Ferguson v Commissioner of Police
[1997] IRCA 74
•07 March 1997
DECISION NO:74/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether a police officer is an employee
Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988 (C'th)) Ss 170EA 170DC
Police Act 1892 (WA) as amended
Attorney General for New South Wales v Perpetual Trustee Co. Ltd (1952) 85 CLR 237
Cook v Commissioner of Police (1996) 66 IR 361
Enever v The King (1906) 3 CLR page 969
Griffiths v Haines [1984] 3 NSWLR 653
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199
R v The Commissioner of Police,ex parte Ross [1991] 1Qd.R. 289
re Australian Federal Police Association (2) (1993) 51 IR 122
Sellars v Woods and Another (1982) 45 ALR 113
Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561
REGINALD THOMAS FERGUSON
v COMMISSIONER OF POLICE
WI 1401 of 1996
Before: BOON JR
Place: PERTH
Date: 7 MARCH 1997
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1401 of 1996
B E T W E E N:
REGINALD THOMAS FERGUSON
Applicant
A N D:
COMMISSIONER OF POLICE
Respondent
MINUTE OF ORDERS
7 MARCH 1997 PERTH BOON JR
THE COURT ORDERS THAT :
The application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1401 of 1996
B E T W E E N:
REGINALD THOMAS FERGUSON
Applicant
A N D:
COMMISSIONER OF POLICE
Respondent
REASONS FOR DECISION
7 MARCH 1997 BOON JR
INTRODUCTION
This is an application under section 170EA of the Workplace Relations Act 1996 (formerly Industrial Relations Act 1988) (the "Act"). The applicant, Mr Ferguson, seeks payment of compensation arising out of the alleged termination of his employment by the respondent, the Commissioner of Police in Western Australia. At the time of the termination of Mr Ferguson's employment he was a commissioned officer in the Western Australian Police Service and had reached the rank of Detective Senior Constable. Mr Ferguson had completed exams to be eligible for promotion to the rank of Sergeant.
The sole basis upon which the application was made is an alleged breach of section 170DC of the Act. Although Mr Ferguson does not admit that there was a valid reason for the termination of his employment, that matter was not put in issue at the hearing of this matter.
The Commissioner of Police submitted, as a threshold issue of jurisdiction, that Mr Ferguson is not entitled to apply to this Court for a remedy pursuant to section 170EA of the Act on the basis that there was no termination of employment. The Commissioner of Police denies that there was a relationship of employment between the applicant and the respondent.
Section 170EA(1) of the Act states as follows:
"A person (the employee) may lodge with the Commission an application for relief in respect of termination of his or her employment."
Under section 4 of the Act, "employee" is defined as including "any person whose usual occupation is that of employee". It is the contention of Mr Ferguson that he was an employee of the Commissioner of Police and that this Court therefore has jurisdiction to hear his application.
The parties elected to have a full hearing on the question of whether or not there had been a breach of section 170DC on the understanding that if this Court decides that there was no employment relationship in existence between Mr Ferguson and the Commissioner of Police, there would be no jurisdiction to determine Mr Ferguson's application.
WAS THERE AN EMPLOYMENT RELATIONSHIP?
The Respondent's Submissions
It is submitted on behalf of the respondent that the correct characterisation of the position held by Mr Ferguson is that of holder of a public office, and that this is a notion distinct from that of a relationship of employment. A number of authorities were cited in support of the proposition that a police officer is not an employee.
Reference was made to the Police Act 1892 as amended (WA) and the fact that its numerous provisions refer to the "appointment" of a police officer and never "employment". It was said that a police officer is always performing a public duty and exercising an original authority.
Mr Hooker, on behalf of the respondent, referred to the case of Sellars v Woods and Another (1982) 45 ALR 113, a decision of the Federal Court of Australia. That case concerned an application by a federal police officer for an order for review under the Administrative Decisions (Judicial Review) Act 1977. At page 122 of that decision, Fisher J stated:
"It seems appropriate to define the position of the applicant as the holder of a public office who by virtue of his undertaking and oath has entered into an agreement to serve the Crown as a member of the Federal Police Force. The nature of the engagement has been considered by the court on a number of occasions."
Fisher J referred in his decision to the case of Attorney General for New South Wales v Perpetual Trustee Co. Ltd (1952) 85 CLR 237 and a number of other cases.
In the case of Attorney General for New South Wales v Perpetual Trustee Co. Ltd, the majority of the High Court of Australia followed earlier decisions to the effect that an action in tort does not lie at the suit of the Crown in respect of the loss of the services of a member of the police force of the State of New South Wales. That case went on appeal to the Privy Council which upheld the decision. The Court referred to a number of earlier cases and stated at page 129:
"Their Lordships can now express their final opinion upon the case. They repeat that in their view there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original not delegated, and is exercised at his own discretion by virtue of his office : he is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognized in the fact that his relationship to the Government is not in ordinary parlance described as that of servant and master."
It was argued on behalf of the respondent that these principles have been applied time and time again with the same effect. For example, the Full Court of the Queensland Supreme Court in the case of R v The Commissioner of Police,ex parte Ross [1991] 1Qd.R. 289 held that a police officer was not the employee of the Commissioner of Police of Queensland. Derrington J stated at page 291 to 292:
"It is argued that an order to the prosecutor to work in the unhealthy conditions at the Cairns Watchhouse breached that duty and was therefore not a "lawful direction".
The first error in this proposition is the assumption that the prosecutor was the employee of the Commissioner of Police whereas, although the Commissioner may have had a statutory power of appointment of the prosecutor and other police officers, they are all beholders of statutory office under the Police Act and not in the relationship of employer/employee at all. It is doubtful whether there is even a master and servant relationship between the Crown and a police officer . . . ."
Mr Hooker acknowledged that the long line of authorities to which he referred, (not all of which have been set out in these reasons for judgment) dealt primarily with actions in tort against the Crown and did not consider the question of whether a police officer is an employee within the meaning of those words in the Industrial Relations Act 1988. He argued however that the highest authority in this land, the High Court, has on a number of occasions clearly stated that a police officer is not an employee and that this Court as presently constituted is bound by that line of authority. Mr Hooker acknowledged that there were two recent decisions to the effect that a police officer is an employee within the meaning of the Workplace Relations Act 1996. The first of those decisions is that of Williams DP in the Australian Industrial Relations Commission in the case of re Australian Federal Police Association (2) (1993) 51 IR 122. The second is that of Farrell JR in this Court in the case of Cook v Commissioner of Police (1996) 66 IR 361. Both of these cases will be referred to later in these reasons for judgment. Mr Hooker respectfully submitted that those decisions were wrong in law. He submitted that this Court has to be satisfied that it has jurisdiction and in view of the length of authority and the weight of the authority it should conclude that there never was a relationship of employment in existence between Mr Ferguson and the Commissioner of Police.
The Applicant's Submissions
Mr Castiglione for the applicant relied heavily on the cases of re Australian Federal Police Association No. 2 and Cook v Commissioner of Police. In the Australian Federal Police Association case the issue was whether police officers were employees and/or employees who are capable of being engaged in an industrial dispute. It was submitted that Williams DP undertook a detailed and persuasive analysis of the authorities and that none of the authorities relied on by Mr Hooker come as close as this case in determining those issues in respect of the Workplace Relations Act 1996. The basis of the applicant's argument is that just because a police officer is an "officer" does not mean that he is not also an employee of the Crown. It was submitted that the idea that a worker can be in a number of different relationships at the same time is axiomatic to the law of employment: for example, a worker may also be an agent, a director of a company and an employee. It was submitted that the same applied here and that a police officer is not only a public officer but also an employee.
It was submitted that the cases relied on by Mr Hooker deal with specific issues of tortious liability and that they are restricted to limited duties, namely the duties of an officer and are not authority for a general proposition that a police officer is not an employee.
Mr Castiglione referred to the Perpetual Trustees case in which Dixon J of the High Court stated at page 250 as follows:
"Of course there may be a question whether an officer does hold an office with independent functions or stands in the relation of an ordinary servant of the Crown. But it does not follow that because in some duties the law invests him with an independent responsibility he is not otherwise a mere servant of the Crown. For example, a collector of customs discharges an independent function in passing or refusing to pass an entry and if he acts wrongfully in that respect the Crown is not vicariously responsible . . . . Nevertheless we have regarded him as a servant for whose liables the Crown was responsible in damages . . . ."
His Honour went on to state at page 252:
"So far I should have thought that everything pointed to a member of the police force occupying the position of a servant of the Crown for the loss of whose services owing to an injury caused by a wrongful act the Crown might sue the wrongdoer. But the question remains whether because a constable is entrusted by law with specific powers and given specific duties which he must execute as a matter of independent responsibility . . . the general relation between the Crown and a member of the police force is not that of master and servant. In my opinion this consequence does not follow. In most respects a member of the police force is subject to the direction and control which is characteristic of the relation of master and servant. It does not matter that there is a chain of command. That is necessary in some degree in all organizations military and civil, public and private. It is only when in the course of his duties as a servant of the Crown he is confronted with a situation involving the liberty or rights of the subject that the law places upon him a personal responsibility of judgment and action."
His Honour went on to state at page 253 that for those reasons, if the matter were to be considered afresh, he would prefer the view in favour of the Crown's right of recovery. However, his Honour did not consider it appropriate to reconsider the correctness of earlier decisions and decided that the proper course judicially was to follow and apply that earlier line of authority.
The case of Enever v The King (1906) 3 CLR page 969 was referred to. In that case O'Connor J stated at page 989 to 990 as follows:
". . . it was properly admitted by the appellant's counsel that the Crown Redress Act 1891 imposes no greater liability upon the Government for the acts or defaults of its servants than would attach to an individual employer under like circumstances. In order, therefore, to test the liability of the Government in this case the ordinary law of master and servant must be applied. In a general sense, no doubt, the constable was the servant of the Government at the time when the trespass complained of was committed. He held his office under the Police Regulation Act 1898, which gave the Government power to employ, to pay, and to dismiss him. He was probably required to perform many duties besides those imposed upon a constable at common law or by Statute, and in the performance of such duties he would be the servant of the Government, and they would be directly liable for any neglect or default committed by him in the course of his employment; but the question for our decision is was he the servant of the Government in the performance of the particular duty of making the arrest which is the subject of this action. The test of liability in this as in every case is, was the servant in doing the particular act complained of subject to the control of the master . . . ."
Mr. Castiglione quoted a passage in the case of re: Australian Federal Police Association where Williams DP referred to the case of Griffiths v Haines [1984] 3 NSWLR 653. That case concerned the question whether a police constable could maintain an action in negligence against the Government of New South Wales for injuries sustained whilst in the performance of his duties as a constable. Williams DP stated as follows at page 143:
"The Court considered that a constable acting in the execution of his duty as such is not in the common law relationship of servant to the government and the government therefore did not have imposed upon it a duty to take care for the safety of the constable at the time of his injury (at 661). It further considered that the government is not vicariously liable for the negligent acts of a police officer when that officer acts independently of the government in the performance of any duty conferred upon him by law (at 662-663)."
Williams DP went on to say that it was however clear from the following passage (at page 662) in Griffiths v Haines that the Court did recognise that the position may have been different if the injuries had occurred when the constable was not acting as a constable:
"The conclusion that the duties owed by a master to a servant are not owed by the government to a constable acting as such should not, however, be taken to mean that the government could not, in any circumstances at all in relation to a police officer, be subject to the duty of care which a master owes to a servant. That duty, in my opinion, would attach in any circumstances where the police officer in question was not in fact exercising his independent position as a constable; it would arise from the fact that the government was in fact the employer of the police in all circumstances except where the police are exercising original authority. Injuries to police officers occurring, for instance, in police stations and brought about by the defective nature of their premises or injuries arising from the provision by the government of defective equipment (whether pistol or motor car, etc) would, I should think, entitle a constable to bring an action against the government for breach of a duty to take care arising from a master and servant relationship and this, irrespective of whether an action could be maintained based upon a duty of care arising in some other way at common law. However, for the reason given earlier, it is unnecessary, in the present case, to examine further the circumstances in which the relationship of master and servant might exist between government and police officer."
It should be noted that the passage just quoted is obiter.
In re: Australian Federal Police Association Williams DP provides a very detailed analysis of the authorities at common law on the question of whether or not police officers are employees. Williams DP refers in his decision to the cases already quoted in these reasons for judgment and many other cases. Williams DP uses passages such as those quoted from Enever and Griffiths v Haines to conclude as follows at page 145:
"A proper analysis of these decisions convinces one that there is no authority binding upon me for the proposition that a State or Territory police officer is not an employee for the purposes of the Act. I do not doubt -
·that a police officer is the holder of a public office,
·that, in the course of performing the duties of that office, a police officer exercises powers, authorities and discretions conferred by common law and by statute and exercises those powers, authorities and discretions independently of the Crown, and
·that the Crown is not vicariously liable for any tortious act committed by a police officer when exercising those powers, authorities and discretions.
That much appears to be settled law. However, it does not necessarily follow from the above that a police officer may not at the same time be an employee for the purposes of the Act. That a police officer may be an employee is at least recognised in Enever's case . . .; Fisher's case . . . and three members of the High Court in the Perpetual Trustee case . . . . It is not, in my view, denied by the Privy Council in its decision in the latter case. As indicated above, the Privy Council was concerned, not with whether or not a police officer was an employee but rather with whether the particular cause of action should be extended "beyond the limits to which it has been carried by binding authority or at least by authority long recognised as stating the law" . . . .
Nor does there appear to be any justification for the proposition that a police officer cannot be both the holder of a public office and an employee. One is not, in my view, inconsistent with the other. In any event, the question is not whether there is any inconsistency - the real question in this case, as stated earlier, is whether that the fact that a police officer exercises independent authorities precludes her/him from being an employee for the purposes of the Act.
I am of the view that it does not. There is no doubt that a police officer performs duties that arise by virtue of the office she/he holds. There is equally no doubt that a police officer performs duties that arise under detailed rules, orders, regulations and instructions formulated by the various Commissioners of Police and that those Commissioners exercise wide powers in directing the work and the manner of the work so performed. I can comprehend no real or significant difference between the relationship of the police officer to the Crown and that of many other employees to their employers where it is either impossible, undesirable or impractical to direct or control the work or particular aspects of the work of the particular employee."
Williams DP referred to the decision of the High Court in Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 in which the Court held that a circus acrobat could still be an employee despite the fact that the work to be done "involves the exercise of individual judgment or action". He felt that the same test can equally be applied in the case of a person whose work involves the exercise of an independent authority. Williams DP considered that there was evidence in the case of police officers of the scope for the exercise of a lawful authority to command which was clear from the rules, regulations, orders and instructions issued by police commissioners.
In the case of Cook v Commissioner of Police (1996) 66 IR 361, Farrell JR considered the question of whether a police officer is an employee under the Industrial Relations Act 1988. He found that Williams DP's review of the relevant authorities was thorough and his analysis persuasive. Farrell JR adopted the reasoning of Williams DP in deciding that a police officer is an employee for the purposes of the Act.
I have carefully considered the authorities referred to by counsel and respectfully differ from the conclusions reached by Farrell JR and Williams DP. I have come to the view that a police officer is not an employee within the meaning of those words in the Workplace Relations Act 1996. My reasons for this are as follows:
I consider that there is a certain appeal and logic to the argument that a police officer should be treated as an employee in many respects. No doubt this is why the Western Australian Commissioner of Police has decided not to object on the grounds that police officers are officers and not employees when agreeing for convenience to be bound by certain industrial awards governing working conditions for police officers. However, many of the references to passages from earlier authorities cited by Williams DP are obiter. Further, this Court as presently constituted is not bound by decisions of the Deputy President of the Australian Industrial Relations Commission or by decisions of fellow Judicial Registrars in this Court. The bulk and weight of the authorities, including decisions of the highest court in this land, are to the effect that police officers are not employees. I consider myself bound by those authorities. Although there may be room for reviewing those authorities in light of modern working conditions in the manner suggested by Williams DP, I do not consider it appropriate for me to do so in view of the weight of authority presently against that proposition.
The provisions of the Police Act 1892 (WA) support the proposition that police officers are not employees. For example, section 7(1) of that Act states as follows:
"The Commissioner of Police may appoint so many non-commissioned officers and constables of different grades as he shall deem necessary for the preservation of peace and order throughout the said State, subject, however, to the approval of the Governor; and such non-commissioned officers and constables shall have all such powers and privileges, and be liable to all such duties and obligations as any constable duly appointed now or hereafter may have, or be liable to, either by the common law, or by virtue of any statute law now or hereafter to be in force in the said State.
Section 10 of the Act states as follows:
"No person shall be capable of holding any office ,or appointment in the police force, or of acting in any way therein, until he shall have subscribed the following engagement, namely: -
I, A.B., engage and promise that I will well and truly serve our Sovereign Lady the Queen, in the office of [Commissioner of Police, Inspector, Sub-Inspector, or other officer, or Constable, as the case may be], without favour or affection, malice or ill will, until I am legally discharged; that I will see and cause Her Majesty's peace to be kept and preserved, and that I will prevent, to the best of my power, all offences against the same; and that, while I shall continue to hold the said office, I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law.
And the said engagement shall be subscribed in the presence of and attested by a justice or commissioned officer of the force."
Under section 12 of the Police Act police officers are not able to resign office without permission unless they have given a month's notice of intention to resign. Under section 8 of the Police Act only the Governor may remove a commissioned officer of police and the Commissioner of Police may only remove a non-commissioned officer or constable with the approval of the Minister. Part 2 of the Police Act deals with regulations, duties and discipline of the police force. The Commissioner under section 9 may, but only with the approval the Minister, frame rules, orders and regulations for the general government of the members of the police force. The kinds of provisions I have just referred to do not point to the existence of an employment relationship between the Commissioner of Police and police officers, although in many respects the parties function as if they were in a relationship of employer and employee. There are many rules and regulations governing the duties and discipline of the police force and giving the Commissioner some right of control, but they do not, in my view, arise from an employment relationship in the way envisaged by the Court in the Zuijs case referred to above. Instead, the power to control or discipline police officers arises from an Act of Parliament.
If police officers are held to be employees under the provisions of the Workplace Relations Act, I can foresee difficulties if a police officer was successful in an application before this Court. The primary remedy under the provisions of the Act is reinstatement. Under sections 6 and 7 of the Police Act, the Governor may appoint commissioned officers and the Commissioner of Police may only appoint non-commissioned officers and constables with the approval of the Governor. Any order made by this Court for reinstatement of a police officer would therefore have to be not just against the Commissioner of Police but also against the Crown in right of the State of Western Australia. Although it would be open to argue that this Court could simply decide that reinstatement would for those reasons be impracticable, in my view this difficulty tends to support the view that police officers were never intended to be bound by the unlawful termination provisions of the Workplace Relations Act.
For these reasons, I consider that a police officer is not an employee within the meaning of the Workplace Relations Act. I therefore find that this Court has no jurisdiction to decide an application by Mr Ferguson for relief arising out of the alleged unlawful termination of his "employment".
WAS THERE AN OPPORTUNITY TO RESPOND TO ALLEGATIONS?
Because I have made a finding that this Court has no jurisdiction to determine the substantive issues in this case, it is not appropriate for me to make any findings of fact or law in relation to the allegation that there was a breach of section 170DC of the Act. At the hearing of this matter, however, evidence was heard in relation to both the jurisdictional question and the substantive issues. Many of the facts surrounding the case were not at issue. It is not in dispute that at various times in 1995 and 1996 Mr Ferguson was on stress-related sick leave. That stress leave related in part to a campaign of harassment waged against Mr Ferguson by anonymous persons who, amongst other things, made death threats against him after he was interviewed by the Australian Federal Police in relation to investigations associated with the Argyle Diamond inquiry.
On 13 February 1996 Mr Ferguson was interviewed by officers of Internal Affairs of the police force in relation to some departmental matters. Mr Ferguson did not hear any more about these matters until July 1996.
On 12 July 1996 an article appeared on the front page of the West Australian newspaper. The newspaper's headline read "Policeman's wife owned 8 brothels". This article named Mr Ferguson and his wife and claimed that Mr Ferguson's wife owned a share of a company which owned at least eight escort agencies.
Four days later, when Mr Ferguson was on sick leave, he was served with three disciplinary charge sheets setting out charges relating to the matters about which he had been interviewed in February 1996.
On 18 July 1996 Mr Ferguson submitted a letter of resignation from the West Australian Police Service to the Commissioner of Police. Under section 12 of the Police Act, the notice of resignation would take effect after a period of one calendar month or unless he received authorisation by the Commissioner of Police. On 23 July 1996 Mr Ferguson received a letter from the Assistant Commissioner of Police (Professional Standards) notifying him that his resignation had not been accepted in light of continuing investigations.
On 5 August 1996 Mr Ferguson, on the advice of his psychiatrist, left Perth for a few days rest. Later that day, Mr Ferguson's then solicitor, Mr Ray Burley, was notified that the officers of Internal Affairs wished to interview Mr Ferguson. Mr Burley advised the Assistant Commissioner of Police of Mr Ferguson's ill health and absence from Perth.
On 12 August 1996 at approximately 5 pm Mr Burley was served with a Notice of Intention to Remove from Police Service dated 9 August 1996 and signed by the Commissioner of Police. That notice identified four matters which the Commissioner identified as relevant to his intention to dismiss Mr Ferguson. Those matters included the three matters previously the subject of disciplinary charges and a fourth matter which alleged that Mr Ferguson was involved the joint purchase of escort agencies and that in doing so he was likely to bring discredit on the West Australian Police Service. That fourth matter had never been the matter of any disciplinary charge or hearing and Mr Ferguson had not been interviewed in relation to it. The notice required Mr Ferguson to show cause as to why he should not be dismissed by 15 August 1996.
Mr Ferguson returned to Perth on 12 August 1996. Mr Ferguson's psychiatrist, Dr T. Clark, advised that Mr Ferguson was not in a fit state to prepare a response to the notice. Dr Clark provided a medical report dated 13 August 1996, which was sent to the Police Service, which stated Dr Clark's understanding that Mr Ferguson had been given until 8am on 15 August to formulate his response "to the choice of voluntary or forced dismissal". Dr Clark recounted Mr Ferguson's symptoms and concludes his report by stating:
"I endorse the fact that the Detective Ferguson has been placed on sick leave by his general practitioner, Dr A. D'Souza, for at least the next few weeks and that he should not be forced into a position of having to make major long term decisions about his future and the future of his family in just a few days."
After some liaison between the representatives of the Commissioner of Police and Mr Burley, the deadline for Mr Ferguson to show cause was extended by 24 hours.
The medical and other evidence points to the fact that Mr Ferguson was at that time in no fit state to provide proper instructions to Mr Burley in relation to the notice to show cause. Despite this, Mr Ferguson had some lengthy attendances in Mr Burley's office in an attempt to deal with the issues raised by the notice. Mr Burley's evidence in relation to this situation was that it was far from satisfactory and that Mr Ferguson appeared to him to be far too unwell to provide him with proper instructions. Evidence from Dr Clark supported this. Mr Burley provided a submission on Mr Ferguson's behalf, the substance of which was a protest at having to show cause in these circumstances.
The Commissioner of Police and the officers who were dealing with the matter on his behalf rejected this and on 16 August 1996 Mr Ferguson was served with a notice of removal from the Police Service of Western Australia to be effective from 17 August 1996. It appears that the Commissioner acted with such haste to avoid Mr Ferguson's resignation taking effect. The Western Australian Police Service had been criticised in the media on a previous occasion when a police officer's resignation had taken effect after one month before that officer could face charges under the Act. The Commissioner apparently wanted to avoid that situation recurring in this case.
It is my view that if this Court had had jurisdiction to deal with the matter, I would have decided that there had been a breach of section 170DC of the Workplace Relations Act 1996. I reject the submissions from Mr Hooker in relation to this that the Commissioner of Police had provided to Mr Ferguson an opportunity to defend himself against the allegations. It is my view that to force Mr Ferguson to respond to the allegations against him when he was clearly too unwell to do so, does not amount to a proper opportunity to respond to allegations within the meaning of those words in section 170DC. As the Chief Justice of the Industrial Relations Court has said in the case of Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199, section 170DC is modelled on the principle of natural justice and represents part of what Australians call "a fair go". It is my view that in being required to show cause within a very short time period when he was clearly unwell meant that Mr Ferguson was not given a fair go. I stress that the question of natural justice is quite separate from the question of whether or not Mr Ferguson had in fact committed the breaches alleged against him.
I have a further concern about the use of section 8 of the Police Act to remove Mr Ferguson from office. As Mr Castiglione pointed out, the Police Act contains provisions in section 23 dealing with enquiries into misconduct and penalties which may be imposed upon a police officer if a charge has been found proved. Section 23 is not expressed to be subject to section 8. Section 8 contains very broad power for the Commissioner of Police to remove, subject to the approval of the Minister, any non-commissioned officer or constable.. Under section 33E there is a right of appeal where a police officer has been convicted and punished, by dismissal or otherwise, as a result of a section 23 disciplinary inquiry. The use of section 8 denied to Mr Ferguson any right of appeal under section 33E. It is of course not appropriate to decide this question in this case, but it may be that the use of the power under section 8 in these circumstances was unlawful
In the circumstances, however, the appropriate order is that the application be dismissed.
I certify that this and the preceding eighteen (18) pages
are a true copy of the reasons for decision of
Judicial Registrar Boon.
Associate:
Date:
APPEARANCES
Counsel for the Applicant: Mr R. Castiglione
Solicitors for the Applicant: Dwyer Durack
Counsel for the Respondent: Mr R. Hooker
Solicitors for the Respondent: The State Crown Solicitors Office
Date of hearing: 11 and 12 December 1996
Date of judgment: 7 March 1997
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