Ferdinands v Commissioner for Public Employment

[2005] HCATrans 572

[2005] HCATrans 572

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A15 of 2005

B e t w e e n -

TREVOR KINGSLEY FERDINANDS

Appellant

and

COMMISSIONER FOR PUBLIC EMPLOYMENT

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 9 AUGUST 2005, AT 9.50 AM

(Continued from 8/8/05)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Solicitor.

MR KOURAKIS:   If the Court pleases.  Your Honours should now have available, and I ask that it be handed up, I think copies of the Police (Complaints and Disciplinary Proceedings) Act.  If it is convenient to your Honours, I might just deal with some housekeeping and provide some further materials.  We have a full copy of Reprint No 8 of the Industrial and Employee Relations Act and I provide now six copies to your Honours ‑ ‑ ‑

GLEESON CJ:   Thank you.

MR KOURAKIS:   Your Honour Justice Kirby inquired about the legislation that was considered in the case of Nassar that decided that probationary appointments for public service probationers had no right of application to the Industrial Relations Commission for unfair dismissal.  We have made copies of that legislation and we have also copied the Public Sector Management Act in the form of Reprint No 1 which is the form that existed at the time of Mr Ferdinands’ dismissal and also in its present form in the event that some comparison of those provisions with the Police Act are of assistance to your Honours.

GLEESON CJ:   Thank you.

MR KOURAKIS:   I do not intend to go through those Acts except to give your Honours references to sections that are relevant here.  In the Public Service Act section 40 was the section that governed the employment of public servants for a probationary period, and that was the section considered in the case of Nassar referred to in footnote 13 of our submissions.  In the Public Sector Management Act section 41 deals with probationary appointments under the Act that now governs public sector employees.  Provisions as to termination of employment are found in sections 50, 51 and 52, termination for disciplinary offences in sections 58 and 60, and the appeal provisions – that is appeal to tribunals – are found in sections 61 and 63.

KIRBY J:   That is of which Act?

MR KOURAKIS:   That was the Public Sector Management Act.  Your Honours have two prints of that, the print at the time of Mr Ferdinands’ dismissal and the current.

KIRBY J:   Yesterday we were complaining about a lack of South Australian legislation.  Now we have another complaint.

MR KOURAKIS:   Errors of the left and the right committed on consecutive days, your Honours.  In answer to questions raised by your Honour Justice Kirby, I referred to the decision in Gnatenko’s Case yesterday and this goes to the question of whether the use of the term “re‑employment” should be understood as authorising an order that there be a new employment, a fresh period of employment, and I distinguished that from a question of reinstatement.  I told your Honours that that was the view taken in Gnatenko’s Case.

KIRBY J:   Of course, as Justice Hayne pointed out, it is not just the word “re‑employment”, it is also the content relating to the rights to intermediate salary and other benefits.

MR KOURAKIS:   Yes, your Honour, and there has been some amendment to that over time, that is to the powers to ensure that there is no disadvantage, although the idea that there should be no disadvantage in the new employment existed from the beginning.  There has simply been some elaboration of the powers the Tribunal has to ensure that.

KIRBY J:   The Court had a recent case on the meaning of the word “reinstatement” within the last four months that was handed down.

MR KOURAKIS:   Blackadder, I think, your Honours.

KIRBY J:   Yes, that is right.

MR KOURAKIS:   Your Honours, at page 586 in the middle two paragraphs, your Honours will see the discussion of Chief Justice Bray of the distinction and in the middle paragraph he expressly draws the distinction between the power to direct re‑employment and reinstatement.  At pages 600 and 601 the distinction is discussed by their Honours Justices Walters and Wells from the last two paragraphs on page 600 over to 601.  In particular, at 601 their Honours make the point that in ordering re‑employment on terms not less favourable, a direct inconsistency arose between the section and the award because the award provided that on the commencement of a new employment certain conditions applied and they were improved and increased as time went on.  An order of the Industrial Tribunal that there be re‑employment on conditions better than the conditions applying on first employment was therefore inconsistent with the award.  So that very reasoning, in my submission, illustrates the importance of the distinction, at least in that case, between re‑employment and reinstatement.

Your Honours, can I now go to the Police Act and very quickly take your Honours to some of the provisions in Reprint No 1 that your Honours have.  I can refer to some of the sections mentioned yesterday but which might not have been before all of your Honours.  Can I go first to section 5 and that is a section your Honour Justice Gummow referred to in terms of understanding the objects and purpose of the legislation.  In my submission, the matters there set out can be properly described as the protection of the public.

GUMMOW J:   Mr Solicitor, are you confident that this 1975 case did not come to this Court, the General Motors Case?

MR KOURAKIS:   No, I do not think that did, your Honour.  The matter of Bowling I think might have but I do not know that Gnatenko did, but I will check that.  Your Honours, going back to the Police Act, your Honour Justice Callinan referred to section 10 yesterday and in particular the obligation on the Commissioner in subsection (2).  Your Honour, in a practical sense there perhaps are not going to be too many cases where it becomes apparent that the Commissioner is about to proceed to termination by disregarding any of those elements, and so the questions of injunctions before a decision to terminate is unlikely to arise in practice.  If it did, however, for some reason, then an injunction to ensure compliance with subsection (2) might well avail an employee.  Equally, after termination, if it can be shown that any of those obligations were disregarded and that they were an essential precondition to the exercise of the power, then there may be available a form of review of the termination itself.

The next provision I take your Honours to is section 17 which governs the appointment and termination of very senior officers in the police force.  The Commissioner is not subject to the later disciplinary provisions in the Act – he is in fact the body that imposes the discipline – but the Deputy Commissioner and Assistant Commissioners are.  The appellant suggests that it may well be the case, it is arguable, that the unfair dismissal jurisdiction does not extend to terminations effected under section 17.

That is certainly the position that we take and at face value it would be surprising if the unfair dismissal provisions extended to the appointments and the positions considered in section 17.  Our submission is that the reason section 17 dismissals are not liable to review under the Industrial and Employee Relations Act is that the Act as a whole shows a clear intention to deal in a particular way with dismissals.  That is, our argument as to why section 17 dismissals would not be subject to review is precisely the same argument as to why the other dismissals later in the Act are not liable to review.  If on the appellant’s case dismissals effected pursuant to section 40 are liable to review, it is difficult to see why that would not equally apply to these appointments under section 17.

KIRBY J:   Do you accept that the result for which you argue puts the law of South Australia out of harmony with the international Convention?

MR KOURAKIS:   Your Honour, only with respect to dismissals for commission of a criminal offence because in all other respects the special regulatory regime and appeal regime enacted by the Police Act provides opportunities to be heard, appeal mechanisms, reviews which would comply with the Act.

KIRBY J:   But it is a derogation from the international obligation which the Parliament of South Australia has referred to in the Industrial Relations Act.

MR KOURAKIS:   Only in respect, your Honour, to those terminations consequent upon conviction for a criminal offence, a matter not specifically addressed by the Convention of course, but in terms of the Convention’s general obligation that there be reviews before independent tribunals, section 40 evinces, if we are right, a clear intention not to have that take place.

KIRBY J:   It leaves Justice Debelle’s comment hanging in the air though, does it not, that there are criminal offences and criminal offences?  Jaywalking is a criminal offence, and to dismiss somebody for jaywalking might seem a trifle harsh, even if he is a police constable, without any right of review or without any right of reconsideration by anyone as to whether it is harsh, unreasonable and unconscionable.

MR KOURAKIS:   Your Honour, assuming extreme cases like that are not amenable to review on any other basis such as, for example, the basis suggested by his Honour Justice Callinan, then it appears, in my submission, to be the case that the Parliament has decided that it is more important to ensure the discipline and integrity of the police force by giving the Commissioner that power than it is to allow for that extreme case by way of merits review.

Your Honours, section 27 of the Act deals with probationary appointments and the termination of a probationary appointment.  Again on the appellant’s contentions, terminations of probationary appointments would be reviewable by the Industrial Relations Commission.  There would not appear to be any reason to distinguish between terminations under this section and a disciplinary termination, and yet the difficulty in applying the Industrial Relations Commission’s powers to probationary appointments are immediately obvious. 

If the order as to re‑employment was simply re‑employment as a probationary constable, then it would commence from the beginning.  Alternatively, the Commission might make an order that the probationer that it places back in new employment be in fact confirmed within a fixed period, but to make such an order would cut across the discretion given to the Commissioner in section 27(3) to extend the period of probation as he or she saw fit to ensure that no officer was appointed fully as a constable until they had satisfied the Commissioner that they could meet the standards expected of officers so appointed.

KIRBY J:   Yes, but if you take the theory that it is re‑employment putting the person back into the status quo ante, then the Commissioner has all the powers that he has under the Police Act to apply to that employment.  It is just back to the position it was before.

MR KOURAKIS:   Yes.  In my submission, that could only be effected by an order, for example, in the case of a probationer who had been on probation for nine months, that they be confirmed within a certain period of their new employment and, say, confirmed in 15 months to ensure their appointment by the end of the two‑year probationary period.  That is how it would have to be effected, but any such order designed to put the probationer back in the same position would necessarily cut across the discretion.  On the other hand, the appeal regime which allows reviews to the Police Review Tribunal allows for the continuing monitoring of the decisions the Commissioner might make in the course of supervising that probationary period of employment.

Your Honours, next I come to section 40.  Mr Ferdinands’ dismissal involved an exercise of the power based on the condition in 40(1)(a).  Can I briefly mention something about the history of provisions of this sort allowing the imposition of a penalty for conviction of a criminal offence.  The legislation is found in our book of documents.  I will not take your Honours to it but can I just say that it was only between 1981 and 1985 that the relevant Acts empowered the Governor to make regulations that would then allow the Commissioner to impose a penalty for commission of a criminal offence.

Those same Acts between 1981 and 1985 provided also that the regulations could allow for an appeal from any such penalty to the relevant disciplinary tribunal.  Between 1985 and 1998 the Acts did not appear to allow for the imposition of a penalty on the conviction of a criminal offence alone.  The Commissioner would have to proceed by way of charge, what your Honour the Chief Justice described yesterday as a departmental offence.  So it was in 1998 after a period of not dealing with the question directly that the Parliament deals with it by enacting 40(1)(a) and in the context of appeal provisions which would preclude any appeal for a penalty imposed under that subsection.

KIRBY J:   Was there anything in the second reading speech which explained the purpose?

MR KOURAKIS:   No.  Your Honours, the other observation I make about section 40 is this.  Going to the penalties that can be imposed by the Commissioner, whether for commission of criminal offence or on a finding of guilt of the departmental disciplinary offence, if termination is the penalty imposed, then plainly the penalties (e) through to (h) and (j) through to (n) cannot also be applied.  One could not terminate and then also reduce rank and the like.  Possibly one could terminate and fine.

The point about that submission is this, that if there is an order for re‑employment rather than reinstatement, it would not be possible, in my submission, on a construction of section 40 for the Commissioner to impose any of the other penalties.  The Commissioner’s termination stands, is not quashed.  There is no way in which the other penalties can then be imposed because they are simply not penalties that can be imposed together with the termination which he effected and remains valid.

Your Honours, as to the penalties of course, the other observation to make is that the administrative division of the District Court has jurisdiction to hear appeals on the imposition of any of those penalties, including termination, but also the lesser penalties.  In our submission, it is difficult to imagine that Parliament intended the review of all of those penalties other than termination to lie with the District Court but then to allow in the case of termination alone that it can be reviewed at either the option of the police officer or the discretion of the Industrial Relations Commission by that Commission.  Termination is, after all, the ultimate penalty in what is a hierarchical scale of penalties, a consideration of which the District Court will have experienced because of its wider jurisdiction.

KIRBY J:   Yes, but why is that such a curious outcome when you have the Parliament of South Australia enacting a specific provision for unfair dismissals?

MR KOURAKIS:   Your Honour, that is the question to be decided.

KIRBY J:   Yes, but you are saying it is a curious outcome.  I do not find it a curious outcome at all.  There is a specific provision for this particular and most extreme employment penalty and it is in conformity with an international obligation which has been expressly referred to in the South Australian legislation.

MR KOURAKIS:   Your Honour, the question is what has the Parliament provided, not just in the Industrial and Employee Relations Act, but in both Acts.  The reason why it is difficult to imagine that Parliament intended that, in my submission, is in a sense a legal policy reason, that is, the experience that the District Court will have in determining the whole range of penalties, and then in giving another tribunal jurisdiction over just one of them.

Your Honours, the submissions I made yesterday were to the effect that the test on review to the District Court of a penalty imposed by section 40 is different to the test that would be applied by the Industrial Relations Commission, although the considerations might overlap.  I say that because of the purposes evident in the Police Act.  If, on the other hand, your Honours, the test is the same, then it becomes even more difficult to imagine why the Parliament would have wanted two different tribunals to deal with the same question applying the same relevant test to the termination.

Your Honours, I should say at this point that the District Court of course in its review sits to hear an administrative review of the Police Commissioner’s decision, sits in the shoes of the Police Commissioner, which is different to the role adopted by the Industrial Relations Commission.  It is also the case that the District Court in hearing appeals from the imposition of penalty by the Commissioner is required by the statute to give it a certain deference, that is not to depart from it other than for cogent reasons, a form of statutory deference of course that the Industrial Relations Commission is not required to give to the Commissioner’s decision.  Can I just hand up the section of the District Court Act which governs its hearing and determination of those appeals.

GUMMOW J:   What do these words “imposing punishment” mean in section 46(2) of the Disciplinary Act?

MR KOURAKIS:   In my submission, any one or more of the penalties that one finds in section 40.

GUMMOW J:   But not termination.

MR KOURAKIS:   No, in my submission, including termination.  Termination has an additional consequence of course to the other penalties in that it brings the appointment in the employment relationship to an end but it is still a penalty and simply the ultimate penalty in that hierarchy.

KIRBY J:   I do not wish to be tedious, but again you have handed up legislation from the Parliament of South Australia.  Page 1 is the District Court Act 1991 and pages 2 and following are the Equal Opportunity Act 1984.  I just have no idea where these fit into the District Court Act.  Are these part of provisions of the District Court dealing with special provisions applicable to administrative appeals?

MR KOURAKIS:   That is so.  That is the provision that governs the District Court’s determination of an appeal.

KIRBY J:   I would repeat what Justice Callinan said yesterday.  It is very dangerous if you are a stranger to an Act to look at it without the context.  Presumably there is a heading and there is a structure and we are just given one page.

MR KOURAKIS:   If your Honour pleases.  I will make the part available to your Honours.  Can I just say that that is the provision that governs appeals brought pursuant to section 46, the provision his Honour Justice Gummow just took us to.  The Equal Opportunity Act provisions are in answer to the question from your Honour Justice Kirby yesterday concerning the way in which applications might be brought under that Act.  Your Honour will remember the reference made to those applications.

KIRBY J:   There is an example in the statute.

MR KOURAKIS:   Yes, that is right.  Your Honours, I will not stay to deal in great detail with the termination provisions in 45 and 46, but again on the appellant’s construction of both Acts, there would be no reason why those terminations should not also be reviewed by the Industrial Relations Commission, although appeals can be brought again ultimately to the District Court from terminations effected under those sections.

HAYNE J:   I am sorry, but under 46(2), “imposing punishment upon him [or her] for a breach of discipline”, why would this be a breach of discipline as defined in 3(1) of the Discipline Act, a breach that may be the subject of a charge by the Commissioner?

MR KOURAKIS:   This particular dismissal of Mr Ferdinands for commission of a criminal offence is not.  I made that submission yesterday, your Honour.  It does not appear to fall within it and that is why penalties imposed in cases like this are the only penalties not subject to review in the District Court.  It is our submission that that absence of review in the District Court is important and significant in itself.  A conspicuous absence or exclusion of these dismissals from that regime tell against the jurisdiction of the Industrial Relations Commission extending to them.

KIRBY J:   Essentially your theory is that if there is some penalty or burden, counselling and so on, then the person is still within the system and can be the subject of adjustment by the District Court but that if they are put outside the system by dismissal, then they are no longer susceptible to any District Court review.

MR KOURAKIS:   No, your Honour, termination is susceptible to review if it is imposed for a breach of departmental discipline.  There is no doubt about that.  It is only if there is ‑ ‑ ‑

KIRBY J:   That makes it all the more curious then, especially if you keep in mind jaywalking.

MR KOURAKIS:   It makes the exclusion significant and important in terms of construing Parliament’s intention.  I have made those submissions.  Your Honours, can I just say, looking at the decision of his Honour Justice Bleby below, and indeed looking at the appellant’s submissions in this case, it appears as if it was almost overlooked that there was an appeal to the District Court for terminations for breach of departmental discipline.  His Honour Justice Bleby does not specifically refer to it, nor does his Honour Justice Debelle, but, in our submission, it is important and significant that there is expressly allowed a review to the District Court for terminations for a breach of departmental discipline.  It is only this particular sort of case, criminal offence, that Parliament has excluded from that scheme.

GUMMOW J:   Where do we find the charging provisions of the Police Act?  Is it 39?  Is that the only one?

MR KOURAKIS:   Yes, your Honour.  Section 39 of the Police Act, is your Honour looking at that?

GUMMOW J:   Yes.  There is a disharmony between the definition of “breach of discipline” in the Disciplinary Act when it refers to the 1952 Act and the Police Act 1998, but the best one can come up with is that the charge under the Police Act 1952 referred to in the “breach of discipline” definition is somehow to be read as a charge under 39 for breach of the Code.

MR KOURAKIS:   Yes.  In my submission, that can be done.  It would be better if it did not have to be done but it can be.  Your Honours, dealing with the grounds of termination on the basis of disability and the unsatisfactory performance, where those sections refer to termination because of a member’s incapacity to perform duties or because the officer is not performing duties satisfactorily or make reference to it not being practicable to transfer the police officer to another rank or position, the obligation of the Commissioner is to make that decision based on the standards that are necessary so that the public can be protected.

They are the considerations that must guide the Commissioner in making the decisions under those sections.  The Commissioner might well have regard to the personal effect on the police officer before making the

decisions but ultimately he must make those decisions for that purpose.  Again, if there was to be a review to the Industrial Relations Commission, there would, in my submission, be necessarily a modification of that test and the subordination of the public interest to the subjective interest of the employee.

If the Court pleases, they are my submissions on the Act.  I am told, your Honour Justice Gummow, that the General Motors decision, Gnatenko’s Case, was not appealed to this Court.

GUMMOW J:   Yes, I have checked it as well.

MR KOURAKIS:   Your Honours, in his judgment his Honour Justice Bleby refers to the Bank Officials’ Association v Savings Bank of South Australia.  I think it was handed up yesterday.  Can I just say firstly that this decision was referred to without any disapproval and I think, with respect, with approval by her Honour Justice Gaudron in Saraswati’s Case at page 18, so it is not the case that anything said in Saraswati, for example, and where that passage has been later adopted is inconsistent with this case. 

This case concerned the application of the South Australian Industrial Code allowing an industrial tribunal to fix terms and conditions to savings bank employees.  The Court held that the Act regulating the employment of those employees showed an intention that it would exclusively govern their employment.  The later general Act, the later Industrial Code, was held to not apply.  Can I simply refer your Honours to the way in which the relevant questions were identified by Chief Justice Knox at the foot of page 282 over to page 283 and to the consideration of the same question by Justices Isaacs and Rich at pages 289 over to 290 and at 292.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Dr Churches.

MR CHURCHES:   Your Honours, this case goes off simply, in our submission, on whether the two Acts, the Police Act on the one hand, and the Industrial Act on the other, can be read as standing together, or does one behave in such a manner or may it be read in such a manner as to be in conflict and inconsistent with the other.  In our submission, this is not so. 

The reason that we would submit that Justice Gaudron, for example, referred to the Savings Bank Officers Case, to which my friend referred a moment ago, is that that decision of this Court illustrates two pieces of legislation which could not be read together, the point being that the particular terms of the Savings Bank Act of this State 1875 were particular provisions as to the industrial terms that affected bank officers, the terms of their employment, the basis of their wages, their leave and their termination, and they were of such specificity that they were found to be in conflict by the majority of this Court with the terms of this State’s then industrial code of 1920, and the phraseology used by Chief Justice Knox is that at page 285 of the Bank Officials’ Case, the top six lines or so there, where he talks about inconsistency between the Acts and the decision of Justices Isaacs and Rich to similar effect on page 292 at about points 2 and 3 on that page where their Honours said:

In other words, its subject matter –

that is the Savings Bank Act –

in general terms, is precisely what in the individual case –

I am sorry, they were talking about the general terms of the industrial code – 

of the Savings Bank the Legislature has provided for “in a special way by the special Act.”

In our submission, the Police Act is not so special.  My friend has rested his case substantially on the concept that the methodology provided by the legislature of this State for dealing with police constables in terms of their disciplining and perhaps ultimately their termination, shows that in some instances where in particular there is a breach of the disciplinary Code respecting police, then there is a review process – a quite intricate review process.

There are two different police tribunals.  They may be merit reviewed by the District Court, and my friend says we can go to the District Court there, why would there be provision for another form of review in the Industrial Relations Commission, and the short answer is that the Industrial Act in section 106(2) specifically makes provision for the possibility that employees may find more than one avenue open to them.  It is specifically provided for.  We went over that yesterday.

There seems to be an additional point made by my friend that in terms of section 40(1)(a) of the Police Act, which is the avenue leading to action by the Police Commissioner, possibly termination in respect of a conviction of a police officer, that there is no review provided into either of these disciplinary tribunals and hence onto the District Court of this State, and that therefore we should infer that the terms of the Industrial Act – those very general terms – are to be deflected and that we should infer that they are pushed away from police officers who are dealt with by the Commissioner in terms of his powers under 40(1)(a) and, in our submission, that process of inference is simply not open because the terms of the Industrial Act are made broad and wide.

Section (4) particularly makes the definition of “public employee” a broad one.  It plainly, in our submission, deals with police officers who are dealt with in paragraph (b) of that definition, paid for out of State funds by salary.  There appears to be no legislative clarity – there is no clarity whatsoever indicating that police officers are not to be within the embrace of the Industrial Commission.  My friend’s every endeavour must be by inference only that police do not have available to them the process of review under the Industrial Review Commission and, in our submission, that process of inference is not available.

What matters is whether the two Acts are able to stand alone, and indeed, there was a phrase used by Justice Hayne yesterday in which his Honour referred to the concept of Acts marching together in step, and we would with all humility suggest that the metaphor might be slightly varied.  We would submit that legislation is actually not required to march in step in order to be able to be read together.

It may well be that in the multitude of legislation that emerges from modern legislatures that the legislation will tend to fall over itself to some extent.  It may be a disorganised rabble but so long as the legislation may be read together that is enough.  If the legislation, however, diverts ‑ ‑ ‑

KIRBY J:   I do not think we should refer to a Parliament of a State as an organised rabble.

GLEESON CJ:   We need not get caught up in metaphors.  Mr Solicitor has already told us that the District Court sits in the Commissioner’s shoes.

MR CHURCHES:   Yes, my point though being, your Honours, that the legislature may not have addressed directly the existence of other legislation.  Legislation from a former era may have passed the attention of the later legislature, the present legislature.  That being the case it may be that legislation does not sit comfortably with other later legislation, but in our submission, if there is no direct inconsistency – if one piece of legislation does not march off in another direction completely, and the example is, of course, what is raised by Justice Windeyer in Cobiac v Liddy where the framers of the Road Traffic Act in this State in 1961 had not turned their attention directly to the terms of the Offenders Probation Act from some 50 years earlier, 1913, but nonetheless, even though it was argued that the terminology of the Road Traffic Act intended draconian punishment, condign punishment for drunk drivers, nonetheless, it had not directly repelled the terminology of the Offenders Probation Act and Justice Windeyer said we do not go back to maxims, we should not use inferential methods.

If the two Acts may be read together then it is possible to read them together, and one is not deflected and suppressed in its operation.  In that case, the Offenders Probation Act was available to the magistrate at sentence in that case.

HAYNE J:   Do you accept the premise for the Solicitor’s argument which seems to be the Police Act and the Discipline Act read together treat differently the case of termination of a police officer convicted of crime from cases of termination for other cause or imposition of other consequences short of termination?

MR CHURCHES:   In our submission, your Honour, the distinction is not about termination, it is about the jurisdictional fact trigger in section 40(1), so the termination under the triggers of (b) and (c) which go to breach of the Police Code, if termination were the penalty that would feed into one of these police disciplinary tribunals and hence to the District Court, but it is the trigger of (a), a conviction on the officer, that appears to put that category into a separate class.

HAYNE J:   I take that answer to be, yes, you accept the premise?

MR CHURCHES:   Yes, your Honour, and we say that nothing flows from it because the Industrial Act is not deflected in either case.  In the case of the (b) and (c) triggers, a police officer so affected, may make his or her election as to whether they follow that route of review into the District Court for a merits review or whether they seek Industrial Relations Commission review of – but only, of course, in terms of termination because that is the trigger for the Industrial Relations Commission’s jurisdiction that is relevant here, the harsh and unjust dismissal terminology, but ‑ ‑ ‑

HAYNE J:   The other premise for the argument seems to be that the Industrial Act is concerned with whether what is described as industrial justice is offended by the fact or manner of termination, the Police Act, so the argument against you seems to be is concerned with other objects.  Now do you accept that that is the field for debate?  I understand the answer you proffer to the debate but is that the field for debate?

MR CHURCHES:   Yes, your Honour, but the critical issue is the word “termination” or the word “dismissal”, of course, in the Industrial Act and, in our submission “termination” in the Police Act is a serious matter.  The fact that it involves police, in our submission, does not detract from the generality of the problem of termination; that section 26, which we now have and did not, I regret, have yesterday, of the Police Act plainly indicates that the relationship between the Commissioner and officers of the South Australian Police is intended to be in the nature of contract.

In subsection (1) it refers to entering “into an agreement”, the officer enters:

into an agreement to serve in S.A. Police . . . 

(2)      No such agreement is void for want of consideration.

We merely make the point that that is analogous with the general contractual basis upon which the Industrial Relations Commission works.

KIRBY J:   Not quite, because there are not very many employees who have to take a prescribed oath or affirmation and I am still troubled by the fact that your theory really jumps over that.  The re‑employment leads to re‑engagement and yet the oath that commences employment or affirmation does not have to be taken again, though it is a re‑employment.

MR CHURCHES:   Yes, your Honour, in our submission, the order of the Industrial Relations Commission would be to re‑engage with the original contract, and the oath had not, in our submission, been shattered.

KIRBY J:   Even though by the application of the law of South Australia a person with a statutory power to do so had terminated.  It was an effective termination.  It was just that it was unjust and therefore could be, as it were, overcome, but it still was valid when it was done.

MR CHURCHES:   Yes, your Honour, in our submission, the Police Commissioner is in no better position than a private employer who is in a position to say to this employee you are terminated, but if the employee takes his action within the 21 days prescribed to go to the Industrial Relations Commission then that decision of the employer may be overturned and the termination may have been in existence until overturned or countermanded, as it were, but then the employee is back in the position that he or she was originally.

KIRBY J:   I think we have gone over this territory.

MR CHURCHES:   Yes.  Just to round out on that, though, your Honour, the example or analogy would be with a judicial review sought by an employee claiming that the Police Commissioner had acted beyond power, and in that case, the decision of the Supreme Court if it found there had been ultra vires action by the Police Commissioner would be to find that that decision of termination had been void, and in that case, the employment would be found effectively to have always been on foot.  True it is that for a period the badge had to be handed back, the uniform and so forth, but upon that determination of the Supreme Court, the termination decision by the Commissioner would be null and void, it would be swept away, and similarly, we say that is the effect of a decision of the Industrial Relations Commission.

GUMMOW J:   Do you rely on any particular provisions of Schedule 7 to the Industrial Act, that is the Convention?

MR CHURCHES:   Yes.  In particular Article 8, your Honour, which does refer to – yes, 8, 9 and 10 are the relevant provisions but particularly Article 8 refers to the necessity of an impartial tribunal to determine whether there is fair dismissal or not, the point being, of course, that if the Police Commissioner were left to his or her own devices they can hardly be regarded as an impartial tribunal.

GUMMOW J:   They can go to the Supreme Court for certiorari.

MR CHURCHES:   Indeed, your Honour, but we would submit in response ‑ ‑ ‑

GUMMOW J:   This word “appeal” used in an international instrument like this does not carry all the precise baggage it does here.

MR CHURCHES:   I am not suggesting there could not be a seeking of review in the Supreme Court, but in our submission, quite equally, the terminology of the Industrial Act is available to a police officer in that situation.  If there is ‑ ‑ ‑

KIRBY J:   The impartial tribunal would seem to infer a tribunal that can look at the merits of the case, and as the Solicitor reminded us yesterday the judicial review does not permit that.  It just permits the legal jurisdictional questions to be considered.

MR CHURCHES:   Yes, indeed, the judicial review would be far more limited whereas under the terminology used in Bostik’s Case the Industrial Commission is able to look at the position of the employer, the employee and weigh up various factors, so it is a form of merits review.

GUMMOW J:   It says:

impartial body such as a court, labour tribunal, arbitration committee or arbitrator.

MR CHURCHES:   Yes, your Honour.  We would submit the Industrial Relations Commission falls into some species of one of that category, an Industrial Tribunal or ‑ ‑ ‑

KIRBY J:   What is being put to you is that so does the Supreme Court.

MR CHURCHES:   Indeed, but we submit, your Honour, that that merely illustrates another avenue open to an employee but a rather more limited avenue of redress sought in ‑ ‑ ‑

KIRBY J:   Would it fulfil the purposes of the Convention?

MR CHURCHES:   The fact that there is one avenue open under the Convention, in our submission, does not detract from the generality of what the Parliament of this State has set forth, which is that this Act, the Industrial Act, will apply to public employees.

KIRBY J:   Yes, but look, at the end of your submissions you say a reason for adopting your construction is that that is the way that you fulfil the obligations of the Convention.

MR CHURCHES:   It is one of the ways, yes, your Honour.

KIRBY J:   Now, the suggestion is that it is sufficiently fulfilled by the right of judicial review in the Supreme Court.

MR CHURCHES:   Your Honours, if I might take you to Article 4 of the Convention, that is at Schedule 7 of the Act, we would submit that judicial review in the Supreme Court would not be adequately fulfilled by the terminology.  There has to be:

a valid reason for such termination connected with the capacity or conduct ‑ ‑ ‑

GUMMOW J:   Yes, that is right ‑ ….., to put it colloquially ‑ and the nature of the office is the very important public officer, a member of the Police Force.  That is the policy.  You might not agree with it or one might agree with it.  That seems to be the policy.

MR CHURCHES:   Yes, but the judicial review, your Honour, would merely go to whether the Police Commissioner acted within the bare confines.  It is a very, very limited ‑ ‑ ‑

GUMMOW J:   Or made an error of law in the face of the record.

MR CHURCHES:   Yes.  My friend has suggested to the Court that the Public Sector Management Act operates in a way that employees under that Act would not in turn be able to take or seek review before the Industrial Relations Commission, and in our submission, there is nothing in that Act to that effect, and the terminology of section 4, the definition of “public employees” at paragraph (a) plainly indicates that employees under that Public Sector Management Act are intended to have access to the Industrial Relations Commission even though there are avenues which my friend took the Court to, avenues for seeking redress or review of termination under the Public Sector Management Act itself.

Section 105 of the Industrial Act, in our submission, shows the parliamentary intention for the broadest jurisdiction of the Industrial Relations Commission, because that section does provide for the process of exemption ‑ or the exclusion, I should say ‑ of certain classes of employees at the behest of the Executive Government, and my friend did raise the example of probationers within the police force, the point being, though, that of course there are regulations now in existence which provide that probationers are not within the purview of the Industrial Relations Commission.  Now, I regret that that is not before the Court.  It is Regulation 10 of the regulations under the Industrial Act, and it specifically provides that probationers are not within the jurisdiction of the Commission.

KIRBY J:   Is that probationers generally or probationers under the Police Act?

MR CHURCHES:   I think it is probationers, generally, your Honour.

KIRBY J:   I think we should have that if that is a sort of derogation from the failure to make regulations.  You say that there has in fact been addressed the question of derogation and that those who made the regulation thought it appropriate to – but only appropriate to – exclude probationary constables.

MR CHURCHES:   Probationers, generally, your Honour, but that would embrace probationary constables, yes.

KIRBY J:   We had better have a copy of that.  We seem to be getting the statutes in dribs and drabs.

MR CHURCHES:   Yes, I apologise, your Honour.

KIRBY J:   This seems a very long reply.  Usually replies are short and sweet.

MR CHURCHES:   Your Honours, I know that time is against us.  I think we have addressed the matters raised by our learned friends.  If there are no further questions.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter, and we will adjourn for a short time to reconstitute.

AT 10.45 AM THE MATTER WAS ADJOURNED