The Commissioner of Police v Ferguson
[2019] WASCA 14
•25 JANUARY 2019
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION: THE COMMISSIONER OF POLICE -v- FERGUSON [2019] WASCA 14
CORAM: BUSS J
MURPHY J
LE MIERE J
HEARD: 2 MAY 2018
DELIVERED : 25 JANUARY 2019
FILE NO/S: IAC 3 of 2017
BETWEEN: THE COMMISSIONER OF POLICE
Appellant
AND
SHANE MICHAEL FERGUSON
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram: P E SCOTT CC
T EMMANUEL C
D J MATTHEWS C
Citation: FERGUSON v THE COMMISSIONER OF POLICE
[2017] WAIRC 00832
File Number : APPL 109 OF 2015
Catchwords:
Appeal from the Western Australian Industrial Relations Commission - Removal of police officer - Conduct likely to bring discredit on and unbecoming of a member of the Police Force - Loss of confidence by the Commissioner of Police in the police officer - Removal action process not suspended pending the police officer's criminal trial - Appeal against removal - Whether the appeal to this court is competent - Proper construction of s 33W of the Police Act 1892 (WA) - Whether the Industrial Relations Commission erred in law in their construction of s 33W - Whether considerations of fairness override the operation of s 33W - Whether the Commissioner of Police denied the police officer procedural fairness by not suspending the removal action process pending the police officer's criminal trial
Legislation:
Police Act 1892 (WA), s 5, s 8, s 33L, s 33P, s 33Q, s 33R, s 33T, s 33U, s 33W
Police Force Regulations 1979 (WA), r 6A02, r 6A03
Industrial Relations Act 1979 (WA), s 90
Result:
Appeal allowed
Declarations and orders made by the Industrial Relations Commission set aside
Order substituted that the respondent's appeal to the Industrial Relations Commission be dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Mr G T W Tannin SC & Mr N T L John |
| Respondent | : | Ms M Allars SC |
Solicitors:
| Appellant | : | State Solicitor's Office |
| Respondent | : | Tindall Gask Bentley Lawyers |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Allen v Feather Products Pty Ltd (2008) 72 NSWLR 507
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Critchley v The State of Western Australia [2013] WASCA 28
Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309
Ferguson v Commissioner of Police [2017] WAIRC 00832
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326
Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529
Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Salemi v MacKellar [No 2] [1977] HCA 26; (1977) 137 CLR 396
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Wasfi v Commonwealth of Australia [1998] FCA 639; (1998) 83 FCR 16
TABLE OF CONTENTS
BUSS J
The facts and circumstances culminating in the appeal to this court
The Police Act: the relevant statutory framework
Extrinsic material relating to pt IIB of the Police Act
The appeal to the IRC: Mr Ferguson's grounds of appeal
The appeal to the IRC: the IRC's determination of Mr Ferguson's grounds of appeal
The appeal to this court: s 33S of the Police Act
The appeal to this court: the Commissioner's ground of appeal
The appeal to this court: the Commissioner's submissions
The appeal to this court: Mr Ferguson's submissions
The appeal to this court: the issues for decision
The appeal to this court: is the appeal competent?
The appeal to this court: did the IRC make an error in the construction or interpretation of s 33W of the Police Act?
The appeal to this court: was it open to the IRC to conclude that the Commissioner's decision to take removal action in relation to Mr Ferguson was 'unfair', within the expression 'harsh, oppressive or unfair' in s 33P(1), in that the Commissioner denied Mr Ferguson procedural fairness by refusing to adjourn the removal action process?
The appeal to this court: the outcome of the appeal and the appropriate orders
MURPHY J
LE MIERE J
Summary
The Midland incident
Commissioner decides to remove Ferguson
Ferguson appeals to the Commission
Ferguson acquitted of criminal charges
Commission allows Ferguson appeal
Appeal to this court
The statutory framework
Appellant's case
Respondent's case
Jurisdiction of the court
Appeal is not competent
Commission did not misconstrue section 33W
Commission's decision was open
Conclusion
BUSS J:
The appellant (the Commissioner) has appealed to this court against a decision of the Western Australian Industrial Relations Commission (IRC). My view of the case is different from Le Miere J's view. I would allow the appeal. My reasons are as follows.
The facts and circumstances culminating in the appeal to this court
On 18 July 2014, the respondent (Mr Ferguson), an off-duty police officer, was involved in a violent altercation.
On 21 August 2014, Mr Ferguson was charged with criminal offences arising from the incident, namely unlawfully doing grievous bodily harm to Joshua Prime and unlawfully assaulting Hayley Lloyd‑Riley. Mr Ferguson pleaded not guilty to the charges.
On 27 August 2014, Acting Detective Inspector Jackson produced an interim internal investigation report into the incident. The report was prepared after Acting Detective Inspector Jackson had examined the witness statements and other evidence, including CCTV footage and a video and audio recording of the incident made by one of the witnesses on his mobile telephone.
On 7 November 2014, Inspector Dockery, in his capacity as the review officer appointed under regulation 6A02 of the Police Force Regulations 1979 (WA) (the Police Regulations), issued a Summary of Investigation in relation to the incident. See regulation 6A03. He recommended that the Commissioner consider taking removal action against Mr Ferguson under pt IIB of the Police Act 1892 (WA) (the Police Act) as a result of the incident. Inspector Dockery made the recommendation on the ground that Mr Ferguson had acted in a manner that was likely to bring discredit on the Police Force or in a manner that was unbecoming of a member of the Police Force in that he had used excessive force when arresting Gavin Gero; he had assaulted Ms Lloyd‑Riley; he had caused serious injury to Mr Prime; and he had been disorderly and assaulted Sam Self.
Prior to Mr Ferguson's trial on the charges, the Commissioner decided to take removal action against him under pt IIB of the Police Act.
By notice dated 27 November 2014 (the Commissioner's NOITR), the Commissioner informed Mr Ferguson that, 'in the absence of being persuaded otherwise', he intended to recommend to the Minister for Police that she approve Mr Ferguson's removal from the Police Force because the Commissioner had lost confidence in Mr Ferguson's suitability to continue as a member of the Police Force. The Commissioner said that his loss of confidence was based on the matters set out in the Summary of Investigation prepared by Inspector Dockery and, in particular, the four allegations contained in the Summary of Investigation. The Commissioner invited Mr Ferguson to respond to the Commissioner's loss of confidence by making a written submission within 21 days.
By letter dated 29 December 2014, Mr Ferguson's solicitor requested that the Commissioner suspend the removal action process until the charges against Mr Ferguson had been resolved in the District Court. The solicitor said it would be unfair to require Mr Ferguson to respond to the four allegations contained in Inspector Dockery's Summary of Investigation because it would affect Mr Ferguson's position and defence to the charges. In particular, the solicitor asserted that '[t]he pressure to respond to the allegations as part of [the] s 33L process may intrude upon [Mr Ferguson's] lawful privilege against self‑incrimination'.
On an unknown date in December 2014, the Commissioner responded to the letter from Mr Ferguson's solicitor. The Commissioner stated that the criminal proceedings and the removal action process were separate processes and could be considered and resolved independently. He also stated that a criminal conviction or acquittal is not the sole determining factor in the removal action process and that 'what is more important is a comprehensive and fair managerial examination of all the facts in issue'. The Commissioner therefore refused to suspend the removal action process.
On 6 January 2015, Mr Ferguson responded by letter to the Commissioner's NOITR. However, it is apparent from the letter that Mr Ferguson did not wish to, and did not, respond to the four allegations contained in Inspector Dockery's Summary of Investigation or the witness statements about the incident because he did not wish to 'jeopardise the court process'. Mr Ferguson said that he could not 'properly respond to issues that relate directly to the criminal charges against [him] for the reasons' his solicitor had identified in the solicitor's letter dated 29 December 2014.
On 21 January 2015, Inspector Dockery issued an analysis of Mr Ferguson's response.
By notice dated 10 February 2015, the Commissioner informed Mr Ferguson that he had recommended that the Minister for Police approve Mr Ferguson's removal from office as a member of the Police Force on the basis that the Commissioner had lost confidence in Mr Ferguson's suitability to remain as a member of the Police Force, having regard to Mr Ferguson's integrity, performance and conduct.
In the notice the Commissioner stated:
Your subsequent response to the [Commissioner's NOITR] failed to provide sufficient detailed explanation or mitigation for your actions, (despite my attempt to reassure you that one process does not affect the other), so given your lack of detailed explanation or acknowledgement for your conduct therefore, it offers me no comfort that your actions were appropriate, justified or measured.
Other than your denial of unlawfully assaulting the alleged victims and claiming you acted in self-defence, your lack of detail explaining the significant amount of police and independent evidence against you, leaves me very little scope to even consider that your actions may have been justified.
On balance, the evidence clearly reveals (albeit a perhaps well‑intentioned, yet misguided attempt by you to intervene in a traffic incident), your subsequent over-zealous response significantly escalated the matter and conduct as alleged. Your failure to specifically respond does not attempt to account for your actions, nor have you recognised that your actions were excessive and disproportionate and you have offered no contrition for your actions to address the serious questions that remain over your integrity, conduct and performance.
The Commissioner also stated in the notice dated 10 February 2015 that Mr Ferguson had demonstrated unprofessional conduct during the incident and Mr Ferguson's response to the Commissioner's NOITR did not justify or acknowledge that his actions were inappropriate. Mr Ferguson had failed to accept responsibility, had failed to show contrition for his actions, had exhibited poor judgment and had shown a lack of professionalism.
By letter dated 25 February 2015, the Commissioner informed Mr Ferguson that on 23 February 2015 the Minister for Police had approved Mr Ferguson's removal from the Police Force. The Commissioner removed Mr Ferguson from office with effect from 27 February 2015.
On 27 March 2015, Mr Ferguson appealed to the IRC under div 3 of pt IIB of the Police Act in relation to the Commissioner's decision to remove him. Mr Ferguson alleged that the Commissioner's decision to take removal action was harsh, oppressive or unfair.
When Mr Ferguson instituted his appeal to the IRC, the charges against him had not been determined. The IRC adjourned the appeal proceedings pending the determination of the charges. Mr Ferguson was tried in the District Court before a judge and jury and was acquitted on both charges. The appeal proceedings in the IRC resumed and, after a hearing, the IRC allowed Mr Ferguson's appeal.
The IRC declared that the Commissioner's decision to take removal action relating to Mr Ferguson was unfair. The IRC also declared that 'it is impracticable for it to be taken that Mr Ferguson's removal from office is and has always been of no effect'. The IRC ordered the Commissioner to pay Mr Ferguson the amount of $34,776 as compensation for loss and injury caused by the removal.
At the hearing of the appeal to this court, counsel for the Commissioner said that the Commissioner had not paid any amount to Mr Ferguson pursuant to the IRC's order.
The Police Act: the relevant statutory framework
Section 5 of the Police Act provides, relevantly, that the Commissioner is charged and vested with the general control and management of the Police Force.
Section 8(1) of the Police Act provides, relevantly, that the Commissioner may, from time to time, as he shall think fit, subject to the approval of the Minister, remove any non-commissioned officer or constable. By s 8(2), the powers of removal referred to in s 8(1) can be exercised only if the Commissioner has complied with s 33L and that removal action has not been revoked under s 33N(1).
Part II of the Police Act is headed 'As to the regulations, duties and discipline of the Police Force' and comprises s 9 to s 33. Part II deals generally with the regulations, duties and discipline of the Police Force. Section 9 empowers the Commissioner, with the approval of the Minister, to frame rules, orders and regulations for the general government of the members of the Police Force, including 'the control, management, and discipline' of the Police Force.
Part IIB of the Police Act is headed 'Removal of members' and comprises s 33K to s 33Z.
Section 33L(1) provides that if the Commissioner does not have confidence in 'a member's suitability to continue as a member, having regard to the member's integrity, honesty, competence, performance or conduct', the Commissioner may give the member a written notice setting out the grounds on which the Commissioner does not have confidence in the member's suitability to continue as a member. The term 'member' is defined in s 33K to mean, relevantly, a non‑commissioned officer or a constable.
By s 33L(2), if a notice is given to a member under s 33L(1), the member may, before the expiration of the period of 21 days after the day on which the notice is given or such longer period as is allowed by the Commissioner, make written submissions to the Commissioner in respect of the grounds on which the Commissioner has lost confidence in the member's suitability to continue as a member.
Section 33L(3) provides that after the end of the period referred to in s 33L(2), the Commissioner shall decide whether or not to take 'removal action' (s 33L(3)(a)) and shall give the member written notice of the decision (s 33L(3)(b)). The term 'removal action' is defined in s 33K to mean, relevantly, a recommendation by the Commissioner that the Minister approve the removal of a non-commissioned officer or constable under s 8.
By s 33L(4), the Commissioner shall not decide to take removal action unless the Commissioner:
(a)has taken into account any written submissions received from the member under s 33L(2) during the period referred to in that provision; and
(b)still does not have confidence in the member's suitability to continue as a member, having regard to the member's integrity, honesty, competence, performance or conduct.
Section 33L(5)(a) provides that if the Commissioner decides to take removal action, the notice under s 33L(3)(b) shall advise the member of the reasons for the decision.
If removal action has been taken in accordance with s 33L but removal from office has not resulted from it, s 33N empowers the Commissioner, by notice in writing to the Minister, to revoke the removal action.
Section 33P(1) provides that a member who has been removed from office, by or as a result of removal action taken in accordance with s 33L, may appeal to the IRC on the ground that 'the decision of the Commissioner … to take removal action relating to the member was harsh, oppressive or unfair'. By s 33P(2), the appellant shall institute an appeal by notice to the Commissioner stating 'the reasons for the decision the subject of the appeal being harsh, oppressive or unfair' and the nature of the relief sought.
Section 33Q(1) provides that on the hearing of an appeal instituted under pt IIB, the IRC shall proceed as follows. First, it shall consider the Commissioner's reasons for deciding to take removal action. Secondly, it shall consider the case presented by the appellant as to why that decision was harsh, oppressive or unfair. Thirdly, it shall consider the case presented by the Commissioner in answer to the appellant's case. By s 33Q(2), the appellant has at all times the burden of establishing that the decision to take removal action was harsh, oppressive or unfair.
Section 33R makes provision for new evidence to be tendered to the IRC during the hearing of an appeal instituted under pt IIB, as follows:
(1)New evidence shall not be tendered to [the IRC] during a hearing of an appeal instituted under this Part unless [the IRC] grants leave under subsection (2) or (3).
(2)[The IRC] may grant the Commissioner of Police leave to tender new evidence if -
(a) the appellant consents; or
(b) it is satisfied that it is in the interests of justice to do so.
(3)[The IRC] may grant the appellant leave to tender new evidence if -
(a) the Commissioner of Police consents; or
(b) [the IRC] is satisfied that -
(i)the appellant is likely to be able to show that the Commissioner of Police has acted upon wrong or mistaken information;
(ii)the new evidence might materially have affected the Commissioner of Police's decision to take removal action; or
(iii)it is in the interests of justice to do so.
(4)In the exercise of its discretion under subsection (3) [the IRC] shall have regard to -
(a)whether or not the appellant was aware of the substance of the new evidence; and
(b)whether or not the substance of the new evidence was contained in a document to which the appellant had reasonable access,
before his or her removal from office.
(5)If the Commissioner of Police is given leave to tender new evidence under subsection (2), [the IRC] shall give the appellant a reasonable opportunity to consider the new evidence and the appellant may tender new evidence without the leave of [the IRC] under this section in response to the new evidence tendered by the Commissioner.
(6)If the appellant is given leave to tender new evidence under subsection (3), [the IRC] shall give the Commissioner a reasonable opportunity to consider the new evidence.
(7)If, having considered any new evidence, the Commissioner of Police revokes the removal action under section 33N(2), the Commissioner shall give [the IRC] notice of the revocation and the hearing of the appeal is discontinued when [the IRC] receives the notice.
(8)If the Commissioner of Police does not give notice under subsection (7), the hearing of the appeal shall continue but the Commissioner of Police may -
(a)reformulate his or her reasons for not having confidence in the appellant's suitability to continue as a member, having regard to the appellant's integrity, honesty, competence, performance or conduct; and
(b)tender new evidence without the leave of [the IRC] under this section in response to the new evidence tendered by the appellant.
(9)Reasons reformulated under subsection (8)(a) may differ from, or be additional to, the reasons given to the appellant under section 33L(5)(a).
(10)If the Commissioner of Police reformulates reasons under subsection (8)(a) -
(a)the Commissioner shall give [the IRC] and the appellant notice in writing of the reasons before the resumption of the hearing of the appeal; and
(b)[the IRC] shall consider the reasons as if they had been reasons given to the appellant under section 33L(5)(a).
(11)In this section -
new evidence means evidence other than evidence of -
(a)any document or other material that was examined and taken into account by the Commissioner of Police in making a decision to take removal action;
(b)the notice given under section 33L(1);
(c)a written submission made to the Commissioner of Police by the appellant under section 33L(2);
(d)the notice given under section 33L(3)(b); and
(e)a notification of the removal from office.
Section 33T is concerned with the adjournment of an appeal before the IRC if the appellant has been charged with an offence. It provides:
(1)If an appellant has been –
(a)charged with an offence relating to any matter, act or omission that was taken into account by the Commissioner of Police in deciding that he or she did not have confidence in the appellant's suitability to continue as a member; and
(b)the charge has not been finally determined by a court or otherwise disposed of,
the Commissioner or the appellant may apply to [the IRC] for an adjournment of the hearing of the appeal.
(2)If an application is made by the Commissioner of Police, [the IRC] may adjourn the hearing of the appeal if it considers that it is in the interests of justice to do so.
(3)If an application for an adjournment is made by the appellant, [the IRC] shall adjourn the hearing of the appeal.
(4)An adjournment under subsection (3) shall be for such period not exceeding 12 months as is requested by the appellant.
(5)If the charge is finally determined by a court or otherwise disposed of before the expiration of the period of the adjournment, the Commissioner of Police or the appellant may apply to [the IRC] for the hearing of the appeal to be resumed on a date specified by [the IRC].
(6)Before the expiration of any period of adjournment under this section, the Commissioner of Police or the appellant may apply to [the IRC] for a further adjournment under this section and, if it is in the interests of justice to do so, [the IRC] may grant a further adjournment for a period specified by it.
(7)Subsection (2) and (b) do not affect any other power of [the IRC] to grant an adjournment.
Section 33U applies if the IRC decides on an appeal that the Commissioner's decision to take removal action relating to the appellant was harsh, oppressive or unfair. Section 33U specifies the relief which the IRC may grant to a successful appellant.
Section 33W contains a declaration as follows:
To avoid doubt, it is declared that if a member -
(a)has been charged with committing an offence; or
(b)has been acquitted of an offence,
that charge, the existence of proceedings relating to that charge or the acquittal does not preclude the Commissioner of Police from taking any action under this Part in relation to any matter, act or omission relating to or being an element of the offence.
Extrinsic material relating to pt IIB of the Police Act
Part IIB of the Police Act was inserted by the Police Amendment Act 2003 (WA). The relevant provisions of the amending Act came into operation on 27 August 2003.
The Clause Notes accompanying the Bill which upon enactment became the Police Amendment Act 2003 (WA) said, in the context of the procedure set out in s 33L for the removal of a member, that the criteria in s 33L(1), to which the Commissioner must have regard in determining whether he or she has lost confidence in a member (that is, the member's integrity, honesty, competence, performance or conduct), were 'sufficiently broad to ensure that the Commissioner retain[ed] a wide managerial discretion to cause members to be removed where their suitability is in question'.
The Clause Notes made these comments about s 33L(2):
The member is required to be given a written notice of the grounds of the Commissioner's loss of confidence and at least 21 days to provide a written submission to the Commissioner in relation to the grounds on which the Commissioner has lost confidence. This affords the member procedural fairness by giving the member a reasonable opportunity to respond to the Commissioner's concerns. The time frame also reflects the intention that the process be expeditious due to its managerial nature.
The Clause Notes stated, in relation to a member's right of appeal to the IRC under div 3 of pt IIB, that:
While [the appeal process] has certain similarities to unfair dismissal claims for employees the process has been modified to reflect the special nature and importance of the Commissioner of Police's power of removal and the importance of ensuring that the highest standards and public confidence are maintained in the police force.
The Clause Notes contained the following comments on the declaration in s 33W:
[Section 33W] [c]larifies that the Commissioner is entitled to take action to remove a member irrespective of whether the member has been charged with a related criminal offence or has been acquitted of an offence. This recognises the managerial and summary nature of the Commissioner's decision and [the] importance that he or she be able to act promptly to remove unsuitable officers and not be required to await the outcome of any criminal proceedings.
The Minister for Police and Emergency Services made the following observations, in her second reading speech on the Bill, about the proposed amendments to s 8 and the proposed s 33W[1]:
The Police Amendment Bill has a number of key components. It principally amends section 8 of the Police Act and introduces a new part IIB into the Act. It introduces a requirement that before a police officer can be removed from office under section 8 the commissioner must have lost confidence in the officer's suitability to continue as a police officer, having regard to the officer's integrity, honesty, competence, performance or conduct. These criteria are very broad. They ensure that the commissioner retains a wide managerial right to summarily remove unsuitable officers. This is consistent with the need identified by Justice Wood following the NSW police royal commission. In the absence of such authority, the community would understandably have grave concerns about the risk to the integrity of, and public confidence in, the Police [Force]. It is important that the commissioner not be impeded from efficiently and effectively removing those officers whose integrity, honesty, competence, performance or conduct he considers to be wanting. …
…
Under the changes introduced by the Bill the process leading up to a police officer's removal has been streamlined and an officer will be removed from office before any appeal occurs. …
…
The Bill also clarifies that the Commissioner of Police is entitled to take action to remove a police officer, irrespective of whether the officer has been charged with or acquitted of a criminal offence. This recognises the managerial nature of the commissioner's decision. It also reflects the importance that the commissioner be able to act promptly to remove unsuitable officers. The commissioner should not be required to await the outcome of any pending criminal proceedings.
[1] Western Australia, Parliamentary Debates, Legislative Assembly, 13 November 2002, 3072 - 3073.
The appeal to the IRC: Mr Ferguson's grounds of appeal
Mr Ferguson relied on three grounds of appeal in his appeal to the IRC. The grounds read:
1.The findings that [Mr Ferguson], on 18 July 2014 at Midland, acted in a manner that was likely to bring discredit on the force or in [a] manner that is unbecoming of a member of the force cannot be a basis for the [Commissioner] to have lost confidence in [Mr Ferguson's] suitability to continue as a member of the WA Police [Force] having regard to his honesty, integrity and conduct because:
1.1.the findings were entirely based on findings that [Mr Ferguson's] conduct as alleged constituted criminal offences contrary to the Criminal Code WA;
1.2.as at the date of the Removal, [Mr Ferguson] had been charged with criminal offences arising from the same conduct and findings as alleged by the [Commissioner] (criminal charges);
1.3as at the date of the Removal, the criminal charges had not been dealt with by a court.
2.[Mr Ferguson] was denied a fair go all round because the [Commissioner]:
2.1.unreasonably refused [Mr Ferguson's] request dated 29 December 2014 (via his legal representative) to suspend the loss of confidence process under section 33L of the Police Act 1892 (WA) (Act) until after the determination of the criminal charges;
2.2failed to take into account [Mr Ferguson's] right to claim the privilege against self-incrimination whilst the criminal charges remained undetermined by concluding that [Mr Ferguson's] failure to provide a detailed explanation for, or acknowledgment of, his conduct on 18 July 2014 left the [Commissioner] with very little scope to even consider that [Mr Ferguson's] actions may have been justified;
2.3.denied [Mr Ferguson] the benefit of the privilege against self-incrimination;
2.4in denying [Mr Ferguson] the benefit of the privilege against self-incrimination, thereby;
2.4.1.denied [Mr Ferguson] the right to be heard in response pursuant to section 33L(2) of the Act; and/or
2.4.2.failed to properly consider whether [Mr Ferguson] had committed the conduct as alleged.
3.The [Commissioner] failed to properly take into account the effect of [Mr Ferguson's] written submissions in response to the [Commissioner's] Notice of Intention to Remove and therefore took removal action contrary to section 33L(4) of the Act.
The appeal to the IRC: the IRC's determination of Mr Ferguson's grounds of appeal
The IRC dismissed ground 1 of Mr Ferguson's appeal. Their reasoning was as follows:
(a)The Commissioner is able 'to make findings about conduct, which might also constitute criminal conduct, as a step towards deciding whether to lose confidence in an officer, in the absence of a criminal court deciding the matter' [63].
(b)The Commissioner may decide that 'an officer has conducted himself or herself in a way that might also constitute an offence under the criminal law, but which for the Commissioner's purposes of managing the officer, constitutes conduct that is likely to bring discredit on the Force and is unbecoming' [65].
(c)Although 'the same conduct can constitute misconduct or conduct unbecoming, as well as being criminal conduct … they can be separate matters' [67].
(d)Mr Ferguson was not removed because he had broken the law, but because 'the Commissioner decided that his conduct, found on [a] lesser standard of proof, was likely to bring discredit on the Force or was unbecoming of a member of the Force' [69].
(e)The Commissioner is not obliged 'to await the criminal trial to see if any additional information or evidence is led that might assist him in making his decision' [73]. However, that is 'a matter for the Commissioner in considering whether it is appropriate to proceed or not' [73]. The IRC elaborated:
In this case, the reason why Mr Ferguson wanted a delay was so that he would not compromise his rights at the criminal trial. It is up to the Commissioner whether or not he wished to delay so that he could either take account of the acquittal or conviction, or take account of any additional information or evidence that was led at the trial. In this case, he decided not to. That does not assist the appellant in this particular case.
Merely because the Commissioner decided [in other cases] not to proceed pending the outcome of the trials in those cases does not mean he is obliged to do so in other circumstances. In fact, s 33T of the Police Act envisages that the Commissioner may proceed on the [loss of confidence] process and act in the face of unresolved criminal charges [74] ‑ [75].
The IRC upheld ground 2 of Mr Ferguson's appeal. Their reasoning was as follows:
(a)The Commissioner refused to defer the loss of confidence process, saying that 'the two processes were unrelated' [81]. The Commissioner then made his decision. In his notice of 10 February 2015, the Commissioner told Mr Ferguson that his failure 'to specifically respond does not attempt to account for your actions, nor have you recognised that your actions were excessive and disproportionate and you have offered no contrition for your actions to address the serious questions that remain over your integrity, conduct and performance' [81].
(b)The IRC stated that it was 'this exact opportunity, to respond by giving an account of his actions, either recognising that they were excessive and disproportionate or of justifying and explaining them, or of offering contrition, that Mr Ferguson was denied because he sought to preserve, and not potentially compromise, his rights in the criminal trial' [82]. Mr Ferguson's failure to address those things in his response to the Commissioner was 'understandable and reasonable in the circumstances' [83].
(c)Mr Ferguson gave a very detailed account of the events in question at the managerial interview on 29 July 2014. The duration of the interview was 2 hours 9 minutes and the transcript of the interview occupied more than 36 closely typed pages. The interview occurred before Mr Ferguson was charged with the criminal offences and he was compelled to answer questions in the interview. The IRC was of the view that 'at the end of the process, Mr Ferguson did not have a proper opportunity to respond to all of the evidence and the analysis of it that was finally before the Commissioner' [92]. Those matters were 'ultimately … put to him in [the Commissioner's NOITR]' [92].
(d)The Commissioner's refusal to defer the loss of confidence process until the conclusion of the criminal trial 'cannot now be cured by the hearing' before the IRC [93].
(e)It will never be known what Mr Ferguson would have said to the Commissioner had the loss of confidence process been deferred until the criminal trial had been concluded and the charges dismissed, and it will never be known what attitude the Commissioner would have taken to Mr Ferguson's submissions in those circumstances [98].
(f)Mr Ferguson did not apply to the IRC, pursuant to s 33R of the Police Act (which makes provision for new evidence to be tendered to the IRC during the hearing of an appeal instituted under pt IIB), to tender new evidence. The IRC said that, consequently, they must consider 'the fairness of the Commissioner acting as he did, when he did'. The IRC added that, in their view, s 33R of the Police Act '[did] not cure the denial of procedural fairness in this case' [101].
(g)The IRC recorded the Commissioner's argument that 'any officer, faced with a criminal charge arising from the same conduct as gave rise to the [loss of confidence] process, could rely on the right to silence to avoid responding until criminal charges were dealt with', but 's 33W [of the Police Act] says [the Commissioner] does not have to wait' [102]. The IRC did not accept the Commissioner's argument:
We are not convinced that this will apply in all cases. The circumstances of this case indicate that fairness overrides s 33W [102].
(h)The IRC concluded:
It was unfair of the Commissioner to proceed with the Part IIB process over Mr Ferguson's request that it be stayed and to then rely upon what may very well have been a product of refusing the stay, namely a response that was not detailed and did not admit fault and express contrition.
In coming to this conclusion, we have also taken account of the provisions of s 33T and s 33W of the Police Act. These provisions merely say that the Commissioner is not precluded from proceeding with the [loss of confidence] process. It does not oblige him to proceed. In this particular case, it was unfair that the Commissioner did not grant Mr Ferguson's request for a deferral to ensure that his rights were not negated [103] - [104].
The IRC, in dealing with ground 3 of Mr Ferguson's appeal, stated:
This ground of appeal relates to the Commissioner's final decision which stated that Mr Ferguson's response did not explain or acknowledge his conduct, and gave no real response to the evidence against him. Yet the Commissioner's comments reflect that he did not accept and take account of what Mr Ferguson had said to him. That is, that he could not address those things without compromising his rights in the criminal trial.
We conclude that this ground is merely consequential on the finding that ground 2 is made out [106] - [107].
The IRC said in conclusion:
It is in the public interest that public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force is maintained. However, in the Commissioner deciding to take removal action, he must do so in a way that is fair. The denial of a real opportunity to respond to the detail of the evidence and, if appropriate, to express contrition in a meaningful way about particular matters is a matter of unfairness. It was denied by the insistence on a response which might have compromised Mr Ferguson's rights.
We would uphold the appeal and find that, in the circumstances, the decision to take removal action was unfair [109] - [110].
The appeal to this court: s 33S of the Police Act
The effect of s 33S of the Police Act is that s 90(1) of the Industrial Relations Act 1979 (WA) applies to a decision of the IRC, on an appeal under pt IIB of the Police Act, as if s 90(1) read:
Subject to this section, an appeal lies to the Court in the manner prescribed from a decision of [the IRC] under section 33U of the Police Act 1892 –
(a)on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter; or
(b)on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c)on the ground that the appellant has been denied the right to be heard,
but upon no other ground.
The appeal to this court: the Commissioner's ground of appeal
The sole ground of appeal relied on by the Commissioner in his appeal to this court alleges that the IRC erred in law in their construction of s 33W of the Police Act in finding that 'considerations of fairness overrode the operation of section 33W' and consequently upholding ground 2 and ground 3 of Mr Ferguson's appeal.
The appeal to this court: the Commissioner's submissions
Counsel for the Commissioner submitted that the Commissioner is entitled under s 33W to take action under pt IIB of the Police Act to remove a police officer, notwithstanding that:
(a)the officer has been charged with committing an offence or has been acquitted of an offence; and
(b)the ground on which the Commissioner proposes to take action under pt IIB concerns a matter, act or omission relating to or being an element of the offence of which the officer has been charged (and the criminal proceedings in respect of the charge have not been completed and the outcome of the charge has not yet been determined) or has been acquitted.
It was submitted that it cannot be 'unfair', for the purposes of pt IIB, for the Commissioner to take removal action in respect of the police officer because s 33W declares that the Commissioner is not precluded from taking removal action in those circumstances.
Counsel noted that the Commissioner had never submitted to the IRC that he was obliged to take removal action against Mr Ferguson. The Commissioner's argument was that he was not precluded from proceeding with removal action.
Counsel accepted that a police officer charged with a criminal offence may be reticent to respond to a notice of intention to remove (NOITR) which alleges matters related to the offence with which he or she is charged. However, counsel contended that s 33R confers on the officer 'an avenue to revisit [the opportunity of responding to a NOITR] via "new evidence" once the [charge had been] determined'.
Counsel clarified in his oral submissions that the Commissioner's contention in the appeal was, in essence, that:
(a)the IRC had misconstrued s 33W by finding that considerations of fairness overrode the operation of s 33W; and
(b)the IRC had misconstrued s 33W 'by introducing into [s 33W] an overriding notion of fairness' that is not expressly or impliedly embodied in the text of s 33W or pt IIB as a whole (appeal ts 3).
Counsel argued that, by virtue of s 33W, properly construed, the Commissioner may take removal action against a member summarily in the circumstances mentioned in s 33W. If a member is removed from office by or as a result of removal action, the member may challenge the removal action before the IRC on the basis that the removal action was harsh, oppressive or unfair, but not because the Commissioner proceeded in accordance with the declaration in s 33W.
The appeal to this court: Mr Ferguson's submissions
Counsel for Mr Ferguson submitted that this court's jurisdiction under s 90(1)(b) of the Industrial Relations Act, as applied and modified by s 33S of the Police Act, was not enlivened in the present case because the Commissioner's sole ground of appeal and the submissions made in support of the ground did not identify, relevantly, an error by the IRC in their construction of s 33W of the Police Act.
It was submitted that the IRC referred to s 33T and s 33W of the Police Act and to common law principles. After a detailed consideration of the common law principles relating to procedural fairness, the IRC referred to s 33W for the purpose of addressing the Commissioner's submission that 's 33W says he does not have to wait'. The IRC concluded that in the present case the Commissioner's refusal of a suspension or an adjournment involved a denial of procedural fairness. However, in its reasons, the IRC did not construe s 33W in order to determine whether the observance of the principles of procedural fairness was an implied requirement in the removal action process. There was no occasion for the IRC to examine s 33W to determine whether that provision expressly and unambiguously excluded procedural fairness. The Commissioner did not raise that issue. In any event, the language of s 33W contains no suggestion of such a legislative intention. Counsel contended that the implication of procedural fairness in the removal action process was 'a matter of common law principle'.
Counsel argued that the IRC had accepted that s 33W empowers the Commissioner to take removal action even where criminal proceedings are pending and does not impose upon the Commissioner a duty to await the outcome of those criminal proceedings. According to counsel, the Commissioner's real complaint in the present case is not about the IRC's construction of s 33W, but rather about the IRC's conclusion as to what procedural fairness required in the circumstances of the present case. Counsel argued that the IRC stated that it was 'the circumstances of the case' which indicated that Mr Ferguson's application for a suspension or an adjournment should have been granted. The IRC did not state a rule for all cases. The IRC's conclusion as to the content of procedural fairness in Mr Ferguson's case did not involve a question as to the proper construction of s 33W.
Counsel then made submissions on the premise that, contrary to her contention, the appeal to this court is competent and the IRC's conclusion as to the content of procedural fairness in Mr Ferguson's case did involve the proper construction of s 33W.
It was submitted that it was open to the IRC to conclude that the Commissioner's decision to take removal action in relation to Mr Ferguson was 'unfair', within the expression 'harsh, oppressive or unfair' in s 33P(1). Counsel contended that the word 'unfair' has 'a broader compass than a denial of procedural fairness at common law, but includes a denial of procedural fairness'. The IRC was correct to conclude that the Commissioner had denied Mr Ferguson procedural fairness. No provision of the Police Act or the Police Regulations excludes procedural fairness in the removal action process. Also, the common law privilege against self‑incrimination is not abrogated by the Police Act or the Police Regulations.
Counsel argued that the Commissioner has an implied discretionary power to suspend or adjourn the removal action process. Although, in the present case, the Commissioner invited Mr Ferguson to make a submission under s 33L(2), the Commissioner failed to afford him the required content of procedural fairness. Mr Ferguson was not afforded a real or meaningful opportunity to make written submissions. The pending criminal proceedings concerned the same conduct and incident that was the subject of the removal action process. Mr Ferguson had no real chance to present his case on a range of matters, without waiving his right to silence in the criminal proceedings. By refusing Mr Ferguson a suspension or an adjournment until he could make written submissions unimpeded by the pending criminal trial, the Commissioner denied Mr Ferguson procedural fairness. The IRC's statement in its reasons that 'the circumstances of this case indicate that fairness overrides s 33W' was merely a shorthand way of expressing the proposition that s 33W does not exclude procedural fairness, which is implied in the removal action process. Procedural fairness supplements the procedure in the Police Act and the Police Regulations in relation to the removal action process and that supplementation is done without departure from the requirements of s 33W.
The appeal to this court: the issues for decision
The issues for decision raised by the ground of appeal and the submissions of the parties are these. First, is the appeal to this court competent? Secondly, if the appeal is competent, did the IRC make an error in the construction or interpretation of s 33W of the Police Act? Thirdly, if the appeal is competent, was it open to the IRC to conclude that the Commissioner's decision to take removal action in relation to Mr Ferguson was 'unfair', within the expression 'harsh, oppressive or unfair' in s 33P(1), in that the Commissioner denied Mr Ferguson procedural fairness by refusing to adjourn the removal action process? I will address each of those issues in turn.
The appeal to this court: is the appeal competent?
Section 90(1)(b) of the Industrial Relations Act, as applied and modified by s 33S of the Police Act, provides, relevantly, that subject to s 90, an appeal lies to this court from a decision of the IRC under s 33U of the Police Act on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act in the course of making the decision appealed against.
In the present case, the decision appealed against is the IRC's decision under s 33U of the Police Act that the Commissioner's decision to take removal action in relation to Mr Ferguson was 'unfair', within the expression 'harsh, oppressive or unfair' in s 33P(1).
Section 33W of the Police Act declares, to avoid doubt, relevantly, that if a member has been charged with committing an offence, that charge or the existence of proceedings relating to that charge does not preclude the Commissioner from taking any action under pt IIB in relation to any matter, act or omission relating to or being an element of the offence.
The critical passages in the IRC's reasons, for present purposes, read:
The Commissioner argues that any officer, faced with a criminal charge arising from the same conduct as gave rise to the [removal action] process, could rely on the right to silence to avoid responding until criminal charges were dealt with, and that s 33W says he does not have to wait. We are not convinced that this will apply in all cases. The circumstances of this case indicate that fairness overrides s 33W.
It was unfair of the Commissioner to proceed with the Part IIB process over Mr Ferguson's request that it be stayed and to then rely upon what may very well have been a product of refusing the stay, namely a response that was not detailed and did not admit fault and express contrition.
In coming to this conclusion, we have also taken account of the provisions of s 33T and s 33W of the Police Act. These provisions merely say that the Commissioner is not precluded from proceeding with the [removal action] process. It does not oblige him to proceed. In this particular case, it was unfair that the Commissioner did not grant Mr Ferguson's request for a deferral to ensure that his rights were not negated [102] - [104]. (emphasis omitted)
I am satisfied that, on a fair reading of those critical passages as a whole, the IRC construed s 33W in the course of making their decision that the Commissioner's decision to take removal action in relation to Mr Ferguson was 'unfair'.
The IRC held, in effect, that the declaration in s 33W (namely, that if a member has been charged with committing an offence, that charge or the existence of proceedings relating to that charge does not preclude the Commissioner from taking removal action under pt IIB in relation to any matter, act or omission relating to or being an element of the offence) is subject to an implied limitation; in particular, that the Commissioner will be precluded from commencing or continuing with removal action under pt IIB if the commencement or continuation of that action is, in all of the circumstances of the case, 'unfair' to the member.
In my opinion, the ground of appeal, as developed by counsel for the Commissioner in his submissions at the hearing of the appeal, asserts, in effect, that the IRC's decision under s 33U is erroneous in law in that the IRC made an error in the construction of s 33W in the course of making that decision; in particular, the IRC impermissibly read into s 33W an unexpressed condition, based on fairness, in relation to the operation of the declaration. The ground of appeal, as developed, is therefore within s 90(1) of the Industrial Relations Act as applied and modified by s 33S of the Police Act. The appeal to this court is competent.
The appeal to this court: did the IRC make an error in the construction or interpretation of s 33W of the Police Act?
I will begin my consideration of whether the IRC made an error in the construction or interpretation of s 33W of the Police Act by summarising the relevant principles of statutory construction.
In Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd,[2] French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]; [2009] HCA 41). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
See also Saeed v Minister for Immigration and Citizenship;[3] Thiess v Collector of Customs.[4]
[2] Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503.
[3] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).
[4] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the existing state of the law, the history of the legislative scheme and the general purpose and policy of the provision (in particular, the mischief it is seeking to remedy). See CIC Insurance Ltd v Bankstown Football Club Ltd;[5] Project Blue Sky Inc v Australian Broadcasting Authority;[6] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[7]
[5] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
[6] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ).
[7] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross.[8] The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd.[9]
[8] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J).
[9] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
As Crennan J noted in Northern Territory v Collins,[10] '[s]econdary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision (Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ; [2006] HCA 11), not least because such material may confuse what was "intended … with the effect of the language which in fact has been employed" (Hilder v Dexter [1902] AC 474 at 477 per Earl of Halsbury LC)' [99]. That statement of principle applies to extrinsic evidence admissible at common law and also to extrinsic evidence admissible under s 19 of the Interpretation Act 1984 (WA). In other words, the statutory text, and not non‑statutory language seeking to explain the statutory text, is paramount. See Nominal Defendant v GLG Australia Pty Ltd.[11]
[10] Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619.
[11] Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22] (Gleeson CJ, Gummow, Hayne & Heydon JJ).
I will now summarise the relevant law concerning the rules of procedural fairness.
The implication of the rules of procedural fairness in a statute is arrived at by a process of construction. In Saeed, French CJ, Gummow, Hayne, Crennan and Kiefel JJ said the implication proceeded upon 'the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann (Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 401 per Barwick CJ, at 451 per Jacobs J; [1977] HCA 26)' [12]. This assumption is derived from the principle of legality referred to by Gleeson CJ in Electrolux Home Products Pty Ltd v The Australian Workers' Union.[12] See also Momcilovic v The Queen.[13]
[12] Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 [21].
[13] Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [43] (French CJ).
The principles and presumptions of statutory construction, to the extent they are not qualified or displaced by an applicable interpretation statute, are part of the common law of Australia. In Plaintiff S10/2011 v Minister for Immigration and Citizenship,[14] Gummow, Hayne, Crennan and Bell JJ explained:
It is in this sense that one may state that 'the common law' usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 100 - 101 [39] - [41]). If the matter be understood in that way, a debate whether procedural fairness is to be identified as a common law duty or as an implication from statute proceeds upon a false dichotomy and is unproductive [97].
[14] Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636.
When deciding whether the exercise of a statutory power is conditioned by the rules of procedural fairness, it is necessary to take into account the practical context in which the decision-maker must consider whether to exercise the power. See Re Minister for Immigration and Multicultural Affairs; Ex parte Miah.[15]
[15] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 [31] (Gleeson CJ & Hayne J).
Procedural fairness is concerned with procedures rather than with outcomes. See Minister for Immigration and Border Protection v WZARH.[16]
[16] Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 [55]Brennan J emphasised in Kioa v West[17] that the presumption that the rules of procedural fairness condition the exercise of a statutory power applies to 'any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public' (619). However, his Honour then qualified that statement as follows:
Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised. Thus in Pearlberg v Varty ([1972] 1 WLR 534; [1972] 2 All ER 6), when a commissioner gave leave ex parte to raise an assessment to tax, the taxpayer challenged the decision although his legal rights were unaffected by it. The decision was held to be valid. The text of the statute, the kind of limited interest that was affected and the statutory provision allowing the taxpayer a full opportunity to challenge his liability to tax at a later stage displaced the presumption (619 ‑ 620). (emphasis added)
[17] Kioa v West [1985] HCA 81; (1985) 159 CLR 550.
When it is asserted that the rules of procedural fairness do not condition the exercise of a statutory power, the question is whether the legislation, on its proper construction, displays a legislative intention to exclude the rules. See Re Refugee Review Tribunal; Ex parte Aala;[18] Ex parte Miah [53], [90], [126] - [127].
[18] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [41] (Gaudron & Gummow JJ).
As Merkel J noted in Wasfi v Commonwealthof Australia,[19] a legislative intention to exclude the rules of procedural fairness may arise where compliance with the rules in respect of the exercise of a statutory power will 'necessarily frustrate or be inconsistent with the exercise of the power' (28).
[19] Wasfi v Commonwealthof Australia [1998] FCA 639; (1998) 83 FCR 16.
Plaintiff S10/2011 was concerned with the proper construction of cognate provisions of the Migration Act 1958 (Cth) which conferred upon the Minister powers (but not duties) that were exercisable by the Minister personally and, if exercised, those powers dispensed with requirements of the Act. The plaintiffs argued that in deciding whether to consider the exercise of the relevant powers and, also, in deciding whether to exercise those powers, the Minister was bound to observe the rules of procedural fairness to any moving party. The High Court held that the dispensing provisions of the Act were not conditioned on observance of the rules of procedural fairness.
Gummow, Hayne, Crennan and Bell JJ said in Plaintiff S10/2011 that the question for decision was 'whether or not, upon their proper construction, the dispensing provisions with which these cases are concerned are conditioned upon observance of the requirements of natural justice in favour of persons in the position of the plaintiffs' [98]. After examining the dispensing provisions in the context of the Act as a whole, their Honours reasoned:
Upon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness. In particular, there was no requirement to provide to the plaintiffs the opportunities to be heard which they assert in their submissions. The use in the provisions of the Act in question here of language emphatic both of the distinctive nature of the powers conferred upon the Minister (as personal, non‑compellable, 'public interest' powers), and of the availability of access to the exercise of those powers only to persons who have sought or could have sought, but have not established their right to, a visa is of determinative significance. It reveals the 'necessary intendment' referred to in the Offshore Processing Case ((2010) 243 CLR 319 at 352 [74]) that the provisions are not attended by a requirement for the observance of procedural fairness [100].
If observance of the rules of procedural fairness is a condition of the grant of a statutory power, and governs the exercise of the power, a failure to comply with the rules will render any decision made, in purported exercise of the power, invalid. See Salemi v MacKellar [No 2];[20] Saeed [13].
[20] Salemi v MacKellar [No 2] [1977] HCA 26; (1977) 137 CLR 396, 401 (Barwick CJ).
The law of procedural fairness is, of course, concerned not only with whether a decision-maker is obliged to accord procedural fairness, but also with what is necessary, in the circumstances of the particular case, for compliance with an obligation to accord procedural fairness and with whether, in the circumstances of the particular case, any such obligation has been met.
In Minister for Immigration and Border Protection v SZSSJ,[21] French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ made these comments as to what is generally required by procedural fairness in the context of the exercise of a statutory power to conduct an inquiry:
[C]ompliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a 'practical injustice' (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam(2003) 214 CLR 1 at 14 [37]; [2003] HCA 6 as explained in Minister for Immigration and Border Protection v WZARH (2015) 90 ALJR 25 at 33 [36], 36 [57]; 326 ALR 1 at 9, 12-13; [2015] HCA 40).
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 [32] quoting Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 95-96 [14]-[17]; [2005] HCA 72 explaining Kioa v West (1985) 159 CLR 550 at 629; [1985] HCA 81). Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry [82] - [83].
[21] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180.
The content of a decision-maker's obligation to accord procedural fairness will be informed by the statutory context; in particular, the terms of the statute which creates the decision-maker's function, the nature of the function and the administrative framework in which the statute requires the function to be performed. See National Companies and Securities Commission v News Corporation Ltd.[22] The statute, on its proper construction, may confine or limit the content of the rules of procedural fairness.
[22] National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 326 (Brennan J).
I turn now to the proper construction of s 33W of the Police Act and whether the IRC made an error in the construction or interpretation of s 33W.
As I have mentioned, s 33W declares, to avoid doubt, that if a member of the Police Force has been charged with committing an offence, that charge or the existence of proceedings relating to that charge does not preclude the Commissioner from taking any action under pt IIB in relation to any matter, act or omission relating to or being an element of the offence.
The apparent doubt, to which the declaration in s 33W is directed, is whether, relevantly, the Commissioner may commence or continue with removal action under pt IIB in relation to a member of the Police Force in the circumstances specified in s 33W.
The word 'preclude', within the expression 'does not preclude' in s 33W, connotes 'prevent'. The words 'taking any action' in s 33W include action which continues removal action. The effect of the phrase 'does not preclude the Commissioner of Police from taking any action' in s 33W, in the context of pt IIB as a whole, is that the Commissioner is not prevented from commencing or continuing with removal action under pt IIB in relation to a member of the Police Force in the circumstances specified in s 33W.
In the present case, the declaration in s 33W was relevant because Mr Ferguson had been charged with committing offences and the grounds on which the Commissioner had lost confidence in his suitability to continue as a member of the Police Force, within s 33L(1), included matters, acts or omissions relating to or being elements of the alleged offences.
A corollary of the declaration in s 33W, properly construed, and its relevance in the present case, is that the Commissioner was entitled to commence and continue with removal action under pt IIB in relation to Mr Ferguson, notwithstanding that Mr Ferguson had been charged with committing offences and notwithstanding that the grounds on which the Commissioner had lost confidence in his suitability to continue as a member of the Police Force, within s 33L(1), included matters, acts or omissions relating to or being elements of the alleged offences.
The Commissioner has an express power under s 33L(2) to grant a member of the Police Force a longer period than 21 days after the date on which the NOITR is given to make written submissions to the Commissioner in respect of the grounds on which the Commissioner has lost confidence in the member's suitability to continue as a member. The effect of granting an extension of time under s 33L(2) is to suspend the removal action process for the duration of the extension.
I accept that the procedure for the removal action process as stipulated in pt IIB is, in general, supplemented by the rules of procedural fairness.
However, I am of the opinion, for the following reasons, that:
(a)the Commissioner was not obliged, upon receipt of the request from Mr Ferguson's solicitor for a suspension of the removal action process, to grant an extension of time, pursuant to s 33L(2), to enable Mr Ferguson to respond to the Commissioner's NOITR after the charges had been resolved in the District Court;
(b)the content of the rules of procedural fairness did not oblige the Commissioner to grant Mr Ferguson a suspension or an adjournment of the removal action process until after the charges had been resolved; and
(c)the Commissioner did not act unfairly in connection with the removal action process merely by refusing to extend time pursuant to s 33L(2) or merely by refusing to suspend or adjourn the process because Mr Ferguson did not wish to respond in full to the Commissioner's NOITR until after the charges had been resolved.
First, the purpose or object of the removal action process, as revealed by the statutory text, is to enable the Commissioner, with the Minister's approval, promptly to remove a member from the Police Force (in particular, a non-commissioned officer or constable) if the Commissioner has lost confidence in the member's suitability to continue as a member, having regard to the member's integrity, honesty, competence, performance or conduct. Parliament has conferred on the Commissioner a broad power, of a managerial nature, summarily to remove members in whose suitability the Commissioner has lost confidence.
Secondly, s 33L of the Police Act does not expressly state the matters which the Commissioner is entitled or obliged to take into account in deciding whether to grant an extension of time under s 33L(2) and, if so, the length of the extension. The factors which the Commissioner is entitled or obliged to take into account are to be ascertained by implication from the subject matter, scope and purpose of the provisions of pt IIB in the context of the Police Act as a whole. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[23] I am satisfied that the Commissioner, in deciding whether to grant an extension of time and, if so, the length of the extension, is entitled to take into account the strong public interest in the Commissioner maintaining the faith of the community in the integrity of the Police Force by removing promptly a member in whom he or she has lost confidence and the declaration in s 33W. The Commissioner is not confined or limited in deciding whether to grant an extension of time and, if so, the length of the extension, to a consideration of any prejudice to the member if the extension or the length of the extension sought by the member were to be refused. The Commissioner is not bound to grant the member an extension of time until after the determination of any pending criminal proceedings against the member if the grounds on which the Commissioner has lost confidence in the member include matters, acts or omissions relating to or being elements of the alleged offences.
[23] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 (Mason J).
Thirdly, s 33T of the Police Act contains extensive provisions with respect to the adjournment of an appeal before the IRC if the appellant has been charged with an offence relating to any matter, act or omission that was taken into account by the Commissioner in deciding that he or she did not have confidence in the appellant's suitability to continue as a member of the Police Force and the charge has not been finally determined by a court or otherwise disposed of. In those circumstances, an application for an adjournment may be made to the IRC by the Commissioner or the appellant. If the application for an adjournment is made by the appellant, the IRC must adjourn the hearing of the appeal for such period, not exceeding 12 months, as is requested by the appellant. Before the expiration of any such period of adjournment, the appellant may apply to the IRC for a further adjournment under s 33T and, if it is in the interests of justice to do so, the IRC may grant a further adjournment for a period specified by it. By contrast, consistently with the summary and managerial character of the Commissioner's broad power to remove members in whose suitability the Commissioner has lost confidence, pt IIB contains no provisions with respect to an adjournment of a removal action process before the Commissioner (apart from the express power under s 33L(2) to grant an extension of time to make written submissions).
Fourthly, as I have mentioned, s 33W of the Police Act, properly construed, entitles the Commissioner to commence and continue with removal action under pt IIB in relation to a member, notwithstanding that the member has been charged with committing an offence and notwithstanding that the grounds on which the Commissioner has lost confidence in the member's suitability to continue as a member of the Police Force, within s 33L(1), include matters, acts or omissions relating to or being elements of the alleged offence. Section 33W recognises, in effect, the summary and managerial character of the Commissioner's decision, in the context of the removal action process, and the importance of the Commissioner being able to act promptly to remove a member in whom the Commissioner has lost confidence without awaiting the outcome of any pending criminal proceedings.
Fifthly, s 33W does not contain, by implication, an unexpressed condition, based on fairness, in relation to the operation of the declaration. I accept that the Commissioner is entitled, but not bound, to commence and continue with removal action under pt IIB in relation to a member, notwithstanding the existence of pending criminal proceedings against the member. However, the Commissioner's entitlement to commence and continue with removal action in those circumstances is not confined or limited by a requirement that the Commissioner must suspend or adjourn the process at the request of the member because the member asserts that he or she does not wish to respond to the NOITR from the Commissioner, either fully or at all, until after the determination of the pending criminal proceedings (including because the member asserts that he or she does not want to make any admissions against interest which may be used against him or her in the pending criminal proceedings or otherwise prejudice his or her defence of the charge).
Sixthly, any admissions against interest made by a member in the context of responding to a NOITR issued by the Commissioner would not be admissible in evidence against the member in the pending criminal proceedings. The trial judge would be bound to exclude the admissions against interest in accordance with the definite rule that a confessional statement cannot be voluntary if it is induced by a fear of prejudice or a hope of advantage exercised or held out by a person in authority. See Critchley v The State of Western Australia.[24]
[24] Critchley v The State of Western Australia [2013] WASCA 28 [48] - [55] (Buss JA; Martin CJ and Mazza JA agreeing).
Seventhly, if the Commissioner were to be impliedly obliged by the rules of procedural fairness to grant a member a suspension or an adjournment of the removal action process until after the completion of the member's pending criminal trial, where the member has been charged with an offence relating to any matter, act or omission that was taken into account by the Commissioner in deciding that he or she did not have confidence in the member's suitability to continue as a member of the Police Force, that obligation would be inconsistent with and undermine the express scheme of pt IIB, as revealed by the statutory text. In particular, the implication of the obligation would be inconsistent with and undermine the summary and managerial character of the Commissioner's decision-making, in the context of the removal action process, and the importance of the Commissioner being able to act promptly to remove a member in whom he or she has lost confidence. As I have mentioned, the removal of a member in whom the Commissioner has lost confidence involves a managerial decision. It does not involve a finding that the member is guilty of an offence. The express scheme of pt IIB, as revealed by the statutory text, reflects the strong public interest in the Commissioner maintaining the faith of the community in the integrity of the Police Force by removing promptly a member in whom he or she has lost confidence.
Eighthly, the Police Act, on its proper construction, evinces a legislative intention that the Commissioner is not obliged, by the content of the rules of procedural fairness in the context of the procedure for the removal action process as stipulated in pt IIB, to suspend or adjourn the process, at the request of the member, because the member asserts that he or she does not wish to respond to the NOITR from the Commissioner, either fully or at all, until after the determination of the pending criminal proceedings (including because the member asserts that he or she does not want to make any admissions against interest which may be used against him or her in the pending criminal proceedings or otherwise prejudice his or her defence of the charge).
Ninthly, the extrinsic material to which I have referred (namely, the Clause Notes accompanying the Bill which upon enactment became the Police Amendment Act 2003 and the Minister's second reading speech on the Bill) are capable of assisting in ascertaining the meaning of s 33W and confirm that the meaning of s 33W is the ordinary meaning conveyed by the text of the provision, as I have construed it, taking into account its context in the Police Act and the purpose or object underlying pt IIB.
Tenthly, if (as in my opinion was the case) the Commissioner was not obliged to grant an extension of time, pursuant to s 33L(2), to enable Mr Ferguson to respond to the Commissioner's NOITR after the charges had been resolved in the District Court and if (as in my opinion was the case) the content of the rules of procedural fairness did not oblige the Commissioner to grant Mr Ferguson the suspension or adjournment he sought, the Commissioner did not act unfairly in connection with the removal action process solely by reason of his refusal to grant an extension of time or to grant the suspension or adjournment.
Eleventhly, the express scheme of pt IIB, as revealed by the statutory text, is that the rights and interests of a member, who alleges that the Commissioner's removal action relating to the member was harsh, oppressive or unfair, are protected by the appeal process under s 33P. The substantive and procedural character of the appeal process before the IRC is fundamentally different from the substantive and procedural character of the removal action process before the Commissioner.
As I have mentioned, it is apparent from [101] - [104] of the IRC's reasons that the IRC held, in effect, that the declaration in s 33W is subject to an implied limitation; in particular, that the Commissioner will be precluded from commencing or continuing with removal action under pt IIB if the commencement or continuation of that action is, in all the circumstances of the case, 'unfair' to the member.
I am satisfied, for the reasons I have given at [97] - [107] above, that the reasoning and conclusion of the IRC on this issue was erroneous. The IRC's reasoning and conclusion reveal that it misconstrued s 33W by impermissibly reading into s 33W an unexpressed condition, based on fairness, in relation to the operation of the declaration.
The appeal to this court: was it open to the IRC to conclude that the Commissioner's decision to take removal action in relation to Mr Ferguson was 'unfair', within the expression 'harsh, oppressive or unfair' in s 33P(1), in that the Commissioner denied Mr Ferguson procedural fairness by refusing to adjourn the removal action process?
I am of the opinion, for the reasons I have given at [97] - [107] above, that it was not open to the IRC to conclude that the Commissioner's decision to take removal action in relation to Mr Ferguson was 'unfair', within the expression 'harsh, oppressive or unfair' in s 33P(1), in that the Commissioner denied Mr Ferguson procedural fairness by refusing to adjourn the removal action process. In particular, the Commissioner did not act unfairly in connection with the removal action process solely by reason of his refusal to grant an extension of time or to grant an adjournment.
I am satisfied that, in the context of the statutory framework governing the removal action process, the Commissioner afforded Mr Ferguson a reasonable opportunity to be heard in relation to the Commissioner's loss of confidence in Mr Ferguson's suitability to continue as a member of the Police Force and the proposed removal action process. Mr Ferguson chose not to address in his response to the Commissioner's NOITR the four allegations contained in the Summary of Investigation which formed the foundation of the Commissioner's loss of confidence. Mr Ferguson was not entitled to a suspension or an adjournment of the removal action process until the criminal charges against him had been finally determined in the District Court or otherwise disposed of. Mr Ferguson did not rely on any other facts or circumstances in support of his request that the Commissioner suspend the removal action process. The Commissioner's decision to continue with the removal action process in relation to Mr Ferguson was not in the circumstances unfair.
The Midland incident
On 18 July 2014 Mr Ferguson attended a bar in Midland to meet up with friends who had attended a Western Australian Police Social Club function at the bar. When Mr Ferguson walked outside he noticed a vehicle rev its engine and do a 'burnout'. Mr Ferguson attempted to arrest the driver, Gavin Gero. An incident then occurred which involved Mr Ferguson, Mr Gero and Hayley Lloyd‑Riley, Sam Self and Joshua Prime, who were associates of Mr Gero. Mr Ferguson was subsequently charged with unlawfully causing grievous bodily harm to Mr Prime and assaulting Ms Lloyd‑Riley
Commissioner decides to remove Ferguson
The Commissioner may, subject to the approval of the Minister, remove any constable if the Commissioner has complied with s 33L in pt IIB of the Police Act. Section 33L sets out the procedure to be followed to remove a member where the Commissioner does not have confidence in the member's suitability to continue as a member having regard to the member's integrity, honesty, competence, performance or conduct.
After an interim internal investigation the Commissioner instituted the procedure relating to the removal of a member under pt IIB of the Police Act which is provided for in pt VIA of the Police Force Regulations 1979 (WA). The Commissioner appointed a review officer in relation to Mr Ferguson's integrity, honesty, competence, performance or conduct. On 7 November 2014 the review officer provided the Commissioner with his Summary of Investigation. The review officer recommended that the Commissioner consider issuing Mr Ferguson with a notice of intention to remove (NOITR) having regard to Mr Ferguson's integrity, professionalism and conduct on the grounds that he acted in a manner that was likely to bring discredit on the force or in a manner that is unbecoming of a member of the force by using excessive force when arresting Mr Gero, assaulting Ms Lloyd‑Riley, causing serious injury to Mr Prime and being disorderly and assaulting Mr Self.
On 27 November 2014 the Commissioner issued a notice to Mr Ferguson in which he said that he intends, in the absence of being persuaded otherwise, to recommend to the Minister for Police that she approve Mr Ferguson's removal from the Police Force. The notice set out the grounds on which the Commissioner did not have confidence in Mr Ferguson's suitability to continue as a member. In accordance with s 33L(2) of the Police Act the Commissioner invited Mr Ferguson to respond to the notice by making a written submission within 21 days.
By letter of 29 December 2014 Mr Ferguson's solicitor requested the Commissioner suspend the s 33L process until the criminal charges were resolved. The solicitor said it would be unfair to require Mr Ferguson to respond because a response to the issues in the NOITR will necessarily mean that Mr Ferguson is required to outline his position on, and defence to, the criminal charges. The solicitor said that the pressure to respond to the allegations as part of the s 33L process may intrude upon Mr Ferguson's lawful privilege against self‑incrimination and referred to the decisions in Critchley v The State of Western Australia and Lee v The Queen.[45] The solicitor said that the result of the trial of the criminal charges will have a strong bearing on the Commissioner's position on the allegations as part of the loss of confidence process. The Commissioner responded saying that criminal and loss of confidence proceedings were separate processes that had to be independently considered and resolved. The Commissioner denied the request to suspend the loss of confidence process.
[45] Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455.
By a letter dated 1 December 2014 but delivered on 6 January 2015 Mr Ferguson responded to the Commissioner's notice. Mr Ferguson's response included the following. He asked that any information contained in his response be confined to the loss of confidence proceedings and not used in any criminal matters. He intends to plead not guilty to the alleged offences of grievous bodily harm and common assault. He cannot properly respond to issues that relate directly to the criminal charges against him for the reasons his solicitor had identified in his letter of 29 December 2014. He addressed matters relating to his level of intoxication at the time of the incident, addressed his personal background, set out circumstances leading up to the incident and set out his injuries and hospital treatment following the incident. He denied unlawfully assaulting Ms Lloyd‑Riley, Mr Gero or Mr Self and in relation to the assault of Mr Prime he said he acted to protect himself in response to being attacked. Mr Ferguson attached a number of reports from police colleagues and supervisors in support of his submission to remain a member of the force.
On 10 February 2015 the Commissioner informed Mr Ferguson that he had decided to remove Mr Ferguson as a member of the Western Australia Police on the basis that he had lost confidence in Mr Ferguson's suitability to remain a member of the WA Police having regard to Mr Ferguson's integrity, performance and conduct. The Commissioner's letter included the following. Criminal and loss of confidence proceedings are separate processes and information provided in any managerial investigation is not released for use in criminal proceedings. Mr Ferguson's response to the NOITR failed to provide sufficient detailed explanation or mitigation for his actions despite the Commissioner's attempt to reassure Mr Ferguson that one process does not affect the other. Given Mr Ferguson's lack of detailed explanation or acknowledgement for his conduct his response offered the Commissioner no comfort that his actions were appropriate, justified or measured. Following his consideration of Mr Ferguson's written response the Commissioner continued to have lost confidence in Mr Ferguson's suitability to remain as a member of WA Police having regard to his integrity, performance and conduct and accordingly has recommended that the Minister for Police approve his removal from office. The Commissioner set out his reasons for reaching that conclusion.
By notice dated 25 February 2015 the Commissioner informed Mr Ferguson that the Minister for Police had approved Mr Ferguson's removal from the Police Force and in accordance with s 11 of the Police Act Mr Ferguson's appointment to the office of constable within the WA Police Force will be cancelled.
Ferguson appeals to the Commission
On 27 March 2015 Mr Ferguson instituted an appeal under Police Act s 33P against the decision of the Commissioner to remove him from office. There were three grounds of appeal:
1.The findings that [Mr Ferguson], on 18 July 2014 at Midland, acted in a manner that was likely to bring discredit on the force or in manner that is unbecoming of a member of the force cannot be a basis for the [Commissioner] to have lost confidence in [Mr Ferguson's] suitability to continue as a member of the WA Police Service having regard to his honesty, integrity and conduct because:
1.1.the findings were entirely based on findings that [Mr Ferguson's] conduct as alleged constituted criminal offences contrary to the Criminal Code WA;
1.2.as at the date of the Removal, [Mr Ferguson] had been charged with criminal offences arising from the same conduct and findings as alleged by the [Commissioner] (criminal charges);
1.3as at the date of the Removal, the criminal charges had not been dealt with by a court.
2.[Mr Ferguson] was denied a fair go all round because the [Commissioner]:
2.1.unreasonably refused [Mr Ferguson's] request dated 29 December 2014 (via his legal representative) to suspend the loss of confidence process under section 33L of the Police Act 1892 until after the determination of the criminal charges;
2.2failed to take into account [Mr Ferguson's] right to claim the privilege against self‑incrimination whilst the criminal charges remained undetermined by concluding that [Mr Ferguson's] failure to provide a detailed explanation for, or acknowledgment of, his conduct on 18 July 2014 left the [Commissioner] with very little scope to even consider that [Mr Ferguson's] actions may have been justified;
2.3.denied [Mr Ferguson] the benefit of the privilege against self‑incrimination;
2.4in denying [Mr Ferguson] the benefit of the privilege against self‑incrimination, thereby;
2.4.1.denied [Mr Ferguson] the right to be heard in response pursuant to section 33L(2) of the Act; and/or
2.4.2.failed to properly consider whether [Mr Ferguson] had committed the conduct as alleged.
3.The [Commissioner] failed to properly take into account the effect of [Mr Ferguson's] written submissions in response to the [Commissioner's] Notice of Intention to Remove and therefore took removal action contrary to section 33L(4) of the Act.
The Commission deferred Mr Ferguson's appeal, pursuant to s 33T of the Police Act, on the basis that Mr Ferguson had been charged with criminal offences arising from the same incident and did not wish to proceed to hearing until those charges had been dealt with.
Ferguson acquitted of criminal charges
On 13 November 2015 following a trial before a jury in the District Court Mr Ferguson was found not guilty of the offence of unlawfully causing grievous bodily harm to Mr Prime. Subsequently the complainant discontinued the prosecution of Mr Ferguson on the charge of unlawfully assaulting Ms Lloyd‑Riley.
Commission allows Ferguson appeal
Following the dismissal of the criminal charges the Commissioner filed his response to Mr Ferguson's appeal. Mr Ferguson filed an outline of submissions and the Commissioner filed an outline of submissions.
On 1 May 2017 the Commission issued its reasons for deciding to allow Mr Ferguson's appeal. The Commission dismissed ground 1 of the appeal. The first ground, as explained during the hearing of the appeal before the Commission, was essentially that the allegations in the NOITR were of conduct constituting criminal offences, and could therefore not be the basis for a finding of loss of confidence unless and until those charges were determined by a court exercising criminal jurisdiction. The Commission held that the Commissioner was able to make findings about conduct, which might also constitute criminal conduct, as a step towards deciding whether to lose confidence in an officer, in the absence of a criminal court deciding the matter. The fact that the allegations considered by the Commissioner relied on the same incident, conduct and consequences did not mean that the Commissioner was obliged to await the outcome of the criminal charges. Whether to await the outcome of the criminal trial to take account of the acquittal or conviction, or of any additional information or evidence that was led at the trial, was a matter for the Commissioner.
The Commission upheld ground 2 for the following reasons. Mr Ferguson was denied the opportunity to respond to the allegations and to any proposed action because he sought to preserve and not potentially compromise his rights in the criminal trial [82]. There is a good argument that a member facing a criminal charge should be able to make a decision whether or not to give evidence in his own defence unencumbered by considerations of whether previous statements made by him may affect the credibility of that evidence in the ways that previous statements may do so [84] ‑ [85]. The Commissioner's refusal to defer the loss of confidence process until the completion of the criminal trial meant that Mr Ferguson was not given a real opportunity to answer the allegations and was unfair [87]. The Commissioner's refusal to defer the loss of confidence process was a denial of procedural fairness which is arguably able to be cured by the appeal to the Commission [88]. The provisions of s 33R, which allow the Commission to receive new evidence on appeal, did not cure the denial of procedural fairness [101]. The Commissioner argued that any officer, faced with a criminal charge arising from the same conduct as gave rise to the loss of confidence process, could rely on the right to silence to avoid responding until criminal charges were dealt with and s 33W says the Commissioner does not have to wait but this will not apply in all cases [102]. The Commission said:
The circumstances of this case indicate that fairness overrides s 33W [102].
The Commission found that it was unfair of the Commissioner to proceed with the pt IIB process over Mr Ferguson's request that it be stayed and to then rely upon what may very well have been a product of refusing the stay, namely a response that was not detailed and did not admit fault and express contrition [103]. The Commission said that they had taken account of the provisions of s 33T and s 33W of the Police Act and stated:
These provisions merely say that the Commissioner is not precluded from proceeding with the LOC process. It does not oblige him to proceed. In this particular case, it was unfair that the Commissioner did not grant Mr Ferguson's request for a deferral to ensure that his rights were not negated [104]. (emphasis added)
The Commission found that ground 3 was merely consequential on the finding that ground 2 was made out.
Appeal to this court
The Commissioner appeals to this court against the finding of the Commission that the Commissioner's decision to remove Mr Ferguson was unfair. There is a single ground of appeal:
The Commission erred in law in its construction of section 33W of the Police Act in upholding ground 2, and consequentially ground 3 of the appeal, in finding that considerations of fairness overrode the operation of section 33W of the Act.
The statutory framework
Section 5 of the Police Act vests in the Commissioner the general control and management of the Police Force. Section 8(1) provides, amongst other things, that the Commissioner may, subject to the approval of the Minister, remove any constable. Section 8(2) provides that that power of removal can be exercised only if the Commissioner has complied with s 33L and the removal action has not been revoked under s 33N(1). The effect of s 8(2) is that before the Commissioner may exercise the power to remove a member the Commissioner must have lost confidence in the member's suitability to continue as a member having regard to the member's integrity, honesty, competence, performance or conduct.
The procedure to be followed by the Commissioner in making a loss of confidence decision is set out in pt IIB of the Act, which comprises s 33K to s 33Y, and pt VIA of the Police Force Regulations 1979 (WA) which comprises reg 6A01 to reg 6A12.
Section 33L sets out the procedure to be followed to remove a member where the Commissioner has lost confidence in the member's suitability to continue as a member. The Commissioner must give the member a written notice setting out the grounds on which the Commissioner does not have confidence in a member's suitability to continue as a member. On receiving a notice the member may within 21 days or such longer period as is allowed by the Commissioner make written submissions to the Commissioner in relation to the grounds on which the Commissioner has lost confidence. The Commissioner must take into account any written submissions received from the member before taking a decision to take removal action. If the Commissioner decides to take removal action he must give the member written notice of the decision, the reasons for the decision and, except to the extent that the regulations otherwise provide, provide to the member a copy of any documents and materials that were examined and taken into account by the Commissioner in making the decision.
Section 33N allows the Commissioner to revoke his decision to take removal action any time including during the course of any subsequent appeal or after a member has actually been removed.
Part IIB div 3 introduces an appeal process in relation to removal. Section 33P entitles a member removed from office for loss of confidence to appeal to the Commission on the ground that the decision of the Commissioner to take removal action was harsh, oppressive or unfair.
Section 33Q sets out the procedure to be followed on appeal. The Commission is required to consider the Commissioner's reasons for deciding to take removal action, the case presented by the member on appeal as to why the decision was harsh, oppressive or unfair and the case presented on appeal by the Commissioner in answer.
Section 33R deals with new evidence on appeal. The effect of s 33R(1) is that the evidence before the Commission on an appeal is generally confined to materials examined and taken into account by the Commissioner in making a decision to take removal action, any written submissions made by the member to the Commissioner, the Commissioner's grounds for his loss of confidence and reasons for the Commissioner's decision to take removal action. New evidence may be tendered by the Commissioner if the member consents or the Commission is satisfied that it is in the interests of justice to do so. New evidence may be tendered by the member if the Commissioner consents or the Commission is satisfied that the member is likely to be able to show that the Commissioner has acted upon wrong or mistaken information, the new evidence might materially have affected the Commissioner's decision to take removal action or it is in the interests of justice to do so. If the member is given leave to tender new evidence the Commissioner is given an opportunity to consider the new evidence. If having considered the new evidence the Commissioner revokes the removal action under s 33N the appeal will be discontinued. Alternatively, the hearing will continue but the Commissioner may reformulate his original reasons for his loss of confidence and his new reasons are to be treated as if they were his original reasons.
Section 33T provides for an adjournment of the appeal where the appellant has been charged with an offence. If the appellant has been charged with an offence relating to any matter, act or omission that was taken into account by the Commissioner in deciding that he did not have confidence in the appellant's suitability to continue as a member and the charge has not been finally determined by a court or otherwise disposed of, the Commissioner or the appellant may apply to the Commission for an adjournment of the hearing of the appeal. If the application for an adjournment is made by the appellant, the Commission must adjourn the hearing of the appeal for such period not exceeding 12 months as is requested by the appellant. If the charge is finally determined by a court or otherwise disposed of before the expiration of the period of the adjournment, the Commission or the appellant may apply to the Commission for the hearing of the appeal to be resumed. Before the expiration of any period of adjournment the Commissioner or the appellant may apply to the Commission for a further adjournment and if it is in the interest of justice to do so the Commission may grant a further adjournment for a period specified by it.
Section 33U sets out the power of the Commission if it decides that the decision to take removal action relating to the appellant was harsh, oppressive of unfair.
Section 33W makes clear that the Commissioner may take removal action notwithstanding that the member has been charged with a related criminal offence or has been acquitted of an offence. Section 33W is:
To avoid doubt, it is declared that if a member ‑
(a)has been charged with committing an offence; or
(b)has been acquitted of an offence,
that charge, the existence of proceedings relating to that charge or the acquittal does not preclude the Commissioner of Police from taking any action under this Part in relation to any matter, act or omission relating to or being an element of the offence.
Part VIA of the Regulations relate to pt IIB of the Act. Regulation 6A02 provides that if a complaint or information is received by the Commissioner concerning a member's integrity, honesty, competence, performance or conduct, the Commissioner may appoint a review officer in relation to that member. Regulation 6A03 provides that the review officer shall conduct an inquiry into the member and prepare a written report called a 'Summary of Investigation' that includes reference to relevant materials that were gathered by the review officer for the purpose of the inquiry and a written list called an 'Inspection List' of relevant materials that were gathered by the review officer for the purposes of the inquiry.
Regulation 6A04 provides that when the review officer completes his inquiry the review officer shall provide the Commissioner with the Summary of Investigation and the Inspection List and any material referred to in the Inspection List the review officer considers appropriate. Before the Commissioner decides whether or not to issue a NOITR the Commissioner may cause further materials to be provided to the Commissioner. The Commissioner may direct a review officer to conduct a further review and prepare and submit to him a supplementary Summary of Investigation and a supplementary Inspection List.
Regulation 6A05 sets out matters which must be included in the Commissioner's NOITR under s 33L(1) of the Act. Regulation 6A06 deals with the member's access to material referred to in the Inspection List. Regulation 6A07 deals with the Commissioner's assessment of a member's submission in response to the Commissioner's notice.
Regulation 6A09 provides for the Commissioner to give to the member a NOITR in accordance with s 33L(3) and (5).
Appellant's case
The appellant says that s 33W provides that the Commissioner may take any action under pt IIB notwithstanding that it relates to a matter or act relating to an element of an offence with which the member has been charged. It cannot be unfair for the purposes of pt IIB for the Commissioner to exercise his discretion in circumstances expressly permitted by the Act. The Commissioner does not submit that he was obliged to proceed with the loss of confidence process. The Commissioner submits that he was not precluded by the existence of the criminal charges from proceeding with the loss of confidence process. The Commission erred by concluding, in effect, that the existence of the criminal charges did preclude the Commissioner from relying upon s 33W.
Respondent's case
Mr Ferguson put his case in the appeal to this court on three bases. First, the appeal is not competent because the appellant has not identified an error in the construction or interpretation of s 33W; the Commission's decision is an application to the facts to statutory provisions which the Commission correctly understood. Secondly, the Commission made no error in the construction or interpretation of s 33W; the Commission's construction of s 33W was correct. Thirdly, in light of the nature of the Commission's jurisdiction under pt IIB div 3 of the Police Act it was open to the Commission to conclude that the Commissioner's decision was unfair because it denied the respondent procedural fairness.
Jurisdiction of the court
Police Act s 33S applies certain provisions, including s 90, of the Industrial Relations Act 1979 (WA) (IR Act), modified in places, to an appeal instituted under pt IIB of the Police Act. Section 90(1) of the IR Act, so modified, provides that, subject to that section, an appeal lies to the Court from a decision of the Commission under s 33U of the Police Act, upon certain limited grounds. Pursuant to s 90(1)(b) one ground is that the decision is erroneous in law in that there has been an error in the construction or interpretation of any act in the course of making the decision appealed against. The Commissioner says that the Commission erred in its construction of s 33W of the Police Act.
Appeal is not competent
The Commissioner complains about the Commission's conclusion as to the content of a fair hearing in the circumstances of the case rather than about an error of law in the construction of s 33W of the Police Act. The Commission's decision is an application of the facts to statutory provisions which the Commission correctly understood, and of common law procedural fairness.
The Commission's interpretation of s 33W is that the Commissioner has power to continue with loss of confidence proceedings when criminal proceedings concerning the same matter, act or omission are pending but the Commissioner is not obliged to proceed with loss of confidence proceedings when criminal proceedings are pending.
The Commission did not construe s 33W in order to determine whether procedural fairness is implied. Nor did the Commission examine s 33W to determine whether the section excluded procedural fairness. The content of the fair hearing and the circumstances of the case was a matter of the application of common law principles to the facts of the case.
The Commission may have erred in finding that in the circumstances of the case it was a breach of procedural fairness and unfair for the Commissioner to refuse Mr Ferguson's request for a deferral but that error, if there was an error, was an error in finding that the Commissioner's refusal gave rise to procedural unfairness and was unfair not from any error in construing or interpreting s 33W.
The appellant has not identified any error by the Commission in the construction or interpretation of s 33W of the Police Act and hence the court's jurisdiction under s 90(1)(b) of the IR Act as applied by s 33S of the Police Act is not enlivened.
Commission did not misconstrue section 33W
When interpreting a statute the court must consider the text, context and purpose of a statutory provision: CIC Insurance Ltd v Bankstown Football Club Ltd (CIC Insurance); Project Blue Sky v Australian Broadcasting Authority (Project Blue Sky); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Alcan); Commissioner of Taxation v Consolidated Media Holdings Ltd; Sztal v Minister for Immigration and Border Protection (Sztal). The starting point for the ascertainment of the meaning of the statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.[46] Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.[47] The statutory text must be considered in its context which includes legislative history. The court may have regard to extrinsic material to confirm the ordinary and natural meaning of statutory provisions or in cases of ambiguity or uncertainty but extrinsic material cannot be used to negate the plain meaning of statutory provisions.
[46] Project Blue Sky [69] ‑ [71]; Alcan [47]; Sztal [14].
[47] CIC Insurance (408); Sztal [14].
Section 33W commences with the words 'To avoid doubt, it is declared that'. The operative enacted words should have the same effect whether or not the introductory or explanatory words are included.[48]
[48] Allen v Feather Products Pty Ltd (2008) 72 NSWLR 507 [25] (Barrett J).
The nub of s 33W is that the Commissioner is not 'precluded' from taking action to remove a member when the member has been charged with a related criminal offence. The usual and ordinary meaning of 'preclude' is to indicate that one event or circumstance prevents another event or circumstance from happening. The effect of s 33W is that the circumstance of a member having been charged with committing an offence does not prevent the Commissioner from taking removal action. It is a corollary of that proposition that it is not unfair for the Commissioner to take removal action merely because the member has been charged with a related criminal offence. However, that does not mean that it cannot be unfair for the Commissioner to take removal action in the particular circumstances of a case where the member has been charged with a related criminal offence.
Mr Ferguson appealed to the Commission on the ground that the decision of the Commissioner to take removal action was harsh, oppressive or unfair. The Commission did not find that the Commissioner's decision to remove Mr Ferguson was unfair merely because the Commissioner took removal action when Mr Ferguson had been charged with a related criminal offence.
The Commissioner argued before the Commission that any member who has been charged with committing an offence arising from the same conduct as gave rise to the loss of confidence process could rely on the right to silence to avoid responding to the NOITR until the criminal charges had been dealt with and that is inconsistent with s 33W which says that the Commissioner does not have to wait. However, the Commission said that that would not apply in all cases. It was the circumstances of this case that led to the Commission's conclusion.
One matter that the Commission took into account in determining that the Commissioner's decision to take removal action was unfair was that in the Commissioner's letter of 10 February 2015 to Mr Ferguson, the Commissioner said 'your failure to specifically respond does not attempt to account for your action, nor have you recognised that your actions were excessive and disproportionate and you have offered no contrition for your actions to address the serious questions that remain over your integrity, conduct and performance' in circumstances where Mr Ferguson had not responded because he 'sought to preserve, and not potentially compromise, his rights in the criminal trial'. That is, the Commissioner took into consideration Mr Ferguson's failure to respond as a factor in his decision to remove Mr Ferguson. The Commission considered that in the circumstances of this case it was unfair of the Commissioner to take into account Mr Ferguson's failure to respond in circumstances where Mr Ferguson was not obliged to respond and had a proper reason for not responding. If the Commission erred in its reasoning, it was not an error in the construction or interpretation of s 33W.
The Commission stated that it was the circumstances of the case that indicated that Mr Ferguson's removal was unfair. The Commission recognised that it will not be unfair for the Commissioner to take removal action in all cases.
The Commissioner's ground of appeal focuses on the statement of the Commission that 'the circumstances of this case indicate that fairness overrides s 33W'. That statement must be read fairly and in the context of the Commission's reasons as a whole, not minutely and finely with an eye keenly attuned to the perception of error. On a fair reading the Commission was not saying that s 33W may be disregarded. The Commission was saying that whilst s 33W does not preclude the Commissioner from taking removal action it may be unfair to do so in the particular circumstances of the case. The Commission's construction of s 33W was correct.
Commission's decision was open
If only one answer is reasonably open on the application of the statutory provision, properly construed, to the facts and a tribunal reaches a different answer it might be inferred that the Tribunal has misunderstood and misconstrued the statutory provision. However, where different conclusions are reasonably possible it cannot be inferred that the Tribunal has misunderstood or misconstrued the statutory provision.
Section 33P of the Police Act provides that a member may appeal against the Commissioner's decision on the grounds that it was harsh, oppressive or unfair. 'Unfair' is broader than a denial of procedural fairness at common law but includes a denial of procedural fairness. Procedural fairness is implied in relation to an exercise of power by the Commissioner to take removal action. Procedural fairness in a loss of confidence proceeding is not expressly excluded by the Police Act. Procedural fairness applies in relation to the loss of confidence proceedings. None of s 8, s 33W or s 33T, or any other provision of the Police Act, excludes procedural fairness in a loss of confidence proceedings.
The content of a fair hearing depends upon the circumstances of the case. Procedural fairness requires that a member be given a reasonable opportunity to answer the case against him. A member who is invited to make a submission at the time when related criminal proceedings are pending may suffer from constraints which deprive him of a meaningful opportunity to present his case. The Commissioner had a discretion as to whether he adjourned the loss of confidence proceeding while the criminal proceedings were pending and was not obliged to refuse Mr Ferguson's application for an adjournment. Indeed, s 33L(2) expressly confers on the Commissioner a discretion to extend the time for the member to make written submissions in relation to the grounds on which the Commissioner has lost confidence.
Mr Ferguson said that in the particular circumstances of his case it was unfair to require him to make submissions before the resolution of the criminal charges. The Commission found that it was unfair of the Commissioner to refuse to extend the time for Mr Ferguson to make written submissions and then to take into account Mr Ferguson's failure to make written submissions as a factor in his decision that he had lost confidence in Mr Ferguson. That finding was reasonably open to the Commission notwithstanding that this court may reach a different conclusion if it was vested with jurisdiction to make the decision. It cannot be inferred from the Commission's decision that if misunderstood or misconstrued s 33W of the Police Act.
Conclusion
For the reasons given I would dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Western Australian Industrial Appeal Court.
FN
Associate25 JANUARY 2019
(Gageler & Gordon JJ).
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