Burrows v Commissioner of Police; Giardini v Commissioner of Police

Industrial Relations Commission (NSW)|2001-03-16|Before: Boland J, Mr J

The applicant's interests 218 I have already referred to the applicant's excellent record as a police officer. There was also evidence from three senior police officers as to the applicant's good character. I have no doubt that the applicant, if returned to the Police Service, would be a good police officer. 219 Since his removal from the Service the applicant found great difficulty in finding alternative employment and it was not until 28 May 2001 that he found permanent employment as a Vehicle Identification Examiner with the Roads and Traffic Authority. He also experienced considerable financial pressure and was unable to pay maintenance to his children for a period of one month. He has been forced to put his house up for sale because he could not afford the mortgage re-payments.

221 I consider that the removal of the applicant was harsh in its consequences for his personal and economic situation: Byrne v Australian Airlines Ltd at 465; Wells v Commissioner of Police (2000) 100 IR 106 at 119.

The public interest 222 In relation to the public interest, I make the same observations as those in relation to Burrows.

The decision in Gavrilovski 223 I make the same observations about the applicability of the decision in Gavrilovski as I did in relation to Burrows.

Summary of conclusions 224 My conclusions in this matter may be summarised as follows:

The evidence, including character evidence and evidence relating to his work performance revealed that the applicant was a keen, dedicated, honest officer who carried out his tasks in a professional manner. He had been commended and complimented on a number of occasions during his career. There is no reason to believe that if the applicant were to be reinstated, he would be anything other than a good police officer. 2) There was an inordinate delay in the question of Mr Giardini's continued employment being dealt with by the Police Service, during which period the applicant continued to work as a police officer in a most commendable manner. The applicant continued to perform his full duties for a period of six months despite the fact he had been recommended as a candidate for removal. During this period the applicant was assigned to sensitive police work. At best, the applicant was left in a state of uncertainty about his future for an unreasonable period of time. At worst, by about August or September 2000 when he was assigned to sensitive security duties, the applicant was entitled to believe that no further disciplinary action would be taken against him. 3) There were 471 officers, of ranks up to and including Inspector, who were detected as receiving and/or disseminating pornographic material over the Memo System. Of these 471 officers 462 were dealt with at Local Area Command level and nine were referred for action under s 181D. In respect of six of the officers nominated for action under s 181D advice was provided to the Commissioner that their involvement was no different to the other 462 officers dealt with at the local level and they were issued with warnings by the Commissioner. Three officers, including Mr Giardini were removed. There was no proper basis for removing the applicant for sending and/or receiving pornographic material where many other officers, including more senior officers, had been involved in the same conduct as the applicant and/or were aware of the applicant's conduct and took no action to stop the conduct, yet they were not removed from the Service. If the Commissioner had been fully and accurately appraised of the extent and nature of the conduct of other officers he may have arrived at a different view as to the sanction to be imposed on the applicant. If the applicant had been fully informed of the nature and extent of the conduct of other officers he may have been better able to defend himself against the allegations in the Commissioner's Notice. 4) It cannot reasonably be contended that Mr Giardini's culpability was greater than other officers for the reason that he continued to transmit pornographic material after receiving the state wide memo on how the electronic mail system was to be used, when it was the case that all officers were sent the same memo and a disconcerting number of them continued to send and/or receive pornography over the same Memo System used by Mr Giardini. 5) The primary reason advanced by the Commissioner as to why the applicant was in a different category was "because he was responsible for introducing the pornographic material into the memo system through his private mail box." Mr Giardini was not the only member of the Police Service who used his private mailbox to send pornographic material to officers on the Memo System. Thus, there was nothing unique or different about the applicant's conduct in introducing pornographic material onto the Memo System from a home computer. 6) The primary reason for placing Mr Giardini in a "different category" and, therefore, using that to justify removal, was irrational. There is no relevant difference between, on the one hand, Mr Giardini introducing pornographic material onto the Police Service Memo System via an electronic message from his home computer and, on the other hand, another police officer using his or her terminal on the Police Service network to introduce pornographic images by downloading from another site or from a disk. 7) There was such a marked inconsistency in the treatment of the applicant compared to that of other officers who engaged in the same conduct as the applicant that his removal was manifestly unjust. 8) The failure of the Commissioner to put the applicant on notice regarding the potential significance of the warnings allegedly given by senior police officers about the inappropriate use by the applicant of the Police Service Memo System and the error in the Confidence Submission that the applicant had conceded he had been previously warned, heavily disadvantaged the applicant. This was especially so given that the applicant had made it clear in his submission to the Commissioner that he was addressing only the three grounds cited in the Commissioner's Notice and that "If I have not specifically referred to something in the Commissioner's Confidence papers, then it should not be concluded that I agree with what has been set out therein." 9) The evidence underpinning the allegations in the Commissioner's Confidence Submission regarding the alleged earlier warnings to the applicant, and his failure to heed them, was very weak if the import of the allegations was that the applicant had been warned twice about sending pornographic material to officers over the Police Service Memo System and had taken no notice of the warnings. I am not reasonably satisfied that such allegations have been made out: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J. 10) There was insufficient evidence to support the allegation made in the Commissioner's Statement of Reasons that the applicant "disseminated offensive pornographic material on the Police Service Memo System that has been classified by the Office of Film and Literature Classification (sic) under the Classification (Publications, Films and Computer Games) Act 1995 as 'Refused Classification' and Category 2 Classification". 11) There was insufficient material to enable the Commission to conclude that the applicant published an indecent article in breach of s 578C(2) of the Crimes Act 1900 (NSW). Therefore, the allegation to this effect in the Commissioner's Statement of Reasons is not made out. 12) There was no evidence that persons receiving the pornographic material sent by the applicant found it offensive or unwelcome. 13) The removal of the applicant was harsh in its consequences for his personal and economic situation. 225 For the foregoing reasons, I have concluded that the removal of the applicant from the Police Service was harsh, unreasonable and unjust. In relation to the appropriate remedy I take the same view in relation to the applicant as that in relation to Burrows, namely, in weighing up the applicant's interests and the public interest, the reception and transmission of highly offensive pornographic material over an internal electronic mail system by a police officer is completely unacceptable, despite the fact that the material was for private consumption. Removal from the Police Service, however, was too harsh.

226 I propose to order that Rick Lawrence Andrew Giardini be reinstated from the date of this decision.

PART F. PRODUCTION OF LEGAL ADVICE 227 Mr Docking sought production of legal advice allegedly received by the Commissioner in connection with the removal of Mr Burrows and Mr Giardini. In light of my conclusions in the two matters before me I do not find it necessary to determine this issue.

PART G. ORDERS 228 I make the following orders:

In Matter No IRC 5678 of 2000 the respondent shall reinstate the applicant in his former position on terms not less favourable than those that would have applied to him if he had not been removed from the Police Service. The reinstatement shall take effect from the date of this decision. 2) In Matter No IRC 5862 of 2000 the respondent shall reinstate the applicant in his former position on terms not less favourable than those that would have applied to him if he had not been removed from the Police Service. The reinstatement shall take effect from the date of this decision.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Classification (Publications Films and Computer Games) Act 1995(Cth)

Classification (Publications Films and Computer Games) Enforcement Act 1995(NSW)

RESPONDENT: Commissioner of Police FILE NUMBER: IRC NO 5678 & 5862 of 2000 CORAM: Boland J CATCHWORDS : Removal of police officers - Review of orders - Whether removal was harsh, unreasonable or unjust - Misuse by police officers of Police Service Electronic Memo System - Sending and receipt of pornographic material - Removal found to be harsh, unreasonable and unjust - Applicants reinstated from date of decision. Classification (Publications Films and Computer Games) Act 1995 (Cth) Classification (Publications Films and Computer Games) Enforcement Act 1995 (NSW) LEGISLATION CITED : Crimes Act 1900 (NSW) Industrial Relations Act 1996 Police Service Act 1990 Public Sector Management Act 1988 Australian Competition & Consumer Commission v Daniels Corporation International Pty Ltd [2001] FCA 244 (16 March 2001) Bigg v NSW Police Service (No2) (1998) 80 IR 434 Byrne v Australian Airlines Limited (1995) 185 CLR 410, 61 IR 32 Federated Municipal & Shire Council Employees' Union of Australia, NSW Division v Liverpool City Council (1988) 25 IR 246 Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 In the matter of an Appeal No. 191 of 2001 by Peter Gavrilovski against a decision of the Attorney General's Department (unreported, Government and Related Employees Appeal Tribunal, 29 August 2001) Newton v NSW Police Service (1999) 87 IR 66 CASES CITED : NSW Public Service Professional Officers' Association v Forestry Commission (NSW) (1990) 39 IR 46 Oswald v NSW Police Service (1999) 90 IR 42 Owens v New South Wales Police Service (1998) 87 IR 1 Pastrycooks, Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 1) (1990) 35 IR 51 R v Anderson, ex parte IPEC-Air Pty Limited (1965) 113 CLR 177 Starr v Commissioner of Police [2001] NSWIRComm 226 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wells v Commissioner of Police (2000) 100 IR 106 HEARING DATES: 08/06/2001; 08/07/2001; 08/13/2001; 08/14/2001; 08/15/2001; 08/16/2001 DATE OF JUDGMENT: 12/14/2001

210 Mr Graves submitted that eel2.mpe, having been classified as RC, supported the assertion that it was indecent. Whilst the image is disgusting, I am reluctant to accept that it is "indecent" within the meaning of s 578C(2) of the Crimes Act. To do so would be to establish a criminal offence. Indecency must be judged in the light of time, place and circumstances: R v Dunn [1973] NZLR 481 at 483, 484. See also Crowe v Graham (1968) 121 CLR 375 at 379 per Barwick CJ and at 396 per Windeyer J. The image eel2.mpe was sent to persons who did not find it offensive or unwelcome. No one complained about receiving the image. There was no evidence that the applicant ever intended for the image to be seen by any person other than those he sent it to. In this regard, I have also taken into account the fact that classification decisions under the Classification (Publications, Films and Computer Games) Act are to give effect, as far as possible, to the principle that adults should be able to read, hear and see what they want and that s 11(d) of that Act requires the Office of Film and Literature to take into account the persons or class of persons to or amongst whom the publication is published or is intended or likely to be published when making a decision on the classification of a publication.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Legislation Cited (5)

Cases Cited (19)