Commissioner of Police v Eaton

[2012] HCATrans 189

[2012] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S86 of 2012

B e t w e e n -

COMMISSIONER OF POLICE

Applicant

and

DAVID GRANT EATON

First Respondent

INDUSTRIAL RELATIONS COMMISSION OF NSW

Second Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 AUGUST 2012, AT 11.46 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 applicant.  (instructed by Bartier Perry)

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

FRENCH CJ:   Thank you, Mr Crawshaw, and I see there is a submitting appearance for the second respondent.  On the face of it, Mr Leeming, it looks like a highly localised problem of statutory interpretation?

MR LEEMING:   Yes and I am not here to say that there is equivalent statutes ‑ ‑ ‑

FRENCH CJ:   I did not want to seem parochial in saying that.

MR LEEMING:   Although, the decision of this Court in Ferdinands out of similar, but not identical statutes in South Australia does point the way to the outcome.  I do want to tell your Honours that there is a generally applicable beyond New South Wales aspect to the question of statutory construction that arises, but primarily it is put on the basis that this is a decision, going to something important, jurisdiction of the Industrial Relations Commission of New South Wales that affects hundreds of probationary police constables every year.  Namely, whether they have a right to ‑ ‑ ‑

FRENCH CJ:   Do we have an affidavit somewhere about the number of cases pending?

MR LEEMING:   Your Honour does not.  Your Honour, I asked my junior this morning and one sees those people who graduate from Goulburn twice a year, there are hundreds of them.  There is no affidavit as to the number, but so far the judges who have considered this question of jurisdiction which is appeal question of law have divided 3/3 and we say first of all, it is bizarre and capricious that on the view that prevails so far a probationary constable who has been dismissed has better merit rights of review in the same place in the Industrial Relations Commission than a confirmed police officer and we say, with great respect, it is plain on the face of it that the Court of Appeal has erred in rejecting that legal consequence.  That is a very short point if I could make that good very quickly. 

Secondly, on a fair reading of the reasons, what is central to the decision of the Court of Appeal is a very unusual provision section 218.  Now that has application beyond New South Wales.  It is very unusual because it has always been common ground that they are words that cannot mean what they say and the need to go back 60 years to find what, with great respect to Justice Tobias, he erroneously considered to be an analogue has what has led to the error we say that has occurred.  So in terms of the general proposition, which is quite rare, perhaps, of how do you go about construing, on the face of it, inconsistent provisions in the same Act?  That is the aspect of this decision we would say, with respect that goes beyond the parochial circumstances of the jurisdiction of a State court within this State.

BELL J:   If we can come back to those parochial circumstances for a moment.  It appears to have been accepted below that, as Justice Handley found, this is at paragraph 14 on application book 48 that:

the unfair dismissal regime in the 1991 Act applied to probationary constables. 

That is accepted, is it?

MR LEEMING:   Yes, that was accepted.  At least, as a matter of practice that is what happened.  As my learned friends point out, there is a reversal of practice belatedly recognised, perhaps.  As your Honour knows, probably better than me, the legislative history that has driven all of this has emerged from a certain commission.

BELL J:   Yes.

MR LEEMING:   I do not wish to take your Honours’ time with the legislative history, but if your Honours were to go to the bundle of authorities, what I said about this applying to every single, or essentially, every single police constable in New South Wales, comes from page 5 of the bundle section 80(2) of the Police Act 1990, you have to be appointed on probation and that is an appointment that subsequently gets confirmed and it is that disparity that I, and those who argued the case below, focused upon in saying what an odd outcome that these people who have not been confirmed, nonetheless, have superior rights.

Now if your Honours have page 1 of the bundle we have given your Honours just the table of contents for two things. Part 6 which is Parts 1 and 2, that is employment or appointment and then on page 3, Part 9. Without labouring the point there are two ways in which the Commissioner has power to cause a police officer to be dismissed. Section 173 and that engages a merits review process under Division 1A that your Honours can see just the headings. Secondly, under section 181D and that is a Wood Royal Commission recommendation, if the Commissioner loses confidence in a confirmed police officer, then Division 1C applies. So that your Honours have the flavour of that, if one turns to page 8, your Honour has section 181D(1) “does not have confidence”. Then “by order in writing, remove”. There is a provision of natural justice set out in subsection (3) on the next page and there is a privative clause in subsection (7) excluding everything except Division 1C which is the qualified, attenuated review in the Industrial Relations Commission.

If I can identify the highlights of that, at page 10, your Honour may note 181F(1) which tells in terms in the language of command how the Commission must proceed.  Section 181F(2) shows where the burden relies even though the premise of Division 1C is that for some reason or other which might be a suspicion of criminal conduct, for example, there has been a loss of confidence.  Nonetheless, applicant shoulders the burden.  In subsection (3)(b) the “public interest” is a Peko Wallsend mandatory relevant consideration and there are various other tweakings of the rules of 181G that your Honours can see. 

Now I say all of that to get to the nub of the matter, the matter that, in my submission, does engage 35A.  One turns to the section which Justice Handley and Justice Tobias relied upon in terms, 218 which is page 14.  It cannot mean what it says.  Section 218 says:

The Industrial Relations Act1996 is not affected by anything in this Act. 

I have just taken your Honours to many provisions which in terms affect the Industrial Relations Act.  They say ‑ ‑ ‑

FRENCH CJ:   Do they not incorporate the operation of the Industrial Relations Act and its Commission by reference?

MR LEEMING:   Indeed, so.

FRENCH CJ:   It does not affect the operation of that Act, does it, to bring in – to say, all right, well those rules will apply for the purposes of this Act?

MR LEEMING:   It is like 79, in a sense.  It is picking it up with qualifications, in fact, perhaps even picking it up with section 80.

FRENCH CJ:   Where is the inconsistency with 218 then?

MR LEEMING:   Perhaps not and there would not be if that be the way to construe section 218.  I accept there is scope to argue about what, quite elliptically, as he has put together in 218(1) but with great respect to the justices of the Court of Appeal, that has not been the way in which the case has been determined so far.  What, as your Honours know the Court of Appeal did, was to say 218 does not mean what it says.  Where there is in some of the paragraphs that I have taken your Honours to, express “tweaking”, if I can use that word, modification of the operation of the Act, then that works and that is an example of a specific provision trumping a general provision. 

I should say for completeness, the provisions I have taken your Honours to postdate 218.  They were inserted pursuant to the recommendations of the Commission, but there are other provisions that were in the Act at the same time.  The difference between the Court of Appeal and the Industrial Relations Commission in‑court session was that the latter did not insist upon express textual tweaking to use that language and we say, with great respect, that is where the Court of Appeal has erred.  Just before I go there, can I say that sections like 218 recur throughout this country.  They are, in a sense, the obverse of the Hindmarsh Island, Kartinyeri type decision.  We have put that in the materials. 

For example, regularly in the Legal Profession legislation where one has an elaborate regime disciplining barristers and solicitors, there is a provision, it is section 13 of the 2007 Act in Queensland and 171M of the local Act saying nothing in this Act is affected by the provisions in the Legal Profession Act in relation to the Supreme Court’s jurisdiction to regulate the conduct of its officers.  Now, when one gets, we say, to the dispositive reasoning of the Court of Appeal, the leading judgment is that of Justice Tobias who at appeal book page 110, having dealt with all the issues that have been propounded on behalf of my client in the Court of Appeal, concluded with 218(1) and did so by reference to what this Court had held in that impossible to say case Rose v Hvric correctly recording in 179 that what the full bench had held was that expressly dealing with the Industrial Relations Act was not essential, in order to displace 218. 

It was sufficient if there was something especially important.  In other words, one could discern a legal meaning which displaced the operation of 218, not merely from text, but also from the purpose of context.  Then his Honour in paragraph 180 reproduced what had been said by then President Kirby arising out of Rose v Hvric out of that provision which is reproduced at the bottom of page 110 of the application book which is quite differently worded from 218:

“Unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act, 1940”.

That is the source of that very fine distinction adopted by President Kirby in the passage your Honours can see at about line 25 on page 111 distinguishing some very fine distinctions, “explicit and implicit contradiction” on the one hand and “inferential contradiction” on the other.

FRENCH CJ:   Do you point to any general issues or general principle concerning reconciliation of inconsistent State statutes that is raised by this case, or are we really in the territory of the particular language?

MR LEEMING:   Principally, we are in the territory of the principal language of two State Acts.  The greatest 35A factor that I can put to the Court is that language like that in 218 does occur elsewhere around the country; the Legal Profession Act is one.  The distinction in paragraph 181 then applied, we say with respect, wrongly by Justice Tobias, was to distinguish between whether there was an explicit or implicit, as distinct from inferential contradiction.  We say, with respect that is quite wrong that was the right approach, given the construction of section 8 of the 1979 Act reproduced at the bottom of page 110 which had the qualification “Unless otherwise expressly provided”.  Here was a different task of construction because we are in furious agreement that 218 has to be either construed in the way your Honour the Chief Justice indicated to me or read, subject to some other form of limitation. 

Now, lastly we say that one of the reasons and probably the principal reason that the Court of Appeal was led into error was that they failed to appreciate the force of the proposition that the consequence of this construction was a more beneficial merits review in the Commission for probationary constables than confirmed constables.  That is dealt with in only three paragraphs at page 98 of the application book under the heading:

The construction issue – does a probationary constable have an advantage over a confirmed constable?

I have already taken your Honours to some of the provisions which show the way in which the ordinary operation of unjust dismissal provisions in the IRC are affected, detrimentally, not least shifting onus permanently and telling the Commission how to do their task in the provisions I have taken your Honours to.  That does not apply if the Commission has jurisdiction in respect of merely probationary constables and as your Honours can see the reasoning in paragraphs 150, 151 and 152 really, with great respect, do not grapple with the problem that those particular provisions which apply to confirmed officers operate to their disadvantage for good reason, for policy reasons that were merged elsewhere, in contradistinction to how the Act would apply if there be no such modification in Divison 1C.

BELL J:   If the Act applies to probationary constables then the task that the Commission is concerned with under 83 of the Act seems in subsection (5) to contemplate not only that it has jurisdiction respect in threatened dismissal, but that an employee who is dismissed – a public sector employee who is dismissed in consequence of, for example, the commission of an offence would, it would seem from a reading of the provision, not be a matter which would preclude the power to reinstate at the level of seniority that the employee was in.  Is that ‑ ‑ ‑

MR LEEMING:   Yes, I think that is right, your Honour.

BELL J:   And that, in a sense, raises the issues that in Ferdinand were addressed respecting the particular considerations of policing. 

MR LEEMING:   I should say, in case it is not absolutely clear that I do not have as strong a case as Ferdinands where there was an elaborate provision that dealt with probationary constables; all I have is section 80.  But I do deny the proposition that it is necessary, which seems to be what the Court of Appeal has said, for section 80 or something connected with section 80 expressly to deal with the Industrial Relations Act.  After all, we would say, as Justice Gibbs said in O’Rourke’s Case, some things are just so obvious.  Why should someone on probation have full rights, as it were, other than…..rights as to which as your Honours ‑ ‑ ‑

FRENCH CJ:   That sounds like a good policy argument but I mean you can approach it two ways.  You can read this statute with the Act in one hand and a judgment from the High Court in the other or you can have a very simple exclusion put in by the Parliament.

MR LEEMING:   Yes, that is so, your Honour, but in a question of jurisdiction which is essentially a legal question and which has been addressed legally so far and six judges have divided equally in that split, yes, of course, steps could be taken to change the legislation.  That has not happened so far.  It does touch upon one matter though, which is of course the interest in the broad sense in this special leave application in the appeal of the Commission is vastly different from that of my learned friend’s client.  This is being agitated, not because of Mr Eaton, but because of the dozens of applications one gets from probationary constables every year and the hundreds of probationary constables who take office each year, that might have consequences as to costs were your Honours are minded to grant special leave.

FRENCH CJ:   Do you offer any undertaking in relation to costs?

MR LEEMING:   Yes, I am instructed to do so.

FRENCH CJ:   What is it?

MR LEEMING:   I am not quite sure what my learned friends are asking, I have not spoken to my learned friends, but we would accept that – I stand corrected, I do apologise.  Yes, if your Honours are minded to grant special

leave I am instructed to give an undertaking in accordance with what is set out at 136 and 137.  May it please the Court.

FRENCH CJ:   Yes, Mr Crawshaw.

MR CRAWSHAW:   At the outset can I say to your Honours that my learned friend has talked about hundreds of probationers and dozens of applications.  Seeing as my learned friend has given evidence from the Bar table can I just say there it is more like one case on average per year if you look at the reported cases and I think a list of those reported cases was given to the Court of Appeal after oral argument had finished.  My learned friend also erects an equality between the Court of Appeal judges and the IRC members.  Can I just your Honours that the IRC was not sitting here in Court session as my learned friend suggested.

FRENCH CJ:   This is the counting heads argument you are dealing with is it?

MR CRAWSHAW:   Yes.

FRENCH CJ:   Do not worry about that.

MR CRAWSHAW: But it was not administrative, they were sitting as an administrative tribunal rather than as the court, is my essential point. The anchor of the applicant’s case is that section 80(3) is inconsistent with the unfair dismissal provisions in the Industrial Relations Act.  This overlooks the difference between a power to dismiss and a power to order reinstatement.  An unfair dismissal application does not prevent an employer exercising the power of dismissal, indeed it only operates on and after an exercise of the power of dismissal, and indeed involves a separate process from the decision to dismiss.  In summary, we submit that there is no inconsistency or if there is there is no such inconsistency that it could be concluded that both legislative provisions cannot stand or live together, or cannot be reconciled.

The spur for this belated challenge by the applicant to the jurisdiction of the Industrial Relations Commission to hear reinstatement applications by the probationary police constable appears to have been the decision in Ferdinands, even though that case was decided in 2006. The applicant sees that case as giving it the opportunity to rely on Part 9 of the Police Act, which is found in the applicant’s authorities at pages 8 to 13, namely the relevant provisions that are extracted being 181D to 181K.

FRENCH CJ:   Now, there were two specific features of this case.  I think firstly that the probationary period is not a determined term because it can be extended.  I just cannot recall how that feeds in, but that is critical is it not to bringing in the Industrial Relations Commission?

MR CRAWSHAW:   No, that is not critical to bring in the Industrial Relations Commission.  If you look at the Industrial Relations Act provisions, which are at page 18 ‑ ‑ ‑

FRENCH CJ:   This is of the book, yes.

MR CRAWSHAW:   ‑ ‑ ‑ you will see section 83(2)(b) provides an exception for employees, whoever they might be, who are serving “probation or qualifying period”.  But, that is to be determined according to the regulations and ‑ ‑ ‑

BELL J:   There is no regulation governing probationary constables?

MR CRAWSHAW:   Well, there is a regulation that governs everyone and another ‑ ‑ ‑

BELL J:   But not a regulation within the terms of 83(2), is that right?

MR CRAWSHAW:   The regulation has been held in another Industrial Relations Commission decision not to extend to a probationary police constable who has been appointed in the way the Chief Justice outlined, namely where they are appointed for a set period and then for such other further period as the Police Commissioner may determine.  In other words, because it is a vague or unspecific period the regulation does not cover ‑ ‑ ‑

BELL J:   Where in the bundle do we have the regulation?

MR CRAWSHAW:   The regulation is at page 16.  I am sorry.

BELL J:   Thank you.

MR CRAWSHAW: I am sorry, I thought your Honour was asking about the police regulation. If I could then return to dealing with Part 9, which, as I said, is what is put by the applicant as the link with Ferdinands.  We say there are significant differences between the legislation applicable to South Australian Police considered in Ferdinands and that applicable to New South Wales Police, and I think my learned friend concedes that.  One thing that should be pointed out is that in New South Wales there is no system at all in the Police Act for merits review of dismissals. In the case of non‑probationary police officers the power of dismissal was deleted from the Act at the time that Part 9 was introduced.

Section 173, which my learned friend referred to, which is not reproduced, does not deal with dismissal at all. Non‑probationary police constables in terms of being terminated, can only be terminated under Part 9, but by virtue of section 181D(8) such a termination, which is called a removal, is treated as a resignation, not a dismissal. So, that is why I say there is no merits review of dismissals as such. The only dismissal provisions that are left in the Act are those relating to probationary police officers and in contrast to the South Australian legislation, there is no merits review in the Police Act at all for probationary police officers. 

Just on the point raised by your Honour Justice Bell about the question of criminal offences, if a police officer, whether probationary or not has committed a criminal offence that does not prevent access to the remedies of merits review. In the case of non‑probationary police officers, they get a merits review under Part 9 of the Police Act.  In the case of probationary police officers, they get a merits review under the Industrial Relations Act.  There is no exclusion ‑ ‑ ‑

BELL J:   In relation to a confirmed officer who is the subject of a commissioner’s confidence adverse determination, the Commission is limited by considerations that are broadly of the character of those that were discussed in Ferdinands concerning the need for the integrity of the Police Service, and that might produce an outcome in relation to a Police Service employee, being a sworn officer that is different to the outcome one might expect in another industrial context.  I mean after all, you are looking at service in circumstances where, as I recollect it under the Police Act, it is an offence not to obey a lawful command of a superior.  Now, that is an unusual provision within an employment context.

MR CRAWSHAW:   Yes, but the cases that have considered probationary constables and the reinstatement thereof have taken those sorts of matters into account.  This is spelt out in the Court of Appeal decision at some length.  The judgment of Justice Tobias deals with the way that the Industrial Relations Commission has approached the task when dealing with probationary ‑ ‑ ‑

BELL J:   But, I think the point that is being taken against you is that it is curious in relation to a probationer that the legislation does not provide the restrictions on the Commission that apply to a confirmed officer in the context of policing being a disciplined form of employment.

MR CRAWSHAW: Yes, and our answer to that, which is at paragraphs 23 to 25 of our summary of argument at page 134, is that in practical and substantive terms there is no real difference with the way the task is approached by the Industrial Relations Commission under Part 9 of the Police Act and under the unfair dismissal provisions of the Industrial

Relations Act.  As I said, in doing so the Court of Appeal looked at the way that the unfair dismissal jurisdiction had been applied as a matter of practical terms, and that goes to the question of special leave because practical considerations are something we should take into account as to whether this is a matter of some real practicality.

Of course the other significant difference between the New South Wales legislation and the South Australian legislation considered in Ferdinands is the provision of section 218 and another provision which my learned friend did not mention, which is section 181D(7), which is in Part 9 at page 9 of the applicant’s authorities book. You will see that that provision in itself is a privative clause as to the availability of remedies in relation to the removal provisions.

FRENCH CJ:   I think Mr Leeming did actually mention that provision.

MR CRAWSHAW:   I am sorry, I overlooked that.  So, those two are significant differences between the New South Wales legislation and the South Australian legislation.  Section 218, we accept, is not like those cases where there is a proviso such as “except where otherwise expressly enacted” or “unless otherwise expressly provided”.  It is a stronger provision that does not contain such a proviso and the absence of that proviso and the ordinary grammatical meaning of the words demonstrate that in the event of any conflict between the Police Act and the Industrial Relations Act it is intended the Industrial Relations Act would prevail.  They are our submissions.

FRENCH CJ:   Thanks, Mr Crawshaw.  We will not need to trouble you, Mr Leeming.  There will be a grant of special leave subject to your undertaking reflecting what is set out in paragraphs, I think, 35 and following of the respondent’s submissions.  Now, would this take more than half a day?

MR LEEMING:   It is a question I had with my junior a few moments ago.  On one view, no.  However, I am conscious that if your Honours wish to be advantaged by the extrinsic materials that have led to this that might take a little bit longer.  It took, I am told, a day in the Court of Appeal.

FRENCH CJ:   Yes.  Can I just ask, if the matter were to be listed in the first week of October, would you be available then?

MR LEEMING:   Yes, your Honour.

FRENCH CJ:   Mr Crawshaw, do you agree with that estimate, half a day to a day?

MR CRAWSHAW:   Well, my only hesitation in saying half a day, your Honour, is that the Court of Appeal had extensive written submissions from the applicant and ‑ ‑ ‑

FRENCH CJ:   Well, we are assisted by their reasoning, things could be tighter.  Yes, all right, well, I just draw your attention then with a view to the – and you should speak to the Registrar afterwards with a view to the matter being heard in the first week of the October sittings.  There will be a bridge directions in terms of the time for filing submissions.

AT 12.22 PM THE MATTER WAS CONCLUDED