Ryan v Commissioner of Police, NSW Police Force (No 2) - [2021] FCA 106

F FEDERAL COURT OF AUSTRALIA
Ryan v Commissioner of Police, NSW Police Force (No 2) [2021] FCA 106

File number: NSD 974 of 2018

Judgment of: ABRAHAM J

Date of judgment: 16 February 2021

Catchwords:
STATUTORY INTERPRETATION – Where the applicant is a constable in the NSW Police Force – whether a constable in the NSW Police Force is an employee for the purpose of the Disability Discrimination Act 1992 (Cth) – interpretation of beneficial legislation – where the definition of employment is inclusive – where the Act is intended to give effect to Australia’s obligations under international law

HUMAN RIGHTS – Disability discrimination in employment – where the revocation of the position was compelled on certain preconditions existing – whether revocation constituted direct discrimination – characteristics of appropriate hypothetical comparator – whether the applicant received less favourable treatment – whether the revocation constituted indirect discrimination – whether the requirement that the applicant be able to perform the inherent requirements of the position is reasonable – where claims as pleaded not established

Legislation:
Acts Interpretation Act 1901 (Cth) s 15AB,

Australian Human Rights Commission 1986 Act (Cth) ss 46PF, 46PH, 46PO

Disability Discrimination Act1992 (Cth) ss 3, 4, 5, 6, 11, 15, 21A, 21B

Fair Work Act 2009 (Cth) s 351

Industrial Relations Act 1988 (Cth) ss 170CA, 170CB, 170DE, 170DF, Div 3 of Pt VIA

Anti-Discrimination Act1977 (NSW) ss 4, 4B, 53

Crown Proceedings Act 1988 (NSW) s 5

Police Act 1990 (NSW) ss 5, 12, 27, 32-42, 69, 72, 81-81G, 85, 86, 87, 173

Police Regulations 2008 (NSW) cl 127

Police Regulations 2015 (NSW) cl 131

Cases cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27
Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1955) 92 CLR 113
Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237
Australian Medical Council v Wilson (1996) 68 FCR 46
Berry v State of South Australia [2017] FCA 702
Broadlex Services Pty Ltd v United Workers' Union [2020] FCA 867; (2020) 296 IR 425
Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2019] FCA 1849
Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78
Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74
Clymo v Wandsworth London Borough Council [1989] IRLR 241
Enever v The King (1906) 3 CLR 969
Howe v Qantas Airways Ltd [2004] FMCA 242; (2004) 188 FLR 1
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
James Cook University v Ridd [2020] FCAFC 123; (2020) 298 IR 50
Konrad v Victoria (1999) 91 FCR 95
Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261
McDougall v Kimberly-Clark Australia Pty Ltd [2006] VCAT 2211
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 381 ALR 601
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232
New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174
Police Service of New South Wales v Honeysett [2001] NSWCA 452; (2001) 53 NSWLR 592
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92
Qantas Airways v Christie (1998) 193 CLR 280
Ryan v Commissioner of Police, NSW Police Force [2019] FCA 1607
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637
Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247
State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581
State of New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467
State of Victoria v Schou [2004] VSCA 71; (2004) 8 VR 120
Styles v Secretary Department of Foreign Affairs and Trade [1988] FCA 364
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Trindall v NSW Commissioner for Police [2005] FMCA 2
Philip v State of New South Wales [2011] FMCA 308
Waters v Public Transport Corporation (1991) 173 CLR 349
Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220
WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536
X v The Commonwealth of Australia [1999] HCA 63; (1999) 200 CLR 177
YZ Finance Company Pty Ltd v Cummings (1964) 109 CLR 395

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 265

Date of hearing: 6-8 July 2020

Counsel for the Applicant: Mr M Gibian SC

Solicitor for the Applicant: Police Association of New South Wales

Counsel for the Respondents: Mr M Seck

Solicitor for the Respondents: Maddocks

Table of Corrections

19 February 2021
In paragraph 87, “Mr Russell, who was a NSW police officer” has been replaced with “Mr Russell, who was an Aboriginal man”

ORDERS

NSD 974 of 2018

BETWEEN:
KENNETH JOHN RYAN

Applicant

AND:
COMMISSIONER OF POLICE, NSW POLICE FORCE

First Respondent

THE STATE OF NEW SOUTH WALES

Second Respondent

ORDER MADE BY:

ABRAHAM J

DATE OF ORDER:

16 FEBRUARY 2021

THE COURT ORDERS THAT:
1.The application is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
ABRAHAM J:

The applicant, a former NSW police officer, was medically discharged from the NSW Police Force (NSWPF) on 17 December 2015. He alleges that the first respondent, the Commissioner of Police, NSW Police Force (the Commissioner) discriminated against him for the purposes of s 15(2)(b) and/or (d) of the Disability Discrimination Act 1992 (Cth) (DD Act) by revoking his appointment as a Leading Senior Constable (LSC) because of, or for reasons which included, that the applicant had, or was imputed to have, a disability arising from a work related psychological condition. The effect of the revocation was to reduce his rate of pay. Upon his medical retirement, the applicant became entitled to a lifetime pension as a member of the Police Superannuation Fund, which is calculated by reference to his salary as at the date of his discharge. The applicant contended that as a result of the revocation his pension was reduced such that he continues to suffer financial loss and that he will continue to do so until his death. The applicant also contended that his wife will also suffer financial loss until her death as a result of the revocation.
On 21 November 2017, the applicant made a complaint to the Australian Human Rights Commission (AHRC) alleging unlawful discrimination on the grounds of disability in his employment. On 11 April 2018, that complaint was terminated under ss 46PF(1)(b) and 46PH(1)(b) of the Australian Human Rights Commission 1986 Act (Cth) (AHRC Act) by a delegate of the AHRC.
On 7 June 2018, leave to commence proceedings in this Court was granted pursuant to s 46PO(3A) of the AHRC Act: Ryan v Commissioner of Police, NSW Police Force [2019] FCA 1607. Following the grant of leave to commence proceedings, at the hearing of this matter, leave was granted to the applicant to amend the Statement of Claim so as to add the State of New South Wales as a respondent in the alternative. The Commissioner did not oppose the application and his counsel was instructed to then appear for both respondents.
The issues raised by this application are: first, whether an employment relationship existed between the applicant and either of the respondents, for the purpose of establishing a breach of the DD Act such as to give this Court jurisdiction; second, the effect of cl 1.42 of the 2014 Leading Senior Constable Guidelines (the Guidelines), which provided the basis on which the appointment as an LSC was revoked, and in particular whether it compelled the outcome if the preconditions to that clause existed; third, whether the preconditions in cl 1.42 existed; fourth, whether the applicant’s claim properly falls within s 15(2)(b) and (d) of the DD Act, which are the provisions pleaded; fifth, whether in revoking the LSC appointment the applicant was directly discriminated against within the meaning of s 5(1) of the DD Act (which raises issues as to the comparator and causation); sixth, whether the applicant was subject to indirect discrimination (which raises issues as to the conditions, whether they were reasonable, and unjustifiable hardship).
As explained in detail below, the application is dismissed.
First, the applicant was in an employment relationship within the meaning of the DD Act such as to give this Court jurisdiction to hear his claim under that Act.
Second, a proper reading of cl 1.42 of the Guidelines under which the applicant’s LSC status was revoked reflects the result was compelled on the factual preconditions existing.
Third, the preconditions in the clause existed. In so far as the clause provides that a request can be made by the Commander that the LSC status continue despite the preconditions existing, no request was made in this case. The Commander was not challenged as to that approach.
Fourth, in any event, although the applicant alleges a breach of s 15(2)(b) and (d) of the DD Act, the applicant’s allegations, properly considered, fall within s 15(2)(a). It follows that the claims as pleaded are not established.
Fifth, in any event, in the claim for direct discrimination, if the allegations do fall within s 15(2)(b) or (d), the applicant has not established that he received less favourable treatment than a person without his disability in circumstances that are not materially different.
Sixth, in any event, in the claim for indirect discrimination, the requirement that a person who has the status of an LSC be able to perform the inherent requirements of that position is reasonable.
Before addressing those issues in detail it is first necessary to consider the evidence relied on, the factual background of this application and the relevant statutory regimes.
Evidence relied on
The parties helpfully provided a set of agreed facts. The evidence for the most part was not in dispute (accepting that there is an issue as to the interpretation of aspects of the evidence). The document also identified four disputed factual issues, which I address below.
The following affidavits, subject to the rulings on the objections, were read by the applicant in support of his application with the exhibits tendered:
(1)the affidavit of David Kennedy sworn 24 June 2020;
(2)the affidavit of Kenneth John Ryan sworn 24 April 2020;
(3)the affidavit of Kenneth John Ryan sworn 17 June 2020;
(4)the affidavit of Michael Pont dated 30 April 2020; and
(5)the affidavit of Michael Pont sworn 1 July 2020.
The following rulings were made with respect to the applicant’s evidence:
(1)In the affidavit of Mr Ryan sworn 24 April 2020, in paragraph [3] the words “I commenced employment” were read as the applicant’s understanding; in paragraph [16] the last sentence was not read; in paragraph [18] the words “that authorise my gradual return to work” were read as the applicant’s understanding.
(2)In the affidavit of Mr Ryan sworn 17 June 2020, in paragraph [11], the last sentence was read as the applicant’s state of mind; paragraph [17] was objected to on the basis of relevance and the applicant conceded it was very general and did not advance the matter; in paragraph [21] the words “despite my Workcover certificates authorising my return to work” were read as the applicant’s state of mind; the last sentence in paragraph [28] was not read; the first sentence in paragraph [30] was not read and it was conceded that the second sentence was merely an interpretation of Dr John McMahon (Dr McMahon’s) report; in paragraph [31] the first sentence was read as limited to the applicant’s understanding of the process that should have occurred.
The following affidavits, subject to the rulings on the objections, were read by the respondents with the exhibits tendered:
(1)the affidavit of Superintendent Paul Glinn affirmed 5 June 2020;
(2)the affidavit of Martin Alexander Stevenson affirmed 5 June 2020; and
(3)the affidavit of Teresa Heien affirmed 5 June 2020.
In addition to the affidavit material, the applicant tendered the complaint to the AHRC, the agreed statement of facts and the Medical Discharge Standard Operating Procedures. The respondents also tendered a supplement to the expert report of Martin Stevenson which was dated 6 July 2020.
The following rulings were made with respect to the respondents’ evidence: in the affidavit of Teresa Heien, the first sentence of paragraph [12] was not relevant; paragraph [17] was not read and the attachment “TH10” was not relied upon.
The applicant was cross examined, as was Superintendent Paul Glinn (Superintendent Glinn) and Teresa Heien for the respondents.
In addition, three documents were the subject of objection, primarily on the basis of relevance.
First, a medical report of Dr Selwyn Smith (Dr Smith) dated 1 March 2012. This report was sought to be relied on by the respondents as evidence that the applicant was unfit to return to his pre-injury duties. This is addressed below at [169].
Second, the Police Superannuation Advisory Committee (PSAC) records, sought to be relied on by the applicant for two purposes: first, in relation to the issue of a comparator it was said it reflected the way in which others have been treated in a relevantly similar position for the purpose of direct discrimination; and second, as a comparator for the purposes of direct discrimination. As to the reasonableness of the condition and the unjustifiable hardship defence for the purpose of indirect discrimination. The applicant accepted that it could not assist in respect to the interpretation of the Guidelines. This is addressed below at [232].
Third, the material produced under subpoena which was before Dr McMahon, sought to be relied on by the respondents as relevant to the context in which Dr McMahon expressed his views. This is addressed below at [170].
Factual background
As noted above, between around 18 May 1984 and 17 December 2015 the applicant was a police officer of the NSWPF. On or around 18 May 1984 he commenced as a Probationary Constable, on 18 May 1985, the applicant was confirmed as a police officer at the rank of Constable, and on 18 May 1993 he was promoted to the grade of Senior Constable.
From about April 1990, the applicant was attached to the Forensic Services Group (FSG), and in particular to the Identification Services Branch (ISB). As an officer within that branch the applicant's work involved, amongst other things, fingerprint collection and identification, and the giving of expert opinions about identifications.
Around 2002, the applicant was appointed as an LSC. As explained in more detail below, an LSC appointment, at all material times, attracted a higher rate of pay as compared with other Senior Constables of the same rank, grade and incremental level.
On 31 May 2009, the applicant was involved in an on-duty motor vehicle accident and as a consequence was certified either totally or partially unfit for work (fit for suitable work on a graded return to work plan) between 1 June 2009 and his medical discharge on 17 December 2015.
The applicant was entitled to, and received, paid sick leave under the applicable Police Regulations from 1 June 2009 until 10 September 2015 and paid annual leave from 10 September 2015 until his discharge.
Around 17 January 2014, the first respondent initiated a process to have the applicant medically retired from the NSWPF. The applicant's physical and psychological injuries arising from the accident were accepted by the first respondent as being “Hurt on Duty” (that is, as an “infirmity arising from a wound or injury received in the actual execution of the duty of his or her office” under cl 127 of the Police Regulations 2008 (NSW) then in force).
Around 13 November 2014, Superintendent Glinn, then Commander of the ISB, wrote to the applicant and advised him of his decision to revoke the applicant's LSC appointment effective 15 January 2015 (the Revocation).
The letter commenced by stating:
I am writing to inform you that in accordance with the provisions of Section 21.2 of the NSW Police Force Leading Senior Constable Guidelines (see Attachment 1) I have made the decision to revoke your appointment as a Leading Senior Constable in Fingerprint Operations, Identification Services Branch, Forensic Services Group, effective as of 15 January 2015.
I have made this decision as a consequence of your inability to now fulfil the inherent requirements of the Leading Senior Constable role in the Command as a result of the substantial changes in corporate IT systems, work practices, processes and procedures that have occurred since you were last in the workplace in May, 2009.
The letter described that Superintendent Glinn amongst other things, took into account:
(1)information in a medical report from Dr McMahon dated 4 October 2013 “diagnosing [the applicant] with a number of psychological conditions”;
(2)information in a medical report from Vesna Boban (Ms Boban), Psychologist, dated 4 December 2013 “diagnosing [the applicant] with a number of psychological conditions”;
(3)the NSWPF duty of care that the applicant not be returned to duties which “may potentially exacerbate your diagnosed medical conditions”;
(4)the operational need to fill this “critical training role with a suitable fully operational officer within the Command as soon as possible”; and
(5)Superintendent Glinn's opinion that the applicant's was unable to meet the FSG Leading Senior Constable Eligibility Criteria, in particular, the criteria “relating to fingerprint technical abilities, skills and knowledge that are outlined below ...”.
The letter also amongst other things, observed:
(1)under the heading "Capacity to maintain positive and professional relationships with customers":
In diagnosing your particular psychological conditions, Dr McMahon states in his report that problems typically associated with persons having the types of injuries [the applicant] has been diagnosed with are:.. problems with attention, concentration and their money. They are apathetic and have difficulty in starting to do things. They experience inertia, massive inhibition, and regression…in Dr McMahon's report, he indicated that [the applicant] felt anxious in new situations or when [the applicant] has to engage in public speaking, or if [the applicant] had thoughts about driving motor vehicles. Having regard to this diagnosis, I am of the view that [the applicant] will not be able to develop or maintain the positive and professional customer relationships expected by this Command, the Forensic Services Group or the NSW Police Force.
(2)under the heading "Working closely with less experienced Constables and provide support, mentoring and guidance in all aspects of operational situations”:
As a Leading Senior Constable in the Forensic Services Group, [the applicant is] expected to provide situational leadership to more junior fingerprint technicians at complex major crime and incident scenes, including homicides, sexual assaults, and Disaster Victim Identification (DVI) scenes... Given [the applicant's] diagnosed psychological conditions, [the applicant] will clearly not be able to perform this fundamental aspect of the Leading Senior Constable role....
(3)under the heading "Utilisation as Field Teaching Officer to supplement and support the existing Field Teaching Officers in FSG Sections/Branches":
Due to [the applicant's] stated anxiety issues regarding speaking in public, as per the report of Dr McMahon, and for the reasons outlined immediately above, [the applicant] will also not be able to perform this aspect of the Leading Senior Constable role.
(4)under the heading "The ability to undertake all duties":
Given [the applicant's] diagnosed psychological conditions, I am satisfied that it is highly unlikely that [the applicant] will be able to undertake all duties required of a Leading Senior Constable in the Forensic Service Group [reference is then made to attending and examining complex major crime/incidents scenes, etc and providing effective situational leadership to [the applicant's] colleagues in each of these particular work environments.

The letter concluded:
In conclusion, I wish to assure you that I have not made the decision to revoke your Leading Senior Constable appointment lightly and should you wish to discuss any aspect of this matter…
The applicant continued to hold an appointment as an LSC until it was revoked by Superintendent Glinn, on and from 15 January 2015.
Around 1 December 2014 the applicant sought that the Revocation be suspended pending his medical discharge. Around 8 December 2014, Acting Superintendent Atalla advised the applicant in writing that the Revocation would not be overturned or suspended. On around 13 January 2015, the applicant sought a review of the Revocation.
Around 15 January 2015, Inspector Rachelle Conroy, Human Resources Manager of FSG, wrote a report rejecting the application for a review and confirming that the Revocation would be effective 15 January 2015. The report observed (amongst other things):
After a review of all of the documentation I am satisfied that the proposed revocation of your Leading Senior Constable appointment is appropriate and within the provisions of the NSWPF Leading Senior Constable Guidelines, in particular 21.2 Injury or illness “If an officer has been certified as unable to return to their preinjury duties (whether work related or non work related) and is unable to undertake the inherent requirements or has been deployed to other suitable employment, their Leading Senior Constable status will be revoked.”
Independent medical advice has been received by the New South Wales Police Force confirming that you cannot return to your pre-injury duties within the Fingerprint Operations Branch. It is on this advice that your Leading Senior Constable appointment is being revoked. The revocation of your Leading Senior Constable appointment will be effective as of the 15th January, 2015.
A number of further reviews were sought by the applicant and each was rejected.
The applicant was medically discharged from the NSWPF with effect from 17 December 2015.
Superintendent Glinn
Given the applicant’s submission that the preconditions for revocation did not exist in this case, it is appropriate to refer in more detail to the evidence of Superintendent Glinn.
Superintendent Glinn set out background information about the applicant he had obtained from accessing the business records of the first respondent, which has not been challenged.
He stated that prior to going on sick leave in June 2009, the applicant was recognised as a fingerprint expert but at that time, he did not hold fingerprint expert accreditation with the Australasian Forensic Field Science Accreditation Board (AFFSAB). In 2012, the Industrial Relations Commission of NSW awarded an additional expert allowance under the Crown Employees (Police Officers) Award 2009 payable to officers of the FSG who held AFFSAB accreditation. Around May 2013, the applicant had considered returning to work for reduced hours so that he could obtain AFFSAB accreditation in order to receive the relevant allowance. On 6 June 2013, Superintendent Keane, then the Commander of the branch, sent the applicant a letter regarding his AFFSAB accreditation application and a direction to provide medical advice to the Police Superannuation Advisory Committee. On 13 January 2014, Acting Superintendent Andrew Sipos, then Commander of the ISB and Manager of the Fingerprint Operations Branch, received an email from the applicant regarding his capacity to recommence duties which enclosed a WorkCover Certificate of Capacity dated 24 December 2013. In July 2014 the 2008 version of the Guidelines were amended to include cl 1.42. I note that reference was made during the hearing to cl 21.2, being the relevant clause in the copy of the draft 2014 Guidelines. Significantly, draft cl 21.2 is in identical terms to cl 1.42 which appeared in the final version of the 2014 Guidelines which employed a slightly different numbering system. As is clear from the extracts above, it appears that in some of the correspondence Superintendent Glinn has referred to the numbering in the draft 2014 Guidelines rather than the numbering employed in the final 2014 version of the Guidelines. It was submitted by the applicant at the hearing that nothing turns on this and the respondents did not submit to the contrary (the provisions being relevantly identical). Accordingly, I have treated the parties’ reference to cl 21.2 as a reference to cl 1.42.
Superintendent Glinn detailed the advice sought by various persons as to the applicability of that clause given the applicant had been absent from the workplace since 2009. Around 27 August 2014, he received written advice from Detective (Tech.) Senior Sergeant Rick Sinclair, Fingerprint Operations, regarding the proposal to revoke the applicant’s LSC status which considered the inherent requirements of the LSC position within the FSG and recommended further advice be sought from the Employee Relations & Workforce Policy, HR Command, regarding the proposal to revoke the applicant’s status. He detailed the advice received and the persons who supported that approach.
Superintendent Glinn explained that it was his decision to revoke the status, and that his reasons were set out in the letter dated 13 November 2014 sent to the applicant, which is referred to above at [30]. He said that based on the FSG Leading Senior Constable Eligibility Criteria and his knowledge of the role, an LSC is required to have superior technical skills and expertise, and is required to mentor and guide less experienced police officers in all aspects of police operations. At the time he made the decision the applicant had not been in the workplace for approximately five years. There had been substantial changes within the FSG Command Management Framework during that time, including changes to workplace practice and accreditation via AFFSAB and such changes would have required the applicant to undertake a variety of training and proficiency testing over a period of time so that he would have the necessary and up to date skills and expertise required to fulfil the inherent requirements of the role at the relevant time. He said without that training the applicant would not have had the necessary skills to mentor and lead more junior police officers and nor would he have been up to date with the required technical skills and expertise required of the role. He stated that LSCs in the fingerprint discipline within the FSG were also required to undertake both office and field based crime scene response duties. An LSC would be expected to be involved in all facets of training junior staff including delivering face to face presentations and lectures to other police and civilian FSG officers. They would also be required to attend crime scenes with potentially traumatic visual imagery. They were required to oversee, to lead and to provide supervisory skills commensurate with contemporary best practice and scientific examinations processes. Field based attendance also required the applicant to deploy to the crime scene in a police vehicle. He stated that the diagnosis of “Persistent Severe Somatic Symptom Disorder, with Predominant Pain”, and secondary to “Post-Traumatic Stress Disorder” referred to in the medical report of Dr McMahon, led him to consider that the applicant would be unable to deal with some of the more stressful aspects of the role, presumably including attending and providing leadership at major crime scenes (as explained in his affidavit). He also stated that having regard to the relevant medical reports he reviewed, it would appear that such deployment would aggravate the applicant’s current injuries, and potentially expose him to further injury and or relapse of the medical conditions.
In cross-examination, Superintendent Glinn accepted in relation to a number of matters that it was a possibility that the applicant could attain a skill with retraining. He also accepted the proposition that it was not uncommon for some retraining or reorientation to be required, but he explained that given the speciality of the LSC role in the branch and the absence from the workplace for five years, that it was different to someone being out of the workplace for a lesser time (for example 12 months) or those involved in general duties. He accepted that the letter of reasons states he had regard to the diagnosis of Persistent Severe Somatic Symptom Disorder with Predominant Pain and secondary to Post-Traumatic Stress Disorder. He was taken to those aspects of the letter which refer to Dr McMahon’s report when addressing specific criteria of the inherent requirements.
In re-examination Superintendent Glinn was asked about the retraining and stated, inter alia, that for the applicant to obtain the foundational skill set to be able to work as a fingerprint expert it would include the process that he be authorised or recognised by the AFFSAB which is a process that takes four to six years to go through, with various assessments. He explained that as an LSC the applicant “not only needs to learn the skill but he has got to be able to then use that skill to coach, mentor, guide and train other people”. He explained that having superior technical capacity can be demonstrated by attending major crime scenes. He explained the many changes that have occurred in this area of forensic expertise since 2009, and the many workplace changes, including the digitisation of the workplace and a change to fieldwork “so there was a laboratory set up called the Evidence Recovery Section and they were required not only to undertake fingerprint examinations, but also to undertake recovery of other types of trace evidence such as DNA, hair, tape lifts and similar”, which had occurred as a result of reviews conducted into forensic science and expert evidence.
Disputed facts
As noted above, the agreed statement of facts identified that there are four factual disputes.
First, whether members of the NSWPF are employees and therefore whether there is an employment relationship between the applicant and either of the respondents for the purpose of establishing a breach of the DD Act. This is a legal rather than factual dispute and is addressed below at [76]-[124].
Second, the applicant contended that he was certified as fit to return to work performing restricted duties on a graded return to work plan in or around August 2011, while the respondents contended that between 9 June 2011 and 9 September 2011, the applicant was unfit to work in accordance with a WorkCover NSW Medical Certificate dated 4 June 2011. This is addressed below at [163]-[185] in the context of the broader issue as to whether the necessary preconditions in cl 1.42 existed.
Third, the applicant contended that he had never been assessed by a medical practitioner as having any of the permanent impairments imputed to him by Superintendent Glinn as recorded in the letter of 13 November 2014. The respondents disputed that and contended that Dr McMahon in a report dated 4 October 2014 diagnosed the applicant as having met the DSM-V criteria for “Persistent Severe Somatic Symptom Disorder with Predominant Pain” and secondary to “Post-Traumatic Stress Disorder”. The respondents also said that no permanent impairments were imputed to the applicant by Superintendent Glinn. This dispute is interlinked with the issue raised in the preceding paragraph and is also addressed at [163]-[185] below.
Fourth, the applicant contended that the revocation was made because of, or for reasons that included, Superintendent Glinn having imputed a disability to the applicant for the purposes of the DD Act. The respondents disputed that and contended that the Guidelines required the first respondent to revoke the applicant's status as a consequence of his inability to fulfil the inherent requirements of an LSC in Fingerprint Operations, ISB, FSG. This dispute is primarily, at least initially, a legal one which involves a consideration of the effect of cl 1.42 of the Guidelines. This is addressed below at [126]-[162].
Relevant legislation
The Police Act, Police Regulations and Guidelines
As noted above the applicant was confirmed as a police officer in 1985. It was common ground between the parties that upon the enactment of the Police Service Act 1990 (NSW) (PSA): (a) a person who, immediately before the repeal of the former Act, held office as a member of the Police Force is to be taken to be a police officer appointed to that office under the PSA: schedule 4, cl 6; and (b) a person to whom that schedule applies was (until other provision was duly made under this or any-other Act) to be employed in accordance with the awards, industrial agreements and determinations that would have applied to the person if the person had not become a member of the Police Service and if the Police Force and the Police Department had not been dissolved. I note that the PSA became the Police Act 1990 (NSW) (Police Act) in 2002: Police Service Amendment (NSW Police) Act 2002 No 51 at schedule 1.
The long title of the Police Act as at the time of the revocation stated: “An Act to establish the NSW Police Force, to provide for the management of the NSW Police Force and for the employment of its members of staff; and for other purposes”. The NSWPF is comprised of the Commissioner, the NSW Police Force senior executives, and “all other police officers or non-executive administrative employees who are employed under this Act”: s 5.
The applicant referred to s 72 of the Police Act which addresses the vacation of non-executive police officer positions to include where he or she “abandons his or her employment in the NSW Police Force”: s 72(1)(e).
The applicant also referred to s 85 of the Police Act which provides:
The Commissioner is to be the employer of non-executive officers for the purposes of any proceedings relating to non-executive officers held before a competent tribunal having jurisdiction to deal with industrial matters.
The applicant, as a police officer who was confirmed prior to 1 April 1988, was a member of the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 (NSW) (PRS Act).
Officers on leave for absences arising from work related injuries are paid sick leave. Clause 127 of the Police Regulations 2008 (NSW) (and later cl 131 of the Police Regulations 2015 (NSW)), provides an officer who was “absent from duty because of infirmity of body or mind”, is entitled to receive “full pay for the whole of the period of the absence” as approved by the Commissioner.
As noted above, the applicant was appointed an LSC in or around 2002.
An LSC appointment is not part of the statutory rank and grade structure of the NSWPF: see s 5 and 12 of the Police Act. The position was introduced in 2001 as a result of an agreement between the Police Association of New South Wales, the registered organisation of employees under the Industrial Relations Act 1996 (NSW) that represents sworn police officers in New South Wales, and the first respondent. On 26 April 2001, the Commissioner and the Police Association entered into a Memorandum of Understanding, Appendix D to which addressed the creation of the LSC status and included inter alia that the proposal would be implemented by agreement pursuant to s 86 of the Police Act (now s 87 of the Police Act). On 17 September 2001, the first respondent and the Police Association, pursuant to the then s 86 entered into the formal agreement recognising the appointment. The agreement is entitled “Police Service of New South Wales Leading Senior Constable Agreement” (LSC Agreement).
An LSC appointment, at all material times, attracted a higher rate of pay (compared to other senior constables of the same rank, grade and incremental level) under awards made under the Industrial Relations Act1996 (NSW). At the time of the applicant’s appointment the Crown Employees (Police Officers - 2001) Award, applied to his engagement. Each of the successor Awards continued the concept of an LSC appointment, and continued to entitle those appointed to enhanced rates of pay compared to other senior constable of the same rank, grade and incremental level. At the time of the revocation of the applicant’s LSC and his medical retirement, the Crown Employees (Police Officers – 2013) Award (the Award) applied.
In relation to LSC status the Award states, inter alia, that appointments and revocations of LSC status are “subject to provisions duly agreed between the Commissioner and the Association”, which are for present purposes found in a document maintained by the first respondent’s Human Resources area, entitled “Leading Senior Constable Guidelines” (being the Guidelines defined above at [4]). The relevant version is that published in July 2014, which introduced changes to the applicant’s appointment.
The Guidelines set out the inherent requirements of an LSC as being, “to work closely with less experienced Constables to provide situational leadership, act as a role model and provide support, mentoring and guidance in all aspects of the relevant operational situation”. The eligibility and selection criteria are detailed, including the inherent requirements for those attached to Specialist Operations Commands, which encompasses the FSG in ISB to which the applicant was attached. Those requirements included extensive knowledge of policies and procedures associated with the relevant Command or Unit; the capacity to maintain positive and professional relationships with the community and other internal/external customers; possessing any appropriate qualifications associated with the status of an expert practitioner within the relevant Command or Unit; the capacity to act as a trainer and mentor to less experienced officers; and any other abilities, knowledge and experience as considered appropriate by the relevant Commander.
The Guidelines are considered in detail below, but for present purposes they also relevantly included the following.
Under the heading “Appointment of a Leading Senior Constable”:
…
Commanders are to make every effort to expedite the filling of Leading Senior Constables vacancies within their Commands where there are sufficient numbers of qualified officers. Leading Senior Constable opportunities should be filled within two months of expressions of interest being called. An extension of this timeframe would normally only occur where a review has been sought in accordance with these Guidelines, or there has been a delay in obtaining a probity report.
Senior Constables are eligible to apply for Leading Senior Constable opportunities within other Commands in compliance with transfer and tenure provisions. It should be understood that officers generally cannot apply for Leading Senior Constable opportunities within another Command whilst ever Leading Senior Constable opportunities remain available within their Command of attachment.
Under the heading “Revocation of Leading Senior Constable”:
Commanders must advise the Leading Senior Constable in writing of their intention to revoke their Leading Senior Constable status and outline reasons for their decision. Decisions must be factually based and be supported by documentation eg. Career Management System Performance Reviews and any records of counselling. Where possible the notice should be presented to the Leading Senior Constable in person with provision for its receipt to be acknowledged by the officer.
…
1.31 Non-performance
Leading Senior Constable status may be revoked for the non performance of the inherent requirements (for instances if a General Duties officer is no longer meeting the inherent requirements as they are no longer consistently rostered to perform first response and /or proactive General Duties policing).
There will be no basis for revoking an officer’s Leading Senior Constable status where they have been deployed in alternative duties at the direction of their Commander and such deployment does not relate to conduct or performance issues. However, Commanders as far as practicable, should limit the period of time Leading Senior Constables are deployed on duties which do not relate to the inherent requitements of their role.
Certain types of leave are not a trigger for revocation. These leave types are detailed under Section 21 Leave.

Section 21 there referred to relevantly includes cl 1.42 which is in the following terms:
1.42 Injury or Illness
Leading Senior Constables are entitled to take accrued sick leave in accordance with the NSW Police Sick Leave Policy. There is no basis for an officer’s performance to be assessed as unsatisfactory or not meeting the inherent requirements on the basis of the legitimate use of sick leave.
If a Leading Senior Constable suffers a work related injury or illness they will have their Leading Senior Constable status maintained during any period of rehabilitation designed to return the officer to their pre injury duties.
If an officer has been certified as unable to return to their pre-injury duties (whether work related or non work related) and is unable to undertake the inherent requirements or has been deployed to other suitable employment, their Leading Senior Constable status will be revoked. If a Commander is seeking for an officer to retain their Leading Senior Constable status in such circumstances this must be forwarded to the Commander, Human Resources for consideration.
Clause 1.5 relevantly provides:
Leading Senior Constables attached to other Field Operations or Specialist Operations Commands or Units are expected to have the following abilities, knowledge and experience:
•extensive knowledge of corporate policies and procedures;
•extensive knowledge of policies and procedures associated with the relevant Command or Unit;
•high standard in brief preparation and presentation (where appropriate)
•capacity to maintain positive and professional relationships with the community and/or other internal/external customers;
•possess any appropriate qualifications associated with the status of expert practitioner within the relevant Command or Unit;
•capacity to act as a trainer and mentor to less experienced officers;
•any other abilities, knowledge and experience considered appropriate by the relevant Commander.
The FSG LSC Eligibility Criteria relevantly provides:
Leading Senior Constables within the FSG are expected to provide situational leadership in the filed with a combination of the following abilities, knowledge and experience:
•Thorough understanding of the operational aspects of the F.S.G Command Management Framework;
•Appreciation of specific issues impacting on the nominated Section/Branch;
•Superior Technical skills;
•Extensive knowledge of, Specialist Field specifics, FSG and corporate policies and procedures;
•Extensive experience in brief preparation and court presentation;
•Extensive knowledge of operational safety issues;
•Responsibility as a Work Place Assessor for Section/Branch training;
•Competent with new technologies and the gathering of forensic evidence; and
•Capacity to maintain positive and professional relationships with customers
Leading Senior Constables will work closely with less experienced Constables and provide support, mentoring and guidance in all aspects of operational situations. Leading Senior Constables will be utilised as Field Teaching Officers to supplement and support the existing Field Teaching Officers in FSG Sections/Branches.
Leading Senior Constables must be able to undertake all duties. Leading Senior Constables opportunities are intended to be provided to those who wish to further their career in FSG in the medium to long term and recognises the importance of operational experience.
DD Act
Section 5(1) of the DD Act sets out what is required to be established in relation to direct discrimination and is in the following terms:
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
Section 6(1) of the DD Act sets out what is required to be established in relation to indirect discrimination and is in the following terms:
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
Section 15 of the DD Act is in Part 2, Division 1 which is entitled “Discrimination at work”. That section is entitled “discrimination in employment”. The provision is recited below at [187], but relevantly for present purposes, subsection (2) provides that it is unlawful for an employer, or person acting on behalf of an employer to discriminate against an employee on the grounds of the employee’s disability (a) in the terms and conditions of employment that the employer afford the employee; or (b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any detriment. As s 15(2)(b) and (d) are pleaded the inherent requirements defence does not apply: s 21A.
“Employment” is defined in s 4 of the DD Act as follows:
employment includes:
(a)part-time and temporary employment; and
(b)work under a contract for services; and
(c)work as a Commonwealth employee; and
(d)work as an employee of a State or an instrumentality of a State.
The terms in subparagraphs (c) and (d) are further defined in s 4 of the DD Act.
“Commonwealth employee” is defined to mean a person who:
(a) is appointed or engaged under the Public Service Act 1999;
(b) holds an administrative office; or
(c) is employed by a public authority of the Commonwealth; or
(d) holds an office or appointment in the Commonwealth Teaching Service or is employed as a temporary employee under the Commonwealth Teaching Service Act 1972; or
(e) is employed under the Australian Security Intelligence Organisation Act 1979 or the Commonwealth Electoral Act 1918; or
(f) is a member of the Defence Force; or
(g) is the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979).
The expression “instrumentality of a State” means a body or authority established for a public purpose by a law of a State and includes a local government body: s 4 of the DD Act.
Employment relationship
The first, and a critical issue, is whether the first respondent, or alternatively the second respondent, is “an employer or a person acting…on behalf of an employer” within the meaning of s 15 of the DD Act. If not, the DD Act does not apply to the applicant and his application must fail.
This issue has not previously been addressed, although it appears that there have been other cases involving a complaint of discrimination taken by a NSW police officer against the NSW Commissioner of Police under Commonwealth legislation in which the issue has not been considered: for example: Trindall v NSW Commissioner for Police [2005] FMCA 2; Philip v State of New South Wales [2011] FMCA 308.
To resolve this issue attention is necessarily directed to the terms of the statute.
Statutory construction must begin with the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ. While the language employed is the surest guide, its meaning may require consideration of the context which includes the general purpose and policy of the provision: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69] per McHugh, Gummow, Kirby and Hayne JJ; in particular the mischief it is seeking to remedy. More recently it has been emphasised that the starting point for ascertaining the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is to be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, citing Project Blue Sky at [69]-[71]; Alcan at [47]; Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 381 ALR 601 at [14].
As the applicant correctly submitted the correct question is the meaning of employment in the DD Act and the starting point remains the text of the provision.
Submissions
In essence, the applicant contended he fell within the definition of “employment” in the context of the DD Act. The applicant submitted that the correct question was the meaning of employment in the DD Act which was to be determined by the application of the principles of statutory interpretation rather than commencing with the common law. Referring to the provisions of the DD Act and authorities which have considered the position of a police officer in other not dissimilar contexts, the applicant submitted the DD Act uses the term “employment” at least to include employment in the ordinary sense so as to refer to a person who is paid for performing work on a regular basis and at the direction of another. On the other hand the respondents submitted that there was no employment relationship at common law between a police officer and the Commissioner (as police officers are appointed) and nothing in the DD Act changes that position. To explain the common law position, the respondents referred to State of New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467, in particular at [50] ff. It submitted that the ordinary meaning of employment refers to the existence of relationship between an employer and an employee engaged under a contract of employment: see Broadlex Services Pty Ltd v United Workers' Union [2020] FCA 867; (2020) 296 IR 425 at [25]-[27], [61]-[75]. The respondents submitted that the word “includes” in the definition of employment should be interpreted as “means”, so that the definition is extending the common law meaning. The respondents accepted that the NSW Police Commissioner and senior executive police officers who are engaged on contract because of their positions by virtue of the Police Act, would however, be covered by the definition and therefore protected by the DD Act.
The applicant placed significant reliance on the decisions of Konrad v Victoria (1999) 91 FCR 95 (Konrad), Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232 (Russell), and Police Service of New South Wales v Honeysett [2001] NSWCA 452; (2001) 53 NSWLR 592 (Honeysett) to illustrate what he contended is the ordinary meaning of employment, and that in certain circumstances, police officers have been held to be employees.
As the respondents correctly pointed out care needs to be taken in considering the authorities relied on by the applicant as each is dealing with a different legislative context. So much is plain from a consideration of the decisions.
In Konrad the appellants were officers in the Police Force of Victoria who challenged their dismissals in proceedings brought under Div 3 of Pt VIA of the Industrial Relations Act 1988 (Cth). The meaning of employee in that case was considered in the context where the object of the Division was to give effect to an international convention (the Convention Concerning Termination of Employment at the Initiative pf the Employer 1982) to which Australia was a party: s 170CA(1). The Division provided that “[a]n employer must not terminate an employee’s employment unless there is a valid reason … connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service”: s 170DE(1) and that an employer must not terminate an employee’s employment by reason of the employee’s physical disability: s 170DF(1)(f). Although the Division did not contain any definitions of the terms “employee” or “employer”, s 170CB provided that an expression in the Division had the same meaning in the Division as it did in the Termination of Employment Convention. The Convention referred to the terms “workers” and “employed persons” (but were not defined). As a consequence, Finkelstein J at [42]-[104] addressed inter alia, the issue of whether, on the proper construction of the Industrial Relations Act 1988 (Cth) in light of its intention to give effect to the Termination of Employment Convention, a police constable was an “employed person” to whom the Convention, and therefore the Act, is intended to apply.
In the above context, in Konrad, Finkelstein J said at [100]-[104]
[100] Returning to the question whether the employee who is referred to in Division 3 is a common law employee it is necessary, in my view, to have regard to the following matters. First, provisions such as are to be found in Division 3 should not be given a narrow construction. Division 3 is in the nature of a human rights code and should be given an interpretation that will advance its broad purposes. It is not appropriate to minimise the rights conferred by this type of legislation and so diminish its proper impact: compare Canadian National Railway Co v Canada [1987] 1 SCR 1114 at 1134 per Dickson CJ; Ontario Human Rights Commission v Simpson Sears 1985 CanLII 18 (SCC); [1985] 2 SCR 536 at 547 per McIntyre J.
[101]Second, there has been much informed criticism of the common law notion of employee…
[102]Third, remembering that the purpose of Division 3 is to give effect to the Convention, in the absence of a clear indication to the contrary, the Division should not be construed more narrowly than the Convention. In that regard there can be no doubt that the expressions "employed person" and "worker" in the Convention do not bear their common law meaning. The overwhelming majority of States who adopted the Convention are not common law countries. There can also be no doubt that the Convention intended to include public employees within its scope. Further, it follows from the fact that all public employees are covered by the Convention, that the Convention is not concerned to distinguish between holders of public office on the one hand and public employees on the other.
[103]In my view, bearing the foregoing factors in mind, I can see no reason why the word "employee" when used in Division 3 should be confined to its common law meaning. If it was so confined, it would bring about the following unintended consequences. In the first place, it would exclude from the operation of the Division persons who are just as vulnerable and in need of protection as common law employees. In the second place, adopting a narrow meaning of the word "employee" would place Australia in breach of its obligations under the Convention which it has ratified. In the third place, a narrow construction of the word "employee" would defeat the object of the Division which is to give effect to the Convention.
[104]In the context of Division 3 it is my view that, speaking generally, an employee is a person who performs work or labour (personal services) for another; that is to say, a person who sells his labour and not the product of his labour. Further, once it is accepted that the common law meaning of the word "employee" does not control Division 3, in my opinion it necessarily follows that a constable is an employee who is entitled to the protection of the Division. In almost all respects a member of the police force is in the same position as any other employee of the Crown. He is subject to the direction and control of the Crown, although he acts "independently" in the manner in which he carries out certain duties. He is paid a regular wage and makes no profit. He is provided with equipment needed to carry out his duties. His position, nowadays at least, is permanent. He is entitled to holidays, sick leave and other entitlements afforded generally to employees.
It followed therefore, that “employee” in the Industrial Relation Act 1988 (Cth) was not confined to its common law meaning, and that police officers in the State of Victoria were employees within the meaning of that legislation.
In Russell the New South Wales Court of Appeal considered a question of law referred to that Court which necessitated a consideration of the meaning of the word “employee” for the purpose of the Anti-Discrimination Act 1977 (NSW), and whether a police officer is an employee of the Commissioner of Police. Mr Russell, who was an Aboriginal man who had died, had been the victim of unlawful racial discrimination and racial vilification perpetrated by a group of New South Wales police officers. The Anti-Discrimination Act, defined employment as “includes work under a contract of services”: s 4. The provision considered in the proceedings was s 53 of the Anti-Discrimination Act, which relevantly stated that “[a]n act done by a person or agent or employee of the persons principal or employer which is done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of that act, authorise the agent or employee, either expressly or by implication, to do an act”: s 53(1). The Court concluded that for the purposes of the Anti-Discrimination Act, the word “employee” should not be narrowly read such as to confine it to situations in which there is a contract of employment, but that it extended to the situation of a police officer.
Spigelman CJ gave the judgment for the Court with Stein JA and Davies AJA agreeing. Spigelman CJ described the relevant arguments before the Court at [79]-[82]:
[79]Counsel for the Appellants supported the approach to construction of s53 adopted by Sully J. As I have indicated above, his Honour read the words “Commissioner of Police” in place of the word “employer” in s53. This left the word “employee” unaffected. In this Court, the Appellants supported his Honour’s assumption that the word “employee” in s53, and elsewhere in the Anti-Discrimination Act, is to be understood as a legal concept identifying a particular common law relationship. It is extended to encompass independent contractors, by the definition of “employment” to including “work under a contract for services”, but the statute did not, it was submitted, otherwise affect the common law concept.
[80]As indicated above, there are a number of categories of members of the Police Service of New South Wales. Some of the categories are expressly stated to be employees. All members of the Senior Executive Service must enter into a contract of employment. The Police Service Act, notably, does not treat police officers as being subject to a contract of employment. It was this differentiation which, to a substantial degree, caused Sully J to conclude that the traditional common law position has not been altered by the Police Service Act.
[81]The issue, however, is not one of construction of the Police Service Act directly. The issue is the meaning of the word “employee” in the Anti-Discrimination Act 1977, particularly after its amendment in 1997 to include s4B. Whether a word such as “employee” is used in a technical legal sense depends on the construction of the specific statute in which it appears.
[82]The word “employee” has a legal meaning in the sense of a person who has a contract of employment with another. However, the word is capable of being used in a more general sense to encompass a person who is paid for performing work on a regular basis at the request, and at the direction, of another. In particular statutes the word “employee” will often be construed to extend to an independent contractor, even in the absence of an express statutory extension of a character contained in the Anti-Discrimination Act. The issue turns on the proper construction of the word in its context, in which process the scope and purpose of the statute under consideration plays an important part.

In reaching its conclusion the Court referred to Honeysett which was delivered subsequent to the decision of the primary judge in Russell. Spigelman CJ observed at [83]-[86]:
[83]Subsequent to the decision of Sully J, a similar issue arose in this Court in Police Service of New South Wales v Honeysett, supra. The Police Service paid workers compensation to a passenger of a car driven by a police officer. It brought an action against the officer for indemnification. Pursuant to s3 of the Employees Liability Act 1991 the police officer would have been liable to indemnify the Service if she was not an employee. That section commences with the words: “If an employee commits a tort for which his or her employer is also liable …”.
[84]Priestley JA, with whom Ipp AJA and Sperling J agreed said:
“[22]The Police Service Act in my opinion shows a use of the idea of employment in its ordinary sense running in parallel with a recognition of the continuing office of constable as an office that can be exercised simultaneously with an employment relationship existing between the Police Service and the police officer. This seems to me to be a realistic recognition of the fact that the range of duties a police officer may be required to fulfil pursuant to the Police Service Act appears to be at least potentially and I would think almost certainly in practice, much wider than the range of duties required by the office of constable.”
[85]His Honour also said:
“[30]The Police Service Act shows that in many ways the conditions of service of police officers had been substantially assimilated to those of ordinary employees; the Workers Compensation Acts have shown the same development as have various Acts regulating industrial relations. The fact that some of these Acts, preceding the Police Service Act, only apply to police officers by virtue of deeming provisions does not detract from the factual situation that has now been reached that in virtually every way police officers are treated statutorily as employees and, in the Police Service Act, in 1990, were treated as employees in an undefined sense.
[31]When those considerations are taken into account with the strong purpose behind the Employees Liability Acts of ensuring that persons in the position of employer should not be able to pass on to persons in the position of employees liabilities incurred by the employers as a result of things done by employees in the course of their employment, it seems to me that the word employee in s 3 of the Employees Liability Act 1991 should not only be read as including police officers working (to use a neutral term) for the Police Service pursuant to the Police Service Act but in fact means a class of persons including police officers working pursuant to that Act.”
[86]A similar conclusion was reached by the Full Court of the Federal Court of Australia in Konrad v Victoria (1999) 91 FCR 95 where the issue is whether a member of the Victorian Police Force was an employee for the purposes of Div 3 Pt VI A of the Industrial Relations Act 1988 (Cth). The scope and purpose of the Act there under consideration led to the result that police officers were held to be employees for purposes of that legislation (see especially at [13]-[15], [59], [100] and [104]). The intent of the legislation was that it applied to “all workers” (at [14] and see [59] and [104]).
Spigelman CJ referred to the Anti-Discrimination Act and observed at [87]-[88]:
[87]In the statute presently under consideration, the word “employee” appears in each of the provisions of the Act rendering it “unlawful for an employer to discriminate against an employee” on the relevant ground, in the present case, race. For beneficial legislation, such as the Anti-DiscriminationAct, a liberal interpretation is appropriate. This is reinforced by the purposive approach required by s 33 of the Interpretation Act 1987. (See IW v City of Perth (1997) 191 CLR 1 esp at 11-12, 18, 22-23, 58.)
[88]Nothing in the scope and purpose of the Act suggests that it should be limited to persons subject to contracts of employment, even with the specific statutory extension to include work under a contract for services. Insofar as persons do “work” in a context closely analogous to “employment”, the purpose of the legislation would be better served by extending the protection of the Act to such a relationship. There must be some element of regularity and permanence in the relationship, and also an element of direction and control of work, for it to fall within an extended sense of the word “employment”. But where such context exists, the Court should be slow to hold that the Act has no application.
The consequences of the appellant’s submission were addressed at [89]-[91]:
[89]…Accordingly, on the submissions for the Appellants in this case, the only members of the Police Service who would not be covered by the protection of the Anti-Discrimination Act, in the sense that they could complain about discrimination against them in work, are police officers. This is a most unlikely result, particularly after the enactment, in 1997, of s 4B.
[90]Appointments to the Senior Executive Service and appointments to non-executive positions of commissioned police officers are made by the Governor on the recommendation of the Police Board. (See s 36(1) and s 64(1)(a) of the Police Service Act.) Appointment of constables, sergeants and administrative officers are made by the Police Commissioner. (See s 64(1)(b).) It is the Commissioner who is denoted as the relevant “employer” by the 1997 amendments of the Anti-Discrimination Act. This is no doubt a reflection of the Commissioner’s authority over the whole of the Service, established by s 8 of the Act, quoted above. It would be an extraordinary anomaly if, as the Appellants contend, the Commissioner was deemed to be the employer under s 4B for the purposes of the Senior Executive Service, whom he does not appoint, but is not such an employer for purposes of the non-commissioned officers, whom he does appoint.
[91]Counsel for the Appellants also accepted that it was a necessary consequence of the construction for which he contended that if a member of the Senior Executive Service committed a discriminatory act against a third party, the Commissioner of Police could be held liable under s 53. However, no such consequence would flow in the case of police officers. This is another anomaly which is unlikely to have been intended.
There were a number of textual indications also said to support that the word employee ought to be given a narrow construction, including that the word employee appears most frequently in the context of reference to work: at [92]. Spigelman CJ did place “particular significance” on the language of s 4B: at [93]. He also concluded that the purpose served by the various sections which referred to employee would be best served if the meaning were not confined. Section 4B in the Anti-Discrimination Act provided inter alia, that a reference in that Act to employer in relation to employment in the Police Service is a reference to the Commissioner of Police, and anything determined or done with respect to any such employment by an officer or employee in the Police Service who is authorised to determine and do things in that respect is taken to have been determined or done by the Commissioner of Police.
As the respondents submitted, there is no such equivalent provision in the DD Act.
In relation to Honeysett, the applicant relied inter alia on the reasoning of Priestley JA referred to above, and the reference to the second reading speech of the Police Act, with the conclusion at [28]-[32] that it reflects that in ordinary language usage there is no difficulty in understanding that police officers are employees and that it supports the view that that ordinary language usage is carried into the PSA itself. In that regard it is also appropriate to refer to the Court’s reasoning at [21]-[22]:
[21]Part 6 which provides for “Non-executive officers of the Police Service” uses somewhat different language and its provisions, looked at in isolation, could be regarded as equivocal in regard to the employment question I am now considering. That equivocation is lessened by the heading of Pt 8: “General provisions relating to employment of all members of the Police Service”. Although Pt 8 does not itself use the word employment, the situations it deals with and the prescriptions it lays down for members of the Police Service are all consistent both with the heading and with the idea that members are employees, who may at the same time hold the public office of Constable.
[22]The Police Service Act in my opinion shows a use of the idea of employment in its ordinary sense running in parallel with a recognition of the continuing office of constable as an office that can be exercised simultaneously with an employment relationship existing between the Police service and a police officer. This seems to me to be a realistic recognition of the fact that the range of duties a police officer may be required to fulfil pursuant to the Police Service Act appears to be at least potentially and I would think almost certainly in practice, much wider than the range of duties required by the office of constable.
The applicant contended that a consideration of the Police Act itself bears that out. In particular, reference was made to the preamble (recited above), the composition of the police force: s 5 (recited above), Part 6 which addresses non-executive police officers and refers in instances to employment: for example, s 72, and that the Commissioner is the employer of non-executive officers for the purposes of any proceedings relating to non-executive officers held before a competent tribunal having jurisdiction to deal with industrial matters: s 85. It was submitted that these features are reminiscent of the features discussed in Honeysett. In so far as the applicant’s submission was based on s 85 creating an employment relationship, it appears to have been advanced as an alternative argument.
Consideration
At common law members of the police force are not engaged as employees but are independent office-holders exercising original authority in the execution of their duties: Enever v The King (1906) 3 CLR 969 at 982; Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237; Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1955) 92 CLR 113 at 122, 129; Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637 at 643. A police officer is required to take an oath or affirmation of office to keep and preserve the peace and to discharge his or her duties faithfully according to law: s 13 of the Police Act; cl 17 of the Police Regulation. Non-executive police officers do not have employment governed by a contract of employment. This is to be contrasted with the Commissioner, NSWPF senior executives and administrative officers: s 27(1), ss 32-42, ss 81-81G.
That said, those authorities referred to above at [81]-[95] reflect that police officers have been held to be employees within certain statutory regimes. It follows that those statutory regimes, in so far as they relate to employment, have not applied the common law concept of the term.
Accepting that at common law a police officer does not fall within the definition of employee, as a general observation, a consideration of the Police Act reflects, for the reasons the applicant submitted above, that it uses the notion of employment in the ordinary sense of the meaning (being paid for performing work on a regular basis at the direction of another), treating police officers as employees. The descriptions in Konrad and Russell to that effect are apt. This is particularly so in relation to matters which might typically be regarded as characteristic of employment for example, conditions of service and industrial matters. Added to that, I observe in passing, the Guidelines in issue in this application also refer to police officers as employees, and that they are engaged in employment. That is to not to deny that a police officer has duties to perform which derive directly from the law and require individual judgment.
It is necessary to return to the DD Act as the text of the relevant provision, the definition of employment, is the starting point for ascertaining its meaning, having regard to its context and purpose. A number of observations may be made.
First, the DD Act is beneficial legislation. The objects of the DD Act are inter alia, to eliminate, as far as possible, discrimination against persons on the grounds of disability in a number of areas, one being work: s 3(a)(i). The objects also include ensuring, as far as practical, that persons with disabilities have the same rights to equality before the law as the rest of the community and to promote the recognition and acceptance within the community that persons with disabilities have the same fundamental rights as the rest of the community: s 3(b) and (c). Beneficial and remedial legislation is to be given a liberal construction, although a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 11-12, 22-23, 58. That “beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively”: New South Wales Aboriginal Land Councilv Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 at [92] per Gageler J, and see Acts Interpretation Act1901 (Cth). Accordingly, the task remains one of statutory construction.
Second, there is no definition of “employee” in the DD Act, rather there is a definition of “employment” as recited above at [72]. That definition uses the term “includes”, and thereafter refers to four items. Not included in those items are all the circumstances that are encompassed by the common law definition of employment, although subparagraph (a) would be covered by that definition. Subparagraphs (b)-(c) could be seen as relating to circumstances which are not, or may not, be covered by the common law concept. That, as explained below, is readily apparent from the terms of this definition, but also by additional definitions of the terms encompassed in (b)-(d).
Third, the use of the term “includes” is ordinarily intended to enlarge the ordinary meaning of the word being defined. This is to be contrasted with “means” which tends to reflect that the definition is exhaustive.
This was a point conveniently summarised in Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation[2019] FCA 1849 at [27]:
[27]The word “including” in a definitional clause can serve a number of different functions. Ordinarily, where “includes” is used in a statutory definition it may have either or both of two functions: to extend the ordinary meaning of the particular word to bring within the scope of the meaning of that word something that otherwise would not be encompassed by it (Re Gray; Ex parte Marsh (1985) 157 CLR 351, 364–365; [1985] HCA 67 at [18]; Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310; [1996] HCA 31); and/or to avoid possible uncertainty as to whether something may come within the definition by expressly providing for its inclusion (Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201, 206–207; [1985] HCA 64 at [5]; BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145, 159; [2008] HCA 45 at [32]). The word “includes” can also provide an exhaustive explanation of the meanings to be attached to the word if the context in which the word appears reveals that intention: YZ Finance, 398–399, 402. See also Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) at [6.60]–[6.63].
It will be recalled that the applicant submitted that the text is inclusive and refers to the ordinary meaning of the word while the respondents contended the starting point was the common law, and that the definition extended the common law. In that context, the respondents submitted that “includes” in the definition of employment should be construed as “means” in this section, relying on YZ Finance Company Pty Ltd v Cummings (1964) 109 CLR 395 (YZ Finance). The respondents contended the definition is for clarification and expansion and that the definition is exhaustive.
YZ Finance does not assist the respondents’ submission. There the issue was whether a promissory note fell within the definition of security in the Moneylenders and Infants Loans Act 1941 (NSW). The definition of security in the Act included a number of items, but not a promissory note. This is in the context where, if the term security was not defined but its ordinary meaning applied, a promissory note would fall within that concept. Each of the matters listed in the definition would also have fallen within the ordinary meaning of the word. In that context, and considering the whole of the Act, a majority of the High Court concluded that notwithstanding the use of the word “includes”, the definition was exhaustive. In doing so the High Court noted the inconsistent use of the terms “includes” and “means” throughout the Act.
Although a number of authorities consider the meaning of “includes”, they reflect that its meaning depends on the terms of the provision, considered in context.
It was accepted, as noted above, that the definition of employment in the DD Act does not include all forms of employment that would fall within the definition at common law, yet it includes subparagraph (a) which would fall within common law understanding of the term. The definition therefore could not be exhaustive. The definition also includes circumstances which expand the concept of employment as may be understood at common law. Therefore, it follows that the definition is not just listing those circumstances in addition to those recognised at common law. Moreover, the definition provision in s 4 uses the word “means” in respect to most of the words or phrases that are defined therein. The use of “includes” in the definition of “employment” is in contrast to that.
Fourth, in that context, the definitions in subparagraphs (c) and (d) are very broad. As to Commonwealth employees, subparagraph (c) includes categories of persons who would not fall within the common law definition of employment because of the nature of their appointments, including the police and members of the defence forces. That said, I note that in relation to the Australian Federal Police, the Australian Federal Police Act 1979 (Cth) does designate its police officers as employees. Nonetheless, as can be seen by the definition and the various categories listed, the definition is expansive, including people employed, holding office, appointed or being a member of a specified organisation. All persons within that definition are employees, and in employment as defined in the DD Act, for the purposes of the DD Act.
Subparagraph (d) considered in context, is similarly broad.
The respondents attempted to draw a distinction between the terms used to describe a Commonwealth employee and that used in respect to a State instrumentality. It was submitted that (d) is qualified by the use of the word employee. No definition of state employee is provided, only the meaning of instrumentality of the State. That definition is also expansive.
The respondents submitted that the definition of employment reflects that Parliament has turned its mind to the circumstances where employment would be extended outside the standard common law employment notion. It was submitted therefore, that by Parliament specifying those circumstances (for example, in the definition of Commonwealth employee where appointment to public office and membership of a discipline force would constitute an employment relationship), then any omission to specify such circumstances (for example in relation to (d)) must, by necessary implication, mean that the circumstance does not fall within the definition. It followed, so the respondents submitted, that “[t]his indicates that Parliament carefully drafted the definition of employment to be exhaustive in codifying the circumstances where it was intended to apply outside the standard definition of employment”.

The applicant submitted that it is not an objective feature of the applicant’s circumstances that the officer has been certified unable to return to his pre-injury duties or perform their inherent requirements because that finding could not properly have been made in the applicant’s case. Rather, the applicant contended that the comparator had to be without the disability that the applicant had, for which it was said that Superintendent Glinn attributed factors typically associated with that disability as the basis provided as the reason for the termination. Without that disability the applicant said one would infer that the hypothetical comparator would be treated in accordance with the Guidelines and the practical experience shown by the PSAC records.
The applicant submitted that a person in those circumstances, without a disability would not have been treated in the same way as the applicant.
The respondents took issue with the applicant’s identification of the comparator. The respondents submitted that the applicant’s scenario is entirely artificial. On the applicant’s case the applicant has a disability and the comparator has to be someone without a disability on sick leave, ready for medical discharge. However, if an officer does not have a disability (injury or illness) rendering the officer incapable of performing his or her duties which is likely to be permanent, they would not be the subject of an application for medical discharge or on long term sick leave.
The respondents submitted that the objective circumstances include the functions, powers and responsibilities of the Commissioner and the industrial arrangements, and in that context contended the relevant comparator to the applicant is a police officer holding the status of LSC without the applicant’s disability who is unable to perform the inherent requirements of the role. Therefore, the comparator involves a comparison between a person in the applicant’s position who has a disability, who is unable to return to pre-injury duties and is unable to perform the inherent requirements of the job, as against someone who does not have a disability but cannot perform the inherent requirements of the job.
The respondents referred to Laycock v Commissioner of Police NSW [2006] NSWADT 261, and submitted that, in the context where the issue before the Tribunal was the failure to promote a police officer, there were factual similarities with this case. In particular the respondents referred to [69] where the Tribunal observed, immediately after discussing Purvis, that:
Ms Eastman was correct when she stated in her written submissions that on the facts of this case “[t]he relevant circumstances for the purpose of the comparison is the circumstance whereby an employee is unable to perform the duties of the role for which he/she applied and demands that the employer waive its rights to demand performance”. We are satisfied that Ms Myers and Superintendent Hodsdon acted as they did on 19 September 2002 because of expert opinion that the applicant could not fulfil all of the duties of the job to which he wished to be promoted. We are not satisfied that the respondent would have treated an employee who did not have a disability which was the same as or similar to the applicant’s disability, and who could not perform all of the duties of the job, more favourably than the applicant. It was the applicant’s inability to perform the duties of the job, and not the reason for that inability, which was the operative factor. As Ms Eastman submitted, the result would have been the same had an applicant for promotion to the job of Investigations Manager at the Lake Illawarra LAC been unable to fulfil the actual duties of that job for any other reason.
The respondents submitted that reasoning applies to this case.
Consideration
The applicant’s submission cannot be accepted.
The comparator is “a person without the disability in circumstances that are not materially different”: s 5(1) DD Act. Guidance in relation to determining a comparator was provided in Purvis at [222]-[224] where Gummow, Hayne and Heydon JJ explained how the “circumstances” should be identified:
[222]It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the "circumstances" to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical – circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
[223]In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
[224]The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
In Purvis the applicant was a student who suffered a severe injury as a baby with the consequence that he had behavioural problems which included behaving violently to others. The applicant’s claim was that was that he was discriminated against in his education and later excluded from school on the ground of his violent behaviour toward staff and students which had resulted from his disability. In that context the Court concluded that the circumstances in which the student was treated included the fact that he had acted as he had. That is, his violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils: Purvis at [225]. From that s 5(1) presented two questions: (i) how, in those circumstances, would the educational authority have treated a person without the applicant’s disability? (ii) If the applicant’s treatment was less favourable than the treatment that would be given to a person without the disability, was that because of applicant’s disability?
The applicant’s submission and identification of the circumstances of a comparator relies on premises that are incorrect. First, the applicant’s submission as to how the comparator would be treated is premised on a number of propositions from the Guidelines (but not including the revocation aspect of cl 1.42) which are not supported by a proper reading of the Guidelines (as explained above at [134]-[162]). Rather, the submission proceeds on an erroneous proposition as to the entitlement to maintain the LSC status: see [156]-[157] above. Second, the submission is also predicated on the premise that the preconditions in cl 1.42 were not satisfied. This submission was primarily based on the assertion that the applicant was certified fit for a graded return to work by Ms Boban, and therefore the status is maintained during any rehabilitation designed to return the officer to their pre-injury duties. However, as explained above at [163]-[185], the applicant was objectively found to be unable to return to pre-injury duties and to be unable to perform the inherent requirements of the position. It cannot be ignored that Dr McMahon, in a report directed to retirement on medical grounds, concluded that medical discharge would be appropriate in a context where the criteria for that discharge includes incapacity to fulfil the duties and that it is likely to be permanent. Also, as previously explained, Superintendent Glinn addressed each of the inherent criteria before concluding that applicant was unable to perform inherent functions. He did not approach the consideration on the basis the applicant had a disability and therefore could not perform the function.
As the respondents contended, relevant to the circumstances are the functions, powers and responsibilities of the Commissioner and the industrial arrangements, and in that context the relevant comparator to the applicant is a police officer holding the status of LSC. Also, as the respondents contended, the Guidelines refer to other circumstances where the officer may no longer be able to perform the inherent requirements of the LSC: for example cl 1.31. Another example is in cl 1.42 where the officer is deployed to other suitable employment. The applicant’s submission as to a comparator cannot simply ignore that part of the Guidelines which include the revocation clause, and the context in which that clause appears.
The circumstances postulated by the applicant referred to at [215]-[216] above, are devoid of every feature which presented a difficulty for him. There is no proper basis for that approach: Purvis at [222].
The relevant circumstances in this case would include, but are not limited to the matters referred to above. It includes that the officer could not perform the inherent requirements of the LSC position (by reason of, inter alia, the officer does not possess the superior technical skills necessary for the position, and could not fulfil the leadership role which attended the position, for example, could not provide situational leadership, was not able to support training officers).
In those circumstances, and in the context of the Guidelines, the applicant has not established that he has been treated less favourably than someone without his disability.
An LSC who could not perform the inherent requirements of the position in the circumstances identified would have the status revoked.
Similarly, in the context of the Guidelines, an LSC who had been on extended leave as a result of an injury or illness, who has a disability or illness different to the applicant but who is unable to return to return to pre-injury duties and unable to perform the inherent function of the role, by reason of, inter alia, the officer does not possess the superior technical skills necessary for the position, and could not fulfil the leadership role which attended the position would also have the status revoked.
The PSAC records relied on by the applicant in this context are inadmissible. The respondents correctly submitted the PSAC records, relied on by the applicant for this purpose (amongst others) are irrelevant. The material at its highest consists of a table containing some names of persons referred to as an LSC, a very brief reference to medical condition, and what is said to be the record of persons certified as proper cases for medical discharge. The entries shown are those with the LSC designation. All are officers with an illness or injury such as to be medically discharged. No further information is known about those persons. The document does not refer to any other officers, it does not address the circumstance when the LSC status was revoked. The information is very scant, and at best reflect that the Guidelines may have been inconsistently applied (at least as to timing). That is not relevant to the issue of comparator. That someone else with a disability might have been treated differently (which cannot be properly ascertained from these records) says nothing about the applicant being unfavourably treated, let alone because of his disability. Noting also that the applicant relied on a hypothetical comparator the applicant’s reliance on the records is misplaced.
The applicant has not established that he was treated less favourably than a person without the disability in circumstances not materially different to the applicant.
Causation
It follows that the issue of causation does not arise. Nonetheless, it is apparent that underlying the applicant’s submission is his concern, amongst other things, that cl 1.42 appears to have been inconsistently applied. It appears that may well be the case. However, that is not a basis to submit that he has been treated differently or less favourably based on his disability.
As explained above, Superintendent Glinn was satisfied that the applicant could no longer perform the inherent requirements of the LSC role.
Indirect discrimination
Even if cl 1.42 did not compel the revocation, or if the claim falls within s 15(2)(b) or (d) instead of (a), the applicant would not have established indirect discrimination.
Submissions
The applicant submitted in the alternative, that if direct discrimination is not established and that the Guidelines permitted or required the revocation of the applicant’s LSC status, the terms of the Guidelines indirectly discriminated against him within the meaning of s 6(1) of the DD Act, as a person with a disability. It was submitted that the revocation aspect of cl 1.42 imposes a “requirement or condition” within the meaning of s 6(1) of the DD Act.
The applicant contended that “a requirement or condition that for an LSC appointment to be maintained whilst on paid sick leave the unfit officer not be found permanently unable to undertake the inherent requirements of an LSC appointment”, had been imposed. The requirement or condition was described in the statement of claim as “the applicant's LSC appointment may be “revoked” if he was on paid sick leave and had been certified as unable to return to their pre-injury duties and was unable to undertake the inherent requirements” (sic) of the LSC appointment”.
The applicant submitted that the only issue in this case is the reasonableness of the term or condition. Noting the onus is on the respondents to establish that the requirement or condition was reasonable, the applicant submitted that the revocation of LSC status was unnecessary as the Guidelines provide internally that the officer could be placed in an overstrength position retaining their status: cl 8. The applicant submitted that the condition permitted the respondents to unilaterally reduce the salary of a police officer absent from duty because of a work-related injury, whilst on authorised paid sick leave, and because they have an incapacitating injury arising from their duty which “is grossly unreasonable and unfair”. It reduced the salary of the injured police officer despite being entitled to paid sick leave until they either become well or medically retire, and adversely affected the value of the lifetime pension to which they will become entitled upon their medical discharge. It was submitted that the clause was introduced in 2014, 12 years after the applicant was appointed as an LSC, without his agreement (although apparently by agreement between the respondents and the PANSW), and whilst he was already on paid sick leave arising from a work related injury. It was submitted that there was no evidence that there had been any problem up to that point. It was also submitted that it is the only salary of a police officer that can be reduced unilaterally, absent misconduct: see ss 69 and 173 of the Police Act. The applicant submitted that “the only effect of the revocation was to reduce the value of the statutory entitlement to which the applicant was entitled”.
The respondents took issue with the applicant’s contention that the only issue is that of reasonableness. As with the applicant’s argument for direct discrimination, the respondents contended that compliance with the revocation clause was imposed by the terms of the Guidelines, and s 87(1) of the Police Act and as incorporated in the Award under cl 41.2. The respondents submitted that “there is a distinction between something which adheres to the status or the nature of the appointment, as opposed to something which is separately imposed outside the nature of the appointment”. The respondents submitted that this condition falls into the former category.
The respondents also took issue with the applicant’s characterisation of the revocation clause, and contended that it is not a discretion to revoke but an obligation. The respondents also contended that the applicant’s identification of the condition alleged to have been imposed in cl 1.42 was incorrect. For example, the respondents submitted that whether an LSC is taking paid sick leave at the time of revocation is not relevant. In doing so the respondents emphasised that the Court is not bound by the applicant’s formulation of the condition alleged to be imposed but must ascertain the actual requirement or condition: Amery at [208]. The respondents contended that the requirement or condition imposed under cl 1.42 is that a police officer be able to be certified to return to pre-injury duties and perform the inherent requirements of the role of LSC.
The respondents submitted that in any event, the requirement and condition imposed is reasonable. The respondents submitted that the Guidelines are made as an agreement between the Commissioner and the Association (of which applicant was at least at the time, presumably a member) and had legal force and effect under s 87(1) of the Police Act and was binding on the applicant under s 87(3) of the Police Act, and incorporated into the Award under cl 41.2. The respondents submitted that the applicant agreed to the appointment in the context that such an appointment would be governed by the agreed Guidelines. The role of LSC requires a police officer who has high levels of professional knowledge and expertise and who is able to provide guidance, mentoring and tutoring to less experienced officers. Necessarily, an LSC must be able to undertake operational duties, possess the appropriate training and accreditation and have kept up to date with the latest developments and practices and procedures in the area. Unless an LSC meets the requirements, then he or she cannot provide such guidance, mentoring and training to junior officers. The respondents submitted that under the LSC Agreement and Guidelines, there is only limited funding for and allocation of LSC to each Command. There is no capacity to increase the number of LSCs allocated to each Command: cl 18. The respondents also submitted that in an employment context, it is commonly understood and generally accepted that where a person cannot perform the inherent requirements of a particular position, then it is a valid defence to a claim of unlawful discrimination: see DD Act, s 21A; Fair Work Act 2009 (Cth), s 351(2)(b); see Qantas Airways Ltd v Christie (1998) 193 CLR 280; X v The Commonwealth of Australia [1999] HCA 63; (1999) 200 CLR 177 at [8] and [31]-[35].
Consideration

A claim of indirect discrimination directs attention to s 6 of the DD Act recited above at [70]. To establish the claim it must be established that the respondents required the applicant to comply with a requirement or condition, which, because of the applicant’s disability he does not or would not comply, or is not able or would not be able to comply, with the requirement or condition, and the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the applicant’s disability.
However, unlawful indirect discrimination does not occur if the requirement or condition is reasonable, having regard to the circumstances of the case: s 6(2) of the DD Act. The burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the Commissioner as the person who requires the applicant to comply with the requirement or condition: s 6(3) of the DD Act.
Contrary to the applicant’s contention, the issue in this claim is not simply one of reasonableness.
It is appropriate to first consider the condition said to be imposed. As the respondents correctly submitted, there are two aspects of the applicant’s characterisation of the condition which is incorrect. First, that the applicant’s contention that LSC status may be revoked as if there was a discretion whether or not to do so, when as explained above at [150]-[162], properly understood cl 1.42 compels the result. Second, that the person is on paid sick leave. This aspect of cl 1.42 applies irrespective of whether the injury or illness is work related. The condition in cl 1.42 is more properly described by the respondents and is that a police officer be able to be certified to return to pre-injury duties and perform the inherent requirements of the LSC role.
That said, attention must be directed to the terms and conditions attendant on the applicant by his appointment as an LSC: Amery at [79]-[82]. It is not the existence of the condition to which the DD Act is directed, but whether the respondents have engaged in the proscribed form of discrimination: Amery at [65]. As the respondents correctly submitted, “there is a distinction between something which adheres to the status or the nature of the appointment, as opposed to something which is separately imposed outside the nature of the appointment”, and cl 1.42 falls into the former category. For the reasons given above, cl 1.42 is part of the terms and conditions of that appointment. On that basis there was no requirement or condition within s 6(1)(a) of the DD Act.
Even if the condition described above at [238] does fall within s 6(1)(a), I accept that the respondents have established that the condition in the revocation clause is reasonable. The applicant’s submission to the contrary cannot be accepted.
Whether a requirement or condition is reasonable cannot be considered in the abstract. The nature and extent of its discriminatory effect must be balanced against the reasons for the requirement including any commercial considerations; whether it is appropriate and adapted to its purpose and has a logical and understandable basis; and whether there is a less discriminatory option, including any accommodation of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory: Waters v Public Transport Corporation (1991) 173 CLR 349 at 378. These are questions of fact and degree.
As the respondents submitted, in assessing the reasonableness it is necessary to “ascertain the reasons underlying a respondents’ insistence upon the relevant requirement or condition” and ask “whether, having regard to such discriminatory effects as it is shown to have and considering the question in a practical and not merely theoretical way, it is, under all the circumstances, objectively justified”: referring to Styles v Secretary Department of Foreign Affairs and Trade [1988] FCA 364 at [74] approved on appeal Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263. The assessment involves an examination of the requirement and not the conduct of either party. It is not concerned with whether the parties have acted reasonably or unreasonably, an evaluation of the correctness of the Commissioner’s decision or whether other alternatives were reasonable: Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 87; Australian Medical Council v Wilson (1996) 68 FCR 46 at 61; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 112; State of Victoria v Schou [2004] VSCA 71; (2004) 8 VR 120 at [27].
It has also been recognised that the existence and terms and conditions of an industrial agreement or an award, the statutory scheme and context may be a relevant circumstance in determining the issue of reasonableness: Amery at [13]-[17].
Against that background I turn to the Guidelines and the condition.
The revocation of LSC status does result in the officer being paid at the Senior Constable rate, which is lower than the LSC rate. However, contrary to the applicant’s contention that is not the only effect of the revocation. It, amongst other things, frees up that LSC position to be filled, provides another officer with the opportunity of filling the position with the benefits that entails, and also provides the Command with the leadership role being actively filled with the benefit for more junior officers.
LSC is an appointment not a rank. The positions are limited per Command. The positions are subject to management by the Commander and subject to conditions reflected in the Guidelines, which themselves are subject to change. It is not necessarily a continuing position in that it is subject to conditions including yearly assessments, performance reviews, and there are circumstances where the appointment may or must be revoked. The position does not travel with the officer if the officer changes Command. It was designed to recognise the experience and skills of, and provide leadership assistance by, experienced Senior Constables.
Although, and noted earlier, an LSC who is likely to be medically discharged would satisfy the preconditions of the revocation clause, the clause is broader than that. It includes injury or illness which is not work related and officers who are deployed to other suitable employment. An officer who satisfies the preconditions that they are unable to return to their pre-injury duties and are unable to perform the inherent requirements of those duties may nonetheless be able to perform other duties and continue employment with the NSWPF.
Contrary to the applicant’s submission, the condition is not unnecessary because of the ability to place the officer in an overstrength position if there is likely medical retirement. Clause 8 only applies to those likely to be medically discharged, and therefore has no application to those who have non work related injuries. It therefore has wider application than cl 8. Moreover, for the reasons previously explained at [152]-[155], the applicant’s submission is based on an incorrect reading of the Guidelines. To be placed in an overstrength position does not result in the applicant retaining his LSC salary. Also, contrary to the applicant’s submission, for the reasons previously given at [156]-[157], the applicant does not have an entitlement to continue to hold the position for all the time he is on sick leave. Neither the Guidelines nor the Police Act support that proposition.
The revocation clause has a logical and understandable basis. The applicant’s submission in many respects focuses on his individual position and a claim that the consequence is unreasonable because it is unfair in his case. That the clause did not exist in the earlier Guidelines does not suggest it was not reasonable or needed. To the contrary, that the changes were made by agreement between the Association and the Commissioner gives rise to the inference that, in light of the Guidelines as they previously operated, the changes were deliberate, necessary and appropriate. That the changes occurred after the applicant took up the position does not practically affect the assessment of the reasonableness of the condition. Although the applicant referred to that fact, he never articulated its significance to his argument in relation to his claims. It has not been suggested that the clause does not apply to him by virtue of that fact.
The respondents have established that the conditions in the LSC Guidelines are reasonable.
Unjustifiable hardship
The respondents submitted that even if the decision to revoke the applicant’s LSC status constitutes direct or indirect discrimination, in prima facie contravention of ss 15(2)(b) or 15(2)(d) of the DD Act, it was not unlawful because avoiding the discrimination would impose upon him an unjustifiable hardship: s 21B of the DD Act.
Submissions
The respondents submitted that in determining whether a hardship that would be imposed on the Commissioner would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the matters set out in paragraphs (a) to (e) of s 11(1) of the DD Act. The operation of the unjustifiable hardship defence is broad and not limited to the matters in s 11(1)(a)-(e).
The respondents described the hardship as follows:
The alleged discrimination would impose unjustifiable hardship because avoiding the discrimination would mean that the Commissioner’s ability to determine the identity persons to be appointed and the terms and conditions of appointment of police officer to role of Leading Senior Constable would be nullified or impaired. Having been reposed with the responsibility to manage and control the NSW Police Force, the Commissioner must ensure the provision of police services such as the prevention and detection of crime, the protection of persons from injury or death and property from damage and a role in supporting essential services in emergencies: Police Act, s 6(3). Such services are essential to the free and orderly functioning of society, upholding the rule of law, preserving the rights and freedoms of individuals and the prevention of violence, crime and fear: Police Act, ss 6(3) and 7. In carrying out these cardinal functions, the Commissioner is given responsibility to determine the police officers to be appointed to positions including by entering into industrial agreements made with the Association under s 87(1) of the Police Act and making industrial awards by the Industrial Relations Commission of New South Wales under the IR Act. If the Commissioner could not negotiate and implement arrangements governing the appointment of police officers to important roles such as Leading Senior Constable, it would impose a significant and unjustifiable burden on the ability of the Commissioner to manage the NSW Police Force.
In that context the respondents accepted that the s 11(a)-(e) factors would need evidence to be established but submitted that the manner in which it is relying on the defence is different to those factors. The respondents submitted that one fact of which there is evidence is that the Commissioner receives limited funding for these roles which are allocated on a limited basis, and which are the product of an industrial negotiation between the Commissioner and the Union. The respondents submitted that the unjustifiable hardship in this case is the fact that a deviation from that agreement is being sought where there are limited allocations for the position.
The applicant’s submitted that there is no evidence relied on to establish any unjustifiable hardship under s 21B. The applicant submitted that s 21B requires, first identification of what the discriminator was required to do to avoid the unlawful discrimination which is only maintaining the LSC status of the applicant; and second whether doing that would impose an unjustifiable hardship on the discriminator. It was submitted that avoiding the discrimination does not restrain the capacity of the Commissioner to do what the Commissioner considers appropriate by way of staffing and positions necessary.
Consideration
Given my conclusions above it is unnecessary to decide this alternative submission. Suffice to say that the respondents have not advanced any evidence in support of the argument, save for there being evidence as to the limited number of positions, but rather seeks to rely on a general submission based on the number of limited LSC positions and funding and that the Commissioner was acting in good faith in accordance with the industrial agreement. As the respondents accepted, the submission would not fall with s 11(1)(a)-(e), but must rely on the provision being non-exhaustive. In that context it is unnecessary to express a view as to the interpretation of provision and whether such an argument would fall with the concept of unjustifiable hardship.
Orders
It follows that the application must be dismissed. I will hear from the parties on the issue of costs.

I certify that the preceding two hundred and sixty-five (265) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.
Associate:
Dated: 16 February 2021

File number:	NSD 974 of 2018
Judgment of:	ABRAHAM J
Date of judgment:	16 February 2021
Catchwords:	STATUTORY INTERPRETATION – Where the applicant is a constable in the NSW Police Force – whether a constable in the NSW Police Force is an employee for the purpose of the Disability Discrimination Act 1992 (Cth) – interpretation of beneficial legislation – where the definition of employment is inclusive – where the Act is intended to give effect to Australia’s obligations under international law HUMAN RIGHTS – Disability discrimination in employment – where the revocation of the position was compelled on certain preconditions existing – whether revocation constituted direct discrimination – characteristics of appropriate hypothetical comparator – whether the applicant received less favourable treatment – whether the revocation constituted indirect discrimination – whether the requirement that the applicant be able to perform the inherent requirements of the position is reasonable – where claims as pleaded not established
Legislation:	Acts Interpretation Act 1901 (Cth) s 15AB, Australian Human Rights Commission 1986 Act (Cth) ss 46PF, 46PH, 46PO Disability Discrimination Act1992 (Cth) ss 3, 4, 5, 6, 11, 15, 21A, 21B Fair Work Act 2009 (Cth) s 351 Industrial Relations Act 1988 (Cth) ss 170CA, 170CB, 170DE, 170DF, Div 3 of Pt VIA Anti-Discrimination Act1977 (NSW) ss 4, 4B, 53 Crown Proceedings Act 1988 (NSW) s 5 Police Act 1990 (NSW) ss 5, 12, 27, 32-42, 69, 72, 81-81G, 85, 86, 87, 173 Police Regulations 2008 (NSW) cl 127 Police Regulations 2015 (NSW) cl 131
Cases cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1955) 92 CLR 113 Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237 Australian Medical Council v Wilson (1996) 68 FCR 46 Berry v State of South Australia [2017] FCA 702 Broadlex Services Pty Ltd v United Workers' Union [2020] FCA 867; (2020) 296 IR 425 Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2019] FCA 1849 Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232 Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 Clymo v Wandsworth London Borough Council [1989] IRLR 241 Enever v The King (1906) 3 CLR 969 Howe v Qantas Airways Ltd [2004] FMCA 242; (2004) 188 FLR 1 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 James Cook University v Ridd [2020] FCAFC 123; (2020) 298 IR 50 Konrad v Victoria (1999) 91 FCR 95 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 McDougall v Kimberly-Clark Australia Pty Ltd [2006] VCAT 2211 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 381 ALR 601 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 Police Service of New South Wales v Honeysett [2001] NSWCA 452; (2001) 53 NSWLR 592 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 Qantas Airways v Christie (1998) 193 CLR 280 Ryan v Commissioner of Police, NSW Police Force [2019] FCA 1607 Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637 Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247 State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581 State of New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467 State of Victoria v Schou [2004] VSCA 71; (2004) 8 VR 120 Styles v Secretary Department of Foreign Affairs and Trade [1988] FCA 364 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 Trindall v NSW Commissioner for Police [2005] FMCA 2 Philip v State of New South Wales [2011] FMCA 308 Waters v Public Transport Corporation (1991) 173 CLR 349 Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 X v The Commonwealth of Australia [1999] HCA 63; (1999) 200 CLR 177 YZ Finance Company Pty Ltd v Cummings (1964) 109 CLR 395
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	265
Date of hearing:	6-8 July 2020
Counsel for the Applicant:	Mr M Gibian SC
Solicitor for the Applicant:	Police Association of New South Wales
Counsel for the Respondents:	Mr M Seck
Solicitor for the Respondents:	Maddocks

Table of Corrections
19 February 2021	In paragraph 87, “Mr Russell, who was a NSW police officer” has been replaced with “Mr Russell, who was an Aboriginal man”

ORDER MADE BY:	ABRAHAM J
DATE OF ORDER:	16 FEBRUARY 2021