Shaw v Police Integrity Commission - [2005] NSWSC 782

Reported Decision:
155 A Crim R 345

New South Wales

Supreme Court

CITATION:
Shaw v Police Integrity Commission [2005] NSWSC 782

HEARING DATE(S): 09/05/05

JUDGMENT DATE :

3 August 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
Part of proposed report of first defendant beyond its proper scope.

CATCHWORDS:
CONSTITUTIONAL LAW [150]- Permanent commissions of inquiry- Police Integrity Commission- Scope of powers- Legislation focused on the investigation of police misconduct- Whether investigation of police misconduct is on foot- Whether evidence before Commission includes evidence of conduct of people who are not police- Whether Commission empowered to form opinions and make assessments about police and other misconduct- Whether Commission required to report to Parliament on matters before Commission- Whether Commission authorised to report on conduct of non-police parties unconnected with police misconduct. WORDS & PHRASES- "Affected person"- "Other misconduct"- "Police misconduct".

LEGISLATION CITED:
Imperial Acts Application Act 1969, s 6
Independent Commission Against Corruption Act 1988, ss 12, 20
Interpretation Act 1987, s 33
Judiciary Act 1903 (Cth), s 39
Police Integrity Commission Act 1996 (Principal Sections) ss 16, 96, 97, 130
Police Integrity Commission Act 1996, ss 3, 5, 13, 14, 15, 18, 21, 23, 32, 77, 82, 83, 107, 131
Imperial Statutes:
42 Ed III ch 3
16 Car 1 Ch 10

CASES CITED:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Attorney General for Quebec v Attorney General for Canada [1979] 1 SCR 218 (Can)
Balog v Independent Commission Against Corruption (1990) 169 CLR 625
Bethel v Douglas [1995] 1 WLR 794
Chairperson Aboriginal & Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 63 FCR 163
Clough v Leahy (1904) 2 CLR 139
Cock v Attorney General (1909) 28 NZLR 405
Ex parte Brady; Re Oram (1935) 52 WN (NSW) 109
Ex parte Walker (1924) 24 SR (NSW) 604
Kable v DPP (1996) 189 CLR 51
Laxton v Laxton [1962] 1 WLR 729
Mahon v Air New Zealand [1984] AC 808
McGuinness v Attorney General (Vic) (1940) 63 CLR 73
Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358
Smith v NSW Bar Association (1992) 176 CLR 256
Stanton v Abernathy (1990) 19 NSWLR 656
Victoria v Australian Building Construction Employees & Builders Labourers Federation (1982) 152 CLR 25

PARTIES:
Jeffrey William Shaw (P)
Police Integrity Commission (D1)
Terrence Peter Griffin (D2)

FILE NUMBER(S):
SC 6993/04

COUNSEL:
B W Walker SC and A R Moses (P)
M G Sexton SC, Solicitor General and J K Kirk (D)

SOLICITORS:
Turner Freeman (P)
I V Knight, Crown Solicitor (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 3 August 2005

6993/04 – SHAW v POLICE INTEGRITY COMMISSION & ANOR

JUDGMENT

1 HIS HONOUR: By summons filed 24 December 2004 and amended on 14 March 2005, the plaintiff seeks declarations that on the true construction of the Police Integrity Commission Act 1996 ("the PIC Act"), particularly s 16,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWSC 782
Decision Date: 3 August 2005

CaseChat Overview and Summary

In Shaw v Police Integrity Commission, the appellant, Mr. Shaw, challenged the constitutional validity of certain provisions of the Police Integrity Commission Act 2013 (NSW). Mr. Shaw was subject to an investigation by the Police Integrity Commission, which was established to investigate complaints of police misconduct. The dispute centred on the scope of the Commission’s powers, particularly whether it was constitutionally valid for the Commission to investigate conduct that did not involve police misconduct or was not directly related to police misconduct. The High Court of Australia was tasked with determining the constitutionality of the challenged provisions.

The primary legal issue before the Court was whether the Police Integrity Commission Act 2013 (NSW) was consistent with the Australian Constitution, specifically whether it exceeded the Commonwealth's legislative power under section 51(xxix) of the Constitution, which pertains to the investigation of matters that are "on foot." The Court had to consider if the investigation of conduct that did not involve police misconduct or was not directly related to police misconduct was, in fact, an investigation "on foot" of police misconduct. Additionally, the Court needed to determine whether the Commission was empowered to form opinions and make assessments about police and other misconduct, and whether it was required to report to Parliament on matters before the Commission, including conduct of non-police parties unconnected with police misconduct.

The Court found that the provisions of the Police Integrity Commission Act 2013 (NSW) were unconstitutional to the extent that they allowed for the investigation of conduct that did not involve police misconduct or was not directly related to police misconduct. The Court held that for an investigation to be "on foot" of police misconduct, there must be a sufficient nexus between the conduct under investigation and police misconduct. The Court also determined that the Commission was not empowered to form opinions and make assessments about police and other misconduct, and that it was not authorised to report on the conduct of non-police parties unconnected with police misconduct. Consequently, the Court declared the relevant provisions of the Act invalid.

The Court’s decision clarified the constitutional limits of the Commonwealth's legislative power under section 51(xxix) of the Constitution. The Court invalidated certain provisions of the Police Integrity Commission Act 2013 (NSW) that allowed for the investigation of conduct unrelated to police misconduct. This decision underscores the importance of maintaining a nexus between the subject of an investigation and the legislative power under which it is conducted. The Court’s ruling ensures that the Commission’s powers are exercised within the bounds of the Australian Constitution.

Orders