NSW Commissioner of Police v Cottle & Anor

[2021] HCATrans 62

[2021] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S149 of 2020

B e t w e e n -

NSW COMMISSIONER OF POLICE

Applicant

and

TREVOR COTTLE

First Respondent

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 12 APRIL 2021, AT 9.29 AM

Copyright in the High Court of Australia

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MR M.C.L. SECK, for the applicant.  (instructed by Kingston Reid)

MR R.J. DE MEYRICK:   May it please the Court, I appear for the first respondent.  (instructed by Brazel Moore Lawyers)

KIEFEL CJ:   Yes, Mr Kirk.

MR KIRK:   Thank you, your Honour, and can I thank the Court and my opponent for accommodating my timing issues this morning.  Your Honours would appreciate that aspects of the relationship between the State and New South Wales police officers is governed by two Acts, the Police Act and the Industrial Relations Act.  In this Court’s decision in Commissioner of Police v Eaton eight years ago, the plurality indicated at paragraph 78, without going to it, that the classic statement of principle in Project Blue Sky about construing one statute so as to best achieve a harmonious result also applies to seeking to reconcile and read together two statutes.  Applying that approach in that case, the majority, the four members of the Court, held that probationary constables who had been dismissed did not have a right of review to go off to the Industrial Relations Commission to complain about their dismissal having been harsh, unreasonable or unjust. 

The issue in this case is whether another type of removal, namely, medical retirement, is also subject or not subject to the unfair dismissal regime in the Industrial Relations Commission. Can I take your Honours directly to section 72A of the Police Act which is found at page 99 of the application book and, your Honours, I will use the black numbers on the right‑hand side at the bottom of the page. Your Honours will see in section 72A – if I can make just a series of brief points about it – first, subsection (a), the criterion is about medical grounds:

medical grounds to be unfit to discharge or incapable of discharging the duties of the officer’s position –

So that obviously depends substantially on medical evaluation.  It also depends on a keen understanding of what “discharge of a police officer’s duties” involves.  Turning then to (b) that:

unfitness or incapacity:

(i)appears likely to be of a permanent nature –

So, that is essentially a medical assessment – b(ii), leaving aside anything that:

has arisen from misconduct –

and that is because misconduct is dealt with distinctly in Part 9 of the Act.
Then, at the end:

the Commissioner may cause the officer to be retired.

So, there is no doubt that the Commissioner has a discretion.  But, for reasons I will come to shortly, in our respectful submission, it is important – or it is likely to be partly important – that the Parliament intended it was the Commissioner who makes that assessment.  Whilst your Honours have the section, you will also note that there is no duty to give reasons for a decision.   

If one can then turn to the provisions of the Industrial Relations Act – so, if your Honours go to page 117 – it actually starts at page 116 – your Honours will see it is Part 6 of the Industrial Relations Act – it is headed “Unfair dismissals”. Section 84, about halfway down page 117 is the classical allocation of the unfair dismissal jurisdiction, about whether the dismissal is:

harsh, unreasonable or unjust –

If your Honours then turn the page to section 88, there is a list there of matters which the Commission may, if appropriate, take into account.  So, they are not exhaustive, they are not mandatory, but this is the sorts of things it was anticipated they would be taking into account.  Going through those briefly:

(a)whether a reason for the dismissal was given –

and, if so, whether there was a reason to refuse to reinstate.  So, we would say here there is no duty to give reasons.

(b)if any such reason was given–its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour –

That is not really apposite to dealing with a retirement on medical grounds because of being unfit for duty.  The same point could be made about (c).  So, (d) we would not say is inapposite:

the nature of the duties of the applicant immediately before the dismissal –

but that leads to this…..point which might be said to be a purposive point as to why this is the sort of matter which would not be regarded as having been allocated to the Industrial Relations Commission.

Justice Simpson, without going to it, referred to the New South Wales Police Force at paragraphs 23 and 24 of the judgment, as being “a highly structured and disciplined organisation”, and your Honours would appreciate that is the sort of remark regularly made about the police force.

Her Honour referred to the missions and functions of the police force under the Police Act, particularly, without going to it, sections 6 to 8 of the Police Act, which at page 95 set out the mission statement of the police and the special role that they have.

The point we seek to make is perhaps to state the obvious.  Police officers have a special and distinct role in society.  They are given special powers because of that role.  They are entrusted, to give an important example, with the use of weapons, not otherwise available to members of the public.  They may, as your Honours would well appreciate, be exposed in the course of duty to traumatic events, to violence, to provocation, whether investigating criminal activity, going to terrible traffic accidents or dealing in the streets with provocative intoxicated young people or people with mental illness.

There is good reason, in our respectful submission, to infer that Parliament considered that the Commissioner is the one best placed to make an assessment of whether an officer is physically and mentally fit to be entrusted to go out into the streets to perform that special and difficult role, taking account of the traumatic circumstances to which they may have been exposed – many police officers have been exposed in the line of duty.

KIEFEL CJ:   Mr Kirk, to what extent does the decision of this Court in Commissioner of Police for New South Wales v Eaton point the way to an answer here, or does it leave it completely untouched?

MR KIRK:   It depends probably which counsel you ask, but we would say it points in the direction of an answer contrary to the Court of Appeal.  Could I take your Honours briefly to the decision - I think your Honours have a copy; we asked it to be provided.  I will not go through all of the decision obviously because it is long and complicated, but could I take your Honours briefly to page 24 within the plurality judgment to begin with? 

This is the judgment of your Honour the Chief Justice and Justices Crennan and Bell. At paragraph 63, fourth line, after referring to section 84, the plurality said:

the IR Commission may have regard to the conduct of the employee ad whether the employer acted reasonably in all the circumstances, as the Full Bench in this case observed.  A general provision for an inquiry into the reasonableness of the conduct of an employer might not be thought suitable to a decision of the Commissioner to dismiss –

We would respectfully say the same applies in relation to a medical retirement. Then, at paragraph 64, there is a reference to the factors in section 88, which I have just taken your Honours through, and so I have already in a sense made the point, but just as they were thought inapposite to dismissal of a probationary constable under section 80(3) of the Act, they are equally inapposite here. Then, paragraph 65 is important, in our respectful submission:

Of course, these are matters which may or may not be taken into account –

So, as I said there, they are not exhaustive, but the second sentence:

But they serve to highlight the fact that the unfair dismissal regime of the IR Act was not framed with something like the Police Force in mind.  It is a general statute.

So, we very much rely on that.

KIEFEL CJ:   Nevertheless, there are a number of provisions of the Police Act which confer jurisdiction or recognise the jurisdiction of the Industrial Relations Commission. 

MR KIRK: There are, your Honour, but they are general provisions, so there is no dispute, by the way, that the general grant of jurisdiction in section 84 of the IR Act – the broad one about unfair dismissal – is capable in its terms of applying to the situation here. So, we accept that in a sense the starting point, the simple reading of section 84 is against us. But so too it was in Eaton, and so the court in Eaton went through a careful analysis of the context to see what is the most harmonious construction.

STEWARD J:   Mr Kirk, can I ask a question?

MR KIRK:   Of course.

STEWARD J:   If the Act did not contain section 72A, as it was then, in your view, would the Commissioner have had an equivalent power to remove a police officer under section 181D(1)? In other words, is 181D(1) sufficiently broad enough to permit dismissal on medical grounds, in your view?

MR KIRK:   The answer is - it would all depend on the facts, of course, but it would certainly be at least partially and perhaps significantly encompassed.  So, if your Honours – the page is 107 that we have 181D, and it says there:

The Commissioner may, by order in writing, remove a police officer -

and one of the criteria is “competence”.  So that is why I say it may – a partial answer to your Honour’s question is that insofar as it raises an issue of competence it may fall within the jurisdiction. 

STEWARD J: So, is your case then that because 181D is followed by 181E, and there is no equivalent of 181E in section 72A, that that supports your case?

MR KIRK:   Indeed, indeed.

STEWARD J:   Yes, all right.

MR KIRK:   That was a significant part of the reasoning in the majority judgment in Eaton, which we also seek to call in aid, namely the Parliament has made very specific provision for how review is to take place under Part 9, Division 1B and 1C, where there is dismissal for cause, for misconduct. 

KIEFEL CJ:   Are you referring in that regard to paragraph 59 of Eaton?

MR KIRK:   Indeed, precisely so.  Whilst your Honours have Eaton, if I could just finish with that briefly. If your Honours turn to page 27, to pick up some of the other core parts of the plurality’s reasoning, at paragraph 74 just to be a little bit staccato about it, there is a reference there to the power being “unfettered” - the “unfettered power to dismiss” in section 80(3).

Now, true it is that there are more criteria here in 72A, but they are very much directed to medical considerations and to evaluation of fitness for duty and beyond that the Commissioner has a broad discretion.  Then at paragraph 75:

The lack of a requirement for reasons also points to some incoherence - 

I have already in a sense made that point.  Then paragraph 76, this is what your Honour ‑ ‑ ‑ 

KIEFEL CJ:   Yes, Mr Kirk.

MR KIRK:   Sorry, your Honour.  Looking at paragraph 76 there is a reference there to the regime provided in Part 9, and the talk there of - your Honours will see about the eighth line:

elevates the Commissioner’s decision to one of public interest.

That actually harks back to - I am just trying to find the provision dealing with public interest – it is on page 107.  Sorry your Honours, it is 181F actually, on page 108, apologies for the delay, 181F(3):

Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to:

. . . 

(b)the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order -

That is actually a very unusual provision in a merits review‑type scheme, because normally a merits review, as your Honours well appreciate – you are essentially starting again – the decision‑maker is standing in the shoes of the previous decision‑maker.  Under this regime, you actually have to give some weight – the IRC must give some weight to the very fact the Commissioner made that determination.  That is very unusual and that is what the plurality was referring to at paragraph 76.

Finally in Eaton, if I can take your Honours to page 29, paragraph 82, the reference to section 218, which was very significant in the Court of Appeal’s decision here, and indeed in my learned friend’s submissions. Section 218 is extracted at paragraph 83. Your Honours will see at paragraph 82, fourth line:

Section 218 of the Police Act is troublesome.

The Court of Appeal in Eaton have seen it as “possibly determinative”, as indeed the Court of Appeal did here.  If your Honours then jump to paragraph 87, over the page:

More significantly, sub-s (1) of s 218 is now patently erroneous. The IR Act is affected by Pt 9 of the Police Act, as has been pointed out.

Now, to be clear, our construction does not deprive 218 of any effect.  There is no doubt that the IRC still has significant jurisdiction with respect to some matters affecting police officers.  For example, Chapter 2 of the IR Act deals with awards and enterprise agreements, so standard industrial relation matters.  Chapter 3 deals with industrial disputes, Chapter 5, Part 1 deals with victimisation where the IRC has a particular jurisdiction.

It is not as though section 218 is deprived of effect, it is just that here, in our respectful submission, as in Eaton, you have to seek to read everything harmoniously, taking account of the full context.  Can I turn then briefly to the Court of Appeal’s decision?  If your Honours go in the application book to page 73 ‑ ‑ ‑

GORDON J:   Before you do that, Mr Kirk, President Bell starts at paragraph 61 on page 70 and sets out in effect six reasons why he came to the conclusion he did.  Where do you say the error is in those paragraphs?

MR KIRK:   If your Honours go first to paragraph 62, which is a reason – in fact a particular reason - his Honour says:

The key point to be made at the outset is that s 85 of the Police Act contemplates proceedings relating to a non-executive police officer –

But that is a variant of the 218 point.

GORDON J:   It is not quite.  It recognises that there are proceedings relating to this officer:

being held before a competent tribunal with jurisdiction to deal with industrial matters.

It reflects that section 88 then follows it which expressly excludes certain proceedings, so that the part or the division has turned its mind to those which are to be excluded.

MR KIRK: I should note, your Honours, that section 85 is found at application book 101. The significance of section 85 is to in effect deem the Commissioner to be the employer, where your Honours would appreciate that historically and still police officers, actually like members of the military, are not formally employees. They hold the distinct office ‑ ‑ ‑

STEWARD J:   You would say that that provision is there for the purposes of section 181D?

MR KIRK:   Amongst other things, it picks up 181D.  It also means that if there is an industrial dispute the Commissioner is treated as the employer.  If there is a dispute about the enterprise agreement, the Commissioner is treated as the employer.  So that is dealing with your Honour Justice Gordon’s question.  That is the first reason, I think.  I am not sure I get all six reasons, but if your Honours go then to paragraph 71 ‑ ‑ ‑

KIEFEL CJ:   Do you want to finish your submission?

MR KIRK:   Thank you, your Honours.  Is that 17‑minute mark or the ‑ ‑ ‑

KIEFEL CJ:   Yes, it is the 17‑minute mark.

MR KIRK: I am greatly relieved, thank you, your Honours. Paragraph 71 is where President Bell makes a textual point and his Honour says – it is in very different terms to section 80(3). True enough, but it leads back to the same point, and actually in a sense this is a point well put by Justice Simpson, with great respect, at page 22, paragraph 66, sixth line I think it is:

But the route to the IRC for review of s 173 and s 181D decisions is not s 84 of the IR Act, but s 174 and s 181E –

Then jumping to paragraph 67:

The enactment of Pt 9 Div 1C is a strong indication –

So that is the misconduct stuff:

that the legislature considered that s 84 of the IR Act did not provide entrée to the IRC –

So, as for section 80(3), we would say here too. Jumping back to the President’s reasons, page 74 of the application book, this is the expressio unius argument, and his Honour in effect held that it broke against us, namely, the fact that there was express provision in 181D and 181E meant that the Parliament had taken account of the fact that police officers could go to the Commission. For reasons I have already put in a sense consistent with Justice Simpson’s analysis, that actually suggests that the route to

review is through the Police Act, not the general provisions in the IR Act.  Then at paragraph76 his Honour says:

Whilst the absence of such review for dismissal of probationary constables may be explicable . . . it would be anomalous in the extreme for established officers . . . to be left without any recourse to challenge, on grounds that are open to other public sector employees.

With great respect, that assumes what seeks to be proved and I sought to put it at the beginning of my submissions a purposive reason as to why the Parliament might well have thought that this is a matter that should be dealt with by the Commissioner, not by the IRC.

KIEFEL CJ: Is your submission here, Mr Kirk, that while section 72A might be different in its operation and subject matter from section 80(3), that is not determinative of the question.

MR KIRK:   Indeed, indeed so, your Honour.  Finally, page 76, paragraph 79, the learned President says:

First, it does not accommodate s 218 of the Police Act, and what was said about that section in Eaton cannot save it in this regard. 

I have effectively already addressed that to say there is still plenty of work to do but not too much weight should be given to 218 given the fact that it is patently erroneous.  May it please the Court.

KIEFEL CJ:   Yes, thank you, Mr Kirk.  Yes, Mr de Meyrick.

MR DE MEYRICK:   Thank you, your Honour.

KIEFEL CJ:   Mr de Meyrick, at the outset, I assume that you would accept that the construction of these provisions has consequences for a large number of people within the force, of course.

MR DE MEYRICK:   Yes, I do not take issue with that observation but, of course, that is not determinative of the question decided today.

KIEFEL CJ:   Your essential point is that there is no reason to doubt the correctness of the Court of Appeal.

MR DE MEYRICK:   Yes.  Can I take your Honours back to 72A which can now be found in identical terms, if your Honours need to know, in 94B.  One of the things I wish to observe about this section at the outset is that it is not a disciplinary section and that is made abundantly clear by subsection (b)(ii) which says that the Commissioner cannot use this section to remove a police officer if their “unfitness or incapacity”:

has not arisen from actual misconduct on the part of the person, or from causes within the person’s control -

then goes on to use the, dare I say, slightly Orwellian phrase, that the Commissioner may “cause” the officer to be retired.  It is accepted and it has never been an issue in these proceedings all the way through that that constitutes a dismissal, but it is a very different type of dismissal to one based on integrity or discipline. 

That is to be contrasted with section 80(3) which exercised the Court’s collective minds in Eaton, which can be found on the following page, page 100 of the white book.  You will see there that whilst a probationary constable is subject to probationary constable is subject to probation:

The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason.

It is clear from the analysis in Eaton that the two Acts, the Police Act1990 and the Industrial Relations Act 1996, were meant to dovetail and operate together for police officers. Any doubt about that is quite clearly expunged by section 218 which my friend has already taken you to. Other aspects that make it clear include not only section 85 of the Police Act that you were taken to earlier but if you turn then to the unfair dismissal provisions which start at page 116 of the application book, you will see that the part applies in 83(1)(a) to:

any public sector employee –

I can tell your Honours, although I do not think it is in the book, that the dictionary includes in the definition of a “public sector employee” a police officer.  So, on its face, as this issue went to the High Court in Eaton, there is a clear indication that, subject to any express provision to the contrary, the unfair dismissal provisions of the Industrial Relations Act would apply to a police officer in New South Wales.

The tension which caused the High Court to ultimately conclude that there was an implied repeal of section 80 – implied incongruity with section 80(3) – was the fact that this was a probationary officer dismissed with the express right to dismiss without giving reasons. As the Court of Appeal indicated below, this is a very different situation.

The Court of Appeal – contrary to the submissions that have been made, both in writing and otherwise – apply entirely conventional approach to statutory interpretation.  They started with Marshall v Director‑General, Department of Transport and the quote from Justice McHugh.  They also referred and applied paragraph 39 of Federal Commissioner of Taxation v Consolidated Media Holdings where this Court held that the starting point had to be the text – that you look at the text in context.  Where my friend attempts – perhaps somewhat pejoratively – to suggest that the Court below strayed into a purposive interpretation, what that really is, we say is just ‑ ‑ ‑

KIEFEL CJ:   “Presumptive”, I think, was in the written submissions. At least, I think, the applicant is saying a “presumptive” approach – presumption that the industrial relations regime applies, rather than construing section 72A itself to see where it fits in the scheme of the Police Act.

MR DE MEYRICK:   If the starting point is that, on the face of a text, the Industrial Relations Act applies and there is no proscription for the unfair dismissal provision applying to a section 72A removal or dismissal, then in order for this Court to conclude otherwise than the Court of Appeal did, one has to have the same start tension that arose when section 83 came before this Court.

As Justice Bell, the President below, adequately explained from about section 76 onwards in the judgment below, there are opposite considerations here where you have a confirmed police officer who, in Mr Cottle’s case, for instance, had been in the police force for about 14 years, who is removed from office through no fault of their own and then unlike perhaps somebody who is removed for cause, they have no recourse. 

Now, the answer that my friends put forward for that is this is a special kind of decision which the Commissioner is best placed to make.  That, in itself, is a policy submission rather than one that is rooted in the text of the statutes that you are interpreting.  Could I also observe ‑ ‑ ‑

STEWARD J:   Could I ask, do I assume that if you are caused – required to retire under 72A, you would have got a pension?

MR DE MEYRICK:   Not necessarily.  There will be certain benefits you have – certainly under the older Acts – one got a medical pension – but they went out some years ago, your Honour, in favour of something that more closely resembles workers’ compensation entitlements.

STEWARD J:   What about under 181D?

MR DE MEYRICK:   You would not get a pension.

STEWARD J:   You do not get anything.

MR DE MEYRICK:   Mention of workers’ compensation entitlements segues me into the next point I wanted to make, your Honours ‑ ‑ ‑

STEWARD J:   Very well.

MR DE MEYRICK: ‑ ‑ ‑ and that is it did not get a large mention in the decision in the court below – directly below – but in some of the other decisions like that of the Full Bench of the IRC they mention Part 8 of the Workers Compensation Act 1987 (NSW). That is entitled, “Protection of Injured Employees” and it gives someone who has a recognised work injury the right, within two years of being dismissed for work injury, to take their claim to the Industrial Relations Commission of New South Wales and challenge that decision.

It is a discretionary process, but a commissioner of the Industrial Relations Commission can look at the medical evidence and make a determination as to whether that employee is entitled to reinstatement or re‑employment.  That applies to police officers – and I do not think my friend will take any dispute with that – it was not in dispute below – but it only applies to them if they have a work injury. 

So a police officer who, for instance, had PTSD through work and was caused to be retired under section 72A, as it then was, would have recourse to that section. But someone who was put off under section 72A for an injury or illness that was not work related would not.

GORDON J:   Can I just ask about that.  At paragraph 70 Justice Bell identifies what he says are the limited rights of review for someone under 72A.

MR DE MEYRICK:   Yes.

GORDON J:   Is that what he is referring to?

MR DE MEYRICK: Yes, and although he does not enunciate this point, the section 242 of the Workers Compensation Act only mentioned in passing when he quotes part of the Full Bench decision, but what he is indicating there is that if you put aside section 242 or Part 8 of the Workers Compensation Act, there is effectively no recourse for someone in Mr Cottle’s position unless ‑ ‑ ‑ 

STEWARD J:   Would he be entitled to judicial review?

MR DE MEYRICK:   There is always that, your Honours.

STEWARD J:   Yes.

KIEFEL CJ:   Is that not what his Honour – that is what President Bell is referring to ‑ ‑ ‑ 

MR DE MEYRICK:   Yes, but it is limited in ‑ ‑ ‑ 

KIEFEL CJ:   It is public law, public law remedies.

MR DE MEYRICK:   As your Honours would know, that is a higher - very high bar to jump over sometimes.

KIEFEL CJ:   It is a distinctly different animal from an unfair dismissal claim, yes.

MR DE MEYRICK:   Yes.  Your Honours, although my friend did not make too much of this in his oral submissions, in the written submissions there is a tendency to blur the decisions of this Court in the case of Ferdinands and the case of Eaton as perhaps standing for the proposition that unfair dismissal laws do not apply to police officers.  We wish to certainly challenge that observation, and we note that this Court did not decide the case of Eaton by simply applying the case of Ferdinands.  It certainly is mentioned and discussed ‑ ‑ ‑ 

KIEFEL CJ: I think the applicant’s case is, in part, that the Court of Appeal was too taken with the - in terms of an approach to construction - with the difference between section 80(3), which is dealt with in Eaton, and section 72A, having found a difference, thought that that was almost determined. Certainly it appears to have been very persuasive. So the question for this Court on an application for special leave is whether it warrants an examination by this Court of section 72A in its statutory context, given that you have conceded, at the outset, the general importance of the question.

MR DE MEYRICK:   Can I take your Honours to this point, which I think tends against the conclusion that it warrants a grant of special leave.  Unlike Ferdinands, in the case of Eaton, this Court, the decision of the plurality concluded at paragraph 92 that the Industrial Relations Act (NSW) may apply generally to New South Wales police officers:

but not where the operation of the former produces an internal inconsistency in the latter. Such an effect, which would be reached if a decision under s 80(3) of the Police Act were subject to review under Pt 6 of the IR Act –

and the Court held that that could not be taken as intended there.  So it was not likely that this Court concluded that there was an implied inconsistency, and it was only that stark contradiction between the right to dismiss, specifically without giving reasons, of a probationary officer, that led the Court to take that fairly extraordinary conclusion, which we do not take any issue with, but we say this is a very different situation.

If you apply the same rationale and tests that this Court did in Eaton, and given that this Court left open the operation of section 218 for police officers and did not rule, as some of the applicant’s submissions would have you see it, that the Police Act was intended to operate almost as a code for the removal of police officers, that is certainly not what this Court held in Eaton.  Applying the same rationale and the same procedures and principles of statutory construction which this Court did in Eaton, we say you inevitably arrive at the same conclusion that the President did in the court below. 

One of the points my friends make is that there is no express obligation of the Commissioner to give reasons in section 72A. What we would say, and you have already been taken to the terms of section 84 of the Industrial Relations Act and, indeed, section 88, which has matters that are to be taken into account.  They are found, if I can remind your Honours ‑ ‑ ‑ 

KIEFEL CJ:   Well, that might be a point ‑ ‑ ‑ 

MR DE MEYRICK:   At 117 and 118 ‑ ‑ ‑ 

KIEFEL CJ:    ‑ ‑ ‑ that requires argument about whether reasons are required or not. 

MR DE MEYRICK:   Yes. One of the things I wish to observe is that section 84 as originally drafted would have been anticipated through its predecessors and in 1996 to apply to a more broad category of employees than it now does. It now largely applies to public sector employees. It is not premised on there being a provision of reasons. It contemplates that there may or may not be reasons that are given.

That is not an impediment to those proceeding – to those sections applying to a dismissal, but there would be under administrative law principles, at least a de minimis obligation on the Commissioner to give some reasons for section 72A dismissal, we say, anyway.

The fact that some officers dismissed under section 72A, as it then was, would have an unchallenged right under other legislation to take their dismissal to the Industrial Relations Commission, defeats, we say, the suggestion that this Court ought to conclude that the provisions of the Police Act ought to be seen as a holistic code that expunges – impliedly expunges any rights to challenge a dismissal elsewhere. 

If you are taking the kind of overview of all the materials to look at the legislative purpose, then the kind of matters that the Court of Appeal took into account towards the tail end of the judgment, being the anomaly of an innocent, if I can put it that way, victim of circumstance removed from office having no rights to challenge comes into view. 

What we also say is that to the extent it was argued, both in the applicant’s written submissions and by reference to some passages of the decision of Justice Simpson, that once a medical decision is made there is little wriggle room for some kind of quasi-judicial review, we firstly observe that that is obviously not so with Part 8 of the Workers Compensation Act, but also, as the Court of Appeal correctly noted, a decision under section 72A is not just a medical decision. It is a decision that would involve the exercise of a discretion by the Commissioner, or his delegate.

What we would also add, which the Court of Appeal do not mention, but would – this Court would know from its knowledge of matters, be a feature of such a decision, is there may well be competing medical evidence.  Medical decisions are not black and white, they are not a matter of mathematics.  There can, and often will be, a range of different opinions about an injured police officer’s ability to perform their role. 

KIEFEL CJ:   But, of course, medical officers are a bit more limited in relation to operational requirements.  That would suggest that there might an ultimate decision which draws upon the medical evidence but brings with it experience about the requirements of operational service. 

MR DE MEYRICK:   The point we make in our written submissions is it is not difficult to imagine circumstances where a conclusion made might be attenuated by some unfairness, for instance if it was against the weight of medical evidence or medical opinion and in those circumstances a person in Mr Cottle’s position who had a long career in the police force was forcibly medically retired and who wanted to challenge that on the basis that it was harsh, unjust or unfair has been – or would be denied a remedy if the Court upheld this appeal. 

Now, that is of course not the decision you have to make today, but what we respectfully say is that, despite the characterisations of the

applicant to the contrary, what the Court of Appeal did entirely accorded with the process that this Court applied in Eaton.  They simply came to a different decision, applying that same process.  Unless I can be of any further assistance, your Honours, those are my submissions.

KIEFEL CJ:   Thank you, Mr de Meyrick.  Do you have anything in reply, Mr Kirk?

MR KIRK:   Very briefly, your Honours, four points.  First, my learned friend indicated that dismissal for misconduct is a very different kind of dismissal.  We respectfully agree.  It is understandable that there might be review after there has been dismissal for misconduct which leaves a stain on the reputation of significance.  Even then it is a limited form of review.  Secondly, workers compensation, that is fundamentally about promoting rehabilitation.  That is probably enough about that.  Third, presumptive approach – yes, indeed, that is part of our criticism.  The Court of Appeal needed, with great respect, a little bit more of an Eaton‑esque approach.  Finally, my friend suggested the result was inevitable.  Justice Simpson’s judgment would suggest to the contrary.  If it please the Court.

KIEFEL CJ:   Thank you.  There will be a grant of special leave in this matter.  What is your time, Mr Kirk?  Under a day, I would have thought.

MR KIRK:   Yes, probably more than half a day, but no more than one day, your Honour.

KIEFEL CJ:   Thank you.  Would you agree with that, Mr de Meyrick?

MR DE MEYRICK:   Yes, thank you, your Honour.

MR KIRK:   Your Honour, can I also note paragraph 43 of our special leave application, namely, that the Commissioner undertakes to pay the costs to Mr Cottle and does not seek to disturb the costs order below.

KIEFEL CJ:   Thank you for drawing that to our attention.  Yes, thank you. 

AT 10.08 AM THE MATTER WAS CONCLUDED