Shields v Chief Commissioner of Police

[2008] VSC 2

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No 9810 of 2006

RICHARD SHIELDS	Plaintiff
v
CHIEF COMMISSIONER OF POLICE	Defendant

JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 and 16 August, 26 September 2007
DATE OF JUDGMENT:	30 January 2008
CASE MAY BE CITED AS:	Shields v Chief Commissioner of Police
MEDIUM NEUTRAL CITATION:	[2008] VSC 2

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ADMINISTRATIVE LAW – judicial review – dismissal of member of Victoria police force - Chief Commissioner satisfied member was unsuitable to continue – responsibility of Chief Commissioner to maintain integrity of, and community confidence in, the force - whether member denied natural justice – whether entitled to entire police file or only what information Chief Commissioner intended to act on – whether improper onus placed on member – whether Chief Commissioner had prejudged matter by making provisional findings – whether improper exercise of power – relevant and irrelevant considerations – principles – member’s prior good service and character – availability of ordinary disciplinary processes – whether relevant – power of dismissal – whether discretionary or compulsive – principles – whether power exercised for improper purpose – whether findings made without evidence – application for judicial review dismissed – “may” – “unsuitable to continue as member of the force” – Police Regulation Act 1958, s 69(1)-(3), Divisions 1-4 of Part IV.

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STATUTORY INTERPRETATION – power to dismiss police officer as member of Victoria police force – whether discretionary or compulsive – interpretation of provision inserted by amending Act passed after 1984 into principal Act passed before that year - whether common law principles of interpretation or rule in s 45(1) of the Interpretation of Legislation Act 1984 applied – whether s 45(3) abrogated the common law principles – principle of co-interpretation of amending and principal Acts – whether relevant to application of s 45(1) to amending Acts - application of s 4(1)(a) to s 45(1) as regards amending Acts – whether contrary intention in s 45(1) – “may” – Interpretation of Legislation Act 1984, ss 4(1)(a), 45(1)-(3) – Police Regulation Act 1958, s 68(1) – Police Regulation and Firearms (Amendment) Act 1999, s 13.

APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr R M Niall	Tony Hargreaves & Partners
For the defendant	Mr P J Hanks QC and Ms F I Gordon	Victorian Government Solicitor’s Office

HIS HONOUR:

INTRODUCTION

1. The maintenance of community confidence in the integrity of the police force is a matter of fundamental importance.  Under the Police Regulation Act 1958, it is the Chief Commissioner’s definite responsibility. The Act confers certain powers to enable that responsibility to be carried out. One is s 68(1). It allows the Chief Commissioner to dismiss a member from the force if she is satisfied of their unsuitability to continue, having regard to their integrity and the potential loss of community confidence were they to continue.

1. On 26 September 2006, being so satisfied of those matters, the Chief Commissioner, Christine Nixon, exercised that power to dismiss Richard Shields, until then a senior sergeant of police, from the force.  These were her grounds:

·     Mr Shields had openly engaged in persecutory, intimidatory and bullying behaviour towards others, including conduct that humiliated and degraded women

·     Mr Shields had allowed his relationship with a probationary constable who was not under his management and supervision to lead him improperly to place her professional development ahead of members formally under his management and supervision

1. It was not an issue in this case that the integrity of, and community confidence in, the force might be damaged by the retention of members whose conduct or behaviour was of such a kind, nor that, under s 68(1), the Chief Commissioner had the power to dismiss a member in such circumstances. Nor could it be.

1. As vitally important as the power is, it must be exercised according to law.  In these judicial review proceedings, Mr Shields contends the Chief Commissioner exceeded her power by breaching the rules of procedural fairness, misconstruing and misapplying the power in a number of significant ways, improperly exercising it by ignoring relevant considerations and using it for an improper purpose and, finally, making findings without evidence.  Mr Shields seeks orders quashing the dismissal and requiring the Chief Commissioner to reconsider it according to law.

PROCEDURAL FAIRNESS

Mr Shields’ submissions to this Court

1. Mr Shields submits the Chief Commissioner breached the rules of procedural fairness by denying him a fair hearing in the following respects:

·     failing to give him access to the entirety to the material considered during the initial investigation, whether the Chief Commissioner relied on it or not, and failing to conduct a complete investigation

·     denying him access to the Ethical Standards Department files in relation to the Frankston incidents and the making of the complaint by Mark O’Regan

·     preventing serving officers from speaking with his lawyers

·     adopting different interviewing methods for the initial witnesses as compared with the witnesses who were subsequently identified by him

1. Mr Shields also submits a reasonable apprehension of bias arises from the Commissioner’s apparent prejudgment of the question of his dismissal. This submission is connected to the question whether the Chief Commissioner misunderstood her task under s 68 of the Police Regulation Act by imposing a legal or evidentiary onus on Mr Shields.  Those two questions will be dealt with together in a later section of these reasons.

1. What now follows is a description of the Chief Commissioner’s decision-making process, which will lead-in to my analysis of Mr Shields’ submissions on procedural fairness.

The Chief Commissioner’s decision-making process

The notice of proposed dismissal

1. By a notice of proposed dismissal dated 24 March 2006, the Chief Commissioner gave notice to Mr Shields under s 68(2)(a) that she considered him unsuitable to continue as a member of the force. The notice gave these three grounds:

   1.You have openly engaged in persecutory, intimidatory and bullying behaviour towards others, including conduct that humiliates and  degrades women.

   2.You have engaged in conduct with the potential to undermine public confidence in the prosecution of Azzam Ahmed.

   3.Your relationship with a probationary constable who was not under your management and supervision, has led you improperly to utilise your position to place her professional development ahead of members formerly under your management and supervision

2. The notice complied with the Chief Commissioner’s statutory obligation to set out the grounds of unsuitability,[1] for which particulars must be given, both because this is implicit in the statutory obligation and because it is an aspect of the rules of natural justice as they apply in such cases.[2]

   [1]Section 68(2)(a) of the Police Regulation Act 1958.

   [2]See Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297, 301-305; Public Service Board of New South Wales v Etherton [1985] 1 NSWLR 430, 432; see also R v Little; Ex parte Fong [1983] 1 VR 237, 251.

1. Ground 1 was supported by particularised findings concerning Mr Shields’ actions at the Pier Hotel and Seascape Café in Frankston in 1992 and concerning his actions towards several named persons between 1995 and 2005.  Among the findings specified in this latter category, the notice specified two particular findings, one as regards a named female police officer (who I will call witness X), and the second as regards Mr O’Regan, a member of the public.

1. The Chief Commissioner’s most serious finding against Mr Shields concerned a brief relationship he had with witness X and the circumstances surrounding something of a sexual nature that had occurred between them.  The Chief Commissioner found witness X had endured harassment within the force over many years by reason of the circulation of rumours about that occurrence.

1. Ground 2 was supported by particularised findings concerning a prosecution brought by a member of the Brighton Police Station and Mr Shields’ acceptance of horse racing tickets from the accused’s barrister.

1. Ground 3 was supported by particularised findings concerning Mr Shields’ relationship with a probationary female constable.

1. As Mr Shields has made a point about the language used by the Chief Commissioner in the notice, I will dwell on this subject for a moment. We will see later the language reflected the terms of s 68.

1. By the notice, the Chief Commissioner gave Mr Shields notice of the “grounds upon which I consider that you are unsuitable to continue as a member of the force” (note the word “consider”).  Under each of the three grounds, the Chief Commissioner said “I am satisfied” of a number of factual matters of which she gave detailed particulars (note the word “satisfied”).  The description of those matters read as findings of fact.  At the end of the notice, the Chief Commissioner invited Mr Shields to make submissions, which she said would be taken into account “when I decide whether or not to make” a dismissal order.

1. To the implications (if any) of that language, I shall return.

1. The notice stated the Chief Commissioner had examined the documents specified in the notice, copies of which were attached or available for inspection.  There is no evidence the Chief Commissioner considered any other documents or sources of information.  In other words, the evidentiary basis of her decision to give the notice, and its findings, is to be found in those documents.

1. The documents were these (I have omitted some that are presently immaterial):

Ground 1

·     a Chief Inspector’s investigation report dated 12 November 1992 into various incidents involving Mr Shields and others outside the Pier Hotel and Seascape Café

·     a statement of witness X concerning the findings made as regards her (made available for inspection)

·     a number of statements from police officers concerning the findings made as regards witness X

·     a number of statements concerning the findings made as regards other named persons

·     a psychological report relating to the impact of Mr Shields’ actions on two named police officers, and an email message from Mr Shields to a fellow officer as regards the ill-health of one of them

·     a statement of Mr O’Regan relating to the findings made as regards that person

Ground 2

·     a number of statements from police officers concerning the findings made as regards Mr Shields’ acceptance of race tickets from the accused’s barrister

·     a statement from a solicitor in relation to the same subject

·     a number of email messages, including email messages passing between Mr Shields and the barrister

·     a copy of the Police Code of Conduct, including the section on accepting gifts or benefits

Ground 3

·     two statements of the probationary constable concerning the findings made as regards her

·     various emails passing between Mr Shields and the constable and between him and other officers

Mr Shields’ response

1. Mr Shields’ solicitor responded to the notice by a letter dated 6 April 2006.  The letter said the factual allegations made against Mr Shields were “simply untrue”.  The letter then advanced three main contentions.  First, it was submitted there should be an oral hearing.  Second, it was submitted Mr Shields should be given access to the entirety of the Ethical Standards Department files, including all of the statements taken, as Mr Shields believed there would be exculpatory information in those files.  Third, it was submitted Mr Shields should be given permission to interview the eye witnesses (mostly serving police officers) to the relevant events, as they could rebut the allegations.  The Chief Commissioner’s permission to conduct such interviews was required under standard instructions.

1. In a letter dated 7 April 2006, the Chief Commissioner replied.  First, she said that the question of whether or not an oral hearing should be held was premature and would be revisited after the factual points in dispute (if any) had emerged.  Second, she said Mr Shields had already been given copies of the entirety of the materials on which her view had been formed.  It was implicit in that response that the Commissioner was not intending to give Mr Shields any materials held by the investigating officers, other than materials which had been given to her for the purpose of deciding whether to give the notice.  Third, she said she would be pleased to receive any further relevant information and was prepared to arrange for a statement to be taken from any members nominated by Mr Shields, if he advised her of their identity and the nature of their evidence.

1. Also on 7 April 2006, a police officer representing Mr Shields was given access to the statement of witness X.

1. Mr Shields’ solicitors responded by a letter dated 13 April 2006.  It was accepted that all of the documents considered by the Chief Commissioner had been disclosed.  But it was submitted that the police files “should” or “may” contain exculpatory material, including material showing the Chief Inspector’s investigation report to be incorrect.  The letter then went on to give detailed information about some of the police officers who had given statements against Mr Shields, and made submissions about why those statements should not be accepted.  The letter named, in two categories, a number of police officers who Mr Shields wanted to have interviewed, eight in relation to the events at the Brighton Police Station and three in relation to his alleged actions towards witness X.  The letter expressed denials of a number of allegations, including the allegations concerning that witness.  Finally, it noted the question of an oral hearing was to be held in abeyance and sought an extension of time in which to respond further.

1. In a letter dated 26 April 2006, the Chief Commissioner declined the request for access to the entirety of the police files, because she did not intend to have regard to those files and would only be acting on the disclosed material.  As to the request that further officers be interviewed, the Chief Commissioner said the Ethical Standards Department would make inquiries of the witnesses, all eight from the first category and two from the second, to determine if they had relevant information, and any statements would be made available to Mr Shields.  Lastly, she granted an extension of time in which to make submissions.

1. Mr Shields’ solicitors, by a letter dated 2 May 2006, added a further two officers to his list of additional witnesses.  The letter also complained that the witnesses had been told it was not compulsory for them to make statements whereas, during the initial investigation, officers were required to make statements.  It was submitted there should be consistency of treatment between the two categories of witnesses, which meant that those in Mr Shields’ list should be compelled to speak, failing which they should be made available to his solicitors.

1. In a letter dated 8 May 2006, the Chief Commissioner reluctantly agreed to add the two additional witnesses to the list, bringing the final number up to 12.  She said this should be treated as the final number.

1. Mr Shields’ solicitors wrote again on 10 May 2006.  The letter stated the witnesses were being interviewed on the basis of a template which addressed specific issues.  It complained the witnesses were not being asked directly to comment on “the central allegation”, namely that Mr Shields had “openly engaged in persecutory, intimidating and bullying behaviour towards others, including conduct that humiliates and degrades women.”  It stated many of the officers on Mr Shields’ list were named because they had worked with him and could comment on his conduct, and therefore they should be asked about the central allegation.  The letter requested that, if the witnesses had not been required to comment on that allegation, they should now be asked to do so.

1. In a letter dated 16 May 2006, the Chief Commissioner advised Mr Shields’ solicitors that statements had been taken from 11 of the 12 witnesses, and copies were attached.  It said a statement had not been taken from one witness due to his ill-health.  (That witness’s statement was provided soon afterwards.)  It said one officer addressed the issue of the central allegation.  The Chief Commissioner gave Mr Shields an additional 14 days in which to respond.

1. Mr Shields’ solicitors wrote to the Chief Commissioner on 17 May 2006, complaining again that all but one witness had not been asked to comment on the central allegation.  It was submitted that the witnesses should have been given a copy of the notice, and that the process adopted had allowed the investigation to proceed on the basis of evidence gathered on a limited number of topics from a selected group “to enable a pre-determined decision to be reached and justified.”  It was submitted the 12 witnesses should be re-interviewed about the central allegation, failing which they should be made available for interviewing by the solicitors.  Finally, it was submitted Mr Shields had not been able to defend himself properly because he had been denied access to witnesses with exculpatory evidence and the Chief Commissioner’s process of investigation had been incomplete.

1. In a letter dated 23 May 2006, the Chief Commissioner rejected Mr Shields’ solicitors’ submissions.  She said the statements were taken from the witnesses in relation to the issues identified by the solicitors and denied there was an implicit request in the solicitors’ letter for the witnesses to comment on the central allegation.  The Chief Commissioner said Mr Shields was free to make submissions about any matter relevant to the notice, by the due date, which was 30 May 2006.

1. On that date, Mr Shields’ solicitors provided to the Chief Commissioner his submissions in response.  Among other things, the submissions repeated the criticisms already made of the process adopted by the Chief Commissioner.  These criticisms were fully developed in the submissions.  The result, it was submitted, was a denial of procedural fairness.

1. Without prejudice to that overall response, the submissions then addressed the specific findings made in the Chief Commissioner’s notice.  Detailed submissions of fact were made as regard ground 1 (the Seascape Café and Pier Hotel incidents, witness X, Mr O’Regan and the other named officers), ground 2 (the race tickets) and ground 3 (the female probationary constable).  The submissions advised of Mr Shields’ strong denials of the factual allegations made against him, especially those made by witness X.  General submissions were also made in relation to the allegation of bullying.  Finally, the submissions relied on an extensive body of commendations, statements and other supportive material as regards Mr Shields’ good record of police service and general good character.  A copy of those documents was attached to the submissions, as were an affidavit from the accused’s barrister in the matter of accepting the race tickets and a statement of Mr Shields dated 21 June 2005 in relation to a conversation he had with one of the officers mentioned in the notice.

1. The Chief Commissioner considered those submissions and issued a dismissal order some four months later.

The Chief Commissioner’s dismissal order

1. The order was dated 26 September 2006.  It stated she was satisfied Mr Shields had engaged in behaviour and conduct of the kind specified in grounds 1 and 3, but not 2.  It stated the Chief Commissioner was, for those reasons, satisfied Mr Shields was unsuitable to continue as a member of the force, having regard to his integrity and the potential loss of community confidence were he to continue to be a member.

1. The order stated the Chief Commissioner had considered the submissions made in Mr Shields’ solicitors’ response, including those made in relation to his good character, and an additional statement annexed to the order.  It stated she had re-assessed the grounds specified in the notice of proposed dismissal, and then dealt with each of the three grounds in turn.

1. As to ground 1, the Chief Commissioner’s notice had specified findings in relation to seven particularised matters.  In relation to four matters – witness X, Mr O’Regan, the Brief Clerk at the Brighton Police Station and the incidents outside the Seascape Café and Pier Hotel – the Chief Commissioner maintained her satisfaction.  In relation to three matters – which each concerned findings as regards Mr Shields’ actions towards other officers – the Chief Commissioner did not maintain her satisfaction.  In particular, she said she did not rely on the statements of two officers whose credibility had been strongly attacked by Mr Shields.  In the result, the Chief Commissioner said she continued to be satisfied of ground 1, but on the basis of four not seven particularised matters.  She ranked those matters in descending order of weight from “substantial” (witness X), “significant” (Mr O’Regan), “less” (Brief Clerk at Brighton Police Station) to “considerably less” (Seascape Café and Pier Hotel).

1. As to ground 2, the Chief Commissioner’s notice had specified findings in relation to one particularised subject - the acceptance of free race tickets from a barrister briefed to appear for a person charged by a member of the Brighton Police Station.  The Chief Commissioner maintained her satisfaction that this had occurred.  She said this was a breach of the Police Code of Conduct but that Mr Shields had a minimal involvement in the prosecution.  She therefore decided the consequences of the breach were not sufficiently serious to justify her relying on that ground in making her decision. 

1. As to ground 3, the Chief Commissioner’s notice had specified findings in relation to one particularised subject – allowing Mr Shields’ relationship with a probationary constable to influence his actions in her favour.  The Chief Commissioner maintained her satisfaction that this had occurred, but said she had not relied on the statements of the two named officers whose evidence she had earlier treated as not credible.

1. As he did about the notice, Mr Shields has made a point about the language used by the Chief Commissioner in the order.

1. By the order, the Chief Commissioner “set out the reasons why I am satisfied that you are unsuitable to continue…”.  As you saw, the notice had given grounds for why “I considered you to be unsuitable…”.  The order stated the Chief Commissioner had “re-assessed the grounds upon which I considered you to be unsuitable…” in the light of Mr Shields’ solicitors’ response and a further statement.  When dealing with the various matters specified under the three grounds, the Chief Commissioner stated, as to each matter, on the one hand, that “I am still satisfied” of the matter (note the word “still”) or “I continue to accept the truth” of a statement (note the word “continue”) or, on the other hand, that “I am no longer satisfied” of the matter or “I have… decided not to rely on” certain statements or allegations.  In her conclusion, the Chief Commissioner stated “I am satisfied” of grounds 1 and 3 and “for these reasons” she was “satisfied that you are unsuitable to continue”.  Again, to that language, I shall return. 

1. I can now analyse Mr Shields’ submissions on procedural fairness.

The Chief Commissioner did not breach the rules of procedural fairness

1. The application of the rules of natural justice to the Chief Commissioner’s powers under s 68 was recently considered by Smith J in Robb and Dale v Chief Commissioner of Police.[3] For present purposes, two things of importance emerge from that judgment. First, the rules of natural justice apply to making a dismissal order, thus the procedures in s 68 are minimum requirements which do not wholly specify what must be done to comply with those rules.[4]  Second, the fundamental requirement of procedural fairness is that the Chief Commissioner must give the member of the force access to all adverse material put against him or her that is credible, relevant and significant to the proposed dismissal.[5]

   [3](2005) 23 VAR 244.

   [4]Ibid 272.

   [5]Ibid 272 citing Kioa v West (1985) 159 CLR 550, 628-629.

1. The question for the Chief Commissioner to decide was whether she was satisfied of Mr Shields’ unsuitability to continue, having regard to his integrity and the potential loss of community confidence. As we shall later see, the Chief Commissioner could only reach that state of satisfaction on logically probative evidence. It follows that she had to undertake an investigation, fair to Mr Shields, sufficient to obtain that kind of evidence. If the evidence was obtained, as it was, then procedural fairness, and ss 68(2)(b) and (c), required the Chief Commissioner to give Mr Shields the opportunity to comment on it. As Smith J said in Robb and Dale v Chief Commissioner of Police, the Chief Commissioner needed “to take care in following correct procedure.”[6]

   [6]Robb and Dale v Chief Commissioner of Police (2005) 23 VAR 244, 268; following Bigg v NSW Police Service (1998) 80 IR 434, 458; Little v Commissioner of Police (No 2) (2002) 112 IR 212; Van Huisstede v Commissioner of Police (2000) 98 IR 57, 104-105.

1. Mr Shields’ submissions on the natural justice ground were that, in three respects, the Chief Commissioner had to do more than she did o give him an adequate opportunity to comment: one, she had to give him the entirety of the Ethical Standards Department files; two, she had to give his solicitors permission to interview certain witnesses; and three, she had to interview certain witnesses without the aid of a template which would limit the answers given.[7]

   [7]The further ground that the Chief Commissioner had an obligation to conduct an oral hearing was not pressed.

1. I do not think procedural fairness required the Chief Commissioner to give Mr Shields access to the entirety of the Ethical Standards Department files.  It is significant for my conclusion that Mr Shields submitted – both to the Chief Commissioner and me – only that the files may or should, not did or would, contain exculpatory material.  Mr Shields did not point to a particular witness who, or to evidence of a particular matter that, might be definitely relevant to something in issue.  He just advanced a general proposition.  He offered no particular reason for wanting to see the files, beyond a generalised concern to have access to everything that the Ethical Standards Department investigation had revealed. 

1. Mr Shields cannot use the rules of natural justice, or the procedures specified in s 68(2), to direct the Chief Commissioner about how she should go about being satisfied of the matters specified in s 68(1). Nor can he use those rules or procedures to audit the Ethical Standards Department investigation. If there was some reason to think that there had been a cover-up, that the investigation undertaken by the Ethical Standards Department had been compromised, that Mr Shields had been victimised or otherwise treated unfairly during the course of the investigation or that the integrity of what was put before the Chief Commissioner was doubtful, I might have come to a different conclusion. In the absence of anything of that kind, I think the Chief Commissioner was entitled to give Mr Shields access only to what she intended to act on.

1. Procedural fairness did not require the Chief Commissioner to allow Mr Shields’ solicitors to interview the police witnesses.  There is good reason in an organised police force to prevent a member under investigation or proposed dismissal from having such access.   

1. Procedural fairness certainly did require the Chief Commissioner to follow up reasonable requests by Mr Shields for police officers to be interviewed.  If the Chief Commissioner had refused to do so, I think the rules of natural justice would have been breached.  But she found a sensible and practical way to deal with the issue, which was to ask the Ethical Standards Department to conduct the interviews of the 12 officers who Mr Shields identified, and then make the statements available.  Just what kind of approach should be adopted in issues of this kind will no doubt depend on the circumstances.  But the approach adopted in this case was, I think, procedurally fair.  It was not unfair by reason that officers from the Ethical Standards Department did the interviewing, for there was no basis for doubting their impartiality.

1. The Chief Commissioner set up a process whereby the 12 officers were interviewed, voluntarily.  They were asked about the issues raised in the Mr Shields’ solicitors’ letter of 13 April 2006.  Apparently that letter was used as a kind of template to guide the questioning.  The form of the statements reflects this process, for the statements deal with the matters raised in the letter, subject by subject.  Only one witness dealt with the central allegation.

1. I do not think this was an unfair procedure to adopt.  Mr Shields’ solicitors’ letter did raise specific issues for consideration, each of which had to be pursued in the interests of procedural fairness.  The notice specified a series of specific matters on which she proposed to act.  In that notice and also in the order, her consideration was confined to those matters.  For example, ground 1, which concerned the central allegation, was based on seven specified instances of the relevant behaviour or conduct, although it came to be supported by only four.  The Chief Commissioner was not engaged in a generalised consideration of whether Mr Shields was seen, by others in the force, to be guilty of that kind of behaviour or conduct.  I think a case formulated on such a generalised basis would have raised a number of difficult, perhaps insuperable, problems.  Quite properly, the Chief Commissioner based her proposed and actual dismissal on specified instances, as to which Mr Shields was given a proper opportunity to be heard.

1. If there was some reason to think a lack of compulsion might produce an unfair or doubtful result, procedural fairness might have demanded compulsion.  But there is simply nothing to indicate that a compulsive procedure was necessary.  Statements were obtained from those witnesses.  That is the important thing, not whether they were given voluntarily or compulsorily.  Therefore I do not accept the submissions that the procedure was not even-handed because the initial witnesses gave evidence under compulsion but those nominated by Mr Shields did not. 

1. For these reasons, I have concluded the Chief Commissioner did not breach the rules of procedural fairness.  Putting aside the issue of prejudgment, ground one of the judicial review application has not been established.

MISCONTRUING AND MISAPPLYING THE POWER IN SECTION 68

Mr Shields’ criticisms of the Chief Commissioner’s approach

1. Mr Shields submitted the Chief Commissioner misconstrued s 68 of the Police Regulation Act which led her to misunderstand the task she had to perform under that section.  This led her to impose an impermissible onus on Mr Shields.  We have already seen that Mr Shields also submitted the Chief Commissioner breached the rules of natural justice by prejudging the matter.  Both of these submissions will be dealt with here.

1. It is well briefly to revisit the Chief Commissioner’s approach.

1. We know that, by the notice of proposed dismissal, the Chief Commissioner notified Mr Shields that she considered him to be unsuitable to continue to be a member of the force.  She specified the three grounds noted before.  Under each ground, she set out a series of facts concerning Mr Shields’ actions of which she said she was satisfied.  In doing so, she used the now familiar language of “I am satisfied” and so on.  The notice advised him that she would take into account any written submissions she received when deciding whether or not to make a dismissal order.  The Chief Inspector’s investigation report concerning the Frankston incidents was attached.

1. Then, by the dismissal order, the Chief Commissioner notified Mr Shields of the reasons why she was satisfied he was unsuitable to continue.  She stated she had considered his submissions and an additional police statement and, on this basis, had re-assessed the grounds on which she considered him to be unsuitable.  She then dealt with each ground in turn.  Under each ground, the Chief Commissioner referred to the matters about which, in the notice, she had been satisfied and made findings.  Then she gave her reassessment of those matters in the light of Mr Shields’ submissions.  In each case, she set out her conclusions, using such language as “I am still satisfied of” (par 11) or “I continue to accept the truth of” (par 17(a)). 

1. Mr Shields submitted that, where the Chief Commissioner proposed to rely on specific factual allegations, as she did in this case, she had to make positive findings of fact on the basis of probative evidence and supported by logical grounds.  I accept that submission, which was well supported by decisions of high authority.[8]  Mr Shields accepted the Chief Commissioner had correctly approached the matter in that respect.  His real criticisms were planted in different ground. 

   [8]See Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 651-657, especially 657; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 67; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, 20.

1. Mr Shields submitted the Chief Commissioner had erred by making actual findings of fact and reaching a state of satisfaction in the notice before going to Mr Shields for a response.  She went too far at that first stage of the process, for her approach necessarily involved the imposition of a legal or evidentiary onus to disprove on Mr Shields.  Moreover, when she considered his submissions, she was not entitled to use the findings in the notice as the starting point.  Therefore, once issue was joined in his submissions in response, the Chief Commissioner could not bring to bear on the question whether to issue the order the views she had formed before the notice was given.  She had to reach a state of satisfaction all over again. 

1. Counsel for Mr Shields illustrated this submission by reference to the Chief Commissioner’s consideration of the complaint made by Mr O’Regan, which Mr Shields disputed.  It was submitted the Chief Commissioner could only have remained satisfied, and continued to accept the truth, of the relevant matters concerning Mr O’Regan by acting on the basis that Mr Shields had not discharged an onus to disprove that person’s evidence. 

1. Mr Shields went on to submit that the Chief Commissioner’s approach also involved apparent prejudgment on her part, which was a breach of the rules of natural justice.  That prejudgment, it was submitted, could be seen in the Chief Commissioner’s language, such as “I am satisfied” in the notice, and “I continue to accept the truth” in the order.

1. We can now clearly see the connection between Mr Shields’ submissions on the two subjects of onus and prejudgment: what he is saying is that the Chief Commissioner imposed an onus to disprove on Mr Shields; when, in her eyes, he failed to discharge that onus, she simply fell back on her predetermined position, which was an apparent prejudgment.

1. Those submissions must be rejected, for the reasons that follow.

Onus and prejudgment

1. I will start by looking at the statutory mechanism. 

1. Section 68(1), (2) and (3), which should be read as a whole, permits the Chief Commissioner to dismiss a member of the force. Section 68(1) allows the Chief Commissioner to make an order dismissing the member if she is “satisfied” the member is unsuitable to continue as a member of the force, having regard to the matters specified in pars (a) and (b). Before doing so, s 68(2)(a) requires the Chief Commissioner to give the member a notice of proposed dismissal setting out the grounds on which she “considers” the member is unsuitable. Section 68(2)(c) requires the Chief Commissioner to take any submissions of the member into account. Section 68(3) requires the Chief Commissioner to give reasons for being satisfied the member is unsuitable.

1. I think these provisions envisage that the Chief Commissioner will investigate the relevant matters after which she may come to a provisional view about her state of satisfaction and the grounds for it - being the provisional view that she considers the member is unsuitable in terms of the notice given under s 68(2)(a); they also envisage that the Chief Commissioner will take into account the member’s submissions (if any) before she comes to a final view – being the final view, if she comes to it, that she is satisfied the member is unsuitable in terms of the order made under s 68(1) for reasons that must be given under s 68(3).

1. Let me now turn to the issue of onus.

1. Whether a person who is subject to an administrative decision carries a legal or evidentiary onus is to be ascertained in the first instance from the terms of the statute.[9] I can see nothing in the terms of s 68 or any other section of the Police Regulation Act to suggest a member who is subject to dismissal under s 68 carries a legal or evidentiary onus to disprove grounds specified in a notice.

   [9]McDonald v Director-General of Social Security (1984) 1 FCR 354, 357; Glaxsmithkline Australia Pty Ltd v Anderson (2003) 130 FCR 222, 245; Secretary of the Department of Primary Industries v Costa [2007] VSC 88, [21]. The principle is implicit in the judgment of Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408, 424-425.

1. The provisions that touch on this subject are to be found in s 68(2). Their object is to protect the member’s interests, and to enhance the integrity of the decision-making process, in three ways: a notice setting out the relevant grounds has to be given to the member, time has to be given for submissions in response and any such submissions have to be taken into account. Their object is not to impose a legal or evidentiary onus on the member to make such a response. Nor do they have that implicit effect.

1. Since the terms of the Police Regulation Act impose no onus on the member, the issue falls to be determined on the general principles.  According to those principles, the “notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in… administrative proceedings.”[10]  Those pithy words were spoken by Brennan J in a specific statutory context but, absent any contrary enactment, they are considered to be of general application.[11] 

   [10]Bushell v Repatriation Commission (1992) 175 CLR 408, 425.

   [11]See eg Boucher v Australian Securities Commission (1996) 41 ALD 274, 279-280; Secretary of the Department of Primary Industries v Costa [2007] VSC 88, [21].

1. What happens when a person facing an adverse administrative decision fails to answer the evidence against them, or does so only poorly?  The answer given by the law is a practical and sensible one.  The question was fully considered by the Full Court of the Federal Court of Australia in the leading case of McDonald v Director-General of Social Security.[12]  This passage from the pen of Woodward J captures the Full Court’s conclusion:

   It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn – but it is not helpful to categorise this common-sense approach to evidence as an example of an evidential onus of proof.  The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go.[13]

   [12](1984) 1 FCR 354 (Woodward, Northrop and Jenkinson JJ).

   [13]Ibid 358.

1. In the present case, I would apply these general principles to conclude that a member liable to dismissal under s 68(1) is under no legal or evidentiary onus to disprove the grounds on which the Chief Commissioner may be satisfied under s 68(1) that he or she is unsuitable to continue. Specifically, a member who has been given a notice under s 68(2)(a) is under no such onus to disprove the grounds of the provisional view expressed in the notice. The Chief Commissioner cannot resolve the issues before her on this basis. From the first to the last, the onus remains on the Chief Commissioner to be properly satisfied, on the basis of logically probative evidence, and for reasons given under s 68(3), that the member is so unsuitable. But if the member, knowing the strength of the case put against him or her in the notice, supplies neither cogent answering submissions nor appropriate contrary evidence, nobody should be surprised if the Chief Commissioner comes to a final view that is the same as the provisional view. Such consequences would flow as a matter of practicality and common sense, not from any legal or evidentiary onus.

1. I should here deal with the issue of language. The Chief Commissioner’s notice of proposed dismissal and her dismissal order closely follow the language of s 68(1), (2) and (3). For example, the notice gave Mr Shields notice of the “grounds why I consider that you are unsuitable” and used such expressions as “I am satisfied…” That is the language of s 68(2)(a), which calls up the language of s 68(1). The dismissal order set out the “reasons why I am satisfied that you are unsuitable” and used such expressions as “I am still satisfied…” That is the language of s 68(1). I do not think the Chief Commissioner can be criticised for closely following the language of the statute. Nor do I think her use of that language insulates the dismissal order from judicial review. Whether, by that language, an impermissible onus was imposed, is to be determined as a matter of substance, not semantics.

1. In this regard, the reasons given under s 68(3) are very important, for it is primarily from those reasons that the Court will discern the substance of the Chief Commissioner’s decision to issue an order. Of course the reasons for decision of administrative decision-makers are “not to be scrutinised upon over-zealous judicial review”,[14] “not to be construed minutely and finely with an eye keenly attuned to the perception of error”,[15] and “have to be read fairly and particular parts have to be read in the context of the reasons as a whole.”[16]  But the reasons must justify the decision by making the path of reasoning clear.[17]  The necessary length and detail will vary according to the circumstances, such as the nature and complexity of the issues of fact or law being determined.  I think the following statement of Sheppard J in Commonwealth v Pharmacy Guild (Aust),[18] making due allowance for the fact that it was made in respect of the Commonwealth Administrative Appeals Tribunal, applies equally to the Chief Commissioner’s obligation to give reasons under s 68(3):

   The provision of reasons is an important aspect of the tribunal’s overall task.  Reasons are required to inform the… parties with an immediate interest in the outcome of the proceedings of the manner in which the tribunal’s decisions were arrived at.  A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case.  But that is not the only important purpose which the furnishing of reasons has.  A prime purpose is the disclose of the tribunal’s reasoning process to the… parties.  The provision of reasons engenders confidence in the community that the tribunal has gone about its task appropriately and fairly.  The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the matter close enough attention or that is has allowed extraneous matters to cloud its consideration.  There is yet a further purpose to be served in the giving of reasons.  An obligation to give reasons imposes upon the decision-maker an intellectual discipline.  The tribunal is required to state… what its reasoning process is.  This is a sound administrative safeguard tending to ensure that a tribunal such as this properly discharges the important statutory function which it has.[19]

   [14]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

   [15]Collector of Customs v PozzolanicEnterprises Pty Ltd (1993) 43 FCR 280, 287; approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

   [16]Shock Records Pty Ltd v Jones [2006] VSCA 180, [85] per Bell AJA, Callaway and Ashley JJA agreeing; Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121, [3] per Ashley JA and [19]-[22] per Redlich JA.

   [17]State Electricity Commission v Commissioner for Equal Opportunity [1992] 1 VR 79, 88.

   [18](1989) 91 ALR 65.

   [19]Ibid 88. For a discussion of the analogous principles that apply to the decisions of judges, see generally Fletcher Construction Australia Pty Ltd v Lines MacFarlane and Marshall Pty Ltd (No 2) (2002) 6 VR 1, 30-31; Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18; Pettitt v Dunkley [1971] 1 NSWLR 376, 382, 387-388; De Iacovo v Lacanale [1957] VR 553, 557-559 and Intertransport International Private Ltd v Bruce Donaldson and Liquid Bulk Solutions Pty Ltd [2005] VSCA 303, [18]-[19].

2. In the present case, having regard to the totality of the Chief Commissioner’s reasons, which have been thoroughly and carefully prepared, I am not persuaded the Chief Commissioner failed to follow the correct approach on this issue of onus.  I do not infer from the language of the notice and order that she applied an onus against Mr Shields.  I think she was just working within the framework of the statute.  When she said she was “still satisfied” or “I continue to accept the truth” of something, I think she was expressing the idea that she had moved from a provisional to a final view in respect of the relevant matter.  The Chief Commissioner said in the order that she had “re-assessed” the grounds in the light of Mr Shields’ submissions in response.  The reasons given in the order show that is what she did.  I think those reasons also show she was satisfied Mr Shields was unsuitable to continue on the basis of the facts she found, which in turn were based on the evidence she had before her, not on Mr Shields’ failure to discharge an onus.

1. That brings me to the issue of prejudgment.

1. As discussed in my recent judgment in Garde-Wilson v Corrs Chambers Westgarth,[20] the test of ostensible bias is whether a fair-minded observer might reasonably apprehend that the decision-maker might not have brought an impartial and unprejudiced mind to the resolution of the matter at issue.[21]  When the alleged ostensible bias is based on the contention that the decision-maker has prejudged the matter, this is the test that applies:

   The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.[22]

   [20][2007] VSC 235, [69].

   [21]Johnson v Johnson (2000) 201 CLR 488, 492.

   [22]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 532.

2. In the application of that test to particular circumstances, it has been held time and again that the expression of a prior view about a matter in issue does not mean the decision-maker’s thinking will necessarily be unfair or prejudiced.[23]  One quite apposite example is R v Lusink; Ex parte Shaw.[24] The question there was whether the expression of a strong provisional view by a judge of the Family Court of Australia amounted to ostensible bias.  The High Court held it did not.  These are the words of Gibb ACJ:

   The evidence does not however justify a conclusion that the views which the learned judge expressed, although strong, were other than provisional, or that it could reasonably be suspected that at the end of the case she would not decide with a fair and unprejudiced mind.[25]

   [23]See eg Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 100; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100, 116.

   [24](1980) 55 ALJR 12.

   [25]Ibid 14.

3. Similarly, in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group[26] it was alleged a member of the Commission had ostensibly prejudged a case because he had expressed a relevant view in a previous matter.  The High Court said the fair and unprejudiced mind did not have to be empty:

   Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.[27]

   [26](1969) 122 CLR 546.

   [27]Ibid 554; approved in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531 for this proposition: “The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.”

4. What is expected of a decision-maker in these circumstances is an open preparedness to alter their previously held view in the light of the evidence and arguments that are presented.  Returning to Ex parte Angliss Group, the High Court gave this formulation of that principle:

   It is of course the duty of the members of the Commission always to have and to display a willingness, indeed an anxiety, to give full and fair consideration to every relevant argument that may be addressed to them for a revision or even an abandonment of announced opinions.[28]

   [28](1969) 122 CLR 546, 555.

5. The same principles apply in cases like the present, where it is alleged an onus was imposed on a party to persuade the decision-maker to depart from previously expressed views.  Thus in Glaxsmithkline Australia Pty Ltd v Anderson[29] it was alleged the Pharmaceutical Benefits Advisory Committee had imposed an onus on Glaxosmithkline to so persuade the Committee.  Using words that could equally have been written about the case before me, Ryan J rejected that proposition:

   The applicant also complains that the Committee’s reasoning entailed the adoption of a view and thereafter imposing an onus upon the applicant to displace that view.  I am not persuaded that such an analysis correctly characterises what happened.  In coming to an administrative decision, the Committee is entitled to express a preliminary view, provided it remains open to be persuaded otherwise…[30]

   [29](2003) 130 FCR 222.

   [30]Ibid 244; citing Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, 122, which contains a useful summary of the principles at 122-123, and R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 264.

6. For reasons that were extensively examined by Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng,[31] the application of these principles must take into account the fact that the Chief Commissioner was exercising an administrative discretion.  In the circumstance of this case I do not think that makes any difference to the result.

   [31](2001) 205 CLR 507, 562-563, Gleeson CJ and Gummow J agreeing at 538-539.

1. The principles must be applied in a manner that takes account of the applicable statutory setting. In the present case, that means I must bear in mind what was required by the various stages of decision-making specified by s 68. Any further detailed description would be tedious, but the stages were initial investigation, giving notice of a provisional view, taking submissions into account and acting on the final view (for the given reasons). In particular, s 68(2)(a) required the Chief Commissioner to give Mr Shields notice of the grounds on which she considered him to be unsuitable to continue. Given it was mandatory, I would be reluctant to infer prejudgment from the adoption of this procedure, including its language.

1. On the other hand, it is clear that s 68(1) authorises a dismissal decision only on the basis of the Chief Commissioner’s final state of satisfaction, which can legitimately be formed only after taking the member’s submissions into account. To repeat, no legal or evidentiary onus is cast on the member at any stage. The Chief Commissioner must “have… and display a willingness, indeed an anxiety”[32] to consider the submissions put forward and to revise or abandon previously expressed provisional views.  If it might reasonably appear to a fair-minded observer that the Chief Commissioner’s final state of satisfaction might have been the product of a prejudgment, the exercise of the dismissal power would thereby fail.  Whether this is so or not must, in the end, be a question of fact in each case, remembering that the question is whether the member has established that a fair-minded observer might reasonably apprehend that the Chief Commissioner’s mind was not reasonably open to persuasion.  In that connection, the reasons are again very important, for the appearance or not of prejudgment will most readily be discerned from their content.

   [32]R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 555.

1. When I examine the reasons in the present case, I cannot conclude a fair-minded observer might reasonably apprehend that the Chief Commissioner’s mind was closed to persuasion in the direction of Mr Shields’ submissions in response.  In my mind, the reasons demonstrate the opposite.  The Chief Commissioner’s careful consideration of Mr Shields’ submissions shows she took them seriously into account.  Her acceptance of some of those submissions shows she was prepared to depart from her provisional views in significant respects.  Her rejection of many of Mr Shields’ submissions is not evidence of prejudgment.  The language she used to express her final findings and conclusions reflected her adherence to the mandatory statutory procedure, not her prejudgment of the issues.

1. For these reasons, grounds two and three of the judicial review application, and ground one as it relates to prejudgment, must be rejected. 

1. It is therefore unnecessary to consider the doctrine of necessity.

IMPROPER EXERCISE OF POWER

Mr Shields’ submissions

1. Mr Shields submits the Chief Commissioner improperly exercised the power in s 68 by failing to take into account:

·     evidence of his good service and character

·     the availability of alternative means of dealing with the issues, for example the ordinary disciplinary provisions

1. He also submits the Chief Commissioner used the power in s 68 of the Police Regulation Act against him for an improper purpose, namely to avoid the procedures and protections available in relation to disciplinary charges specified in Division 2 of Part IV.

1. These submissions raise a number of important issues which I will work through one by one.

The relevant/irrelevant considerations principle

1. When exercising a statutory power, a decision-maker is obliged to taken into account all relevant considerations and exclude irrelevant considerations.  The relevant and irrelevant considerations are identified by reference to the subject matter, scope and purpose of the statute.[33]  To obtain judicial review, it must be established the consideration was one the decision-maker was bound to consider or exclude.[34]  It is not enough to construct a list of possibly relevant considerations and then point to one that was not considered.[35] 

   [33]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40.

   [34]Ibid 39.

   [35]Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375.

1. The consideration required is one of real substance, not one of mere form.  Therefore, the obligation to consider is not sufficiently performed in law when the decision-maker fails to take relevant considerations into account  in “any real sense”,[36] fails to consider the considerations “genuinely and realistically”[37] or fails to undertake “proper, genuine and realistic”[38] consideration.  However, the weight to be given to a consideration is generally a matter for the decision maker to determine:[39] Judicial review does not go beyond declaring and enforcing the law that determines the limits and governs the exercise of the decision-maker’s powers,[40] which means the merits of the decision are the province of the decision-maker and not the courts.[41]

   [36]Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388, 392.

   [37]Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169, 195.

   [38]Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1, 13 citing Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987); see also Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87, 96; Sacharowitz v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 480, 486; Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169,178-179; Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453, 468; cf Bruce v Cole (1998) 45 NSWLR 163, 186; Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426, 435-442.

   [39]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41.

   [40]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272 citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36.

   [41]See generally A Goninan and Co Ltd v Commissioner of Patents (1997) 75 FCR 200, 210-211.

1. It follows from this formulation of the principles that it is first necessary to identify the subject matter, scope and purpose of the power in s 68(1). In that connection, whether the provision confers a discretion or imposes a duty is a critical preliminary question.

Does section 68(1) confer a discretion or impose a duty?

The Chief Commissioner’s approach

1. This is s 68(1):

   The Chief Commissioner, by written order, may dismiss a member of the force (other than a Deputy Commissioner or an Assistant Commissioner) if the Chief Commissioner is satisfied that the member is unsuitable to continue as a member of the force, having regard to –

   (a)        the member’s integrity; and

   (b)        the potential loss of community confidence in the force were the member to continue as a member of the force.

2. Because s 68(1) says the Chief Commissioner “may dismiss” the member, Mr Shields submits it confers a power that is discretionary in nature. It follows, he submits, that the Chief Commissioner had a discretion not to dismiss Mr Shields even if she was satisfied he was unsuitable to continue. The Chief Commissioner could and should have exercised that discretion in his favour by taking into account the materials going to his good record of service and character and the availability of the ordinary disciplinary provisions.

1. I think it is clear from the reasons given in the order that the Chief Commissioner did not approach the exercise of the power in s 68(1) in a two-stage manner, the first being whether she was satisfied and the second being whether she should dismiss. I think she exercised the power on the basis that she was required to make one decision on the question of Mr Shields’ unsuitability, as to which his record of service and character and all other relevant considerations had to be taken into account. Having decided that question against Mr Shields, she did not consider whether or not, in her discretion, she should dismiss him. The question is, was that approach correct? That question requires an analysis of an important issue of statutory interpretation, one which must begin with s 45(1) of the Interpretation of Legislation Act 1984.  That year – 1984 – you will soon see is of present significance.

Section 45(1) of the Interpretation of Legislation Act 1984

1. I will set out the complete terms of s 45(1) later. It is enough now to say it states a rule that the word “may” in a statute confers a discretionary power. Section 68(1) of the Police Regulation Act states the Chief Commissioner “may” dismiss from the force a member who she is satisfied is unsuitable to continue on the specified grounds. If s 45(1) applies to the interpretation of s 68(1), the power in the latter would be permissive and discretionary, full stop. By s 45(3), the common law principle of interpretation that would produce a different result, with which I will later deal, would be abrogated. I must therefore decide if it is s 45 or the common law principle of interpretation that applies.

1. Section 45(1) of the Interpretation of Legislation Act applies to “this Act or any Act passed … after the commencement of” that Act. By s 11(1) of that Act, which s 4(1)(b) makes apply to itself, an Act commences on the day that is, by the Act, fixed as the commencement day. Section 2 of that Act fixes 1 July 1984 as the commencement day. In consequence, s 45(1) applies the Interpretation of Legislation Act to itself and any other Act passed after 1 July 1984.   To shorten things, I will refer just to the year (hence its significance).

1. Plainly enough, s 45(1) does not apply to the interpretation of the Police Regulation Act generally, for that Act was passed in 1958. But the dismissal power at issue in the present case is in s 68, which was inserted into the Police Regulation Act by s 13 of the Police Regulation and Firearms (Amendment) Act 1999. Section 13 commenced on 22 August 1999.[42]  Again, from now on I will just refer to the year.

   [42]See s 11(1) of the Interpretation of Legislation Act and the proclamation under s 2(2) of the Police Regulation and Firearms (Amendment) Act dated 10 August 1999 which was published in the Victoria Government Gazette on 12 August 1999, 1889.

1. Mr Shields submits s 45(1) of the Interpretation of Legislation Act does apply to s 68 of the Police Regulation Act because it was inserted by legislation passed after the first commenced in 1984. As I have said, so interpreted, s 68(1) would confer a discretionary power and not a compulsive one. That conclusion is demanded by previous decisions of the Full Court of this Court on the proper interpretation and application of s 45.[43] As has been held, s 45 was designed to remove any doubt about how a power expressed in terms of “may” or “shall” should operate and be interpreted.[44]

   [43]Accident Compensation Commission v Murphy [1988] VR 444, 447; Encyclopaedia Britannica (Australia) Inc v Director of Consumer Affairs [1988] VR 904, 912-913.

   [44]Accident Compensation Commission v Murphy [1988] VR 444, 447.

1. Here now is s 45(1) and (3), this time, as related to Acts, in full:

   (1)       Where in this Act or any Act passed… on or after the commencement of this Act the word ‘may’ is used in conferring a power, that word shall be construed as meaning that the power so conferred may be exercised, or not, at discretion.

   (3)       The provisions of this section shall have effect notwithstanding any rule of construction to the contrary and any such rule is hereby abrogated with respect to this Act and any Act passed… on or after the commencement of this Act.

2. You will see immediately that the critical opening words of s 45(1) – “any Act passed… on or after the commencement of this Act” – do not differentiate between a principal Act and an amending Act.  As a matter of language, the words might apply to both kinds of Acts, neither of which are defined in the Interpretation of Legislation Act. So interpreted, s 45(1) might govern the interpretation of s 68(1) of the Police Regulation Act, as the amending Act[45] that inserted it was passed in 1999 after the commencement of the Interpretation of Legislation Act in 1984.

   [45]It is not necessary to consider the principles governing the classification of Acts as amending or otherwise (see generally DC Pearce and RS Geddes, Statutory Interpretation in Australia (6^th ed, 2006) 247-250, 261), because the Police Regulation and Firearms (Amendment) Act is plainly an amending Act.

1. That interpretation of s 45(1) gains support from the provisions of s 4(1)(a) of the Interpretation of Legislation Act, which were relied on by Mr Shields in the submissions made to me. This is s 4(1)(a), as relevant:

   The provisions of this Act-

   (a)       unless a contrary intention appears in this Act or in the Act… concerned, extend and apply to all Acts, whether passed before or after the commencement of this Act,…

   If it applies to s 45(1), s 4(1)(a) would operate to make the former applicable to “all Acts… passed after the commencement” of the Interpretation of Legislation Act.  The Police Regulation and Firearms (Amendment) Act 1999 is such an Act.

1. But the Interpretation of Legislation Act was written against the background of an important common law principle about how amending legislation is to be interpreted.  According to that principle, an amending Act is read with the principal Act it amends “as one connected and combined statement of the will of Parliament, unless the contrary intention appears on the amending Act.”[46]  Those words were spoken by Isaacs J in Sweeney v Fitzhardinge[47] in reference to the affect of a provision of the Interpretation Act 1897 (NSW), but they equally explain the scope of an independent common law principle of interpretation.[48]  Bennion calls this the principle of “textual amendment”, so that –

   under modern practice the intention of Parliament when effecting textual amendment of an Act is usually to produce a revised text of the Act which is thereafter to be construed as a whole.[49]

   The Court of Appeal has taken this principle of co-interpretation of amending and principal legislation into account in other contexts.[50]

   [46]Sweeney v Fitzhardinge (1906) 4 CLR 716, 735.

   [47]Ibid.

   [48]Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453, 479.

   [49]Francis Bennion, Statutory Interpretation (3^rd ed, 1997) 212; see generally DC Pearce and RS Geddes, Statutory Interpretation in Australia (6^th ed, 2006) 261.

   [50]See eg Transport Accident Commission v Sweedman (2004) 210 ALR 140, 149; Shaw v Yarranova Pty Ltd (2006) 15 VR 289, 308.

1. For two reasons, I would take that principle into account when interpreting s 45(1): the principle is not abrogated by s 45(1) or any other provision of the Interpretation of Legislation Act, and it is not inconsistent with that Act to do so.

1. Parliament is presumed to know about important principles of interpretation, such as the co-interpretation principle.  Where legislation does not abrogate such a principle, expressly or by necessary intendment, and it would be otherwise applicable, the court can infer that the legislation was not intended to interfere with its operation, the silent expectation being that it would be applied in the usual way.  This other general common law principle of interpretation was, in reference to the Interpretation of Legislation Act, written into statutory law by s 4(2), which provides this:

   Nothing in this Act excludes the application to an Act… of a rule of construction applicable thereto and not inconsistent with this Act.

2. Now the Interpretation of Legislation Act deals with amending legislation in many places – too many to mention here.  In each case, the provision deals with some significant (usually mechanical) question concerning the passing or operation of such an Act.  In no case, however, does a provision require an amending Act to be interpreted independently of its principal Act.  What useful indications there are point in the other direction.  For example, the provisions dealing with the numbering of provisions are based on the textual unity of the amending and principal legislation so that, under ss 39A and 39B, the original numbering system, in the absence of a contrary provision, is preserved.  It is clear, I think, that neither by express provision nor necessary intendment does the Interpretation of Legislation Act abrogate the co-interpretation principle.

1. Interpreting s 45(1) in a way that takes this common law principle into account is not inconsistent with the other provisions of the Interpretation of Legislation Act. Only s 4(1)(a) may be seen to be inconsistent with such an interpretation. But it does not apply where a contrary attention appears. For the reasons that follow, I think a contrary intention does appear in s 45(1).

1. The starting point must be the fact that s 45 supplies a definite contrary intention to the applicability of s 4(1)(a) in a relevant and important respect. Whereas s 4(1)(a) would make s 45(1) (for example) extend and apply to all Acts whenever passed, section 45(1) makes itself apply only to Acts passed after the commencement of the Interpretation of Legislation Act. As regards the nature of a statutory power, Parliament thus deliberately chose to leave past Acts to be interpreted according to the pre-existing common law principles; only future Acts would be interpreted according to s 45. The common law principles were abrogated by s 45(3) only for those future Acts (and the Interpretation of Legislation Act itself). The legislature placed s 45 beyond the reach of s 4(1)(a) to this definite extent. The pre-1984 provisions of the Police Regulation Act are an example.

1. It is but a small and logical step to take to interpret s 45 in a way that requires amending Acts to be likewise interpreted. The legislature would not have intended that different rules would govern the interpretation of diverse provisions of the same principal legislation, depending on whether they were passed before or inserted by amendment after the commencement of the Interpretation of Legislation Act in 1984.  Rather, the legislature would have intended the legislation to be interpreted consistently by reference to the one definite rule. 

1. I think s 45 was enacted in a form that assumes the continued operation of the common law principle about the co-interpretation of amending and principal Acts. In consequence, s 45 generally applies such that past legislation, even if amended in the future, is to be interpreted according to that common law principle, whereas future legislation (and the Interpretation of Legislation Act) is to be interpreted according to s 45. In respect of amending legislation, s 45 would thus generally supply a contrary intention to the application of s 4(1)(a). The legislature placed s 45 beyond the reach of s 4(1)(a) in respect of past legislation and, generally, also in respect of future legislation amending past legislation.

1. I say generally because there may be something express or necessarily implicit in the amending legislation to bring it within s 45. The common law principle requiring amending Acts to be interpreted with their principal Acts is subject to any contrary intention so appearing in the former.[51] 

   [51]Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453, 479.

1. Let me now apply this reasoning to the Police Regulation Act 1958 and the Police Regulation and Firearms (Amendment) Act 1999. As regards the nature of the power inserted by the second as s 68(1) of the first, there is simply nothing to suggest the co-interpretation principle would not apply. The older and the younger parts of the two thus together form one legislative organism. For all the purposes of statutory interpretation of relevance in this case, that organism presumptively came to life in 1958, before the commencement of the Interpretation of Legislation Act in 1984. Therefore the nature of the power in s 68(1) of the Police Regulation Act falls to be identified according to the common law principles about the interpretation of powers expressed in terms of “may” and “shall”, not according to the rule stated in s 45(1) of the Interpretation of Legislation Act.  To those principles I now turn.

Interpreting powers expressed in terms of “may” and “shall”

1. The nature of a power like the one in s 68(1) has been discussed in many notable decisions of the High Court, for example in Ward v Williams,[52] Finance Facilities Pty Ltd v Federal Commissioner of Taxation[53] and Leach v R.[54]  As Windeyer J said in Finance Facilities,[55] the question whether a power is discretionary -

   does not depend on the abstract meaning of the word ‘may’ but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised – so that in those events the ‘may’ becomes a ‘must’.  Illustrative cases go back to 1663: R v Barlow.[56]  Today it is enough to cite Julius vBishop of Oxford;[57] and add in this Court Ward v Williams.[58]  But I select one other reference out of a multitude: Macdougall v Paterson.[59]  There Jervis CJ said in the course of the argument[60] ‘The word “may” is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise’.  And, giving judgment, he said:[61]

   ‘We are of opinion that the word “may” is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.’

   [52](1955) 92 CLR 496, 505-506.

   [53](1971) 127 CLR 106, 134-135.

   [54](2007) 81 ALJR 598, 608.

   [55](1971) 127 CLR 106, 134-135.

   [56](1663) Carthew 293 [90 ER 773]; 2 Salk 609 [91 ER 516].

   [57](1880) 5 App Cas 214.

   [58](1955) 92 CLR 496.

   [59](1851) 138 ER 672.

   [60]Ibid 677.

   [61]Ibid 679.

2. Leach v R[62] is a case very similar to the present. It concerned s 19(5) of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), which provided this:

   The Supreme Court may refuse to fix a non-parole period if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility for release on parole. 

   The applicant argued the Court had a discretion to fix a non-parole period even if it was satisfied of the specified matters.  The High Court rejected that submission.  It held:

   The word ‘may’ is used, not to give a discretion, but to confer a power which is to be exercised upon the Court being satisfied of the matters described in the provision.[63]

   [62](2007) 81 ALJR 598.

   [63]Ibid 608; see further Khoshabeh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 104, 106, 110-111.

3. Applying these principles to this case, I think the power in s 68(1) is expressed in terms that confer a duty. I cannot read the section as permitting the Chief Commissioner, at her discretion, to retain in the force a member who she is satisfied is unsuitable to continue, having regard the member’s integrity and the potential loss of community confidence. Such a reading would defeat the object and purpose of s 68(1), which is to promote and maintain the integrity of, and community confidence in, the force. I do not think the Parliament has left it to the Chief Commissioner to decide whether such a member should be retained. Under s 68(1), once the Chief Commissioner is properly satisfied of their unsuitability, she must dismiss them.

1. The way other powers in the Act are expressed strongly supports this conclusion.  I will give three pertinent examples.

1. First, it is significant that s 68(1) does not specify a list of possible actions from which the Chief Commissioner can make a selection. The dismissal power in s 68(1) is just that – a dismissal power. An example of a different kind of provision is s 76(1), which specifies the “one or more” determinations a person conducting a disciplinary inquiry may make. Such a power is plainly discretionary, unlike s 68(1). Appeals against a Chief Commissioner’s dismissal under s 68(1) go to the Appeal Board under s 68B. When determining an appeal, that Board has a list of powers from which it can make a discretionary choice, but not dismissing a member whose appeal fails is not one them for, in that case, the Board must confirm the Chief Commissioner’s order (s 68D(1) and (5)).

1. Second, ss 76(1) (for example) and s 68(1) operate in the context of very different procedures, both adapted to the different nature of those powers. Section 76(1) is exercised in the context of an inquiry (see ss 73 and 75) at which the various options can be examined, depending on the severity of the breach of discipline and the other relevant factors. Section 68(1) is exercised in the context of a procedure (see s 68(1)-(3)) that is directed at determining one fundamental question - whether, to the Chief Commissioner’s satisfaction, the member is unsuitable to continue.

1. Third, s 68 is found in Part IV. That part makes provision, in four different divisions, and in different terms, for four different kinds of power.

1. Division 1 (containing s 68) deals with the dismissal of members found by the Chief Commissioner to be unsuitable, having regard to their integrity and the potential loss of community confidence.  This dismissal power has the attributes I have already described.  Only the Chief Commissioner, who has the general superintendence of the force,[64] can exercise the power, for it is non-delegable.[65]  An appeal is available to the Appeal Board on the limited ground that the decision is “not sound, defensible or well-founded” (s 68B(1)) and according to specified procedures (s 68C)).  The Appeal Board’s powers have already been mentioned.

   [64]Section 5(1).

   [65]Section 6(1A).

1. Division 2 deals with members who have committed breaches of discipline of widely varying gravity (see s 69(1)). It contains a mechanism for conducting preliminary investigations (s 70), for charging the member (ss 71-72), for holding inquiries (ss 73 and 75) and for making determinations (s 76)). By contrast with the dismissal power in s 68, a number of determinations are possible, ranging from reprimand (s 76(1)(a)) to dismissal (s 76(1)(g)).

1. Divisions 3 deals with members alleged to have committed criminal offences punishable by imprisonment (s 79).  The possible actions also cover a range – also from reprimand (s 80(1)(a)(i)) to dismissal (s 80(1)(e)). 

1. Division 4 deals with a member’s fitness for duty (s 82).  The possible responses range from transfer (s 85(a)) to dismissal (s 85 (c)). 

1. In my view, a comparison of the first power – the one in s 68 - with the other three suggests the former, unlike each of the latter, is not discretionary.

1. That conclusion does not fully dispose of Mr Shields’ submission that the Chief Commissioner failed to take relevant considerations into account. However, the real issues raised by that submission must be whether a member’s prior record, and the availability of the disciplinary and other processes, are relevant considerations, and were properly taken into account, given that s 68(1) confers a power not a discretion.

Did the Chief Commissioner ignore relevant considerations?

Prior good service and character

1. Is the Chief Commissioner bound to consider evidence of the prior good service and character of a member of the force before exercising the power to dismiss in s 68(1)? I think she is.

1. Before dismissing someone, the Chief Commissioner has to be satisfied the member is unsuitable to continue, having regard to their integrity and the potential loss of community confidence in their continuance.  The member’s history of prior good service and good character (and, logically, the contrary) are plainly relevant in the Chief Commissioner’s consideration of those matters. 

1. However, there will no doubt be cases where these considerations may count positively for the member, yet the Chief Commissioner will still be legitimately satisfied that the member, by reason of the gravity of their conduct, is unsuitable to continue.  That, I think, is what happened in Mr Shields’ case.  His testimonial evidence was impressive.  Its relevance was acknowledged by the Chief Commissioner.  Her reasons for decision specifically stated that Mr Shields’ submissions in these respects were considered.  There is no basis for doubting either that statement or that the submissions were properly considered.  But the reasons stated the Chief Commissioner was satisfied that Mr Shields was unsuitable to continue because she was satisfied of grounds 1 and 3, which I have already set out.  I infer from the Chief Commissioner’s reasons that she thought the gravity of those grounds simply overwhelmed the other considerations, and I do not find that conclusion in any way surprising.

The availability of the disciplinary provisions

1. Is the Chief Commissioner bound to consider the availability of the disciplinary and other provisions of Part IV before exercising the power to dismiss in s 68(1)?

1. Mr Shields submitted the answer to this question was yes. According to those submissions, the power to dismiss in s 68 had to be seen in the context of Part IV as a whole. Therefore, before exercising the power in s 68, the Chief Commissioner was obliged to consider whether the other processes in Part IV, especially the disciplinary processes in Division 2, should be followed. Those submissions led to the further submission that the Chief Commissioner had dismissed Mr Shields under s 68 for the improper purpose of avoiding the charging and inquiry processes in Division 2.

1. The Chief Commissioner submitted the answer to the question was no. Her submissions were that the power to dismiss under s 68(1) is free-standing. The single statutory criterion is the member’s unsuitability to continue, having regard to their integrity and the potential loss of community confidence in their continuance. Whether alleged misconduct (for example) could form the basis of a disciplinary offence was beside the point. The availability of the alternative statutory mechanism for dealing with such cases is not relevant to fulfilling the scope, object and purpose of the power in s 68. Therefore, when exercising that power, the Chief Commissioner was not bound to consider the alternative statutory processes for dealing with the matter.

1. I reject the substance of Mr Shields’ submissions, but for the reasons that follow, which do not involve fully accepting the submissions of the Chief Commissioner.

1. The Chief Commissioner relied on the decision of Allsop J in Eaton v Overland.[66] In that case, s 28 of the Australian Federal Police Act 1979 (Cth) gave the Commissioner power, at any time, to terminate the employment of an AFP employee, who might include a police officer. Other legislation set up a regime for dealing with disciplinary charges brought against officers.

   [66](2001) 67 ALD 671.

1. The officer applicant contended that, where misconduct was alleged, the dismissal power in s 28 could not be used – at all – because the misconduct could form the basis of, and be dealt with as, a disciplinary charge. Allsop J rejected that submission. He held the disciplinary submissions did not form an exclusive code for dealing with such cases. With respect, I think this conclusion was clearly correct.[67] As we shall see, similar reasoning applies to the Chief Commissioner’s power under s 68 of the Police Regulation Act.

   [67]See also Gaisford v Fisher (1997) 45 ALD 87, 91-92 where Finn J held the disciplinary regime in the Public Service Act 1922 (Cth) did not displace an administrative security clearance regime just because the case concerned misconduct that might be dealt with under the former as well as the latter.

1. Allsop J went on to deal specifically with this critical question: what if the circumstances presented the Commissioner with alternative ways for dealing with the person?  Here is his Honour’s important conclusion:

   Sometimes, possibly here, the alleged underlying facts will give the Commissioner a choice to act by bringing disciplinary charges or to act under his employment or command powers.  If he chooses the latter he may do so because he feels that most relevant and important are questions of deployment, assignment, secondment or suitability for employment.  He may see, in those circumstances, the bringing of formal disciplinary charges as unnecessary and inappropriate.

   As I read the legislation there is nothing to prevent, and ample power to permit, such a choice.[68]

   You will note the passage says, in effect, that the Commissioner, after considering the matter, could adopt the most appropriate course. Again, I respectfully agree.  But Allsop J did not say the Commissioner could simply exclude from consideration one obvious potential course.

   [68]Ibid 717.

1. It is helpful to look again, in a summary way, at the statutory scheme.  To repeat, Division 1 (containing s 68) deals with the dismissal of members found by the Chief Commissioner to be unsuitable, having regard to their integrity and the potential loss of community confidence.  Division 2 deals with members who have committed breaches of discipline of widely varying gravity (see s 69(1)).  The possible responses range from reprimand (s 76(1)(a)) to dismissal (s 76(1)(g)).  Divisions 3 deals with members alleged to have committed criminal offences punishable by imprisonment (s 79).  The possible responses also range from reprimand (s 80(1)(a)(i)) to dismissal (s 80(1)(e)).  Division 4 deals with a member’s fitness for duty (s 82).  The possible responses range from transfer (s 85(a)) to dismissal (s 85(c)). 

1. It is obvious these provisions might apply in disparate factual settings. There may be cases in which the factual circumstances give rise only to concerns about the member’s suitability to continue under s 68. There may also be cases in which the factual circumstances give rise to overlapping concerns about the member’s suitability to continue under s 68 and also the member’s liability for an alleged breach of discipline under s 69, the member’s liability for an alleged commission of a criminal offence under s 79 or the member’s fitness for duty under s 82. In cases of that latter kind, I think the Chief Commissioner is bound to consider what is the appropriate way to deal with the matter.

1. Take a case where the Chief Commissioner is satisfied the member is guilty of serious misconduct. To act under s 68(1), the Chief Commissioner has to be satisfied the member is unsuitable to continue having regard to their integrity and the potential loss of community confidence. That the serious misconduct might be appropriately dealt with as a disciplinary matter under s 69 may be relevant to her consideration of those matters. The Chief Commissioner might conclude, for example, that there was a low potential for loss of community confidence if the community could see that the matter was being appropriately dealt with in that alternative manner. On the other hand, she might conclude the nature of the misconduct was such that it was appropriate to deal with it by way of dismissal under s 68.

1. It is for the Chief Commissioner to determine the appropriate way to proceed in such circumstances. The fact that the issues were capable of being dealt with in a disciplinary hearing under Division 2 would not be a bar to the Chief Commissioner dismissing the member under s 68, if she was satisfied he or she was unsuitable to continue on the specified grounds.[69]  The question always remains: is the Chief Commissioner satisfied of the member’s unsuitability to continue on the specified grounds?

   [69]Robb and Dale v Chief Commissioner of Police (2005) 23 VAR 244, 275.

1. Under the Police Regulation Act, it is not quite legally accurate to say the existence of overlapping circumstances gives rise to a choice on the part of the Chief Commissioner as to how to deal with the situation. I have already expressed my view that s 68 does not confer a discretionary power. It is a power to dismiss a member who the Chief Commissioner is satisfied is unsuitable to continue. It follows that the proper exercise of the power cannot be chosen or not chosen. If the circumstances give rise to issues that require consideration under s 68, they do not cease to do so, or come to require something less, because, on one view, they might be dealt with in a disciplinary hearing. Thus the Chief Commissioner has a duty positively to consider the matter under s 68, whether or not it may also be considered under, say, the disciplinary provisions. Having done so, and having become satisfied of the member’s unsuitability on the specified grounds, she must issue a dismissal order. However, in some cases, the availability of an alternative statutory process might influence the Chief Commissioner’s assessment of the member’s suitability to continue on the specified grounds, such that she may consider it appropriate to allow that alternative process to be adopted rather than exercise her powers under s 68, which is a question entirely for her.

1. Mr Shields relied on the Second Reading Speech of the Minister for Police and Emergency Services to support his submission that the availability of the disciplinary and other provisions of Division 2 of Part IV was always a relevant consideration under s 68(1). Among other things, the Minister said this of s 68:

   The government recognises that this gives a significant power to the chief commissioner. It expects that it will be exercised very sparingly and only in circumstances where the existing processes in the Police Regulation Act 1958 relating to disciplinary and criminal charges cannot be used to deal with the matter appropriately.[70]

   [70]Victoria, Parliamentary Debates, Legislative Assembly, 22 April 1999, 588.

2. To my mind, this statement was intended to express no more than the Minster’s hopeful expectation that the power would be used sparingly and only in the specified circumstances. It is not permissible to use this or any other aspect of the Second Reading Speech to import, by interpretation, a limitation that s 68 cannot be used where the other statutory processes are applicable. This is because the clear terms of Division 1 of Part IV create a free-standing dismissal and appeal regime that is in no way limited by the terms of Divisions 2, 3 or 4 of Part IV. The meaning of the clear statutory terms of that regime cannot be affected by extrinsic material, such as the Second Reading Speech, for the “words of a Minister must not be substituted for the text of the law.” [71]

   [71]Re Bolton; Ex parte Beane (1987) 162 CLR 514, 518.

1. On the other hand, it is permissible to consider the Second Reading Speech, and the whole of Part IV, as part of the context in which, at the first instance, s 68 must be interpreted.[72] But that context does not support the importation of a limitation on the operation of s 68. In any event, the Minister fell far short of saying that the power was confined to cases where the disciplinary and other alternative provisions were not available. Indeed, he acknowledged that it was up to the Chief Commissioner to determine how the matter should “appropriately” be dealt with.

   [72]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

1. While it does not support the importation of a qualification, this mention of what the Chief Commissioner should “appropriately” do does fortify me in my view that the legislature intended, in appropriate cases, that the Chief Commissioner would be bound to consider the alternative statutory processes when deciding whether, under s 68, she was satisfied the member was unsuitable to continue on the specified grounds.

1. But I do not think that, under the legislation, the Chief Commissioner is bound to consider the availability of possible alternative processes in every case. There has to be something in the nature of the case or the submissions of the member to make it relevant. The present case is, I think, an excellent example of one whose nature did not call for consideration of possible alternative processes. Once the Chief Commissioner was satisfied of grounds 1 and 3, it is inconceivable that her view of the Mr Shields’ unsuitability to continue would be influenced by the possibility of holding a disciplinary hearing, for example. Nor did his submissions make the issue relevant. The submissions of Mr Shields’ solicitors were ample and forceful, but did not mention the possibility of alternative processes being adopted. The submissions dealt with the issues entirely within the framework of s 68, which was not only appropriate but unavoidable, for the plain fact was that Mr Shields was facing almost certain dismissal under that section if the Chief Commissioner was satisfied of the grounds specified in the notice.

1. On the issue of relevant considerations, Mr Shields’ submissions are thus reduced to this proposition: the Chief Commissioner ignored a relevant consideration – possible alternative processes – that theoretically might have arisen in a case of a different nature or, alternatively, might have been, but understandably were not, raised in the submissions made on his behalf. The answer to the proposition is that, in Mr Shields’ case, this consideration was not one the Chief Commissioner was bound to take into account, and she did not improperly exercise the power in s 68(1) by not doing so.

1. It remains to deal with Mr Shields’ submissions on improper purpose.

Improper purpose

1. Statutory powers for the dismissal of police officers must be exercise for the purpose for which they were conferred and in good faith.[73] It is apparent from the express terms of s 68(1) that it was conferred for the purpose, which I have described as fundamentally important, of maintaining the integrity of, and community confidence in, the police force. However convenient it may be to describe the power in s 68(1) as “managerial”, I would not myself use that word in reference to the power. In my mind the word “managerial” is more apt to describe a discretionary or executive power. That is the way the word is used in industrial law, where the expression “managerial prerogative” refers to the capacity of management – the employer – to make decisions at its discretion. I think it would be unfortunate – and legally incorrect – for the power in s 68(1) to be understood in that way, for that is not the nature of the power that has been conferred. The power conferred is quite definite, both as to the substantive basis on which, and the procedures pursuant to which, it must be exercised. I think the terms of the statute tell us eloquently that s 68(1) confers a power of dismissal for maintaining the integrity of, and community confidence in, the force, nothing more and nothing less.

   [73]Sydney Municipal Council v Campbell [1925] AC 338, 343; Arthur Yates and Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, 67-68, 82.

1. It would be improper for the Chief Commissioner to exercise the power of dismissal in s 68 for the purpose of avoiding the application of alternative statutory processes, such as the disciplinary processes in Division 2 of Part IV, and not for the purpose of maintaining the integrity of, and community confidence in, the police force. This Court could make orders for judicial review if it were plainly established that the Chief Commissioner had so misused her power.

1. There is not a scintilla of evidence in this case to suggest the Chief Commissioner dismissed Mr Shields for that or any other improper purpose. She dismissed him because she found he had engaged (among other things) in humiliating and degrading conduct towards women, and had allowed his relationship with a young female constable to lead him to extend favourable treatment to her to the disadvantage of others. Those grounds constituted a lawful basis for the Chief Commissioner to be satisfied that Mr Shields was unsuitable to continue to be a member of the force, having regard to his integrity and the potential loss of community confidence were he to continue. Whether or not those grounds were capable of being dealt with under Division 2 of Part IV, for example, the Chief Commissioner was entitled to dismiss Mr Shields under s 68(1), and she did not act for an improper purpose in doing so.

1. Ground four of Mr Shields’ judicial review application has therefore not been made out.

NO EVIDENCE

1. Mr Shields submitted that the Chief Commissioner made two important findings for which there was no evidence:

·     that he had provided no motive on the part of Mr O’Regan to provide false information

·     that he had not raised any issues about the credibility of the complainant and witnesses in relation to the Frankston incidents

1. It may be accepted that it is an error of law to make a finding for which there is no  evidence.  If an error of law of that kind is disclosed by the dismissal order, which constitutes the record of the decision, it would be a jurisdictional error, being an error of law on the face of the record.

1. Turning to the issue concerning Mr O’Regan, the notice of proposed dismissal specified Mr Shields had conducted himself in an intimidating and unprofessional manner towards that person at a petrol station.

1. Mr Shields’ submissions in response were, among other things, that the statement was taken from Mr O’Regan eight months later, that it was Mr Regan who behaved inappropriately at the petrol station, that Mr Regan had made the complaint to stop a parking ticket being given to him and that no statement was taken from a sergeant of police with whom Mr O’Regan had made telephone contact and to whom Mr Shields had given the same explanation.

1. The Chief Commissioner’s order referred to the finding in the notice concerning Mr O’Regan and noted the contents of Mr Shields’ submissions in response.  It noted that Mr Shields’ version contained an attack on Mr O’Regan’s credit and that Mr O’Regan’s statement was made eight months after the incident, as well as the other matters relied on in the submissions.

1. The Chief Commissioner maintained the finding concerning Mr O’Regan.  She said (in par 21(a)):

   I continue to accept the truth of the matters contained in O’Regan’s statement.  I do not regard the matters raised in the Response, including the timing of the making of O’Regan’s statement, as sufficiently impugning O’Regan’s credit to warrant rejection of the version of events contained in that statement.

   I think that statement can only be understood as a rejection, following the consideration, of the attack by Mr Shields on Mr O’Regan’s credit, based in particular on the allegation that he made the complaint to stop being issued with a parking ticket.

1. The Chief Commissioner went on to say this (in par 21(b)):

   I note that you have pointed to no motive to fabricate on the part of O’Regan, nor have you suggested any reason why O’Regan should not be believed.  You have not requested that I ask questions of Mr O’Regan at an oral hearing.

   Having regard to the Chief Commissioner’s earlier statement, this statement cannot be understood to have been made in ignorance of Mr Shields’ submissions about Mr O’Regan making the complaint to stop being issued with a parking ticket, for those matters where referred to in paragraph 21(a).  In this statement in paragraph 21(b), I think the Chief Commissioner was proceeding on the basis that she had dealt with the question of the attack on Mr O’Regan’s credit – which necessarily picks up the question of the alleged motive to fabricate and reason not to believe Mr O’Regan -  in paragraph 21(a).  Paragraph 21(b) should be understood on that basis.

1. Turning next to the Frankston incidents, the notice specified the finding that Mr Shields had made derogatory remarks to a female member of the public outside the Pier Hotel and Seascape Café in that area.

1. Mr Shields’ submissions in response referred, among other things, to his denial of the words attributed to him by the civilian witnesses.  Again, he “expressly denied” the allegations.  The submissions referred to the corroboration of his denial by two other officers. 

1. The Chief Commissioner’s order dealt extensively with Mr Sheilds’ submissions in response, both with those I have just described and others that were made.  The Chief Commissioner’s consideration began with this statement (par 11(a)):

   You have not raised any issues about the credibility of the female complainant or any other witnesses.

2. Mr Shields submits that statement – which he treated as a finding of fact – was made without evidence because, in his denial of the allegations, it was implicit that he was raising issues about the credit of the complainant and the other witnesses.  That is the sole basis of this aspect of Mr Shields’ no evidence submission to this Court on this subject.

1. Mr Shields’ submissions must be rejected.  Assuming that the statement was a finding of fact, in paragraph 11(a) the Chief Commissioner was saying only that Mr Shields had not expressly raised any of the credibility issues mentioned, which was plainly supported by the evidence.  To the extent that Mr Shields had made an implicit submission on this question in his general submissions, it was implicitly rejected by the Chief Commissioner. 

1. Ground five of the judicial review application must be rejected, which means that Mr Shields has not succeeded on any of the grounds on which he relied.  The judicial review application must be rejected as a whole.

CONCLUSION

1. In 2006 former Senior Sergeant Richard Shields was dismissed from the Victoria police force by the Chief Commissioner, Christine Nixon, under s 68(1) of the Police Regulation Act.  She did so because, applying the criteria specified in that section, and having investigated the allegations against him, she was satisfied Mr Shields was unsuitable to continue, having regard to his integrity and the potential loss of community confidence were he to remain in the force.

1. Mr Shields sought judicial review of the Chief Commissioner’s decision.  Putting forward wide-ranging grounds, Mr Shields contended the Chief Commissioner breached the rules of natural justice, committed errors of law by misinterpreting and misapplying the legislation, failed to take relevant considerations into account, used the dismissal power for an improper purpose and made findings without evidence.  Mr Shields sought orders quashing the dismissal and remitting the matter back to the Chief Commissioner for reconsideration.

1. I have considered and rejected each of these grounds.

1. Mr Shields was not denied natural justice.  The Chief Commissioner followed the correct statutory procedure and gave Mr Shields a full and proper opportunity to answer the allegations against him, which his solicitors took up on his behalf.

1. The Chief Commissioner did not commit any errors of law.  As required by the legislation, she made provisional findings, from which she was prepared to depart, and about which she gave Mr Shields the opportunity to make submissions.  She made final findings only after considering his submissions.

1. Mr Shields’ good character and record of service to date was taken into account by the Chief Commissioner. She did not ignore any considerations she was bound to take into account. In particular, in this case, she was not bound to consider the possible availability of the ordinary processes for disciplining police officers, for these were not in issue. The power to dismiss in s 68(1) has to be exercised according to its own terms, which is how the Chief Commissioner approached the matter.

1. The Chief Commissioner did not exercise the power in s 68(1) for the improper purpose of avoiding those ordinary disciplinary processes. Finally, the findings attacked by Mr Shields were supported by evidence.

1. The Chief Commissioner has a positive responsibility under the Police Regulation Act to maintain the integrity of, and community confidence in, the Victoria police force. Section 68 was introduced by amendment in 1999 to enhance the capacity of the Chief Commissioner to carry out that responsibility. It did so by giving her the power to remove a member who she is satisfied is unsuitable to continue. Section 68(1) does not confer a discretionary power that can be exercised by the Chief Commissioner according to her managerial prerogative. It operates in a compulsive manner for the definite purpose for which it was conferred. Once the Chief Commissioner is satisfied the member is unsuitable to continue, having regard to their integrity and the potential loss of community confidence if they were to continue, she must dismiss them.

1. In the present case, the Chief Commissioner made these findings, which were very serious:

·     Mr Shields had openly engaged in persecutory, intimidatory and bullying behaviour towards others, including conduct that humiliated and degraded women

·     Mr Shields had allowed his relationship with a probationary constable who was not under his management and supervision to lead him improperly to place her professional development ahead of members formally under his management and supervision

1. Having found Mr Shields engaged in that conduct, the Chief Commissioner was legally entitled to be satisfied that Mr Shields was unsuitable to continue as a member of the force, having regard to his integrity and the potential loss of community confidence were he to continue.  Mr Shields’ dismissal was not unlawful.

1. The application for judicial review will be dismissed.

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