Commissioner of Police, New South Wales Police Force v Zisopoulos

Catchwords

[1966] HCA 70 Batterham v QSR Limited (2006) 225 CLR 237[2006] HCA 23 Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715[1938] HCA 34 Byrne v Australian Airlines Limited (1995) 185 CLR 410[1995] HCA 24 Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1[2013] HCA 2 Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWSC 622 Cottle v NSW Commissioner of PolicePolice Association of New South Wales v Commissioner of Police (NSW Police Force) [2020] NSWCA 159 Gould v Vaggelas (1985) 157 CLR 215[1985] HCA 75 Henderson v State of Queensland (2014) 255 CLR 1[2014] HCA 52 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421[2019] HCA 3 Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41[1980] FCA 85 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259[1996] HCA 6 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323[2001] HCA 30 Momcilovic v R (2011) 245 CLR 1[2011] HCA 34 Oswald v New South Wales Police Service (1999) 90 IR 42 Polyaire Pty Ltd v K-Aire Pty Ltd (2005) 221 CLR 287[2005] HCA 32 Purkess v Crittenden (1965) 114 CLR 164

Judgment (29 paragraphs)

[1]

Background to and history of the proceedings

Mr Zisopoulos was a member of the NSW Police Force from 1999 to 2015.
On 16 April 2015, he was subjected to a random urine drug test at Newtown Local Area Command. The initial screening of his urine returned a "non-negative" result for amphetamines, opiates and benzodiazepines. Mr Zisopoulos was advised at the time that his urine sample would be sent for further laboratory analysis to confirm that the medications which he had been taking caused the non-negative results.
Later on the same day, Mr Zisopoulos was required to provide a hair sample for further testing, which returned positive results for MDMA and methylamphetamine.
On 30 March 2016, Mr Zisopoulos was served with a notice pursuant to s 181D(3)(a) of the Act (Section 181D Notice) which, as noted at [2] above, included the following: "There appear to be reasonable grounds on which it could be concluded, on the balance of probabilities, and having regard to the seriousness of the allegation, that you consumed a prohibited drug, resulting in you testing positive for MDMA and methylamphetamine. … I consider there to be reasonable grounds on which it could be concluded, on the balance of probabilities, and having regard to the seriousness of the allegation, that you voluntarily consumed a prohibited drug and the drug levels detected are not a result of any external contamination". (emphasis added).
On 6 June 2016, Mr Zisopoulos submitted a response to the Section 181D Notice in which he denied the allegation of voluntary consumption of the drugs.
On 19 December 2016, by an order made under s 181D(1) of the Act, Mr Zisopoulos was removed from the NSW Police Force. The terms of that order were as follows: "I, Andrew Phillip Scipione, Commissioner of Police, having considered your conduct and integrity, do not have confidence in your suitability to continue as a police officer. By this Order, I remove you from the New South Wales Police Force. In reaching my decision, I have carefully considered the grounds set out in my Notice pursuant to section 181D(3)(a) of the Police Act 1990 and the evidence contained in the supporting documentation, which were served on you. I have also taken into account your written response provided by your legal representative. The reasons for my decision are annexed hereto under the heading 'Statement of Reasons'. Your removal takes effect from the date of this order".
The Police Commissioner's Statement of Reasons (the Reasons) were lengthy, running to some ten pages. After setting out the background facts, the Reasons then contain a section headed "Allegation", which was in these terms, mirroring the Section 181D Notice: "I must assess, on the balance of probabilities and having regard to the seriousness of the Allegation, if it is more likely that you voluntarily consumed illicit drugs or if the presence of the drugs arose from another cause. For the reasons set out below, I am satisfied that you consumed a prohibited drug, resulting in you testing positive for MDMA and methylamphetamine, in respect of which the drug levels detected are not explicable by any external contamination. In the circumstances, I find that your conduct was contrary to the Police Act 1990, the Police Regulation 2008 (as in force at the relevant time) the NSW Police Force Handbook, the Drug Misuse and Trafficking Act 1985, the NSW Police Force Drug and Alcohol Policy, and the NSW Police Force Code of Conduct and Ethics." (emphasis added).
Interpolating here, it should be noted that in both the Section 181D(1) Notice and the Reasons, the Police Commissioner identified a standard of proof (balance of probabilities) coupled with a Briginshaw rider ("having regard to the seriousness of the allegation"): see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. There was no direct statutory reason for the Police Commissioner to choose this standard of proof or to require satisfaction in the Briginshaw sense, namely by reference to the seriousness of the allegations. There may have been sound reasons for the Police Commissioner to do so, but the important point for present purposes is that he was not obliged to do so.
It may, for example, be open to the Police Commissioner to remove an officer in circumstances where he had reasonable suspicion that the officer had engaged in serious criminal conduct but could not be satisfied of the commission of that conduct either to the civil or criminal standard, cf. Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62; [1980] FCA 85. Depending on the context, however, the very existence of such reasonable suspicion may be sufficient for the Police Commissioner to exercise the s 181D removal power, if the existence of that suspicion has caused the Police Commissioner not to have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. It is perhaps useful, in this context, to set out the following exchange in the course of argument in this Court: "KIRK: … Let's say seized money or drugs go missing and it can't be established with a Briginshaw gloss in the full glare of silked up legal proceedings in the IRC, that it was Smith who took them, but there's very good reasons still to think that it was Smith who took them. Or to give a more significant example, that there's been a leak of information about an undercover officer or an informant, and it can't conclusively be proved with a Briginshaw gloss that it was Smith who leaked it, but there's very good reasons to think that Smith did. Smith is a danger to the police service and to the community and although it's possible that Smith is innocent there is good reason to remove him or her. BELL P: A corollary of that is that it's not necessarily harsh for the Police Commissioner to remove an officer where he, the Police Commissioner, is not even satisfied on the balance of probabilities that something has happened. KIRK: Correct. BELL P: There could be a situation where he has reasonable grounds to believe that something has happened, to borrow that language from other statutory contexts, and whether or not those reasonable grounds meet some other legal standard, some higher legal standard, it may be perfectly reasonable, given the context and the purpose of the act and the conferral of the powers for him to so act. KIRK: Precisely so …"
The Police Commissioner is invested with a significant measure of discretion under s 181D(1), subject to satisfaction of the statutory procedural fairness requirements in s 181D(3) and the obligation to provide reasons by virtue of s 181D(4). The mandatory requirement imposed by s 181F(3)(b) to take into account, as part of the consideration of the public interest, "the fact that the Commissioner made the order pursuant to section 181D (1)" highlights the deference to be given to the Police Commissioner's decision, a point also emphasised in the Second Reading Speech. But any such decision is also subject to the right of review pursuant to s 181E of the Act.
Returning to the Reasons, the Police Commissioner noted that: "I have carefully considered the issues you raised in your Response, the scientific evidence and expert reports, the Police evidence regarding your exposure to illicit drugs and any other matters to which I have referred below. … I have taken into account that you state in your Response that, as part of your employment duties, you have been exposed to illicit drugs on a regular basis in the workplace, and that you may have been 'unwittingly' exposed outside of work (although there is no evidence in support of this other than the contents of your Response). I have also considered the sections of your Response regarding the verifiability and reliability of the test results and the alleged breaches in the drug and alcohol testing procedures that were followed. I have considered the contents of all of the expert reports, to which I have referred above. Dr Lewis and Ms Lindsay each opine that your test results could be ascribable to use, while Mr Farrar opines that the test results do not provide evidence that the presence of illicit drugs was due to ingestion. However, each expert agrees that it is possible that the levels of drugs reported could have been due to external contamination (although Dr Lewis notes that 'one can eliminate environmental contamination as a likely source'). Although I have considered your explanation, Police records show that you have had only limited exposure to illicit drugs during the approximately three month period preceding testing. Consequently, although I recognise that the levels of illicit drugs reported are at the lower level of reporting, I do not accept that your non-negative test results are explained by environmental contamination or 'unwitting' exposure or ingestion (either at or outside of work). … I have had regard to the scientific evidence and the associated expert reports. Despite the expert agreement regarding external contamination, I prefer the evidence of Dr Lewis and Mr Lindsay that your test results are ascribable to one off or occasional use of MOMA and methylamphetamine. Having considered all of the above matters, I do not find your denials that you have consumed illicit drugs credible, and I have concluded that you have voluntarily consumed prohibited drugs, namely, MDMA and methylamphetamine. In addition, I have to conclude that you have been less than candid in your Response to me. … As I have stated above, I do not find your denials that you have taken illicit drugs to be credible, and I am concerned about your honesty. In these circumstances, I can no longer rely upon your integrity as a police officer to perform policing duties in the future. … I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer". (emphasis in original).
On 22 December 2016, Mr Zisopoulos filed an application for relief in relation to unfair dismissal in the IRC. Before the IRC, Mr Zisopoulos claimed that his removal was harsh, unreasonable or unjust on the basis that (a) he denied voluntarily ingesting either MDMA or methylamphetamine, and (b) the positive hair test results were capable of being interpreted as being caused by environmental contamination of the hair by those substances, or that such external contamination could not be ruled out.
Before the IRC, it was accepted by Mr Zisopoulos that his removal would not have been harsh, unreasonable or unjust had he in fact voluntarily consumed prohibited drugs but he denied this and, as shall be seen, led expert evidence seeking to establish and made a submission recorded by Murphy C at [131] of the First Instance Decision that "the overwhelming consensus of the experts was that the test results are consistent with external contamination."
Equally, both before the IRC and in this Court, it was not suggested that Mr Zisopoulos' removal by the Commissioner would not have met the statutory criteria of harsh, unreasonable or unjust if it were established that the positive hair test results manifesting drugs were in fact caused by "environmental contamination", that is to say, by exposure to the drugs in the course of his duty, as opposed to voluntary ingestion. Indeed, in argument before this Court, Mr Kirk both positively put and accepted that this was a binary issue upon which the ultimate issue for determination under s 181E(1) of the Act turned.

[2]

Decision of Commissioner Murphy

On 7 March 2018, Murphy C upheld the application for review, and ordered that Mr Zisopoulos be reinstated to the NSW Police Force at the rank and incremental level he held at the date of his removal.
In a section of his reasons entitled "Onus of proof", Murphy C noted that "[s]ection 181F(2) of the Police Act makes it clear that [Mr Zisopoulos] bears the burden of establishing that his removal from the NSWPF was harsh, unreasonable or unjust": at [140].
After referring at length to the decision of the Full Bench in Tredinnick, Murphy C outlined (at [142]) that he was "satisfied that the applicant has produced sufficient evidence to cast doubt upon the finding by the [Police Commissioner] that [Mr Zisopoulos] consumed prohibited drugs so that the evidentiary burden of establishing that fact has shifted to the [Police Commissioner]". This conclusion was advanced at the end of the section of Murphy C's decision entitled "Onus of proof".
Murphy C structured his analysis of the ultimate issue before him under the general heading "Was the removal of the applicant harsh, unreasonable or unjust?" with the following sub-headings:

The Statement of Reasons (at [150]-[156]);
The applicant's exposure to drugs at work (at [157]-[162]);
The wash procedure (at [163]-[164]);
The positive test results - voluntary use or external contamination? (at [165]-[167]);
The case presented by the respondent (at [168]-[180]);
The evidentiary burden (at [181]-[190]).

Under the sub-heading "The positive test results - voluntary use or external contamination?", Murphy C recorded at [165]-[167] that: "165. In addition to the concession made by Ms Lindsay that recent external contamination cannot be excluded, the expert scientific evidence upon which [Mr Zisopoulos] relies to support the proposition that the positive test results were due to external contamination can be summarised as follows: Dr Robertson [Mr Zisopoulos'] test results may have been due to occasional use during the time period represented by the hair sample and/or environmental contamination. It cannot be established which of these possibilities is more likely than the other. Dr Fu Environmental contamination is the most likely cause of [Mr Zisopoulos'] hair testing results (first report). External contamination cannot be ruled out as the cause of the positive results of prohibited drugs in the hair of [Mr Zisopoulos] (supplementary report). Mr Farrar The available information does not, on the balance of probabilities, support the allegation of consumption of prohibited drugs by [Mr Zisopoulos]. 166. Against these opinions, Dr Lewis concluded that, based on his opinion as to the low probability of external contamination, it was highly likely that the prohibited drugs were consumed by [Mr Zisopoulos]. However, under cross-examination, Dr Lewis conceded that environmental contamination was a 'feasible' explanation, 'unlikely' but not 'impossible'. 167. Dr Lewis agreed with senior counsel for [Mr Zisopoulos] that, if environmental contamination could not be eliminated as a cause, 'as a matter of science it's unsafe to espouse a conclusion that ingestion was the reason for the positive result'." (emphasis in original).

[3]

The Full Bench decision

The Police Commissioner sought leave to appeal to the Full Bench of the IRC. Leave was granted in respect of three grounds of appeal, namely that Murphy C erred in properly applying the onus arising under s 181F of the Act, that Murphy C erred by failing to adhere to s 181F(2) of the Act by concluding that the evidentiary burden moved from Mr Zisopoulos, and that Murphy C failed to properly consider, or consider at all, s 181F(3) of the Act, requiring that the IRC "must" have regard to the public interest when making its decision. That final issue has fallen away in the present proceedings.
On 4 October 2019, the Full Bench of the IRC dismissed the appeal. The Full Bench held, with respect to the first two of the grounds, that there was "nothing in Commissioner Murphy's reasons to support the proposition that he has misunderstood or misapplied either s 181F(2) or the principles which were established in Tredinnick", and that Murphy C had held that Mr Zisopoulos had "established flaws" in some of the reasons of the Police Commissioner: at [30].
Like Murphy C, the Full Bench made extensive reference to Tredinnick for the purposes of considering the attack on Murphy C's reasons. At [23], the Full Bench observed that: "…unlike unfair dismissal proceedings, concerned with termination for serious misconduct in which the employer is required to prove the fact of misconduct, the Commissioner of Police is not required to do so - unless, as will be seen, an applicant succeeds in shifting the evidentiary burden. The obligation of the Commissioner extends no higher than answering the applicant's case." (emphasis in original).
At [24], the Full Bench made the point that: "The burden on the applicant for review is to demonstrate the flaw in the respondent's reasons. That may be done, as the Commission said at [66] by bringing 'evidence to explain why the Certificate did not demonstrate the consumption of illicit drugs'. Establishing that proposition need not go so far as proving, as the appellant submits, that an applicant did not in fact consume illicit drugs or that the test result was 'caused by actual external contamination'." (emphasis in original).
At [26]-[27], the Full Bench observed that an applicant for review was "required to prove that the decision to remove him is harsh, unreasonable or unjust", and that that burden "can be satisfied by casting sufficient doubt on the Commissioner's reasoning process as to justify the Commission's intervention." The Full Bench then cited extensively from the decision of Walton J VP (as his Honour then was) in Starr v Commissioner of Police [2001] NSWIRComm 226 at [171]-[176] and [179] (Starr), concluding at [28] that: "These passages identify and make clear, stripped of the technical expressions of legal and evidentiary burdens, the process by which a matter before the Commission is to be considered. The first point of reference is the reasons of the appellant. In his decision the Commissioner examined those reasons. The next step is to consider the case brought by the respondent to establish a flaw (or flaws) in those reasons sufficient to justify the intervention of the Commission. In other words, that the flaw (or flaws) is sufficient to lead to a conclusion that removal is harsh, unreasonable or unjust. The Commissioner identified a flaw in the appellant's reasons based on the case brought by the respondent. The principal flaw was that the evidence considered by the appellant was inadequate to support the factual findings made. Accordingly, the final step is to consider the case brought by the Commissioner of Police in answer to the applicant's case. In this case, the Commissioner was not persuaded that the evidence led by the appellant satisfied the 'burden to produce evidence vindicating the factual findings made' - Starr at [176]."

[4]

The application for judicial review

In its Summons, the Police Commissioner seeks judicial review both of the decision of Murphy C and of the Full Bench on the following grounds: "8. Pursuant to s 181F(2) of the Police Act, the Officer had at all times in the course of the IRC proceedings the burden of establishing that his removal from the New South Wales Police Force was harsh, unreasonable or unjust, despite any law or practice to the contrary. 9. The burden imposed under that section on an applicant for review under s 181E(1) of that Act provides: (a) for a legal onus of proof and persuasion which is borne by the applicant for review, and which onus remains constantly on the applicant; and (b) an onus which is not satisfied or discharged merely by the applicant leading sufficient evidence to cast doubt on the [Police Commissioner's] reasons for removing the applicant from the New South Wales Police Force by an order made in writing under s 181D(1) of the Police Act. 10. The effect of the reasoning and approach of both Murphy C and the Full Bench was to place the burden of proof and persuasion on the [Police Commissioner], at least once some doubt had been cast on the factual finding by the [Police Commissioner] in question, contrary to the terms of s 181F(2) and to a proper understanding of the notion of a legal burden of proof and persuasion. 11. In the premises, Murphy C and the Full Bench each engaged in legal and jurisdictional error by: (a) misconstruing s 181F(2), misdirecting themselves and asking themselves the wrong question in undertaking the statutory task of review under s 181E of the Police Act; (b) misunderstanding the notice of 'evidential burden', by treating this as though the legal burden of proof and persuasion shifts from the applicant for review once some doubt has been cast on the finding of fact in question; (c) thereby constructively failing to exercise their respective jurisdictions. 12. As the decision of the Full Bench relevantly was based upon the same reasoning as that of Murphy C, and as the errors are such that the Officer's application for review has not yet properly been dealt with, it is appropriate that both decisions (and not merely that of the Full Bench) be set aside, and that time be extended pursuant to UCPR rule 59.10(2) to enable this to occur with respect to the First Instance Decision".
The relief sought in the Summons was relevantly as follows: "1 A declaration that the burden imposed under s 181F(2) of the Police Act 1990 (NSW) (Police Act) on an applicant for review under s 181E(1) of that Act provides for: (a) a legal onus of proof and persuasion which is borne by the applicant for review, and which onus remains constantly on the applicant; and (b) an onus which is not satisfied or discharged merely by the applicant leading sufficient evidence to cast doubt on the reasons of the Commissioner of Police for removing the applicant from the NSW Police Force by an order made under s 181D(1) of the Police Act. 2 A writ in the nature of certiorari issued to the Industrial Relations Commission of New South Wales (IRC) which: (a) removes into this Court the appeal proceedings in the IRC with file number 2018/00084066 (Appeal Proceedings) and the orders of the Full Bench (Full Bench Orders) in those proceedings as pronounced in the decision of the IRC in Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073 (Full Bench Decision); (b) removes into this Court the proceedings in the IRC with file number 2016/00384458 (First Instance Proceedings) and the orders of the IRC in those proceedings (First Instance Orders) as pronounced in Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011 (First Instance Decision); (c) quashes the Full Bench Orders; (d) quashes the First Instance Orders. 3 A writ in the nature of mandamus directing the IRC to: (a) hear and determine the First Instance Proceedings according to law; (b) alternatively to (a), hear and determine the Appeal Proceedings in accordance with law. 4 To the extent that prayers 2(b) and 3(a) require an extension of time, leave be granted to the Plaintiff to have such an extension pursuant to rule 59.10(2) of the UCPR. 5 Such other or further orders as the Court determines to be appropriate. 6 Costs".

[5]

Police Commissioner's submissions

In written submissions, the Police Commissioner contended that Murphy C and the Full Bench of the IRC misconstrued s 181F(2) of the Act, misdirected themselves and asked themselves the wrong question in undertaking the statutory task of review under s 181E of the Act. The Police Commissioner submitted that both Murphy C and the Full Bench thus erred in law and failed to exercise their respective jurisdictions.
The Police Commissioner submitted that it is: "…axiomatic that for the purposes of the review under s 181E(1) of the Police Act, s 181F(2) provides that the legal onus of proof and persuasion to establish the legislative requirement for review - that the removal was harsh, unreasonable or unjust - is borne by the applicant (the police officer), and remains constantly ('at all times') on them. The legal or persuasive burden or onus of proof is the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved (or disproved) either by a preponderance of the evidence or beyond reasonable doubt, as the case may be. The legal or persuasive burden may be contrasted with an evidential burden. The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact". (footnotes omitted).
The Police Commissioner submitted that the reasoning of both Murphy C and the Full Bench of the IRC misconceived the onus under s 181F(2), and that they conflated the legal onus with a shifting evidentiary onus. The Police Commissioner noted that, either directly or indirectly, the Full Bench in Tredinnick (which was drawn on heavily both by Murphy C and the Full Bench in the current matter) relied upon a line of authority concerned with a different statutory scheme, namely s 181B of the then Police Service Act 1990 (NSW), and where the question of the shifting evidentiary onus was raised in the context of a failure to comply with the necessary procedural requirements (see Bigg v New South Wales Police Service (1998) 80 IR 434 (Bigg); and Oswald v New South Wales Police Service (1999) 90 IR 42 (Oswald)).
The Police Commissioner submitted that at no stage did the earlier decisions in Bigg and Oswald suggest that the "evidentiary" onus could shift to the Police Commissioner to establish the misconduct and, if they did, they would have the effect of shifting the "legal" onus. The Police Commissioner thus submitted that the suggestion that the "evidentiary burden" can shift to establish the police officer's misconduct conflates legal and evidentiary burdens, and is contrary to s 181F(2) of the Act, which places the burden "at all times" on the police officer to establish that the removal was harsh, unreasonable or unjust.

[6]

Mr Zisopoulos' submissions

Mr Hutley pointed to [59] of the Full Bench Decision, where it was recorded that the "findings of [Murphy C] were open to him on the evidence". Murphy C's key factual findings were contained in [180] and [187]-[188] of the First Instance Decision, in which he found that the expert evidence demonstrated that external contamination of Mr Zisopoulos' hair, as a result of handling MDMA and methylamphetamine as part of his duties as a police officer, was at least "as likely" or "more likely" an explanation for the test results of his hair sample, than was ingestion of the drugs by him: see at [43] and [45] above. Murphy C also found, in aspects of his reasons emphasised by the Full Bench in its decision at [30], that:

Mr Zisopoulos was on duty when both MDMA and methylamphetamine were accepted at Newtown Local Area Command one week before collection of the hair sample: at [159];
The Police Commissioner apparently was not aware of this when reaching his decision: at [160]; and
there were a number of occasions in the period leading up to the collection of the hair sample when it was "likely" that Mr Zisopoulos came into contact with the drugs: at [162].

Mr Hutley submitted that the Police Commissioner's argument constituted a de facto challenge to the merits of the decision, and that Murphy C's statement at [187] that the evidentiary burden may shift to the Police Commissioner did not amount to a reversal of burden that rested on Mr Zisopoulos to establish that his removal was "harsh, unreasonable or unjust". He submitted that this was simply an observation concerning the practicalities involved in the resolution of competing and shifting evidentiary cases that arise in the course of a contested factual dispute and, in any event, was superfluous and not determinative of the success or failure of Mr Zisopoulos' application because it was Murphy C's factual findings which were the basis upon which Mr Zisopoulos ultimately succeeded.
In oral submissions, Mr Hutley made it clear that there was no argument that the legal burden remained at all times on his client to establish that the Police Commissioner's decision to remove him from the Police Force was harsh, unreasonable or unjust. Moreover, he said, this was also clearly understood both by Murphy C and the Full Bench in their respective decisions. In this context, he submitted that there was no point or utility in making the declaration sought in prayer 1(a) of the Summons: see [56] above.

[7]

Consideration: substance or semantics?

Mr Kirk accepted that if, on a proper reading, the references in the decisions of Murphy C and the Full Bench to evidentiary onus were to nothing more than what Professor Williams had described as the shifting or "tactical" onus (see [61] above), the basis of the appeal largely fell away. Of course, he did not accept that this was the proper reading of the decisions.
In my view, it is a proper reading, although there are sentences and phrases in both the decision of Murphy C and the Full Bench, as well as Tredinnick which, taken out of context or when read in isolation, might be thought to suggest otherwise. The reasons under challenge must, however, be read as a whole and must be considered fairly: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 29; [1996] HCA 6; Victoria v Commonwealth ("Payroll Tax case") (1971) 122 CLR 353 at 402; [1971] HCA 16; Anchor Products Ltd v Hedges (1966) 115 CLR 493 at 501; [1966] HCA 70; Polyaire Pty Ltd v K-Aire Pty Ltd (2005) 221 CLR 287; [2005] HCA 32 at [50]; Batterham v QSR Limited (2006) 225 CLR 237; [2006] HCA 23 at [20]; R v LK (2010) 241 CLR 177; [2010] HCA 17 at [85].
Critical to this reading is an appreciation that the Police Commissioner predicated his removal decision on his own satisfaction, to the Briginshaw standard, that Mr Zisopoulos had voluntarily ingested the drugs. He set out his reasoning process and the material and matters upon which he relied in the Reasons. In Briginshaw, Dixon J famously explored the relationship between a standard of satisfaction and the seriousness of the question calling for that satisfaction. In that case, one of adultery in a matrimonial cause, his Honour said (at 368) that: "the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation."
As explained at [31]-[32] above, the Police Commissioner was not obliged by statute to satisfy himself to the standard he prescribed but, having done so, he exposed himself to an attack on his decision by reference to the very standard of satisfaction he set himself.

[8]

Conclusion

For these reasons, I do not consider that the decisions of either Murphy C or the Full Bench are affected by jurisdictional error, and I would dismiss the Summons with costs.
MACFARLAN JA: I agree that, for the reasons given by Bell P, the summons should be dismissed with costs. I add the following observations.
I agree with Bell P that the better view of the judgments under review is that in referring to an evidential onus passing to the Police Commissioner as a result of the evidence called in Mr Zisopoulos' case being adduced, Murphy C and the Full Bench were referring to the "tactical onus" described by Sir Nicolas Browne-Wilkinson VC in Brady (Inspector of Taxes) v Group Lotus Car Cos plc [1987] 2 All ER 674 at 686-7 (see the passage quoted in [61] above), that is, a practical burden to adduce further evidence because the other party has produced enough evidence to win if that does not occur.
As stated in J D Heydon, Cross on Evidence (online ed, March 2020, LexisNexis Australia) at [7210] this type of burden is "devoid of legal significance because there is no means of telling when it has been brought into existence or when it has been discharged". This is because those conducting a case will not know whilst the case is in progress what the judicial officer is thinking about who will win if no further evidence is adduced. There is good reason therefore to avoid reference to the concept during a hearing. If reference is to be made to it in a judgment describing, in retrospect, the course that the hearing took, a name, such as "tactical onus", should be used to preclude ambiguity.
It can be confusing to describe the concept as the "evidential onus" as that term refers instead to the distinct concept of an onus of introducing evidence. That onus arises when a case will be decided without consideration of a particular issue unless the party upon whom the evidential onus rests adduces some evidence to require the party bearing the legal burden of proof to address it (see for example Purkess v Crittenden (1965) 114 CLR 164 at 168; [1965] HCA 34 and Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [52]). An example given in Purkess v Crittenden is that: "where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant." (Ibid.)

[9]

Ground of review

The Police Commissioner's summons for judicial review identified the ground relied upon to establish jurisdictional error by the IRC essentially as follows: 1. the effect of the reasoning of Murphy C, at first instance, and of the Full Bench, on appeal, was: "to place the burden of proof and persuasion on the [Police Commissioner], at least once some doubt had been cast on the factual findings by the [Police Commissioner] in question"; 1. this is contrary to the terms of s 181F(2) of the Police Act and to a proper understanding of the notion of a legal burden of proof and persuasion and an "evidential burden"; and, as a result, Murphy C and the Full Bench misdirected themselves and asked themselves the wrong question, in undertaking the statutory task of review under s 181E of the Police Act and on appeal, thereby constructively failing to exercise their respective jurisdictions.
Given the nature of this ground of review, it is appropriate first to consider the reasons of Murphy C to determine whether or not the effect of those reasons was to place a relevant burden of proof and persuasion on the Police Commissioner. If so, it will be necessary then to consider whether this effect was contrary to s 181F(2). If Murphy C's approach was affected by such an error, it will be necessary to determine whether the error, if any, amounted to jurisdictional error. Since the Full Bench held that Murphy C's reasons were not relevantly erroneous, the Full Bench's reasons may be able to be dealt with more shortly.

[10]

The reasoning of Murphy C

Murphy C commenced his reasons, Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011, by referring to the Police Commissioner's removal order and Mr Zisopoulos's review proceedings under s 181E of the Police Act, at [1]. At [2], he quoted the following passage from the Police Commissioner's reasons for the order: "… I am satisfied that you consumed a prohibited drug, resulting in you testing positive for MDMA and methylamphetamine, in respect of which the drug levels detected are not explicable by any external contamination."
After giving some background to Mr Zisopoulos's drug testing, identifying the expert drug evidence before the Police Commissioner and quoting relevant portions of the Police Commissioner's reasons concerning the test results, at [3] to [9], Murphy C noted again (at [10]) the Police Commissioner's finding that Mr Zisopoulos consumed a prohibited drug. Then, he observed the following as to Mr Zisopoulos's case before the IRC, at [11]: "Throughout the disciplinary process which preceded his removal, and throughout these proceedings, the applicant has maintained his strenuous denial that he consciously consumed illicit drugs and has mounted a case that the positive results from the testing of his hair could only be explained by environmental contamination."
These paragraphs indicate that Mr Zisopoulos's case on review depended, at least in part, on the factual propositions that: 1. Mr Zisopoulos had not "consciously consumed illicit drugs"; and 2. the positive hair test results "could only be explained by environmental contamination".
Murphy C then went on to quote various legislative provisions and gave non-contentious background, at [12] to [19], and noted the requirements of s 181F(1) of the Police Act as to how the IRC was required to proceed on the application before him, at [20].
Reflecting the sequential process specified in s 181F(1) to be adopted in a review under s 181E, Murphy C then considered the Police Commissioner's reasons for the decision to remove Mr Zisopoulos, as provided in s 181F(1)(a), under the heading "Respondent's Statement of Reasons". To this end, Murphy C (at [21]) quoted portions of the Police Commissioner's reasons for the removal order.

[11]

Mr Zisopoulos's evidentiary case before Murphy C

Next, under s 181F(1)(b), the IRC was required to consider the case presented by Mr Zisopoulos as to why his removal was harsh, unreasonable or unjust. Murphy C outlined that case at [22] to [58] under the heading "Case presented by the applicant".
At [23], it was noted that Mr Zisopoulos relied upon his earlier response to the Police Commissioner's notice under s 181D(3)(a). That response had included matters such as: his exemplary career up to the time of the positive drug test; how his medication accounted for the non-negative urine test result which had led to his being required to provide a hair sample; his being suspended with pay due to "a positive drug test"; and, his declining to be interviewed on legal advice and because he had not been provided with a report explaining what the drug test results meant. None of those matters were apparently in dispute.
In addition at [23], Murphy C noted that the earlier response had raised the following matters: "(6) The applicant claimed that, in his work environment, he was exposed to drugs on almost every shift. When the applicant performed the role of Internal Supervisor, there was drug residue on the supervisor's desk and on the handle of the drug safe. Similar exposure to drugs occurred when the applicant performed the role of Custody Manager and Mobile Supervisor. (7) The applicant claimed that, if environmental contamination was eliminated and the analysis result was scientifically sound, then the presence of any illegal drug in his body was because he unwittingly ingested it. (8) The level of the drugs detected in the applicant's hair sample were, according to the applicant, below 200 pg per mg, the level recommended by the Society of Hair Testing for a true positive, which is the standard that the National Association of Testing Authorities Australia ("NATA") recommends for hair testing, and should have been reported as a negative. (9) Contrary to NSW Police Regulations Section 96(5), the applicant's hair sample was not split into two portions so that the second portion could be tested for confirmation once the first portion tested positive. (10) The applicant provided the respondent with the medications he had taken over the three month period prior to him being tested, which could have affected the analysis of his hair sample. (11) The applicant also relied upon a number of scientific articles, including one authored in May 2001 by Dr John Lewis, the expert Consultant Toxicologist, whose report was relied upon by the respondent in the Statement of Reasons which accompanied the removal order. [extracts were quoted]".

[12]

The Police Commissioner's evidentiary case before Murphy C

Reflecting the third step referred to in s 181F(1)(c), Murphy C then summarised (at [59] to [119]) the case presented by the Police Commissioner in answer to Mr Zisopoulos's case, under the heading "Case presented by the respondent".
After some introductory comments, Murphy C recorded at [61] to [65] evidence from Ms Donovan and Ms Abadir concerning random drug testing at Newtown LAC which included the relevant testing of Mr Zisopoulos. It was noted that these witnesses were not required for cross-examination.
Next Murphy C recorded in more detail at [66] to [98] the evidence of experts called by the Police Commissioner in relation to the drug testing and results as follows: 1. Mr Grabowski's evidence at [66] to [75]: He was a senior forensic scientist at Forensic Sciences SA (FSSA) with experience in analytical chemistry. It was noted that Mr Grabowski gave evidence concerning FSSA and related matters including that FSSA was NATA accredited to conduct, among other things, hair testing and how he conducted the testing of the hair in this case. Murphy C quoted a portion of Mr Grabowski's original toxicology report, which was said to be relevantly the same as a subsequent replacement report, that: "1. The hair segment contained approximately: (1) 30 pg 3,4-methylenedioxymethamphetamine (MDMA) per mg (2) 120 pg methylamphetamine per mg [and other matter which were apparently prescription drugs] 2. No other drugs were detected in the hair (see appendix) 3. No drugs were detected in the external wash of the hair (see appendix)" Murphy C noted that Mr Grabowski took issue with the criticisms of his hair sample washing method using only methanol, which were contained in the report of Dr Fu of 19 June 2017 and the report of Dr Robertson of 20 June 2017, and that he also rebutted Dr Fu's statement to the effect that no metabolites of the two drugs had been detected, referring to the amphetamine he detected, although it was below the limit of reporting of 20pg/mg. Finally, Murphy C recorded that Mr Grabowski agreed with certain matters put to him in cross examination as to: 1. the absence of a statement which currently appears in toxicology reports that: "Drugs can be incorporated into hair in a number of different ways including drug use and external contamination. It should not be assumed that the presence of a drug in the hair is a result of drug use without further consultation with an expert."; 1. his not having read any scientific study which endorsed his method of washing the hair samples; and 2. when the envelope containing the applicant's hair sample arrived at FSSA, it did not contain two discrete separately packaged samples, but one sample which he then split into two portions. Murphy C did not make any findings concerning, or based on, Mr Grabowski's evidence at this stage. 1. The evidence of Ms Lindsay at [76] to [84]: She was a senior forensic scientist at FSSA and gave evidence as to accreditation and the absence of specific Australian and New Zealand standards for hair testing. Murphy C recorded that Ms Lindsay conducted further testing on Mr Zisopoulos's hair that had been received by FSSA. He quoted from her report of 18 August 2016 including her conclusion which said, inter alia: "… The levels of methylamphetamine, detected in all three segments, and 3,4-methylenedioxymethylamphetamine (MDMA), detected in segments 1 and 2, are consistent with one-off or occasional use over the corresponding timeframe or residual of prior higher use but recent external contamination cannot be excluded as the levels are too low for metabolites to be detected above the LOR. In this case the subsequent analysis of three 1 cm segments has not been able to further elucidate which of these scenarios took place due to the low levels present." Murphy C also noted that Ms Lindsay's supplementary report of 12 April 2017 advised that amphetamine was detected in both portions of the applicant's hair sample at concentrations below the limit of reporting and amphetamine was not detected in any of the washes. Murphy C quoted two passages from Ms Lindsay's cross examination. One concerned uncertainty as to whether recent external contamination could be excluded especially at levels which were too low for metabolites to be detected. The other concerned Ms Lindsay's evidence, in response to questions from Murphy C that, while she had given an opinion as to what was likely or less likely, she could not "absolutely say it was ingestion". Once again, no findings based on that evidence were made at this stage. 1. The evidence of Ms Kenneally at [85] to [88]: Ms Kenneally was a senior forensic scientist at FSSA and gave evidence as to accreditation and hair testing training and peer reviewing. It was noted that she had peer reviewed Mr Grabowski's and Ms Lindsay's testing and analysis of the hair samples and did not identify any relevant issues with either analysis. Murphy C also noted that she was not required for cross examination but made no findings based on her evidence at this stage. 2. The evidence of Mr Kostakis at [89] to [94]: He was the Manager - Toxicology at FSSA and he also gave evidence of accreditation and procedures at FSSA. Murphy C recorded that Mr Kostakis peer reviewed Mr Grabowski's replacement report and Ms Lindsay's draft toxicology report and was satisfied with the contents. It was also noted that Mr Kostakis provided a scientific paper and gave evidence as to hair sample washing techniques as well as agreeing in cross examination with a proposition from a different scientific paper that "hair samples are highly susceptible to external contamination". No findings based on this evidence were made at this stage. 3. The evidence of Mr Stockham at [95] to [98]: He was the Principal Scientist at FSSA and gave evidence as to accreditation and management of samples at FSSA. It was recorded that he had no issues with compliance with FSSA policies in this case. He was not required for cross examination. No findings based on this evidence were made at this stage.

[13]

Mr Zisopoulos's submissions

Under the heading "Submissions of the applicant", Murphy C summarised Mr Zisopoulos's submissions. At [120], he quoted pars 18 to 26 of Mr Zisopoulos's written submissions. These contended, inter alia, that his removal was harsh, unreasonable or unjust for the following reasons: "A. The hair sampling was not conducted in accordance with the procedures mandated under the statutory framework in force at the time of the events, in particular, Part 12 of the Act and Part 5 of the Police Regulation 2008. B. The scientific evidence does not establish that the Applicant ingested drugs because: (i) It involved an external wash of the hair sample which does not exclude external contamination; (ii) It relied upon reporting levels which are inconsistent with prevailing scientific standards and consensus; (iii) It did not involve efforts to identify unique metabolites (conclusive evidence of ingestion) in the hair sample. C. The internal investigation did not seek to exclude an explanation of external contamination of the hair sample, including whether: (i) significant factors affecting the likelihood of external contamination of persons performing the role of general duties police officers were properly identified and sufficiently scrutinized; (ii) the testing procedures did not involve necessary steps to ensure the validation and confirmation of the original results. D. The Respondent was not sufficiently informed of, and did not consider, the limited conclusions which could be drawn from the procedures and results identified above in A, B and C."
The submissions elaborating on those contentions were then summarised at [121] to [130].
Murphy C recorded at [131] the following submissions concerning the cause of the drug test results: "It was then put that the overwhelming consensus of the experts was that the test results are consistent with external contamination. Professor Fu, Dr Robertson, Mr Farrar, Ms Lindsay and Mr Kostakis were all of the opinion that the results do not exclude contamination as an explanation. The only witness who took an opposing view was Dr Lewis." It can be noted that the test of whether fact A is "consistent with", or "cannot be excluded as an explanation for", observation X, is a very low one. It would, in the ordinary sense of those words, merely require non-contradiction between A and X or A being a potential, even if very unlikely, cause of X, respectively. That submission does not suggest that the evidence referred to was said to establish on the balance of probabilities that contamination was the cause of the test results.

[14]

The Police Commissioner's submissions

When outlining the Police Commissioner's submissions under the heading "Submissions of the respondent", Murphy C, at [134] limited himself to quoting passages from the Police Commissioner's written submissions, including: "6. In the present case, Mr Zisopoulos' case seeks to present an alternative hypothesis in an attempt to shift the onus to the Respondent. The hypothesis that has sought to be presented is that his positive hair test results may be explained by exposure to particular drugs in the workplace. For the reasons that follow, this contention amounts to mere speculation or surmise; it posits a possible state of affairs, not an actual or probable state of affairs… … 9. By contrast, the Respondent's case is based on a solid foundation: a. Mr Zisopoulos' hair sample returned a positive reading for MDMA, methylamphetamine and amphetamine. b. There is agreement amongst the experts that voluntary consumption or ingestion will lead to a positive hair test result. Once MDMA or methylamphetamine are consumed, they will collect in the blood and later be excreted. The drug will be deposited in hair follicles either directly through the blood supply or from sweat or sebum. c. The level of methylamphetamine recorded in Mr Zisopoulos' hair sample was not far removed from the "cut-off" for chronic use and was consistent with intentional occasional (or one-off) ingestion. d. The concentration of amphetamine recorded in the hair sample is consistent with the substance being present as a metabolite of methylamphetamine (as opposed to a drug in its own right). e. The shifts worked by Mr Zisopoulos in the months before the hair sample testing indicated only a few instances where Mr Zisopoulos had the opportunity to be exposed to those substances in the performance of his duties. f. There is general agreement that normal hygiene, including washing hair with water and shampoo, will remove traces of drugs from hair. Considering that any residue within Mr Zisopoulos' work environment would have been "infinitesimal" to begin with, it could easily be said that any contamination would have been washed out through normal hygiene. g. Mr Zisopoulos self-reported good hygiene practices, including daily showering, which would assist to remove any substances on the surface of hair strands. h. The wash solution (in which the hair sample was "washed" prior to testing to remove contamination), when tested, did not detect any MDMA, methylamphetamine nor amphetamine. i. No other drugs were detected in the hair tests, even though other drugs were brought into the station at which Mr Zisopoulos was based. 10. There was nothing harsh, unjust or unreasonable in the Respondent's determination."

[15]

Mr Zisopoulos's submissions in reply

After referring at [136] to [138] to some submissions in reply which covered much the same ground as the original submissions, Murphy C recorded the following, under the heading "Applicant's submissions in reply": "139 It was also submitted that, contrary to the position put by the respondent, it was not incumbent upon the applicant to prove actual contamination but, rather, the applicant had established that the risk of contamination was real and not a fanciful or unmeritorious claim."
This submission was difficult to reconcile with what Murphy C had recorded at [11] namely that: "Throughout … throughout these proceedings, the applicant has maintained his strenuous denial that he consciously consumed illicit drugs and has mounted a case that the positive results from the testing of his hair could only be explained by environmental contamination."
Perhaps in light of the submission recorded at [139], Murphy C's reasons then contained a section under the heading "Onus of proof".

[16]

Onus of proof

The section under the heading "Onus of proof" consisted of [140] to [142]. At [140], Murphy C stated that s 181F(2) of the Police Act "makes it clear that [Mr Zisopoulos] bears the burden of establishing that his removal from the NSWPF was harsh, unreasonable or unjust".
He then quoted at [141] a lengthy passage from the decision of the Full Bench of the IRC in Tredinnick v Commissioner of Police [2016] NSWIRComm 14.
Murphy C's conclusion on the topic of onus of proof was at [142] as follows: "It will become apparent from what follows that, in adopting the approach of the Full Bench in Tredinnick, I am satisfied that the applicant has produced sufficient evidence to cast doubt upon the finding by the respondent that the applicant consumed prohibited drugs so that the evidentiary burden of establishing that fact has shifted to the respondent."
From this passage, it is clear that on Murphy C's understanding of the review before him it involved, at least, the Police Commissioner having a burden of establishing "that fact", namely that Mr Zisopoulos consumed prohibited drugs. This observation in [142] sheds light on Murphy C's later reasoning at [187] to [190].

[17]

Murphy C's consideration and findings

The next sections in the reasons contain Murphy C's consideration and findings concerning the bases upon which Mr Zisopoulos put his case, under two sections headed: 1. "Legislative requirements regarding the taking of hair samples" - [143] to [149]; and 2. "Was the removal of the applicant harsh, unreasonable or unjust?" - [150] to [190].

[18]

"Legislative requirements regarding the taking of hair samples"

In this section of his reasons, Murphy C made findings concerning the certificate of appointment of Ms Abadir to take the hair sample, at [143], and the timing and effect of the sample being divided into two approximately equal portions, at [145] and [148]. Based on those findings and the application of the relevant statutory provisions, Murphy C expressly rejected Mr Zisopoulos's submissions that: 1. Ms Abadir was not authorised to conduct hair sampling of police officers: at [143]; 2. the testing of Mr Zisopoulos's hair sample was rendered invalid due to Ms Abadir's apparent failure to follow strictly the collection process set out in cl 92 of the Police Regulation 2008: at [145]; and 3. the test results were invalid as a consequence of non-compliance with cl 92: at [149].
These conclusions have not been challenged by Mr Zisopoulos in any subsequent proceedings.

[19]

"Was the removal of the applicant harsh, unreasonable or unjust?"

Murphy C commenced this part of his analysis by considering the Police Commissioner's reasons.

[20]

The Police Commissioner's reasons

It was noted at [150] that, in essence, the reason for the removal was that the Police Commissioner concluded that, despite denials, Mr Zisopoulos had voluntarily consumed prohibited drugs, namely, MDMA and methylamphetamine.
At [151], it was recorded that the review by the IRC was conducted on the undisputed basis that the Police Commissioner "has the absolute right to remove from the NSWPF any officer who voluntarily consumes prohibited drugs". This confirms that Mr Zisopoulos was not contending that, even if he had voluntarily consumed the drugs, his removal was otherwise harsh, unreasonable or unjust.
Murphy C went on to observe, however, that the Police Commissioner "also has the responsibility to ensure that the evidence upon which such a removal is based is sufficiently probative to support such decision". This proposition is no doubt correct, to the extent that it reflects the observation in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (Byrne) at 465; [1995] HCA 24 that: "the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted". (underlining added)
In other words, Murphy C could have found that the removal was unreasonable if the Police Commissioner's conclusion that Mr Zisopoulos had voluntarily consumed illicit drugs was not reasonably open on the material before the Police Commissioner, if that had been the case put forward by Mr Zisopoulos in the s 181E(1) review.
At [152] to [155], Murphy C referred to some of the material before the Police Commissioner but, at [156], simply noted that "despite the expert agreement regarding external contamination, [the Police Commissioner] preferred the evidence of Dr Lewis and Ms Lindsay that the applicant's test results were ascribable to one-off or occasional use of the two prohibited drugs".
Significantly, Murphy C did not find, explicitly or implicitly, that the Police Commissioner's conclusion was not open on the material before the Police Commissioner. This is not surprising since: 1. there was expert evidence supporting that conclusion from Dr Lewis, inter alios, and the "expert agreement regarding external contamination" referred to by Murphy C was only, for example, that recent external contamination "cannot be completely excluded" (in Ms Lindsay's words quoted by Murphy C at [153]); and 2. Mr Zisopoulos did not put his case on the basis that the removal was harsh, unreasonable or unjust because the Police Commissioner's conclusion was not open on the material before the Police Commissioner or even on the material before the IRC.

[21]

Exposure to drugs at work on the material before the IRC

Next, Murphy C considered Mr Zisopoulos's exposure to drugs at work, at [157] to [162], in light of the material before the IRC.
Murphy C rejected the Police Commissioner's submission that the IRC would need to be satisfied that Mr Zisopoulos came into actual contact rather than possible contact with the two prohibited drugs. In this regard, Murphy C made the positive finding that he was: "satisfied on the evidence before the Commission that there were a number of occasions in the period leading up to the taking of the applicant's hair sample when it was likely that the applicant came into contact with the two substances."
It can be noted that Murphy C was apparently not prepared to find, on the material before him, that Mr Zisopoulos had actually come into contact with the illicit drugs, only that it was "likely" that he had. The relevance of this latter finding was not explained by Murphy C nor did he explain how contamination could occur without actual, as opposed to likely, contact.

[22]

The washing procedure on the material before the IRC

Murphy C's finding in relation to the "strongly disputed issue" before him as to the effectiveness or otherwise of the washing of the hair sample in the present case is, at [163], as follows: "What emerges from the evidence before the Commission is that there is no consensus amongst the scientific community as to the most effective method for removing external contamination from hair samples."
In this context, the opinion of Ms Lindsay that "recent external contamination cannot be excluded" was once again quoted at [164].

[23]

"The positive test results - voluntary use or external contamination?" on the material before the IRC

At [165] to [167], Murphy C provided another summary of expert scientific evidence before him from some, but not all, of the expert witnesses. In doing so, he did not make any findings based on that evidence nor did he give any explanation as to why he preferred some of the expert's opinions over other experts' opinions.
Murphy C then said at [168] that he would deal with each of the matters set out in the summary of the Police Commissioner's case, as contained in the written submissions.
In doing so, Murphy C made the following findings or expressly stated that he accepted certain evidence. At [169], he explicitly said that he accepted: "the evidence of Dr Robertson that the low concentration of methylamphetamine present in the applicant's hair was consistent with either occasional use and/or environmental contamination and that it cannot be reliably differentiated which of these alternative scenarios is more or less likely than the other and that environmental contamination cannot be excluded as a possibility due to the low concentration of the drug present in the hair (paragraphs 37 and 39). Dr Fu gave evidence to similar effect (paragraph 46) as did Mr Farrar (paragraphs 54 and 57)".
At [170] (and similarly at [178] and [180]), Murphy C stated, without explaining why, that he accepted the following expert opinions: "• environmental contamination was just as likely as occasional use (Dr Robertson, paragraph 37); • environmental contamination cannot be excluded as a possibility (Dr Robertson, paragraph 39); • environmental contamination is the most likely cause (Dr Fu, paragraph 46); • environmental contamination cannot be ruled out (Dr Fu, paragraphs 47 and 49); • the available information does not, on the balance of probabilities, support the allegation of consumption (Mr Farrar, paragraph 54); • there is no evidence that this substance was ingested (Mr Farrar, paragraphs 55 and 57); • recent external contamination cannot be excluded (Ms Lindsay, paragraphs 81-84); and • environmental exposure was an unlikely but possible explanation (Dr Lewis, paragraph 119)".
Murphy C's stated acceptance of all of these opinions presents a difficulty. The opinions which are said to be accepted are in some cases manifestly inconsistent with one another and, in other cases, the opinions that environmental contamination "cannot be ruled out" or "cannot be excluded" are implicitly inconsistent with environmental contamination being "the most likely cause". Consequently, purporting to accept all of them involves illogicality and might be characterised as unreasonable, in the sense of being inconsistent with rational processes. In Murphy C's reasons, there was no express or implied attempt to explain why some expert opinions were rejected and others accepted, or to reconcile the opinions or to explain how all of the opinions he said he accepted could be accepted at the same time without illogicality.

[24]

"The evidentiary burden"

After quoting passages from both the Full Bench's decision and the first instance decision in Tredinnick, at [181] to [185], and pointing out how that case was different from the present case at [185], Murphy C turned to the circumstances of Mr Zisopoulos's case at [186].
At [186], Murphy C once again summarised some of the expert opinions, which, as has been noted, were far from consistent with one another, concerning what he described as Mr Zisopoulos's "innocent explanation for his positive test result" in the following way: "'feasible'. 'unlikely' but not 'impossible' according to Dr Lewis; 'cannot be excluded' according to Ms Lindsay; equally as likely as occasional use of the drugs, according to Dr Robertson; and the 'most likely cause' according to Dr Fu. Mr Farrar opined that the available information did not support the allegation of consumption of the drugs."
Murphy C then reasoned as follows, in relation to the parties' respective cases and evidence presented to the IRC: 1. Mr Zisopoulos had led "sufficient evidence to cast doubt on the [Police Commissioner's] finding of misconduct": [187]; 2. "the expert evidence weighs heavily in favour of [Mr Zisopoulos's] explanation of environmental contamination as the cause of the positive test result of his hair sample": [188]; 3. the Police Commissioner "has not satisfied the evidentiary burden of proving, on the balance of probabilities, but adopting the approach to the assessment of the evidence espoused by Dixon J in Briginshaw v Briginshaw ([1938] 60 CLR 336), that the applicant used prohibited drugs, namely, MDMA and methylamphetamine": [189]; and 4. "It follows that I find that the removal was harsh, unreasonable and unjust": [190].
As a consequence, Murphy C ordered that Mr Zisopoulos be reinstated.
The reasoning in [187] to [190], when considered in the context of the reasons as a whole, causes me substantial concern. Up to this point in the reasons, Murphy C had not made a finding that the positive test results were due to contamination not ingestion, which was a relevant and important issue in the case presented by Mr Zisopoulos, as Murphy C identified at [173]. Further, the expert opinions referred to at [186] that contamination was a "feasible", or an "'unlikely' but not 'impossible'" explanation for the positive drug test results, or was an explanation that "cannot be excluded", or was "equally as likely as occasional use of the drugs", do not provide a sufficient foundation upon which Mr Zisopoulos could establish "his strenuous denial that he consciously consumed illicit drugs and … a case that the positive results from the testing of his hair could only be explained by environmental contamination" referred to at [11]. Moreover, Murphy C did not make any explicit finding at [186] or [188] in this regard based on the evidence of Dr Fu and Mr Farrar. Nor did he explain, even at this point, whether or why he rejected the other expert opinions which were to the contrary or were not entirely consistent with the opinions of Dr Fu and Mr Farrar. On a fair reading of the reasons, it cannot be concluded that he made an implicit finding in that regard.

[25]

Was Murphy C's approach contrary to s 181F(2)

Section 181F of the Police Act provides for the procedure to be followed when conducting a review under s 181E. Some of the matters in s 181F(1)(a), (b) and (c) have been referred to already. Subsection (2) provides: "(2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary."
The use of the words "the burden of establishing" in the context of proceedings indicates that what is being referred to is "the onus of proof", to use the words of the plurality in Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [76] where it was held: "A claimant under s 181E of the Police Act bears the onus of proving that a dismissal was harsh, unreasonable or unjust [under s 181F(2)]. There is no equivalent provision in the IR Act, which in general terms empowers the IR Commission to determine its own procedures. In the Court of Appeal, Tobias AJA observed that in practice the IR Commission usually places the onus of proof on the applicant for relief, although the Full Bench has held that the employer must establish misconduct, where this is alleged in a case of dismissal. …". (footnotes omitted)
Thus, s 181F(2) has the effect that the practice which has been held to apply in relation to the review of the dismissal of an employee on the ground that the dismissal was harsh, unreasonable or unjust under s 84(1) of the Industrial Relations Act does not apply in applications under s 181E of the Police Act. In relation to applications under s 84(1), the Full Bench held in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463-464: "The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. …".

[26]

Did Murphy C's approach involve jurisdictional error?

In light of s 181F(2) and the case presented by Mr Zisopoulos under s 181F(1)(b), the question was never whether the Police Commissioner had or had not satisfied a burden (however described) of proving, on the balance of probabilities and bearing in mind the Briginshaw considerations, that Mr Zisopoulos had engaged in misconduct by using prohibited drugs, as Murphy C's reasons assumed in [142] and [189]. Because of his error in the application of s 181F(2), Murphy C identified a wrong issue and asked himself the wrong question. He also failed to exercise the jurisdiction conferred on the IRC by Div 1C of Pt 9 of the Police Act in accordance with those statutory provisions or exceeded the authority or powers given by those provisions. Accordingly, Murphy C's decision was affected by jurisdictional error: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81].
On this basis, Murphy C's decision is liable to be set aside.

[27]

The Full Bench's decision

The Full Bench granted leave to appeal on a number of grounds but dismissed the appeal from Murphy C's decision: Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073. The questions concerning whether Murphy C had failed properly to apply s 181F(2) of the Police Act were the subject of the grant of leave. The Full Bench also granted leave on the question whether Murphy C erred in not considering the public interest aspect of the decision to remove Mr Zisopoulos, as required by s 181F(3)(b). The appeal on this ground was rejected. No review has been sought in that regard. Leave was refused on other grounds concerning the adequacy of the evidence before the IRC at first instance.
The Full Bench, like Murphy C, relied on and explained the earlier decision in Tredinnick. Having regard to that decision, the Full Bench in the present case held at [23]: "Thus unlike unfair dismissal proceedings, concerned with termination for serious misconduct in which the employer is required to prove the fact of misconduct, the Commissioner of Police is not required to do so - unless, as will be seen, an applicant succeeds in shifting the evidentiary burden. The obligation of the Commissioner extends no higher than answering the applicant's case. The emphasised passages [from Tredinnick] in (1) and (2) at make that proposition clear. The emphasised sentence in (3) identifies the burden imposed on the applicant for review. It should be noted that the burden on the appellant [sic, applicant] is to demonstrate "the flaw or inadequacy in [the appellant's] [sic, the Police Commissioner's] reasons". That, as the Full Bench went on to observe, may be done in a number of ways."
The first sentence of this passage contrasts the position of an employer in a review of a dismissal under s 84(1) of the IR Act with the position of the Police Commissioner in a review of a removal under s 181E(1) of the Police Act. As explained in Wang, which has been referred to above, in a s 84(1) review, if the employee has been dismissed for serious misconduct involving criminal activity, the employer must establish, to the reasonable satisfaction of the IRC, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred on the balance of probabilities bearing in mind the Briginshaw considerations: Wang at 463-464. The Full Bench then said that the Police Commissioner in a s 181E(1) review, was "not required to do so - unless, as will be seen, an applicant succeeds in shifting the evidentiary burden".

[28]

Conclusion and orders

Although the orders of Murphy C are liable to be set aside for jurisdictional error, it was appropriate for the Police Commissioner to exhaust his right of appeal to the Full Bench before seeking judicial review in this Court. Further, Mr Zisopoulos did not oppose an extension being granted. In these circumstances, the time in which the Police Commission may seek review of Murphy C's orders should be extended to the date of filing of the summons in this matter.
There do not appear to me to be any discretionary reasons why relief should not be granted in the present case, and I did not understand that Mr Zisopoulos contended that there were any substantial grounds on which relief of the nature sought in the summons should not be ordered.
Although the Police Commissioner has sought declaratory relief in prayer 1 of the summons, it does not appear to me to be necessary since it in effect merely repeats the terms of s 181F(2) and otherwise it is more appropriately dealt with by way of the reasons for judgment which explain the operation of s 181F(2) of the Police Act in the present case.
The parties have not made submissions on costs. Consequently, I would not propose to make any order in relation to costs at this stage.
Accordingly, the orders that the Court should make are: 1. The time for filing the application for judicial review in respect of the orders of Murphy C made on 7 March 2018 in proceedings 2016/00384458 in the Industrial Relations Commission of New South Wales is extended to 22 November 2019. 2. Proceedings 2018/00084006 in the Industrial Relations Commission of New South Wales are removed into this Court and the orders of the Full Bench of the Industrial Relations Commission made on 4 October 2019 in those proceedings are quashed. 3. Proceedings 2016/00384458 in the Industrial Relations Commission of New South Wales are removed into this Court and the orders of Murphy C made on 7 March 2018 in those proceedings are quashed. 4. Proceedings 2016/00384458 are remitted to the Industrial Relations Commission to be heard and determined in accordance with law.

[29]

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Statutory framework, legislative history and case law

It is convenient at this point to set out the relevant sections of the Act and to note their legislative history and relevant case law.
Part 9 of the Act, comprising ss 173-187, is entitled "Management of conduct within NSW Police Force". Part 9 comprises 8 divisions. It has been the subject of consideration by the High Court in Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 (Eaton) and, most recently, by this Court in Cottle v NSW Commissioner of Police; Police Association of New South Wales v Commissioner of Police (NSW Police Force) [2020] NSWCA 159 (Cottle).
Mr Kirk SC, who appeared with Mr Shariff for the Police Commissioner, emphasised that Divs 1B and 1C of Pt 9 were introduced respectively by the Police Legislation Further Amendment Act 1996 (NSW) (the 1996 Act) and the Police Service Amendment Act 1997 (NSW) (the 1997 Act).
The 1996 Act followed the "Interim report: immediate measures for the reform of the Police Service of New South Wales" of the Wood Royal Commission into the New South Wales Police Service, but predated the Royal Commission's final report. The 1996 Act introduced s 181D into the Act, providing for the Police Commissioner summarily to remove police officers in whom the Police Commissioner did not have confidence. The 1996 Act also introduced Pt 10A into the Act, which was entitled "Integrity testing of police officers" and provided for the conducting by the Police Commissioner of integrity testing programs and provision for the testing of police officers for alcohol and prohibited drugs.
The 1997 Act provided for the review by the IRC of decisions of the Police Commissioner removing a police officer by order under s 181D of the Act. In the Second Reading Speech, the then Police Minister said (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 June 1997 at 10562-10563): "The legislation before the House arises from the royal commission's final report. It deals with a single issue, that is, the industrial rights flowing from the termination of employment of police officers under the provisions commonly referred to as commissioner's confidence. If a single issue had to be isolated as crucial to reform of the Police Service it would have to be the ability of the commissioner to divest the service of those who fail to meet it standards. Without the means to quickly and efficiently terminate the employment of individuals who cannot or will not comply with minimum standards of integrity, conduct and competence, it is doubtful that we will ever reap the full benefits of the reform process. The old system clearly did not work. It was cumbersome, protracted and legalistic. It effectively meant that the corrupt and the hopeless could seek sanctuary and remain within the Police Service. The system required the proving of departmental charges before the Police Tribunal. After the tribunal had made a recommendation, action was taken on the basis of its findings. The action was then subject to appeal to the Government and Related Employees Appeal Tribunal, GREAT, which routinely put dismissed officers back into the service. The system could be manipulated and beaten. Corrupt officers knew that, and took comfort from it[.] Basically, the system sheltered those who least deserved it, and failed the people of New South Wales, who looked to the Police Service to be a model of honesty, integrity and community service. In November 1996 this Parliament threw out the old system. Responding to the Immediate Measures Interim Report of the Royal Commission, section 181D was introduced into the Police Service Act. For the first time the Commissioner of Police was given a fast and effective way to rid the service of those who had forfeited the right to be police officers in this State. Of course, section 181B had previously allowed the removal of officers suspected of criminal or corrupt behaviour, but only in the limited circumstances of information arising from the royal commission. Section 181D extended Commissioner Ryan's power to ensure he is not only the most powerful police commissioner in the history of this State but also in Australia. The Carr Government is determined to ensure that Commissioner Ryan's Police Service contains only officers in whom he has confidence. That is why the current bill only affects the processes after the police officer has been removed from the Police Service. Commissioner Ryan's power to remove corrupt and inept officers remains unaffected. After the introduction of section 181D, the Premier and I, after consultation with caucus, agreed the post-dismissal process - the appeal rights, if you like - should be revisited after the final report of the royal commission was delivered." The Minister noted that Division 1C struck: "…a balance between the spirit of the royal commission recommendations and existing industrial law and practice in New South Wales. The result is a process that retains the commissioner's power to ensure that the service is able to quickly free itself of those who fail to live up to professional standards of integrity, competence and behaviour, but also protects against injustice[.] It is that simple - the bill is anti-corruption but also anti-injustice. The bill accommodates the unique nature of policing, overcomes the problems of past appeal processes, and puts the police officer on a similar footing to other employees under the Industrial Relations Act. … The bill provides police officers with the right to go to the Industrial Relations Commission to seek review of a dismissal decision. Again, whilst similar to the protection provided to other workers under the unfair dismissal provisions of the Industrial Relations Act, it is not identical as there are some important differences .."

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