H v Commissioner of Police
[2016] SADC 64
•24 June 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
H v COMMISSIONER OF POLICE
[2016] SADC 64
Judgment of His Honour Judge Beazley
24 June 2016
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - GENERALLY
POLICE - APPOINTMENT, TENURE AND CONDITIONS OF SERVICE - MISCONDUCT AND DISCIPLINE
H, a member of SA Police, appeals to this Court, sitting in its Administrative and Disciplinary Division, against a decision of a delegate of the Commissioner of Police, wherein sanctions were imposed upon him for an admitted breach of the Police Code of Conduct - matter proceeded on a preliminary point of statutory construction of the power to impose sanctions upon police members in s 40(1) of the Police Act 1998 (SA) - Interaction between Act and the Regulations made pursuant to it - whether regulations can be used as an aid to construction of a section of the Act - consideration of the legislative scheme for disciplining members of the police force.
HELD:
1. The delegate of the Commissioner of Police erred in law in her construction of the scope of her power to punish for breaches of the Code pursuant to s 40 of the Police Act 1998 (SA).
2. Section 40(1)(g), as properly construed, does not of itself, empower the respondent to reduce in rank; in seniority, nor to reduce the remuneration of a member, in disciplinary proceedings.
3. 'Cogent reasons' exist pursuant to ss 42E and 42G of the District Court Act 1991 (SA) to interfere with the orders imposed by the delegate.
4. Further submissions sought from the parties as to whether this Court ought to substitute its decision or alternatively that the matter be remitted to the delegate to be reconsidered in accordance with the proper construction of s40(1) of the Act.
Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) ss 39(3) and 46(3); District Court Act 1991 ss 42E and 42G; Police Act 1998 (SA) ss 19, 38, 39 and 40; Police Regulations 2014 regs 14, 25, 26 and 28; District Court Act 1991 (SA) ss 42A, 42E, 42F and 42G; Acts Interpretation Act 1915 (SA) s 22(1); Pearce & Geddes 'Statutory Interpretation in Australia' 8th ed; Police Act 1990 (NSW) s 173; Victoria Police Act 2013 (Vic) s 132; Police Act 1892 (WA) s 23; Police Service Administration Act 1990 (Qld) s 74; Police Service Act 2003 (Tas) s 43, referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; Wallaby Grip Ltd v QBE Insurance (Aust) Ltd (2010) 240 CLR 444; Chief Commissioner of Police v McCann [2015] VSCA 362 and [2015] VSC 379; Deputy Commissioner Stewart v Dark [2012] QCA 228; Police Service Board v Morris & Martin (1985) 156 CLR 397; Anderson v Sullivan, Allen & Lawler (1997) 78 FCR 380; Police v Hodder [2016] SASC 70; F, B V v Magistrates Court of SA (2013) 115 SASR 382; R v Scarpantoni [2013] SASCFC 120; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; R v Di Maria (1996) 67 SASR 466; Gaynor v Chief of Defence Force (No 3) [2015] FCA 1370; Graham v Deputy Chief of Air Force [2004] FCA 1377; Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541; Mattinson v Multiplo Incubators Pty Ltd (1977) 1 NSWLR 368; R v A (No 2) [2015] NSWSC 1221, considered.
H v COMMISSIONER OF POLICE
[2016] SADC 64Introduction
This is an appeal by ‘H’ (‘the appellant’), a serving member of SA Police, brought pursuant to s 46(3) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA), against sanctions imposed upon him by an Assistant Commissioner (‘the Assistant Commissioner’) as delegate of the Commissioner of Police[1] (‘the respondent’).
·The subject penalties
[1] Section 19 of the Police Act 1998 (SA).
The Assistant Commissioner, in purported compliance with s 40 of the Police Act 1998 (SA), (‘the Act’), imposed penalties on 7 January 2016, upon the appellant. When doing so, she said that:
It was my initial intention to transfer you to a position that involved day shift work, however I’ve taken into account the impact that would have on your partner – it’s not your partner’s fault that you’ve behaved in this manner and she and your family will no doubt suffer the consequences regardless, however I accept that a position without shift work will have a far greater impact. So but for that, that is where you will be transferred. You will be transferred to [Eastern Adelaide] for 12 months. You will also have reduction in seniority to Increment 1 – that’s the penalty. (my emphasis)
Subsequent formal order
A formal order was made by the Assistant Commissioner, dated 7 April 2016, but published subsequently.
It is appropriate to set out the relevant parts of the formal order. As will be seen, there is a subtle difference between the oral orders, and the subsequent formal order. In particular the words ‘reduction in seniority’ in the final line of the oral orders have been replaced with the words, ‘reduction from Senior Constable, Increment 6 to Senior Constable, Increment 1.
Penalty and Administrative Order[2]
[2] Exhibit A1 - 2.
Pursuant to Sections 11 & 40 of the Police Act 1998
This is an order for penalty and associated Administrative Order given to the Senior Constable [H].
The Penalty and associated Administrative Order is given by Assistant Commissioner Linda Fellows at Adelaide on 7th January 2016.
Preamble
1. Senior Constable [H] pleaded guilty in writing to the Police Disciplinary Tribunal to 1 count of breaching Regulation 14(a) of the Police Regulations 2014. The charge involved Senior Constable [H] posting a comment on his mobile phone Facebook account either during the course of or shortly after a presentation he was in attendance at dealing with cultural awareness ...
2. On the 7th January 2016 I presided over a sentencing hearing pursuant to Section 40 of the Police Act 1998 regarding this matter.
Penalty
1. I order pursuant to the Section 40 of the Police Act 1998, that he is transferred to Eastern Adelaide in a General Duties Position for 12 months commencing on Thursday 11th February 2016.
2. I order pursuant to Section 40 of the Police Act 1998, that he will have a reduction from Senior Constable, Increment 6 to Senior Constable, Increment 1 commencing 8th January 2016.
3. I further make the following administrative orders, the purpose of which is to ensure the effective management of SAPOL.
Orders
The following orders apply forthwith
1. You will be stationed at [a specified station] for the duration of your 12 month transfer to Eastern Adelaide – General Duties Position.
2. You will not relieve in a supervisors position whilst you are stationed at [that station].
3. You will not carry or use your personal mobile phone or any other personal electronic device while you are at work.
4. Your SAPOL internet access will be cancelled whilst you are stationed at [that station] for the period of 12 months.
Linda Fellows
Assistant Commissioner of Police.·Preliminary point of law
The parties raised as a preliminary point of law, the question whether s 40(1)(g) of the Act, as properly construed, provides the respondent with a power to reduce in rank; reduce in seniority; or reduce the remuneration of a member in disciplinary proceedings; separate from other powers in s 40(1) of the Act. This involved the proper construction of each of the disciplinary powers of the respondent, set out in s 40 of the Act. As is plain, from both the oral orders, and the formal order, the Assistant Commissioner ordered the transfer of the appellant to another position in SAPOL pursuant to the specific power to transfer contained in s 40(1)(g) of the Act.
As she was so obliged under that subsection, she fixed a specific period of 12 months as the duration of the transfer.
It is the next order which is controversial. The Assistant Commissioner purported to impose ‘a reduction from Senior Constable, Increment 6 to Senior Constable, Increment 1’. The Assistant Commissioner did not specify the particular subsection of s 40(1) as the source of her power to make that order, but merely referred to s 40 of the Act. I will shortly set out, in full, s 40 of the Act.
The appeal proceeded upon the basis that the Assistant Commissioner had made both orders pursuant to s 40(1)(g) of the Act, which provides … ‘where the person is a member of SA Police [the Commissioner may order] the transfer of the member to another position in SA Police for a specified period (whether with or without a reduction in rank, seniority or remuneration)’.
The appellant submits that s 40(1)(g) does not empower the respondent to order a reduction in the seniority nor in the remuneration of the appellant, but only permits an order for transfer.
It is plain that s 40(1)(f) of the Act provides a specific power to reduce in remuneration, albeit limited by a cap to the sum of $1,250; while s 40(1)(h) provides a specific power to reduce in ‘seniority’.
The appellant submits that any such reduction must be made pursuant to those specific subsections. The respondent submits that once an order for transfer has been made under s 40(1)(g) of the Act, the respondent is empowered by the words, in brackets, to reduce in rank; seniority or remuneration, independently of the powers in those specific subsections.
If what was intended was a reduction in seniority to Increment 1 pursuant to s 40 (1)(h), and no more than that, then this would simply reduce the appellant’s status as against other Senior Constables over a five year period until he regained his status at Increment 6. There would be no reduction in remuneration, without a specific order.
The word ‘seniority’ is defined in Regulation 5 of the Police Regulations. The word ‘Increment’ is not referred to in either the Act or the Regulations. It appears to be a level of remuneration, and is only referred to in the SA Police Enterprise Agreement.[3] The ‘Increments’ reflect the length of service as a Senior Constable, and, in that sense, may equate with ‘seniority’.
[3] The SA Police Enterprise Agreement 2011 is Ex A 1.3.
In recent interstate case law it has been accepted that a reduction to a lower level of ‘Increment’ may constitute a reduction in rank,[4] and inferentially ‘seniority’.
[4] Chief Commissioner of Police v McCann [2015] VSC 379; and [2015] VSCA 362; and Deputy Commissioner Stewart v Dark [2012] QCA 228.
The relevant interstate legislation is phrased differently and indeed more broadly, specifically referring to a reduction in a member’s ‘rank or grade’; ‘seniority’ or a ‘deferral of the member’s salary increment’.[5]
[5] See Police Act 1990 (NSW) s 173(2).
While the Act and its complementary legislation, the Police (Complaints and Disciplinary Proceedings) Act, supra, follow a similar disciplinary regime to legislation in interstate jurisdictions,[6] there is no equivalent to s 40(1)(g).
[6] See Police Act1990 (NSW) s 173;Victoria Police Act2013 (Vic) s 132; Police Act1892 (WA) s 23; Police Service Administration Act1990 (Qld) s 7.4 and Police Service Act2003 (Tas) s 43.
Accordingly little assistance, if any, can be gleaned from interstate case law.
·The parties’ assumptions
Both parties to the subject appeal, have assumed that when the Assistant Commissioner orally announced the ‘reduction in seniority to Increment 1’, she had thereby ordered ‘a reduction in remuneration’.[7] As I have explained, the word ‘seniority’ was deleted from the formal order.
[7] Contrast s 40(1)(h) and s 40(1)(f) of the Act.
The parties made that assumption on the basis of assertions made in correspondence by the Chief Superintendent in charge of the Ethics and Professional Standards Branch and not by the Assistant Commissioner[8]. The fact that the expressions ‘Increment 1’ and ‘Increment 6’ relate only to levels of remuneration in the South Australian Police enterprise agreement, may also have influenced that assumption.
[8] Exhibits A1.9 and A1.10.
Before hearing from the parties as to their respective assumptions, I must say that it was not at all obvious to me that this was what she, in fact, intended. The Assistant Commissioner had referred to ‘a reduction in seniority’, rather than a ‘reduction in remuneration’.
A reduction in seniority, without a reduction in remuneration, would have reduced the appellant’s status as against all other Senior Constables for the 5 year period.
That would have caused the appellant embarrassment, but no loss of income. If, however, the assumption of the parties as to the intention of the Assistant Commissioner is correct, then the actual reduction in remuneration, over that period of 5 years would approximate $34,494.00.
It is not apparent to me on the papers, that the Assistant Commissioner was aware of that quantum at the time. Such a large reduction, is on any view, a significant penalty, and would, prima face, appear to be inconsistent with the Assistant Commissioner’s expressed concern about the loss of shift work.
But for the submissions of the parties I would have assumed from her remarks that she had made two separate orders as follows:
·The first being for the transfer of the appellant to a different position – one of general duties for 12 months pursuant to s 40(1)(g) of the Act; and
·The second being a reduction in seniority, pursuant to s 40(1)(h) without any reduction in remuneration, as she was satisfied that a reduction in remuneration by means of a loss of shift work, would be too great a penalty.
Indeed at the sentencing hearing, on 7 January 2016, the Assistant Commissioner, in accordance with s 39(3) of the complementary Police (Complaints and Disciplinary Proceedings) Act, had indicated the possible categories of punishment, stating:
Now the matter that you’ve pleaded guilty to has a category B penalty and that Category B penalty allows me to impose certain penalties within a range. Those ranges include transferring you without a reduction in your rank, includes reduction of your remuneration up to $1,250, reduction of your seniority, imposition of a fine – that’s all the ones in Category B, and I’m also allowed to use the ones in Category C, and they include reprimand recorded, unrecorded reprimand, counselling, education or training. Do you understand that those are the range of penalties that are open to me?[9]
[9] In fact Category B permitted 'the transfer of the officer (without reduction in rank for an indefinite period).
I accept that s 39(3) of the Police (Complaints and Disciplinary Proceedings) Act is not a separate source of power to impose a penalty. It simply details the minimum particulars required to be provided to a charged member. It does however provide some insight into the Assistant Commissioner’s understanding of her powers to impose penalties.
Ultimately however her intention was not in dispute. The parties proceeded on the basis that the Assistant Commissioner had intended to reduce the appellant’s remuneration over a 5 year period, and had employed s 40(1)(g) to both transfer the appellant and to reduce the remuneration.
I, accordingly, will proceed on the same basis, at least to the extent of considering this preliminary point of construction.
On any view of the orders, the Assistant Commissioner did not limit the purported reduction in remuneration to the specified period of 12 months, which had been fixed as the duration of the transfer.
Concession
Counsel for the respondent conceded that the Assistant Commissioner had made an error of law in purporting to reduce the appellant’s remuneration for a period greater than the 12 months fixed for the transfer, stating:
That part we do concede is that the remuneration penalty cannot last for 5 years, it can’t last beyond the period of the transfer so the effect of correspondence between the parties was that the reduction to Increment 1 had an effect for 5 years [as] the appellant had to work his way back [over] 5 years to arrive back to Increment 6. We’re conceding that’s beyond power.[10]
[10] T2, 10/5/16.
On the respondent’s construction of s 40(1)(g), the separate powers to reduce in rank; reduce in seniority; and reduce the remuneration, were each contingent upon the excise of the power to transfer. Accordingly those contingent powers could not exceed the period of transfer.
·Section 40 of the Act.
It relevantly provides in s 40 that:
(1) If a member of SA Police ...—
(a) is found guilty of an offence under a law of this State or the Commonwealth
(b) admits in accordance with this Act a breach of the Code with which he or she has been charged; or
(c) is found guilty of a breach of the Code in proceedings before the Police Disciplinary Tribunal, 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;
(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 SA Police, transfer of the member to another position in SA Police for a specified period (whether with or without a reduction in rank, seniority or remuneration);
(h) where the person is a member of SA Police, reduction in the member's seniority;
(i) imposition of a fine not exceeding the amount prescribed by regulation;
(j) ...
(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.
(2)If the period for which a member of SA Police is transferred under subsection (1)(g) is less than 12 months, the member is entitled, on the expiration of the specified period, to return to the position by the member before being so transferred.
Other relevant legislation
The Police Act 1998 (SA)
·Section 37 provides for the establishment of a Code of Conduct for the maintenance of Professional Standards for members of SA Police. It also provides the procedure by which an investigation of any breach of the Code of Conduct against a member of SA Police, may be conducted under s 39 of the Act.
·Section 42 provides for an alternative procedure in respect of ‘minor misconduct’. Amongst the possible orders, s 42(3)(a) provides:
In the case of a member, transfer of the member for not more than four months to another position in SA Police (not involving a reduction in rank or seniority or, without the members consent, relocation to member to place beyond reasonable commuting distance from the member’s current place of employment).
·Section 46 permits a transfer of a member to a position of lower rank on the ground of unsatisfactory performance.(my emphasis)
·Section 47 is a general power to transfer a member to another position but not to a position of a different rank. (my emphasis)
The Police (Complaints and Disciplinary Proceedings) Act 1985 (SA)
Section 39(3) provides that:
The Commissioner (or person representing the Commissioner) must indicate … which of the following categories of punishment the Commissioner considers would, on the facts then known to the Commissioner, most likely be appropriate …:
(a) Category A – termination or suspension of the officer’s appointment or reduction in the officer’s rank for an indefinite period;
(b) Category B – transfer of the officer (without reduction in rank for an indefinite period), reduction of the officer’s remuneration, reduction in the officer’s seniority or imposition of a fine;
(c) Category C – withdrawal of specified rights or privileges, a recorded or unrecorded (reprimand, counselling, education … or training or action of a kind prescribed by regulation.
The Regulations
Part 5 of the Police Regulations 2014 sets out the Code of Conduct for members of SA Police, for the purposes of s 37 of the Act.
·Regulation 4 sets out the respective ranks of SA Police. One such rank is Senior Constable.
·Regulation 5 provides for relative seniority as follows:
Except as otherwise determined by the Commissioner under s 40 of the Act or as otherwise provided in these regulations, the relative seniority of members of SA Police will be determined as follows: (my emphasis)
(a) As between 2 members having different ranks – the senior member is the member who holds the higher rank.
(b) Between 2 members holding the same rank – the senior member is the member who has been holding the rank continuously for the longer period of time,
(c) As between 2 members holding the same rank who have held the rank for the same period of time – the senior member is the member who, by general or special order of the Commissioner is the senior member.
·Regulation 14 provides:
An employee must not, in the course of his or her employment or otherwise, behave in a manner that—
(a)reflects or is likely to reflect adversely on SA Police;
or
(b)is prejudicial to good order and discipline in SA Police.
·Regulation 25 provides for the laying of a charge against an employee for breach of the Code.
·Regulation 26 provides:
(1) If the employee charged admits the charge in writing and forwards the admission so as to reach the registrar of the Police Disciplinary Tribunal within 21 days after service of the written charge, the registrar must forward the admission, any written statement or request made by the employee and all other relevant papers to the Commissioner.
(2) On receipt of the admission, the Commissioner must consider any submissions in mitigation made by the employee—
(a) by written statement attached to the admission;
(b)if the employee indicated in the admission a desire to appear before the Commissioner—by personal representation to the Commissioner,
before making a decision as to any action to be taken to impose a punishment on the employee.
·Regulation 28 provides for the maximum reduction in remuneration and maximum fines as follows:
(1) For the purposes of section 40(1)(f) and (i) of the Act—
(a)if the remuneration of an employee is to be reduced for an offence or breach of the Code—the total amount forfeited by the employee must not exceed $1 250;
(b)if a fine is to be imposed for an offence or breach of the Code—the fine must not exceed $1 250.
(2) The Commissioner may, on imposing a fine for an offence or breach of the Code—
(a)grant time for the payment of the fine or permit it to be paid in instalments;
(b)deduct the fine from the employee's pay or from any money due to the employee.
·Regulation 45 empowers the respondent to transfer a member to a position of lower rank for restructuring purposes, but it must be on condition that the member retains his or her rank and seniority while occupying the position of lower rank. (my emphasis)
The relevant issues raised on the preliminary point
This point of law concerns only the proper construction of s 40(1)(g), and, as I have explained, I will proceed on the basis put forward by counsel, as neither sought to rely on s 40(1)(h) of the Act. The principal questions are:
·Does s 40(1)(g) of the Act, as properly construed, empower the respondent to reduce a members rank; reduce the members seniority; and/or reduce the members remuneration?
·In so far as s 40(1)(g) is an independent source of power to reduce a member’s remuneration, is that reduction in remuneration capped at $1,250, as is the case in s 40(1)(f) of the Act.
·In the alternative, does s 40(1)(g) merely empower the respondent to transfer a member, and it can do so irrespective of whether other sanctions have been imposed under separate heads of power?
·Of what relevance to the question of construction is the absence of any specific power to reduce in rank in s 40(1) of the Act?
·Financial consequences
It was not in dispute that the total loss of remuneration to the appellant, would approximate $34,494.00 if calculated upon a reduction in remuneration for about five years until the appellant could be reinstated to Increment 6.
Alternatively, and consistent with the respondent’s suggested construction of s 40(1)(g), a reduction for 12 months only, would approximate $11,498.00.
In the further alternative, if the reduction in remuneration is unable to exceed the cap referred to in s 40(1)(f) of the Act; and Regulation 28 of the Police Regulations, then the maximum reduction in remuneration is the sum of $1,250.00
Order sought by the parties
The respondent ultimately sought an order pursuant to s 42F(c) of the District Court Act 1991 (SA) that the matter be remitted to the Assistant Commissioner, as the original decision-maker, for further consideration in accordance with the proper construction of s 40(1)(g) of the Act.
The appellant submits that the Assistant Commissioner’s error of law in the construction of s 40(1)(g) of the Act, as aforesaid, is more extensive. In particular he submits that the power to reduce his remuneration is restricted to a maximum sum of $1,250.00 prescribed by Regulation 28 of the Police Regulations (2014). The appellant invites this court to rescind the decision of the Assistant Commissioner, and substitute its own decision for that of the Assistant Commissioner pursuant to s 42F(b) of the District Court Act.
It is unfortunately necessary to detail some of the background facts so as to explain the basis for the disciplinary action, and further to determine the appropriate orders to be made under s 42F of the District Court Act 1991 (SA). Consistent with the intention of Parliament in s 40(6) of the Police (Complaints and Disciplinary Proceedings) Act, supra, which provides that disciplinary proceedings ought to be heard in private, I will only detail some of the basic facts relevant to the preliminary point of law. I will not, in these reasons, discuss the merits of the appeal, other than in a general sense.
Background
On 21 August 2015, the appellant was charged with conduct prejudicial to SA Police,[11] contrary to Regulation 14 (a) of the Police Regulations, 2014 [12].
[11] See Police Regulations, 2014, Reg 25.
[12] Regulation 14 provides:
An employee must not, in the course of his or her employment or otherwise, behave in a manner that:-
(a) reflects or is likely to reflect adversely on SA Police; or
(b) is prejudicial to good order and discipline in SA Police.
The gravamen of the charge was that the appellant had posted a comment on his private Facebook page which was demeaning of a presenter at a Cultural Awareness Training Session, attended by him, and other members of SA Police, on 11 March 2015. It was alleged that during the course of or shortly after the presentation, the appellant posted the comment which was likely to reflect adversely on SA Police.
The respondent was empowered to issue general and special orders to members of SA Police in s 11 of the Act. General Orders numbered 8330 and 8420 were relevantly directed to the Principles of Equity and Diversity. The Special Purpose Manual, provides, inter alia, for workplace training sessions.[13]
[13] See Exhibit R2, p 126.
The purpose and effect of General Orders including the ‘General Order – Complaints and Disciplinary Framework’ were recently considered by Parker J in Police v Hodder.[14] I respectfully adopt his Honour’s dicta.
[14] [2016] SASC 70 at [38]-[48].
There is no utility in the Court detailing the subject comment. It is sufficient to state that, on any view, it was offensive, and obviously demeaning of the presenter.
The appellant’s Facebook page was not in his name, and did not identify him as a member of SA Police. He had some 100 ‘friends’, that is, persons whom he knew might from time to time access his Facebook page.
The comment was not brought to the attention of the presenter, but was seen by at least one police officer, who reported it to the appellant’s superiors. The evidence before the Assistant Commissioner established that some police officers had rightly been offended by the posting, and further were of the opinion that the offensive comment was likely to cause an uncomfortable workplace.
In many occupations such conduct which occurred in an offender’s private life will not result in disciplinary action of the present type. See Gaynor v Chief of Defence Force (No 3)[15] and A Solicitor v Council of the NSW Law Society.[16] It has however been well recognised that the special public role of the police requires discipline to be enforced even in respect of off duty events.[17] Indeed Regulation 14 of the Police Regulations, supra, expressly applies to ‘the course of employment or otherwise’.
[15] [2015] FCA 1370.
[16] (2014) 216 CLR 353.
[17] See Police Service Board v Morris (1985) 156 CLR 397; Anderson v Sullivan, Allen and Lawler (1997) 78 FCR 380 and Henry v Ryan (1963) TAS St R 90
On his own admission, the subject comment was one, ‘which a reasonable citizen may confidently be expected to regard as morally or socially blameworthy in a police officer and will constitute a breach of the Code of Conduct’. See Deputy Commissioner Stewart v Dark.[18]
[18] [2012] QCA 228 at [13].
On 24 September 2015 the appellant admitted the truth of the charge against him and attached a statement of mitigating circumstances expressing a desire to appear before the Assistant Commissioner to make a personal representation.[19]
·The sentencing hearing
[19] Exhibit R 2 p 6.
Following the appellant’s admission, a sentencing hearing was convened before the Assistant Commissioner pursuant to s 40 of the Act and the Police Regulations.[20]
[20] Police Regulations 2014 - Reg 26.
At that hearing, on 7 January 2016, the appellant and Mr Scheffler, the secretary of the Police Association, made submissions, on penalty, on his behalf.
The appellant also, orally and in writing, detailed his extensive history as a member of SA Police since 2004.
He apologised for the offensive comment. He explained that he could not have foreseen that the comment could reflect adversely upon SA Police because he had made the comment as a private individual using a pseudonym. He denied that he was a racist, but conceded that his comment was capable of being misinterpreted. He detailed his difficult family and financial circumstances.
The appellant was aged 40 years as at the date, the subject of the charge. He has a daughter, aged 14 months with his partner and access to another daughter, aged 8 years, from a previous marriage. He had joined SAPOL in 2004. He had risen to the position of Senior Constable. His remuneration was fixed at Senior Constable Increment 6.
A reference from his Acting Sergeant dated 4 November 2015, and various emails were tendered, each evidencing his competence as a Patrol Officer when faced with a serious incident.
The Assistant Commissioner orally pronounced the penalty and administrative orders referred to above.
Notice of appeal
On 5 February 2016 the appellant instituted an appeal to this Court.
The nature of the appeal
The appeal is to be determined by this Court in its Administrative and Disciplinary Division pursuant to the District Court Act 1991.
Section 42E of the said division provides:
(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
Section 42F provides:
The Court may, on an appeal—
(a) affirm the decision appealed against;
(b) rescind the decision and substitute a decision that the Court considers appropriate;
(c) remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
Grounds of Appeal
Although the subject hearing was limited to the proper construction of s 40(1)(g) of the Act, it is convenient to set out, in full, the grounds of appeal, as filed by the appellant. The breadth of those grounds is relevant to the question as to whether the Court ought substitute its own decision in light of the concession made by the respondent or alternatively remit the matter to the Assistant Commissioner.
3.1In relation to the decision to transfer the appellant to Eastern Adelaide, there are cogent reasons to depart from the delegated decision, given:-
3.1.1 That the delegated decision maker failed to have any or sufficient regard to the appellant’s personal circumstances including the distance between his current and future place of residence and the Adelaide Central Business District, and his familial responsibilities.
3.2In relation to the decision to reduce the appellant’s remuneration from Senior Constable Increment 6 to Senior Constable Increment 1 purportedly pursuant to Section 40(1)(g) of the Police Act 1998, there are cogent reasons to depart form the delegated decision, given:-
3.2.1 Section 40(1)(g) does not permit the Commissioner (or his delegate) to reduce a member of SA Police’s remuneration from Senior Constable Increment 6 beyond the specified period of the transfer, in this case being 12 months;
3.2.2 Section 40(1)(g), by necessary inference, is subject to Section 40(1)(f) and does not permit the Commissioner (or his delegate) to reduce a member of SA Police’s remuneration in excess of the amount of $1,250 pursuant to Regulation 28 of the Police Regulations 2014.
3.2.3 That in all the circumstances the penalty was manifestly excessive.
3.2.4 That the delegated decision maker failed to have any or sufficient regard to:-
3.2.4.1The appellant’s personal circumstances including his familial responsibilities, the limited earning capacity of his wife, the significant familial expenses, and the deleterious effect on the appellant and his family of any reduction in remuneration;
3.2.4.2The appellant’s early plea of guilty;
3.2.4.3The appellant’s full and frank admissions during the investigations;
3.2.4.4That the admitted breach of discipline on the appellant’s personal Facebook profile which did not identify him by his name by which he is known in South Australia Police, did not identify him as a police officer, and was not accessable [sic] to the public at large;
3.2.5 That the penalty was against the weight of the submissions of:-
3.2.5.1 The appellant; and
3.2.5.2The Police Association.
3.2.6 That the delegated decision maker had too much regard to the appellant’s prior disciplinary history.
The parties submissions on the preliminary point of construction
·The appellant’s submissions
Counsel for the appellant, Mr Joyce, referred to the specific disciplinary powers in ss 40(1)(d) to (o) inclusive.
He submitted that the absence of a specific power to reduce a member in rank was plainly an oversight. He submitted that a reduction in rank was a significant penalty equivalent to a suspension for a specified period or indeed for an indefinite period. In so far as anything can be gleaned from s 39(3) of the Police (Complaints and Disciplinary Proceedings) Act, supra, if such a power were available, it would fall within Category A in seriousness.
He submitted that the words, in brackets in s 40(1)(g), were not a source of power, giving the respondent the power to reduce in rank, reduce in seniority or reduce in remuneration.
They made explicit, what was implicit, namely that the respondent could order a transfer even when there had been orders made under separate heads for a reduction in rank (but for the oversight), a reduction in seniority under s 40(1)(h) or a reduction in remuneration under s 40(1)(f).
He submitted that even if the words in brackets in s 40(1)(g) were a separate source of power, the relevant words ‘seniority’ and ‘remuneration’ must be construed to have the same meaning as those in s 40(1)(h) and (f) respectively, so that the specified period of any reduction in remuneration, could not exceed the 12 month period of transfer and the specified sum could not exceed the cap of $1,250.
Accordingly, at the expiration of 12 months, the appellant would revert to the remuneration level of ‘Senior Constable – Increment 6’.
·The respondent’s submissions
Counsel for the respondent, Mr Keen, submitted that two penalties had been imposed upon the appellant pursuant to s 40(1)(g) of the Act. The first was for his transfer to another position for 12 months, while the second was the ‘remuneration penalty’.[21]
[21] Respondent's outline at [2.2].
He submitted that the words, in brackets, in s 40(1)(g) were a separate source of power to reduce in rank; reduce in seniority, and reduce in remuneration, independent from the specific powers in ss 40(1)(f) and (h).
He distinguished the powers in s 40(1)(g) from the specific powers in s 40(1)(f) to reduce remuneration; and by implication, in s 40(1)(i) to impose a fine.
He referred to Regulation 28 of the Police Regulations. The cap of $1,250 specifically applied to ss 40(1)(f) and 40 (1)(i), and made no mention of the subject reduction in remuneration in ss 40(1)(g).
He submitted that Parliament had recognised that a transfer under s 40(1)(g) was a significant penalty, reserved for the more serious breaches of the Code. This explains why it had specifically included the words in brackets ‘with or without a reduction in rank, seniority or remuneration’.
He submitted that any alternative construction would render the words in brackets superfluous or insignificant. He correctly submitted that, where possible, all words in an Act should be given effect.
He referred to the rules of construction against such a construction which are variously expressed as the ejusdem generis rule; expressum facit cessare tacitum; expression unius est exclusion alterius, and generalia specialibus non derogant.[22]
[22] See F, BV v Magistrates Court, supra at [21] and Pearce v Geddes: Statutory Interpretation in Australia, 8th ed, at [2.26] and [4.40].
He acknowledged the fact that there was no specific power to reduce in rank in s 40(1) of the Act, save for the words in brackets.
He submitted that Parliament could not have intended to entirely exclude the power to reduce in rank. Accordingly, linking that power with the power to transfer not only gives some effect to the words in brackets, but is a logical consequence of the power to transfer.
He accordingly submitted that the words in brackets constituted a separate power to reduce in rank, to reduce in seniority and to reduce in remuneration, unrestricted by the $1,250 cap.
Finally, I repeat, that he conceded that the appeal ought be allowed but only to the extent that the remuneration reduction be limited to the same period as the transfer of 12 months, thus resulting in a reduction in remuneration of $11,498, rather than the sum of $34,494 over 5 years.[23]
[23] Ex A 1.6 and A 1. The latter noted '...it will take him 5 years to return to Increment Level 6 from which he was reduced ...'
Analysis
·Principles of statutory interpretation
The Acts Interpretation Act 1915 (SA) relevantly provides:
Section 22
(1)Subject to ss (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2) This section does not operate to create or extend any criminal liability.
In light of the respective submissions of counsel it is appropriate to refer to various recent dicta of superior courts in respect of the task of statutory construction.
The contemporary approach to statutory construction at common law also requires words to be construed in their total context.
In Project Blue Sky Inc v Australian Broadcasting Authority,[24] the High Court said:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore a Court construing a statutory provision must strive to give meaning to every word of the provision... However the duty of the Court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily that meaning (the legal meaning) will correspond with the grammatical meaning...but not always...the context of the words, the consequence of a literal or grammatical construction... many require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
[24] (1998) 194 CLR 355 at [69].
In Master Education Services Pty Ltd v Ketchell,[25] the High Court discussed the use which may be made of a code or regulations in the construction of a section of the Act, stating that:
It may be useful to read together regulations and the Act with which they were made, in order to identify the nature of a legislative scheme which they comprise. That is not a warrant for the use of the Code to construe and expand the terms of [a section of the Act]. Regulations are to be construed according to ordinary principles of construction. That requires that they be placed in their statutory context... which includes the legislation under which they are enacted.[26]
[25] [2008] HCA 38 at [19].
[26] Pearce and Geddes: Statutory Interpretation in Australia, 5th ed at [3.41].
In Wallaby Grip Ltd v QBE Insurance (Australia) Ltd,[27] the High Court considered a submission that a statutory insurance policy which indemnified employers ought be construed as having a capped liability. The submission was based upon the terms of policy documents contained in regulations. The High Court said:
A basis for the statutory scheme for which QBE contends would have to be found in the provisions of the Act. No such scheme is discernible. The regulations and the words of the policy cannot be used to construe and, thereby to alter, provisions of the Act which created them.
[27] (2010) 240 CLR 444.
I turn now to some of the relevant canons of construction referred to by counsel in their submissions. They are not rules of law.[28] I have had regard to the warning expressed in Mattinson v Multiplo Incubators Pty Ltd[29] in respect of the use of the principle of ejusdem generis, wherein Mahoney JA said:
The ejusdem generis process of reasoning has had a long but varied history; is based upon a doubtful premise; operates by a mechanism which is uncertain; and to the extent that it presently operates, in my opinion, has real effect to determine the construction of a statute only in a limited area …, surplusage and overlapping has become the rule, [in modern drafting], and not the exception.
[28] See Cooper Brookes (Woolongong) Pty Ltd v FCT (1981) 147 CLR at 320.
[29] (1977) 1 NSWLR 368 at 373.
The principles guiding the construction of statutes, which provide for civil sanctions, are well settled.
They were conveniently set out by the Full Court of the Supreme Court in F, BV v Magistrates Court of South Australia.[30]
[30] (2013) 115 SASR 232 at [11]; [16]; [18] and [21].
Some of the relevant aids to construction are:
·That there be a purposive approach to construction.[31] This requires the court to have regard to the context and the statutory purpose. A ‘reference to the purpose may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done – [it] requires a court to construct an Act, not to rewrite it, in the light of its purposes’.
·‘To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with’
·‘No words should be regarded as superfluous …’ As a general rule all the words of a statutory provision must be given effect, however it is recognised that Parliament is sometimes guilty of surplusage and even tautology. Occasionally words are included out of an abundance of caution … The rules of construction often employed in such cases are expressum facit cessare tacitum; expression unius est exclusion alterius, and generalia specialibus non derogant.’
·‘Where there are two provisions in a single piece of legislation which initially appear to be in conflict, since it is improbable that the framers of the legislation could have intended to insert a provision which virtually has no practical effect, one should look to see whether any other meaning produces a more reasonable result.’[32]
·Where, as, in the subject s 40(1) there is a specific provision dealing with a reduction in remuneration in s 40(1)(f) and a general provision which includes a reduction in remuneration in s 40(1)(g) it may be appropriate to apply the maxim generalia specialibus non derogant to limit the scope of the general provision.[33]
·Where general words followed specific words the general words are not to be taken to be superior to the specific words. It would be assumed that the greater power would have been placed at the beginning of the subsection and not in brackets at the end.[34]
·Where words such as ‘reduction in remuneration’ appear in various subsections or sections of the same Act unless the context has changed, the words ought have the same meaning throughout the Act.
·Discussion
[31] s 22 Acts Interpretation Act 1915 (SA).
[32] Pearce v Geddes: Statutory Interpretation in Australia, 8th ed at [2.26].
[33] See Graham v Deputy Chief of Air Force [2004] FCA 1377 at [40].
[34] Contrast Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 at 588.
Reasonable minds may well differ as to the proper construction of s 40(1) of the Act, and, relevantly, the words in brackets in s 40(1)(g) thereof, namely ‘(whether with or without a reduction in rank, seniority or remuneration)’.
·The objects of the Act
In my opinion its purpose is to promote public confidence in the police force. It does so by providing a mechanism for training and promoting members of the police force; and relevantly, by means of the disciplinary provisions in s 40 and s 46 of the Act.
In Police Service Board v Morris & Martin,[35] the High Court said:
The legislation is designed to regulate and control the activities of what is a disciplined force in such a way as to achieve an effective organisation in which the members are to perform their duties in conformity with a code so as to afford protection to the community and allow the disciplining of members who breach that code. The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means – the primary and usual means – of ensuring that individual police officers do not jeopardise public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.[36]
[35] (1985) 156 CLR 397.
[36] See also Chief Commissioner of Police v McCann [2015] VSCA 362; Deputy Commissioner Stewart v Dark [2012] QCA 228; Anderson v Sullivan, Allen & Lawler (1997) 78 FCR 380 and Morgan v Commissioner of Police [2012] NSWSC 1141.
In a general sense the powers to discipline may be construed broadly to give effect to those objects, notwithstanding that they involve civil penalties.[37] I do not however need to consider the case law dealing with the construction of the legislation which is both beneficial and penal, as it does not affect this preliminary point.
·Omissions
[37] Pearce and Geddes, 8th Ed, supra at [9.3] - [9.7].
On any view of the Act, and in particular s 40(1) there appear to be drafting omissions or inconsistencies which make the task of construction far more complicated than it ought to be.[38]
[38] See F, BV v Magistrates Court (2013) 115 SASR 382 at [19] per Kourakis CJ.
Undoubtedly the most significant ‘omission’ is that of a specific provision in s 40(1) to reduce a member’s rank.
While the subject appeal does not involve such a reduction in rank, the absence of a specific power to reduce in rank assumed great significance in the submissions of counsel.
As I have explained, the Act does contain references to a reduction in rank, in addition to that contained, in the brackets to s 40(1)(g).
In particular s 46 permits a transfer of a member to a position of lower rank on the grounds of unsatisfactory performance.[39]
[39] See also s 42; s 47; and Regulation 45.
While s 46 may provide an explanation for the words in brackets in s 40(1)(g), it does not provide any explanation for the omission of a specific power to reduce in rank, in s 40(1).
By contrast, s 40(1), in apparent descending order, specifically provides for the power to terminate in s 40(1)(d); to suspend in s 40(1)(e); relevantly to reduce in remuneration in s 40(1)(f); to transfer in the subject s 40(1)(g) and to reduce in seniority in s 40(1)(h) of the Act.
Parliament obviously intended to confer a separate power to reduce in rank. It is a significant sanction. In my opinion, on that descending scale it would have been positioned just below the power to terminate, and just above the power to suspend. It would not have been inserted, in brackets, contingent upon the power to transfer.
In my opinion, there is only one logical explanation for the omission of a separate power to reduce in rank, and that is that it was an oversight by the draftsman.
The respondent pointed to another apparent ‘omission’, in this case, the omission of s 40(1)(g) in Regulation 28. The respondent’s submissions that its omission points to an intention that the words ‘reduction in remuneration’ in the subject subsection, are not restricted by a cap of $1,250. That reasoning is, with respect, somewhat circular. The omission of the subsection in Regulation 28, may equally support the contrary submission that the words in brackets, in s 40(1)(g) were not intended as a separate source of power, so that there was no need to include the subject subsection in Regulation 28.
Section 40(1)(c) expressly provides that the respondent may take action of ‘one or more of the kinds’ set out in s 40(1)(d) – (o). On the respondent’s submission it would be superfluous to include the words in brackets in s 40(1)(g) unless they were a separate source of power, as s 40(1)(c) enabled other sanctions to be ordered at the same time as the transfer.
·The difficulties
Each of the submissions by the parties has obvious difficulties. In my opinion, neither construction properly reflects the intention of Parliament.
On the appellant’s submission the only power in s 40(1)(g) is to transfer a member, and the words in brackets are to make clear that power may be employed even if other sanctions had been made independently pursuant to s 40(1)(g) or (h), for a reduction in seniority or remuneration.
On the appellant’s submission the words in brackets are either surplusage or were placed in brackets as a matter of caution, to distinguish the power to transfer from other specific powers to transfer, including that in s 46 of the Act.
The consequence of that submission is that the respondent could never reduce the rank of a member, for disciplinary purposes, as there would be no specific power in s 40(1) to do so. Any reduction in remuneration must be limited to the cap of $1,250, because the only power to reduce remuneration is that in s 40(1)(f). In effect the words, in brackets, in s 40(1)(g) would be superfluous. That construction ought not be adopted, and, in my opinion, a construction which gives some effect to those words ought be preferred.
By contrast, on the construction submitted by the respondent, the words, in brackets, provide a separate source of power to (a) reduce in rank; (b) reduce in seniority and (c) reduce in remuneration beyond the cap of $1,250, but only when a transfer is ordered. One consequence of this submission is that the respondent would still have no power to reduce a defaulting member in rank, unless a transfer is ordered.
While the latter submission gives some work for the words in brackets, and attempts to cure the omission by the draftsman, it could not have been what Parliament intended. It clearly would not have made the power to reduce in rank, contingent upon a transfer being ordered. It defies common sense that such wide powers would be placed in brackets at the end of a subsection.
Had there been no omission by the draftsman of an express power to reduce in rank, then the sanction of a reduction in rank would itself carry a reduction in seniority and remuneration in excess of the cap without the need for separate sanctions to be ordered.
If the construction submitted by the respondent is adopted then not only do the words, in brackets, constitute a separate source of power but they are much more extensive than the specific head of power. That is, that the Commissioner, would be able to reduce, by an unlimited sum, the remuneration of a member, upon a transfer.
The question of reading down and reading up a statutory provision was recently considered.
The Full Court of the Supreme Court, in Dietman v Brennan-Kuss,[40] said that it was impermissible to read down a statutory provision to avoid incongruence or irrational consequences.
[40] [2015] SASCFC 73 - Special Leave to the High Court was refused.
In Taylor v Owners – Strata Plan No 11564[41], the High Court accepted that a provision may be read up as if it contained omitted words. However such a construction ought not be permitted if such an effect ‘is too big, or too much at variance with the language in fact used by the legislature’.
[41] [2014] 253 CLR 53.
In my opinion, the respondent’s submission should not be adopted. I do not accept that Parliament intended that the words in brackets be an independent, and indeed wider source of power to reduce in rank, reduce in seniority or reduce in remuneration. It should not be read that way merely to overcome an omission by the draftsman.
·The proper construction of s 40(1)(g)
There is an alternative construction which does not result in the words in brackets, becoming superfluous. It more readily reflects the relatively minor nature of a sanction by way of transfer.
In my opinion the two competing submissions do not adequately address the nature of s 40(1)(g). If one puts the words, in brackets, to one side, then it is directed to the transfer of that member to another position in SAPOL, and not to another rank.
It concerns the transferred position of the member and not his status, in a similar manner to that in s 46 and 47 of the Act.
Just as in s 46 of the Act, the transferred position may be one suitable to a lower rank, lesser seniority or perhaps because of its nature, one with a reduced remuneration, because it does not have provision for shift work.
In my opinion the words in brackets were not intended to empower the Commissioner to reduce a member in rank from, in this case, a Senior Constable to a rank of Constable; nor to reduce in seniority as that remains exclusively the subject of s 40(1)(h); nor reduce in remuneration as that is exclusively the subject of s 40(1)(f). The words do no more than state that the order to transfer can be made even if it has an indirect consequence that the transferred position is not suitable to a person of his rank, of his seniority or has a different remuneration. I repeat that this is the consequence of the transfer – not an order for those reductions.
By way of example if there was a power to reduce in rank, the order for reduction in rank would have indirect consequences including a loss of remuneration far in excess of that in s 40(1)(f).
In my opinion the words in brackets in s 40(1)(g) are designed to cover the situation where there is no comparable position so that the only position is one which is suitable for a member of lesser rank, seniority or remuneration. I repeat those words do not permit the respondent to reduce a member in rank. The omission to provide for a specific power to do so will need to be addressed by Parliament.[42] There is no reduction in seniority unless an order is also made under s 40(1)(h). Any order for reduction in remuneration, as opposed to a reduction in consequence of some other valid order, must be made under s 40(1)(f). However, I repeat, it is the position which is the subject of the power to transfer. That position may carry a reduction in remuneration.
[42] Morgan v Commissioner of Police [2012] NSWSC 1141.
On this construction the appellant could be transferred to a different position under s 40(1)(g). This will be so even if the transferred position is one of lesser rank, seniority or remuneration. This distinguishes the power in s 40(1)(g) from that in s 46 and Regulation 45.
I am guided in this construction by the scheme in s 40(1) of the Act. In my opinion it was intended to cover the field of disciplinary powers, in a well understood hierarchical order.[43]
[43] See Brewarrana v Commissioner of Highways (1973) 6 SASR 541 at 589.
In a different context, in Police v Hodder,[44] Parker J noted that s 40 of the Police Act provides ‘a wide range of sanctions that may be imposed by the Commissioner where a police member or cadet is found guilty of a criminal offence or admits or is found guilty of a breach of the Code of Conduct. The sanctions range from, at the high end, termination of the person’s appointment to, at the low end, an unrecorded reprimand, counselling, education and training.’
[44] [2016] SASC 70 at [50].
In s 40(1) Parliament has consciously set out the penalties in descending order of seriousness from termination at the top in s 40(1)(d), down to the least serious penalty of education or training in s 40(1)(n) of the Act.
The second most serious penalty is that of suspension in s 40(1)(e) but even that is to be for a specified period.
In the ordinary course of events one would have expected that the second most serious penalty, but for the omission, would have been that to reduce a member in rank. In the subject case this would involve a Senior Constable being reduced in rank to a Constable. Had there been such a specific power it is unclear whether such a power to reduce in rank would have been limited to a specified period, consistent with most of the other specific powers. I will not speculate.
The next power is that in s 40(1)(f) to reduce remuneration by a specified amount for a specified period, but capped at $1,250.
It is in this context that the subject s 40(1)(g) must be seen. It is a relatively minor sanction to transfer for a specified period. The words in brackets refer to the position on transfer, not the member’s status.
The next is that in s 40(1)(h) which involves the reduction in the member’s seniority, which is not restricted to a specified period.
This power to reduce in seniority is also a relatively minor sanction having the effect of adjusting a Senior Constable’s seniority when compared with others. An order to reduce ‘seniority’ only affects ‘seniority’ as between members of the same rank. A reduction in ‘seniority’ purportedly from ‘level 6 Increment to level 1 Increment’, does no more than place the member as the least senior of the Senior Constables for work purposes. It does not reduce him in remuneration unless an additional order is made either under s 40(1)(f) of the Act.
Summary
In my opinion the words in brackets in s 40(1)(g) are not an independent source of power to reduce in rank, seniority or remuneration. The subsection is directed to the transfer of the member to another position. That position may be one suitable to a person of lower rank, lower seniority or result in a reduction in remuneration.
It is not an order for a reduction in remuneration because such an order can only be made pursuant to s 40(1)(f). However it may have that consequence or indirect effect if the position does not have the same benefits such as shift work.
No order can be made under s 40(1) as it presently stands, for a reduction in rank, as opposed to a position suitable to a lower rank, as there is no power to do so. If there were such a power then there would also be indirect reduction, in status and remuneration. In contrast to such an indirect consequence, an order for the reduction in seniority must be made under s 40(1)(h). Any order (as opposed to an indirect effect of a transferred position) for a reduction in remuneration must be made under s 40(1)(f) of the Act.
Conclusion
In the subject case the Assistant Commissioner ordered the transfer of the appellant to a position of general duties.
The position specifically permitted the appellant to have shift work to ensure that his remuneration was not reduced. In this case the transfer to that position did not have the consequence of a reduction in remuneration.
In my opinion the Commissioner did not have the power to separately order a reduction in the appellant’s remuneration other than under s 40(1)(f) and then to a maximum of $1,250.
She could have ordered that he be transferred to a position which was that suitable to a lower rank, but she did not do that. Had she done that any reduction in remuneration would not be brought about by an order for reduction in remuneration but an indirect consequence of a lesser position.
The orders of the Assistant Commissioner only provide for the transfer to the specified position for 12 months. The words ‘reduce to Increment 1’ have no effect in that the position is not an Increment 1 position. If, as I had initially assumed, it had been intended to reduce the appellant’s ‘seniority’ then the reduction to Increment 1 could not be an order for a reduced remuneration, but merely a reduction in seniority, vis a vis, other Senior Constables for 12 months. Parliament ought be invited to give consideration to amending s 40(1) of the Act to add a specific power to reduce a member’s rank.
I conclude that ‘cogent reasons’ do exist pursuant to ss 42E and 42G of the District Court Act 1991, to interfere with the order as to a reduction in remuneration imposed by the Assistant Commissioner.
I will hear further submissions from the parties in consequence of my determination as to the proper construction of s 40(1) of the Act.
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