H v Commissioner of Police (No 2) - [2016] SADC 153

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
H v COMMISSIONER OF POLICE (No 2)
[2016] SADC 153
Judgment of His Honour Judge Beazley
9 December 2016
PROCEDURE - COURTS AND JUDGES GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - GENERALLY
POLICE - APPOINTMENT, TENURE AND CONDITIONS OF SERVICE - MISCONDUCT AND DISCIPLINE
On 24 June 2016 the Court determined, as a preliminary point of law, the proper construction of s 40(1) of the Police Act, 1998 (SA) - a delegate of the Police Commissioner had erred in law in her consideration of s 40(1)(g) of the Act when she imposed certain sanctions upon the appellant 'H', a serving member of SA Police - whether the Court ought to proceed to hear and determine the substantive appeal in accordance with the proper construction of s 40(1)(g) of the Act or alternatively remit the question of the appropriate sanction to the Assistant Commissioner for consideration according to law, pursuant to s 42F(c) thereof.
HELD:
1. 'Cogent reasons' exist pursuant to s 42E of the District Court Act 1991 (SA) to interfere with the orders imposed by the delegate.
2. That pursuant to s 42F(c) of the Act, the matter be remitted to the Assistant Commissioner, for further consideration of the question as to what, if any, sanctions ought be imposed according to law, and in accordance with the directions and recommendations of the Court.
3. That each party should bear his own costs of the appeal to date.
Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) ss 39(3) and 46(3); District Court Act 1991 ss 42A, 42E, 42F and 42G; Police Act 1998 (SA) ss 19, 37, 38, 39 and 40; Police Regulations 2014 regs 14, 25, 26 and Part 5, referred to.
Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72, considered.

H v COMMISSIONER OF POLICE (No 2)
[2016] SADC 153
Introduction

‘H’, (‘the Appellant’), has appealed to this Court, sitting in its Administrative and Disciplinary Division, against a decision to impose sanctions upon him, in consequence of his admitted breach of the Police Code of Conduct.[1]
[1] Police Act, 1998, (SA) s 37 and the Police Regulations, 2014, Part 5.
On 24 June 2016, I published reasons with respect to the proper construction of the Commissioner’s powers to impose sanctions.[2]
[2] H v Commissioner of Police [2016] SADC 64.
The subject sanctions, purportedly made pursuant to s 40(1)(g) of the Police Act, 1998 (SA), (‘the Act’) and, which were imposed on 7 January 2016, by an Assistant Commissioner of Police, as delegate of the Commissioner (‘the Respondent’), were principally as follows:
·That the Appellant be transferred to Eastern Adelaide, in a ‘General Duties’ position for 12 months, commencing on 11 February 2016;
and,
·That the Appellant would have a reduction from ‘Senior Constable, Increment 6’, to ‘Senior Constable, Increment 1’, (without specific limitation as to time) as and from 8 January 2016.
Initially there was some confusion as to whether the reduction to ‘Senior Constable Increment 1’, was merely a reduction in ‘seniority’ as the Assistant Commissioner had stated in her oral reasons for penalty, or alternatively, was a reduction in ‘remuneration’.[3] As I had explained, in those earlier reasons, the Assistant Commissioner’s intention, in this respect, was not immediately apparent from a fair reading of her reasons for penalty. Indeed the Assistant Commissioner had expressed an intention to limit any financial impact upon the appellant, before stating that ‘you will also have a reduction in seniority to ‘Senior Constable Increment 1’ – that’s the penalty’.[4]
[3] See H v Commissioner of Police [2016] SADC 64 at [2] and [4].
[4] Appellant's Book of Documents, pgs 4-5.
When explaining the possible categories of punishment 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?[5]
[5] In fact Category B permitted 'the transfer of the officer (without reduction in rank for an indefinite period).
Section 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. Apart from putting the appellant on notice as to the likely penalty, it does provide some insight into the Assistant Commissioner’s understanding of her powers to impose penalties.
Ultimately however, both counsel accepted that the Assistant Commissioner had intended to order ‘a reduction in remuneration’, as she had deleted the word ‘seniority’ in the formal written order. The appellant appealed against both components of the sanctions. As to the transfer sanction, he complained that the transfer to a station remote from his residence was unfair given that similar ‘general duties’ positions were available much closer to his residence. As to the ‘remuneration’ component, the appellant complained that the quantum of reduction was contrary to s 40(1)(f) of the Act.
Grounds of Appeal
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, and the determination of the preliminary point; or alternatively remit the matter to the Assistant Commissioner to be reconsidered in accordance with the proper construction of s 40(1) of the Act.
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.
When the subject appeal was initially listed for hearing, counsel for the respondent very properly conceded that the Assistant Commissioner had made an error of law as to the length of time during which a reduction in remuneration, consequent upon an order for transfer, might occur.
He submitted that:
That part we do concede is that the remuneration penalty cannot last for five 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 five years [as] the appellant had to work his way back [over] five years to arrive back to ‘Increment 6’. We’re conceding that’s beyond power.’[6]
[6] See H v Commissioner of Police [2016] SADC 64 at [30].
Counsel submitted that whenever the reduction in remuneration was consequent upon an order for transfer under s 40(1)(g) of the Act, the period of reduction could not exceed the specified period fixed for the transfer, in this case, a period of 12 months.
Had the purported reduction over a 5 year period been valid, the total loss of remuneration to the appellant would have approximated $34,494.00. If by contrast a reduction in remuneration could only be ordered under the specific head of power in s 40(1)(f) of the Act, the total reduction was restricted to the sum of $1,250.00
In the ordinary course of events, I would have made an order remitting the matter to the Assistant Commissioner to be reconsidered in light of that concession,[7] before proceeding to hear the substantive appeal.
[7] Section 42F(c) of the District Court Act 1991 (SA).
The difficulty with immediately adopting that course, in this case, was that the appellant’s grounds of appeal raised a number of other questions as to the extent of the Commissioner’s powers to impose sanctions under s 40(1) of the Act.
The parties to the appeal submitted that until those issues of construction were resolved, and some guidance consequently given to the Assistant Commissioner, there was little point in immediately remitting the matter to her.
In addition, the second component of the sanctions, raises directly, the question as to whether it is open to the Commissioner to transfer a member to a position which is remote from the member’s residence other than for operational reasons.
Accordingly I permitted that issue of the proper construction of s 40(1) of the Act to proceed as a preliminary point of law.
The preliminary point of law
As seems plain from the orders imposed by the Assistant Commissioner, the principal sanction is the order for transfer of the appellant to a general duties position in SAPOL, pursuant to the specific power to transfer contained in s 40(1)(g) of the Act.
It is also plain that without more, such a transfer to a lesser role would have the effect that ‘H’ would be performing less stressful tasks while receiving his current remuneration. Both counsel assumed that the Assistant Commissioner had purported to reduce the remuneration pursuant to that same subsection 40(1)(g), consequent upon the transfer to this lesser role.
This directly raised the question as to whether s 40(1)(g) did empower the Assistant Commissioner to reduce the appellant’s remuneration, at all, and not merely for the same period as the transfer, the subject of the respondent’s concession.
The parties therefore concentrated their submissions upon the scope of s 40(1)(g) of the Act, which provides that the respondent may:
Where the person is a member of SA Police, transfer the member to another position in SA Police for a specified period (whether with or without a reduction in rank, seniority or remuneration).
The preliminary issue identified by the parties was whether the words, in brackets, in s 40(1)(g) of the Act, are a separate source of power, enabling the respondent to reduce a member in rank; and/or seniority; and/or in remuneration, whenever a transfer is ordered.
The appellant submitted that the subsection did not empower the respondent to order a reduction in seniority, nor in remuneration, but only permits an order for transfer.
The resolution of this issue necessarily included the proper construction of other specific heads of disciplinary power set out in s 40 of the Act, including those in s 40(1)(f) to reduce in remuneration to a maximum of $1,250; and in s 40(1)(h) to reduce a member in ‘seniority’.
As to this question of a reduction, counsel for the respondent subsequently informed the Court that the ‘positions of senior constables and constables are interchangeable … such that there is no position to which a senior constable could be transferred, which would result in a lower salary’.[8]
[8] Transcript, 7/7/16 at P2.
Determination of Preliminary Point
On 24 June 2016,[9] I published reasons for the conclusion that, as properly construed, s 40(1)(g) of the Act was not a separate source of power to reduce in rank; seniority; or in remuneration. The subsection simply empowered the respondent to transfer a member, even if the respondent had also reduced the member in rank, seniority or remuneration. Any such power to so reduce a member’s seniority or remuneration must be found in a separate provision in s 40(1) of the Act. Relevantly a reduction in remuneration may only be made pursuant to s 40(1)(f) of the Act. Accordingly I concluded that:
1.   In the subject case the Assistant Commissioner ordered the transfer of the appellant to a position of general duties.
2.   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.
3.   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.
4.   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.
[9]    H v Commissioner of Police [2016] SADC 64.
Following the publication of those reasons, I adjourned the question as to whether I ought to hear the substantive appeal, or remit the matter to the Assistant Commissioner for further consideration in accordance with my directions or recommendations.[10]
[10] Section 42F(c) of the District Court Act.
Section 42F of the District Court Act, 1991, (SA) provides:
The Court may, on an appeal –
(1) affirm the decision appealed against;
(2) rescind the decision and substitute a decision that the Court to considers appropriate;
(3) remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
Submissions of Counsel
· The Commissioner
Mr Keen, counsel for the respondent, referred to the special role of the police, which requires discipline to be maintained and enforced even in respect of off duty events.[11] He submitted that the question of the sanctions ought to be remitted to the respondent. This was particularly so in respect of the appeal against the transfer, as that involved operational issues.
[11] See Police Service Board v Morris (1985) 156 CLR 397; Anderson v Sullivan & Others (1997) 78 FCR 380, and Henry v Ryan (1963) Tas St.R.90; and the Police Regulations, 2014, Reg 14.
Accordingly only the respondent could determine the appropriate position and duties to be performed by the disciplined member.
He submitted that, in light of the construction of s 40(1)(g) of the Act, a mere transfer would constitute no effective penalty. Indeed if the Court did not remit the question of an appropriate penalty, but decided to impose an order for transfer without any reduction in remuneration, it would result in the appellant being employed in a less stressful position on the same level of remuneration as he was receiving as at the date of the breach of the Police Code.
The difficulty in remitting the question of an appropriate penalty to the Commissioner was highlighted by Mr Keen’s answer to the question about whether any limits ought to be imposed upon the respondent when it comes to reconsider any sanctions.
Having initially submitted that the Assistant Commissioner was not intending to have a ‘second crack’ at the penalty,[12] Mr Keen then said that his instructions were that upon the matter being remitted, the Commissioner ‘would rather the matter be categorised as a Category ‘A’ rather than a Category ‘B’ or ‘C’, so that it would permit an order for termination or suspension’.[13] I cannot accept that submission at all. Indeed it does not even follow from the Court’s construction of s 40(1)(g) of the Act.
[12] T.2., Transcript 7/7/2016.
[13] T4 Transcript 7/7/2016.
As I explained in my published reasons, the Assistant Commissioner, at the commencement of the sentencing hearing on 7 January 2016, expressly stated the possible categories of punishment.
I repeat that she made it clear that the Commissioner was not pursuing a Category ‘A’ penalty. She specifically stated that this breach of the Police Code involves a Category ‘B’ penalty at its highest.[14]
[14] See H v Commissioner of Police [2016] SADC 64 at [25]-[26].
Acting upon that intimation the sentencing hearing commenced; and the Category ‘B’ penalties were imposed. Indeed the Assistant Commissioner had expressly stated that in fixing penalty she was concerned that a reduction in remuneration by a loss of shift work would be too great a penalty.[15]
[15] See H v Commissioner of Police [2016] SADC 64 at [25]-[26].
I also infer that she was aware that the respective positions of ‘Senior Constable’ and ‘Constable’ were interchangeable, such that there could not be an effective reduction in duties and salary.
To suggest that in light of the determination of the construction point the Commissioner may now proceed to proceed with sentencing on the basis that it was now a Category ‘A’ matter, which includes the power to terminate or suspend a member of SAPOL, would constitute a grave breach of natural justice.[16] Ultimately Mr Keen properly conceded that the Assistant Commissioner had confined the range of penalties to, in effect, a transfer, a reduction in remuneration to the sum of $1,250; a fine in the sum of $1,250, and a reduction in seniority for a period of 12 months.
[16] See Craig v South Australia (1995) 184 CLR 163 at 177; and Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 at 573.
In the event that the question of penalty is remitted to the Commissioner, any penalty must be in accordance with the remarks of the Assistant Commissioner. It must not expose the appellant to any greater sanction.
As to the question of transfer Mr Keen repeated his submission that it was ultimately for the Commissioner to determine the duties and place of transfer.
·The Appellant
Counsel for the appellant, Mr Joyce, submitted that the Court should determine the appropriate sanction, rather than remit it for further consideration. He expressed his concern that an order remitting the sanctions to the respondent would be unfair to the appellant and expose him to a more severe sanction than that advised by the Assistant Commissioner.

I accept the force of that submission insofar as it relates to that component of reduced remuneration. While it will be a matter for the respondent, it would appear inevitable that the reduction in remuneration will be fixed at $1,250.
The component of transfer is an entirely different matter as I will shortly explain.
Discussion
The question whether the Court ought to remit the matter to the Assistant Commissioner is finely balanced.
In Registrar of Firearms v Marksman Training Systems (No 2)[17] Stanley J. considered the various factors which, in that case, influenced the decision whether to remit a matter; under s 42F(c) of the District Court Act, 1991 (SA).
[17] [2016] SASCFC 72 at [323].
Amongst those factors were whether the person to whom it was remitted was ‘capable of reconsidering the matter in a fair and unbiased manner’; whether the ‘other unresolved grounds of appeal represented an obstacle to the matter being remitted; whether because of any delay or costs factors the matter ought not be remitted; and whether any significant changes had occurred in the interim’.
As is plain some of those factors equally apply to the different factual position in the subject case and to the determination of the question as to remit the subject matter, to the respondent.
A further factor in the subject matter is the special position of the police force. The respondent has wide powers to discipline members of the police force.
In Police Service Board v Morris & Martin,[18] 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.[19]
[18] (1985) 156 CLR 397.
[19] 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.
If the only issue was the question of the remuneration component of the sanctions, then, notwithstanding the special position of the police force, it may be appropriate for this Court to substitute a reduction in remuneration to the maximum sum of $1,250 pursuant to s 40(1)(f) of the Act.
While I readily understand the concern expressed by the appellant’s counsel that the respondent should not be given the opportunity to impose more severe sanctions then those imposed by the Assistant Commissioner, it is inevitable that the question of sanctions be remitted to the Assistant Commissioner. I am satisfied that the respondent or the delegate to whom the matter will be remitted will reconsider the sanctions in a fair and unbiased manner. The question of costs is an important matter, but cannot, of itself, dictate the outcome. At least the question of construction of s 40(1) of the Act has been resolved.
The difficulty in retaining the matter rather than remitting it, relates to the question of the place of transfer. The appellant still maintains his other grounds of appeal, including that he be transferred to a station closer to his home than the Eastern Adelaide location ordered by the Assistant Commissioner.
While Mr Joyce submitted that the Court could determine the appropriate station, in my opinion, this is an operational matter. It is a matter of public knowledge that police operations have undergone significant changes. There may be a myriad of reasons why a particular police officer may be better placed at one location than at another. This is entirely a matter for the respondent. In addition I do not know whether the position in Eastern Adelaide is still available. Certainly that has been one significant change in the appellant’s position over the past 12 months. He has moved into a new home even more remote from Eastern Adelaide.[20]
[20] Affidavit of Appellant 19/4/16 at paragraph 19.
This Court could not possibly determine what would be an appropriate station any more than it could determine the appropriate duties to be performed.
Included in that decision is whether the appellant could work appropriately with other officers. These are clearly operational matters exclusively within the control of the respondent.
Only the Commissioner can determine what is an appropriate position, and where such a position may be available. This Court could not know whether there is a vacancy for such a position. It is entirely a matter for the Commissioner to determine his staffing levels, and which station is suitable. This is not to say that the Commissioner could act unreasonably in reconsidering the sanctions in this case. The decision must be based on operational reasons including staffing levels.
The decision must not be made simply on the basis of punishing the appellant. I am not in any way critical of the initial decision of the Assistant Commissioner in that respect. However the respondent ought to reconsider the decision to transfer in light of the appellant’s submissions; change of circumstances; and indeed the fact that some 12 months has passed with this matter hanging over his head.
Directions and Recommendations
As to the question of transfer, it is plain that any reconsidered period of transfer must not exceed the 12 month period initially imposed by the Assistant Commissioner. Any reduction in remuneration or imposition of a fine cannot exceed $1,250. Any penalty imposed must be those authorised in Category ‘B’ or ‘C’, as intimated by the Assistant Commissioner.
Costs
The appellant sought an order for costs in respect of the preliminary point.
Section 42G of the Act provides:
(1) The Court may on appeal make any ancillary or consequential order that the Court considers appropriate.
(2) However no order for costs is to be made unless the Court considers such an order is necessary in the interests of justice.
There has been a dearth of authority as to the scope of s 42G(2) of the Act. It does however abrogate the common form of rule which provide that costs follow the event. In Moore v The Registrar of the Medical Board (No2),[21] it was held that:
There must be some unusual or out of the ordinary feature of the contest which demonstrate that one party in the interests of justice is entitled to an order for costs.[22]
[21] (2001) 219 LSJS 448.
[22] See [2001] 219 LSJS 448 at [16] and Marksman v Registrar of Firearms [2015] SADC 16 at [18].
The appellant referred to a letter dated 2 February 2016 to the appropriate officer of SAPOL. In that letter the solicitor for the appellant addressed concerns as to the proper construction of the respondent’s powers to sanction in s 40(1) of the Act, and invited the respondent to ‘rescind the sanctions’.
While it is plain that the respondent ought to have addressed the question of the construction of s 40(1)(g) at this early time, the fact remains that the respondent’s eventual concession did not alter the need for a determination of the preliminary construction point. Further it would not have resolved the significant issue as to whether the order for transfer was harsh in the circumstances.
Although I accept that there is something of an unusual feature in the pre appeal correspondence, it was inevitable that the appeal would proceed. The concession by the respondent did not affect the need for a ruling on the construction point. In my opinion no order for costs ought to be made under s 42G of the Act.
Order
I therefore order that the question of sanctions be remitted to the respondent pursuant to s 42F(c) of the Act, in accordance with the directions and recommendations referred to herein. Such a rehearing will be in private pursuant to s 40(6) of the Police (Complaints and Disciplinary Proceedings) Act, 1985 (SA).