What is it to "consider" material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf. Jeffs v. New Zealand Dairy Production and Marketing Board (1967) 1 AC 551 at 568-569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to "consider" a report, Laskin J, speaking for the Supreme Court of Canada, said: "Certainly, the board must have the report before it": Walters v Essex County Board of Education (1973) 38 DLR (3d) 693 at 697. When Gibbs CJ in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 30-31 conceded that the Minister, in the circumstances of that case, was not obliged "to read for himself all the relevant papers", and that it "would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department", he also made it plain that the summary must "bring to his attention" all material facts "which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial". That was in the context of legislation expressly empowering the Minister, as Mason J pointed out at 46, to delegate his powers and to refer matters to another authority.
In Minister for Aboriginal Affairs v Peko-Wallsend Limited, Mason J (at 44-45) reasoned from an obligation, implicit in the subject-matter scope and purpose of an Act, to take account of detriment to individuals, that the Minister's "consideration of that factor must be based on the most recent and accurate information that the Minister has at hand". He then said that this conclusion was "all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to new hazard or new jeopardy." And he went on to refer to specific provision made by the statute to ensure that the views of affected persons should be brought to the Minister's attention. Similarly here, the Act provides a mechanism by which the representations must go before the Minister himself. Not by implication, but expressly, it requires the Minister to consider those representations. As in the case Mason J was considering, the decision in question is one which may adversely affect interests and legitimate expectations - indeed it may do so even more directly - and the inference that the representations cannot be left out of account, to be replaced by an assistant's vague evaluation of the extent to which appropriate conclusions about them are contained in a report, is at least equally compelling.
If what I have written seems to impose a heavy burden on the Minister, it is necessary to emphasise that Parliament imposed this burden. Doubtless it did so because of the very great power to override the major interests and rights of citizens, and also governmental agencies, which is involved. Such an authority was not to be conferred on a public servant or ministerial assistant. It is a vast power, which Parliament plainly intended to be exercised at the highest level, with the restraint that great responsibility imposes. That indeed restraint was very much part of the legislative intention is made clear by ss. 7 and 13. The special nature of the power, and the severe consequences of its application, also suggest that its exercise would not have been seen as a common or ordinary task …
[142] Burchett J noted that the Minister could not delegate his function and duty to consider certain reports and representations under the relevant provisions of the statute in question. Here, of course, the Commissioner may delegate to another member of NSW Police any of the functions conferred or imposed on the Commissioner by or under the Police Act or any other Act, other than the power of delegation: see s 31 of the Police Act . I note there was no evidence of the Commissioner having delegated his function under s 181D(3)(c) to consider the applicant's written submissions and, accordingly, I consider there was an obligation on the Commissioner to have personally undertaken that function. If such delegation had taken place it would require clear evidence that such was the case. Because the Commissioner may have requested an officer or officers to carry out an investigation of the allegations against an officer who is the subject of a Notice, it does not follow that it can, therefore, be inferred that the Commissioner delegated the function of considering any written submission. The language in s 181D(3)(c) is clear; the responsibility lies with the Commissioner personally to consider the officer's written submission and in the absence of that personal consideration there would need to be clear proof of delegation otherwise it is open to the Commission to find procedural unfairness.
[143] Further, the obligation on the Commissioner is to consider all the most recent and accurate information and materials available both in favour of and against the officer and he must "obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances." It would not be unreasonable for the Commissioner to rely on a summary of the relevant facts furnished by those to whom he has directed to undertake such a task, but the summary must bring to the Commissioner's attention all material facts "which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial". It would also not be unreasonable for the Commissioner to place a strong reliance on the findings of fact and law of the relevant court in coming to any decision to remove a police officer.
145 No contention has been filed by the appellant seeking leave to have the Full Bench reconsider these issues laid down by previous Full Benches in Bigg, Newton and Little (see Lynch v G C Schmids Pty Ltd (1955) 59 IR 205 at 208-9; Clutha Development Pty Ltd v Barry (1989) 18 NSWLR 86 (at 99-100); National Hire Pty Ltd v Howard (2003) 126 IR 240). Those decisions insofar as they deal with the issue of the Commissioner's obligation to consider the officer's response and his duties in that regard are accepted as laying down the proper approach to the requirements set out in s 181D(3)(c). The history of the Commissioner's Confidence provisions indicates that the legislature, with some particularity, laid down the process to be adopted by the Commissioner and the process to be adopted on a review in the Commission, because of the importance of the issue of the Commissioner's Confidence on the one hand and the removal of the police officer on the other. These provisions were to replace a myriad of other avenues of reconsideration, appeal and review and following the Royal Commission into the Police Service, there was a need to lay down with clarity the powers of the Commissioner and the rights of the officer and the course to be followed on a review in the Commission. The removal of an officer was elevated to a consideration of the Commissioner's confidence and thus the role of the Commissioner and his obligations in exercising the power of removal are at the centre of the entire process, including the review. In those circumstances it is not surprising that the legislature required considerable input from the Commissioner before exercising this unusual power of removal. That is why the Full Bench in Little (No2) referred to the need for a careful and punctilious regard to correct procedures by the Commissioner and that it was open to investigate whether the decision to remove was "uninformed". Even in the wider context of s 88 of the Industrial Relations Act, the Full Bench in Humphries v Cootamundra Ex-Services and Citizens' Memorial Club Ltd [2003] 128 IR 37 stated (at ]118]) that the obligation upon parties to ensure procedural fairness was not a hollow obligation and was not to be construed as having only technical significance. The position is "a fortiori" in relation to the Commissioner's Confidence provisions. The adoption of the Commissioner's submission in relation to process would indeed render hollow the protection afforded officers cited for removal. Those submissions should be rejected.
146 For the foregoing reasons, I am unable to accept that the obligation to "take into consideration" any response of the officer could be discharged by a cursory glance at the response or a flick through the pages to obtain some idea of the thrust of the submission. The administrative law approach found in cases such as Ipec and Peko-Wallsend has no less utility as a guide to the meaning of the obligation to consider the submission as required by s 181D merely because it arises in that context: to "consider" is a normal English word and Marks J referred to Oxford Dictionary definitions of it so as to require the Commissioner to look closely at, examine and contemplate and reflect upon the material in the submission. The Macquarie Dictionary (3rd ed) defines the word "consider" to include the following: to contemplate mentally; meditate or reflect on .... to think; suppose; to pay attention to; regard ... to view attentively, or scrutinise ... to think deliberately or carefully; reflect. Taking the normal English meaning of the word "consider" leads to the very same requirements of consideration referred to in the administrative law cases even though the context is different.
147 In Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, Gummow J referred to the statutory requirement that the Minister consider the findings and recommendations of a Commission of Inquiry as involving the Minister giving "proper, genuine and realistic consideration" to those matters. There are, therefore, a variety of circumstances where the duty to "consider" a particular matter will arise yet that requirement will be judged for its adequacy by the application of similar tests. In the context of the Commissioner's Confidence provisions and the review of his decisions under those provisions, the Commission is to consider the matter afresh to determine whether the removal was harsh, unreasonable or unjust. Adverse findings against the Commissioner as to the process adopted in the removal, including the extent to which any consideration was given to the officer's response to the statutory Notice, go directly to whether or not the decision may be found to be "unreasonable". The fact that in another context such an inquiry may go to validity is not to the point. The same approach is directly relevant to the task assigned to the Commission by the review provisions of the Police Act. There is nothing unusual about the same facts giving rise to one or more causes of action (Incitec Ltd and anor v Industrial Court of New South Wales & ors (1992) 45 IR 158): the failure of the Commissioner to properly consider or to consider at all an officer's response to the statutory notice may give rise to proceedings in the Supreme Court challenging the validity of the decision or in seeking a declaration in the Industrial Court pursuant to s 154 or on the other hand, may be properly considered in determining whether the removal of an officer was unreasonable.
148 Given that the process adopted by the Commissioner in the removal of a police officer is a proper ground for inquiry by the Commission on a review, being relevant at least to the issue of unreasonableness, it should be immediately stated that, in pursuing such a course, careful consideration has to be given to how such a challenge is dealt with in the Commission absent separate proceedings in the Supreme Court or in the Industrial Court pursuant to s 154.
149 In dealing with the duty to "consider" in a statutory provision, some attention has been directed to the judgment of the Court of Appeal in Anderson v Director General of the Department of Environmental and Climate Change and Anor [2008] NSWCA 337. That case involved judicial review of a first instance decision by Lloyd J of the Land and Environment Court. One challenge before the court alleged that the first respondent had failed to consider a relevant consideration by failing to give "proper genuine and realistic consideration" to a particular subject of significance to the case. That term had originated in the decision of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 and had been adopted by Mason P in Weal v Bathurst City Council [2000] NSWCA 88. In Weal, Giles JA (with whom Priestley JA agreed) discussed the issue in the following terms:
Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration .
150 Tobias JJ (with whom Spigelman CJ, Macfarlan JA concurred) noted that the formulation was vague and imprecise and had the potential to "invite impermissible merits review" (at [53]). In Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, Basten JA had observed that the expression should not be turned into an assessment of the adequacy of the consideration accorded in a particular matter. Tobias JA supported the observations of Basten JA that "epithets such as 'proper', 'genuine' and 'realistic'" consideration could be understood to qualify the statutory terminology in a matter inconsistent with accepted principles in relation to judicial review and risked an assessment of the nature of the consideration that would encourage a slide into impermissible merit review. The further discussion of this matter centered upon the need to avoid, on judicial review, a formulation of words or the provision of a test that led the court to consider merits rather than to conduct judicial review.
151 The review process committed to this Commission under the Commissioner's Confidence provisions of the Police Act is not a process involving the Commission in judicial review - that position has been recognised in a number of Full Bench cases to which reference has already been made. When the Commission undertakes a review of a Commissioner's decision to remove an officer from the Police Force, it is conducting a merit review and one that involves a consideration of both the process as well as the facts and merits of the case and all those matters are to be considered in deciding whether or not the decision challenged was harsh, unreasonable or unjust. That task is, therefore, a different task to that undertaken by the Court of Appeal in Anderson when that court was conducting judicial review of an administrative decision and it was in that context that the court stated that a course should not be followed on judicial review that permitted an impermissible slide into merit consideration: but when a Tribunal, such as the Commission on review of an order for the removal of an officer from the Police force, is faced with a challenge as to the adequacy of the consideration given by the Commissioner pursuant to s 181D(3)(c), the Commission then embarks upon a merit consideration and one that is entirely appropriate to undertake having regard to the legislative scheme of review. For those reasons, the decision of the Court of Appeal in Anderson provides no guidance to this Commission in determining the nature and content of its role when determining a challenge to the process adopted by the Commissioner and the extent to which the Commissioner gave consideration to the officer's response under s 181D(3)(a).
Ground 5A
152 Appeal ground 5A argues that his Honour incorrectly approached his duty by determining the matter on the basis of whether there was compliance with mandatory legislative requirements when, and notwithstanding his Honour's decision, issues of validity were reserved to the Supreme Court, a superior court of the record and not the Commission, being a tribunal. The submissions for the appellant on this matter suggest that the substance of what was done by his Honour was to deal with the legal validity of the Decision for Removal made by the Commissioner when he had no power to do so. This is a variation of grounds previously considered.
153 This ground can be briefly disposed of. On the analysis of his Honour's approach already conducted, it can be seen that his Honour informed himself of the authorities on process in the course of a review conducted in accordance with the Commissioner's Confidence provision laid down by the Police Act and what was involved in taking into consideration the officer's response. His Honour specifically disavowed dealing with questions of nullity and as explained above, looked at questions of process for the purposes of deciding whether or not the removal of the officer was unfair. His Honour's approach, when properly understood, is in accord with the course laid down by the Full Benches in Little (No 2) in Newton and by Boland J in Hosemans (No 2): he cited both cases as guiding his consideration of the case To the extent that it is put for the appellant that it is no part of a Review under the Commissioner's Confidence provisions of the Police Act to investigate the quality of the Commissioner's consideration of the applicant's written submission, that submission cannot be accepted. For the reasons already set out by the Full Benches and at first instance in Newton and in Hosemans (No2), so long as that matter is able to be dealt with as part of an analysis of whether the removal was harsh, unreasonable or unjust, then the Commission is clearly empowered to undertake such an investigation.
154 Such an approach does not encroach upon the protection provided by s 181H of the Police Act whereby the Commissioner and any member of the Commissioner's Advisory Panel is not compellable to give evidence in relation to the Commissioner's functions under s 181D in proceedings before the Commission. The exercise that is undertaken is no more than a consideration of whether or not it was possible for the Commissioner to consider the detailed written response of the officer and whether or not the Commission acted unreasonably.
155 These provisions have to be understood against their history, set out in length in Peterson J's judgment in Newton, and how the avenues for removing a police officer had been considerably refined and narrowed following the Royal Commission into the Police Service. The purpose of the Commissioner's Confidence provisions was to allow the Commissioner to move relatively quickly to remove an officer in whom he no longer had confidence without being hamstrung by the myriad of appeals that would effectively leave the officer in the Service for a very long time before the entire process had run its course. There is, unlike some other administrative decision-making processes, statutory guidance given as to how the decision for removal is to be made. The legislature has determined that there be a specific mechanism for the removal of a police officer under the Commissioner's Confidence provisions of the Police Act and they stand in stark contrast to the obligations of general employers in relation to the dismissal of their employees. It may be accepted that the operation of s 181H is designed to avoid Commission proceedings on review becoming entangled in an analysis of the actual thought process of the Commissioner in making the decision to remove an officer from the Service but that same provision does serve to indicate the central role played by the Commissioner, albeit with the assistance of the Advisory Panel. There is nothing in his Honour's approach to suggest he tried to understand the thought processes of the Commissioner in having the statutory Notice framed nor in the giving of his reasons for the removal of the officer. The analysis of those documents was conducted objectively to ascertain whether the removal could ultimately be said to be harsh, unreasonable or unjust. In any event the decision-making process only becomes a focal point to any extent on review where it is able to be determined that the process or the process and the means of identifying the case to be met are shown to be unfair such as to warrant reinstatement.
156 The appellant's argument over-reaches itself when it suggests that the protection found in s 181H is materially the same as the protection provided to judges and jurors by s 16(2) of the Evidence Act 2005. There is no indication in this provision that the Commissioner is to be treated as a judicial officer or a juror and this submission of course must extend to the Commissioner's Advisory Panel. The matter is succinctly put to rest, (as suggested in the respondent's submissions)by reference to the Minister's Second Reading Speech of June 1997. In one paragraph the Minister acknowledges concern that being the decision-maker, the Commissioner would be routinely required to attend the Commission to give evidence in every review hearing. That was not the experience in matters before the Commission under previous legislation but it was considered of sufficient weight to warrant legislative guidance. That appears to be the only purpose for s 181H but even then the Court may grant leave to have the Commissioner or members of the Advisory Panel called to give evidence, although it is readily accepted that would be an unusual course and a case of substance would need to be established for leave to be granted.
Ground 6
157 Under this ground of appeal it is pleaded in the alternative that any non-compliance by the Commissioner with s 181E(3)(c) did not make the order harsh, unjust or unreasonable when proper consideration was given to the material that was before the Commission in a fully contested hearing on all issues, being a fresh and independent review. This ground of appeal has been dealt with in other grounds of appeal.
Ground 7
158 Ground 7 of the appeal alleged that his Honour was in error in holding that there was no evidence that it would be impractical to reinstate the officer and that his Honour was also in error in stating that he could not detect from the evidence any matter which adversely affected the officer's ability to deal with the public and otherwise discharge her duties. It was suggested that this was inconsistent with his Honour's other findings in relation to her personality and temperament and the finding that the officer had acted inappropriately in the manner in which she dealt with a number of her superior officers and other colleagues. Nevertheless, his Honour reinstated DSC Reid-Frost to her former position performing restricted duties, allowing the Commissioner an opportunity to further assess and consider her suitability to remain a police officer having regard to the concerns raised about her.
159 It is clear from the judgment that his Honour, while finding aspects of the allegations raised against DSC Reid Frost as not being made out, nevertheless was left with a concern about her attitude to senior officers and other colleagues, including her approach to the authority of senior officers. Ultimately, these concerns came down to a consideration of her "personality type". Notwithstanding those concerns his Honour was unable to determine those issues because of the vagueness and imprecision with which the supporting evidence was linked to the allegations expressed to be failures in competence, integrity, performance or conduct. While his Honour could see how some of those matters were supported by evidence, he was concerned at the exaggeration of certain incidents, the triviality of other incidents, the lack of material to indicate how seriously the conduct impacted upon the Police Service and whether or not the collation of the dossier on her behaviour was directed more at relieving Detective Inspector Jubelin of the stress he said he was suffering in having to deal with her and how he was seeking support to remove her from his area rather than from the Police Service. In essence, after analysis, his Honour accepted the thrust of the applicant's case and was not convinced of the substance of the Commissioner's allegations and having reached that position DSC Reid-Frost had discharged her onus and had demonstrated that the removal order was unfair. Importantly, as earlier noted, in considering the public interest and the officer's interests his Honour stated: "I cannot detect from the evidence any matter that would reflect adversely on the applicant's ability to deal with the public and otherwise discharge her duties". His Honour was entitled to take into account her prior good record and the fact that there were others, on the evidence, with whom she was clearly able to work. The appellant's submissions on this matter made no mention of this wider context and do not adequately reflect the approach taken by his Honour.
160 This was not a case where his Honour misunderstood or misapplied the evidence. He specifically drew attention to defects in the Commissioner's case and aspects of the evidence that supported that case. In light of the conclusions his Honour had made about the defects in the Commissioner's case and the unfairness to the applicant, those matters about which he had concern did not persuade him that there was an issue as to the practicability of reinstatement and his concerns were addressed by reinstatement of the officer on restricted duties and drawing attention to the fact that the Commissioner could continue to monitor her conduct as to her future suitability. In the exercise of the discretion to reinstate, his Honour was entitled to take those matters into account and it was open to him on that material to make the reinstatement order in the terms and context in which the case arose. His Honour did not therefore fall into appealable error.
Ground 8
161 This ground alleges that his Honour failed to pay any regard to the numerous authorities bearing on the meaning of impracticability and the correct approach to be adopted when considering that matter in the context of claims for reinstatement of police officers in loss of confidence review proceedings. In submissions this ground of appeal was developed by referring to the special relationship between the Commissioner and the police officer, the alleged principle that reinstatement should be exercised only with caution and the failure to carry out a risk assessment of the officer in assessing the likelihood of continued difficulties if reinstatement was ordered.
162 This submission carries variations of earlier themes taken up by the appellant but taken separately or together, they lack merit. Firstly, the line of authority relied upon for the proposition that reinstatement should be approached with caution dates back to an era when the remedy of reinstatement and re-establishing a contract of employment was regarded as a rare and unusual remedy. The world of industrial relations and workplace regulation has moved substantially since that time, with statute based relief providing remedies of reinstatement, re-employment or the payment of a monetary sum in compensation for the loss of employment. There is nothing in the statutory provisions that specifically requires reinstatement to be considered as a "special" or "limited" remedy but the prudent exercise of such a broad discretion would undoubtedly lead to a consideration of the appropriateness of reinstatement. Reinstatement to a small workforce where there is a close working relationship with those who have been involved in a difficult and acrimonious termination may loom so large as an issue that reinstatement is impracticable. In circumstances where employment is in a larger organisation, including public sector employment, those issues may not feature prominently or at all. For instance, in the present case there was evidence that, in the past and during the review period, the officer had worked well and co-operatively although there was evidence that in other places there appeared to be different workplace stresses for the officer.
163 As to the oft repeated submission about the "special relationship" between the Commissioner and a police officer and the special nature of an Order of Removal because of lack of confidence of the Commissioner, there remains for consideration Full Bench authority for the proposition that those matters, while they are to be considered, are given no special weight in the legislation governing the review process (see Van Huisstede v Commissioner of Police (2001) 106 IR 56 and Hosemans). Some of these matters appear to have been recently aired in the Court of Appeal in relation to the reinstatement of Sergeant Sewell - (Commissioner for Police v The Industrial Relations Commission of New South Wales and Raymond Sewell ([2009] NSWIRComm 198 and [2009] NSWCA 198) but no contention has been filed in this appeal requesting a reconsideration of the principles laid down in Full Bench cases. Importantly, those decisions were binding upon his Honour in the conduct of the review.
164 As to the alleged failure of his Honour to undertake "a risk assessment" in relation to the likely conduct and performance upon reinstatement of the officer, there appears to be no evidence solely directed at this point by the Commissioner in the proceedings below but rather a general reliance on a number of incidents to persuade the Commission that the removal was fair and therefore any reinstatement would not arise. There is force in the respondent's argument that the notion of a "risk assessment" exercise is unhelpful and constitutes an unjustified gloss on the statute and distracts from what is actually laid down in the statute. In substance, his Honour: considered the deficiencies in the Commissioner's case and noted certain aspects of the evidence which demonstrated difficulties regarding personalities and relationships with other officers; considered the fact that the Commissioner had made an order that he had lost confidence in the officer; considered the interests of the officer and the public interest; and, made a reinstatement order that permitted monitoring of the officer. In proceeding in this way, his Honour undertook the task on review as laid down by the statute. The requirement for a so-called risk assessment was not, in terms, argued below and the appellant should not be allowed to raise the issue on appeal for the first time. The appellant has been unable to establish any relevant error.
165 There is another issues relevant to this ground of appeal. The respondent, on appeal, has filed a notice of contention seeking to have taken into account the report of Dr Julian Short, psychiatrist. Dr Short addressed the officer's ability to return to work having regard to her mental state and physical ability and concluded that the prognosis was excellent and that she would be capable of discharging her duties as a police officer at a level significantly superior to the average. Dr Short was not required for cross-examination and the Commissioner did not tender or rely on any expert material to rebut this report. Marks J did not mention Dr Short's report in his judgment. Having regard to the way in which the appellant has framed his arguments on appeal, Dr Short's report is a significant piece of evidence that places those submissions in a very different light. In not cross-examining Dr Short and failing to call any medical evidence to the contrary, there are strong grounds for rejecting the submissions of the appellant regarding the practicability of reinstatement. To the extent necessary, I would grant leave to allow the report to be considered on the appeal and as supporting, on other grounds, his Honour's order for reinstatement.
ORDERS
166 Having regard to the issues of construction raised concerning the operation of the Commissioner's Confidence provisions in the Police Act, it is appropriate that leave to appeal be granted but for the foregoing reasons, in my view, the appeal should be dismissed. The formal Orders of the Commission I would propose are:
(a) leave to appeal granted;
(b) the appeal is dismissed;
(c) costs are reserved.