Ferdinands v Commissioner for Public Employment

FERDINANDS v COMMISSIONER FOR PUBLIC EMPLOYMENT
[2004] SASC 30
Full Court: Prior, Debelle and Bleby JJ

PRIOR J I agree with the reasons given by Bleby J and with the orders he proposes.
DEBELLE J I am grateful to Bleby J for his summary of the relevant facts and the relevant legislation. However, for the reasons which follow, I disagree with his conclusion.
Section 40 of the Police Act 1998 invests the Commissioner of Police with powers to act in a wide variety of ways if a member of the police force is found to be guilty of an offence. The width of those powers is best understood by listing them. Section 40(1) lists in paragraphs (d) to (o) how the Commissioner may act. He may act in any one or more of the following ways:
“(d)termination of the person’s appointment;
(e)suspension of the person’s appointment for a specified period;
(f)reduction of the person’s remuneration by a specified amount for a specified period (but not so that the total amount forfeited exceeds the amount prescribed by regulation);
(g)where the person is a member of S.A. Police, transfer of the member to another position in S.A. Police (whether with or without a reduction in rank, seniority or remuneration);
(h)where the person is a member of S.A. Police, reduction in the member’s seniority;
(i)imposition of a fine not exceeding the amount prescribed by regulation;
(j)where the person is a police cadet, withdrawal of specified rights or privileges for a specified period;
(k)a reprimand recorded in the person’s conduct and service history kept under the regulations;
(l)an unrecorded reprimand;
(m)counselling;
(n)education or training;
(o)action of any other kind prescribed by regulation.”
Thus, the Commissioner’s powers extend from termination of the officers’ appointment through suspension from duty, reduction in seniority to a reprimand or counselling. The very width of these powers highlights the possibility that the Commissioner might on some occasion terminate an officer’s appointment when another form of discipline would have been entirely adequate. For example, a police officer might be found to have been guilty of exceeding the speed limit. Whilst that might be a poor example for police officers to set to the public, it is unlikely to warrant termination of appointment as a police officer. One can readily identify a large number of offences where, according to circumstances, termination of the police officer’s appointment would be unjustified.
Although the Police Act 1998 deals with issues affecting the administration of SA Police including discipline and in that respect might be considered to be a special Act in contrast with the more general application of the Industrial and Employee Relations Act 1994, it was nevertheless enacted against the legislative background of the Industrial and Employee Relations Act and the provisions of Part 6 of that Act relating to unfair dismissal. It is, therefore, reasonable to infer that it was not intended to deny a police officer a right to make an application under Part 6 for unfair dismissal. The absence, therefore, from the Police Act of a right of review of a decision terminating appointment under s 40 does not I think have the consequence that it was not intended that a police officer could not make an application under Part 6 of the Industrial and Employee Relations Act. If Parliament had intended that the rights available under Part 6 should not be available to police officers, it could easily have so provided in the Police Act.
The fact that the termination of employment under s 40 is the only kind of termination of employment under the Act is not, standing alone, a sufficient reason for concluding that the intention of the Police Act is to invest the Commissioner with a non-reviewable authority under s 40 to terminate employment. In addition, I do not think that the powers of the Industrial Relations Commission to determine that a dismissal is harsh, unjust or unreasonable compromises the disciplinary powers of the Commissioner. The question whether a dismissal is harsh, unjust or unreasonable will be determined by reference, among other things, to the need for proper standards of conduct in and the overall discipline of the police force.
In my view the provisions of the Police Act 1998 do not have the consequence that a police officer may not apply under Part 6 of the Industrial and Employee Relations Act 1994 for relief where his employment as a police officer has been terminated pursuant to s 40 of the Police Act. One consequence of this conclusion is that there is a remedy available if the Commissioner terminates appointment but not if he exercises any of his other powers listed in s 40(1). However, termination of appointment is such an extreme remedy that the intention is to enable a remedy for that but not for the exercise of any of his other powers of discipline in s 40(1).
For these reasons, I would grant leave to appeal and would allow the appeal.
BLEBY J: Mr Ferdinands was a police constable in the South Australian Police Force. He was dismissed by the Commissioner of Police on 22 November 2001 by virtue of his having been found guilty in the Magistrates Court of a charge of assault contrary to s 39 of the Criminal Law Consolidation Act 1935.
On 22 May 2002 Mr Ferdinands made an application pursuant to s 106 of the Industrial and Employee Relations Act 1994 (“the Industrial Act”) to the Industrial Relations Commission of South Australia seeking a determination pursuant to s 108 of the Industrial Act that his dismissal was harsh, unjust or unreasonable and seeking an order for re-employment or other alternative relief under s 109 of the Industrial Act.
A Commissioner of the Industrial Relations Commission referred the following questions of law to the Industrial Relations Court pursuant to s 214(1) of the Industrial Act:
“1.Can the Industrial Relations Commission of South Australia extend the time within which the applicant can apply for relief under Part 6 of Chapter 3 of the Industrial and Employee Relations Act 1994?
2.Is the Industrial Relations Commission of South Australia deprived of jurisdiction to determine the applicant’s application on any of the following grounds:
2.1 That the Police Act, 1998, the Police Regulations, 1999 and the Police (Complaints and Disciplinary Proceedings) Act, 1985 provide a complete code in respect of the applicant’s dismissal such that section 106 of the Industrial and Employee Relations Act, 1994 has no application; or
2.2 That the applicant’s application No. DCAAT 60 of 2001 to the District Court of South Australia is a remedy for dismissal and that the applicant is thereby estopped by section 106(2) of the Industrial and Employee Relations Act, 1994 from bringing this application?”
The Full Court of the Industrial Relations Court (His Honour Senior Judge Jennings, Her Honour Judge Parsons and His Honour Judge Gilchrist), on 24 March 2003 unanimously determined that the Commission did not have jurisdiction to entertain Mr Ferninands’ application for relief under Part 6 of Chapter 3 of the Industrial Act.
By notice of appeal filed on 4 April 2003 Mr Ferdinands purported to appeal to this Court against that decision and order. Section 191 of the Industrial Act appears in Chapter 5, Part 2 of the Act, which relates to the Industrial Relations Court. That section provides that an appeal lies to this Court from a judgment, order or decision of the Full Court of the Industrial Relations Court if -
“(a)the appeal is based on an alleged excess or deficiency of jurisdiction; or
(b)the Supreme Court grants leave to bring the appeal.”
Mr Ferdinands has not applied for leave to appeal. Therefore, if his appeal is to succeed it must be an appeal based on an alleged excess or deficiency of jurisdiction. In my opinion, those words relate to an alleged excess or deficiency of jurisdiction of the Industrial Relations Court, rather than the Commission. Appeals and references from the Industrial Relations Commission are dealt with in Chapter 5 Part 3 of the Industrial Act. Challenges on the grounds of excess or want of jurisdiction of the Commission are provided for in s 206 of the Industrial Act:
“206. (1) A determination of the Commission is final and may only be challenged, appealed against or reviewed as provided by this Act.
(2) However, a determination of the Commission may be challenged before the Full Supreme Court on the ground of an excess or want of jurisdiction.”
There is no decision of the Industrial Relations Commission relating to its jurisdiction in this case which could be challenged in this Court.
I return to consider the jurisdiction of the Industrial Relations Court. Section 12 of the Industrial Act provides:
“12. The Court has jurisdiction –
(a)to hear and determine a question of law referred to it by the Commission; and
(b)to hear and determine jurisdictional or other questions about the validity of determinations of the Commission.”
Section 214 of the Act, which is to be found in Chapter 5, Part 3, relating to provisions of special application to the Industrial Relations Commission, provides:
“214. (1)    The Commission may, in its discretion, refer a question of law arising in proceedings before the Commission to the Court for determination.
(2)    The Court will determine the question of law referred to under subsection (1) and return the matter to the Commission with its opinion or direction.
(3)    The Commission must give effect to that opinion or direction of the Court.”
The Industrial Relations Court therefore had jurisdiction to answer the questions of law referred to it by the Industrial Relations Commission, including questions relating to the Commission’s jurisdiction. There can be no doubt that the Court was acting within its jurisdiction in answering the question it did, even if, in answering the question, it made an error of law, which I consider it did not.
It follows that Mr Ferninands’ purported appeal to this Court is incompetent and would have to be dismissed.
However, Mr Ferdinands is not represented by a legal practitioner. As I have pointed out, he also has a right of appeal if this Court grants leave to bring the appeal. His purported appeal was filed within 14 days of the date of determination of the Industrial Relations Court. In the circumstances, the Court intimated that it would be prepared to treat his purported appeal as an application for leave to appeal to this Court. Mr Walter, for the respondent, did not object to this course. I therefore consider whether leave to appeal should be granted.
Mr Ferdinands was dismissed by the Commissioner of Police in reliance upon s 40(1)(a) of the Police Act 1998. So far as is relevant that section provides:
“40(1) If a member of SA Police or police cadet –
(a)is found guilty of an offence under a law of this State, the Commonwealth or another State or a Territory of the Commonwealth; …
the Commissioner may take action, or order the taking of action, of one or more of the following kinds in relation to the person;
(d) termination of the person’s appointment; …”
In deciding that the Industrial Relations Commission did not have jurisdiction to entertain the application, the Full Court of the Industrial Relations Court considered that the Police Act revealed a clear intention by Parliament to render decisions made by the Commissioner of Police to terminate the appointment of a police officer immune from review by the Industrial Relations Commission, notwithstanding the conferral of jurisdiction by the Industrial Act in broad and general terms to deal with allegedly harsh, unjust or unreasonable dismissals from employment. In so holding the Industrial Relations Court relied on its earlier decisions in McQuillan v Commissioner for Public Employment (Department of Correctional Services) (1993) 60 SAIR 540, and in particular on Stone v Commissioner for Public Employment (Unreported) [2002] SAIRC 21.
The latter case concerned a police cadet whose cadetship was terminated in accordance with the provisions of the Police Act prior to its completion. The Court then held that the Industrial Relations Commission did not have jurisdiction to entertain that application for relief under s 109 of the Industrial Act. The Court quoted with approval the following extract from the reasons for judgment of Judge Parsons in Stone’s case at [59]:
“Notwithstanding the different rights and obligations applying to police officers and police cadets, the intended reach of the Police Act is to embrace all aspects of the control and management of those categories. It is intended to be a specific and exclusive scheme. As a result, to the extent that it is inconsistent with Part 6 of the Industrial Act because it permits the termination of a police cadet’s appointment at the discretion of the Commissioner, the provisions of the Industrial Act are excepted and do not apply. In those circumstances the approaches adopted in the earlier authorities of Nassar v Public Service Board (Stanley J (1986) 53 SAIR 278; Full Industrial Commission (1986) 53 SAIR 408) and McQuillan v Commissioner for Public Employment (Department of Correctional Services) (1993) 60 SAIR 540 continue to have application.”
Mr Ferdinands wishes to argue that both McQuillan and Stone were wrongly decided, as both involved trainees, and not persons in permanent employment. He argues that the Police Act does not provide a code in respect of the employment, discipline and dismissal of police officers, and that the Commissioner of Police does not have an unfettered right to terminate the employment of a police officer. In particular, he wishes to argue that the Commissioner does not have the right to terminate an officer under s 40(1)(a) of the Police Act where (as is asserted in this case) there is an unresolved appeal by the officer against his conviction.
It is not unknown for tribunals on which a broad general jurisdiction is conferred, such as the Industrial Relations Commission in its unfair dismissal jurisdiction, to have its jurisdiction confined by implication where an Act of Parliament enacted later in time prescribes what is to happen in a particular situation. The later Act is said to override the general provision of the earlier Act. The rule was stated by Griffith CJ in Goodwin v Phillips (1908) 7 CLR 1 at 7:
“(W)here the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.”
However, an important qualification was stated by Barton J in the same case at 10:
“Before coming to the conclusion that there is a repeal by implication ‘The Court must,’ to use the words of Hardcastle in his work on the Interpretation of Statutes (Craies on Statute Law, 4^th ed., p 303) ‘be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, i.e., the repeal must, if not express, flow from necessary implication.’ If, therefore, there is fairly open on the words of the later Act, a construction by adopting which the earlier Act may be saved from repeal, that construction is to be adopted.”
More recently, Gaudron J in Saraswati v The Queen (1991) 172 CLR 1 said, at 17:
“It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict) (1961) 106 CLR 268,at 276 per Fullagar J, and per Windeyer J (at 290).”
It follows that if the two Acts can be read as being able to operate together they should be allowed to do so: Trade Practices Commission v BP Australia Ltd (1985) 7 FCR 499 at 506; 62 ALR 151 at 158 In other words, every attempt should be made to reconcile the competing statutes before holding that there has been an implied repeal.
What I have said relates to the position where a later Act dealing with a specific situation is said to repeal, by implication, the earlier Act of more general application. Another similar situation can sometimes arise where a later Act of general application is said to have no effect on a situation covered by an earlier specific Act. The classic exposition of this canon of construction is contained in the judgment of the Earl of Selborne LC in Seward v Vera Cruz (1884) 10 App Cas 59 at 68:
“Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.”
The principle was referred to by O’Connor J in Goodwin v Phillips (supra) at 14:
“Where there is a general provision which, if applied in its entirely, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.”
An illustration of the practical application of that canon of construction in an industrial setting can be seen in Bank Officials’ Association (South Australian Branch) v The Savings Bank of South Australia (1923) 32 CLR 276 where the provisions of the Industrial Code 1920 (SA) were held not to apply to employees of the Savings Bank of South Australia because of the detailed provisions contained in the Savings Bank Act 1875 (SA). An illustration of an earlier specific Act not being overridden by later general industrial legislation is R v Industrial Commission of SA; ex parteFire Brigades Board (1981) 92 LSJS 493.
In this case, there are three relevant Acts which need to be considered. In order of their enactment they are the Police (Complaints and Disciplinary Proceedings) Act 1985 (“the Complaints Act”), the Industrial Act, enacted in 1994 and the Police Act, enacted in 1998. However, as will be seen, the procedures available under the Complaints Act are only made available by virtue of the Police Act, and so the inquiry that must be made is whether there is an implied partial repeal of the Industrial Act by the Police Act.
Section 40 of the Police Act, to which I have already referred, appears in Part 6 of the Act, a part dealing with misconduct and discipline of police and police cadets. Section 37 of the Act, also in Part 6, makes provision for the establishment of a Code of Conduct for the maintenance of professional standards by police officers. There is an obligation on a police officer to report breaches of the Code to the Commissioner (s 38), and the Commissioner may charge an officer with a breach of the Code. If not admitted, that charge is heard and determined by the Police Disciplinary Tribunal in accordance with the Complaints Act: s 39.

Under s 40 the Commissioner is specifically empowered to take action where a police officer is found guilty of a State or Commonwealth offence or is guilty of a breach of the Code of Conduct. The Commissioner has a number of options besides termination of appointment. Those options include suspension of appointment, reduction in remuneration or seniority, transfer to another position, imposition of a fine, reprimand, counselling and education or training. Section 41 provides for suspension of an officer if charged with an offence or with a breach of the Code of Conduct.
A charge of breach of the Code of Conduct, if not admitted, must be heard and determined by the Police Disciplinary Tribunal constituted under the Complaints Act: s 39. It is only if the charge is admitted, or after a finding by that Tribunal or by the Administrative and Disciplinary Division of the District Court on appeal from that Tribunal, that the Commissioner can implement one of the actions set out in s 40. Thus, the Commissioner is enabled to take any one of the actions mentioned in s 40 upon a police officer being found guilty by a court of a State or Commonwealth offence, or upon admitting or being found guilty by the Police Disciplinary Tribunal of a breach of the Code of Conduct. In any such event there is no appeal from a decision of the Commissioner under s 40.
Section 42 deals with questions of minor misconduct and how they may be dealt with by informal inquiry. Section 43 provides for a system for review of an informal inquiry conducted by the Commissioner in relation to minor misconduct.
The sections I have so far referred to are all in Part 6 of the Act. Part 7 of the Act enables the Commissioner to terminate the appointment of a member of the police on the ground of incapacity to perform duties by reason of physical or mental disability or illness (s 45) and on the ground of unsatisfactory performance (s 46). Section 47 confers powers of transfer to another position.
Part 8 of the Police Act provides for a scheme for a review of, amongst other things, a decision of the Commissioner to terminate a member of the police force’s appointment under Part 7, but not under Part 6. The Police Review Tribunal constituted under the Act is invested with jurisdiction to conduct the reviews. There is a further right of appeal to the Administrative and Disciplinary Division of the District Court. Part 8 also enables the Police Review Tribunal to review decisions on transfers of officers for disciplinary reasons.
The Complaints Act sets up a scheme for dealing with complaints by members of the public against police officers, for the investigation of such complaints by the Police Complaints Authority or by the Internal Investigation Branch of the police force, for recommendations by the Police Complaints Authority on action that should be taken after investigation (including a recommendation to charge a member of the police force with an offence or breach of discipline) and for the hearing and determination of charges against a police officer by the Police Disciplinary Tribunal constituted under the Complaints Act. That is the Tribunal which may hear a charge by the Commissioner of a breach of the Code of Conduct under Part 6 of the Police Act. That Tribunal may state a case on any question of law for the opinion of the Supreme Court (s 43), and there is an appeal from that Tribunal to the Administrative and Disciplinary Division of the District Court (s 46).
I turn to consider the provisions of the Industrial Act. The appellant is an employee for the purpose of that Act, being a “public employee” as defined in s 4(1) of the Industrial Act, namely a person “employed for salary or wages in the service of the State”. As such, he is prima facie entitled to the benefit of the unfair dismissal provisions of Chapter 3 Part 6 of the Industrial Act.
Section 105A provides for certain classes of employee to be excluded from the operation of Part 6 by regulation. It was not argued that the appellant’s employment is of a class excluded by regulation. Therefore, if the decision of the Industrial Relations Court is to be affirmed, the exclusion must be by virtue of the implied partial repeal of Part 6 in accordance with the principles to which I have referred.
Section 108 of the Industrial Act relevantly provides:
“(1)   At the hearing of an application under this Part, the Commission must determine whether, on the balance of probabilities, the dismissal is harsh, unjust or unreasonable.
(2)In deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must have regard to -
(a)    the Termination of Employment Convention; and
(b)    the rules and procedures for termination of employment prescribed by or under Schedule 8.”
A copy of the Termination of Employment Convention is to be found in Schedule 7 of the Industrial Act. Article 4 provides that employment shall not be terminated “unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service”. Articles 5 and 6 of the Convention describe certain matters which do not constitute “valid reasons” for termination. Article 7 enshrines a right of basic procedural fairness, namely an opportunity for an employee to defend himself against allegations relating to conduct or performance.
Schedule 8 of the Industrial Act also enshrines certain essential requirements of notice or serious misconduct and basic procedural requirements in order to justify a dismissal.
In other words, the Industrial Relations Commission is enabled to determine if a dismissal is harsh, unjust or unreasonable because of either the reasons for the dismissal as it finds them to be or by virtue of the manner in which the dismissal was effected.
It might be thought that, with the power to prescribe exemptions by s 105A of the Industrial Act, the failure of the regulations to exclude the police officers pursuant to that section, in conjunction with the detailed requirements imported by s 108 of the Act, the Commissioner should be subject to the jurisdiction of the Industrial Relations Commission under Chapter 3, Part 6 of the Industrial Act where there is a termination by the Commissioner which, it is alleged, does not accord with those essential requirements. It is necessary to return to the terms of the Police Act. That Act is quite specific as to the grounds on which the Commissioner can terminate the appointment of an officer. In essence, that can only occur if a member of the police force is found guilty of a State or Commonwealth offence, is guilty of a breach of the Code of Conduct (other than minor misconduct as defined), is incapacitated by reason of physical or mental disability or illness or if the Commissioner is satisfied that the officer’s performance is unsatisfactory. Although it is not necessary to decide the question, it is possible that the Crown prerogative to dismiss a police officer at pleasure has been abrogated. There is no reference to its preservation in the Police Act: c.f. s 65 Public Sector Management Act 1995.
It is possible that the prerogative can be abrogated by implication: Gould v Stuart [1896] AC 575. The presence of a statutory modification of the principle in s 51 of the Police Services Act 1990 (NSW) played a significant role in Commissioner of Police for NSW v Jarratt (Unreported, 11 November 2003) [2003] NSW CA 326 where it was held that the prerogative, albeit modified, did apply. If it does not apply to the South Australian Police, dismissal for a reason other than that specified in the Act will be beyond the power of the Commissioner and will be invalid.
In the case of termination for incapacity based on physical or mental disability or illness or for unsatisfactory performance, the Police Act is also specific as to the procedure which the Commissioner must follow. Under s 45 of the Police Act the Commissioner must make “due inquiry” as to the need to terminate on the ground of the alleged incapacity. Under s 46, sub-section (5) prescribes a number of procedural steps which must be fulfilled before the Commissioner can take action under that section. There is also a comprehensive system of review as to whether the statutory justification for termination on these grounds is made out. That is by means of the review under Part 8 of the Police Act and the further possible avenue of appeal to the Administrative and Disciplinary Division of the District Court. There can be little doubt that Parliament intended, in the case of a termination of police officers on any of the grounds provided for in s 45 and s 46, that Chapter 3, Part 6 of the Industrial Act should have no application, and that they should be dealt with exclusively by the processes prescribed by the Police Act.
In the case of a dismissal under s 40 for what might be described as disciplinary reasons, a dismissal cannot take place unless there is a finding of guilt of a State or Commonwealth offence by a court of law, or unless there is a breach of the Code of Conduct admitted by the officer or found by the Police Disciplinary Tribunal. In contested cases these processes have their own inbuilt stringent requirements for affording rights of natural justice before a finding can be made. What is lacking is a system of review of the action taken by the Commissioner in the light of those findings. In this regard, a termination under the Police Act for disciplinary reasons is treated differently from a termination for a reason specified in s 45 or s 46.
Notwithstanding that difference, in my opinion the Police Act was intended by Parliament to deal exclusively with all terminations of employment of members of the South Australian Police. That intention is manifested by a number of factors.
In the first place, there are the possibly limited grounds on which the Commissioner is able to terminate a member of the police force in any event. Those grounds are much narrower than grounds available to an employer at common law. Next, there are procedural obligations required to be observed in ascertaining whether the relevant grounds exist for the termination. In that sense the Police Act has made its own express provisions for the application of procedural fairness for disciplinary terminations to the exclusion of those contained in the Industrial Act.
The fact that Parliament has provided for a system of review of determinations to terminate an officer on some grounds but not on others is, in itself, significant. The review is prescribed only for non-disciplinary terminations. Put another way, termination taken for disciplinary reasons under s 40 of the Police Act is the only type of termination not subjected to some form of review in the Police Act.
The police force, like the armed services, but unlike any other body of employees, must at all times be and remain a highly disciplined force if it is to achieve its objective of reassuring and protecting the community in relation to crime and disorder by the sort of service it is required to provide: see s 5 Police Act. Section 6 of the Police Act vests responsibility for the control and management of the South Australian Police in the Commissioner, subject only to any written directions of the Minister. However, s 7 specifically provides that no ministerial direction may be given to the Commissioner in relation to “the appointment, transfer, remuneration, discipline or termination of a particular person”. Thus, the Commissioner’s power to control and manage the police force in those particular areas is to be absolute and without interference. Nevertheless, by s 10 of the Police Act the Commissioner is required to ensure that management practices, particularly those relating to personnel management, are followed and are directed towards certain objectives stated within the section. To that end, the Commissioner is empowered by s 11 to give general or special orders for the control and management of the South Australian Police. These are all detailed statutory obligations. If there is a failure to observe them, the Commissioner will be open to judicial review.
In my opinion, Parliament has manifested the clear intention that, within those statutory parameters, the Commissioner should have complete control over the police force – a control which cannot be compromised by a determination of the Industrial Relations Commission that, according to generally accepted community standards, a dismissal is harsh, unjust or unreasonable.
It is not surprising that Parliament should have set up a dedicated system of review of a decision of the Commissioner to terminate a member of the police force where questions of discipline are not involved. Equally, it is not surprising that Parliament should wish to confer such apparently wide powers on the Commissioner, without any right of review, in respect of matters of discipline which are fundamental to the satisfactory operation of a disciplined police force. It has, nevertheless, ensured that necessary safeguards of proof of the underlying facts, according to acceptable standards, have been built into the Police Act to ensure that termination cannot be effected without satisfactory proof of those underlying facts. In my opinion, there is a necessary implication in the terms of the Police Act that the provisions of Chapter 3, Part 6 of the Industrial Act are repealed, at least to the extent that they might otherwise apply to members of the South Australian Police.
The Commissioner terminated Mr Ferdinands’ employment because he had been found guilty of a charge of assault, contrary to s 39 of the Criminal Law Consolidation Act. That is sufficient justification for the Commissioner to have acted under s 40 of the Police Act. It was therefore a valid termination, but one which is not subject to review under Chapter 3, Part 6 of the Industrial Act.
Accordingly, I do not consider that Mr Ferdinands has an arguable case that the Industrial Relations Court was wrong in its decision in Stone or McQuillan or that it was wrong in this case. For these reasons I would refuse leave to appeal from the Industrial Relations Court.
Mr Ferdinands’ purported appeal seeks to have a number of other issues dealt with by this Court, including seeking an order for his reinstatement, damages for his allegedly unfair dismissal, damages arising out of the publication of an article in a newspaper concerning his application in the Industrial Relations Commission and damages for alleged loss of wages. It is sufficient to say that these were not and could not have been matters properly before the Industrial Relations Court and cannot be the subject of an application for leave to appeal to this Court.
The orders I would therefore make are:
1.That the purported notice of appeal filed on 4 April 2003 be treated as an application for leave to appeal to this Court pursuant to s 191(1)(b) Industrial and Employee Relations Act 1994;
2.That leave to appeal be refused.
Counsel for the respondent indicated that he would be seeking an order for costs against the applicant if the application failed. Mr Ferdinands made no submissions about that. Costs would normally follow the event and would be awarded against the applicant. I would order that, unless the applicant indicates to the presiding Judges’ associate within 14 days from today, that he wishes to oppose the order for costs, such an order be made in favour of the respondent at the end of that period. If the applicant wishes to oppose the order and notifies the associate within that time, then this matter can be listed for further argument.

[2004] SASC 30

2 April 2004