State of Victoria & Anor v Konrad

[2000] HCATrans 405

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M87 of 1999

B e t w e e n -

VICTORIA POLICE (STATE OF VICTORIA)

First Applicant

MURRAY NEIL COMRIE, CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA

Second Applicant

and

KARL KONRAD

Respondent

Office of the Registry
  Melbourne  No M88 of 1999

B e t w e e n -

STATE OF VICTORIA

First Applicant

MURRAY NEIL COMRIE, CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA

Second Applicant

and

ALLAN STUART GLASGOW

Respondent

Office of the Registry
  Melbourne  No M89 of 1999

B e t w e e n -

STATE OF VICTORIA

First Applicant

MURRAY NEIL COMRIE, CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA

Second Applicant

and

DAVID JOHN ORCHARD

Respondent

Office of the Registry
  Melbourne  No M90 of 1999

B e t w e e n -

STATE OF VICTORIA

First Applicant

MURRAY NEIL COMRIE, CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA

Second Applicant

and

PATRICK BERNARD GEHRIG

Respondent

Applications for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 SEPTEMBER 2000, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria:   May it please the Court, I appear with my learned friend, MR J.D. HAMMOND, for the applicants in all four matters.  (instructed by Victorian Government Solicitor)

MR R.C. KENZIE, QC:   May it please the Court, I appear for the respondents in matters 88, 89 and 90.  (instructed by Holding Redlich)

McHUGH J:   Thank you.  I have a certificate from the Deputy Registrar in which she says that she has been informed by J.N. Zigouras & Co, solicitors for the respondent in matter M87 of 1999, that the respondent does not wish to present any

oral argument to the Court and supports the arguments of the respondents in M88 to M90 of 1999.  Yes, Mr Graham.

MR GRAHAM:   May it please the Court, it is our submission that these four matters should be heard together.

McHUGH J:   Yes.

MR GRAHAM:   It is our submission that these cases once bristled with many points, but at this stage the applicants seek only to agitate one of those points, namely what might be called the implied immunity point, or the Melbourne Corporation point, or the Australian Education Union Case point.

McHUGH J:   Having regard to the terms of the current legislation, it really affects only a handful of people and in the past, does it not?

MR GRAHAM:   With respect not, your Honour.  I was going to take the Court to that matter.  I just thought it was necessary to isolate why we say there is a special leave point at all.  I will come back to that in a few minutes if I may.  It does require a visit to the new Workplace Relations Act and a guided tour of it in order to establish that the point is still a live one.

The issue, in our submission, is whether the federal industrial tribunals and the Federal Court may intrude upon the process of determination by the States of the composition of their own police forces.  That intrusion for present purposes would occur in the dismissal process of police officers, either by enabling dismissed members of the force to obtain reinstatement against the wishes or decision of police force command, or by fettering the dismissal process by reason of the existence of a power within the federal regime to award compensation to a dismissed member.

HAYNE J:   Why is that relevantly a fetter?

MR GRAHAM:   Your Honour, if there was ‑ ‑ ‑

HAYNE J:   If it is grounded in an obligation to give reasons for dismissal?

MR GRAHAM:   It may be grounded in other reasons as well, but cases can be postulated where, although the dismissal was in compliance with the State Police Regulation Act, nevertheless the Federal Court might consider an award of compensation was appropriate.

HAYNE J:   But that might hit the Treasury of the State; it would not hit the question of composition of the force, would it?

MR GRAHAM:   In our submission, your Honour, it might.  It would be a consideration which would need to be taken into account, being a consideration extraneous to those normally considered by force command in considering whether a member should remain or not.

What we say very briefly is that Mr Justice Finkelstein, with respect, got the matter half right.  The other two members of the Full Federal Court, Justices Ryan and North, with great respect to them, got it wrong on both counts.  I draw your Honours’ attention to what Mr Justice Finkelstein said at application book pages 97 to 98, where he seems to indicate that he regarded the reinstatement power then contained in section 170EE(1) to be severable in the sense that it was not applicable in the context of a dismissed police officer.  By inference he held that the compensation power was still available in the case of a dismissed member of the police force.  His Honour seems to say that if he had not regarded that severability as being open, the whole of section 170EE would have failed.

HAYNE J:   Is reinstatement of these respondents still a live issue in this litigation?

MR GRAHAM:   I cannot answer that, your Honour.  We have taken it that the three respondents presently represented still desire reinstatement.

McHUGH J:   But is not the critical question so far as special leave is concerned that since 31 December 1996 police officers in any State are no longer entitled to relief in respect of the termination of employment without a valid reason?

MR GRAHAM:   But nonetheless, your Honour, the Commonwealth legislation still has a part to play in relation to dismissed police officers.  Can I take the Court to the provisions of the Act as they ‑ ‑ ‑

HAYNE J:   In relation to officers who have already been dismissed, or in relation to officers who in the future may be?

MR GRAHAM: In the future, your Honour. It is put against us in the applicant’s submissions at paragraphs 1 to 5, application book 131 to 132, that the issue in this case, namely the implied immunity issue, has no relevance hereafter under the provisions of the Workplace Relations Act 1996. We take issue with that proposition.

McHUGH J:   What about the statement in the last line on 131:

Under the new and currently operating Div 3 of Pt VIA, police officers in any State are no longer entitled to relief in respect of termination of employment without a valid reason (see s170CB).

Is that correct?

MR GRAHAM:   We submit not, your Honour.  That is the point I wish to address.  Can I hand to your Honours what I might describe as a road map to assist your Honours in following the balance of our argument in relation to the Workplace Relations Act 1996.

As your Honours are aware, the Victorian Commonwealth Powers (Industrial Relations) Act 1996 referred certain industrial relations matters to the Commonwealth. But, as we read the 1996 Act, the provisions of Division 3 of Part VIA still apply to Victorian police officers without reliance upon Part XV of the Commonwealth Act, which was the part enacted in response to the referral legislation. So we have there Commonwealth legislation dealing generally with ‑ ‑ ‑

McHUGH J:   That is true that Division 3 of Part VIA may still apply generally, but does it still apply in respect of relief in respect of the termination of employment?

MR GRAHAM:   We say it does, your Honour.

McHUGH J:   Could you take us to 170CB?

MR GRAHAM:   Yes.  If I could take your Honours first to section 170CB(3), under the heading – if I could just go back a step; in our road map, we submit than an order reinstating a Victorian police officer whose employment has been terminated can still be made under section 170CR(1) or 170GA(2) of the Act.  Under those provisions we say a Victorian police officer may obtain compensation.  Perhaps if I could ask your Honours to look at 170CR.  Section 170CR directs attention to sections 170CK and 170CN.

McHUGH J:   The book that you have handed up does not seem to have the legislation. 

MR GRAHAM:   Your Honours do need the print of the Industrial Relations Act 1988 and the print of the Workplace Relations Act 1996.

HAYNE J:   The path you want us to follow is CR(1) back to CK, is it?

MR GRAHAM:   And CN, your Honour.  What we have done in paragraph 2 of the ‑ ‑ ‑

McHUGH J:   We start with CR ‑ ‑ ‑

MR GRAHAM:   Section 170CR(1)(b) is the power for reinstatement.  Paragraph (c) is the power in relation to compensation.  If I can take your Honours back to our road map, there are three routes through which one can reach the position where reinstatement or compensation can still be awarded.

If I could take your Honours back to 170CB(3), in particular subsections (3) and (5).  Each of those subsections refer to Subdivisions C, D and E.  If I can then take your Honours to section 170CK, which is the beginning of Subdivision C, there is a provision for prohibiting termination except for certain expressed reasons.  None of those reasons are, in the general terms of harsh, unjust or unreasonable, as used to be the case.  There are a series of reasons which could easily arise in the police context, and have arisen in the police context in some cases, under which termination of employment is prohibited.  So if there is a contravention of 170CK, that enlivens the power under section 170CR.

Likewise, if I can take your Honours back to the road map, at paragraph 2.2, if one goes to Subdivision D of Division 3, Part VIA, one goes next to section 170FA, and that is a protection which enables the Commission to make an order giving effect to the requirements of Article 12 or Article 13 of the relevant ILO Convention.  Then one goes to section 170CN, which says:

An employer must not terminate an employee’s employment in contravention of an order in force under section 170FA.

That again takes one on to section 170CR, provisions for reinstatement and compensation.

Finally, the third route to the making of an order for reinstatement or compensation comes this way:  starting again at section 170CB(3), or 170CB(5), one then goes to section 170GA, which is concerned with the Commission making orders where an employer has failed to consult a trade union about terminations.  When one goes from there, one looks at subsection GA(2) which gives a very broad power to the Commission to make all kinds of orders.  As we would read section 170GA(2), the Commission could make an order either for reinstatement or for the payment of compensation if there had been an order made under section 170GA(1).

McHUGH J:   I am not sure at the moment what is the basis of the claim of the respondents that 170CB does not apply to police officers in any State.  I cannot see anything at the moment ‑ ‑ ‑

MR GRAHAM:   Section 170CB is only concerned with the operation of Subdivision B.  That, it is made clear, is going to apply only to various categories of employees, none of whom would be a police officer.  The respondent is right in saying that subsection (b) does not apply to any member of the police force in the country, but that is only just to tell half the story.  Subdivisions C, D and E are not confined in the way that Subdivision B is.  So we say that, having regard to section 170CB(3) and (5) and the other provisions which I have traced, these provisions are capable of operating in relation to a member of a State police force.  The same implied immunity issue would arise today as it did prior to these amendments.

Your Honours, I do not believe I can take the matter further.  Those are our submissions.

McHUGH J:   Yes.  Yes, Mr Kenzie.

MR KENZIE:   If it please the Court, could I deal with the matter that has been recently addressed?  The legislation in relation to section 170CB has relevantly changed.  In the 1993 to 1996 legislation, the subsection specifically picked up the employment convention.  It was the fact the legislation there specifically picked up the employment convention that led to the argument before the Federal Court as to whether policemen were caught by that part of the regime, regardless of whether they were employees in the common law sense.  It was because former section 170CB said that we were dealing with employees in the convention sense, that you had the argument ultimately resolved in favour of the respondents by the ‑ ‑ ‑

McHUGH J:   So, what is your argument now that 170CB(3) only applies those divisions to an employee in the common law sense and that policemen are not employees.

MR KENZIE:   That is right.  When I say, “that is right”, contrary to our submissions in the Federal Court, but in accordance with the decision of the Federal Court, policemen were found not to be employees in the common law sense and therefore not caught by the former CB.  So, that takes us to the other provisions which have recently been added to the debate by our friends, and which have just been the subject of discussions.  Could I say something about those.  That is the reason we say, and the parties are agreed as to this, that the current form of CB does not apply.  The old form of CB did catch us, or at least, as we said.

HAYNE J:   I am sorry, Mr Kenzie, you will need to go back a stage.  I understood your basic proposition to be that under the law as it now stands, no issue can arise about reinstatement of a police officer.  Is that the basic proposition you propound?

MR KENZIE:   Well, your Honour, it was and is, but I have to deal with the provisions which have now been relied on in the document that has just been handed to you.  Subject to that, yes.

HAYNE J:   At the end of that dealing, what is the proposition you are seeking to make, that those provisions do or do not apply to police officers?

MR KENZIE:   These provisions do apply to police officers, that is the ones that have been the subject of discussion today, because some of them pick up convention provisions and therefore reactivate the debate.

HAYNE J:   Does it then follow that there remains under the legislation in its current form a live issue of the kind that was debated in the Federal Court about immunity?

MR KENZIE:   In our respectful submission, not a discussion such as that which occurred in the Federal Court about immunity.  But it is clear that these provisions would catch police officers.  I have to deal with that ‑ ‑ ‑

McHUGH J:   But in addition, some of the powers are framed in such a general way that they would, would they not, on one construction, enable orders about reinstating police officers?

MR KENZIE:   Could I deal with that?  I can deal with it very briefly, your Honour.

McHUGH J:   Yes.

MR KENZIE:   In our respectful submission, the argument is really a red herring.  Could I deal with it in this way:  firstly, the whole argument - it is obvious that none of these provisions were considered by the Federal Court, either at first instance or on appeal.  The Federal Court was dealing entirely with old provisions and none of these.  The recourse to Subdivisions E – if I can deal with Subdivisions D and E first:  Subdivision D, that is the provisions commencing with section 170FA, are provisions which only come into operation in circumstances contemplated by section 170FA(2) and only, therefore, in circumstances where there is at least a minimal number of employees affected by the relevant order.

Likewise, in relation to Subdivision E, section 170GA(1) has a similar provision.  So, the legislative regime relating to complaints based on the fact that there has been a failure to consult a trade union, can be activated in circumstances where there has been a wholesale, or an operational decision, not based on disciplinary-type grounds at all, made in relation to a number of police officers.  In those circumstances, one gets to Subdivision E and Subdivision D and, obviously, raises different arguments of a different dimension under the immunities case.  At the risk of being trite, it will be obvious to the Court that the pronouncements in both the AEU case and Victoria v the Commonwealth, the Industrial Relations Case, drew in terms of argument a clear distinction between regimes of redundancy, that is applying for operational reasons, and other provisions relating to dismissal.

Indeed, in Victoria v the Commonwealth it is very clear that the Court, although it dealt generally with the relevant Subdivision of the 1993, 1996 Industrial Relations Act, read down the provisions relating to dismissal and, in particular, section 170DE, which was the very provision in this case, read it down so as not to cover situations of redundancy, but not so that it did not cover situations of employment for - - -

McHUGH J:   Does it come to this, that the provisions to which the Solicitor-General has referred to in 2.2 and 2.3, are all predicated in one form or another on there being a dismissal of 15 employees?

MR KENZIE:   Yes, your Honour, and that is what I have to say about that; raising entirely different considerations in relation to the immunities principle.  As far as Subdivision C is concerned, that is the provision that deals with dismissal on the ground of discrimination. 

McHUGH J:   Which is that section again?

MR KENZIE:   That is Subdivision C, the provisions flowing from section 170CK.

McHUGH J:   Yes, CK(2).

MR KENZIE:   The point there is a different one.  The point there is this, as will be apparent from an examination of the discussion on the application of the immunity principle in the Federal Court, in this case the question of whether the immunities principle had been offended or would be offended was dealt with on the basis of the degree of interference to the State that would be involved.

Likewise, if there was a proceeding that involved section 170CK, the discussion would be different, in our respectful submission.  The discussion

would involve the degree of interference that would be involved in relation to a decision to dismiss on the ground of discrimination in circumstances where Victoria had an anti-discrimination regime in the form of the equal opportunities legislation.  That would be the parameters of the discussion, in our respectful submission.  It would be quite different from the discussion that took place in this case.

So, for different reasons, your Honour, although, to answer, I hope more clearly, your Honour Justice Hayne, there would be some avenue in those cases for an argument which might attract the immunities principle, it would not be an argument that would be addressed, or necessarily addressed, by the circumstances that were dealt with in this case, which were based on the particular degree of interference resulting from a regime requiring a valid dismissal – valid as discussed by the Federal Court – and confining the power of reinstatement in those circumstances.  It was a very particular discussion that divided Justice Finkelstein from the rest of the court on the last of the issues, but united the rest of the court on the issues that have already been decided by Victoria v the Commonwealth.  In Wards Case, Justice Moore, when this argument was raised, dealt with it on the basis that this argument has been foreclosed by Victoria v the Commonwealth, and his Honour was correct to do so.

So, your Honour, this is a red herring and this is not a case for special leave.  It is a case that deals with a tiny group of people, and bearing in mind that in order to make good a case for reinstatement of a police officer, as Justice Finkelstein recognised, you would need an exceptional case.  A small subgroup of a tiny, closed group – it deals with a point which has been foreclosed by Victoria v the Commonwealth, and it deals with points on which the Federal Court is either unanimous or virtually unanimous.  It is not a case for special leave, in our respectful submission, your Honours.

MR GRAHAM: If the Court pleases, very briefly, the Full Federal Court, of course, did not deal with the 1996 provisions. We needed to take up that issue in this Court, both because of the submissions made by our learned friends in paragraph 1 to 5 of their written submissions, and by the question raised by members of this Court. It is, in our submission, wrong to describe this as a red herring. The truth of the matter is, as we submit, the same matter of constitutional principle can arise in a variety of circumstances and could arise hereafter in the context of ‑ ‑ ‑

McHUGH J:   I appreciate the force of that, but in a different factual context and, as Sir Owen Dixon always emphasised, when you are dealing with constitutional issues, they ought to be in respect of specific factual issues, not in the abstract.  What I fear is that if we granted special leave in this case, we would be dealing with a case limited to a very small group of

police officers which, given the terms of the then legislation, may have no real constitutional significance for the day-to-day running of Victoria’s operations.

MR GRAHAM:   My answer to your Honour is that it is quite true that the Court would be dealing with a small number of people, but the Court would not be dealing with the issue in the abstract.  It would be dealing with it in a ‑ ‑ ‑

McHUGH J:   Well, you would be making a decision as to whether or not the legislation, in its then form, interfered with Victoria’s sovereign rights.  But it is closed, there is a different legislation operating.  Victoria has referred a great deal of its powers in relation to industrial matters to the Federal Parliament.  It seems to me at the moment it is a very narrow issue that we would be dealing with.  I am not sure that it has much practical consequence for the future, except as just another decision on a very difficult subject.

MR GRAHAM:   It is our submission that this debate only arises in the context the Court’s discretion to grant special leave.  We would answer that issue by saying that the case has wider ramifications, even though it has important consequences in context of these four cases.  As for the referral of power by the State of Victoria to the Commonwealth, your Honour, very careful exceptions could be found ‑ ‑ ‑

McHUGH J:   Law enforcement officers are out.

MR GRAHAM:   Yes, they are out of it, unless they come in, as it were, under the umbrella of Part VIA.  If the Court pleases.

McHUGH J:   The question of constitutional validity, which the applicant seeks to agitate in these matters, arises in respect of legislation which has now been repealed.  It is by no means clear that the issues arising in the present case would necessarily arise under the current legislation.  The resolution of the issues in the present case would directly affect only the parties to this litigation.  It may or may not throw light on general constitutional principles. 

In those circumstances, we do not think that this is a case for the grant of special leave to appeal.  Accordingly, the applications are refused.  It must be with costs, Mr Solicitor.

MR KENZIE:   It is caught by section 347, your Honour, I am afraid.

HAYNE J:   There is no application.

McHUGH J:   The applications are dismissed.

AT 10.02 AM THE MATTERS WERE CONCLUDED