Gordon v Commissioner of Police
[2011] WASCA 168
•8 AUGUST 2011
GORDON -v- COMMISSIONER OF POLICE [2011] WASCA 168
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [2011] WASCA 168 | |
| Case No: | IAC:3/2010 | 8 APRIL 2011 | |
| Coram: | PULLIN J BUSS J LE MIERE J | 8/08/11 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave to adduce further evidence refused Leave to amend grounds of appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ALISTAIR LINDSAY GORDON COMMISSIONER OF POLICE |
Catchwords: | Industrial Appeal Court Application to amend grounds of appeal Application to adduce further evidence Whether court has jurisdiction to hear appeal Whether Industrial Relations Commission erred in its construction and interpretation of Police Act 1892 (WA) |
Legislation: | Industrial Relations Act 1979 (WA), s 90(1), s 90(3a) Labour Relations Reform Act 2002 (WA), s 126 Police Act 1892 (WA), s 8, s 33P, s 33Q, s 33S, s 33U Police Amendment Act 2003 (WA) |
Case References: | R v Bolton; Ex Parte Beane (1987) 162 CLR 514 Re Undercliffe Nursing Home v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 |
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : GORDON -v- COMMISSIONER OF POLICE [2011] WASCA 168 CORAM : PULLIN J
- BUSS J
LE MIERE J
- Appellant
AND
COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : BEECH CC
- SCOTT ASC
MAYMAN C
Citation : GORDON v COMMISSIONER OF POLICE [2010] WAIRC 00937
File No : APPL 38 of 2009
(Page 2)
Catchwords:
Industrial Appeal Court - Application to amend grounds of appeal - Application to adduce further evidence - Whether court has jurisdiction to hear appeal - Whether Industrial Relations Commission erred in its construction and interpretation of Police Act 1892 (WA)
Legislation:
Industrial Relations Act 1979 (WA), s 90(1), s 90(3a)
Labour Relations Reform Act 2002 (WA), s 126
Police Act 1892 (WA), s 8, s 33P, s 33Q, s 33S, s 33U
Police Amendment Act 2003 (WA)
Result:
Leave to adduce further evidence refused
Leave to amend grounds of appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr G M Cridland
Respondent : Ms D P Scaddan
Solicitors:
Appellant : Hammond Legal
Respondent : Western Australian Police Service
Case(s) referred to in judgment(s):
R v Bolton; Ex Parte Beane (1987) 162 CLR 514
Re Undercliffe Nursing Home v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385
(Page 3)
1 PULLIN J: I agree with Le Miere J.
2 BUSS J: I agree with Le Miere J.
3 LE MIERE J: The appellant was formerly a member of the police force. The Commissioner of Police (Commissioner) removed the appellant under s 8 of the Police Act 1892 (WA) (Police Act). The appellant appealed to the Western Australian Industrial Relations Commission (Commission) under s 33P of the Police Act under which a member may appeal on the ground that the decision of the Commissioner to take removal action was harsh, oppressive or unfair. The Commission dismissed the appeal. The appellant now appeals to this court principally on the ground that the Commission erred in law in construing s 33P(1) of the Police Act by having no or insufficient regard to whether the decision to remove the appellant was fair.
Application to amend and adduce new evidence
4 At the hearing of the appeal the appellant moved to amend his grounds of appeal and for leave to adduce further evidence. The court reserved its decision on those applications and proceeded with the hearing of the appeal.
5 The proposed new ground of appeal is:
The appellant has been denied the right to be heard by the Commissioner.
- The further evidence sought to be adduced is a letter dated 15 October 2010 from the Minister for Police, the Hon Rob Johnson MLA, to the appellant's wife. The letter states:
Thank you for your recent correspondence regarding your husband's previous employment within the Western Australia Police and the subsequent loss of confidence finding by the Commissioner.
Although I am unaware of the circumstances relating to the Commissioner's decision, the decision was reviewed and supported by the former Minister for Police, Hon John Kobelke.
Unfortunately I am unable to offer any assistance beyond my suggestion to you, in correspondence of 13 May 2009, that you contact the Western Australia Police Union of Workers or obtain independent legal advice.
(Page 4)
removed from the police force. On 22 October 2008 the appellant made written submissions to the Commissioner why he should not be removed. On 20 April 2009 the Commissioner gave notice to the appellant that he had lost confidence in the appellant's suitability to continue as a member of the Police Force of Western Australian (WA Police) and had recommended to the Minister for Police that he approve the appellant's removal from the WA Police. On 29 April 2009 the Commissioner gave notice to the appellant that on 22 April 2009 the Minister for Police had approved his removal from the police force and that the appellant's removal would be effective from the date of service of the notice. The Hon Rob Johnson was appointed Minister for Police on 23 September 2008. The appellant submitted that it should be inferred from the contents of the Minister's letter that the Commissioner's decision to remove the appellant, and the Minister's approval of the removal, occurred before 23 September 2008 and therefore before the appellant was informed of the Commissioner's intention to remove the appellant and before the appellant was given an opportunity to show cause why he should not be removed.
7 The application to amend the grounds of appeal should be refused because the proposed ground of appeal has no prospect of success for the following reasons.
8 First, the court does not have jurisdiction to hear an appeal on that ground. The right of a member who has been removed from the police force to appeal to the Commission or to this court is conferred by pt IIB of the Police Act. Section 33S of the Police Act provides that the provisions of the Industrial Relations Act 1979 (WA) (the Industrial Relations Act) listed in the Table apply, subject to that part, any necessary modifications, and any specific modifications set out in the Table, to and in relation to an appeal and a determination of an appeal instituted under pt IIB. The table consists of two columns. The first column lists provisions of the Industrial Relations Act. The second column sets out any specific modifications in relation to those provisions. The provisions of the Industrial Relations Act listed in the Table include s 90. The following specific modifications are set out in relation to s 90:
A reference in subsection (1) to 'any decision of the President, the Full Bench, or the Commission in Court Session' is to be read as if it were a reference to 'a decision of the Commission under s 33U of the Police Act 1892'.
(Page 5)
- The effect of s 33S of the Police Act is that s 90 of the Industrial Relations Act applies to an appeal and a determination of an appeal instituted under pt IIB of the Police Act as if it read:
(i) Subject to this section, an appeal lies to the Court in the manner prescribed from a decision of the Commission under s 33U of the Police Act 1892 -
(a) on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter;
(b) on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c) on the ground that the appellant has been denied the right to be heard,
but upon no other ground.
10 That construction is confirmed by the history of Industrial Relations Act s 90(1). Section 90(1) before its amendment provided:
Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the President, the Full Bench, or the Commission in Court Session on the ground that the decision is erroneous in law or is in excess of jurisdiction but upon no other ground.
- It is clear that the grounds of appeal were then limited to errors or excess of jurisdiction in the decision of the decision-maker being appealed from. The section was amended by Labour Relations Reform Act 2002 (WA) s 126. The amendment further restricted rather than expanded the grounds of appeal, including the ground that the decision of the decision-maker being appealed from is in excess of jurisdiction. The
(Page 6)
- amendment is described in the Explanatory Memorandum to the Labour Relations Reform Bill 2002 (WA):
97. Grounds of appeal are limited to questions of jurisdiction on the basis that the subject matter of the appeal is not an industrial matter and to questions of construction and interpretation.
98. To ensure that justice is properly administered, failure to afford the right to be heard will continue to be within the jurisdiction of the Industrial Appeal Court. (emphasis added)
The ground that the appellant has been denied the right to be heard was a ground contained within s 90(1) before its amendment, not an extension of that ground. The ground before amendment applied only to a decision of the Commission and the ground described in s 90(1) after amendment should be construed to also apply only to a decision of the Commission.
11 Secondly, the further evidence sought to be adduced is not capable of establishing that the Commissioner denied the appellant the right to be heard. On 1 October 2008 the Commissioner served on the appellant a notice of intention to remove him and informed the appellant of his right to make written submissions to the Commissioner in response. On 22 October 2008 the appellant made detailed written submissions to the Commissioner. The appellant submits that it is to be inferred from the Minister's letter, and the date on which the Hon Rob Johnson was appointed Minister, that the Commissioner had already determined to remove the appellant before he received the appellant's submissions. However, that does not establish that the appellant was denied the right to be heard by the Commissioner. The Commissioner considered the appellant's submissions before he decided on 20 April 2009 to recommend to the Minister that he approve the removal of the appellant. The appellant's argument is in substance one of prejudgment. Prejudgment is an aspect of the rule against bias, not the hearing rule: see eg Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (4th ed, 2009) [9.195]. Establishing prejudgment does not establish that the appellant was denied the right to be heard.
12 Leave to adduce the Minister's letter into evidence should be refused. The evidence is sought to be led in support of the proposed new ground of appeal. The proposed new ground of appeal has no prospect of success and hence admitting the Minister's letter into evidence would be futile. There are other reasons why leave to adduce the further evidence might be refused but it is not necessary to address those additional reasons.
(Page 7)
Jurisdiction of the court
13 The respondent submits that the court does not have jurisdiction to hear the appeal because Industrial Relations Act s 90(1) as applied by Police Act s 33S does not confer on a member of the police force a right of appeal from a decision of the Commission dismissing the member's appeal to the Commission under Police Act pt IIB div 3.
14 Industrial Relations Act s 90(1) as applied by Police Act s 33S to an appeal under Police Act pt IIB provides:
Subject to the section, an appeal lies to the Court in the manner prescribed from a decision of the Commission under s 33U of the Police Act 1892 [on the grounds stated in (a), (b) and (c)] but upon no other ground.
- Police Act s 33U(1) and (2) provide:
(1) This section applies if the WAIRC decides on an appeal that the decision to take removal action relating to the appellant was harsh, oppressive or unfair.
(2) If this section applies and unless an order is made under subsection (3) the WAIRC may order that the appellant's removal from office is and is to be taken to have always been of no effect.
16 Police Act s 33S provides that the provisions of the Industrial Relations Act listed in the Table apply to and in relation to an appeal and a determination of an appeal instituted under Police Act pt IIB subject to pt IIB, any necessary modifications and the specific modifications set out in the Table. The specific modifications set out in the Table limit the right of appeal to an appeal from a decision of the Commission under s 33U of the Police Act. The right of appeal so conferred does not include an appeal from a decision of the Commission that the decision to take removal action was not harsh, oppressive or unfair.
17 The appellant submits that Police Act s 33S requires Industrial Relations Act s 90(1) to apply to an appeal under Police Act pt IIB subject to 'any necessary modifications'. However, it is not necessary to modify
(Page 8)
- Industrial Relations Act s 90(1) so as to confer on a member of the police force a right of appeal from a decision of the Commission dismissing his appeal. To further modify Industrial Relations Act s 90(1), as already modified by the specific modifications set out in the Table to s 33S, would be to confer a right of appeal which is excluded by the specific provision conferring the right of appeal. That is not a 'necessary modification'.
18 The appellant referred to the Explanatory Memorandum to the Police Amendment Bill 2002 (WA) which inserted pt IIB into the Police Act. In relation to s 33S the explanatory memorandum states:
Members are provided with a further limited right of appeal from a decision of the [Commission] to the Western Australian Industrial Appeal Court, of a similar nature to the existing appeal right in relation to decisions of the President, the Full Bench, or the Commission in Court Session under s 90 of the Industrial Relations Act 1990.
19 That is not inconsistent with Police Act s 33S not providing members with a right of appeal from a decision of the Commission dismissing their appeal to the Commission. If the Commission decides on appeal that the decision to take removal action relating to the appellant was harsh, oppressive or unfair it may order that the appellant's removal from office is and is to be taken to have been always of no effect. The effect of this is that the member will effectively be reinstated from the date of removal. Alternatively, the Commission may decide that it is impracticable for the member to be reinstated and may order compensation. The decision of the Commission under s 33U may include a decision that the member be reinstated or a decision that the Commissioner pay the appellant compensation and if so the amount of compensation. A member may appeal to the court against a decision that he be paid compensation rather than reinstated or against a decision as to the amount of compensation. A member may arguably also be entitled to appeal against a decision that he be reinstated rather than paid compensation but it is not necessary to decide that matter on this appeal. Thus, although members may not appeal against a decision that their removal was not harsh, oppressive or unfair they nevertheless are provided with a limited right of appeal to the court.
20 In any event, in the absence of ambiguity, uncertainty or manifest absurdity or unreasonableness, an express statement of intention in an explanatory memorandum cannot prevail over the words actually used in the Act. In R v Bolton; Ex Parte Beane (1987) 162 CLR 514, the question was whether a statutory provision concerned with 'visiting forces'
(Page 9)
- applied to deserters from the armed forces of the United States. Mason CJ, Wilson and Dawson JJ said at 518:
[T]he second reading speech of the Minister … quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.
22 The Amendment Act introduced statutory provisions to give members a right to a hearing and a right of appeal in relation to the
(Page 10)
- Commissioner's decision to remove them from office. The hearing and appeal process is quite different from the process of the Commission on claims of unfair dismissal by employees. Appeals from a removal decision are heard before three members of the Industrial Relations Commission rather than one, as in an unfair dismissal case. Similar remedies are available, although the maximum compensation available to a police officer found to have been unfairly removed, but who cannot practicably be reinstated, is 12 months compared with six months for ordinary employees. An appeal from a removal decision will generally involve a review of the materials examined and taken into account by the Commissioner, any written submissions made to the Commissioner, the Commissioner's grounds for his loss of confidence and reasons for his decision to take removal action. The appeal will not involve a rehearing or a hearing de novo as is the case with unfair dismissal claims. In appropriate circumstances provision is made for new evidence to be tendered on appeal. Thus, the appeal is quite unlike the hearing of an unfair dismissal claim. It is not unreasonable or unlikely that the Parliament would intend that a member of the police having had a hearing before the Commissioner and an appeal to the Commission should not have a further right of appeal against a decision that his or her removal was not harsh, oppressive or unfair.
23 Upon the proper construction of Industrial Relations Act s 90(1), as applied by Police Act s 33S, a member of the police has no right of appeal from a decision of the Commission dismissing his appeal on the grounds that his removal was not harsh, oppressive or unfair. The appeal is incompetent. Nevertheless, as the matter was argued I will set out my findings in relation to the matters raised by the grounds of appeal.
Grounds of appeal
24 There are two grounds of appeal:
1. The Commission erred in law in construing section 33P(1) of the Police Act by having no or insufficient proper regard to whether the decision to remove the Appellant as a police officer was fair.
2. The Commission erred in law in its interpretation and construction of section 33P(1) of the Police Act in that it imported the concept of whether or not there had been any abuse of the right to remove by the Commissioner of Police using the criteria of harsh and oppressive whereas the proper construction of s 33P(1) does not require or permit the importation of any such concept of abuse of the right to remove. Section 33P(1) should have been interpreted as requiring the Commission to decide only whether the decision of
- the Commissioner of Police to take removal action relating to Mr Gordon was harsh, oppressive or unfair.
25 The two grounds of appeal in substance raise the same argument and may be considered together. The appellant's argument is founded on [51] of the reasons for decision of Beech CC, with whom Scott ASC and Mayman C agreed, and in particular the two sentences:
It cannot reasonably be said that the legal right of the Commissioner of Police to remove Mr Gordon has been exercised so harshly or oppressively against Mr Gordon as to amount to an abuse of that right (as set out in Re Undercliffe Nursing Home v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385). Accordingly, the appeal will be dismissed.
26 In considering whether the Commission misconstrued Police Act s 33P(1) as asserted by the appellant it is necessary to consider the provisions of the Police Act relating to an appeal to the Commission, the appellant's case before the Commission and the structure of the reasons for decision of Beech CC.
27 Police Act s 33P provides that an appeal is instituted by a notice stating the reasons for the decision the subject of the appeal being harsh, oppressive or unfair. Section 33Q(1) provides that on the hearing of the appeal the Commission shall first consider the Commissioner's reasons for deciding to take removal action; secondly consider the case presented by the appellant as to why that decision was harsh, oppressive or unfair; and thirdly consider the case presented by the Commissioner in answer to the appellant's case. Section 33Q(4) provides that without limiting the matters to which the Commission is otherwise required or permitted to have regard in determining the appeal, it shall have regard to the interests of the appellant and the public interest which is taken to include the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of members of the police force and the special nature of the relationship between the Commissioner and members of the force.
28 Beech CC, after setting out the background to the appeal, summarised the Commissioner's reasons for deciding to take removal action. Beech CC considered the case presented by the appellant by addressing the appellant's grounds of appeal. The appellant put forward six reasons why the Commissioner's decision was harsh, oppressive or unfair. The appellant did not press ground 1. Beech CC found that each of the other grounds were not made out. Beech CC then set out observations and findings under the heading 'Concluding Comments'.
(Page 12)
- Beech CC correctly identified the essential question before the Commission to be whether the decision to take removal action was harsh, oppressive or unfair. Beech CC addressed the interests of the appellant as required by s 33Q(4)(a). Beech CC found that removal has significant consequences for the appellant and his family but found that the reasons relied upon by the Commissioner were soundly based. Beech CC summarised the incidents and conduct of the appellant which provided the Commissioner's reasons for deciding to take removal action. Beech CC referred to the public interest which he was required to take into account by s 33Q(4)(b). In the final paragraph of his reasons Beech CC said that the appellant's removal was not because of one incident but because of three incidents. Beech CC concluded his reasons with the final two sentences of [51] that I have referred to earlier.
29 When the reasons of Beech CC are considered as a whole it is apparent that he made no error in the construction or interpretation of Police Act s 33P. Beech CC correctly stated that the question that the Commission was required to determine was whether the decision of the Commissioner to take removal action was harsh, oppressive or unfair. If he made any error it was in the application of the law to the facts. That is not an appealable error.
30 Beech CC identified the essential question to be whether the decision of the Commissioner was harsh, oppressive or unfair. He correctly directed himself as to the proper construction of Police Act s 33P. When the Commissioner's reasons are read as a whole it is apparent that he did not substitute a different test for that required by Police Act s 33P. In [51] of his reasons Beech CC reproduced words from Re Undercliffe Nursing Home v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385. In doing so, Beech CC did no more than refer to authority in support of the proposition that it was apposite to consider whether there was an abuse of power to remove in determining whether the removal was harsh, oppressive or unfair. It cannot be reasonably inferred from the failure of Beech CC to expressly use the word 'unfair' in the penultimate sentence of [51] that he was applying a test that did not include unfairness as an element. The Commissioner's reference to the dicta from Undercliffe does no more than demonstrate that having considered and dismissed the appellant's grounds of appeal and weighed the appellant's interests against the public interest by reference to the notion of a 'fair go all around', Beech CC was further satisfied that the Commissioner's decision to remove the appellant was not otherwise exercised so harshly or so
(Page 13)
- oppressively that it amounted to an abuse of the legal right to remove members.
31 For those reasons the grounds of appeal are not made out. If the grounds of appeal were made out I am satisfied that no injustice has been suffered by the appellant and would confirm the decision of the Commission pursuant to Industrial Relations Act s 90(3a). The Commission considered the Commissioner's reasons for deciding to take removal action and found them to be sound. The Commission considered the case presented by the appellant as to why that decision was harsh, oppressive or unfair and found that the grounds were not made out. The Commission had regard to the interests of the appellant and the public interest and found that having regard to those matters the appeal should be dismissed. No injustice was done to the appellant by the Commission also considering whether the Commissioner exercised his right to remove the appellant so harshly or oppressively as to amount to an abuse of that right.
32 The appeal should be dismissed.
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