Police Association of New South Wales v State of New South Wales

[2020] NSWCA 3

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Police Association of New South Wales v State of New South Wales [2020] NSWCA 3
Hearing dates:	7 November 2019
Decision date:	10 February 2020
Before:	Macfarlan JA at [1] White JA at [14] Barrett AJA at [43]
Decision:	(1)   Grant leave to appeal. (2)   Direct that a notice of appeal in the form of the draft in the white folder be filed within seven days. (3)   Allow the appeal. (4)   Judgment and orders of the court below be set aside. (5)   Declare that the order styled “Non-disciplinary Transfer Order” made by Detective Superintendent Kenneth Finch on 7 August 2018 and addressed to Senior Constable Nicholas Gardner was invalid. (6)   Order that the said order made on 7 August 2018 be quashed and that the Commissioner of Police be restrained from giving effect to the order. (7)   Order that the respondents pay the costs of the applicants/appellants of the proceedings in this Court and in the court below.
Catchwords:	EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – Misconduct and unsatisfactory performance – Powers of Commissioner – Power to order transfer of non-executive police officer to another position in case of “misconduct” – Whether particular transfer a “non-disciplinary transfer” – Meaning of “non-disciplinary transfer”.
Legislation Cited:	Interpretation Act 1987 (NSW), ss 33, 34 Law Enforcement Conduct Commission Act 2016 (NSW), ss 4, 9, 10 Police Act 1990 (NSW), ss 7, 69, 173, 174 Police Amendment (Police Promotions) Act 2006 (NSW) Police Regulation (Appeals) Act 1923 (NSW), s 6 Police Service Amendment (Complaints and Management Reform) Act 1998 (NSW) Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 (NSW), s 182 Supreme Court Act 1970 (NSW), s 101 Police Service Regulation 1990 (NSW)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Commissioner of Police v Skelly (2010) 192 IR 195; [2010] NSWIRComm 18 Director-General, Dept of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 Ferdinands v Commissioner for Public Employment [2004] SASC 30; (2004) 233 LSJS 110 Hardcastle v Commissioner of the Australian Federal Police (1984) 53 ALR 593 Hughes v Whitmer 714 F 2d 1407 (1983) Nugent v Stewart (Commissioner of Police) [2016] QCA 223; (2016) 261 A Crim R 383 Personnel Board of Jefferson County v Bailey 475 So 2d 863 (1985) Poanga v State Services Commission [1985] 2 NZLR 385 Police Association of New South Wales v State of New South Wales [2019] NSWSC 587 Police Service Board v Morris (1985) 156 CLR 397; [1985] HCA 9 Potter v. New Brunswick Legal Aid Services Commission [2015] 1 SCR 500 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28 The Queen v A2 [2019] HCA 35 R v White; Ex parte Byrnes (1963) 109 CLR 665; [1963] HCA 665 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 Re Tracey; Ex parte Ryan (1989) 166 CLR 518; [1989] HCA 12 Tyers v Commissioner of Police (unreported, High Court of New Zealand, Wellington, A130/84, 23 May 1984)
Texts Cited:	Bender LG, Jurkanin T J, Sergevnin V A, Dowling J L, “Critical Issues in Police Discipline – Case Studies” (Charles C Thomas Publisher Ltd, Springfield, Illinois, 2005) Macquarie Dictionary (online version) Royal Commission into the New South Wales Police Service, Final Report, 1997 Second Reading Speech, Police Service (Complaints and Management Reform) Bill, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 October 1998
Category:	Principal judgment
Parties:	Police Association of New South Wales (First Applicant) Nicholas Gardner (Second Applicant) State of New South Wales (NSW Police Force) (First Respondent Commissioner of Police (Second Respondent)
Representation:	Counsel: M Gibian SC and A M Slevin (Applicants) J K Kirk SC and MCL Seck (Respondents)   Solicitors: David Kennedy, Police Association of New South Wales (Applicants) K&L Gates (Respondents)
File Number(s):	2019/187632
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2019] NSWSC 587 Date of Decision: 20 May 2019 Before: Adamson J File Number(s): 2018/282564

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2018 the second applicant, Senior Constable Nicholas Gardner, was the subject of an order by the second respondent, the Commissioner of Police, pursuant to s 173 of the Police Act 1990 (NSW) involuntarily transferring him from his position as a surveillance operative within the State Surveillance Branch to a general duties position at Chatswood police station.

The decision was characterised by the Commissioner as a ‘non-disciplinary transfer’ which is ‘non-reviewable action’ under Schedule 1 of the Act. Section 173(9) prevents review of such actions by a tribunal including the Industrial Relations Commission and denies the officer certain procedural protections.

Shortly thereafter, the first applicant, The Police Association of New South Wales, filed an application in the Industrial Relations Commission for review of the transfer decision. By way of reply the State of New South Wales (the first respondent in the present proceedings) filed a notice of motion seeking the Industrial Relations Commission to declare that it had no jurisdiction to review the decision.

Proceedings in the Industrial Relations Commission were stayed pending an application for judicial review in the Common Law Division seeking a declaration that the transfer order was invalid and orders in the nature of certiorari and prohibition.

A judge of the Common Law division dismissed the summons finding that the transfer order was a ‘non-reviewable action’ as it was open to the Commissioner to treat the order as a ‘non-disciplinary transfer’.

The applicants sought leave to appeal that decision with the application for leave and the appeal being heard concurrently. The substantive issues on appeal were whether the judge at first instance had erred in construing the terms ‘reviewable action’ and ‘non-reviewable action’ in s 173 as turning on the evaluative judgment of the Commissioner as to whether the transfer order was a ‘non-disciplinary transfer’, and if so, whether the transfer ordered was a ‘non-disciplinary transfer’.

The Court of Appeal (Macfarlan and White JJA, and Barrett AJA) unanimously granted leave to appeal. A majority of the Court (Macfarlan JA and Barrett AJA, White JA (dissenting)), allowed the appeal, holding:

Per Macfarlan JA at [10], [13], White JA at [34], Barrett AJA at [119]

The issue of whether a transfer order is a ‘non-disciplinary transfer’ and therefore a ‘non-reviewable action’ under s 173 is a question of fact. The Commissioner’s view as to whether an action is reviewable or otherwise is not determinative.

Per Macfarlan JA

The term ‘non-disciplinary transfer’ refers to a transfer that does not have the purpose and effect of punishing the officer by causing some significant prejudice to the officer in response to the officer’s misconduct or unsatisfactory performance: [5]

Police Service Board v Morris (1985) 156 CLR 397; [1985] HCA 9, referred to.

In characterising the objective purpose and effect of a transfer the impact on the officer’s remuneration will be of significance. Where the impact is adverse and considerable, the prejudicial effect of the transfer may be obvious. However, an incidental impact on remuneration may lead to the conclusion that the purpose and effect is not prejudicial to the officer: [11]

Per White JA

A transfer order under s 173 will almost invariably be for the purpose of maintaining good order and discipline of the service, but the concept of discipline in the adjective “non-disciplinary” is to the narrower concept of punishment: [17]-[18], [27], [29]-[31]

Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42; Director-General Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102, referred to.

The term ‘non disciplinary transfer’ refers to a transfer that does not carry the dominant purpose of punishment; rather it is for a dominant remedial purpose: [27], [32]

Commissioner of Police v Skelly [2010] NSWIR Comm 18, affirmed.

Per Barrett AJA

In the particular context, “discipline” is a process through which coercive correction is exerted for the purpose of promoting efficiency, morale and attention to duty so that public confidence in the ability of the police force to protect the public may be maintained. Every action ordered under s 173(2) is, of its nature, a response to misconduct and must therefore be seen as “disciplinary”, unless it lacks the central characteristic of “discipline” so understood. [114], [116], [120]-[121]

Hughes v Whitmer 714 F 2d 1407 (1983); Personnel Board of Jefferson County v Bailey 475 So 2d 863 (1985), referred to.

There is no distinction to be made between ‘disciplinary transfers’ and ‘administrative transfers’ and equally no distinction to be made between transfers directed to penalise or punish serious misconduct and those which are directed at rehabilitating an officer. The presence of coercive correction is determinative: [112]-[115] [118], [120]

Poanga v State Services Commission [1985] 2 NZLR 385; Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42; Director-General Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102, referred to.

Commissioner of Police v Skelly [2010] NSWIR Comm 18, overruled.

Judgment

1. MACFARLAN JA: For the reasons set out below, I agree with the orders that Barrett AJA proposes. I am grateful to his Honour for his thorough examination of possible aids to performing the difficult task of determining the meaning of the undefined expression “non-disciplinary transfer” in Schedule 1 of the Police Act 1990 (NSW). My judgment assumes that the reader is familiar with the terms of his judgment.

2. The Commissioner of Police’s powers conferred by s 173 of the Act to take action with respect to a police officer are dependent upon findings of the officer’s misconduct or unsatisfactory performance (as to the latter, see s 173(3)). By reason of s 174, any action by the Commissioner that constitutes “reviewable action” can, as the words used suggest, be the subject of an application for review by the Industrial Relations Commission. “Reviewable action” is defined by s 173(1) to mean action by the Commissioner under s 173(2) which is not “non-reviewable action” as referred to in Schedule 1 to the Act.

3. The actions listed in Schedule 1 are in general terms clearly of a less prejudicial character from the point of view of the officer than others that the Commissioner may order under s 173(2) to be taken. That accords with what was no doubt the general intent of the provisions to provide that where an officer was likely to be seriously prejudiced by an action ordered under s 173, he or she would effectively have a right of appeal against the order.

4. It also accords with the terms in which the following item of non-reviewable action listed in Schedule 1 is expressed:

“change of shift (but only if the change results in no financial loss and is imposed for a limited period and is subject to review).”

5. The adjective “non-disciplinary” before the word “transfer” in Schedule 1 is suggestive of the same point. In this context the word “discipline” (and its derivatives) in my view refers to “punishment inflicted by way of correction and training” (Macquarie Dictionary, online version, 3rd listed meaning). To my mind therefore, a “non-disciplinary transfer” is one that does not have the purpose and effect of punishing the officer by causing some significant prejudice to the officer in response to the officer’s misconduct or unsatisfactory performance.

6. In one sense of the word “discipline,” all orders able to be made by the Commissioner under s 173 in response to misconduct or unsatisfactory performance are disciplinary because they will have the purpose of improving the efficiency of the police force, whether by way of punishment of the officers concerned or by non-punitive measures such as transfers within the police force that are not detrimental to the officers’ interests. This is the broad sense in which Brennan J used the word in Police Service Board v Morris (1985) 156 CLR 397 at 412; [1985] HCA 9.

7. Section 173 of the Police Act, when taken with Schedule 1, however requires the adoption of a narrower meaning of “discipline” because it specifically envisages that an action ordered by the Commissioner under s 173(2) may not be disciplinary. This is so because Schedule 1 refers to a “non-disciplinary transfer” as one of the orders that the Commissioner may make under s 173(2).

8. The meaning of “discipline” which I have adopted is an accepted meaning of the word. Its adoption conforms with the language of s 173 and Schedule 1 and reflects the statutory intent to which I have referred of conferring a right of review on an officer against whom an action prejudicial to him or her has been ordered.

9. There remains a question of whether it is necessary for the right of review to arise that both the purpose and the effect of the transfer ordered by the Commissioner be punitive. For the reasons given below, both were the case in respect of the present order. I would therefore leave this question for consideration if and when it arises as a determinative issue in future proceedings.

10. In the absence of any indication in the legislation that the correct characterisation of a transfer is to be determined by ascertaining the Commissioner’s subjective purpose in making it, its purpose and effect, and hence its characterisation, is in my opinion to be determined objectively, based upon all the circumstances, including as a factor, although not a determinative one, the Commissioner’s characterisation, if any, of the transfer. In this respect, I therefore respectfully disagree with the primary judge’s view that the characterisation is “a matter for evaluative judgment for the Commissioner” (Judgment at [89]). It follows that the question for the Supreme Court on a judicial review application is not, as the primary judge found, whether it was “open to the Commissioner to treat the action as a ‘non-disciplinary’” transfer (Judgment at [92]) but rather whether the transfer was in fact “non-disciplinary” in character.

11. In characterising the objective purpose and effect of a transfer, the impact on the officer’s remuneration will in my view be of significance, although again not necessarily determinative. Where the impact is adverse and considerable, the prejudicial effect of the transfer may be obvious. A minor, incidental impact on remuneration may lead to a different result.

12. As to the objective characterisation of the transfer presently under consideration, I agree with Barrett AJA’s conclusions as follows (at [121]):

“In the present case, the transfer ordered by the Commissioner under s 173(2) on 7 August 2018 had very clear elements of coercive correction. The order identified the particular transfer as ‘a remedial measure’ to ‘assist’ the officer ‘in modifying and adjusting [his] behaviour’. Curtailing of the Officer’s independence of action by placing him under increased supervision for the express purpose of bringing about modification and adjustment of behaviour that had been found to be misconduct was the rationale for the transfer. That was made plain on the face of the order. The transfer was accordingly not a ‘non-disciplinary transfer’”.

13. As I have pointed out, the Commissioner’s characterisation of the transfer as “non-disciplinary” is not conclusive. The reasons that he gave for the transfer, as distinct from the label he gave to it, indicate that it was in fact disciplinary in character, certainly when considered with the fact that the transfer would cause the officer to lose his entitlement to a Special Duties Allowance which was not argued in the proceedings to be insignificant in amount. The transfer was prejudicial to the officer and was therefore not a “non-disciplinary transfer” as referred to in Schedule I to the Act. Accordingly, the officer had a right to have the transfer decision reviewed.

14. WHITE JA: The circumstances giving rise to this appeal are fully set out in the reasons for judgment of Barrett AJA which I have had the advantage of reading in draft. His Honour’s exposition of those circumstances and the relevant statutory provisions allows me to state my reasons concisely. The issue is whether the order dated 7 August 2018 made by the Commissioner of Police through his delegate transferring the Officer from the State Surveillance Branch to the Chatswood Police Station following a finding of misconduct was “non-reviewable action” within the meaning of s 173(1) of the Police Act 1990 (NSW) by reason of its being a “non-disciplinary transfer” within the meaning of Sch 1 of that Act.

15. What is meant by a “non-disciplinary transfer” in Sch 1 requires consideration of what would be a “disciplinary transfer” (an expression not used in the Act) which in turn depends upon the meaning to be given to “discipline”.

16. Discipline is an ambiguous term. Depending upon context, so far as relevant for present purposes, it can mean the imposition of punishment, or it can mean the taking of action to maintain or enhance the good order and functioning of the service, or it can mean both. The distinction is drawn by Brennan and Toohey JJ in Re Tracy; ex parte Ryan (1989) 166 CLR 518; [1989] HCA 12 at 564 in the passage quoted by Barrett AJA at [96].

17. It is difficult to envisage any circumstance in which a transfer of a police officer, who has been found to have engaged in misconduct, to different duties, where the transfer is a consequence of that finding, would not be a disciplinary transfer in the sense that the transfer was regarded as appropriate for the maintenance or enhancement of the good order and discipline of the service. The examples hypothesised by Barrett AJA (at [120]) are examples where a finding of misconduct was irrelevant to a transfer.

18. But the fact that non-disciplinary transfer is identified as one item of non-reviewable action in Sch 1, being action that can be taken with respect to a police officer who engages in misconduct, and evidently, from the context of the section, as a response to a finding that the police officer engaged in misconduct, provides a textual indication that a disciplinary transfer should not extend to corrective coercion considered appropriate for the maintenance of good order and discipline of the force, but should have a narrower meaning so as to give the reference to a non-disciplinary transfer work to do.

19. The obvious narrower meaning of discipline (to be used to construe “non-disciplinary transfer”) is action taken for the purpose of imposing punishment on the police officer found to have engaged in misconduct.

20. Section 33 of the Interpretation Act 1987 (NSW) requires the adoption of a construction that would promote the purpose or object underlying the relevant statutory provision. Section 34 permits consideration of extrinsic material where the provision to be construed is ambiguous, or to confirm that the meaning of the provision is the ordinary meaning conveyed by the text.

21. The Royal Commission into the New South Wales Police recommended change to the then system for the management of complaints and discipline within the Service. The Commission recommended that:

“... the Service should endeavour to move from the formal adversarial model to a more managerial or remedial model that places the responsibility on commanders at patrol or equivalent level to deal with complaints and matters of discipline.”

22. The Royal Commission also stated:

“4.29   While the expectation is that resort to behavioural management strategies rather than punishment will be sufficient in most cases, there will be occasions of serious misconduct where, although falling short of justifying dismissal or criminal prosecution, some form of personal detriment will be required to act as a deterrent, and to meet the reasonable expectations of a complainant. It is for this reason that the managerial process needs to include a disciplinary component, although resort to the latter should occur only when the Local Commander is satisfied that simple remedial intervention is insufficient.

…

4.33   The options available in the case of bad performance should fall into two categories, one of which is reviewable and the other which is not.

Non-Reviewable

●   informal discussion with the officer to elicit the cause of the behaviour attracting concern, and the ways in which improvement can be achieved, including:

- retraining;

- counselling;

- personal development;

- supervision;

- transfer from a particular area of work;

- assignment to work with a mentor;

- change of shift;

- referral to welfare, for example, in cases involving difficulties in personal relationships or substance abuse;

- presentation of a report;

●   conciliation or other form of problem solving, involving the complainant;

●   caution; ·

●   reprimand;

●   restriction of duties; and ·

●   transfer to uniform.

Reviewable

●   fine [Fines should be reviewable only if they exceed five penalty units. A limit of 50 penalty units should be imposed.];

●   deferral of an increment;

●   loss of seniority;

●   reduction in salary;

●   annulment of an appointment;

●   demotion or reduction in rank or position; and ·

●   dismissal for want of Commissioner’s confidence [See paras. 4.89 - 4.95.].

4.34    It is anticipated that in cases of serious misconduct involving a criminal offence, the Service would prosecute the officer concerned and/or invoke the dismissal procedure. In those cases, however, where for technical reasons the evidence or information available would not be admissible in a prosecution, [eg. where it was obtained under compulsion] a managerial disciplinary outcome falling within the reviewable category might be necessary. Otherwise, the Local Commander would not be expected to use any of the reviewable options unless satisfied that there was no option within the non-reviewable category appropriate for the circumstances of the particular case.

4.35   Suspension and transfer would not, in the model proposed, be regarded as disciplinary options. Rather, they would be regarded as a procedural adjunct permitting:

●   removal of an officer from all duty (suspension), or from existing duties (transfer), pending resolution of the complaint and disciplinary process; and

●   a management trial in the case of transfer, where in the interests of the Service, or member, physical relocation or change in the    area of work is necessary.

As such neither would be the subject of review.” (Emphasis added)

23. The Royal Commission Report did not use the expression “non-disciplinary transfer” but it did state that transfers from a particular area of work, or transfer to uniform, should not be regarded as disciplinary options. It distinguished these from the imposition of “some form of personal detriment … required to act as a deterrent”, i.e. punishment.

24. As a result of the Royal Commission’s report, Pt 8A in Div 1 and 1A of Pt 9 of the Police Act were inserted by the Police Service Amendment (Complaints and Management Reform) Act 1998 (NSW). This Act enacted s 173 and Sch 1 in materially the same terms as they now appear.

25. In the Minister’s Second Reading Speech for the Police Service Amendment (Complaints and Management Reform) Bill the Minister stated:

“... the royal commission was firmly of the view that the Police Service should move from a formal adversarial model to a more managerial or remedial model. Such a model would place responsibility on commanders at local area level to deal with complaints and detect and deal with other cases of misconduct or unsatisfactory performance. This bill implements the legislative changes required to enable this to occur.

Under the amendments to part 9 of the Act, the outdated discipline system, based on proving discipline charges in an adversarial manner and imposing punishment, is replaced. The Police Tribunal is abolished, as are appeals to GREAT – Government and Related Employees Appeal Tribunal – in relation to part 9 matters. The bill establishes a framework which places primary responsibility on front-line managers for the conduct and performance of their staff. Managers will determine the appropriate response to each case of misconduct or poor performance, whether it comes to their attention through the complaints system or through day-to-day management.

...

Emphasis will be placed on using appropriate modern management tools to improve performance and correct instances of minor misconduct. These tools include coaching, mentoring, training and development, counselling, increased professional, administrative or educational supervision, and performance enhancement agreements. Other approaches will also be available for use where necessary. These can include issuing a reprimand, imposing restricted duties, the recording of adverse findings and a change of shift for a limited period.

In accordance with royal commission recommendation 72, sanctions of reduction in rank or grade, reduction in seniority and deferment of an increment will be available for the more serious cases in which some form of personal penalty is required to act as a deterrent. In accordance with royal commission recommendation 74, a right of review to the Industrial Relations Commission is available for these sanctions as their imposition may have a financial impact on the officer concerned.”

26. Although the language adopted by Parliament in Schedule 1 (“non-disciplinary transfer”) was different from the language in the Royal Commission report, it is clear from the Minister’s Second Reading Speech that the amendments made by the Police Service Amendment (Complaints and Management Reform) Act 1998 were intended to implement the Royal Commission’s recommendations. Those recommendations were that in the case of less serious conduct, a transfer from a particular area of work, or a transfer to uniform, should be regarded as a managerial action with a primarily remedial focus that was not to be reviewable through the Industrial Relations Commission.

27. The extrinsic material clearly demonstrates that the purpose and object of s 173 and Sch 1 was not that transfers made as a consequence of a finding or allegation of misconduct made as a managerial response to enhance the good order and discipline of the Service should be regarded as a disciplinary transfer (and therefore not a non-disciplinary transfer). The extrinsic material confirms the meaning of “non-disciplinary transfer” that I would infer from the text and context of s 173 and Sch 1 that it is a transfer not made for the dominant purpose of punishment. This conclusion is substantially in accordance with the conclusion reached by the Full Bench of the Industrial Relations Commission in Commissioner of Police v Skelly (2010) 192 IR 915; [2010] NSWIR Comm 18.

28. The primary judge said:

“84   ... I am not persuaded that it is a useful or workable distinction to say, as the IRC did at [51], that the purpose of a non-disciplinary transfer is ‘remedial’ whereas the purpose of a disciplinary transfer is ‘punishment’. If the Commissioner purported to transfer someone for ‘remedial’ purposes but the transfer was, on any reasonably objective basis, punitive, it would not be an answer to say that the Commissioner’s stated purpose was determinative if it was, in effect, colourable.

85   Further, one of the central tenets of those parts of the Wood Report extracted above was, as the Full Federal Court said in Hardcastle v Commissioner of Police at 597, that the object of disciplinary action was to protect the public, maintain proper standards of conduct by the police force and protect its reputation and not to punish. Since that decision, the High Court in Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 (Rich v ASIC) has pointed out the difficulties of distinguishing between ‘punitive’ and ‘protective’ orders and describd any such distinction as ‘elusive’: [32] Gleeson CJ, Gummoy, Hayne, Callinan and Heydon JJ).”

29. Contrary to the primary judge’s observation at [84] I do not understand the Industrial Relations Commission in Commissioner of Police v Skelly to have suggested that if the Commissioner purported to transfer a police officer for remedial purposes, but the transfer was, on any reasonably objective basis punitive, that the Commissioner’s stated purpose would be determinative. Nor is Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 inconsistent with the Commission’s judgment. In Rich v ASIC the majority of the High Court held that directors were entitled to maintain the privilege against self-exposure to a penalty or forfeiture as an answer to an order for discovery of documents irrespective of whether the proceeding for imposition of civil penalties was regarded as essentially “protective” rather than “punitive” (at [31]). It was in that context that the majority said (at [32]) that:

“... the supposed distinction between ‘punitive’ and ‘protective’ proceedings or orders suffers from the same difficulties as attempting to classify all proceedings as either civil or criminal. (At best the distinction between ‘punitive’ and ‘protective’ is elusive.” (Citation of authority omitted)

30. That is not to deny that there is a difference between a remedial purpose of an order for transfer and a punitive purpose for such an order.

31. But those purposes are not necessarily inconsistent and an order for transfer for a remedial purpose may have a punitive effect (Director-General Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]). For this reason I consider that if it appears to the Court that the dominant purpose of the Commissioner (or his delegate) was remedial and managerial, that is, for the maintenance or enhancement of the good order of the Service, and not to impose punishment, the transfer should be characterised as a non-disciplinary transfer within the meaning of Sch 1. I do not accept that merely because a transfer for a remedial purpose may have a disciplinary effect that the transfer should be regarded as disciplinary rather than non-disciplinary.

32. The question then is whether the transfer in issue in the present case was made for a dominant remedial purpose of modifying the Officer’s behaviour or for the dominant purpose of punishing him.

33. The primary judge said:

“90   The only unequivocal financial detriment to the Officer from the transfer, as Mr Gibian ultimately accepted, was the loss of the entitlement to an allowance for special duties as his duties at the new location would no longer necessarily fall within a category which attracted the allowance. The Officer would retain his rank (of Constable) and grade of Senior Constable. Although he would be required to wear a uniform, it would be provided to him and he would be relieved of the obligation to purchase his own plain clothes from the allowance which was designed to cover such expenditure. It is plain from the reasons for the Order that the reason, or purpose, of the transfer was to help him to modify and adjust his behaviour in circumstances where he would have greater supervision and work in a ‘less insulated environment where [the Officer] will have the support from a greater number of supervisors’.

91   Such action as was required under the Order would appear to be precisely the sort of action which the Wood Report contemplated as being ‘non-reviewable’ because it was, in essence, an operational and managerial response to established ‘misconduct’ (to use the words of s 173) or ‘bad performance’ (to use the words of the recommendation from the Wood Report at 4.33 extracted above).

Conclusion

92 Having regard to the limits of this Court’s jurisdiction, which are confined to errors of law on the face of the record or jurisdictional errors, the question for this Court is whether it was open to the Commissioner, in the circumstances disclosed by his reasons, which form part of the record, to regard the transfer the subject of the Order as a non-disciplinary transfer. The plaintiffs have failed to make out any error of law in the Order and have failed to persuade me that it was not open to the Commissioner to treat the action as a ‘non-disciplinary transfer’, which was, accordingly, non-reviewable action within the meaning of s 173.”

34. The wording of para [92] is unfortunate. As both Macfarlan JA and Barrett AJA say, the question is not whether it is open to the Commissioner to regard the transfer the subject of the order as a non-disciplinary transfer, but whether as characterised by the Court, the transfer is in fact non-disciplinary. It may be that the primary judge was merely seeking to emphasise that as the summons sought prerogative relief on the basis of error on law on the face of the record, the Court’s assessment of the Commissioner’s purpose is confined to what appears on the record.

35. No submissions were made as to the scope of remedies by way of judicial review. Prima facie, if the transfer order were reviewable action, and not non-reviewable action within the meaning of s 173, the Commissioner acted beyond jurisdiction, and prerogative relief would not be confined to relief in the nature of certiorari to quash an error of law on the face of the record.

36. In any event, in the present case, the only evidence of the purpose of the delegate of the Commissioner is contained in the transfer order, the final section of which is quoted by Barrett AJA (at [56]).

37. Barrett AJA takes an expansive view of what constitutes a disciplinary transfer, and hence a narrow view as to what constitutes a non-disciplinary transfer (at [116], [118] and [120]). He concludes that the transfer ordered by the Commissioner had very clear elements of coercive correction that involved curtailing the Officer’s independence of action by placing him under increased supervision for the expressed purpose of bringing about modification and adjustment of behaviour that had been found to be misconduct and which was the rationale for the transfer. It is for this reason that Barrett AJA concludes that the transfer was not a non-disciplinary transfer.

38. Macfarlan JA agrees with Barrett AJA’s description of the order, as do I. Nonetheless, although Macfarlan JA adopts a narrower meaning of “discipline” as referring to punishment inflicted by way of correction and training, and hence regards a non-disciplinary transfer as being one that does not have the purpose and effect of punishing the Officer by causing significant prejudice to the Officer in response to the Officer’s misconduct or unsatisfactory performance (Judgment [5]), his Honour characterises the transfer as being disciplinary in character.

39. The fact that the order is coercive, that is, it has to be obeyed for so long as the Officer is a police officer, does not determine whether it is disciplinary or non-disciplinary in character. Adopting Barrett AJA’s characterisation of the order, in my view, the curtailing of the Officer’s independence of action by placing him under increased supervision for the purpose of modifying and adjusting his behaviour shows that the transfer was not for the dominant purpose of punishing the Officer, but rather for correcting his behaviour so as to manage his anger and encourage him to deal with his colleagues respectfully. The purpose was remedial and not disciplinary in the narrower sense.

40. I agree with Barrett AJA and with the primary judge that the principal ground upon which the Officer contended that the transfer was not a non-disciplinary transfer (namely, that any involuntary transfer pursuant to s 173(2) to a position attracting lower remuneration is a disciplinary transfer, should be rejected. Section 69(2)(b) expressly contemplates that an Officer may be transferred to a lower level of remuneration, if the transfer is made pursuant to an order under s 173. Section 173 when read with Sch 1 expressly contemplates such a transfer, if it is non-disciplinary.

41. As the primary judge observed, one of the items of non-reviewable action provided for in Sch 1 is the Officer being placed upon restricted duties. Such a placement would be likely to affect adversely the officer’s remuneration. Moreover, recording of adverse findings is also non-reviewable action within Sch 1 which could be expected to have medium or long-term adverse financial consequences. The facts of a particular case might show that a transfer to a substantially lower level of remuneration was made for the dominant purpose of punishing the officer found guilty of misconduct, but that is not this case.

42. For these reasons I would grant leave to appeal, but order that the appeal be dismissed with costs.

43. BARRETT AJA: These proceedings raise an important question of statutory construction concerning the conditions of service of non-executive members of the New South Wales Police Force. The proceedings concern the involuntary transfer of Senior Constable Nicholas Gardner (referred to below as “the Officer”) from his position as a surveillance operative within the State Surveillance Branch to a general duties position at Chatswood police station by order of the Commissioner of Police (“Commissioner”).

Statutory provisions

44. It will be necessary to consider a number of provisions of the Police Act 1990 (NSW). The provision most directly relevant is s 173 which is the first section in Division 1 (headed “Misconduct and unsatisfactory performance”) of Part 9 (headed “Management of conduct within NSW Police Force”). The full text of s 173 is set out in the Appendix. Also included in the Appendix is the content of Schedule 1 to the Act, referred to in the definition of “non-reviewable action” in s 173(1).

45. Another provision of the Police Act to which particular reference was made in submissions is s 69 which appears in Division 2 (headed “Appointment of non-executive police officers”) of Part 6 (headed “Non-executive police officers”). Section 69 concerns the transfer of police officers and is also set out in the Appendix.

The central issue in brief

46. The issue for determination, briefly stated, arises from the following aspects of the Police Act:

1. Section 69 empowers the Commissioner to transfer an officer holding a non-executive police officer position to another such position if the Commissioner “considers it to be in the interests of the NSW Police Force to do so” and if the position to which the transfer is to be made is within one of several specifications in s 69(2). [1]

   1. The condition in s 69(2)(c) concerning transfer from certain superintendent positions is ignored in this discussion.

2. Section 69(2)(b) allows transfer to a position that attracts a level of remuneration lower than that applicable to the officer’s present position only if either the transfer is voluntary (in that the officer has requested it or consents to it) or the transfer is pursuant to an order made by the Commissioner under s 173.

3. Section 173(2) (the provision within s 173 relevant to this particular case), empowers the Commissioner to make an order that action be taken “with respect to a police officer who engages in misconduct”. [2]

4. Section 173 distinguishes between “reviewable action” (which attracts certain kinds of procedural protections for an officer) and “non-reviewable action” (which does not). [3]

5. While s 173(2) does not confer an explicit power to order transfer of an officer who engages in misconduct, the identification of “non-disciplinary transfer” in Schedule 1 as one kind of “non-reviewable action” that may be ordered under s 173(2) indicates that the power to make orders extends to the making of an order for transfer. [4]

1. The Act makes no attempt to define or explain the expression “non-disciplinary transfer”.

2. There is accordingly no explicit identification of the features of a transfer ordered under s 173(2) in respect of an officer who engages in misconduct that causes the transfer to be “reviewable action” or “non-reviewable action”.

   2. Section 173 deals also with cases of unsatisfactory performance. Section 173(3) empowers the Commissioner to order that action referred to in s 173(2) be taken with respect to a police officer whom the Commissioner has required to participate in a remedial performance program prescribed by the regulations and whose performance as a police officer after having participated in that program is, in the Commissioner’s opinion, still unsatisfactory.

   3. The procedural protections are those provided for in s 173(5) and (6). Section 173(10) preserves the jurisdiction of the Supreme Court to review administrative action.

   4. This construction is confirmed by the fact that s 69(2)(b)(ii) contemplates orders for the transfer of officers being made under s 173.

47. It is not in dispute in this case that the Officer had engaged in misconduct and was transferred involuntarily by a s 173(2) order to another non-executive position. There is an issue whether that new position attracted a level of remuneration lower than that which the Officer had enjoyed before the transfer. That turns on the meaning of “remuneration” and the status of a “general service allowance” that was payable in respect of the former position but not in respect of the position to which the Officer was transferred. It is appropriate to proceed initially on an assumption that the new position attracted lower remuneration. On that footing, the Commissioner maintains that the transfer was, as referred to in s 173(1), “non-reviewable action”, while the position taken by the Officer’s representative is that the case was one of “reviewable action”.

The proceedings

48. In proceedings determined in the Common Law Division on 20 May 2019, [5] Adamson J (“the primary judge”) dismissed a summons seeking judicial review of the decision of the Commissioner making an order for the transfer of the Officer to the position at Chatswood police station.

    5. Police Association of New South Wales v State of New South Wales [2019] NSWSC 587.

49. In this Court, a summons seeking leave to appeal and the appeal itself were heard concurrently. [6]

    6. The need for leave to appeal arises from the fact that the amount in issue (related to allowances payable to police officers in certain positions) is below the threshold specified in s 101(2)(r) of the Supreme Court Act 1970.

Facts

50. The facts were not in dispute before the primary judge. On 7 August 2018, a senior officer of the News South Wales Police Force, acting under delegation from the Commissioner, made an order for transfer of the Officer from his position within the State Surveillance Branch to the position at Chatswood police station.

51. The order of the Commissioner’s delegate was communicated by a document of thirteen closely typed pages addressed to the Officer and headed “NON-DISCIPLINARY TRANSFER ORDER”. In an opening section headed “Background”, the document set out facts (or alleged facts) concerning several distinct events or courses of conduct. That section occupied a little over nine pages. Then followed sections headed respectively “Allegation 1”, “Allegation 2” and “Allegation 3”.

52. The section headed “Allegation 1” commenced:

I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 3 Jun 2017, you behaved in an unprofessional manner when you made inappropriate and threatening comments to Senior Constable [W].

In the circumstances, I conclude that your conduct was contrary to the Police Act 1990, and the NSW Police Force Code of Conduct and Ethics.

53. That section then set out s 7 of the Police Act and referred to parts of the NSW Police Force Code of Conduct and Ethics.

54. The section headed “Allegation 2” was in these terms:

I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that on 16 March 2016, you behaved in an unprofessional manner when you made inappropriate and threatening comments to Senior Constable [K].

In the circumstances, I conclude that your conduct was contrary to the Police Act 1990 and the NSW Police Force Code of Conduct and Ethics as set out above in Allegation 1.

55. The section headed “Allegation 3” was as follows:

I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that between February 2017 and July 2017, you engaged in bullying behaviour towards Senior Constable [M].

In the circumstances, I conclude that your conduct was contrary to the Police Act 1990, Points 1, 3 and 4 of the NSW Police Force Code of Conduct and Ethics (points 1 and 4 set out above in Allegation 1), the NSW Police Force Handbook (in force at the time), and the NSW Police Force Respectful Workplace Behaviour Guidelines.

56. The final section of the order was headed “Consideration” and was in these terms:

You should be in no doubt that I am very concerned about these matters. I consider it particularly important that all sworn officers conduct themselves in a manner that is consistent with the highest standards of behaviour on and off duty. Your conduct described above falls short of those standards.

In relation to Allegations 1 and 2, your conduct towards your two female colleagues was threatening and intimidating and entirely inappropriate and unprofessional. I am alarmed that this behaviour has occurred on two occasions within a short period of time. These incidents were serious enough that both Senior Constable [K] and Senior Constable [W] expressed concerns about working with you.

In relation to Allegation 3, it appears you are unaware of your obligations under the Respectful Workplace Behaviours Guidelines which make it clear that bullying and harassment can occur regardless of whether there was an intention to bully or harass the person. Your conduct towards Senior Constable [M] demonstrates a lack of insight into your behaviour. There is no excuse for a police officer with your experience, who regularly relieves in a Sergeant’s role, to engage in behaviour towards another police officer that is intimidating and is a potential risk to that officer’s health and safety.

The effect of your conduct on Senior Constable [M] was such that it was a contributing factor to the officer seeking a transfer out of the State Surveillance Branch.

I am particularly concerned that an officer with your length of service, training and experience appears incapable of respectful and appropriate behaviour not only in the workplace but also when encountering your colleagues off duty.

When considering the managerial action available to me, I have regard for the fact you will be warned by the Region Commander. This should leave you in no doubt as to the serious nature of your misconduct. However, to assist you in modifying and adjusting your behaviour I have decided to impose a remedial measure.

I have determined that it is in your best interests and in the interest of the NSW Police Force for you not to remain at SSB [State Surveillance Branch] but for you to be transferred to a new command. At this new command you will be under a new Senior Management Team with the opportunity for greater supervision and support. I note you have been at SSB since 2008. A new location will allow you to build relationships with new colleagues and to work in a less insulated environment where you will have the support from a greater number of supervisors. This new opportunity will assist you to address your behaviour in particular your anger issues and your attitude towards other police officers, so you can reach the high standards of conduct that are expected.

Accordingly, I hereby order that non-reviewable action under s 173(2), Schedule 1, of the Police Act 1990, being a non-disciplinary transfer to Chatswood Police Station, North Shore Police Area Command, be taken.

As stated above, this Order is not intended as a punitive or disciplinary sanction. Instead my intent in making this Order is to implement remedial action which I believe is required to support you to reach the standards expected of you. The transfer is designed to ensure you meet these obligations.

This Order takes effect on the date on which it is made. In making this order, I reinforce the need for you to act at all times in accordance with the obligations and requirements of the Police Act 1990, the Police Regulation 2015 and the NSW Police Force Code of Conduct and Ethics.

Any continued misconduct may result in further management action, which may include consideration of reviewable action under s 173(2) of the Police Act 1990 or removal under s 181D of the Police Act 1990.” (Emphasis in original.)

57. The last page of the document set out s 7 of the Police Act (headed “Statement of values of members of NSW Police Force”):

Each member of the NSW Police Force is to act in a manner which:

(a) places integrity above all,

(b) upholds the rule of law,

(c) preserves the rights and freedoms of individuals,

(d) seeks to improve the quality of life by community involvement in policing,

(e) strives for citizen and police personal satisfaction,

(f) capitalises on the wealth of human resources,

(g) makes efficient and economical use of public resources, and

(h) ensures that authority is exercised responsibly.

58. Several aspects of the document may be noted. First and as already mentioned, the heading identified the order as one for “non-disciplinary transfer”. Second, the stated conclusion in relation to each allegation was that the officer had engaged in conduct “contrary to” both the Police Act and the NSW Police Force Code of Conduct and Ethics. Third, the Commissioner’s delegate expressed, in several places, “concern” about the officer’s conduct, describing it as inappropriate and unprofessional. Fourth, the delegate identified matters to which he had had regard in considering “the managerial action available to him” and said that he had “decided to impose a remedial measure” to “assist” the officer “in modifying and adjusting [his] behaviour”. Fifth, there followed a description of what the delegate had decided was “in your best interests, and in the interests of the NSW Police Force”, namely, transfer to a new command. Sixth, the reasons why that course was considered appropriate were stated: it provided an opportunity for the officer to have greater supervision and support from a new senior management team, an opportunity to build relationships with new colleagues and to work in a less insulated environment with support from a greater number of supervisors and an opportunity for the officer to address his behaviour (particularly anger issues and his attitude towards other police officers) thereby enabling him to reach the high standards of conduct expected of him. Seventh, the operative words of the order included “non-reviewable action under s 173(2), Schedule 1, of the Police Act 1990, being a non-disciplinary transfer”.

59. The heading and the operative words thus showed an intention of the Commissioner’s delegate that the order should be understood as directing “non-reviewable action” in the form of “non-disciplinary transfer”. The remainder of the content had two essential purposes: first, to point out that the officer’s conduct was “contrary to” both the Police Act and the NSW Police Force Code of Conduct and Ethics and therefore a source of concern; and, second, to represent the transfer as a “remedial measure” to “assist” the officer, imposed as a “managerial action” and in order to provide the officer with the several identified opportunities for self-improvement.

The decision of the primary judge

60. The principal issue before the primary judge was whether it was open to the Commissioner, as a matter of law, to treat the order for the Officer’s transfer as “non-reviewable action” within the meaning of s 173(1) – a question that turned on whether the order effected a “non-disciplinary transfer”. [7]

    7. Primary judgment at [13].

61. After setting out the facts, her Honour considered the relevant legislative history and statutory framework, noting that, before the Royal Commission into the New South Wales Police Service (the Final Report of which was submitted to the Government in 1997), s 6 of the Police Regulation (Appeals) Act 1923 (NSW) gave a right of appeal to any member of the police force who was “dissatisfied” with any “punishment” administered by the Inspector-General that resulted in a fine, suspension, or reduction in rank or pay, dismissal or discharge, or transfer. [8] Section 182 of the Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 (NSW) which succeeded that Police Regulation (Appeals) Act was in similar terms.

    8. Primary judgment at [16].

62. The primary judge noted that the legislative reaction to the Final Report of the Royal Commission had substantially reformed the police disciplinary system by replacing a “formal adversarial model” with a “more managerial or remedial model”, with first recourse being to “remedial rather than punitive action”; but, in addition, “the managerial process needs to include a disciplinary component, although resort to the latter should occur only when the Local Commander is satisfied that simple remedial intervention is insufficient”. It was also recommended that cases of “bad performance” should be approached by reference to categories of “reviewable” and “non-reviewable” consequences, with “transfer from a particular area of work” and “transfer to uniform” placed within the “non-reviewable” category. The Report recommended that “reviewable” options not be used unless “there was no option within the non-reviewable category appropriate for the circumstances of the particular case”. [9]

    9. Primary judgment [18]-[21].

63. The primary judge next considered the Second Reading Speech for the Police Service (Complaints and Management Reform) Bill (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 October 1998) and the statement of the Minister for Police that the amendments to Part 9 of the Police Service Act (as the Police Act was then known) were “based on the recommendations in chapter 4” of the Royal Commission Report. Her Honour quoted part of the Minister’s speech in which it was said that reduction in an officer’s rank, grade, seniority or deferment of an increment would be reviewable by the Industrial Relations Commission and that a right of review to the Commission would be available if a sanction imposed a financial impact on the officer concerned. [10]

    10. Primary judgment at [22].

64. Her Honour noted [11] that the legislation of 1998 which was designed to implement the recommendations of the Royal Commission Report did not precisely replicate those recommendations and, in particular, the words “transfer from a particular area of work” and “transfer to uniform” described as “non-reviewable” options in the Report, were replaced by “non-disciplinary transfer” in Schedule 1. Her Honour also noted that neither s 173 nor Schedule 1 reflected the Minister’s statement that a sanction that had a financial impact on an officer broadly speaking would be reviewable. Instead, the three matters to which the Minister referred, namely a reduction in rank or grade, reduction in seniority or deferment of increment, were expressly provided for in s 173(2)(a), (b) and (c) as reviewable actions.

    11. Primary judgment at [26].

65. Having recited that background and noted the relevant statutory provisions, the primary judge turned to the expression “non-disciplinary transfer” and said that it was necessary to identify what made a transfer “disciplinary”. [12] Her Honour said that the word “non-disciplinary” in the Schedule 1 could not bear its usual meaning since it was contemplated that a “non-disciplinary transfer” could be made pursuant to s 173(2) after a finding that an officer had engaged in “misconduct” and the consequences of such a finding would generally be regarded as “disciplinary”. Her Honour rejected the argument that a “non-disciplinary transfer” was one that fell within s 69(2)(a), (b)(i) or the first part of (b)(ii), since s 173 and Schedule 1 contemplate that a “non-disciplinary transfer” may be made under s 173. Accordingly, it was said, a finding of misconduct cannot be used to distinguish a “non-disciplinary transfer” from any other.

    12. Primary judgment at [77].

66. The primary judge then gave attention to the several items in Schedule 1 and the features that distinguish them from matters not there listed. In doing so, her Honour posed this question: “what do the actions in Schedule 1 have in common that is lacking in the actions which are specified in s 173(1)(a), (b) and (c) and other reviewable actions under s 173(1)(d)?”. In answering that question, [13] her Honour grouped the actions in Schedule 1 into three categories: (1) generally remedial actions, such as coaching, mentoring, training and development, (2) actions classically punitive but with a corrective purposes such as reprimand, warning and recording of adverse findings and (3) actions altering work arrangements such as a “non-disciplinary transfer”, a change of shift without financial loss and restricted duties.

    13. Primary judgment at [87].

67. On the view the primary judge took, [14] the purpose of all actions at the disposal of the Commissioner under s 173(2), whether reviewable or non-reviewable, could be assumed to be remedial, even though, from the officer’s point of view, there might be, in every case, an element of “penalty”. For example, increased supervision might be regarded by an officer as punitive as it removes an element of autonomy and independence notwithstanding the fact that it could be characterised as being generally remedial in nature.

    14. Primary judgment [86]-[88].

68. Her Honour was of the opinion that neither the purpose nor the effect of an order was a reliable arbiter of the matters listed in Schedule 1. An argument that financial loss to the officer determined the difference between non-disciplinary and disciplinary transfers was rejected. A qualification regarding financial impact included in Schedule 1 in relation to “change of shift” had no counterpart in the “non-disciplinary transfer” item.

69. The primary judge also rejected [15] the test for “non-disciplinary transfer” adopted by the Full Bench of the Industrial Commission in Commissioner of Police v Skelly (2010) 192 IR 195; [2010] NSWIRComm 18 discussed below.

    15. Primary judgment at [84].

70. The ultimate decision of the primary judge was that the character of a transfer as “non-disciplinary” or otherwise was “a matter for the evaluative judgment of the Commissioner”. [16] Her Honour therefore dismissed the proceedings.

    16. Primary judgment [89].

Issues in this Court

71. The grounds of appeal advanced on the Officer’s behalf are that

1. the primary judge erred in finding that the determinant of whether a transfer is a “non-disciplinary transfer” is the evaluative judgment of the Commissioner;

2. the primary judge should have held that a transfer is a “non-disciplinary transfer” for the purposes of s 173(2) if it is a transfer that could be imposed by the Commissioner in exercise of the general power to transfer created by s 69, subject to the restriction that the transfer not be to a position that entitles its holder to a lower level of remuneration; and

3. the primary judge erred in finding that it was “open” to the Commissioner to treat the transfer as a “non-disciplinary” transfer in circumstances where the position to which the Officer was transferred attracted a lower level of remuneration.

72. The Commissioner, by notice of contention, says that the decision below should be upheld because:

1. the primary character of the transfer effected by order under s 173(2) was remedial;

(5) Before making an order for reviewable action, the Commissioner:

(a) must cause to be served on the police officer a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and

(b) must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and

(c) must take into consideration any written submissions received from the police officer:

(i) during the period of 7 days referred to in paragraph (b), or

(ii) if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served.

(6) As soon as practicable after making an order for reviewable action, the Commissioner must cause written notice that the order has been made to be served on the police officer concerned. The notice must be served personally or (if personal service is impracticable) by post.

(7) The written notice must contain the terms of the order and must indicate:

(a) the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the order has been made, and

(b) whether the order results from a misconduct matter that has been investigated, or is being investigated, under Part 8A or the Law Enforcement Conduct Commission Act 2016 , and

(c) the Commissioner's reasons for making the order.

(8) An order for action referred to in subsection (2) takes effect:

(a) in the case of non-reviewable action, when the order is made, or

(b) in the case of reviewable action, at the expiry of the time within which an application for a review of the order may be made under section 174 or, if such an application is made within that time, when the application is finally determined.

(9) Except as provided by Division 1A:

(a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and

(b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section.

In this subsection,

"tribunal" means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission.

(10) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action.

(11) Nothing in Division 1A limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section.

(12) Despite section 31, the Commissioner's functions under this section may only be delegated to a member of the NSW Police Force who is senior to the police officer in respect of whom those functions are being exercised.

Police Act 1990 (NSW), Schedule 1:

Schedule 1 – Non-reviewable action

coaching

mentoring

training and development

increased professional, administrative or educational supervision

counselling

reprimand

warning

retraining

personal development

performance enhancement agreements

non-disciplinary transfer

change of shift (but only if the change results in no financial loss and is imposed for a limited period and is subject to review)

restricted duties

recording of adverse findings.

Police Act 1990 (NSW), s 69:

                     Transfer of non-executive police officers

(1) If the Commissioner considers it to be in the interests of the NSW Police Force to do so, the Commissioner may transfer a non-executive police officer from one non-executive police officer position to another non-executive police officer position or non-executive administrative employee position.

(2) Such a transfer may be made if:

(a) the position to which the officer is transferred entitles its holder to the same level of remuneration as the officer's former remuneration, or

(b) the position to which the officer is transferred entitles its holder to a lower level of remuneration than the officer's former remuneration and:

(i) the officer consents to the transfer at the lower level of remuneration, or

(ii) the officer requested the transfer or the transfer is made pursuant to an order under section 173, or

(c) the officer concerned is being transferred from the rank of superintendent to which the officer is permanently appointed to another position within that rank--regardless of whether the position to which the officer is transferred entitles its holder to a remuneration that is the same as or different from the officer's former remuneration.

(3) An officer transferred under subsection (2) (c) is entitled, for the balance of the term for which the officer holds office pursuant to section 74, to the same level of remuneration in respect of the new position as the officer's former remuneration if the position to which the officer is transferred ordinarily entitles its holder to a level of remuneration that is lower than the officer's former remuneration (unless the officer requested the transfer or it was made pursuant to an order under section 173.

(4) A transfer under this section may be made only if the officer possesses the qualifications determined by the Commissioner for the other position.

(5) The transfer under this section of a police officer to a non-executive administrative employee position may not be made without the approval of the police officer.

(6) Section 66 does not apply to a transfer under this section.

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Endnotes

Amendments

11 February 2020 - Reformatting of Appendix

Decision last updated: 11 February 2020