Cottle v NSW Commissioner of Police; Police Association of New South Wales v Commissioner of Police (NSW Police Force)

[2020] NSWCA 159

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

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

Hearing dates:

5 June 2020

Date of orders:

27 July 2020

Decision date:

27 July 2020

Before:

Bell P at [1]; Basten JA at [84]; Payne JA at [85]

Decision:

(1)       In proceedings 2019/381789 and 2020/63922, grant leave to appeal and allow the appeal with costs.

(2)       In proceedings 2019/393098, dismiss the application for leave to appeal.

(3)     Set aside the decision of Simpson AJ and, in lieu thereof, dismiss the Summons for prerogative relief brought by the Commissioner of Police (NSW Police Force) with costs.

(4)       No order as to the costs of the Police Association of New South Wales.

Catchwords:

COURTS AND TRIBUNALS – whether Industrial Relations Commission has jurisdiction to review a decision to dismiss a policer officer pursuant to s 72A of the Police Act 1990 (NSW) – whether matter governed by decision in Commissioner of Police for New South Wales vEaton (2013) 252 CLR 1; [2013] HCA 2.

POLICE – non-probationary officer “caused to be retired” pursuant to s 72A of the Police Act 1990 (NSW) – officer seeking review of decision pursuant to s 84(1) of the Industrial Relations Act 1996 (NSW) – whether Industrial Relations Commission has jurisdiction to hear matter.

STATUTORY INTERPRETATION – construction of Police Act 1990 (NSW) and Industrial Relations Act 1996 (NSW) – whether review of a decision made under s 72A of the Police Act 1990 (NSW) amenable to review by Industrial Relations Commission under s 84(1) of the Industrial Relations Act 1996 (NSW).

Legislation Cited:

Government Sector Employment Legislation Amendment Act 2016 (NSW)

Industrial Relations Act 1991 (NSW)

Industrial Relations Act 1996 (NSW) ss 3(a), 83, 84, 88, 89, 187, 405, Pt 6 Ch 2

Police Act 1990 (NSW) ss 5, 42, 44, 62-80, 72A, 85, 88, 94B, 173-187, 181D-181G, 218, Pts 6, 8A and 9

Police Amendment Act 2007 (NSW)

Supreme Court Act 1970 (NSW) s 69

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Baini v R (2012) 246 CLR 469; [2012] HCA 59

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

Commissioner of Police v Eaton (2011) 207 IR 209; [2011] NSWIRComm 51

David Eaton v Commissioner of Police [2010] NSWIRComm 1035

Eaton v Industrial Relations Commission (NSW) (2012) 218 IR 289; [2012] NSWCA 30

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55

Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37

Robinson v Commissioner of Police [2014] NSWIRComm 35

State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344

Trevor Allan Cottle v Commissioner of Police [2017] NSWIRComm 1055

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2007) 233 CLR 259; [2008] HCA 5

Texts Cited:

P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters Australia)

Category:

Principal judgment

Parties:

2019/381789; 2020/63922

Trevor Cottle (Applicant)
NSW Commissioner of Police (First Respondent)
Industrial Relations Commission of New South Wales (Second Respondent)

2019/393098

Police Association of New South Wales (Applicant)
Commissioner of Police (NSW Police Force)
(First Respondent)
Trevor Cottle (Second Respondent)
Industrial Relations Commission of New South Wales (Third Respondent)

Representation:

Counsel:
R de Meyrick (Trevor Cottle)
M Gibian SC, T Slevin (Police Association of New South Wales)
J Kirk SC, M Seck (NSW Commissioner of Police and NSW Police Force)
Submitting appearance (Industrial Relations Commission of New South Wales)

Solicitors:
Brazel Moore Lawyers (Trevor Cottle)
Jillian Whalebone (Legal Services, Police Association of New South Wales)
Kingston Reid Solicitors (NSW Commissioner of Police and NSW Police Force)
Crown Solicitor’s Office (Industrial Relations Commission of New South Wales)

File Number(s):

2019/393098; 2019/381789; 2020/63922

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 1588

Date of Decision:

15 November 2019

Before:

Simpson AJ

File Number(s):

2019/82306

HEADNOTE

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

Mr Trevor Cottle (Mr Cottle) was a member of the NSW Police Force from 20 December 2002 until 15 December 2016. On 1 December 2016, Mr Cottle was notified of the Police Commissioner’s decision under s 72A of the Police Act 1990 (NSW), to “cause [him] to be retired”. By application filed in the Industrial Relations Commission (IRC) on 14 December 2016, Mr Cottle sought relief under s 84 of the Industrial Relations Act 1996 (NSW) (the IR Act), claiming that the “cause … to be retired” decision was a “dismissal”, and that the dismissal was “harsh, unreasonable or unjust”.

On 3 February 2017, the Police Commissioner filed a notice of motion in the IRC by which he sought a declaration that the IRC had no jurisdiction to deal with Mr Cottle’s claim. On 22 August 2017, Murphy C acceded to the motion and held that the IRC lacked jurisdiction to hear and determine Mr Cottle’s unfair dismissal application, which was duly dismissed. Pursuant to s 187 of the IR Act, Mr Cottle sought and was granted leave to appeal to the Full Bench of the IRC against the decision. On 19 December 2018, the Full Bench upheld the appeal and set aside Murphy C’s decision, holding that the IRC did have jurisdiction to determine Mr Cottle’s claim.

The Police Commissioner sought judicial review of the orders made by the Full Bench of the IRC, pursuant to s 69 of the Supreme Court Act 1970 (NSW). Simpson AJ (the primary judge) granted the Police Commissioner’s application, declaring that the IRC lacked jurisdiction to hear and determine the application commenced by Mr Cottle for unfair dismissal pursuant to s 84 of the IR Act. The primary judge also made an order quashing orders of the Full Bench of the IRC, an order prohibiting the IRC from further hearing the unfair dismissal application, and an order in the nature of mandamus compelling the IRC to dismiss Mr Cottle’s application.

The principal issue on appeal was whether the primary judge erred in declaring that the IRC did not have jurisdiction to hear and determine Mr Cottle’s application under s 84 of the IR Act for unfair dismissal.

The Court held (Bell P, Basten JA and Payne JA agreeing), granting Mr Cottle’s application for leave to appeal and allowing the appeal:

1. The primary judge erred in holding that the reasoning of the High Court in Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 (Eaton) bound her to conclude that Ch 2 Pt 6 of the IR Act (which included s 84(1)) did not apply to police officers in respect of whom a decision under s 72A of the Police Act had been made: [48], [58]-[59] (Bell P); [84] (Basten JA); [85] (Payne JA).

2. Section 85 of the Police Act contemplated proceedings relating to a non-executive police officer being held before a competent tribunal with jurisdiction to deal with industrial matters which, in the context of a New South Wales statute, would reasonably be taken to be a reference to the IRC. The IR Act, in terms, applied to non-executive police officers. The Police Act stated in broad and unqualified language in s 218 that nothing in it affected the operation of the IR Act; and s 80(3) of the Police Act, which had resulted in s 218 being read down in Eaton, had no application to non-probationary officers, or to a dismissal pursuant to s 72A of the Police Act: [60]-[82] (Bell P); [84] (Basten JA); [85] (Payne JA).

3. The IRC had jurisdiction to hear and determine Mr Cottle’s application under s 84(1) of the IR Act: [82] (Bell P); [84] (Basten JA); [85] (Payne JA).

Judgment

1. BELL P: This application for leave to appeal is brought from the decision of Simpson AJ (the primary judge) in judicial review proceedings initiated by the NSW Commissioner of Police (the Police Commissioner) in respect of a decision of the Full Bench of the Industrial Relations Commission (IRC): NSW Commissioner of Police v Cottle [2019] NSWSC 1588.

2. The primary judge granted the Police Commissioner’s application, declaring that the IRC did not have jurisdiction to hear and determine an application commenced by a former police officer, Mr Trevor Cottle (Mr Cottle) for unfair dismissal pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (the IR Act). The primary judge also made an order quashing orders of the Full Bench of the IRC, an order prohibiting the IRC from further hearing the unfair dismissal application, and an order in the nature of mandamus compelling the IRC to dismiss Mr Cottle’s application.

The history of the proceedings

3. Mr Cottle was a member of the NSW Police Force from 20 December 2002 until 15 December 2016.

4. On 1 December 2016, Mr Cottle was notified of the Police Commissioner’s decision under s 72A of the Police Act 1990 (NSW), to “cause [him] to be retired”. At that time, s 72A relevantly provided as follows:

“72A    Incapable non-executive police officer may be retired

If:

(a)   a non-executive police officer is found on medical grounds to be unfit to discharge or incapable of discharging the duties of the officer’s position, and

(b)   the officer’s unfitness or incapacity:

(i)   appears likely to be of a permanent nature, and

(ii)   has not arisen from actual misconduct on the part of the officer, or from causes within the officer’s control,

the Commissioner may cause the officer to be retired”.

(Section 72A was repealed on 31 October 2017 and a broadly though not identically equivalent provision relating to retirement on medical grounds is to be found in s 94B of the Police Act, which was introduced in 2016 by the Government Sector Employment Legislation Amendment Act 2016 (NSW)).

5. By application filed in the IRC on 14 December 2016, Mr Cottle sought relief under s 84 of the IR Act, claiming that the “cause … to be retired” decision was a “dismissal”, and that the dismissal was “harsh, unreasonable or unjust”. The terms of s 84 of the IR Act are reproduced at [28] below.

6. On 3 February 2017, the Police Commissioner filed a notice of motion in the IRC by which he sought a declaration that the IRC had no jurisdiction to deal with Mr Cottle’s claim.

7. On 22 August 2017, Murphy C acceded to the motion and held that the IRC lacked jurisdiction to hear and determine Mr Cottle’s unfair dismissal application, which was duly dismissed: Trevor Allan Cottle v Commissioner of Police [2017] NSWIRComm 1055. At [18]-[19] of his reasons, Murphy C said that:

“I do not accept the applicant’s submission to the effect that the judgment of the High Court in Eaton and the decisions of this Commission in McDonald (No 2) and McDonald (No 3) are confined to the narrow questions of whether or not a dismissed probationary police officer (as in Eaton) or a police officer who claims to have been constructively dismissed (as in McDonald) is excluded from the general unfair dismissal provisions of the IR Act. The language used in both cases strongly suggests that the provisions of the Police Act constitute an exclusive code which sets out the only manner in which police officers, whose employment with the police force has been terminated pursuant to the provisions of that Act, may seek a remedy in this Commission.

This exclusive code does not provide for a ‘merit review’ by this Commission of any such termination, beyond that which is specifically provided for under Divisions 1C and 1D of Part 9 of the Police Act. As a consequence, police officers whose employment with the police force has been terminated otherwise than by way of an order made under section 181D of the Police Act, whether by way of dismissal of a probationary officer; or by way of alleged constructive dismissal; or by way of medical retirement; or by way of any other means, are precluded from seeking a remedy pursuant to the unfair dismissal provisions in Chapter 2, Part 6 of the IR Act.

8. Pursuant to s 187 of the IR Act, Mr Cottle sought and was granted leave to appeal to the Full Bench of the IRC against the decision. On 19 December 2018, the Full Bench upheld the appeal and set aside Murphy C’s decision, holding that the IRC did have jurisdiction to determine Mr Cottle’s claim: Trevor Allan Cottle v Commissioner of Police [2018] NSWIRComm 1080.

9. At [87]-[93] of its judgment, the Full Bench of the IRC held as follows:

“In Eaton, the High Court considered that the availability of reinstatement as a remedy highlighted that the IR Act was not framed with the Police Force in mind. The plurality did not consider this to be determinative, but rather that it highlighted that the IR Act is a general statute. In circumstances of medical retirement pursuant to s 72A we do not consider that the availability of reinstatement creates such a contrariety that by necessary implication it excludes the operation of Ch 2 Pt 6 of the IR Act.

We do not consider that the public interest in maintaining the integrity of the police force is diminished if Ch 2 Pt 6 of the IR Act is available to officers medically retired pursuant to s 72A of the Police Act.

There is no review method available in respect of s 72A of the Police Act. It would arguably be anomalous if an officer dismissed under s 181D of the Police Act was entitled to a merits review but an officer dismissed pursuant to s 72A was not. Where the Police Act makes no provision for merits review of a dismissal pursuant to s 72A of the Police Act, nor contains any provisions that are inconsistent with such a right existing, it is appropriate to conclude that claims under s 84 of the IR Act remain available.

There are no special terms associated with the removal from office pursuant to s 72A of the Police Act which are inconsistent with the Commission’s powers under Ch 2 Pt 6 of the IR Act. There is also an obvious parallel with the right to seek a remedy, specifically reinstatement, under s 242 of the Workers Compensation Act. The acceptance of the existence of that right is consistent with such a right of review for medical retirement.

Applying the reasoning in Eaton to the circumstances of a medical retirement under s 72A, we consider medical retirement under s 72A is an industrial matter for which the Commission’s power under Pt 6 of Ch 2 of the IR Act has been left intact which has not been expressly restricted by a provision of the Police Act.

On our construction of the Police Act and the IR Act there is no statutory intention to exclude the operation of Pt 6 of Chap 2 of the IR Act in relation to police officers medically retired pursuant to s 72A of the Police Act.

The Commission has power to determine the Unfair Dismissal Application, subject to the appellant lodging a written undertaking pursuant to s 90(b) of the IR Act not to proceed with the Workers Compensation Application”.

10. The Police Commissioner sought judicial review in the proceedings below of the orders made by the Full Bench of the IRC pursuant to s 69 of the Supreme Court Act 1970 (NSW). The primary judge noted that, on its face, the “cause … to be retired” decision under s 72A of the Police Act was a “dismissal” within the meaning of s 84 of the IR Act, and the Police Commissioner did not contend either at first instance or in this Court to the contrary. So much was consistent with Robinson v Commissioner of Police [2014] NSWIRComm 35 at [84]-[86]. The primary judge ultimately agreed, however, with the Police Commissioner’s submission, noting (at [5]) that:

“…there is to be discerned, from various provisions of the Police Act, a legislative intention that, notwithstanding the apparently clear terms of the relevant provisions of the IR Act, a decision under s 72A to cause a police officer to be retired (and thus dispense with the services of the police officer) is not within the jurisdiction of the IRC conferred by s 84”.

11. Accordingly, as noted at [2] above, her Honour granted judicial review, quashed the orders of the Full Bench of the IRC and declared that the IRC did not have jurisdiction to hear and determine Mr Cottle’s application for a remedy under s 84 of the IR Act for unfair dismissal.

12. Looming large in the background of the decisions of Murphy C, the Full Bench of the IRC and the primary judge was the decision of the High Court in Commissioner of Police for New South Wales vEaton (2013) 252 CLR 1; [2013] HCA 2 (Eaton), which had involved the question of whether the power to dismiss a probationary constable pursuant to s 80(3) of the Police Act was amenable to an unfair dismissal review by the IRC pursuant to s 84 of the IR Act. The High Court held by majority that the IRC had no jurisdiction. For the majority, Heydon J wrote separately and there was a joint judgment of Crennan, Kiefel and Bell JJ.

13. The essence of the primary judge’s reasoning in the present case is set out at [89]-[95] of her Honour’s judgment:

“Although the provisions of Pt 9 Div 1C are not directly relevant to decisions under s 72A, neither are they directly relevant to decisions under s 80(3). Nevertheless, the plurality in Eaton appear to have treated those provisions as a significant indicator that the jurisdiction purportedly given to the IRC under s 84 of the IR Act was incompatible with the terms of s 80(3) of the Police Act. So also did Heydon J. Indeed, the plurality (at [90]) said that the provisions of Pt 9 provide an example of inconsistency with provisions of the IR Act relating to unfair dismissal. That reasoning must apply equally in relation to s 72A.

Each of the reasons given by Heydon J applies, to a greater or lesser degree, to s 72A decisions. His Honour (like the plurality) placed significant weight on the characterisation of the s 80(3) discretion as ‘unfettered’. The Full Bench noted acceptance on behalf of the Commissioner that the s 72A discretion was not, like the s 80(3) discretion, ‘unfettered’. Presumably that was because the discretion only arises when the necessary preconditions of unfitness and permanency have been found to exist. But once those preconditions have been found to exist, the language of s 72A, like the language of s 80(3), unequivocally suggests an unfettered power to take the action for which the section provides. It is true that the language of s 80(3) is more explicit than that of s 72A, with direct reference to ‘at any time’ and ‘without giving any reason’. But, apart from the precondition of permanent unfitness, s 72A does not impose any restriction on the exercise of the discretion. Notably, there is no requirement for any steps to be taken with respect to notice to the police officer that action under s 72A is contemplated, nor any requirement that reasons be given. This is in contrast to action under Pt 9 Div 1C which makes specific provision for those steps to be taken.

The inconsistency with the remedies for which s 89 of the IR Act provides remain apposite. Those remedies, it will be recalled, include reinstatement or re-employment in a different position. Reinstatement is clearly not an available remedy in respect of a police officer who fulfils the preconditions of s 72A (one of which is that the police officer is, on medical grounds, unfit to discharge or incapable of discharging the duties of the position). (It may be accepted that it is less clear that re-employment in an alternative position is not an available remedy.)

The contrast between the generality of the IR Act and the particularity of the Police Act also remains apposite. Section 72A is, even more than s 80(3), a provision of considerable particularity, applying only where the stated pre-conditions have been found to exist.

The fourth reason given by Heydon J, the contrast with the restricted nature of the review available for ‘removed’ police officers, with what would be the more expansive review under s 80(3) (if Pt 6 of the IR Act were available) is also apposite. Availability of a s 84 review would mean that a police officer, caused to be retired on medical grounds, would have a merit review of the discretionary decision. It should be emphasised that the discretionary decision is not the finding of incapacity or unfitness on medical grounds, but the consequential decision when those findings have been made. The concepts of ‘harshness, unreasonableness or unfairness’ are not easy to relate to what are, not discretionary decisions but, specialist medical findings.

I have concluded that, for present purposes, the provisions of s 72A are relevantly indistinguishable from the provisions of the s 80(3). The reasoning in Eaton with respect to dismissal under s 80(3) demands the same conclusion in relation to decisions under s 72A. Of particular importance is the observation by the High Court that:

‘… the unfair dismissal regime of the IR Act was not framed with something like the Police Force in mind.’

That, as I have suggested above, is a statement of general application.

I am satisfied that the reasoning in Eaton binds me to conclude that Ch 2 Pt 6 of the IR Act does not apply to police officers in respect of whom a decision under s 72A has been made”.

14. A close consideration of Eaton and the legislative provisions with which it was concerned is obviously necessary for the purposes of this application for leave to appeal. As shall be seen, the terms and context of s 80(3) of the Police Act relating to probationary constables are very different from those concerned with medical discharge as contained in s 72A of the Police Act at the time of Mr Cottle’s dismissal (and which is now found in s 94B of that Act).

Grounds of appeal

15. Mr Cottle seeks leave to appeal on the following grounds:

“1 Her Honour erred in declaring that the Industrial [Relations] Commission of NSW does not have jurisdiction to hear and determine the Appellant’s application for a remedy under s. 84 of the Industrial Relations Act 1996 (NSW) for unfair dismissal.

2    Her Honour erred in quashing the orders of the Full Bench of the Industrial [Relations] Commission of NSW dated 8 October 2018.

3 On a proper construction of facts, and the Police Act 1900 (NSW) and the Industrial Relations Act 1996 (NSW) the Appellant’s entitlement to bring an unfair dismissal claim pursuant to Section 84 of the Industrial Relations Act as not impliedly removed or repealed by the Police Act.

4    Her Honour should have dismissed the Respondent’s Summons for prerogative relief with costs”.

Only 3 constituted a “ground’ on which the orders could be set aside.

Intervention

16. The Police Association of New South Wales (the Police Association) was not a party to any of the proceedings below, either in the IRC or in this Court. Notwithstanding this, it purported to file an application for leave to appeal from the decision of the primary judge.

17. In written submissions, the Police Association submitted that it has an interest in these proceedings, as it is:

“…an organisation of employees registered under the IR Act with constitutional coverage entitling it to represent the industrial interests of police officers in New South Wales. It is the only registered organisation of employees in New South Wales entitled to represent the industrial interests of police officers”.

18. The Police Association submits that it is “appropriate” for this Court to grant the required leave to appeal, as it is “both sufficiently interested in the proceedings and is aggrieved by the Decision”, for the following reasons:

“(a) The Decision fundamentally turned on the proper construction of and interaction between the IR Act and the Police Act. Registered organisations are entitled to initiate proceedings in the IRC on behalf of one or more of its members (see subsections 84(2) and (3) of the IR Act), alleging their dismissal was harsh, unreasonable or unjust. The Decision:

i.   Adversely affects the interests of the Association’s    members, whose interests were not represented in the hearing at first instance; and

ii.   Denies the Association’s right to initiate such proceedings on behalf of its members, and to represent the industrial interests of its members in this context more generally.

(b)   The Second Respondent medically retires, on average, in excess of 25 police officers each month. The Decision is likely to have a significant ongoing impact on the rights of a significant number of police officers, and the Association insofar as it may act in the interests of those police officers.

(c) The Applicant currently has industrial dispute proceedings before the IRC (initiated by notice of dispute under s 130 of the IR Act: matter no 2019/00258976), alleging (amongst other things) that the threatened medical retirement (under the current s 94B of the Police Act) of two of its members is harsh, unjust and unreasonable. The First Respondent has filed a motion in those proceedings seeking a declaration that the IRC has no jurisdiction to hear and determine that dispute in part based on similar reasoning to that accepted by Acting Justice Simpson in the Decision. Whilst the First Respondent has indicated to the Association it will not press those grounds of its motion in those proceedings at this time, it is apparent it may in future proceedings and as such has direct ramifications for the Association”.

19. The Police Commissioner opposed the Police Association’s application for leave to appeal and was, in my view, well justified in doing so; the application should be dismissed. The Court, however, granted the Police Association leave to intervene in the hearing of Mr Cottle’s application for leave to appeal. The Police Association supported Mr Cottle’s arguments.

Leave to appeal

20. Whilst the grant of leave to appeal was formally opposed by the Police Commissioner, that opposition was not vigorous.

21. In my opinion, this is an appropriate case for the grant of leave to appeal. It raises an issue going to an important question of jurisdiction and, as the differing decisions of the primary judge and the Full Bench of the IRC illustrate, the issue is not free from complexity.

Submissions on appeal

22. Broadly speaking, Mr Cottle and the Police Association sought to uphold the reasoning that had been advanced by the Full Bench of the IRC, and to distinguish the present matter from the High Court’s decision in Eaton, emphasising, amongst other matters, that the Police Act contained no provision by which a dismissal pursuant to s 72A could be challenged, unlike the position relating to a police officer who is removed by reason of the Police Commissioner’s loss of confidence in him or her, pursuant to s 181D. Emphasis was also placed upon the contrast between s 72A and the language of s 80(3) of the Police Act that was considered in Eaton and which authorised the Police Commissioner to dismiss a probationary police officer “at any time and without giving any reason”.

23. The Police Commissioner, on the other hand, contended that the reasoning of Murphy C and that of the primary judge was correct and should be confirmed. The Police Commissioner submitted, consistent with the primary judge’s decision, that Eaton was not relevantly distinguishable from the circumstances of the current case. Emphasis was placed, in particular, on what was said to be the special nature of the police force, as disclosed by a full understanding of the Police Act, it being submitted that:

“The special regulation for the NSW Police Force stands in contrast to other public sector employees. None of them have the same level of detail contained in specific legislation governing all manner of things regarding the appointment, conduct, discipline, retirement and removal of employees. No other public sector agency has such a special regime governing the discipline and removal of employees.

…

The unique nature of policing is embodied in the special regimes that have applied to police officers who wish to challenge their removal from the NSW Police Force.”

24. To address these submissions it is necessary first to set out in some detail the statutory framework relevant to Mr Cottle’s case. Points of difference in relation to the statutory provisions considered in Eaton will principally be noted in an analysis of that case which follows the review of the relevant legislative provisions.

Statutory framework

25. The statutory framework was set out with clarity in the primary judgment. The exposition of relevant statutory provisions set out below has been largely taken from the primary judgment, with minor modification.

Industrial Relations Act 1996 (NSW)

26. The IR Act received Royal Assent on 13 June 1996 and commenced on 2 September 1996. It replaced the Industrial Relations Act 1991 (NSW). Section 3(a) of the IR Act provides that an object of this Act, amongst other things, is to establish “a framework for the conduct of industrial relations that is fair and just”.

27. Part 6 of Ch 2 of the IR Act sets out a regime for dealing with applications alleging unfair dismissal. Section 83 of the IR Act is headed “Application of Part [6]”. Relevantly, s 83(1)(a) provides that Pt 6 applies to the dismissal of any public sector employee. The Dictionary to the IR Act defines “public sector employee” as including a member of the NSW Police Force. Section 83(5) of the IR Act provides that a “dismissal”, in the case of a “public sector employee”, includes “dispensing with the services of the employee”.

28. Sections 84(1) of the IR Act provides that:

“84    Application for remedy by dismissed employee

(1)   If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission [the IRC] for the claim to be dealt with under this Part.”

29. Section 88 of the IR Act sets out matters that the IRC may, “if appropriate”, take into account in determining claims under s 84 of the IR Act. Section 89 outlines five orders that the IRC may make in determining claims, which include, inter alia, orders for reinstatement, re-employment in another position, and payment of compensation.

30. Section 405 of the IR Act provides:

“405    Statutory provisions relating to public sector employees

(1)     Any award or order of the Commission does not have effect to the extent that it is inconsistent with—

(a) a right of appeal under Part 7 of Chapter 2 or the Police Act 1990, or

(b)   a function under the Police Act 1990 with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty.

(2)     The regulations may provide that an award or order of the Commission has effect despite any right or function referred to in subsection (1).

(3)     This section does not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair dismissals)”.

Police Act 1990 (NSW)

31. The Police Act has been subject to extensive, but piecemeal, amendment over the years. The references that follow are references to the provisions of the Police Act as applicable at the time relevant to these proceedings.

32. Section 5 of the Police Act outlines that the NSW Police Force is comprised of four classes of members: (a) the Commissioner; (b) members of the Police Force Senior Executive Service; (c) all other police officers and administrative officers employed under the Police Act; and (d) temporary employees.

33. Part 6 of the Police Act, comprising ss 62-80, is concerned with “[n]on-executive police officers”, and applies to all police officers other than the Police Commissioner and members of the Senior Executive Service. Division 2 of Pt 6 contains a number of provisions pertaining to the appointment of non-executive police officers, transfers and promotions.

34. Section 72A of the Police Act, extracted at [4] above, was inserted into the Police Act to commence on 4 February 2008: Police Amendment Act 2007 (NSW). The Act had no equivalent provision prior to this time. As noted at [4] above, s 72A was repealed by the Government Sector Employment Legislation Amendment Act, and substantially re-enacted (in slightly modified terms) as s 94B of the Police Act.

35. The terms of Div 4 of Pt 6, containing only one section, s 80, relevantly provided that:

“80    Appointment and promotion of constables

(1)   The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable.

(2)   A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations.

(3)   The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason.

(4)   The promotion of police officers within the rank of constable is subject to the regulations”. (emphasis added).

Section 80(3) of the Police Act was of central significance in the High Court’s decision in Eaton, to which it will be necessary to return in due course.

36. Part 8A of the Police Act contains detailed provisions for investigating and dealing with complaints about the conduct of police officers. It does not contain any provisions for the termination of employment of police officers about whom complaints have been made and substantiated.

37. Part 9 of the Police Act, comprising ss 173-187, is entitled “Management of conduct within NSW Police Force”. It played an important role in the submissions on behalf of the Police Commissioner in particular. Part 9 comprises 8 Divisions.

38. Section 181D, falling within Div 1B of Pt 9, empowers the Police Commissioner to remove a police officer in whom he or she has lost confidence, having regard to the officer’s competence, integrity, performance or conduct. It is in the following terms:

“181D    Commissioner may remove police officers

(1)   The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer’s suitability to continue as a police officer, having regard to the police officer’s competence, integrity, performance or conduct.

(2)   Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister.

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

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

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

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

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

(5)   The removal takes effect when the order is made.

(6)   (Repealed)

(7) Except as provided by Division 1C:

(a)   no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and

(b)   no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section.

In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission.

(7A)   Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action.

(7B) Nothing in Division 1C limits or otherwise affects the Commissioner’s power to vary or revoke an order in force under this section.

(8)   For the purposes of this Act, removal of a police officer from the NSW Police Force under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force.

(9)   The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action”.

39. Division 1C of Pt 9, comprising ss 181E-181J, provides a mechanism for the “review” of a removal under s 181D. Except as provided by Div 1C, “no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section”, noting “tribunal” is defined to mean “a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission”: s 181D(7) of the Police Act.

40. Division 1C is entitled “Review of Commissioner’s decision under Division 1B”. Section 181E provides:

“181E    Review generally

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

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

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

41. Section 181F makes specific provision for the proceedings on review. Inter alia, it specifies the sequence in which the IRC is required to proceed in conducting a review under Div 1C: it “must” first consider the Police Commissioner’s reasons for the decision to remove the applicant; it “must” secondly consider the case presented by the applicant as to why the removal is “harsh, unreasonable or unjust”; and it “must” thirdly consider the case presented by the Police Commissioner in reply. This is in contrast to s 162 of the IR Act, which empowers the IRC (subject to provisions of the IR Act) to determine its own procedure.

42. Sections 181F(2) and (3) of the Police Act provide:

“(2)   The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.

(3)   Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to:

(a)   the interests of the applicant, and

(b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1))”.

43. Division 1C of Pt 9 of the Police Act affects the application of the IR Act to an application for review under that Division. Section 181G(1) provides that:

“[t]he provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications…”

44. The modifications effected by s 181G(1) were as follows:

“(a) section 83 (Application of Part) is to be read as if subsection (3) were omitted,

(b) section 85 (Time for making applications) is to be read—

(i)   as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and

(ii)   as if subsection (3) were omitted,

(c)   section 86 (Conciliation of applications) is to be read as if it provided that a member of the Commission who is involved in any endeavour to settle the applicant’s claim by conciliation must not subsequently be involved in the conduct of proceedings on the review,

(d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted,

(e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made,

(f)   section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless—

(i)   notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or

(ii)   the Commission gives leave."

45. Section 181G(2) provided that:

“The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances—

(a)   where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information,

(b)   where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously,

(c)   where the Commission is satisfied that the new evidence might materially have affected the Commissioner’s decision”.

46. Section 218 of the Police Act provided that:

“218 Industrial Relations Act 1996 not affected

(1)   The Industrial Relations Act 1996 is not affected by anything in this Act.

(2) Subsection (1) does not limit section 44 or 88 or any provision of the Industrial Relations Act 1996”.

(Section 218 was amended in October 2017 to change the reference to section 44 to section 42).

47. Section 44(2) of the Police Act provided that the employment of an executive officer, and any matter relating to such employment, “is not an industrial matter” for the purposes of the IR Act. Section 88(1) of the Police Act made similar provision in relation to the appointment of non-executive officers: see [61] below. The High Court in Eaton held that s 218(1) of the Police Act “is now patently erroneous” (at [87]), and “does not operate in its terms” (at [90]). As explained by the primary judge, the former was because Pt 9 of the Police Act does affect the IR Act; and the latter was a consequence of the “level of inconsistency” between Pt 9 together with s 80(3) of the Police Act, on the one hand, and the unfair dismissal provisions of the IR Act, on the other hand.

Commissioner of Police for New South Wales v Eaton

48. In the proceedings below, the Police Commissioner relied heavily on the decision of Eaton and, as has been noted, ultimately the primary judge found that the reasoning in Eaton bound her Honour to conclude that Pt 6 of Ch 2 of the IR Act did not apply to police officers in respect of whom a decision under s 72A of the Police Act had been made.

49. In Eaton, Mr Eaton was a probationary constable appointed to the Police Force. Following disputes between Mr Eaton and his superiors about the former’s conduct, and while he was still on probation, Mr Eaton was dismissed under s 80(3) of the Police Act which, as set out above, provided at the time of Mr Eaton’s dismissal in May 2007 that:

“The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason”.

50. Mr Eaton sought a remedy under s 84 of the IR Act, claiming that the dismissal was “harsh, unreasonable or unjust”. He was successful, and an order for his reinstatement was made: David Eaton v Commissioner of Police [2010] NSWIR Comm 1035. The Police Commissioner appealed to the Full Bench of the IRC, which allowed the appeal and held that the IRC lacked jurisdiction to make the orders it had made: Commissioner of Police v Eaton (2011) 207 IR 209; [2011] NSWIRComm 51.

51. This Court reversed that decision, holding that the IRC did have jurisdiction to make the orders it had made: Eaton v Industrial Relations Commission (NSW) (2012) 218 IR 289; [2012] NSWCA 30.

52. On further appeal to the High Court, the two main issues were the interaction between s 80(3) of the Police Act and Ch 2 Pt 6 of the IR Act, and the effect of s 218 of the Police Act.

53. In relation to the first of these issues, the High Court held that there was no jurisdiction in the IRC under s 84(1) of the IR Act to hear applications by persons dismissed under s 80(3) of the Police Act.

54. The plurality (Crennan, Kiefel and Bell JJ) held that textual indications in the Police Act pointed towards a legislative intention that a decision made under s 80(3) of the Police Act to dismiss a probationary constable was not to be subject to merits review by the IRC under Pt 6 of the IR Act: see at [72].

55. It should also be noted that the plurality placed some emphasis upon the nature (probationary) of the police officers to which s 80(3) of the Police Act applied, and what that character implied for the ability to dismiss such officers without merits review. Thus, their Honours said at [52]-[53]:

“Non-executive police officers include probationary constables. As the term suggests, such constables are on probation until they are confirmed as officers of the NSW Police Force. In O'Rourke v Miller, Gibbs CJ said that ‘probation is a time of testing or trial and a probationer whose conduct, character or qualifications fail to meet the test need not be confirmed in the office to which he was provisionally appointed.’

Clauses 13 and 14 of the Police Regulation 2008 (NSW) deal with the process of confirmation of appointment as a constable. In addition to completion of initial basic training and a period of probation, cl 13 requires a satisfactory fitness report concerning the probationer before an appointment can be confirmed. Amongst the matters which the fitness report is to address pursuant to cl 14 are the probationary constable's integrity and conduct. Integrity is a value of the NSW Police Force; so much is stated in the Police Act. It is against this background that s 80(1) and (3) respectively provide that, subject to the Act and its attendant regulations, the Commissioner may appoint a person as a police constable and may dismiss a probationary police constable at any time and without giving any reason.” (footnotes omitted).

56. Their Honours placed particular emphasis on the terms of s 80(3) of the Police Act which they characterised as "strongly suggestive of an unfettered power to dismiss": see at [74]. At [90], their Honours discerned an inconsistency between both the provisions of Pt 9 of the Police Act and s 80(3), on the one hand, and s 218(1) of that Act, on the other hand, such that, in the circumstances of the case, "s 218(1) does not operate in its terms." The plurality, in holding that s 80(3) was impliedly inconsistent with s 218(1), said (at [90]) that:

“It conveys more than that the Commissioner may dismiss without giving reasons. It implies an unfettered power and therefore that the decision is not to be subjected to a review on the merits. That implication is supported by other aspects of the construction of the Police Act, to which reference has been made. Thus if the general jurisdiction of the IR Act is recognised by s 218, it is withdrawn by s 80(3) in so far as decisions under that provision are concerned.” (footnote omitted).

The “other aspects” of the construction of the Police Act to which reference was made were the detailed provisions of Pt 9 of that Act. (It may be noted, in this regard, that it was common ground that those provisions do not apply to a dismissal pursuant to s 72A of the Police Act.)

57. Heydon J, agreeing with the plurality but expressing his reasons differently, identified four steps in reasoning that the Commissioner had no jurisdiction under s 84(1) of the IR Act to hear applications by persons dismissed under s 80(3) of the Police Act, as follows:

1. First, the language of s 80(3) of the Police Act points against the conferral of any jurisdiction on the Commission to deal with claims that a s 80(3) dismissal is “harsh, unreasonable or unjust” within the meaning of s 84(1) of the IR Act. The phrases “at any time”, “without giving reason” and “probationary” were all said to evidence an intention to exclude the jurisdiction of the IRC, as inconsistent with a challenge on the ground that the dismissal decision was harsh, unreasonable or unfair: Eaton at [11]-[18].

2. Secondly, the remedies under s 89 of the IR Act, including an order for reinstatement, for re-employment, for payment for lost remuneration, and for continuity of employment, are “clearly inconsistent” with the Police Commissioner’s power under s 80(3) of the Police Act: Eaton at [19]-[20].

3. Thirdly, the general provisions of the IR Act “must give way” to the particular provisions of s 80(3) of the Police Act: Eaton at [21].

4. Fourthly, the Police Commissioner’s powers under s 80(3) of the Police Act, in relation to probationary constables, stands in contrast with the Police Commissioner’s powers under s 181D of the Police Act, in relation to police officers: Eaton at [22]-[31].

Consideration

58. The question that arises for determination is one of statutory construction. It is not a question that was determined in, or is governed by, Eaton, in terms of binding ratio decidendi. This Court’s task is to construe the Police Act and the IR Act by reference to established principles of statutory interpretation; it is not to construe the majority’s decision in Eaton. As McHugh J observed in Marshall v Director General, Department of Transport (2001) 205 CLR 603 at 632-3; [2001] HCA 37 at [62], in a passage cited in the unanimous judgment of the High Court in Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (2007) 233 CLR 259 at 270; [2008] HCA 5 at [31]:

“The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.”

59. No disrespect is intended or conveyed in relation to the decision in Eaton by heeding the High Court’s injunction to attend to, and not to stray from, the “precise terms” of the statutory text: Baini v R (2012) 246 CLR 469 at 476; [2012] HCA 59 at [14] and the cases there cited; see also P Herzfeld and T Prince, Interpretation (2^nd ed, 2020, Thomson Reuters Australia) at [33.120]. Eaton is obviously a decision that must be considered carefully by this Court in its determination of this appeal; it is not, however, the first port of call. The beginning and end of the task of statutory interpretation is the statute or, in this case, statutes, that fall to be construed: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47].

60. Although non-executive police officers in New South Wales are not engaged as employees under contracts of employment, but are independent office holders exercising original authority under statute and the common law (see the illuminating and learned discussion by Leeming JA in State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 at [50]-[63]), non-executive members of the police force, such as Mr Cottle, fall within the definition of “public sector employees” in the IR Act, and thus are members of the class of persons to whom the operation of the IR Act is extended: IR Act s 83(1).

61. It may also be noted that s 85 of the Police Act deems the Police Commissioner to be the employer for the purposes of any proceedings relating to a non-executive police officer held before a competent tribunal with jurisdiction to deal with “industrial matters”. The Police Act does not define “industrial matters”, although s 88(1) may found an implication that, other than the matter dealt with in that sub-section, “industrial matters’’ picks up the definition of that expression in s 6 of the IR Act which includes, in s 6(2)(e), “the termination of employment of (or the refusal to employ) any person or class of persons in any industry”. Section 88(1) of the Police Act provided that:

“88    Industrial arbitration or legal proceedings excluded in relation to appointments

(1)    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.”

(Section 88 has subsequently been amended with the references to “appointment” being replaced by “engagement”).

62. The key point to be made at the outset is that s 85 of the Police Act contemplates proceedings relating to a non-executive police officer being held before a competent tribunal with jurisdiction to deal with industrial matters. In the context of a New South Wales statute, the reference to such a tribunal may reasonably be taken to be a reference to the IRC. So much is also consistent with the plurality’s acceptance in Eaton at [43], that “in many respects, [the IR Act] applies to the conditions of employment of police officers.”

63. If this point needed confirmation, it is supplied by the terms of s 218(1) of the Police Act which, it will be recalled, provides that “[t]he Industrial Relations Act1996 is not affected by anything in this Act.”

64. The language of s 218 is not, on its face, ambiguous, but its literal meaning and apparently wide breadth was called into question by the plurality in Eaton, as has been noted at [56] above. At [82], their Honours described s 218 as “troublesome”; cf the dissenting judgment of Gageler J who regarded it as “determinative”: at [104]. It is critical to note, however, that the plurality did not hold that s 218(1) was robbed of all operation, meaning and effect. Rather, the plurality’s conclusion was far narrower, being that “if the general jurisdiction of the IR Act is recognised by s 218, it is withdrawn by s 80(3) in so far as decisions under that provision are concerned” (emphasis added, footnote omitted): see Eaton at [90], and see [56] above for fuller context.  Earlier, at [88], the plurality had said that, even if one were to proceed on an expressio unius assumption as to the meaning of s 218(1) derived from s 218(2) – the approach which the Court of Appeal had taken in that case – “the general provision of s 218 would yield to what is implied by s 80(3) of the Police Act.”

65. That s 218 of the Police Act was not to be denuded of all operation, meaning or effect was confirmed by the plurality in their conclusion at [92]:

“The IR Act may apply generally to the Police Act, but not where the operation of the former produces an internal inconsistency in the latter. Such an effect, which would be reached if a decision under s 80(3) of the Police Act were subject to review under Pt 6 of the IR Act, cannot be taken as intended. The conclusion reached concerning the non-application of Pt 6 of the IR Act to a decision made under s 80(3) may further be tested by reference to s 218 of the Police Act and the rule of construction mentioned at the outset of these reasons. In each case, the general provisions of the IR Act do not apply in the face of the special, and inconsistent, terms of s 80(3) of the Police Act.” (footnote omitted).

This passage again highlights the importance of s 80(3) of the Police Act to the plurality’s reasoning.

66. Much the same observation may be made in respect of the separate reasons of Heydon J, the final member of the majority: see the summary of Heydon J’s reasoning at [57] above.

67. Pausing at this stage of the analysis, it may be observed that:

1. the IR Act in terms applies to non-executive police officers;

2. the Police Act states in apparently broad and unqualified language, expressed “continuously in the present” (to quote Gageler J in Eaton at [104]), that nothing in it affects the operation of the IR Act; and

3. that section of the Police Act which resulted in s 218 of the Police Act being read down (and out) in Eaton, namely s 80(3), has no application to non-probationary officers or to dismissal pursuant to s 72A of the Police Act.

   68. In addition, the special characterisation or nature of probationary constables to which the plurality gave some attention in Eaton (see at [55] above) has no application in the present case.

   69. In this context, a question arises as to whether there is any statutory indication in the Police Act, either analogous to s 80(3) or otherwise, which warrants construing s 218 of the Police Act as inconsistent (an internal inconsistency) with other provisions of that Act, and as not meaning what it says. In my opinion, there is none.

   70. Even if such a provision or provisions could be identified, it must also be asked whether there is any inconsistency with the IR Act (an external inconsistency) which means that the important statutory right conferred on public sector employees by s 84 of that Act should yield to the provisions of the Police Act, especially when, subject only to the limited scope for judicial review, a far-reaching decision made under s 72A of the Police Act is not subject to any other review process under that or any other Act. Again, my answer to this question is also “none”.

   71. Section 72A of the Police Act (see [4] above) is, in terms, very different from s 80(3). Contrary to what was submitted on behalf of the Police Commissioner and what was stated by the primary judge at [93], s 72A requires far more than a medical assessment to be made. Rather, it requires a number of non-medical assessments to be made, including what level of fitness is required to discharge the duties of the officer’s position, and whether or not the unfitness or incapacity has arisen from causes within the officer’s control. It also involves an ultimate exercise of discretion (“may”) by the Police Commissioner to “cause the officer to be retired.”

   72. Section 80(3), by contrast, is more peremptory, permitting the Police Commissioner to dismiss a probationary officer “at any time and without giving any reason.” In this context, it may be appreciated how the unfettered nature of s 80(3) (upon which both the plurality and Heydon J placed emphasis in Eaton) could be thought to contra-indicate a legislative intention to permit broad review by a general tribunal such as the IRC of an administrative decision made pursuant to that section. Section 72A lacks the same unfettered character.

   73. Mr Kirk SC, who appeared with Mr Seck for the Commissioner, submitted, as noted at [23] above, that the special character of the police force meant that decisions concerning removal of police officers should be taken to be exclusively governed by the provisions of the Police Act. He noted that, as regards non-executive police officers, there were three routes by which an officer’s position may be “vacated”, to borrow the euphemistic language of the Police Commissioner’s written submissions. These were by:

(a)   medical discharge under s 72A (as in force at the relevant time);

(b) dismissal of probationary constables under s 80(3); or

(c) removal from the NSW Police Force, pursuant to s 181D, on the basis that the Police Commissioner does not have confidence in the police officer’s suitability to continue as a police officer, having regard to their competence, integrity, performance or conduct.

74. Building on Eaton in respect of s 80(3) and probationary constables, and s 181D in relation to what may broadly be described as dismissal “for cause”, it was submitted that “the remedies available to NSW Police officers have been restricted and attenuated to take into account the unique industrial and operational considerations relevant to police work.”

74. The force of this argument is significantly diminished, however, by the fact the Police Act does grant the IRC a role, albeit modified, in the case of dismissal for cause, by reference to the same criteria – “harsh, unreasonable or unjust” – as appears in s 84 of the IR Act: see s 181E(1) of the Police Act, set out at [40] above. It is no doubt the case that the legislature has modified the procedures by which the IRC deals with “harsh, unreasonable or unjust” challenges by dismissed police officers dismissed pursuant to s 181D. That statutory modification may well reflect the special character of the police force to which the Police Commissioner drew attention (see [23] above). But what is perhaps most significant for present purposes, and where the Police Commissioner’s argument falls down, in my opinion, is that the legislature has left some, albeit modified, scope for review by the IRC of dismissal of police officers for cause.

75. Whilst the absence of such review for dismissal of probationary constables may be explicable in part by reference to their limited and contingent membership of the police force, it would be anomalous in the extreme for established officers dismissed pursuant to s 72A of the Police Act to be left without any recourse to challenge, on grounds that are open to other public sector employees. The position is a fortiori when it is recalled that a s 72A dismissal may only take place where the police officer has been innocent of any actual misconduct, or has not been responsible for his or her unfitness or incapacity: see Police Act s 72A(b)(ii), extracted at [4] above. If, as the Police Commissioner submitted, this results in a “superior” right of review for such an officer, as opposed to that available to an officer dismissed for cause pursuant to s 181D, that is not a surprising or irrational matter.

76. The Police Commissioner’s response to this point was that the Police Act manifested an intention that only certain decisions were to be the subject of review, namely those under s 181D for which review was expressly provided by ss 181E, 181F and 181G. The corollary of this submission was that “absent such provision, review is not permitted.”

77. There are at least two problems with this submission, in addition to the anomaly that I have already pointed out at [75] above.

78. First, it does not accommodate s 218 of the Police Act, and what was said about that section in Eaton cannot save it in this regard. I have already drawn attention to the fact that the plurality confined their analysis of s 218 to its interaction with s 80(3) which led to a limited reading down, confined to cases of dismissal pursuant to that section. There is no equivalent provision to s 80(3) pointed to by the Police Commissioner in the circumstances of the current case.

79. Secondly, the Police Commissioner’s argument is effectively an expressio unius argument but, as Mr Kirk was constrained to concede in oral argument, such an argument cuts both ways and, in combination with the relevantly unqualified operation of s 218(1), the argument breaks against the Police Commissioner rather than in favour of him. In other words, with respect to non-probationary police officers, the legislature only saw the need to confine a “s 84 style” review, that is to say, a review on the basis of “harsh, unreasonable or unjust” grounds, to the less meritorious case of a dismissal of a non-probationary police officer for cause, pursuant to s 181D. A decision to dismiss pursuant to s 72A, moreover, is not quarantined from review, even to a limited extent, by any provision equivalent to s 181D(7) of the Police Act: see [38] above.

80. For all of these reasons, and with the greatest of respect to the primary judge, I do not share her Honour’s view that Eaton binds this Court to conclude that Ch 2 Pt 6 of the IR Act (which includes s 84(1)) does not apply to police officers in respect of whom a decision under s 72A of the Police Act has been made.

81. In my opinion, the IRC has jurisdiction to entertain Mr Cottle’s claim.

Conclusion

83. In my opinion, the following orders should be made:

1. In proceedings 2019/381789 and 2020/63922, grant leave to appeal and allow the appeal with costs.

2. In proceedings 2019/393098, dismiss the application for leave to appeal.

3. Set aside the decision of Simpson AJ and, in lieu thereof, dismiss the Summons for prerogative relief brought by the Commissioner of Police (NSW Police Force) with costs.

4. No order as to the costs of the Police Association of New South Wales.

84. BASTEN JA: I agree with Bell P.

85. PAYNE JA: I agree with Bell P.

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Decision last updated: 27 July 2020