Ferdinands v Commissioner for Public Employment

[2005] HCATrans 570

[2005] HCATrans 570

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 MONDAY, 8 AUGUST 2005, AT 2.17 PM

Copyright in the High Court of Australia

MR S.C. CHURCHES:   If it please the Court, I appear with my learned friend, MR S.D. OWER, for the appellant.  (instructed by Iles Selley Lawyers)

MR C.J. KOURAKIS, QC, Solicitor-General for the State of South Australia:   If it pleases the Court, I appear with my learned friend, MR C.A. STEVENS, for the respondent.  (instructed by Crown Solicitor’s Office South Australia)

GLEESON CJ:   Yes, Mr Churches.

MR CHURCHES:   Your Honours, the principle at stake in this case is the equal application of the law to all people in a jurisdiction and by corollary what must a Parliament do to alter some aspect of law from equal application to all persons in that jurisdiction.  The appellant submits that the Industrial Act, that is the 1994 Industrial and Employee Relations Act (SA) – it is easier to refer to the Industrial Act – the termination provisions ‑ ‑ ‑

KIRBY J:   We can refer to it as that.  We do not have to give it its new title, I hope.

MR CHURCHES:   In our submission, your Honour, nothing hangs on the fact that it has been re‑badged, as the modern saying goes, no, but for the purposes of this litigation it remains the Industrial Act.

KIRBY J:   You have footnoted the provision in the transitional clause of the schedule which shows that the cause of action remains, is that correct?

MR CHURCHES:   Yes, your Honour.

KIRBY J:   Anyway, there is no dispute about that.

MR CHURCHES:   There is no dispute on that, your Honour.  It remains in if not identical form, in very similar form for the purposes of what is at stake between the parties.

KIRBY J:   There also does not seem to be any dispute concerning the fact that your client is an employee for the purpose of the Act?

MR CHURCHES:   That has not been raised by the respondent at all, your Honour.  In our submission, the definition provisions of the 1994 Industrial Act plainly embrace the appellant because the definition of “employee” extends to “a public employee” and “public employee” in turn

is defined to include a person paid wages by the State.  Your Honour, we have a bundle which was given to the Court ‑ ‑ ‑

KIRBY J:   I would like to see that because Enever does seem to cast a shadow over that proposition.

MR CHURCHES:   My friend has a copy.  Yes, it is important, your Honour.  The bundle, I think, has been given to the Bench, your Honour.

GUMMOW J:   It is an imperfect bundle.

MR CHURCHES:   It is a bundle with on top – the headnote in Saraswati is at the top of this little bundle.  The bundle is numbered.  At page 7 at the very bottom – it is section 4 of the Industrial and Employee Relations Act – the definition of “employee” there includes “a public employee”.  On page 8 of the bundle “public employee” means:

(b)      any other person employed for salary or wages in the service of the State.

GUMMOW J:   Now, what reprint are you reading from? 

MR CHURCHES:   Your Honour, my learned junior points out that the bundle contains the Act as enacted in 1994 which was in force at the relevant time of the Full Court decision.  That definition of “public employee” has been slightly altered since but not at (b), and (b), in our submission, is the relevant provision.

GUMMOW J:   What is the relevant reprint number?  I am sure the Solicitor‑General will be able to tell us.  I have grown old and doubting when I am given bits and pieces of Acts.

MR KOURAKIS:   Your Honour, with respect to the Act that was handed up, it is not a reprint but it appears to be ‑ ‑ ‑

GUMMOW J:   I know.  You do have reprints in South Australia?

MR KOURAKIS:   Yes.

GUMMOW J:   What is the closest one?

MR KOURAKIS:   At the present time?

GUMMOW J:   No, at the relevant time.

MR KOURAKIS:   Your Honour, I cannot help you with that. 

MR CHURCHES:   One of the difficulties, your Honour, is that in this State it is now very difficult to obtain hardcopy versions of these Acts at various times.

GUMMOW J:   It is even harder for us.

MR CHURCHES:   Yes.  They are available to us substantially electronically now, but I am sure that this is the version as enacted in 1994 and which was in force at the time of the termination in November 2001.  So that, in answer to Justice Kirby’s original question as to whether or not the appellant is an employee, we submit that it has not been raised by the respondents and the definition of “public employee”, we would submit, does embrace police officers in the position of the appellant on a salary in the service of the State.

KIRBY J:   The respondent does make a point, though, in their written submissions that a police officer has to take an oath and is appointed to an office and that one of the consequences of your proposition is that although terminated he can by the Industrial Commission be reappointed to an office, although by the statute that is something which is a rather formal process by the Commissioner and with the consequent obligation to take an oath, and that that creates a problem for your theory of the operation of the Act.  So even though Enever is not directly raised, it, as I said earlier, hovers over the case because of the peculiar nature of the office of a constable or police officer.  You will have to come to that in due course, maybe not at this stage.  I think it is better that you just continue to develop your argument.  But do not forget that point.

MR CHURCHES:   Yes, your Honour.  If I could ask your Honour to jog my memory because we did not include Enever in our examination of the process but I understand your Honour’s concern.

KIRBY J:   The point is raised in the respondent’s submission.

MR CHURCHES:   Yes, thank you, your Honour.

GUMMOW J:   You do raise Enever in footnote 7, do you not?

MR CHURCHES:   Only in passing, your Honour.  It is a deflection in our reference.  We do not examine ‑ ‑ ‑

KIRBY J:   That was to cast dust into our eyes so we would forget about it.

MR CHURCHES:   No, to clear away any dust that might have been raised by previous litigation in this matter.  Now, your Honours, in our submission, there is no parliamentary language used in the Industrial Act or in the Police Act to deflect the general application of the Industrial Act and its termination procedures.  The importance of parliamentary language, we submit, goes back to what was said in this Court in Saraswati and in Cobiac v Liddy.  They are referred to, and with quotations extracted, in the appellant’s submissions at 5.19 and 5.20. 

In Cobiac v Liddy Justice Windeyer expressly cautioned that Acts should be read on their actual language to see if they can stand together.  That, in our submission, is really the heart of the matter today, this instant case.  In our submission, the Industrial Act provisions and the Police Act termination provision at section 40 can be read standing together.  Justice Windeyer, of course, said in Cobiac v Liddy that the problem was not to be answered by maxims, but unfortunately that is precisely what the respondent has done by resting on the doctrine or at least the maxim of expressio unius. 

It is not so much that they actually use that phrase at paragraph 10 of their submissions – that is, in our submission, not the particular evil – but at paragraph 16 of the respondent’s submissions they refer to an “irresistible inference” as to why the Industrial Act termination provisions have been deflected by the review procedures which the respondent says have been set up for various other aspects of police disciplinary matters, other aspects of termination. Indeed, in that paragraph 16 the respondent refers to the police legislation, that is the Police Act 1998 and the earlier Police Disciplinary Act 1985.  They refer to those Acts as a Code and there appears to be some magic hoped to be worked out of the idea of a codification of matters applying to police discipline and police termination. 

In our submission, there is no parliamentary language expressed with any clarity in either of those Acts, the Discipline Act 1985 or the Police Act 1998, which goes to pushing away or derogating from the very general terminology of the jurisdiction of the Industrial Relations Commission set up pursuant to the Industrial Act 1994.

Now, it is true that an implication may be used to effectively repeal legislation but, as Justice Gaudron said in Saraswati – and we have set out the quotation at 5.19 of our submissions – for there to be an implication of repeal there must be very strong grounds indeed for that implication.  In our reply the appellant draws analogy with the strong presumption that common law rights remain intact against all but the clearest of parliamentary intentions and in the reply we have cited Tanos, a now relatively elderly decision but, we would submit, very sound on the exclusion of natural justice, and a more recent decision, that of Coco, both in this Court.  We set them out at paragraph 4 of the reply. 

Now, the intent to displace common law rights in Tanos was of course dealing with the problem of whether natural justice had been displaced by the Disorderly Houses Act (NSW).  Chief Justice Dixon and with him Justice Webb in a joint judgment were quite clear that there were to be no uncertain inferences ‑ ‑ ‑

GUMMOW J:   What are the common law rights you are talking about?

MR CHURCHES:   In Tanos, your Honour ‑ ‑ ‑

GUMMOW J:   No, in this case.

MR CHURCHES:   No, I am sorry, your Honour, it is purely by way of analogy, but that issue, we submit, of general application to an entire community is strongly analogous with the issue of Parliament having enacted two separate pieces of legislation which must on their face be presumed to apply to the whole community.

HAYNE J:   Is it not better to start the argument, not at that level of abstraction, but by grappling with the relevant legislative language?  What is it that is engaged that is said to have been impliedly repealed or amended?  Yes, you can pitch it at a high level of aspiration if you like but at some point you have to grapple with the words.

MR CHURCHES:   Your Honours, we should in that case proceed directly to the Industrial Act ‑ ‑ ‑

GUMMOW J:   If we can find the words.

MR CHURCHES:   What my junior calls the mega bundle, which is Annexure A to the respondent’s submissions, a largish bundle with a blue binding, and the appropriate materials, your Honours, is at page 83 and onward of that bundle.  It is Part 6 of Chapter 3 of the Industrial Act.  It is our understanding that that is the appropriate reprint for the purposes of this litigation.

MR KOURAKIS:   Can I just assist the Court with that?  The reprint number that includes the amendment at the page that my learned friend has just taken your Honours to is Reprint No 8, but at page 82 your Honours will simply find the Amending Act.

GLEESON CJ:   Thank you.

KIRBY J:   Now, page 83 in my collection in the mega bundle is the Industrial and Employee Relations (Harmonisation) Amendment Act, is that correct? 

MR CHURCHES:   Yes, your Honour.

KIRBY J:   So that is an amendment of the Industrial and Employee Relations Act 1994?

MR CHURCHES:   Yes, your Honour, and this was the law in force at the relevant time.

KIRBY J:   Why do we not have the consolidated Act which incorporates the amendment that was made in that Amendment Act of 1997?

MR CHURCHES:   South Australia appears to be rather short on consolidations, your Honour.  My learned friend may have a more detailed answer to that.

MR KOURAKIS:   Your Honour, it could have been produced from Reprint No 8.  As it turns out, the provisions that we are here concerned with are those in the Amending Act, in our submission, and so the Amending Act was simply included, but the reprint could have been ‑ ‑ ‑

GLEESON CJ:  Yes, go ahead.

MR CHURCHES:   Your Honours, at the bottom of the right-hand column at page 83 of the bundle we see the first relevant section for the purposes of this matter is section 105A headed “Application of this Part”.  That section goes to the limitation or the possible imitation of jurisdiction of the Industrial Relations Commission by a process of express provisions.  So there we do have a capacity for limiting the jurisdiction of the Commission. 

Note that at subsection (1) there it is a limitation on the amount of remuneration of an employee, $66,200 per anum or less is the appropriate jurisdiction, and then in subsection (2) we have a capacity for regulations to be made which will exclude various categories of employees.  If in doubt there is a catchall at (e).  We are on to the next page, page 84 of the bundle, and there on the left-hand column we see “(e) employees of any other class”, the point being of course that the Executive Government in South Australia has within its capacity the regulation‑making power to have excluded various categories of employees from the unfair dismissal provisions of the Industrial Act.  It was open to make regulations in respect of police and has not done so. 

So we move from section 105A to section 106, which is the process of application for relief to the Industrial Relations Commission on dismissal.  Now, “dismissal” we note is not defined in the Industrial Act but, in our submission, is coterminous with the expression “termination” used in the Police Act.  So “dismissal” is the terminology in section 106. 

Now, section 106 is also important as reflecting the clear possibility addressed by the legislature that there might be other avenues of review open to employees who are dissatisfied with their termination.  Section 106 addresses the fact that there might be other avenues, that they might be taken, and if they are taken at the election of the employee then the employee, provided he or she has chosen an avenue which has real jurisdiction – an unlearned person might well choose incorrectly and find themselves without jurisdiction – but if they have chosen correctly with jurisdiction to another avenue then the Industrial Relations Commission door closes to them.  So the fact there are other avenues of appeal open is not of itself definitive of why the Industrial Relations Commission jurisdiction is swept away.  In our submission, not swept away at all.  The election lies with an employee to choose where he or she wishes to take their complaint.

HAYNE J:   I understand that the question of employee is not a question that has emerged onto the table yet, but humour me.  Why is a police officer an employee within the meaning of the Industrial and Employee Relations Act?

MR CHURCHES:   In our submission, your Honour, because of the provisions of section 4, the definition section ‑ ‑ ‑

HAYNE J:   Yes, take me through it and show me why.

GUMMOW J:   Where do we find section 4?

MR CHURCHES:   I am sorry, your Honours, in the bundle the very front page being the front page of Saraswati, we go into that bundle, at page 7 of that bundle, and there we have the Industrial Act, the definition of “employee” at the bottom of that page 7, and that definition expressly saying, your Honour Justice Hayne, that “employee” includes a “public employee”.  There is then a separate definition of “public employee” in which we submit the appellant is plainly within category (b):

any other person employed for salary or wages in the service of the State.

KIRBY J:   I am sorry to be persisting with this, you say it is not raised between the parties but it was raised on the special leave application by me.  Paragraph (b) is “employed for a salary or wages”, but the problem is that Enever suggests that that does not catch a person such as your client, that he may receive salary or wages but query is he employed and is he employed “in the service of the State” or is he a commissioned officer who is engaged pursuant to his commission?

MR CHURCHES:   Yes, your Honour, I have not come armed with copies of Enever to fight this particular battle but if I could say that in general terms Enever is not authority, if I could make this submission, that police officers holding the office of constable are not employees of the Crown.  It is authority only that the torts of such officers may not pass vicariously to the Crown as employer.  In our submission, the wheels fell off the buggy, as it were, 50 years later with the Perpetual Trustee Case both in the High Court and then moving to the Privy Council in about 1954 where their Lordships, particularly in the Privy Council, talked in terms not merely of a block on passing vicarious liability but talked about constables as not being employees. 

In our submission, that is plainly taking the matter too far.  We are not in a position to re-litigate that because, of course, every Australian jurisdiction has now passed legislation to make sure that the torts of police officers are notionally passed to the Crown while protecting the police personally for the good faith performance of their duties.  South Australia has it in section 65 of the Police Act and every other jurisdiction now has it.  So, in other words, we are never going to get to re-litigate Enever because legislation has overtaken the point and I should hate to see the law left in a position stranded like a whale with this problem hanging around of whether police officers are employees or not.  In our submission, the words of the Industrial Act in this State are very plainly intended to embrace police officers and we will go further and say ‑ ‑ ‑

HAYNE J: Why? You say that, and you may be right, but how does it fit with Part 4 of the Police Act?

MR CHURCHES:   With Part 6 of the ‑ ‑ ‑

HAYNE J: Part 4 “Appointment and Resignation”. You may be right. I am sorry to be so slow. Relevantly you enter at section 21: the Commissioner may appoint, amongst other things, constables. There can term appointments, leave that aside; the effect of appointment, section 26. Now, maybe that is what joins it all up and joins the dots, but is it?

MR CHURCHES:   Your Honour, I am looking at the wording of section 26(1).  There is an entering into an agreement to serve in the South Australian Police.  In our submission, that has transcended the idea of notionally holding only an office of constable.  One is entering into, in our submission, service in an organised body, the South Australian Police.

KIRBY J:   Where is that, which section?

MR CHURCHES:   I am sorry, your Honour, I was just looking at 26(1) where you enter “into an agreement to serve in SA Police”.

CALLINAN J:   Mr Churches, we do not have a full copy of the Act precisely as it was at the relevant time, do we?

MR CHURCHES:   No, we only have ‑ ‑ ‑

CALLINAN J:   Well, we must have that.

GUMMOW J:   We just cannot work without it.

CALLINAN J:   I am not going to look at an Act and look at a few sections in isolation.  If it is available electronically, you can print it out.  I want it and I do not want to have to do my own cut and paste job on it.  I want the complete Act.  I want all the legislation precisely as it was at the relevant time and we should really have that very soon.

KIRBY J:   In our copy in the mega bundle, as you called it, of the Police Act I have section 3, section 6 and then it jumps to section 27, and you have just referred to section 26.

MR CHURCHES:   Yes.

KIRBY J:   So we do not have section 26.

CALLINAN J:   Everything depends on context.  We cannot get the context unless we have the complete picture of the legislation.

KIRBY J:   I realise this is the respondent’s bundle but, as Justice Callinan has said, we have to have the whole thing, I am afraid.

CALLINAN J:   Surely the resources, I would have thought, of the respondent would have been such as to have this done now, so that by the time he gets on his feet we can have all the material.

MR CHURCHES:   Yes, I apologise, your Honour.  I had not realised that argument would spread a little wider than we had anticipated.

CALLINAN J:   We have to construe legislation.  You cannot do it by looking at a few sections.

MR CHURCHES:   I take your Honour’s point and we have straightaway gone to a section you do not have before you.  If I might confer briefly.  My friend tells me that it is in hand.  It will probably take a little while to print off the relevant copies but we hope, if I talk long enough ‑ ‑ ‑

CALLINAN J:   Do not take that as an encouragement.

MR CHURCHES:   No, your Honour.

GUMMOW J:   Does the Termination of Employment Convention play any part in this?

MR CHURCHES:   It certainly does, your Honour.  The Industrial Act will come to the Court, your Honour, and that has, of course, scheduled to it – Schedule 7 is the Convention on Termination, in which we would submit parenthetically, your Honour Justice Gummow, that Article 8, which talks about the appropriateness of an impartial tribunal to deal with termination, is particularly relevant in the light of the statutory interpretative canons about interpreting legislation in the light of relevant international Conventions.

GUMMOW J:   Will we need to look at Conrad v Victoria 91 FCR 95?

MR CHURCHES:   We came armed with a copy in case there was a question but we do not think that it is particularly to point, although Justice Hayne ‑ ‑ ‑

GUMMOW J:   It touches on this question of who an employee is, does it not?

MR CHURCHES:   Yes, indeed, your Honour.  It is a Full Federal Court authority that police officers are, for the purposes of this sort of industrial legislation, and it is highly analogous, are to be treated as employees of this sort of legislation.

GUMMOW J:   By reason of the Convention.

MR CHURCHES:   Indeed, your Honour.

GUMMOW J:   Which Convention is a schedule to the industrial statute here.

MR CHURCHES:   Yes, your Honour.

KIRBY J:   Can I just ask, Australia is a party to that Convention?

MR CHURCHES:   Yes, your Honour.

KIRBY J:   Is that Convention incorporated into Australian domestic law in federal law?

MR CHURCHES:   I need to be careful, your Honour, and say, as far as I know it is merely scheduled to the relevant federal legislation.

KIRBY J:   We had better have a reference to that as well because Australia is represented on the international stage by the federal Executive Government.

GUMMOW J:   We have had cases on this very point in the federal sphere, the Workplace Relations Act.

MR CHURCHES:   Yes.

KIRBY J:   That is Victoria v The Commonwealth (1996).

MR CHURCHES:   Yes.  The Convention on termination is only scheduled to the federal legislation.  It is not actually enacted within the caucus of the Act itself.

KIRBY J:   But you say whatever problems arise there it has been incorporated into South Australian State law by the decision of the Parliament of South Australia.

MR CHURCHES:   I need to be careful with my language, your Honour.  Perhaps not incorporated but certainly scheduled to.

KIRBY J:   What force is it given in South Australian law?

MR CHURCHES:   We would submit that on the ordinary statutory interpreted canons it is a matter that must be taken into account in interpreting the legislation.

KIRBY J:   There must a provision – a substantive provision in the Act, the South Australian Act which refers to the Convention in the Schedule.  It just does not sit there in the Schedule on its own.

GUMMOW J:   Section 111.  Try section 111.

MR CHURCHES:   Yes, your Honour, thank you - which is in the large bundle at page 85.  I am sorry, 108, your Honour.  It is on page 85 in the left‑hand column, section 108 of the Industrial Act:

(2)      In deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must have regard to –

(a)      the Termination of Employment Convention –

That still leaves me with Justice Hayne’s question hanging in the air, to some extent.

HAYNE J:   Go on.

MR CHURCHES:   We hope that the legislation arrives to help us through.  Section 108 of the Industrial Act is the next relevant provision and under that section the Industrial Relations Commission has power to determine whether dismissal is “harsh, unjust or unreasonable”, at which point we note that those words are tantamount to words of art, now, having been explored in an industrial context many times.  We have referred in our reply at paragraph 9 to Bostik’s Case in the Full Federal Court and, indeed, the quotation that we set out in paragraph 9 in the reply is quoted at length by Justices McHugh and Gummow in Byrne’s Case in this Court.

The point about the quotation from Bostik is that a tribunal vested with this power to analyse whether a termination is “harsh, unjust or unreasonable” does so by a balancing of considerations.  It looks at the position of the employer, the employee, the conduct of the employee and so forth.  In our submission, that is relevant to that question of whether police are so special that they should be seen as inherently different from all other classes of employees.

In our submission, there is no problem about the Industrial Relations Commission being able to weigh up any factors about police discipline, the fact that they have to work in a hierarchical and disciplined – dare I say, a quasi‑military, as they plainly are – a quasi‑military body.  These are factors which may be taken account of by the Industrial Relations Commission and that is on general terms as for it, and Bostik is merely an example of such general theorising about the work of an industrial tribunal.

KIRBY J:   Do you get any support for your propositions from the example which appears under section 106 of the Industrial Act that is on page 84 where it says:

Example –
If an employee brings proceedings under the Equal Opportunity Act 1984 -

I suppose that does not really answer the question of the police service, but it certainly contemplates that there will be some proceedings that run in tandem with the Industrial Act under the Equal Opportunity Act.  Is there an Equal Opportunity Tribunal in this State, or Commission, or who deals in this State with Equal Opportunity Act complaints?

MR CHURCHES:   We, in this State, have a Commission and a Tribunal, your Honour.  My learned junior points out that they are established under the Equal Opportunity Act 1984, yes.

KIRBY J:   It does not really answer the Police Act question because the question still remains, is the Police Act so unusual, special, peculiar that it stands outside this general statute.

MR CHURCHES:   We submit, your Honour, that this shows that Parliament has plainly intended that if there is another review process open and an employee adopts that other process, not the Industrial Relations Commission, then that is their choice, their election, their business, and they go down that avenue and they may not then come back to the – if they do not like what they get.  For example, under the Police Act most of the review is driven into the District Court which in this State has a special administrative arm.

Judges in that court are vested with a capacity to overview tribunal decisions of many cases in this State and hence there are two police tribunals set up under the relevant Police Acts.  One is the Police Review Tribunal and the other the Police Discipline Tribunal.  Their decisions are driven into the District Court by way of review.  We submit that insofar as the Police Act makes that provision that does not indicate that the Police Act has intended or reflects an intention on the part of Parliament to push away the Industrial Relations Commission jurisdiction.

Section 106 of the Industrial Act is quite clear, you can have other avenues.  They do not detract from the IRC’s general jurisdiction; the employee makes his or her choice.  But, of course, in our situation, our client the appellant’s position is so much stronger in terms of this logic because his termination under section 40(1)(d) has no connection to the review capacities which flow through the two different Police Tribunals.

According to the Police Act there is no provision made for going to either of those tribunals from the decision of the Commissioner to terminate under section 40(1)(a) which is where there is a conviction and then conviction is the trigger for the consequences which the Commissioner may then impose on one of his members of the South Australian Police, the point being that in section 40(1)(a), (b) and (c) of the Police Act those three paragraphs are triggers.  They provide jurisdictional facts which allow the Police Commissioner to utilise the powers given to him under that subsection, powers which range all the way from paragraph (d) which is “termination” – obviously the most severe – right down to the bottom end which is “counselling” and being sent off for re‑education – being flogged with a lettuce leaf.

The point though, at this stage, your Honours, is that the triggers are differentiated according to where a review might or might not be available and the police tribunals which funnel their review process into the District Court if they are challenged, or the Commissioner’s powers to exercise what he does under section 40(1), all those powers are reviewable in the District Court if they emanate from a (b) or a (c).  Section 40(1)(b) and (c) both go to disciplinary infractions, breaches of the Code, either a refusal to admit when challenged that there has been, on the part of a constable, a breach of the Code or – and this I might say is a Code which is set up at section 37 of the 1985 Discipline Act.

We do not quibble with the fact of that Code.  The Code that I was earlier criticising was the notional code that my friends had purported to set up by conjoining the Police Act and the Police Discipline Act.  There is a police code of conduct and a refusal to admit to such breach or an admission or a finding of such breach constitute the (b) and (c) in section 40(1).  Such matters do raise an opportunity to appeal straight through to the District Court by way of review.

There is no such provision in respect of the trigger (a), which is a conviction, in this case a conviction in the State Magistrates Court.  The appellant is then left without any other avenue of a review whatsoever.  He merely has the Commissioner purporting, we submit merely purporting to terminate, as indeed we submit any employer in this State is entitled to purport to terminate.  The determination, if challenged by the employee and taken to the Industrial Relations Commission, is then a matter for that Commission.

We submit that that is simply the case here.  There are no magic words in section 40(1) of the Police Act which deflect the Industrial Relations Commission’s jurisdiction.

KIRBY J:   You say that there is nothing express in the Act, there is not even something in the regulations which could have been utilised to take police officers out of the Act, that it is not a big deal to have judicial supervision of the Police Commissioner’s decision because in certain categories under the Police Act you can go off to the District Court.  Is that correct?

MR CHURCHES:   That is it in a nutshell, your Honour, yes.

KIRBY J:   I think your client did in fact – I thought I read – go for some review under the discipline proceedings but then came to the conclusion that there was no avenue of redress under that and that is what took him to the Industrial Commission.  Is that correct?

MR CHURCHES:   That reference, your Honour, is in the appeal book at the Industrial Court phase and it is a little confusing, for I might briefly move to that.  It is on page 5 of the appeal book.  We see there that the Industrial Court – that is the three members of that Court – in joint judgment note – it is at the top half of page 5 – they note A, B and C, the three things which the appellant had purported to do.  The matter in C:

initiated an appeal in the District Court –

was in respect of other disciplinary matters.  That is not in respect of the conviction which he sustained in the Adelaide Magistrates Court.  So there is some confusion there as to whether or not he has in fact infringed and been estopped, as it were, by having chosen other avenues.  In fact, he has not.  It is just rather confusing that the court set out those three matters.  In our submission, all that matters is A, he had run the matter into the Industrial Relations Commission which said there is a question of law, sent the initial Commissioner – sent the matter up to the Full Industrial Court, which is what we are reading there on page 5.

KIRBY J:   Can we assume that the appeal that he is said to have initiated against his criminal conviction which founded the Commissioner’s decision to terminate him is concluded and that that appeal was either abandoned or was not determined in his favour?

MR CHURCHES:   As far as I know, it has not been pursued.  Your Honour, I have no specific instructions but I understand it has not been pursued.

KIRBY J:   So the fact remained that he was convicted of an assault and that that was the foundation of the Commissioner’s decision to terminate him.

MR CHURCHES:   I am sorry, that he committed an assault, yes.

KIRBY J:   Yes.

MR CHURCHES:   That is our understanding, yes, your Honour, but that the matters B and C on page 5 in the Industrial Court’s decision are not relevant to these proceedings.  My learned junior points out that the Industrial Court, and the Industrial Commission before it, made no decision about whether there is an estoppel or not because this was sent up only as a question of law as to whether the Industrial Relations Commission had jurisdiction in respect of police terminations.  It went on that basis into the State’s Full Court, of course, and then hence into this Court.

That takes us, in turn, to section 109 of the Industrial Act where the remedies available to the Industrial Relations Commission are threefold and, in short, the Commission may either order a simple reinstatement or it may order that the employer re‑employ the employee but in a different capacity, or, if I can use common parlance, it can order a bag of money by way of effectively damages to be paid rather than a reinstatement.

KIRBY J:   What is your answer to the respondent’s submission that that leaves an apparently lawful termination under a statute of the State of South Australia unaffected, it is not quashed, and it remains, apparently, in legal force and effect although section 109 permits re‑employment.  How does one reconcile the provision of the Police Act with the Industrial Act in that situation?

MR CHURCHES:   Your Honour, in our submission, the Industrial Relations Commission would order a reinstatement which would put the constable back in place with his original oath intact.  He would be back where he started.  He would be back with oath, on force, if that were the order of the Industrial Relations Commission.

GLEESON CJ:   What about the person who replaced him?

MR CHURCHES:   The short answer, your Honour, I suppose – this is a force of approximately 4,000 – there is going to be some leeway in a largish force of that nature.  That might be a problem for a very small force but we are talking about thousands of men and women here.

GLEESON CJ:   Some of them of different rank.

MR CHURCHES:   Different rank.  One answer, your Honour, is that of course it is not as though he has to be reappointed to a particular police station or a particular activity within the force.  He is merely to be – I should say we no longer have police forces – he would merely be reappointed to the police.

KIRBY J:   Maybe the answer to the Chief Justice’s question is that that will commonly be the case in industrial reinstatement or orders for re‑employment of “harsh, unjust or unreasonable” terminations, that in the meantime somebody will have taken the position and it is just too bad.  Maybe that is something the industrial body takes into account but if they find it is harsh, unjust or unreasonable the employer has to wear that and that is the price of making “harsh, unjust or unreasonable” determination.

MR CHURCHES:   Yes.  Given the Bostik analysis of taking account of all sides of the problem, we would submit that it might be an issue with a very small group of employees where there might be a serious burden falling on an employer where it were known that a length of time had passed, somebody else had been placed into the position, but we would submit that in a large force, such as this one, that it is a very, very small factor indeed.  It might be brought to the Industrial Relation Commission’s attention but it would be a minimal factor.

HAYNE J:   The case you posit may be thought to engage 109(1)(b), at least in cases where it is impracticable to re‑employ, or it may be said that there is some other reason why re‑employment would not be an appropriate remedy.

MR CHURCHES:   Yes.  Indeed, that might well take us to 109(1)(c).  If there really were serious issues about reappointment it may be appropriate that damages flow rather than that there be a reappointment.

GLEESON CJ:   I notice from this large bundle, on pages 69 and 70, that the Police (Complaints and Disciplinary Proceedings) Act 1985 in its definition of “member” and its definition of “prescribed officer or employee” distinguishes between officers and employees. Is that a distinction that is relevant for our present purposes?

MR CHURCHES:   Yes.  At the bottom of page 69 of the bundle, your Honours, I am looking at the definition of:

“member” or “member of the police force” –

It is an inclusive definition:

a person appointed to be a police cadet or a special constable –

not our position -

or

(a)      an officer or person employed –

That would certainly embrace those who perform the secretarial functions and the other administrative functions within the South Australian Police, of which there are a considerable number, inevitably, but, in our submission, does not exclude those who are otherwise constables from ‑ ‑ ‑

KIRBY J:   In that language lurks Enever because:

a person appointed to be a police cadet or a special constable . . . 

an officer or person employed -

in the public service.  So, one, he is appointed, ie, to an office, namely a constable and then you have officers and then you have the third category of persons employed or performing functions in the public service.  It is just an awkward – it is doubly awkward for this Court because neither of the parties seems to want to argue it and yet it is very old law in this Court.  I think Enever was 1906.

MR CHURCHES:   Yes, coming up to its centenary.  If I could help de‑lurk Enever could I take you to a slightly later legislation than the 1985 Act.  We go to the Police Act 1998, and this is a one‑page bundle which your Honours – this was filed last week. It is headed “APPELLANT’S AUTORITIES WHICH ARE TO BE READ”. We have since come up with a few more, hence the later bundle today. Inside that is merely one page of the Police Act.  It is section 10 of the Police Act and the matter which we draw the Court’s attention to is subsection (2), particularly at (b), (c), (e) and (f), all referring to employees, this is in the context of the general management aims and standards of the South Australian Police.

GLEESON CJ:   We may get the answer to this question when we look at the whole of the Police Act 1998, but my recollection from a case that we recently had dealing with corresponding New South Wales legislation was that the Commissioner of Police, himself, and the Deputy Commissioner of Police had contracts of employment pursuant to that legislation, but my recollection may be imperfect. At all events, when we look at the whole of the Police Act 1998 it may throw some light on this.

MR CHURCHES:   Yes, but in answer to Justice Kirby in particular - Justice Kirby’s concerns – we would submit that in a section talking about the general aims of how the whole South Australian Police should be administered, those references, particularly at (2)(b) and (2)(f) are germane to what is before the Court today:

employees are treated fairly and consistently and are not subjected to arbitrary or capricious administrative decisions –

at (b) and more of the same at (f).  We would submit that they are not talking about just the secretarial staff there.  In our submission, that is intended to embrace the entirety of the South Australian Police.

We think that that goes a long way to deflecting those concerns which – and, again, I am anxious to say that on a reading of Enever and, indeed all three judges in Enever – and I did look at it last week – are quite clear that there is a relationship of employment between what was then the Tasmanian Police Force and the Tasmanian Crown, but that the issue at stake there was whether the tortious liability passed vicariously to the Crown, that of course not being so.

I might say if your Honours felt the necessity to trawl back through this matter, in my submission, the dissenting decision of Justice Inglis Clark in the Tasmanian Full Court in (1905) Tas LR is exactly to the point in a modern understanding of how police operate within a disciplined hierarchical unit.

KIRBY J:   It is just a trifle late for us to be overruling Enever.  A, it is 100 years old, B, neither party raises it in this Court and C, there has been an awful lot of statute law enacted by the Parliaments all around Australia to overcome it.

MR CHURCHES:   Indeed, your Honour.  That is why Enever will now not be relitigated, on its face, anyway.  Paragraph 109 was the last relevant provision of the Industrial Act.  We have taken your Honours through the provisions of section 40 of the Police Act.  I am indebted to my friends for their analysis and their written submissions of why it is there is a process of review which extends through to the District Court of this State in respect of disciplinary matters affecting the police, those matters which arise under section 40(1)(b) and (c), but not (a).

We accept what my learned friends have said about that process of review by the District Court but which is not available in respect of the trigger being a conviction – that is paragraph (a), a trigger, a jurisdictional fact, and hence the inability of the appellant in this case to have sought a process of review through to the District Court.

In our submission, the only way in which the appellant can review that which the Commissioner has done to him in terminating him is by going to the Industrial Relations Commission and as Justice Debelle said in his dissent in the Full Court in this matter, the mere fact of a conviction is itself not one which necessarily attracts termination, that most severe of all the range of actions that might be taken by the Police Commissioner.

As Justice Debelle said, it might be a speeding charge.  Certainly, police officers should set a good example but it might be a relatively trivial conviction and it would then be appropriate.  If the Commissioner had terminated that officer it might well be very appropriate that the Industrial Relations Commission review that decision as to whether it is harsh, unjust or unreasonable.

KIRBY J:   I am not troubled about that, Mr Churches, and I agree that Justice Debelle makes a good blow for you on that but I am still worried by this provision in section 109(1)(a) which is the power of the Industrial Relations Commission.  Its power is to order that the applicant be re‑employed.  Now, here we have a person who was appointed to an office and we have a power under the Police Act to terminate him and that has been done and the wording of the Industrial Relations Act is not that the decision terminating the employee be quashed and the person re‑employed, it is simply re‑employed.

Now, in many cases that creates no problem, but where you have the Police Act permitting the formal statutory power to terminate then how do you combine the two Acts where all the Industrial Relations Commission can do is to order re‑employment, given that re‑employment appears to be starting a new employment and a new employment would normally accept the validity of the earlier unquashed decision of the Police Commissioner and require a new oath for the new employment.

Now, you say you just have to read that as meaning that the person goes back into the position that they were in before, but my problem is the word “re‑employment”, shall be re‑employed, and that seems to contemplate it is a new employment not the old employment effectively quashing the decision that terminated the old employment.  It is a new employment, re‑employed.  That would be relevant to rights to salary in between time and matters of that kind which the re‑employed employee does not get.

It is not a problem in most Crown service, but it is a problem where you have to have an oath and an appointment to the position of a constable in the first instance and that is my problem, 109(1)(a).  What is your best answer?

MR CHURCHES:   Your Honour, in our reading re‑employment is a bridge straight back to the original employment.  If the Parliament had intended an employment which was severed and separate from the earlier employment it could have said so in rather more elaborate words than “re‑employment”.  In our submission, the word “re‑employment” is a connection directly to the employment which the constable in this case had, until he bumped into the purported termination by the Police Commissioner.

The constable challenges that before the Industrial Relations Commission.  True it is that there must be some effect given to the Police Commissioner’s decision, presumably the constable no longer goes out on the beat, or whatever he is doing, from that moment while the matter is under challenge in the Industrial Relations Commission.  So, to that extent, once the Commission determines in the constable’s favour there is a reattachment to the original employment.  As your Honour says, there would be a question of salary to be picked up in the interim, and so forth.

KIRBY J:   Well, is salary payable for the period of the interim?  I did not assume that.  I assumed that the re-employment speaks from the order the moment of re-employment.

MR CHURCHES:   Yes.  Your Honour, section 109(2)(a) would deal with remuneration for the period intervening.

KIRBY J:   That may be an answer to my concern.  It does not say “quash” but it has the consequences equivalent to quashing.  It is treating the harsh, unjust and unreasonable dismissal as not having occurred.

MR CHURCHES:   Yes, there has been a complete dilution, if I can put it that way, of any legal effect of the Police Commissioner’s determination to terminate.  It has robbed it of any content; it is an empty shell, it has left.

KIRBY J:   It does have a power.  It says there, “subject to any contrary direction of the Commission”.  So the Commission has a power of adjusting the rights of the terminated employee and re-employed employee, according to the circumstances of the case.

HAYNE J:   Termination has the effect that Part 10 of the Police Act gives it.  When you eventually get hold of the full Act, Mr Churches, you will find that section 67 and following would be engaged by the fact of termination by the Commissioner.  There is divestment of powers, there is obligation to deliver up equipment, there are various other consequences that follow from the Commissioner’s decision, and a distinction is drawn between termination of appointment, 67(1), and suspension, 67(2).  Again, at some point we have to look at the whole Act.

MR CHURCHES:   In our submission, your Honour, that still does not go to, dare we say, the contradiction that was inherent in, for example, the Bank Officials’ Case, where the majority of this Court – and even there it was still only a majority – said that there was conflict between the industrial relations legislation, as it then was in this State, and the particular provisions of the State Savings Bank Act dealing with entitlements and award conditions and termination procedures for bank officials, and it was said by the majority of this Court, and our learned friends rest upon that case considerably – I think they have a copy before the Court.

In our submission, we are not in that position of Acts which are actually in contradiction with each other, that the procedures set out from 105(a) through to 109 of the Industrial Act are not in contradiction with the procedures of the Police Act.  So, for example, upon purported termination by the Police Commissioner it may well be appropriate to hand in any weapons allocated to the officer, uniform returned, but nonetheless the provisions of section 109 indicate that there can be, as it were, catch‑up made later.  Remuneration can be paid for the intervening period if the Industrial Commission determines the termination was harsh, unjust, unreasonable.

In that case, the officer may have been off duty for some period of time, it will take a while to go through the Commission, but upon reinstatement he or she can be reissued with their equipment, their uniform, put back into service, pay can be made up for the appropriate period that was lost.  It is a picking up of the position as it was before.  In our submission, to Justice Kirby’s question, a re-employment is a reattachment to the place where the constable was the day before the Police Commissioner acted to purportedly terminate.  You go back to that place.

We do not see any inherent contradiction between the way the Police Act provides for termination, having to hand over your equipment, leave the police station.  So these are fairly normal procedures now, whether you are under a statutory body’s statutory provisions or whether you are at common law.

Indeed, on that topic, we notice that our learned friends rely on Dunn’s Case.  They cite some of what Chief Justice Barwick had to say in Dunn about the distinction between termination pursuant to statutory powers as they create a statutory body as employer, on the one hand, and common law powers of termination on the other, and Chief Justice Barwick said – if I may paraphrase – they are chalk and cheese.  They are completely distinguishable, and you cannot apply to statutory bodies the same common law termination concepts that you apply to common law termination.

In our submission, that is not so.  That decision is 1969.  It is set out in my friend’s submissions.  This is no longer the case.  In our submission, the definition set out in section 4 of the Industrial Act is quite plainly intended to embrace public employees, not just in the public servants strictu sensu but those who, in the position of the police, are regarded as being a little beyond ordinary Public Service conditions, being, as I say, a paramilitary unit, a hierarchy, standards of particular conduct required of them.

Nonetheless, in our submission, the Industrial Act sets out to embrace them along with all other employees in South Australia, unless they are expressly excluded by legislation or they earn more than $66,000 per annum.  So, all ordinary employees, all ordinary workers, are intended, in our submission, to have their terminations assessable by the Industrial Relations Commission.

To that extent, we submit that the Industrial Act reflects the intention of the Parliament of this State to deflect any notion that derives from Dunn’s Case back in 1969, that public employment cannot be put on the same footing for the determination of terminations as common law terminations.  Indeed, the whole body of case law culminating in Conrad’s Case in the Full Federal Court – and I note that since we are able to read the transcripts of this Court that there was a special leave application in Conrad and it failed.  To that extent, the Full Federal Court decision remains on foot.  That is merely an example of a termination, or an issue regarding police where the police were rated to be employees for the purposes of industrial legislation.

In answer to Justice Hayne’s concern as to whether the termination provisions in – or dare we say the sequelae of termination in section 67 of the Police Act works a position so that the Industrial Act is deflected.  We note that the power of the District Court might well work also for a reinstatement of a police officer after a process of termination by one of the two police tribunals, then review of that decision into the District Court.  There might be an overturning of either the Tribunal’s decision or the Commissioner’s decision.  You also get a chance to go to the District Court to find against one of the Commissioner’s disciplinary determinations, and the Commissioner has power to terminate, also for disciplinary defect, and it may well be that a District Court finds in favour of re-employment.  So, in our submission, there is again no magic in the process of the sequelae of termination in the Police Act.

While we would be the first to concede that these Acts have not been drafted with a clear eye on each other, the 1985 Police Discipline Act refers throughout to the 1952 Police Act, and there appears to be no later reprint of that 1985 Act that refers to the 1998 Police Act, and it does make for difficult reading.  But that is a matter for the Parliament and the drafters of legislation in this State.  So we do concede that there is a lack of comfort in being able to read all these Acts together.  They have not been drafted with a clear eye to the existence of each other, but that is not an unlikely possibility given the huge range of legislation that pours out of any Australian legislature.

That is really – if we may dare to submit – that is why this matter received its special leave.  We have a problem with the huge volume of legislation pouring out willy-nilly without reference to other legislation already enacted.  Cobiac v Liddy is a perfect example of an early Act, the

1913 Offenders Probation Act of this State, coming up against legislation 50 years later, the Road Traffic Act where a first attempt was made to deal with drink drivers, the argument being that the severe penalties set out in the special provisions of the Road Traffic Act ought to trump and push away any capacity for a magistrate to allow reference to the Offenders Probation Act.

Justice Windeyer was of course quite clear on that.  He said not so.  There are no express words to that effect, and the Offenders Probation Act remains having some general application.  Nobody, when they drafted the Road Traffic Act in 1961 in this State was thinking about the Offenders Probation Act, but that is the work of the court, which is likely to fall.

GLEESON CJ:   Does that cover what you want to say about the question of construction?

MR CHURCHES:   Yes.  I am aware of the time passing, your Honour.  I think, unless there are any further questions – I will attempt to deal with anything that arises from the legislation in reply.

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

MR KOURAKIS:   If the Court pleases, can I take your Honours to the Industrial and Employee Relations Act as it stood at the relevant time, which as your Honours have seen, can be found from page 82 in the larger book of materials.  Can I take your Honours to section 105A in the unfair dismissal provisions.  Your Honours will see that Parliament provided that classes of employees could be excluded from the operation of that part by regulation.  Your Honours, a regulation has been made excluding certain classes, but not a class that would apply to Mr Ferdinands.

KIRBY J:   I do not understand that.  Why could you not have used the regulation…..the Executive Government to exclude the class of employees who were police?  Do you accept that that could have been done?

MR KOURAKIS:   It could have been done; it was not.  All I am ‑ ‑ ‑

KIRBY J:   So we neither have a provision in the Act nor even a regulation which could have been made by the Executive Government to exclude police, and that was not done.

MR KOURAKIS:   Yes, that is so.  I am simply informing the Court that there was a regulation, contrary to the submission that was made, as excluded ‑ ‑ ‑

KIRBY J:   Well, I think there was a regulation about private domestic employees.

MR KOURAKIS:   Your Honour, that regulation excluded private domestic employees from the operation of the Act as a whole.  I am simply advising the Court that there is a further regulation excluding other classes of employees from this particular part, but still no regulation that excludes police officers.

Your Honours, importantly, section 105A(2)(c) provides that a regulation might have excluded:

employees . . . are governed by special arrangements giving rights of review of, or appeal –

Whether or not the regulation was made, the fact that that provision was enacted by the Parliament might say something about whether the Police Act – whether this Act was meant to extend to the Police Act, or similar Acts ‑ ‑ ‑

KIRBY J:   Do you contest that there could have been a regulation that excluded police employees as a class?

MR KOURAKIS:   Not under subparagraph (c) ‑ ‑ ‑

KIRBY J:   Well, that is enough, is it not?.

MR KOURAKIS:   No, not under that subparagraph and, in my submission, not under – it could have been under subparagraph (e), I suppose, but not under subparagraph (c).

KIRBY J:   It just does not seem a very strong point for you to start on.  You are trying to wriggle out of a couple of paragraphs of section 105A, but you accept that it could have been done under 105A(e).

MR KOURAKIS:   Yes, and your Honour ‑ ‑ ‑

KIRBY J:   It is not your strongest point.

MR KOURAKIS:    ‑ ‑ ‑ I have embarked upon the course of addressing each of the sections, whether they be for me or against me in turn, in order.  Your Honour, the point about subparagraph (c) is whether a regulation was made or not, what does it say about the intention of the Parliament, and the fact – what the Executive might have done in terms of regulations of course tells us nothing about that, but we can see in subparagraph (c) that Parliament has provided for an exemption, which at first glance might tell against my submissions.

The point I wish to make about subparagraph (c) though is this, that, firstly, “special arrangements”, that phrase, in my submission, is directed towards contractual arrangements.  It does not refer to legislative provisions, whereas in section 106 the possibility of taking proceedings against another law is specifically dealt with.  Subparagraph (c) does not appear to be directed towards statutory alternatives, statutory arrangements for review.

Your Honours, turning though to section 106, it is the case that that then excludes from its operation those cases where an employee has taken proceedings seeking a remedy under another law.  Plainly, that enactment must mean that Parliament envisaged that these unfair dismissal provisions would apply to some employees who were governed by other statutory review provisions.  That does not, of course, mean that all such employees came within the ambit of this Act.  There may be some statutory review arrangements which do not indicate an intention to exclude the employees they apply to from the operation of this Act, just as there may be other statutory review arrangements that are meant to operate concurrently.

Indeed, section 106 in the example, which can be used as an aid to its construction, refers to precisely some such legislation.  The Parliament intended that the application of equal opportunity remedies would continue and stand side by side with these remedies, but with the provision that allowed either the Industrial Relations Commission or the Equal Opportunity Tribunal to refuse to proceed to hear a matter if it might have been better heard in another place.  Your Honours, can I just pause for a moment to see what your Honours have received so far?

Your Honours, the reprint of the Police Act that your Honours have, as it says on its face, has amendments to June 2000, and I am told that any amendments made to the Act after that time and before Mr Ferdinands’ dismissal do not relevantly affect the matter.  That is something that we will examine further later.

So, your Honours, the fact that the unfair dismissal provisions contemplate that they will apply to some employees who have alternative statutory review procedures available to them still does not answer the ultimate question whether that part applies to police officers who have the particular review provisions that we find in the Police Act and in the Police (Complaints and Disciplinary Proceedings) Act applying to them.  In my submission, that question must depend on a closer examination of the provisions in the Police Act before a final determination can be made.  Your Honours, section 108 provides ‑ ‑ ‑

KIRBY J:   Just pausing at 106.  You do not raise any point that proceedings taken by the appellant amount to electing to pursue another remedy, estopping the appellant under section 106?

MR KOURAKIS:   I do not take that point, your Honour.  On a consideration of the matters that are referred to in the appeal book, none of them are in fact ultimately are applications in the nature of a review of the dismissal.  The only one that comes close to it in the appeal book at page 5, paragraph 4 is perhaps B.  A has nothing to do with it, it is the criminal conviction.  C is another disciplinary matter altogether.

Your Honours will observe that B is described as an application “in the District Court against a decision of the Police Disciplinary Tribunal”.  That Tribunal has no power to impose penalty.  It does not impose penalty.  It makes a finding as to whether there has been a breach of the Code.  The penalty is then imposed by the Commissioner.  So it follows simply from that referral that no application was taken in any other tribunal which was a review of the Police Commissioner’s decision to terminate.  So, your Honour, that point is not taken.

Your Honours, turning to section 108, that requires the Industrial Relations Commission to have regard to the “Termination of Employment Convention”, and that is the only sense in which that Convention is enacted – having so provided, the Convention then becomes a schedule.  The unfair dismissal provisions as they stood immediately before the Act that your Honours are looking at now ‑ ‑ ‑

HAYNE J:   Sorry, just before you depart from the reference to the “Termination of Employment Convention”, page 82 of the bundle reveals that the other amendment made at the time included 3(a) substituting (j) in the statement of objects and reference to the Convention there.  So it is not accurate to say that 108(2)(a) is the only relevant reference to the Convention.  It is part of the object of the Act.

MR KOURAKIS:   If your Honour pleases.

KIRBY J:   That is significant, is it not, because the Police Act taken alone and as its own little world gives unreviewable decisions to the “employer”, the Police Commissioner, whereas the object of the Convention, and apparently of the Industrial Relations Act is, at least in the case of harsh, unreasonable and unjust dismissals, to provide for an avenue of redress.

MR KOURAKIS:   Yes.

KIRBY J:   Would one not normally, where the Parliament has expressly taken steps to say that that is an object of the South Australian Parliament, do what one could reasonably in the interpretation of the legislation to ensure that that was not frustrated or defeated, including in relation to police “employment”?

MR KOURAKIS:   Your Honour, the purpose should not be extended beyond that which is statutorily enacted, and that is that it was the purpose of this particular legislation to advance that object, which ‑ ‑ ‑

KIRBY J:   I know in the – it does not take the problem away, but insofar as we are trying to work out how these two Acts run together where there is no express provision saying they do not and where there is no regulation taking the class out, it does seem, at least to me, to be relevant that one interpretation is going to give effect to this Convention, which is an important international Convention, which in turn is given effect in South Australia both by the objects provision and by the matters that are to be taken into account by the Industrial Relations Commission.

MR KOURAKIS:   Yes.

KIRBY J:   You would not struggle to defeat those important and high objects in the interpretation you give to the two pieces of legislation.

MR KOURAKIS:   Your Honour, I do not know that the reference to the Convention in the 1997 Act, Industrial and Employee Relations Act, would really make the question any different when one comes to the 1998 Act than if the Convention had not been referred to in any earlier legislation.  The question would simply become the extent to which the Convention should be considered in construing the Police Act 1998 because in the Industrial and Employee Relations Act 1997, it is limited to advancing the objects of that Act.

In my submission, your Honour, perhaps more importantly, when one bears in mind that the Police Act was the subsequent Act, that is in 1998, and in that Act, notwithstanding what it said about the termination Convention in the 1997 Act, that Parliament specifically provided a power for the Commissioner to dismiss or otherwise penalise a police officer following his or her conviction for a criminal offence and did not allow any provision for review, in a sense quite contrary and inconsistently with the provisions of the Convention ‑ ‑ ‑

KIRBY J:   We are back into the war of maxims that Justice Windeyer said we had to avoid.

MR KOURAKIS:   Your Honour, I am happy to avoid the maxim and simply make the point that section 40(1)(a) very conspicuously provides that the only penalty that is not subject to any review is the Commissioner’s decision to penalise an officer who has committed a criminal offence and all that in the background of the recognition, if you like, in earlier statutes of the Convention and matters of review and the like.

KIRBY J:   Yes, but that does not solve our problem unfortunately, Mr Solicitor, because the answer comes back, “Yes, but that was enacted against the background that only last year the Parliament of South Australia had declared how important this Termination of Employment Convention was and had provided a remedy for harsh, unreasonable and unjust dismissals, and obviously this is so important we didn’t have to say it again because it’s already there in the Industrial Act.”  That is the problem.  We have to resolve it one way or the other.

MR KOURAKIS:   Your Honour, there is not, in my submission, going to be any one indication which solves the problem, as it were.  It is a matter of looking at ‑ ‑ ‑

KIRBY J:   But when it is so easy for you by the regulations of the Executive Government.  You do not even have to go to Parliament.  Why should a court struggle to take away from employees this highly beneficial entitlement when there is a legitimate interpretation – subject to the re‑employment problem that I have raised with Mr Churches – that means the two Acts can live together?

MR KOURAKIS:   Your Honour, the Executive may well look at that question again after this decision, but until now it simply takes the ‑ ‑ ‑

KIRBY J:   Well, it has not done so yet.

MR KOURAKIS:   It takes the position that the Acts themselves do not require the Executive to make a regulation because reading them together, the unfair dismissal provisions do not apply to the dismissal of an officer pursuant to section 40 of the Police Act.  Your Honours, turning to section 109 ‑ ‑ ‑

HAYNE J:   Does it also follow that the unfairness of termination for reasons other than commission of an offence cannot be made the subject of complaint?

MR KOURAKIS:   To the Industrial Relations Commission?

HAYNE J:   Yes.

MR KOURAKIS:   Yes, in my submission ‑ ‑ ‑

HAYNE J:   Or at all.

MR KOURAKIS:   No, penalties imposed for a breach of the Code, which is found by the Disciplinary Tribunal, are penalised by the Commissioner and there is an appeal to the District Court, the administrative ‑ ‑ ‑

HAYNE J:   I understand that, but there can be termination for various reasons other than misconduct.

MR KOURAKIS:   Yes, and they can be appealed to the Police Tribunal and then again to ‑ ‑ ‑

HAYNE J:   Just so, but harshness, et cetera, is not a ground in such proceedings?  Is that the consequence?

MR KOURAKIS:   Your Honour, I do not know whether it is right to say it is not a ground.  There is no doubt that the effect on the employee, if that is what is meant by “harshness”, is something that can be taken into account by the Commissioner and on appeal, but that is not the same as saying that the test that is applied by the Commissioner and on the various appeals are the same as the industrial unfairness test that the Commission provides.

The other provisions to which your Honour referred are the provisions which allow for the dismissal of officers on probation, dismissal of officers whose performance has been unsatisfactory, and the like.  Now, the primary determinant, for example, of the officer who has not performed satisfactorily will be the performance of their duties.

HAYNE J:   But there can be termination, for example, for physical disability.

MR KOURAKIS:   Yes.

HAYNE J:   And the officer thus terminated.  Could that officer complain that it was harsh, unfair, et cetera, whatever the golden trilogy is?

MR KOURAKIS:   Not to the Industrial Relations Commission, in my submission.

CALLINAN J:   But he has a right of review ‑ ‑ ‑

HAYNE J:   To the Tribunal?

CALLINAN J:   He has a right of review under section 48.

MR KOURAKIS:   Yes, that ultimately ends up in the District Court.  Could he complain that it was unfair and for that reason alone he should not have been terminated?  No.  With respect, that shows the inconsistency between the Police Act and the Industrial Relations Commission.  The test under the Police Act on a merits review of the Commissioner’s decision is one that is governed by the statutory objects of the Police Act.

Those objects are essentially one of protection of the public and ensuring that there is an efficient police force.  They are statutory objects.  That is not to say that in exercising those statutory discretions for those purposes, the Commissioner and the other tribunals will not have regard to the effect of the decision on the employee, but ultimately that must be a subordinate consideration.  It is otherwise in the Industrial Relations Commission.  Unfair dismissal provisions have as their purpose affecting a balance, an industrial balance between the economic interests of employers and employees.

In the case of private employers, who are not subject to any statutory obligations, the Act simply operates to amend the common law power that employers would otherwise have and would otherwise be entitled to exercise in their economic interests alone.  That is the effect of unfair dismissal provisions as they relate to private employers.

HAYNE J:   I would have thought that you might also have made answer by reference to section 10(2) of the Police Act and its government of personnel management and requirement of practices which use different language but might be thought to encompass precisely the harsh, unfair, unreasonable ideas, or the antitheses of harsh, unfair, unreasonable.

MR KOURAKIS:   Yes.  Your Honours, they are provisions that the authorities ‑ ‑ ‑

HAYNE J:   But there would in that respect be a distinct overlap if the two Acts had to march in step.

MR KOURAKIS:   Your Honour, there is no doubt that there will be overlap between the considerations of the matters that the Commissioner and the appeal tribunals have regard to under the Police Act and matters that the Industrial Relations Commission would have regard to, but that does not mean that the outcome will be the same all the time.  In fact, in my respectful submission, there must be times when the outcomes will be different.

CALLINAN J:   Mr Solicitor, do you say that the police officer could get a mandatory injunction or mandamus under section 10?

MR KOURAKIS:   Your Honour, at the very least it would be refused on discretionary grounds given the review processes that are available.

CALLINAN J:   No, take the case of this appellant.  Say, in fact, that he had a case, that he was treated unfairly and inconsistently with the way in which other people have been treated.  Could he then get a mandatory injunction or mandamus under section 10(2)(b)?  If not, why not?

MR KOURAKIS:   Well, your Honour, in my submission, that would be excluded by reason of the merit review provisions which are provided for in any event.  I have not examined them.

CALLINAN J:   No, but if he was sacked, if his employment were terminated and he was able to demonstrate that three other police officers who had committed like offences had not been terminated.

MR KOURAKIS:   This case, where he is dismissed without any merit review provision applying, if we are right about the Industrial Relations Commission, in my submission, he could judicially review – and there is no privative clause – the decision.  These considerations, section 10 ‑ ‑ ‑

GUMMOW J:   In the Supreme Court?

MR KOURAKIS:   Yes.

KIRBY J:   That rather makes your arguments about the special and imperious character of the Police Commissioner look a bit wobbly because you can come up to the Supreme Court and have it reviewed.  Why can you not go to the Industrial Commission then?

MR KOURAKIS:   Because of the fundamental difference between a merits review procedure and a jurisdictional procedure.  That is the difference.

KIRBY J:   Yes, but if it is mandamus or some other remedy for treating unfairly, if you concede that that can bring judicial review, you would have to then go into the question of whether there was a treatment which was unfair and inconsistent, which gets pretty close to the merits just because the statute says so, 10(2)(b).

CALLINAN J:   And perhaps (f) as well.

MR KOURAKIS:   Your Honour, can I consider it further and perhaps come back to the question of injunctions and mandamus.  I find it difficult to see how they would apply to these considerations.  The question of reviewing for jurisdictional error of these matters if it can be shown that the Commissioner has proceeded without having regard to those matters is one question and I accept that but ‑ ‑ ‑

CALLINAN J:   Well, what I put to you is rather similar I thought to your submission at the end of paragraph 14 where you make the point that a convicted police officer who has remedies can appeal to the superior courts against his or her conviction.

MR KOURAKIS:   As to the conviction itself, yes.

CALLINAN J:   And there may be a further remedy perhaps under section 10.  So it really makes the point that the officer is not without rights of redress.

MR KOURAKIS:   Certainly I would adopt the submission that section 10 might be an armoury in the jurisdictional review that is available.  Your Honours, can I come back to section 109 and address the question of the difference between reappointment and reinstatement?  Your Honours, there are unfair dismissal provisions that have used the term “reinstatement”.  South Australia has from the beginning spoken of re‑employment and it was the fact that the remedy was re‑employment that led to the Full Court of our Supreme Court in Gnatenko’s Case – and I will have to get your Honours the reference later – for holding that there was an inconsistency between the operation of our provision and the Metal Trades Award.  In my submission, there is flowing from the language itself a significant difference between the two, but the other provisions of section 109 reinforce my submission that re-employment means a new period of employment.  For example, within subparagraph (a) itself the subparagraph goes on:

in the applicant’s former position without prejudice to the former conditions of employment;

That speaks of a new period of employment being a result of the order.  In subparagraph (b) there are references to the applicant’s former position. 

HAYNE J:   What is the difficulty in any of that if, as must be the premise for this branch of your argument, a police officer is an employee?

MR KOURAKIS:   The difficulty with that is this – and it goes to the powers of the Commissioner to impose a penalty other than termination.  The hypothesis here is that he has terminated a police officer rather than demote him, suspend him, fine him.  If the police officer seeks a remedy from the Industrial Relations Commission, the only remedy it can order is re‑employment.  Once he is reemployed, because it is new employment with a new oath, the Commissioner would have no power to re‑exercise the disciplinary provisions which are section 40.  In that new employment the police officer would not have committed a criminal offence.  He committed the criminal offence in the course of his previous employment.

KIRBY J:   Well, that is one way to interpret re‑employment.  The other is to say it really means putting him back into the position he was in before he was terminated.

MR KOURAKIS:   Yes, your Honour, but the section does so in subsection (2), not by quashing termination, not by treating the employee as having been continuously employed, on the contrary, by assuming that subsection (2) is premised on it being a new employment but then providing by specific orders of the Commission, that is, making further orders so that in his or her new employment the employee will not be prejudiced.

KIRBY J:   That is not quite what 109(2) says, is it?  Section 109(2) says that by reason of the order for re-employment the employee must be remunerated for the period in between.

MR KOURAKIS:   Yes.

KIRBY J:   It is only if a contrary direction is made by the Commission that some other consequence flows.  So that it looks as if the Act is treating it, in effect, as a quashing of the earlier decision and a right to the intervening remuneration unless there is something different said.

MR KOURAKIS:   Your Honour, there is no doubt that the section is skewed towards ensuring payment of any wages lost in the interim, but it is by order which assumes the termination, because in fact subparagraph (a) goes on:

as if the employee’s employment in the position from which the employee was dismissed had not been terminated;

It is an order that operates as if it had not been terminated, but it has to operate in that way because there has in fact been a termination that has not been quashed.  Subparagraph (c), for example, provides that:

for the purposes of determining rights to annual leave . . . the interruption to the employee’s continuity of service caused by the dismissal will be disregarded.

KIRBY J:   All I am putting to you is that these provisions of payment of the salary in between time, keeping rights and giving annual leave and other entitlements are all equivalent to a quashing, although it has not actually said so, and that if you construe it that way then the fact that Parliament has not expressly said “quashed” does not matter all that much because it is provided for effective quashing and retrospective revalidation.

MR KOURAKIS:   But, your Honour, where it matters – and subsection (2) does not deal with this – in this case is because of its effect on the powers of the Commissioner to further penalise.  If a review or an appeal to the District Court is pursued and the District Court determines that the termination was unjust or not an appropriate penalty, the District Court can remit so that the Commissioner might impose another penalty and can make recommendations.

KIRBY J:   Why can that not apply in this case?

MR KOURAKIS:   Because, although as to things like wages in the interim and leave ancillary orders are made to have the employee in the same position, the essential order, the basic order remains a re‑employment and the Commissioner ‑ ‑ ‑

HAYNE J:   Re‑employment in former position without prejudice to former conditions of employment.

MR KOURAKIS:   Yes.

HAYNE J:   What work are you giving the use of the word “former” twice?

MR KOURAKIS:   Well, the former conditions relate to the actual position within the police force, the terms and conditions as to wages and salary and the like.  Those terms, in my submission, do not – and as for the disciplinary provisions, of course, the police officer would remain subject to the same disciplinary regime, not by reason of this order, but simply by operation of the Act.  But what it cannot do is make him liable for a further penalty.  The Police Commissioner’s power has effectively been exhausted.  He dismissed the employee.  That dismissal was not quashed.  The Commissioner has acted and imposed a penalty for ‑ ‑ ‑

KIRBY J:   I understand your argument, but the other way to read it is to give effect to the word “former” and say all that is done is it has put the person back into the former position, the status quo ante, and it then is up to the Commissioner, in respect of that former position, to decide whether some other remedy or some other punishment is appropriate.

MR KOURAKIS:   If your Honour pleases ‑ ‑ ‑

KIRBY J:   It is not expressed, but then again you have not said expressly how these two Acts are going to work together, so you can hardly be heard to complain.

MR KOURAKIS:   Your Honour, my submission in a sense flows from the terms of section 40 of the Police Act itself.  If I can take your Honours to that in the reprint that has been recently provided. 

GUMMOW J:   You have to understand section 40 in its place in Part 6 and you have to understand what the object, scope and purpose of Part 6 is. 

MR KOURAKIS:   In my submission, the object and purpose of it is that effectively it is protection of the public by ensuring that certain behaviours and standards are met by the police.

GUMMOW J:   Yes, that is right, I think, having regard to the earlier sections, in section 5 and following back in the general provisions.

MR KOURAKIS:   Yes.

GUMMOW J:   Then you have the Code to implement these ideas, but the criminal law is something special as well.  Where do we find in Part 6 the differential treatment of paragraph (a) from (b) and (c) in section 40(1)?

MR KOURAKIS:   Your Honour, we do not find it in section 40 or in Part 6.  We find it in the Police (Complaints and Disciplinary Proceedings) Act and for that your Honours need to go back to the larger bundle.

GUMMOW J:   Yes, I am looking at page 69 of that bundle.

MR KOURAKIS:   Yes.

GUMMOW J:   Where do I find it there?

MR KOURAKIS:   Well, your Honour, first at page 69 the definition of “breach of discipline” and:

“breach of discipline” means a breach that may be the subject of a charge by the Commissioner under the Police Act 1952;

My learned friend has referred to the fact that these references have not been updated.

GUMMOW J:   Yes, that is right.  But do I find it anywhere in this Act?

MR KOURAKIS:   No, and, your Honour, that notwithstanding that – well, I was going to say the definition of “breach of discipline” was in fact amended as late as 1996 but at that time it was in fact the Police Act 1952 that still applied. Your Honours can see that amendment at page 68.

GUMMOW J:   I am looking for the special treatment of paragraph (a).

MR KOURAKIS:   Yes, sorry, your Honour.  One then goes to section 46(2) and it was for that reason that I went first to the definition of “breach of discipline”.

GUMMOW J:   Yes.

MR KOURAKIS:   So the penalty that can be appealed to, as your Honours can see at the foot of page 76, the District Court is a penalty ‑ ‑ ‑

GUMMOW J:   That assumes one is in the Tribunal.  How does one get into the Tribunal in the first place if it is ‑ ‑ ‑

MR KOURAKIS:   No, your Honour, subsection (2) does not assume that.  Subsections (1) and (2) operate on different subject matter.

GUMMOW J:   Yes, I see.

MR KOURAKIS:   So the penalty imposed by the Commissioner that can be appealed to the District Court is only one imposed for a breach of discipline and “breach of discipline” is not defined in a way so as to fit arguably section 40(1)(a).  The power to impose a penalty when an officer is convicted of a criminal offence is simply a necessary precondition to the exercise of the power.  It enlivens the power, but it does not involve a charge by the Commissioner under the Police Act 1952 or the Police Act 1998.

GLEESON CJ:   Yes, that is the sort of distinction that in other jurisdictions used to be sometimes referred to as a departmental charge as distinct from a criminal charge.

MR KOURAKIS:   Yes, and the definition of “breach of discipline” is apt to refer to a departmental charge.

GLEESON CJ:   Yes.

MR KOURAKIS:   It is not apt to refer to the imposition of a penalty by reason of conviction of a criminal offence.  That is why it appears that this particular case with Mr Ferdinands and the penalty imposed by the Commissioner is not a matter that can be reviewed by the District Court.  We have put an alternative – and that is our primary submission.  It cannot be, we say, because it…..the fact that the penalties imposed by the Commissioner in those cases, as I said earlier, conspicuously do not provide for any review by anyone, that that is a strong indication for exclusion of review by the Industrial Relations Commission.  If we are wrong about that and that the Commissioner imposing a penalty when an officer is convicted of an offence does come within the definition of “breach of discipline”, then we say Mr Ferdinands has a right of review to the District Court and, again, it would be inconsistent to contemplate two different reviews to two different bodies, or at least reviews to two different bodies.

KIRBY J:   But your own regulations in, I think, the Industrial Act say that there may be inconsistent applications, including the one that is illustrated under the Equal Opportunity Act.

MR KOURAKIS:   Yes, and, your Honour, I should have been tighter with my language.  In the particular case of the regime established by the Police Act, in my submission, it ought not be contemplated that any further review by the Industrial Relations Commission is available.  One can easily understand an Act of general application like the Equal Opportunity Act being an Act that allows a remedy that co-exists with the remedies under the Industrial Relations Commission and for that reason the provisions that your Honour Justice Kirby has just referred to.  The Police Act, however, it evinces an intention to carefully regulate the procedures for appointment, termination and then review, and it stands in a very different position to something as general as the Equal Opportunity Act.

GUMMOW J:   I realise it is a different field of discourse, but in some of the section 109 cases I think there is the distinction you are seeking to draw in the industrial sphere, I think, between federal and State laws.

MR KOURAKIS:   Yes, I think your Honour might be referring to the cases that deal with regulation by awards in that case, and Wardley’s Case in particular, but I will give that some further consideration.

GUMMOW J:   Yes, Wardley, for example, that is right. What is your fallback argument to the breach of discipline argument in the Complaints Act?

MR KOURAKIS: Yes, the first argument is that there is no review under the Complaints Act and for that reason nor should there be by the Industrial Relations Commission. Alternatively, if breach of discipline as defined extends to the penalty imposed in cases like this for conviction of criminal offence, then the result is that there is a review of the Commissioner’s penalty by the District Court and, again, there being a review by the District Court, it is inconsistent with the structure of the Police Act and Police (Complaints and Disciplinary Proceedings) Act to allow a choice as to whether the review should proceed in the District Court or before the Industrial Relations Commission. 

Your Honours, we put the argument in this way, although there might be overlapping considerations when decisions are made under the Police Act or when there is a review ‑ ‑ ‑

GUMMOW J:   How do we get in the District Court?

MR KOURAKIS:   Just going back to section 46(2) at page 76, your Honour, our first submission is that cases like Ferdinands do not come within subsection (2) because the definition of “breach of discipline” refers only to departmental discipline and therefore we say there is no review of the Commissioner’s decision to the District Court.  It being clear then that ‑ ‑ ‑

GUMMOW J:   We have just been given a reprint that talks about the Supreme Court, which is why I am slowly wondering if I am attached to reality.

MR KOURAKIS:   Yes, has your Honour just been given a reprint now during the course of submissions?

GUMMOW J:   Yes.

MR KOURAKIS:   It may be one that I have not seen, your Honour.  Apart from some minor amendments, the Police (Complaints and Disciplinary Proceedings) Act when it was first enacted provided for appeals to the Supreme Court.

GUMMOW J:   I just want to know what it provided at the relevant date.  There seem to be two candidates at the moment.

MR KOURAKIS:   Yes, can I just take that ‑ ‑ ‑

HAYNE J:   You have given us Reprint 4.  The bundle reproduces Reprint 7.

MR KOURAKIS:   Yes.

GLEESON CJ:   Reprint 4 incorporates amendments in force as at 8 May 1999.

MR KOURAKIS:   Yes, and certainly we need to go that far, whereas – would your Honour just give me a moment.  Yes, in the book of documents that I have provided I have Reprint No 7 which goes beyond that.  Somewhere between the prints that your Honours have been provided with just now and the one in the booklet is the relevant one.  In any event ‑ ‑ ‑

GUMMOW J:   Which is the relevant one, Mr Solicitor?  I am not going to write a judgment until you tell me.

MR KOURAKIS:   No.  Will your Honour just give me a moment to have a look at the ones that have been provided to you now.  Your Honour, it is Reprint No 4 and that should have a reference to the District Court.

GUMMOW J:   It does.

KIRBY J:   But Reprint No 4 has an application to the Supreme Court.

HAYNE J:   No, it does not.

MR KOURAKIS:   No, it is ‑ ‑ ‑

GUMMOW J:   It has the Supreme Court.

KIRBY J:   I think this had better be sorted out.

MR KOURAKIS:   Yes.  Your Honours, I apologise for that.  I do not know why your Honours ‑ ‑ ‑

KIRBY J:   Does this not show how important Justice Callinan’s observation earlier on was that we just cannot work with little bits and pieces of Acts?

MR KOURAKIS:   Yes.  Your Honours, the print which appears from page 69, and in particular section 46 as it is shown there, is the provision that applied at the relevant time.

KIRBY J:   What was the relevant time?

MR KOURAKIS:   The time of dismissal was 2001 from recollection, your Honour.

KIRBY J:   So somewhere after Reprint No 4 of 1999 the jurisdiction was switched from the Supreme Court to the District Court.

MR KOURAKIS:   District Court.

KIRBY J:   We had better have that sorted out and made clear.

MR KOURAKIS:   If your Honour pleases.

GLEESON CJ:   And we had better destroy, or hand back to you, Reprint No 4, had we not?

MR KOURAKIS:   If your Honour pleases, it will probably save confusion.

KIRBY J:   I think so, otherwise we just might get confused.

MR KOURAKIS:   Your Honours, I was addressing the question of section 46(2) and how that applied on either of the ‑ ‑ ‑

GUMMOW J:   You say it is two sides of the coin.  One side of the coin is no appeal whatever with respect to (a); or if there is, it is to the District Court/Supreme Court but not to anywhere else?

MR KOURAKIS:   Yes, and the ‑ ‑ ‑

GUMMOW J:   Now, what other argument do you have apart from the two sides of the one coin argument?

MR KOURAKIS:   Well, your Honour, from there I simply wish to go to the – sorry, as to the second of those sides, the fact ‑ ‑ ‑

KIRBY J:   Neither of those arguments is very powerful as to there being no remedy.  That runs head long into the international Convention which is part of the law of the South Australia.  As to there being a remedy in the District Court, the Industrial Act specifically contemplates that there will be multiple remedies and you have to elect.

MR KOURAKIS:   Yes.  Your Honour, as to the first aspect, in my submission, that is just a matter of construing the statute and ultimately breach of discipline in the Police (Complaints and Disciplinary Proceedings) Act.  If that is the effect of those words, then the fact that it is inconsistent with the Convention does not matter.  Your Honours, as to the second – your Honours, I do not know if your Honours will adopt South Australian practices or ‑ ‑ ‑

GLEESON CJ:   We will just see how we go.  How long do you require for the remainder of your argument?

MR KOURAKIS:   Probably only about 20 minutes or so but, your Honours, I would like to clear up ‑ ‑ ‑

GLEESON CJ:   We will adjourn at 4.30.

MR KOURAKIS:   If the Court pleases.

GLEESON CJ:   Until 9.30.

MR KOURAKIS:   Yes.  Your Honours, dealing with the matter raised by your Honour Justice Kirby, it is the case that the Industrial and Employee Relations Act contemplates that the unfair dismissal provisions will apply in cases where there is an alternative statutory review available.  It does not follow from that that they will apply to all cases where there is an alternative statutory review available.  Whether they apply to the particular case of police under the Police Act must depend on a consideration of the special provisions of that Act which I am about to embark on.

KIRBY J:   Without the benefit of the full Act.

MR KOURAKIS:   Yes.  Well, with the Police Act I think we have that and I will come back to that in a moment.

KIRBY J:   I hope it is the correct reprint.

MR KOURAKIS:   Well, so far it seems to have passed muster.  Your Honours, can I just make this submission generally about the interaction between those two Acts.  It is my submission, for the reasons I have already given, that terminations under the Police Act must accord with the purposes of that statute and reviews under the Industrial and Employee Relations Act must be measured against the rule of what has been called industrial fairness.  In my submission, the two sets are different. 

If the two tests are ultimately different, although there might be matters that overlap and considerations that overlap, to say that there is an avenue of review to the Industrial Relations Commission is effectively to construe the Acts together so that the Industrial and Employee Relations Act modifies the operation of the Police Act.  It would be, as it were, to read into the words of section 40 governing the Commissioner’s disciplinary powers an extra phrase that reads something like “but not so as to terminate an officer’s employment where that termination would be harsh, unjust or unreasonable”.

KIRBY J:   I do not find that is such a difficult thing to read in.  After all, one does not expect a Police Commissioner to perform harsh, unreasonable, unjust terminations.  He is a statutory officer himself.

MR KOURAKIS:   Your Honour, in my submission, there is a difference between the Act requiring the Commissioner to have regard to the consequences on employees of penal action.  It is quite another thing to say that the consequences on the employee – subjective consequences – should be determinative.  If the ultimate object of the Police Act and Part 6 is protection of the public, then it is not for the Commissioner to say, nor for any Tribunal to require him to accept that an officer ought to be kept on, ought not be terminated, notwithstanding the risk of the repeat of the conduct which led to the disciplinary penalty in the first place, because to terminate his or her services would be in the industrial sense, unfair.

Requiring a private employer to take the risk that the employee will repeat the conduct, which would otherwise have led to dismissal, is one thing.  To require the Commissioner of Police to accept that and to retain a police officer when the Police Commissioner is under a statutory duty to exercise his powers in the interests of the public is quite another thing, and it is that sort of ‑ ‑ ‑

KIRBY J:   Yes, but what about Justice Debelle’s example of sacking an officer of 30 years experience because he has gone through a red light, picked up on a camera?

MR KOURAKIS:   Your Honour, there may be rare cases where the decision is so irrational that it might be subject to a review judicially but ‑ ‑ ‑

KIRBY J:   You are talking about Wednesbury unreasonableness?  I am still waiting for a case to come to this Court where Wednesbury unreasonableness is upheld.

MR KOURAKIS:   That aside, your Honour, the consideration raised by his Honour Justice Debelle is a consideration as to a policy decision that may or may not be made.  The Parliament clearly has made a decision that any penalty imposed for a departmental breach of discipline will be reviewed by the District Court.  There is equally plainly legislated that penalties imposed by the Commissioner on commission of a criminal offence will not be reviewed at all within the structure of the Police Act.

GUMMOW J:   Otherwise than by the Supreme Court?

MR KOURAKIS:   Yes.

CALLINAN J:   But given the history of police forces in Australia, particularly perhaps in recent times, you might well understand why legislature would do that?

MR KOURAKIS:   Why the legislature?

CALLINAN J:   Might take a very strict view about criminal convictions.

MR KOURAKIS:   But ultimately, that is a policy decision that is made.  Your Honours ‑ ‑ ‑

GUMMOW J:   Sorry to interrupt you, but can I just ask you this.  The gateway into the Industrial Act is the definition of “public employee”, is it not?

MR KOURAKIS:   Yes.

GUMMOW J:   And that says:

any other person employed for salary or wages in the service of the State -

What in South Australia are the other central statutes dealing with the service of the State?

MR KOURAKIS:   The Public Sector Management Act.

GUMMOW J:   Right and does that have its own appellate structure?

MR KOURAKIS:   Its own appellate structure, yes, and there are decisions of our local Tribunal that that too excludes the operation of the Unfair Dismissal Act.

GUMMOW J:   Have you referred to those?

MR KOURAKIS:   Yes, in our outline.

GUMMOW J:   Where, can you just ‑ ‑ ‑

KIRBY J:   Are police employed under that Public Sector Management Act?

MR KOURAKIS:   No.

GUMMOW J:   That is the point I was trying elicit.

MR KOURAKIS:   Sorry, police officers are not, but employees in the department are, I think, and there may be some parts in the Public Sector Management Act as to honesty in the performance of duties creating a criminal offence that apply.

GUMMOW J:   I would have thought so.  That is what I am trying to find out.

KIRBY J:   Is the Public Sector Management Act expressly excluded from remedies under the Industrial Relations Act?

MR KOURAKIS:   No, and those authorities are collected in footnote 13.

KIRBY J:   Yes, but is the statute available to us?

MR KOURAKIS:   No, but I can make it available.

KIRBY J:   I mean, if you are going to rely on this you had better make it available.  I do not have at my fingertips the South Australian statutes.

MR KOURAKIS:   Your Honour, I will make it available.  It is not something that is directly relied on.  It is there as a footnote as to the course of decisions ‑ ‑ ‑

KIRBY J:   Do you accept that a police constable, such as the appellant, is a person employed by the State for the purpose of the definition you just read?

MR KOURAKIS:   Yes.

KIRBY J:   So Enever does not run in this case?

MR KOURAKIS:   No, that is right, whatever it might have meant.  Your Honours, the question asked in the case stated was restricted to whether the unfair dismissal provisions applied by reason of the Code, if you like, the operation of the Police Act and that question was never amended.  We have not suggested that it ought to have been by way of any sort of alternative contention.  It is not a matter that we raise.  That is not to say that a consideration of it might not affect the question of the intersection of the ‑ ‑ ‑

GUMMOW J:   What is the statute or statutes that are being construed in the cases referred to in footnote 13?  The Public Sector Management Act?

MR KOURAKIS:   No, I think in that case it was – in the case of Nassar, the Government Employee Management Act, but I can check that with Nassar and provide to your Honours the statute that was considered.

GUMMOW J:   That can be checked overnight.

MR KOURAKIS:   Your Honours, that was a decision of the Supreme Court of the State.  I am told that it was the Government Management and Employment Act that Nassar considered.  I will make that available.

GUMMOW J:   So what then would be left, what work would then be left to be done by this definition of “public employee” to engage the Industrial Act?

MR KOURAKIS:   Sorry?

GUMMOW J:   What work would be done by the engagement in the Industrial Act of these public sector employees?

MR KOURAKIS:   Conciliation and arbitration functions, and that is in fact the primary reason no doubt why I am instructed to seek the proposition that they fall within it. 

KIRBY J:   Yes, but you cannot have it both ways.  It cannot be just a little bit pregnant.  It is either in the Act or it is not, and you accept that it is in the Act?

MR KOURAKIS:   That police officers fall within the definition of “employee”?

KIRBY J:   Yes.

MR KOURAKIS:   But whether or not the unfair dismissal provisions apply to police officers depends on an analysis of the provisions of the Police Act and a comparison of those provisions with the provisions of the ‑ ‑ ‑

KIRBY J:   The Police Act and the Industrial Relations Act, and the Industrial Relations Act you accept incorporates generally police officers. The question is whether the particular provisions for discipline in the Police Act take it for this purpose outside the jurisdiction of the Industrial Commission.

MR KOURAKIS:   Your Honours, can I just say that I have addressed largely, and this argument has proceeded largely, on a question of whether the Police Act 1998 relevantly carves out an exception from the otherwise sufficiently wide words of the unfair dismissal provisions, such that police officers do not come within the word “employee” in the unfair dismissal provisions in the 1997 Act. We have in fact put that in our submissions as an alternative argument although it is the only one I will address orally.

Can I just remind your Honours of the first submission that we make and that is that the Industrial and Employee Relations Act, when it was first enacted in 1994, was enacted against a background of similar regulation of police ‑ that is similar to the regulation that we find in the current Act ‑ that is, when the Industrial and Employee Relations Act was first enacted, police had internal review mechanisms for terminations and disciplinary provisions.

Our first submission is that when the Industrial and Employee Relations Act 1994 was first enacted, reading that together with the pre‑existing detailed regulation of police terminations, one would not read the 1994 Industrial and Employee Relations Act as extending to police officers.

GLEESON CJ:   That just means, does it not, that you are not going to get anywhere in this argument by trying to work out which of these Acts came first?

MR KOURAKIS:   No.  You can leapfrog back.  Our research, largely – or in our submissions and in footnotes to it, it seems to suggest that from the first time an unfair dismissal provision was enacted in 1967 there were pre‑existing detailed appeal mechanisms available to police.  So to the extent that we think we can win that argument, although obviously it becomes difficult as you to attempt to trace it through.

GLEESON CJ:   Is that a convenient time, Mr Solicitor?

MR KOURAKIS:   Yes, if the Court pleases.

GLEESON CJ:   We are going to see you, in any event, at 9.30 am tomorrow morning, so we will list this matter part‑heard at 9.30 also.

AT 4.29 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 9 AUGUST 2005