CRENNAN, KIEFEL AND BELL JJ. The first respondent was attested as a constable on probation on 7 May 2007. He was still a probationary constable, his appointment not having been confirmed, when, on 22 July 2009, a delegate of the appellant, the Commissioner of Police ("the Commissioner"), dismissed him from the New South Wales Police Force. An investigation which preceded his dismissal identified issues arising from the first respondent's concealment from his superiors of information relevant to his ability to cope with his policing workload. In the notice foreshadowing his dismissal, he was advised that his continued employment with the NSW Police Force was "inimical to the standards expected of police officers by the Parliament, the Commissioner and the community." In dismissing the first respondent, the Commissioner's delegate was exercising the power given by s 80(3) of the Police Act 1990 (NSW).
The first respondent applied to the Industrial Relations Commission of New South Wales ("the IR Commission"), which is the second respondent in this appeal, under s 84(1) of the Industrial Relations Act 1996 (NSW) ("the IR Act") for a remedy on the basis that his dismissal was harsh, unreasonable or unjust. His claim was upheld and reinstatement ordered. On the appeal brought by the Commissioner, a Full Bench of the IR Commission held that the IR Commission lacked jurisdiction and dismissed the first respondent's application. The first respondent sought judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). The Court of Appeal quashed the decision of the Full Bench, holding that the IR Commission had jurisdiction, and remitted the matter to the Full Bench of the IR Commission to be determined according to law. By a grant of special leave, the Commissioner appeals to this Court.
The issue
The IR Act deals with industrial matters affecting employers and employees. The term "employee" is broadly defined. Part 6 of Ch 2 (hereafter "Part 6") of the IR Act is titled "Unfair dismissals". It expressly applies to any "public sector employee", which term is defined to include a member of the NSW Police Force. Section 84(1) provides:
"If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part."
On an application under s 84(1), the IR Commission may make orders for reinstatement, re-employment, remuneration or compensation.
Section 80 of the Police Act provides for the appointment, promotion and dismissal of constables. Sub-section (1) provides that the Commissioner may appoint any person of good character, and suitably qualified, as a police officer with the rank of constable. Sub-section (2) provides that, when first appointed, a police officer is to be appointed on probation in accordance with the regulations. Sub-section (3) provides:
"The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason."
The Commissioner contends that the express terms of s 80(3) leave no doubt that the power given by s 80(3) is unfettered in respect of both reasons and timing. They are an immediate indication that the exercise of that power is not to be reviewed by reference to the harshness, unreasonableness or unjustness of the decision, which s 84(1) of the IR Act would allow.
The Commissioner does not contend that a decision to dismiss a probationary constable under s 80(3) is exempt from all review and accepts that it is subject to judicial review. The Commissioner's argument is that the terms of the power to dismiss are incompatible with a decision made pursuant to it being subjected to review by the IR Commission under Pt 6 of the IR Act.
Approach to construction
Some observations may first be made concerning the nature and the objects of the two statutes here in question as relevant to their construction. The IR Act is, as previously mentioned, a general statute applying to industrial relations between employers and employees. It may be accepted that, in many respects, it applies to the conditions of employment of police officers. Its objects include the promotion of efficiency and productivity in the economy of the State of New South Wales and provision for the resolution of industrial disputes. The Police Act is concerned with the NSW Police Force, which it establishes. Some of its provisions concern the maintenance of the integrity and discipline of the NSW Police Force.
To these observations it may be added that the Police Act was the earlier Act. The Police Act was enacted in 1990; the IR Act in 1996, although it had predecessors. Some provisions of the Police Act relating to review by the IR Commission were introduced consequent upon the coming into effect of Pt 6 of the IR Act in 1996.
Argument on the appeal proceeded upon the basis that the two statutes should be read together, in order to determine whether there is any relevant inconsistency in their respective operation. The question of the relationship between the two statutes is one of legislative intention. In Associated Minerals Consolidated Ltd v Wyong Shire Council, Lord Wilberforce pointed to several possible interpretations where the field of application of two related statutes is different, but where the later statute does not expressly repeal or override the earlier:
"The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field?"
In the Court of Appeal, Handley AJA concluded, by reference to the above passage, that Pt 6 of the IR Act added another layer of legislation to the Police Act.
Lord Wilberforce went on to observe that discussion of these matters commonly involves consideration of the rule of construction which presumes that a later, general enactment is not intended to interfere with an earlier, special provision unless it manifests that intention very clearly. Even so, the question as to the operation of the statutes remains a matter to be gleaned by reference to legislative intention. That intention is to be extracted "from all available indications".
In Ferdinands v Commissioner for Public Employment ("Ferdinands"), an indication of legislative intention was present in the extent to which the Police Act 1998 (SA) dealt with the topic of dismissal. That Act dealt exhaustively with the dismissal of police officers and therefore impliedly repealed the earlier Industrial and Employee Relations Act 1994 (SA). The legislation in Ferdinands differs from that presently under consideration. Nevertheless, statements respecting statutory construction made in that case are relevant to this appeal.
In Ferdinands, Gummow and Hayne JJ pointed out that inconsistency was at the root of the principle of implied repeal. This is true also where the question is one of possible amendment where a later statute is said to operate upon an earlier statute. However, as their Honours observed, the law presumes that statutes do not contradict one another. The question is not whether one law prevails, but whether that presumption is displaced. Their Honours considered that the two statutes in question in that case could be accommodated by reading into the Industrial and Employee Relations Act 1994 the matters that the Police Commissioner of the South Australian Police would take into account in exercising the power of dismissal; but there were other features of the statutes which were also important. Their Honours said that deciding whether the two statutes could not "stand or live together" in the relevant respect "requires the construction of, and close attention to, the particular provisions in question".
Before turning to the provisions in question in their statutory context, it is necessary to say something about the utility of recourse to the history of the two statutes. In the Court of Appeal, Tobias AJA attempted to chart the course of the two statutes, but their histories and any interrelationship between them does not appear to offer any real guidance on the matters in question.
It may be said that the Commissioner has long had the power to dismiss or remove police officers. The antecedent provision to s 80(3) was r 11(b) of the Police Rules 1977, made under the Police Regulation Act 1899 (NSW), which provided that a probationary member of the NSW Police Force could be discharged or dismissed by the Commissioner "without any reason being assigned". On the other hand, an unfair dismissal regime has operated in New South Wales since at least 1991. The possibility that it may have operated earlier was addressed in submissions filed subsequent to the hearing of the appeal, but this need not be gone into. Under the Industrial Relations Act 1991 (NSW), the regime was expressed to apply "despite … any other Act", but that provision was not re-enacted in the IR Act in 1996. The operation of the IR Act by reference to the Police Act is the subject of express provision, s 218 of the Police Act, which will require consideration later in these reasons.
The structure and operation of the Police Act
The NSW Police Force established by the Police Act is comprised principally of the Commissioner, the Senior Executive Service and other police officers. The Senior Executive Service is comprised of executive officers. Aside from those officers and the Commissioner, all other police officers are referred to as non-executive officers. The Commissioner has responsibility for the management and control of the NSW Police Force, subject to the direction of the relevant Minister.
Non-executive police officers include probationary constables. As the term suggests, such constables are on probation until they are confirmed as officers of the NSW Police Force. In O'Rourke v Miller, Gibbs CJ said that "probation is a time of testing or trial and a probationer whose conduct, character or qualifications fail to meet the test need not be confirmed in the office to which he was provisionally appointed."
Clauses 13 and 14 of the Police Regulation 2008 deal with the process of confirmation of appointment as a constable. In addition to completion of initial basic training and a period of probation, cl 13 requires a satisfactory fitness report concerning the probationer before an appointment can be confirmed. Amongst the matters which the fitness report is to address pursuant to cl 14 are the probationary constable's integrity and conduct. Integrity is a value of the NSW Police Force; so much is stated in the Police Act. It is against this background that ss 80(1) and 80(3) respectively provide that, subject to the Act and its attendant regulations, the Commissioner may appoint a person as a police constable and may dismiss a probationary police constable at any time and without giving any reason.
Jarratt v Commissioner of Police (NSW) holds that the power of dismissal conferred by s 51(1) of the Police Act, which is in terms similar to s 80(3), is conditioned upon procedural fairness being afforded. However, procedural fairness does not in every circumstance require the giving of reasons. The terms of s 80(3) - that the Commissioner is not obliged to give any reasons - also have the effect that the validity of a dismissal does not depend upon the existence of any particular cause for dismissal.
Section 51(1) applies to an executive officer, who may be removed from office "at any time for any or no reason and without notice", by the Governor on the recommendation of the Commissioner, in the case of the removal of a Deputy Commissioner or Assistant Commissioner, and in any other case, by the Commissioner alone. Executive officers are not subject to the application of Pt 6 of the IR Act. By s 44(2) of the Police Act, their employment is not an industrial matter for the purposes of the IR Act and by s 44(2A), Pt 6 of the IR Act does not apply. The IR Act itself confirms that Pt 6 does not apply to an executive officer of the NSW Police Force.
Part 9 of the Police Act is entitled "Management of conduct within NSW Police Force". It provides the Commissioner with powers to make orders respecting police officers, including for their removal, and it permits review of those orders by reference to a process which is adapted from and different in some respects from that which is provided for under Pt 6 of the IR Act. It is evident from the terms of Pt 9 of the Police Act that it applies to confirmed police officers and not probationary constables. Thus the only statutory mechanism of review which might apply to probationary constables subject to an order of dismissal under s 80(3) is that provided by Pt 6 of the IR Act.
Section 181D(1) in Div 1B of Pt 9 of the Police Act provides that the Commissioner may remove a police officer if the Commissioner does not have confidence in the officer's suitability to continue as a police officer, having regard to the officer's competence, integrity, performance or conduct. By contrast with s 80(3), an order made under s 181D(1), with respect to a confirmed police officer, must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. Clearly enough, the provision of reasons is in aid of the review that is permitted. By s 181E(1), a police officer who is removed from the NSW Police Force under s 181D may apply to the IR Commission for a review of the order on the ground that the removal is harsh, unreasonable or unjust.
Division 1 of Pt 9 also provides that the Commissioner may take action with respect to a police officer's misconduct or unsatisfactory performance by ordering, inter alia, a reduction in the police officer's rank, grade or seniority; an action other than dismissal. Certain actions ordered by the Commissioner are subject to review under s 174(1), which provides that a police officer may apply to the IR Commission for a review of the order, on the ground that it is beyond power or is harsh, unreasonable or unjust.
Proceedings on applications for review under s 181E(1) are subject to detailed provisions in Div 1C of Pt 9 of the Police Act, which are expressed so as to omit or modify, directly or indirectly, provisions of the IR Act which would otherwise govern the process by which a claim of unfair dismissal is determined. Similar changes are effected to the process which is to attend applications under s 174(1). The provisions of Div 1C respecting the review process are self-contained and reference to the IR Act is not necessary. The Police Act makes it clear that the IR Act is not to apply to these applications. Section 181D(7) provides that, except as provided by Div 1C, no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under s 181D and no appeal lies to any tribunal in connection with any such decision or order. "[T]ribunal" is defined to include the IR Commission.
It will be necessary at a later point in these reasons to identify some of the more substantial changes effected by the Police Act to the review process that is to be undertaken by the IR Commission with respect to claims of unfair dismissal brought by police officers, and to compare that process with the processes under the IR Act. At this point it is convenient to turn to the provisions of the IR Act respecting the application of Pt 6 and the matters relevant to determinations of claims of unfair dismissal.
Part 6 of the IR Act
Section 83(1)(a) in Pt 6 of the IR Act, by its terms and the definition of a public sector employee, is apt to apply to police officers. Section 83(3) restricts the application of Pt 6 to non-executive police officers, which term includes probationary constables.
Section 83(2)(b) of the IR Act provides that regulations made under the Act can exempt employees who are serving a period of probation or a qualifying period. However, the relevant regulation exempts only a class of employees who are serving a probationary or qualifying period, the duration of which is determined in advance. Probationary constables under the Police Act do not come within the regulation. Clause 12(1) of the Police Regulation 2008 provides that the Commissioner may determine the period of probation. In Ferraris v Commissioner of Police, the Full Bench of the IR Commission held that the effect of a similar clause was that the Commissioner could increase the period of probation at any time. It follows that the requirement of the regulation cannot be met.
On an application under s 84(1), the IR Commission may make an order for reinstatement, re-employment, remuneration or compensation. It may do so if it is satisfied that the dismissal was harsh, unreasonable or unjust. In so determining, the IR Commission may have regard to the conduct of the employee and whether the employer acted reasonably in all the circumstances, as the Full Bench in this case observed. A general provision for an enquiry into the reasonableness of the conduct of an employer might not be thought suitable to a decision of the Commissioner to dismiss a police officer on the basis of misconduct. Further, as the Full Bench observed in this case, the relief which may be provided by the IR Commission is at odds with the prima facie right of the Commissioner under s 80(3) to dismiss.
There are other matters which the IR Commission may take into account under s 88 of the IR Act in connection with a claim for unfair dismissal. They include, most relevantly, whether a reason for the dismissal was given and, if so, its nature and its substance. The fact that reasons were given, or not, may be relevant to an assessment of the reasonableness of the employer. It will be recalled that s 80(3) of the Police Act does not oblige the Commissioner to give reasons. The IR Commission may also take into account whether a warning of unsatisfactory performance was given and whether or not the applicant requested reinstatement. A warning may not be practicable where issues of the integrity of a police officer are involved. By its nature, s 80(3) would not permit a request for reinstatement.
Of course, these are matters which may or may not be taken into account as relevant by the IR Commission to a case before it. But they serve to highlight the fact that the unfair dismissal regime of the IR Act was not framed with something like the Police Force in mind. It is a general statute. And they raise the question of how, and by reference to what matters, the IR Commission would approach the task of reviewing a dismissal by the Commissioner under s 80(3).
Unfair dismissal claims - the Police Act
Consideration was given in Pt 9 of the Police Act to the means by which claims of unfair dismissal made by confirmed police officers are to be determined by the IR Commission. It was evidently not considered appropriate to apply the processes provided in the IR Act which apply to claims of unfair dismissal under that Act. In what follows, attention is directed to the provisions of Div 1C of Pt 9 of the Police Act, which concern applications under s 181E(1) respecting orders for removal made by the Commissioner. It is not necessary to survey the processes in Div 1A of Pt 9, concerning applications under s 174(1).
The Court of Appeal does not appear to have given any weight to the changes to the unfair dismissal regime brought about by the operation of Div 1C. The Full Bench, however, detailed some of the provisions of Div 1C, commented upon the limitation of IR Commission procedures they effected, and concluded that if a probationary constable were able to pursue a claim under Pt 6 of the IR Act, he or she would have greater procedural rights than a confirmed officer would have. In these observations the Full Bench was plainly correct.
It may first be observed that, under the IR Act, the IR Commission has power to order an employer not to dismiss an employee where a threat to do so has been made. The Police Act provides that an application under s 181E does not effect a stay of the operation of an order for removal of a police officer. There are also differences regarding the bringing of applications. The Police Act excludes the ability of the IR Commission to accept an application made out of time. The Police Act requires a hearing to be commenced within four weeks of an application being made under s 181E. No such strictures are placed on the IR Commission under the IR Act.
A claimant under s 181E of the Police Act bears the onus of proving that a dismissal was harsh, unreasonable or unjust. 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. Dismissals under s 80(3) of the Police Act may well involve questions of integrity and misconduct.
There are two provisions in Div 1C of Pt 9 of the Police Act which are significant for the focus which they bring to bear upon the IR Commission's decision, a focus which is not possible under the IR Act regime. The first provision requires the IR Commission to consider the material relating to an unfair dismissal claim in a particular order, commencing with the Commissioner's reasons. The second provision requires the IR Commission to consider the "public interest". The IR Act has as its objects matters of public interest, such as the promotion of efficiency and productivity in the New South Wales economy. Section 146(2) requires the IR Commission to take into account the public interest in the exercise of its functions and, for that purpose, to have regard to the objects of the IR Act, and the state of the economy of New South Wales and the likely effect of its decisions on that economy. The matters of public interest to which the Police Act directs attention are different. The Police Act requires, for the purposes of Div 1C of Pt 9, that the public interest be taken to include maintaining the integrity of the NSW Police Force and the fact that the Commissioner made an order for removal.
Matters pertaining to evidence are touched upon in the Police Act. New evidence cannot be admitted before the IR Commission in review proceedings under Div 1C, except upon notice and by leave. Under the IR Act, the IR Commission may compel the attendance of witnesses. But under Div 1C of Pt 9 of the Police Act, neither the Commissioner, nor any member of the Commissioner's Advisory Panel, is a compellable witness without leave of the IR Commission, which can be granted only if extraordinary grounds exist.
Presumption of non-contradiction displaced?
The indications in the Police Act point towards a legislative intention that a decision made under s 80(3) to dismiss a probationary constable is not to be subject to merits review by the IR Commission under Pt 6 of the IR Act.
The starting point is the terms of s 80(3) in the context of the status of a probationary constable and the responsibilities vested in the Commissioner. A probationary constable is seeking to achieve confirmation. During this period, the probationary constable's conduct is monitored and subject to report, so that the Commissioner may determine whether the person is suitable for the role of a police officer within the NSW Police Force. The position of a probationary constable may be contrasted with that of a police officer who has achieved confirmation and whose history in the Police Force may need to be taken into account by way of review of a dismissal.
The terms of s 80(3), as the Commissioner argues, are strongly suggestive of an unfettered power to dismiss. The fact that the Commissioner is not obliged to give any reasons, whilst not conclusive of an intention that there be no merits review of a decision to dismiss, implies an unfettered power. It stands in contrast with the requirement for reasons, imposed by Pt 9 of the Police Act, where a confirmed police officer is dismissed.
The lack of a requirement for reasons also points to some incoherence with the provisions of Pt 6 of the IR Act concerning the matters to be taken into account by the IR Commission in determining whether a dismissal is harsh, unreasonable or unjust. The terms of s 80(3) suggest that such considerations are not to be in question. The intended legal effect of the Commissioner not being required to give reasons is that the Commissioner's decision cannot be impugned on account of any particular reason.
The regime provided for in Pt 9 of the Police Act for the claims of confirmed police officers evidences a concern that the processes of Pt 6 of the IR Act are not in all respects appropriate to be applied to decisions of the Commissioner to dismiss or make other like orders. Part 9 maintains a focus on the Commissioner's decision, a focus which is not provided by the general provisions of the IR Act. Part 9 elevates the Commissioner's decision to one of public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force. The placing of the burden of proof upon the police officer dismissed is consistent with the weight to be given to the Commissioner's decision, as is the provision which prevents a review of that decision by reference to additional material.
These are not insignificant matters. They raise important questions concerning the interaction between Pt 6 of the IR Act and the Police Act and as to the internal consistency of the Police Act. If Pt 6 applied to probationary constables, confirmed police officers' claims of unfair dismissal would be dealt with under the particular provisions of Pt 9 of the Police Act, while probationary constables' claims would be dealt with under the general provisions of the IR Act, which were not considered by the legislature in enacting the Police Act to be suited to the same topic. An anomalous position would result whereby probationary constables would enjoy greater procedural rights than confirmed police officers, as the Full Bench correctly observed.
In accordance with ordinary rules of construction concerning the internal operation of a statute, the Police Act should be construed in a way which best achieves a harmonious result. The same principle of consistency informs the construction of two statutes which may share a field of operation.
It was pointed out by the Court of Appeal that s 80(3) could have been excluded by a regulation made under s 83(2) of the IR Act, and that the Parliament had given its attention to the relationship between the Police Act and the IR Act (or its predecessors) in successive industrial relations statutes without expressly excluding probationary constables from the unfair dismissal regime in the industrial relations statutes. Provision could also have been made in the Police Act to exclude probationary constables from the operation of Pt 6 of the IR Act, as was done with respect to executive officers. So much may be accepted. It may be that a conscious decision was made not to exclude probationary constables, as the reasons of the Court of Appeal imply. It may also be observed that the terms of s 80(3) have never been substantively altered. They may have been thought to be a sufficient indicator that review by the IR Commission was not intended. These are matters of speculation. No proper inferences helpful to the process of construction are available.
Mention was also made in the Court of Appeal of s 405 of the IR Act, which provided at the relevant time and in relevant part:
"Statutory provisions relating to public sector employees
(1) Any award or order of the Commission does not have effect to the extent that it is inconsistent with:
…
(b) a function under the Police Service Act 1990 with respect to the discipline, promotion or transfer of a police officer …
(3) This section does not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair dismissals)."
Whilst the IR Act has application to other industrial matters involving police officers, as discussed earlier in these reasons, by operation of s 405(1)(b) the IR Commission cannot, by its orders, interfere with matters of discipline, which are dealt with under the Police Act. Insofar as an order made on an unfair dismissal claim might be said to cut across disciplinary functions, sub-s (3) confirms that a decision made under Pt 6 of the IR Act is unaffected. In that sense Pt 6 may prevail to the extent of any inconsistency, as Handley AJA observed. However, the provision assumes that the decision is made within the jurisdiction of the IR Commission pursuant to the power given by Pt 6. It is not helpful in answering the question whether Pt 6 applies to a probationary constable.
Handley AJA also considered that s 218 of the Police Act has the effect that, in the absence of an appropriate exemption by regulation, the unfair dismissal regime of the IR Act applies to probationary constables. Section 218 of the Police Act is troublesome. It was regarded by the Court of Appeal as possibly determinative of the question whether s 80(3) of the Police Act affects the application of the IR Act's unfair dismissal regime, at least if read literally. There is a difficulty with doing so, as will be explained.
Section 218 of the Police Act provides:
"(1) The Industrial Relations Act 1996 is not affected by anything in this Act.
(2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996."
The predecessor to s 218 was s 117 of the Police Act, as enacted. At that time the statute in force dealing with industrial matters in New South Wales was the Industrial Arbitration Act 1940 (NSW). The reference in s 117(1) to the Industrial Arbitration Act 1940 not being "affected by anything in this Act" may have been explicable on the basis that it made plain that the Police Act did not, in any relevant respect, repeal the 1940 Act. The words "is not affected by" were apt to preserve the 1940 Act.
Section 117 was subsequently amended in 1993 to refer to the Industrial Relations Act 1991 (NSW), when it was renumbered s 218. It was again amended in 1997 to refer to the IR Act, at around the same time amendments were made to insert Div 1B and Div 1C of Pt 9 into the Police Act. It appears to have been updated at these points in time by reference to the industrial relations statutes then in force, but apparently without consideration having been given to its new context and its continuing purpose.
This lack of consideration is evident from the terminology of the provision, which has remained unchanged. As enacted, s 117(2) referred to ss 44 and 89 of the Police Act. As enacted, s 44(2) relevantly provided that the employment of an executive officer was not an industrial matter for the purposes of the Industrial Arbitration Act 1940. Section 89(1) provided that the appointment of or failure to appoint a person to the position of administrative officer was not an industrial matter for the purposes of the 1940 Act. Thus, by s 117(2), s 44 continued to operate to exclude executive officers altogether from the IR Act and s 89 continued to make some exclusion with respect to administrative officers.
Section 44(2) remains in the Police Act. However, s 89 was repealed in 2006 and re-enacted as s 88, which is in substantially the same terms. Resort is necessary to s 68(3) of the Interpretation Act 1987 (NSW) so that the reference to s 89 in s 218(2) can be read as a reference to s 88.
More significantly, sub-s (1) of s 218 is now patently erroneous. The IR Act is affected by Pt 9 of the Police Act, as has been pointed out. Part 6 of the IR Act does not automatically apply to claims by police officers for unfair dismissal. Section 181E in Pt 9 of the Police Act permits the making of such a claim, but with the modified processes which Pt 9 provides. Another example of a provision of the Police Act which affects the IR Act is s 179(1), which particularises certain provisions of the IR Act which do not have effect, as the Full Bench observed.
The Court of Appeal's interpretation of s 218(2) assumes that it operates so that unless expressly provided by the Police Act, the IR Act is to apply. The terms of s 218(2), and the omission of such words, do not readily lend themselves to this construction. Even if one were to proceed from that assumption, the general provision of s 218 would yield to what is implied by s 80(3) of the Police Act.
It was pointed out in Rose v Hvric that the word "expressly" only emphasises the generality of such a provision. It makes clear that no case is outside the provision unless that is the necessary result of the operation of another enactment according to the intention that it manifests. It follows that an implication of inconsistency with the general provision will suffice to oust its application. Such an implication arises where the other provision concerned can be seen to mean more than it actually says; it may be contrasted with an inference.
The provisions of Pt 9 of the Police Act provide an example of inconsistency with provisions of the IR Act relating to unfair dismissal. The level of inconsistency is such that s 218(1) does not operate in its terms. Section 80(3) is impliedly inconsistent with s 218. It conveys more than that the Commissioner may dismiss without giving reasons. It implies an unfettered power and therefore that the decision is not to be subjected to a review on the merits. That implication is supported by other aspects of the construction of the Police Act, to which reference has been made. Thus if the general jurisdiction of the IR Act is recognised by s 218, it is withdrawn by s 80(3) insofar as decisions under that provision are concerned.
The conclusion reached by the Full Bench is, with respect, correct. The Full Bench construed s 218 as leaving intact the power of the IR Commission to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act.
Conclusion and orders
The IR Act may apply generally to the Police Act, but not where the operation of the former produces an internal inconsistency in the latter. Such an effect, which would be reached if a decision under s 80(3) of the Police Act were subject to review under Pt 6 of the IR Act, cannot be taken as intended. The conclusion reached concerning the non-application of Pt 6 of the IR Act to a decision made under s 80(3) may further be tested by reference to s 218 of the Police Act and the rule of construction mentioned at the outset of these reasons. In each case, the general provisions of the IR Act do not apply in the face of the special, and inconsistent, terms of s 80(3) of the Police Act.
The appeal should be allowed and the orders proposed by Heydon J made.