in practice has approached the exercise of its functions, the point taken against you is that there is a recognition in Part 9 of the particular aspects attaching to policing and to the need to maintain any integrity of the service, which is absent more broadly.

MR CRAWSHAW: Well, can I answer the broader question? It has not been just a matter of practice. Section 181D does not exclude consideration of dismissals that have been brought about as a result of offences. But on the broader integrity question one of the matters to be considered by the Industrial Relations Commission in a claim brought under Part 6 of Chapter 2 is the nature of the duties, and section 7(a) of the Police Act describes as one of the aspects of the nature of the duties of members of the police force, placing integrity above all.  Indeed, you will see there are a number of other matters that each member of the New South Wales Police Force has to take into account.

So in considering the nature of the duties under Part 6, Chapter 2, inevitably the Industrial Relations Commission must consider the part of - not just part, but high on the consideration of the nature of the duties is that a member of the New South Wales Police Force, including a probationary officer, must place integrity above all and that is why in practice – and you can see, if you look at the decision at first instance in this case where Commissioner Bishop reinstated the first respondent, integrity was a matter that was central to that decision and that is no coincidence.

Section 7(a) of the Police Act really does not allow any other possibility rather than that integrity will be central to the decision making.  As to the other aspect of section 181F(3)(b), namely that you have to take into account the Commissioner’s order for removal, once again that is no different than occurs under Part 6, Chapter 2 in terms of any employer.

A decision under Part 6 of Chapter 2 has never – and, indeed, the predecessors in the industrial legislation has never been dealt with as the Industrial Relations Commission making a new decision for itself and taking no account of or giving no weight to the fact that the employer itself has already made a decision.  It is integral to that unfair dismissal jurisdiction that it is not an appeal from an employer’s decision and does not give to the Commission the power to just merely substitute its decision for that of the employer without taking it into account. 

The other aspect of section 181F(3) – and once again this is a difference with the unfair dismissal jurisdiction, at least in terms of what is expressly in the legislation is that the Industrial Relations Commission under the removal provisions of Part 9 when they are contested must have regard to the interests of the applicant. Now, in that respect the difference would appear to favour the police officer, rather than go against the police officer. I was going to deal with that question later. Perhaps if I could just deal with the other questions of so‑called superiority raised by our learned friends in relation to an unfair dismissal case, as against Part 9 of the Police Act removal case?

I do not want to make a meal out of this and that is why we went in some detail in the written submissions about it.  It is the sort of material that is probably best left for written submission, but we deal with the so‑called “reversal of onus” in section 181F(2) in our written submissions at paragraph 30(b).  We deal with the new evidence point at paragraph 30(g).  We deal with the non‑compellability of the Police Commissioner as a witness at paragraph 30(h), and can I just make the point in relation to that, my learned friend said from the Bar table that, “I am told that employers often give evidence in normal unfair dismissal cases”.  That may be the case, but can I also say from the Bar table, I know of no case where the employer has given evidence as a result of being compelled to do so by the applicant in an unfair dismissal case, and that is what section 181H is addressed to.

As to the opening point and, indeed, the final point made by my learned friend, which raised for the first time in these proceedings the question of review somehow being different from a claim, we would submit that the way the legislation is framed, namely that whether it be a review under Division 1C of Part 9 of the Police Act or whether it be a claim under Part 6 of Chapter 2 of the Industrial Relations Act, that the overriding test in each is the same, namely whether the termination is unfair, harsh or unreasonable.  That is the matter that leads to the similarity between the two, not whether you call the proceeding that leads to the application of that test being a review or a claim. 

The fact that judicial members are required to sit on Part 9 removal cases does not mean they are sitting as judicial officers.  Your Honours will know no doubt from previous proceedings that the judicial officers of the Industrial Relations Commission have dual appointments, firstly as judges and secondly as members of the Administrative Tribunal.

The exercise of the jurisdiction in relation to challenging a removal under Part 9 of the Police Act, as with the exercise of the jurisdiction under Part 6 of Chapter 2 of the Industrial Relations Act, is an exercise of the administrative rather than the judicial jurisdiction, even though this Court and other courts have often described when those persons are acting administratively that they have to act in a judicial manner and it has been called quasi-judicial and matters of that kind, but once again, there is no difference between the two exercises of the jurisdiction.  I see the time.  Is that a convenient time?

HEYDON J:   How are you going for time?  You seem to have covered virtually everything except section 218.  I am not seeking to limit your exposition, but – I am looking at your outline.

MR CRAWSHAW:   I do not think I had finished going to Ferdinands.  I think Justice Bell’s questioning came in the middle of that.  I will not be very long on that.  I have to address 218, and I also wanted to make a brief reference to the history – it will not be a long reference.  In those terms, I perhaps could finish in another 15 minutes.

HEYDON J:   I think what we will do is adjourn until 2.15, Mr Crawshaw.

MR CRAWSHAW:   If your Honours please.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

HEYDON J:   Yes, Mr Crawshaw.

MR CRAWSHAW:   Thank you, your Honours.  Can I just finish off on the question of the differences between the two regimes?  What we submit is that the introduction by the legislature of a somewhat different regime to apply to the removal of confirmed police officers does not disclose a legislative intention to totally remove the merits review of the dismissal of probationary police officers. 

We otherwise deal with the question of anomaly, or alleged anomaly, at paragraphs 31 to 34 of our written submissions.  I need to just correct one word in paragraph 33.  In the first sentence, five lines from the end, the word “question” is used.  It should be “construction”.

HEYDON J:   I just have not quite picked that up.  You said paragraph 33, the first sentence?

MR CRAWSHAW:   The first sentence, five words from the end of the first sentence, the words “particular question” should be “particular construction.

HEYDON J:   I see, yes, thank you.

MR CRAWSHAW:   It is in fact characterising or citing the appellant’s submission.  While I have you looking at our written submissions, can I just refer you to what we say at paragraph 34 that, if it exists, it is unconvincing in a similar way to the argument that failed in Saeed v Minister for Immigration and Citizenship.

CRENNAN J:   Where you make reference to another class that has long enjoyed such rights of review, what is the position exactly historically in relation to a section like section 80(3) and any of its ancestors, and merits review?  I understand that Justice Handley referred, as Justice Kiefel pointed out this morning, to there being a window of some five years when that was possible.  Is that the extent of it?

MR CRAWSHAW:   I do not know that it was particularly restricted to the five years, but the history is that ‑ ‑ ‑

CRENNAN J: I am referring to paragraph 14 on page 274 in Justice Handley’s judgment. I was wondering what the position was pre the 1991 ‑ ‑ ‑

MR CRAWSHAW:   Sorry, your Honour, paragraph?

CRENNAN J: Paragraph 14, where his Honour was specifically referring to the “regime in the 1991 Act”. I am just picking up on this in relation to your suggestion that perhaps probationary constables have long enjoyed rights of merits review and I am asking you what the position is, or was, I should say.

MR CRAWSHAW:   The position is that section 80, as is obvious, was introduced in 1990, but there were predecessors in similar terms.  I think prior to that the equivalent provision was in the regulations under the prior legislation.

CRENNAN J:   With the time limit and no reasons - not the time limit, any time, I should say.

MR CRAWSHAW:   Yes, just at any time.

CRENNAN J:   At any time.

MR CRAWSHAW:   Without the no reasons.  In relation to the unfair dismissal jurisdiction, the history of that is that in New South Wales, as distinct from federally, there has been an unfair dismissal jurisdiction for over 100 years.  Prior to the legislation in 1991 it was a jurisdiction that had to be exercised via a dispute process, assumedly at the behest of an industrial union.

So just prior to the introduction of the 1991 Industrial Act there was introduced as an amendment to the previous industrial legislation, being the Industrial Arbitration Act 1940, legislation that specifically gave the right to individuals to bring unfair dismissal claims. But in relation to public sector employees, I mentioned a history of unfair dismissal jurisdiction going back a century, but that did not apply even at the behest of industrial unions until 1978 when it was made clear that in relation to the jurisdiction to reinstate employees it included reinstatement of public sector employees.

HEYDON J:   Mr Crawshaw, it occurs to me, if I can just interrupt for a moment, that this rather technical terrain over which you are passing might usefully be reduced to some note which you could let us have in a few days and Mr Leeming could look at it either before or after if he wanted to add to it.  This question obviously comes from your point of view without notice and it might be useful if you had some time to put it to precise form.  Are you happy with that?

MR CRAWSHAW:   We are happy to do that, your Honour.

HEYDON J:   Seven days.

CRENNAN J:   The focus of it from my point of view would be not just a general account, but in relation to the position of probationary constables.

MR CRAWSHAW:   Well, what I have just said applied equally to probationary constables, in our submission.  In other words, there was no difference prior to 1990 or, indeed, prior to 1991, from later.  The other thing I should say about that question should it go to which came first, which was the later legislation, or to the extent that it does, is that, irrespective of the fact that there was legislation in 1991 going to unfair dismissal, in 1996 there was also legislation, albeit that it largely repeated the 1991 legislation going to unfair dismissal. 

So that, in the end, the unfair dismissal legislation is later in time, in any event, than section 80(3), which is unchanged since 1990.  I suppose that applies whether it is the 1991 Act or the 1996 Act.  But to the extent that I have suggested there was an earlier unfair dismissal jurisdiction, it was in a different form to 1991 and 1996, so that is the later legislation.

I suggested to your Honour the presiding Judge that I needed to finish off with Ferdinands.  I think I have already dealt with the matters arising out of the judgment of Justices Gummow and Hayne at paragraph 57 in terms of distinguishing the comprehensiveness of the legislation.  So that leads me into the question of section 218.  As the then Chief Justice said in Ferdinands at paragraph 4, the problem of statutory interpretation only arose in that case:

because the legislature did not state an intention either that the two statutory regimes should both apply in such a case, or that the second regime should apply to the exclusion of the first.

Our submission is that that problem does not arise in this case because of the presence of section 218, which does state an express intention that the Industrial Relations Act should apply to the exclusion of the Police Act.  We do not say it is a two‑step process, as my learned friend suggests.  It is a convenient way to deal with the submissions, to deal with the legislation as it can be read without 218 and looking at the impact that 218 would in any event make. 

Our submission is that you do not need the provisions of section 218 to say that Part 6, Chapter 2 of the Industrial Relations Act can live together with the provisions of the Police Act in section 80(3).  But, obviously our submission is that section 218 makes that clearer. 

Now, in terms of the way section 218 should be read, I think my learned friend overstated the extent to which there was agreement between us.  First of all, we say that there is obviously not a proviso such as was found in the case of Rose v Hvric to the effect that words like “except where otherwise expressly enacted”.  However, we see the absence of such a proviso is actually making section 218 a stronger provision in terms of giving priority to one Act rather than the other. 

The words in the Industrial Relations Act 1996 “is not affected by anything in this Act” is stronger than a provision that has an exception ‘otherwise expressly enacted”. The way we say section 218 is to be read is that when it was enacted in its present form in 1996 there were only two provisions of the Police Act that definitively affected the Industrial Relations Act. They were sections 44 and section 88 which – it has 89 in section 218, but as you have heard, that has to be read as section 88.

So the reason they were sections 44 and 89, read as 88 – were found as exceptions to 218, was simply because those provisions were already in the Act and they definitively affected the Industrial Relations Act. Since section 218 was enacted in its present form in 1996, there is not a litany of provisions that affect the Industrial Relations Act as suggested by my learned friend. 

We accept that section 181D(7) affects the Industrial Relations Act. We accept that section 44(2A) affects the Industrial Relations Act.  But the absence of those sections being mentioned in section 218 does not otherwise diminish section 218.  They are examples of provisions that were enacted subsequent to 1996, subsequent to the enactment of section 218 in its present form.  Not only were they later provisions, but they in definite and specific terms affected the Industrial Relations Act.  So there is no reason why the presence of those provisions in the current legislation should otherwise diminish the “strength”, if I can use that word, of section 218.

KIEFEL J:   But the question that has first to be addressed is whether or not those provisions subsequent to 1996 and subsequently in the Police Act have altered the scheme such that both section 80 has a different context and the Industrial Relations Act is affected in such a way that section 218 no longer has the operation that it formerly had.

MR CRAWSHAW: We say the effect of section 218 is that it would apply unless a later provision in a definitive way in actual terms affects the Industrial Relations Act and section 181D(7) does not and, indeed, that is as close as you get in section 181D to any of those provisions affecting the Industrial Relations Act.  That is the subsection that specifically addresses that question and it only affects the Industrial Relations Act in relation to removal of confirmed police officers.

The other aspect to this point about later provisions is that in the end the appellant’s argument has as its fundamental basis not Part 9, or the introduction of the removal period is at Part 9, but section 80(3), and it is still an earlier provision than section 218, as introduced in 1996.  Indeed, that brings me to the point ‑ ‑ ‑

KIEFEL J:   But that raises the question whether or not its operation and effect can be – if it had the effect initially that you are referring to whether it can be altered by context and logically one cannot see why that should not be the case.

MR CRAWSHAW: Well, our learned friend would have it that section 218 has no work to do after 1990. That flies in the face of the fact that the legislation was – and maybe this is something that needs some more specificity in the note your Honour asked for, though it is referred to without specificity as to the legislation in Justice Handley’s judgment at paragraph 24 at appeal book 276.

Section 218 was specifically amended in 1993 to change the reference from the Industrial Arbitration Act 1940 to the Industrial Relations Act 1991. As you have heard, and my learned friend took you to the provision in our materials, again amended in 1996 to change the reference to the Industrial Relations Act 1996.

Now, if the legislature had intended that it had no purpose other than to deal with the prior provisions in the Industrial Arbitration Act 1940, there would have been no need to amend section 218 on two occasions to specifically provide, according to its ordinary language, that the Police Act was not to affect the current industrial legislation.

BELL J:   The 1996 amendment to section 218, was that at the same time as the amendments that introduced the original version of Commissioner’s confidence dismissals?

MR CRAWSHAW:   No, it had nothing to do with it.  It came after the passage – the Industrial Relations Act 1996.

BELL J:   Yes.  I understand from something that Mr Leeming said, it was a number of amendments of like formal character were introduced, but the matter that I am directing your attention to is ‑ ‑ ‑

MR CRAWSHAW:   It is in our materials at 31.

BELL J: ‑ ‑ ‑ is when the forerunner of Part 9 first came into the Police Act ‑ ‑ ‑

MR CRAWSHAW:   Yes.

BELL J:   I am asking when that occurred relevantly with respect to the 1996 amendments to 218.

MR CRAWSHAW:   There were three, if I can call it Royal Commission‑type amendment Acts.  There was one in 1995, the Police Service Amendment Act 1995. We have not included that in our materials.

BELL J:   Perhaps all of this can be covered by the note.

MR CRAWSHAW:   It can be, but I was just going to point out that the second version is found in our materials at 23.

BELL J:   At 23, all right.  Thank you.

MR CRAWSHAW:   I will have to deal with in the note, whether that predated or post‑dated the 1996.  But there is no doubt that in any event the provision that is currently there was introduced in 1997, after the Industrial Relations Amendment Act and, indeed, after section 218 took its present form.  But our answer to that, in terms of section 218, apart from – well, I have given the answer to Justice Kiefel so I will not repeat it.  But the bottom line in relation to section 218 is that we submit section 218 should be given its full effect according to its terms. 

The original Police Service Act 1990 and the amending Acts should be read together as a combined statement of the will of the legislature, and I use those words because they are the words that were used in the passage from Commissioner of Stamps (SA) v Telegraph Investment Company, 184 CLR 453 at 463 that I took you to earlier. Our learned friend is happy to use the principle that the amending Act should be read together with the original Act, or two Acts should be read together as a combined statement of the will of the legislature in relation to other matters, but that principle applies equally to section 218. Can I just briefly mention section 405? We deal with that in our written submissions at paragraph 42.

Justice Handley in turn deals with it at paragraphs 34 and 46 of his judgment at appeal book 278 and 280. It is another example of the synchronicity, if I can call it that, of the two statutes. In particular, section 405(3), while not in itself bestowing unfair dismissal rights on probationary police officers, avoids any argument that a decision under Part 6 of Chapter 2 is inconsistent with a function under the Police Act, with respect to the discipline of a police officer.

Our learned friend seeks to, in oral submissions, argue the applicability of section 88 of the Police Act to this case.  This was an argument that failed in the Industrial Relations Commission.  You can see that at appeal book 251, paragraph 56.  Indeed, this was not a question raised by our learned friends in their written outlines and hence we have not been able to give your Honours the benefit of any written submissions about this matter.  But can I just take some time to deal with it because my learned friend did spend a little time on this.  When I say some time, it will not be an inordinate amount of time, but I do have to deal with the argument now it has been raised.

The argument of the appellant in relation to section 88 and in particular it seems to be, at this point in time at least, directed at section 88(1), namely that:

The appointment of or failure to appoint a person to a vacant non‑executive position, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996.

There is a similar provision in relation to executive officers at section 44 which is in turn – these are the two provisions that were in turn picked up and are still picked up by section 218.  We submit the argument of the appellant conflates two industrial matters, namely, the appointment or failure to appoint a police officer to a vacant non‑executive position on the one hand, and dismissal on the other. 

Dismissal is a separate subject matter to appointment even if section 80 contains in separate subsections the power of appointment and the power of dismissal.  Indeed, and I think my learned friend otherwise accepted this, the probationary officer has already been appointed as a police officer at the point that he or she is engaged as a probationary police officer.  There is not a new appointment as a police officer takes place when you are confirmed.

GAGELER J:   So, Mr Crawshaw, can I just understand, a failure to confirm a probationary police officer at the end of the probation period, you say is a dismissal, do you?

MR CRAWSHAW:   No.  We agree with our learned friend’s submission on that because there is no such power as a failure to confirm, that the police officer continues as a probationary police officer until confirmed as a police officer, or alternatively dismissed.  There is also provision for medical retirement in section 72A, but that applies equally to confirmed police officers.

KIEFEL J:   But, if the regulations provide for what has to be done or achieved to end probation, can you not get to a point of constructive dismissal?  I mean, is there a point at which a probationary officer has done all that is required for the end of probation so it comes to a point whether it is confirmed or not?

MR CRAWSHAW:   Well, we accept that it is entirely within the discretion of the Police Commissioner.  Your Honour raises an interesting point and then ‑ ‑ ‑

KIEFEL J:   Do not let me do that, there is enough of it.

MR CRAWSHAW: Well, if there is a constructive dismissal one might then engage Part 6 of Chapter 2 in that manner, because that is also a dismissal. The basis of our learned friend’s argument in relation to the applicability of section 88 was really laid at the beginning of his submission when he took you to section 146 of the Industrial Relations Act and also the definition of “industrial matters” and said, well, reinstatement falls within the definition of “industrial matters” and therefore within the definition of section 146(1)(c).

Now, we don’t dispute the proposition that reinstatement falls within the definition of “industrial matters”, indeed it was the very jurisdiction by which industrial disputes allowed the running of reinstatement cases before 1991, as I adverted to earlier. But, the situation is that since 1991 the jurisdiction to have a reinstatement case does not require there to be an industrial matter. The jurisdiction under Part 6 of Chapter 2 is in no way referable to an industrial matter, it is not conditioned by the phrase “industrial matters”, whereas other exercises of arbitral functions of the New South Wales Industrial Relations Commission are conditioned by that phrase. Section 83 operates by force of its own terms, which, as I said, does not require industrial matters. Therefore, in terms of section 146 the jurisdiction could be exercised under subsection (1)(e), namely:

The Commission has the following functions:

. . . 

(e)      functions conferred on it by this or any other Act or law.

That would include, of course, Division 1C of Part 9 of the Police Act. In our submission, the basis of our learned friend’s argument, namely, that this is an industrial matter and, therefore, jurisdiction under section 88 is enlivened falls when you realise that in order to run a case under Part 6 of Chapter 2 an industrial matter is not required. In relation to the similar provision of section 44, Justice Callinan in Jarratt actually said something about this matter.  Jarratt v Commissioner of Police 224 CLR 44 was cited earlier. At page 84 Justice Callinan said this about section 44:

Section 44 is an extensive privative provision.  It provides that any question or dispute about an officer’s employment is not an industrial matter for the purposes of the Industrial Relations Act 1996 (NSW). It excludes an appeal to the Police Tribunal or to the Government and Related Employees Appeal Tribunal (GREAT), and s 44(7) forbids prerogative and related relief in respect of the appointment, or failure to appoint a person to a vacant position. Not much assistance, I think, can be derived from this. The sub‑section is simply not concerned with dismissals, suspensions or removals from office.

We say the same thing about our learned friend’s belated reliance on section 88. Can I just say, I threatened or promised your Honours that I will go to the history. The only thing further I want to say about the history and, once again, this can be perhaps elaborated on more in the note.

HEYDON J:   This note is starting to suffer from elephantiasis.

MR CRAWSHAW:   Yes, well, we do not need to address this matter in the note because the materials are already before you.  The 1988 legislation amending the Police Act, the Police Service Amendment (Complaints and Management Reform) Act 1988 is found at page 46 and the effect of the provisions at page 47 is to delete the previous provisions that had applied in Part 9 and replace them with a new regime that did not go to the removal question. 

That had already been dealt with in 1997.  It went to the disciplinary actions short of dismissal.  But, at the same time, the effect of deleting the

old section was to take out or remove the Police Commissioner’s power to dismiss confirmed police officers.  Up until 1998 the Police Commissioner retained the power to dismiss confirmed police officers.  Our simple point is this, that even after the introduction of the removal provisions in 1995, 1996, 1997, the Police Commissioner retained a power to dismiss as distinct from remove police officers. 

If there was a dismissal of a confirmed police officer, there was then jurisdiction for a merits review by the Industrial Relations Commission of that dismissal.  So, we say, in those circumstances, it cannot be submitted that the legislature when it introduced the removal provisions and, in particular in 1997 which is the current provision, that it intended that the introduction of those provisions which were only applicable to confirmed officers was to take away the jurisdiction that the Industrial Relations Commission currently had to conduct a merits review of a dismissal of a probationary police officer.

So can I conclude by saying this? There is an air of unreality about the appellant’s argument, the argument that seeks to impute to the legislature an intention that probationary police officers not have access to Part 6 of Chapter 2 of the Industrial Relations Act.  As you have heard, the Industrial Relations Commission has exercised this jurisdiction for many years without objection from the Police Commissioner, the appellant and the appellant’s predecessors as Police Commissioner. 

Despite this and despite, as you have already heard, the legislation being addressed by the legislature on numerous occasions, the legislature has not stated in terms an intention to exclude the jurisdiction of the Industrial Relations Commission in relation to probationary police officers, although it has done so, as I have earlier submitted, in terms quite definitively in relation to other categories of police officers, namely the executive police officers and in the case of removal, 181D(7) applying to confirmed police officers.  If the Court pleases, they are our submissions.

HEYDON J:  Thank you, Mr Crawshaw. Mr Leeming, do you object to the following two directions? One, the first respondent has leave to file and serve within seven days a note concerning the topics mentioned in paragraphs 14 and 24 of Justice Handley’s reasons for judgment, together with a chronology of amendments to the Police Act 1990. Two, the appellant has leave to file a note in answer within a further seven days?

MR LEEMING:   I do not, however, I was going to propose without any disrespect to my learned friend, we are quite content to go first on that.  We think it may be easier, in fact, for us to answer in particular your Honour Justice Crennan’s question.  I can give your Honour a partial answer now, but what lies beneath it, Mr Seck tells me and I believe him, is a more complicated story.  In other words there is a deal of work in it where we have that at our fingertips, but I do not object to ‑ ‑ ‑

HEYDON J:   Just one moment.  Mr Crawshaw, do you mind if the appellant goes first?

MR CRAWSHAW:   I never object to going second, your Honour.

HEYDON J:   Those two directions will be made, save that the first one relates to the appellant and the second one relates to the first respondent.

MR LEEMING:   May it please the Court.  Can I deal with six very short matters in reply?  One of my learned friend’s first points was section 80(3), which has no period for notice, is just like dismissal at common law and we say that is really the wrong comparator.  The contrast is with the extensive provisions for notice and reasons under 181D for confirmed police officers. 

Your Honours, the second point is Ferdinands.  We heard a lot about Ferdinands.  Ferdinands, in my respectful submission, is a straw man.  This regime is common ground.  Enmeshed, entangled, call it what you want, it is the opposite of Ferdinands where you have two discrete regimes and you have to work out which prevails and which does not, because they are not connected in that way.

Thirdly, I am grateful to my learned friend for handing to your Honours copies of this Court’s decision in Commissioner of Stamps v Telegraph Investment.  We embrace the approach to construction from my learned friend.  The question, we say - and we are with him on this - is to identify from the words in the enacted laws what is the legal meaning of the combined statement of the will of the legislature?  If I have misunderstood what appeared from paragraphs 2, 3 and 9 of his written submissions when I referred to a two‑stage, I withdraw that.  We are ad idem it is just an one‑stage approach.

That we say rather detracts – this is my fourth point – from something that your Honour Justice Kiefel and I exchanged.  That does limit the utility of this admittedly complicated legislative history which I think your Honours now have an even greater sense of the complexity that I have sought to see around, but in partial answer now to your Honour Justice Crennan asking about the predecessors of section 80(3) can I do this? 

Can I invite your Honours to go to page 7 of the materials attached to my learned friend’s submissions where you will find at the bottom section 73 of the Police Service Act 1990 as originally enacted. That is the antecedent before renumbering in 1992 of section 80(3).

KIEFEL J:   I am sorry, which page was that?

MR LEEMING:   Yes.  Page 7 in bold at the bottom.

KIEFEL J:   Thank you.

MR LEEMING:   Attached to my learned friend’s submissions, 73 is “Appointment of constables” and if your Honours turn to the page, at the top of page 8 is 73(3):

The Commissioner may dismiss any such probationary police officer from the Police Service –

which is what it was then known as –

at any time and without giving any reason.

That takes us back to 1990.  To go back further in time, if your Honours were to go to our submissions, the materials at page 41 take one back to the police rules.  We have 1977 reprint at page 41, and there is a slight difference here, and I think my learned friend said this and we agree.  Page 41 has rule 11, and your Honours may see 11(b), confined to the case of probationary constables, they may be discharged or dismissed – interestingly two verbs used – by the Commissioner during the period of his probation without any reason being assigned.  So, the “at any time” is not there in that particular case.

Now, the harder question – and we agree with my learned friend – is how those provisions interacted with the 1940 Arbitration Act and then the 1991 and 1996 Acts which had a different approach.  It was possible for there to be a reinstatement award under the 1940 Act, towards the end of its time. It is that that will occupy us a little bit, but we will do so in a note in answer to your Honour’s question. 

Second lastly, can I with respect correct a statement of this history from my learned friend which, I think, follows from an error made by his Honour Justice Handley?  It is about the order of events, if it matters.  Your Honours know that at the end of the day I say little weight will be obtained from this historical exercise, but if it were to matter which were first in time, the ultimate form of 218 or the 181D provisions for removal, then we say, with respect, my learned friend and Mr Justice Handley are wrong.

At appeal book 276, to which my learned friend took the Court, his Honour Justice Handley’s account of the statutory history is almost

exactly correct.  The first sentence is correct.  It is true, as I said, that there was a renumbering in 1993 and an updating reference in the 1940 Act to the 1991 Act.  It is false to say it was amended again in 1996 to refer to the 1996 Act.  That amendment in fact took place on 4 April 1997, after the amendments which introduced 181D.  I do not think much turns on it.  I think my learned friend was at pains to say the order was to the contrary of that.  We will include details of that in our note.

Lastly, the other comforting matter that emerged from my learned friend’s submissions was his acceptance reflecting paragraph 4 of his oral address that the Police Act deals comprehensively with what he describes as the merits review of dismissal of confirmed police officers.  This feeds into the question of the operation of section 218.  With respect, what he cannot have is the proposition which he embraces that 218 is to be given full effect according to its terms, which we disagree with, and the proposition with which we agree that 181D and following are a comprehensive statement of review.  One can debate about whether it is called “merits review” or “quasi-judicial review”, but that attenuated review in the commission for confirmed police officers, because that is a subtraction from the prima facie effect of section 218.

Now, adopting what is common ground at the Bar table, that there is a comprehensive statement of how a commission or another body can review a dismissal of a confirmed police officer, we invite the Court to find exactly the same is true in relation to section 80(3) and regulation 12 and regulation 13 and regulation 14 and section 88 of the Police Act, that too.  It is concise – not to be criticised for that – but that too is a comprehensive statement of the review that obtains if a probationary police constable is dismissed. 

If that be so as a matter of characterisation, the characterisation is informed by its text, the stark language, the notion of probationary and the contrast with the elaborate provisions for confirmed officers, then, in our respectful submission, the decision of the Commission on construction should be affirmed.  May it please the Court.

HEYDON J:   Thank you, Mr Leeming.  We are grateful to counsel for their arguments.  We reserve judgment.  Please adjourn the Court to 10 am tomorrow.

AT 3.04 PM THE MATTER WAS ADJOURNED