Commissioner of Police v Skelly

Police Act 1990 LEGISLATION CITED: Police Service Act 1990 Police Service Amendment (Complaints and Management Reform) Act 1998

CASES CITED: Coulton v Holcombe (1986) 162 CLR 1 Daniel Skelly and Commissioner of Police (No 2) [2009] NSWIRComm 119

Mr M J Kimber SC with Ms N Sharpe of counsel Bartier Perry, solicitors LEGAL REPRESENTATIVES: Mr B G Docking of counsel Police Association of New South Wales

CORAM: BOLAND J, President WALTON J, Vice-President GRAYSON DP

Application by Commissioner of Police for leave to appeal and appeal against a decision and orders of Deputy President Sams given on 31 July 2009 in Daniel Skelly and Commissioner of Police (No 2) [2009] NSWIRComm 119

1 The Commissioner of Police has sought leave to appeal and, if leave is granted, to appeal against a decision of Sams DP in which his Honour dismissed a notice of motion by the Commissioner seeking to have dismissed an application under s 174 of the Police Act 1990 ('the Act') for want of jurisdiction. The application was made by the Police Association of NSW on behalf of its member, Sergeant Daniel Skelly. His Honour's decision is to be found in Daniel Skelly and Commissioner of Police (No 2) [2009] NSWIRComm 119.

2 By way of background, on 17 March 2008, Sergeant Skelly, whilst off duty, was involved in a physical altercation with his son. The altercation was subsequently investigated by the Police Force. 3 Following the investigation of that incident, on 7 January 2009, Superintendent Rae, the Commander of the Lake Macquarie Local Area Command ('LAC'), made an order under s 173(2) of the Act transferring Sergeant Skelly from the Boolaroo police station in the Lake Macquarie LAC to the Brisbane Waters LAC. In the order Superintendent Rae stated: I am satisfied that on 17 March 2008, you were involved in an altercation with Mr Skelly Jr during which you used improper physical violence against him…

I am extremely disappointed that you have breached the Commissioner's Warning Notice by again using improper physical violence.

Accordingly, pursuant to subsection 173(1) and Schedule 1 of the Police Act 1990, I hereby order that non-reviewable action, being a non-disciplinary transfer to Brisbane Waters Local Area Command, be taken in consequence of your conduct. 4 On 22 January 2009, Sergeant Skelly commenced an Application for Review of an Order made under s 173 of the Act. This application was made under s 174 of the Act, which confers a limited jurisdiction upon the Industrial Relations Commission to review 'reviewable action' taken under s 173. 5 On 30 March 2009, the Commissioner filed a motion asserting that the Commission had no jurisdiction to review the matter under s 174 since the s 173 order imposed a 'non-disciplinary transfer' that was 'non-reviewable action' under s 173 of the Act. 6 The Commissioner's motion was heard by Sams DP on 13 May and 2 June 2009. On 31 July 2009, His Honour dismissed the motion, finding that the s 173 order did amount to 'reviewable action'. After addressing what his Honour considered were the relevant principles applicable to statutory construction and the relevant legislative provisions, Sams DP made one central finding: · Sergeant Skelly was the subject of a disciplinary process, the outcome of which must have been a disciplinary transfer for the purposes of s 173(1) of the Act (at [74], [87]). It followed from this finding that the transfer constituted 'reviewable action' for the purposes of s 173(2)(d) of the Act (at [87]). 7 A matter related to this central finding was his Honour's opinion that s 173(2) of the Act empowered the Commissioner to make orders for reviewable action only and not orders for non-reviewable action (at [81]). It becomes necessary to deal with this issue in the appeal

8 The effect of his Honour's central finding, of course, was to lead Sams DP to the conclusion that Sergeant Skelly's application for a review of the Commissioner's orders was competent and that the Commission had the necessary jurisdiction to hear and determine the application. 9 Sams DP also variously expressed opinions, made observations or indicated (expressly or impliedly) a preference for the submissions of the Police Association acting on behalf of Sergeant Skelly regarding a number of secondary issues. His Honour did not express these as findings and it may be it was not necessary to do so because the issue was essentially one of statutory interpretation and a question of fact as to whether the order made by the Commissioner directing a non-disciplinary transfer of Sergeant Skelly was an order for reviewable action or an order for non-reviewable action. Nonetheless, the observations, opinions, etc, were addressed in the appeal grounds and related to the following matters: (a) Sergeant Skelly's proposed transfer would not result in him losing any income, seniority or reduction in rank (at [3]); (b) section 171(2) of the Act was the source of power for interim management action to be taken in the form of a transfer pending the conclusion of a more formal process under ss 173 or 181D of the Act. The taking of interim management action pending final management action was the kind of transfer contemplated by the term 'non disciplinary transfer' in Schedule 1. That a 'non disciplinary transfer', during an Interim Management Plan, is a 'holding' or interim arrangement pending final determination of whether more serious action is to be taken (at [72]); (c) a non-disciplinary transfer might well be punitive in its effect, even if it was not the intent of the decision makers (at [84]); (d) a forced transfer arising from a finding of misconduct, must have a punitive effect by reason of the officer's obvious loss of status and reputation. Additional transport costs in terms of time and actual expense must constitute a punitive effect. Sergeant Skelly will be impacted upon, in a punitive way, by being transferred from Lake Macquarie to Gosford (at [84]); (e) the Commissioner's contention regarding the principle of the 'presumption of regularity' was not able to be maintained (at [85]); and (f) considering the purpose of the statute in globo , there is a clear legislative intent of ensuring that a police officer, subject to a serious finding of misconduct, will have a right to appeal such a finding (at [86]). 10 We should indicate at the outset that we grant leave to appeal. The appeal raises the important issue of the proper construction of s 173 of the Act and the distinction between an order for reviewable action and an order for non-reviewable action. This is the first occasion that issue has arisen for consideration at appellate level. Relevant legislation

11 The central provision in issue in these proceedings is s 173. This section is to be found in Pt 9 of the Act, which is entitled 'Management of Conduct within NSW Police Force'. Section 173 is the only provision in Division 1 of Pt 9, and is entitled 'Commissioner may take action with respect to police officer's misconduct or unsatisfactory performance'. The section is in the following terms: 173 Commissioner may take action with respect to police officer's misconduct or unsatisfactory performance (1) In this section: non-reviewable action means action referred to in Schedule 1. reviewable action means action referred to in subsection (2), other than non-reviewable action. (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate. (3) The Commissioner may also order that action referred to in subsection (2) be taken with respect to a police officer whom the Commissioner has required to participate in a remedial performance program prescribed by the regulations and whose performance as a police officer after having participated in that program is, in the Commissioner's opinion, still unsatisfactory. (4) The Commissioner may make an order under subsection (2) or (3) whether or not the misconduct or unsatisfactory performance has been the subject of a complaint under Part 8A and whether or not the police officer has been prosecuted or convicted for an offence in relation to the misconduct or unsatisfactory performance. (5) Before making an order for reviewable action, the Commissioner: (a) must cause to be served on the police officer a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and (b) must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and (c) must take into consideration any written submissions received from the police officer: (i) during the period of 7 days referred to in paragraph (b), or (ii) if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served. (6) As soon as practicable after making an order for reviewable action, the Commissioner must cause written notice that the order has been made to be served on the police officer concerned. The notice must be served personally or (if personal service is impracticable) by post. (7) The written notice must contain the terms of the order and must indicate: (a) the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the order has been made, and (b) whether the order results from a complaint that has been investigated, or is being investigated, under Division 5 of Part 8A, and (c) the Commissioner's reasons for making the order. (8) An order for action referred to in subsection (2) takes effect: (a) in the case of non-reviewable action, when the order is made, or (b) in the case of reviewable action, at the expiry of the time within which an application for a review of the order may be made under section 174 or, if such an application is made within that time, when the application is finally determined. (9) Except as provided by Division 1A: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission. (10) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (11) Nothing in Division 1A limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (12) Despite section 31, the Commissioner's functions under this section may only be delegated to a member of the NSW Police Force who is senior to the police officer in respect of whom those functions are being exercised. 12 Division 1A of the Act contains the provisions applicable to a review of the Commissioner's order under Division 1, but only in respect of reviewable action. Section 174 provides: 174 Review generally (1) A police officer in respect of whom an order for reviewable action is made under section 173 may apply to the Industrial Relations Commission (referred to in this Division as the Commission ) for a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust. (2) An application may be made on behalf of the police officer by an industrial organisation of employees. (3) An industrial organisation of employees may make one application on behalf of a number of police officers in respect of whom orders for reviewable action have been made at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications together or individually. (4) An application may not be made by or on behalf of a police officer more than 21 days after the date on which written notice of the making of the order to which it relates was served on the police officer. (5) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant, for inspection and copying, all of the documents and other material on which the Commissioner has relied, or to which the Commissioner has had regard, in deciding to make the order to which the application relates.

13 Schedule 1 of the Act identifies what is non-reviewable action: coaching

increased professional, administrative or educational supervision

change of shift (but only if the change results in no financial loss and is imposed for a limited period and is subject to review)

recording of adverse findings 14 Other provisions that arise for consideration are ss 8, 69 and 171: 8 Commissioner to manage and control NSW Police Force (1) The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the NSW Police Force. (2) The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the NSW Police Force. (3) The Commissioner may classify the various duties that members of the NSW Police Force are required to perform and allocate the duties to be carried out by each such member. (4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force. (4A) The Commissioner (on behalf of the Crown) may make or enter into contracts or arrangements with any person for the carrying out of works or the performance of services or the supply of goods or materials in connection with the exercise of the functions of the NSW Police Force. (5) This section is subject to the other provisions of this Act and the regulations.

69 Transfer of non-executive police officers (1) If the Commissioner considers it to be in the interests of the NSW Police Force to do so, the Commissioner may transfer a non-executive police officer from one non-executive police officer position to another non-executive police officer position or non-executive administrative officer position. (2) Such a transfer may be made if: (a) the position to which the officer is transferred entitles its holder to the same level of remuneration as the officer's former remuneration, or (b) the position to which the officer is transferred entitles its holder to a lower level of remuneration than the officer's former remuneration and: (i) the officer consents to the transfer at the lower level of remuneration, or (ii) the officer requested the transfer or the transfer is made pursuant to an order under section 173, or (c) the officer concerned is being transferred from the rank of superintendent to which the officer is permanently appointed to another position within that rank - regardless of whether the position to which the officer is transferred entitles its holder to a remuneration that is the same as or different from the officer's former remuneration. (3) An officer transferred under subsection (2) (c) is entitled, for the balance of the term for which the officer holds office pursuant to section 74, to the same level of remuneration in respect of the new position as the officer's former remuneration if the position to which the officer is transferred ordinarily entitles its holder to a level of remuneration that is lower than the officer's former remuneration (unless the officer requested the transfer or it was made pursuant to an order under section 173). (4) A transfer under this section may be made only if the officer possesses the qualifications determined by the Commissioner for the other position. (5) The transfer under this section of a police officer to a non-executive administrative officer position may not be made without the approval of the police officer. (6) Section 66 does not apply to a transfer under this section.

171 Part not to affect police officers' other powers and duties

(1) This Part does not operate to absolve a police officer who receives a complaint from liability to perform any duty imposed on the police officer otherwise than by this Part. (2) Action on a complaint may be taken otherwise than under this Part (including action involving criminal proceedings and action under Part 9) even if action on the complaint has yet to commence or is in progress under this Part. (3) This section has effect despite any other provision of this Part.

15 It was contended for the appellant that Sams DP erred in a number of respects. The principal error, however, was said to be his Honour's finding that the transfer of Sergeant Skelly was not a 'non-disciplinary transfer' and that, therefore, it was 'reviewable action' and within the Commission's power to review.

16 In this respect, Sams DP stated at [74] and [80]-[81]: [74] Notwithstanding these observations, when one applies the test of whether the words are clear, unambiguous and are to be given their ordinary, grammatical meaning, I do not see how it is possible to conclude that a transfer which arises from a disciplinary process can be a 'non disciplinary transfer'. Apart from being oxymoronic, the term 'non disciplinary' cannot logically arise in the context of disciplinary outcomes. Having regard for the following facts and circumstances disclosed by the evidence, I consider that Sgt Skelly was the subject of a disciplinary process, the outcome of which must have been a disciplinary transfer.

[80] Leaving aside the strict statutory construction tests, one only needs to apply the ordinary, common sense, bystander test to demonstrate the illogical and absurd interpretation given to the words by Ms Sharp [counsel for the Commissioner]. How could it possibly be said that a transfer which arises directly from a disciplinary investigation and sustained findings of misconduct, is a non disciplinary transfer? To characterise it as something which it cannot possibly be, is conceptually flawed and wrong in principle and in law. It produces an absurd and irrational result of the kind as discussed in WorkCover Authority (NSW) (Inspector Hamilton) v John Holland Pty Ltd .

[81] Ms Sharp submitted that Mr Howell's interpretation cannot be right because the action in Schedule 1 of the Act, can only arise following a finding of an officer's misconduct. Put another way, if a transfer could not be described as non disciplinary arising from the trigger in s 173(1), then there could never be a non disciplinary transfer. In my view, Ms Sharp's submission is misconceived. The fact that 'non reviewable action' is cited in s 173(1) does not mean that it is action which follows the trigger of a finding of misconduct. That this is so, is plainly evident from the express terms of s 173(2) which identifies the type of reviewable actions which may be taken against an officer who is found to have engaged in misconduct. There is no reference, in either the section, or the Schedule to 'non reviewable action' flowing from a finding of misconduct. 'Non reviewable action' sits alone in s 173(1) and is directly referable to the Schedule. …

17 Additionally, it was contended by the appellant that the Deputy President committed an 'overarching error' in that the Commission did not have the power to call into question the s 173 order. This was because of the privative clause in s 173(9) of the Act that stipulated that except as provided by s 174, no tribunal has the power to 'consider any decision or order of the Commissioner' under s 173. Overarching error

18 It was accepted by the appellant that his challenge to the Commission's power to call into question the s 173 order was not put at first instance. However, it was submitted this was not a bar to advancing the points on appeal since they raise pure questions of law. No evidence could have been adduced which would have had any bearing upon these questions and there is accordingly no prejudice to Sergeant Skelly: cf Coulton v Holcombe (1986) 162 CLR 1. 19 Section 174(1) provides: 'A police officer in respect of whom an order for reviewable action is made under section 173 may apply to the Industrial Relations Commission … for a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust.' In the present case, Sergeant Skelly has applied for a review of the order for what he contends is reviewable action under s 173. That is to say, he asserted that his transfer was in the nature of disciplinary action and, therefore, reviewable. The Commissioner contended the transfer was of a non-disciplinary nature and, therefore, the order made under s 173 was in relation to non-reviewable action. 20 There was no issue that, in the ordinary course, the Deputy President was entitled to determine the limits of his jurisdiction. However, as we have indicated, the appellant contended that in this appeal s 173(9) applied so as to preclude the Deputy President from considering or reviewing the order made by Superintendent Rae because it was an order for non-reviewable action and not able to be dealt with under Division 1A. It was submitted that only the Supreme Court had power to review the order. 21 In circumstances where the respondent was contending that the order was, in fact, an order for reviewable action because his transfer was a disciplinary action, the Deputy President was entitled to determine, pursuant to s 174, whether it was beyond power for him to deal with the matter. If his Honour had determined the order was an order for non-reviewable action, then pursuant to s 173(9) he could not have considered or reviewed the order because it would have been beyond power to do so. 22 The purpose of s 173(9) is to make it clear that non-reviewable orders are beyond the Commission's jurisdiction, but its purpose is not to preclude the Commission from determining whether what is before it is within power or beyond power. Whether s 173 is limited to reviewable action orders

23 Sams DP determined that the transfer of Sergeant Skelly was reviewable action because the transfer was consequent upon a disciplinary process and that s 173(2) only identified the type of reviewable actions that may be taken against an officer who is found to have engaged in misconduct. That is to say, his Honour construed s 173(2) to mean that an order for non-reviewable action could not be made under that provision. At [67] his Honour said that '[s]ection 173(2) identifies what is "reviewable action" for the purposes of this Division'. At [81] Sams DP stated: [81] Ms Sharp submitted that Mr Howell's interpretation cannot be right because the action in Schedule 1 of the Act, can only arise following a finding of an officer's misconduct. Put another way, if a transfer could not be described as non disciplinary arising from the trigger in s 173(1), then there could never be a non disciplinary transfer. In my view, Ms Sharp's submission is misconceived. The fact that 'non reviewable action' is cited in s 173(1) does not mean that it is action which follows the trigger of a finding of misconduct. That this is so, is plainly evident from the express terms of s 173(2) which identifies the type of reviewable actions which may be taken against an officer who is found to have engaged in misconduct. There is no reference, in either the section, or the Schedule to 'non reviewable action' flowing from a finding of misconduct. 'Non reviewable action' sits alone in s 173(1) and is directly referable to the Schedule. I agree with Mr Howell that the two notions sit inconsistently in the same section. Moreover, it is not open to import into the statutory provisions, words which do not exist expressly, or even by implication. Further, it is also obvious that the action available under Schedule 1 does not require the mandatory statutory procedural steps required by s 173(5), (6) and (7). This only reinforces the proposition that s 173 is primarily targeted towards 'reviewable action' under the Act. The fact that the usual requirements of procedural fairness are still required to be observed before an order of non reviewable action, demonstrates no more than the appropriateness, in administrative decision making, of ensuring an officer has an opportunity to respond to any proposed action to be taken against him/her. 24 It cannot be right that orders under s 173(2) are limited to orders for reviewable action. The appellant was undoubtedly correct in submitting that s 173(2) empowers the Commissioner to make orders for both 'reviewable action' and 'non-reviewable action' for the following reasons: (a) section 173(1) defines both 'non-reviewable action' and 'reviewable action' for the purpose of s 173. In this regard, s 173(1) says 'in this section : "non-reviewable action" means action referred to in Schedule 1 …' (emphasis added); (b) if s 173 were only concerned with 'reviewable action', there would be no need to draw a distinction between 'reviewable action' and 'non-reviewable action'; (c) section 173(1) defines 'reviewable action' as 'action referred to in subsection (2), other than non-reviewable action' (emphasis added). This definition contemplates that s 173(2) allows both reviewable and non-reviewable action. However, it creates a presumption: all action taken under s 173(2) will be taken to be 'reviewable action' unless it is 'non-reviewable action' (that is, action specifically referred to in Schedule 1 to the Police Act ). Since the actions referred to in s 173(2)(a) to (c) are not referred to in Schedule 1, they are all forms of 'reviewable action'. Section 173(2)(d) empowers the Commissioner to take 'any other action'. If under this sub-paragraph the Commissioner takes an action of a kind specified in Schedule 1, then the action is 'non-reviewable action'. However, if the Commissioner under s 173(2)(d) takes action of a kind not specified in Schedule 1, then it is 'reviewable action'; (d) section 173(8) clearly contemplates that action taken under s 173(2) may be either 'reviewable action' or 'non-reviewable action' since it provides that the time at which 'an order for action referred to in subsection (2) takes effect' varies depending upon whether it is 'reviewable action' or 'non-reviewable action'; (e) section 173(9) contemplates that s 173(2) authorises 'non-reviewable action' since it provides that no tribunal (including the Commission) has the power to review an order under s 173 except as provided by Division 1A (which is concerned with 'reviewable action'). If s 173(2) only empowered 'reviewable action', s 173(9) would be otiose; (f) sections 173(5) to (7) contemplate that s 173(2) authorises both reviewable and non-reviewable action since those subsections create a special 'show cause' procedure only in respect of 'reviewable action'. If s 173(2) only empowered 'reviewable action' to be taken, then s 173(5) would simply have referred to an order having been made under s 173(2), rather than singling out 'reviewable action' for special attention; (g) the Explanatory Memorandum to the Police Service Amendment (Complaints and Management Reform) Act 1998, which introduced s 173 in its present form, contemplated that s 173(2) authorised both 'reviewable action' and 'non-reviewable action': Division 1 (Misconduct and unsatisfactory performance) empowers the Commissioner of Police to order that certain kinds of action be taken with respect to a police officer who engages in misconduct or whose performance is unsatisfactory (proposed section 173). The more serious action (referred to as reviewable action) can only be taken following a 'show cause' process. Reviewable action is reviewable only in accordance with Division 1A or by the Supreme Court in the exercise of its jurisdiction to review administrative action. Non-reviewable action (which comprises action referred to in proposed Schedule 1) is reviewable only by the Supreme Court in the exercise of its jurisdiction to review administrative action. (emphasis added) 25 Because Sams DP considered that s 173(2) did not empower the making of an order for 'non-reviewable action', including a 'non-disciplinary transfer', it appears his Honour felt it necessary to identify another source of power for the making of an order for 'non-reviewable action'. In that respect, his Honour seems to have been of the view (there was no express finding in this regard) that a 'non-disciplinary transfer' order was empowered by s 171(2) of the Act. 26 Section 171 is referred to in his Honour's decision at [72]: [72] Mr Howell described s 171(2) as the source of power for interim management action to be taken in the form of a transfer pending the conclusion of a more formal process under s 173 or 181D of the Act. This is precisely what occurred in this case when Sgt Skelly was transferred to Newcastle LAC on 5 May 2008, where he would be under close supervision pending what was then a possible s 181D loss of confidence process and later a s 173 process. In agreeing with Ms Sharp that the words of the statute must have some meaning and have some work to do, in my opinion, the taking of interim management action pending final management action is precisely the kind of transfer contemplated by the term 'non disciplinary transfer' in Schedule 1. That it is referrable to the provisions of the Act dealing with an officer's misconduct or poor performance, strengthens the conclusion that a 'non disciplinary transfer', during an Interim Management Plan, is a 'holding' or interim arrangement pending final determination of whether more serious action is to be taken. … 27 We also note what was said earlier at [43]: [43] On the construction issue, Mr Howell agreed with Mr Sharp on the principles to be applied by the Commission. However, the Commission needs to have regard to context and that included the relevant legislative history, particularly emanating from the Wood Royal Commission. This demonstrated that both the context and the ordinary English meaning of the words arrive at the same conclusion - a 'non disciplinary transfer' is not a transfer for the purpose of promoting or enforcing discipline, but rather it is a procedural adjunct following receipt of a complaint which is designed to facilitate a management trial, pending final determination of the complaint. It comprehends having an end point. Mr Howell said he had never contended that non reviewable action cannot be taken under s 173 of the Act. The fact is that the two notions sit inconsistently in the same section. 28 We think his Honour's interpretation of s 171(2), that it is the source of power for effecting a non-disciplinary transfer as an interim measure pending final determination of a complaint, strains the construction of the Act to breaking point. There is no basis in the Act for the proposition that a non-disciplinary transfer can only be an interim measure. By virtue of s 173(1), Schedule 1 lists those actions that are non-reviewable. There is no basis to suggest that any of the listed actions have a different scope of application. In other words, there is no basis for the proposition that all of the actions listed constitute the form of final action that may be ordered in response to a finding of misconduct, but in respect of a non-disciplinary transfer the Commissioner was only empowered to order it as an interim measure. 29 What s 171(2) does is allow action to be taken, inter alia, under s 173 in respect of a complaint under Pt 8A even though action on the complaint has yet to commence or is in progress under that Part. The provision is not a substitute source of power for s 173(2). Whether s 173(2) empowers the making of an order for a non-disciplinary transfer

30 It follows from our finding that s 173(2) concerns both reviewable and non-reviewable actions that any such actions (whether of the type appearing under that sub-section or Schedule 1 to the Act) must derive from a determination that an officer has engaged in misconduct. This conclusion must be reached given the preamble to s 173(2). 31 If the ordinary experience of employment issues associated with misconduct outside of the Police Force is applied, the corollary of this conclusion would be that all actions under Div 1 of Pt 9, whether reviewable or not, would have derived from or been related to the discipline of an officer or, as it is sometimes referred to, disciplinary action. Indeed, this submission was advanced by the appellant. 32 If this approach were adopted, then the words 'non-disciplinary transfer' appearing in Schedule 1 would appear contradictory or even absurd. This accounts for the incredulity contained in Sams DP's finding that 'I do not see how it is possible that a transfer which arises from the disciplinary process can be a "non-disciplinary transfer"'. 33 However, we do not consider that the legislature intended that Divs 1 and 1A of Pt 9 of the Act would operate in such a manner. 34 The use of 'misconduct' as the common denominator from which the Commissioner may take 'action' under Div 1 of Pt 9 of the Act demonstrates that a distinction has been drawn between the conduct engaged in by the officer and the action that may be taken in consequence. The gravity of the misconduct may act as the 'yardstick' which will govern the 'action' taken by the Commissioner. But it is not determinative of whether a review may result from an action in a particular case. The determinant of whether the action is reviewable or not depends upon the nature of the action taken by the Commissioner. Hence, the Commissioner may take a non-reviewable action, even when the misconduct is of more significant gravity.

35 The legislature has, in our view, delineated between reviewable and non-reviewable 'actions' based upon the character of the action taken by the Commissioner and, ultimately, in that respect, upon the nature of the disciplinary action to be taken. 36 That dichotomy is discoverable from the face of the legislation, without recourse to extrinsic materials or the history of the legislative provisions to which we will return. It is revealed by the absence of any requirement for actions taken under Schedule 1 to be the subject of the formal notice and hearing processes specified in s 173(5), which are, of course, the preserve of more significant disciplinary events under the Act such as the removal of a police officer under s 181D. This conclusion is also broadly supported by the nature of the orders available under s 173(2) which is reflective of more serious actions commonly associated with disciplinary actions as opposed to actions available under Schedule 1, which, by and large, represent milder forms of corrective or rehabilitative action. Whether an apt description of Schedule 1 action is remedial or managerial, the essential difference between those actions and those taken as reviewable actions is the intention, in the former case, to correct or adjust behaviours, where misconduct has occurred, without any intention to engage in a strictly punitive, disciplinary approach.

37 This analysis offers some explanation as to why the legislature employed the adjective 'non-disciplinary' as a description of an action of transferring a police officer under Schedule 1, although the meaning of those words is accompanied by some ambiguity as the action derives from misconduct by an officer. However, the reference to 'non-disciplinary' in the context of transfers in Schedule 1 is indicative, in our view, of the legislature's intention to situate actions in that Schedule which are essentially remedial or managerial in nature and less severely corrective.

38 This approach also explains the distinction between a Schedule 1 transfer and a transfer effected under s 69 of the Act. 39 A police officer is transferred in the exercise of the Commissioner's powers under s 69 not because the officer has engaged in misconduct. Rather, the officer is transferred in "the interests of the NSW Police Force" and, in consequence, is afforded the protections referred to under s 69(2). 40 In contrast, an officer may be subject to a transfer under s 173(2) only when the officer has engaged in misconduct. A 'non-disciplinary' transfer simply refers to an action taken because of an officer's misconduct which is remedial in nature and not an act of punishment per se. The use of the words 'non-disciplinary' are intended to emphasise that distinction, particularly given that a transfer may occur in a disciplinary context in order to effect a punishment under s 173(2)(d).

41 We do not consider that the dividing line between reviewable and non-reviewable action is the financial consequences of any action, as submitted by the appellant. We do not consider that that approach can sit comfortably with the actions identified by the legislation as delineating reviewable or non-reviewable actions. Whilst there was an absence of evidence on the question, there was no demur from the proposition that 'restricted duties' in Schedule 1 may often result in financial loss, as may a reduction in 'seniority' (referred to in s 173(2)(b)) not result in any financial loss. Nor do we consider that those actions may be bifurcated as between reviewable and non-reviewable action on the basis of them having financial or non-financial consequences. This is inconsistent with the clear delineation of actions between s 173(2) and Schedule 1 of the Act. 42 The reference to 'no financial loss' in relation to the expression 'change of shift' in Schedule 1 does tend to support the appellant's contention in this respect, but should be understood as one of a number of limitations governing the use of that form of non-reviewable action found in the brackets following the expression in Schedule 1. 43 This conclusion is well supported by the extrinsic material. 44 Chapter 4 of the Final Report (Volume II: Reform) of the Wood Royal Commission contained the following observations: (a) the (then) current police disciplinary system was criticised because of 'its concentration on punitive, rather than remedial action ' (emphasis in original) (para.4.1); (b) the police service needed to 'turn to a more remedial management-based system of discipline' (para.4.4); (c) 'A primary concern in relation to the complaints system is that it is not well related to supervision, or to managerial improvement of the performance of staff about whom complaints are made ' (emphasis in original) (para.4.7); (d) 'The Commission is firmly of the view that the Service should endeavour to move from the more adversarial model to a more managerial or remedial model that places the responsibility on commanders at patrol or equivalent level to deal with complaints and matters of discipline' (para.4.12); (e) in para 4.29 the Report indicated 'While the expectation is that resort to behavioural management strategies rather than punishment will be sufficient in most cases, there will be occasions of serious misconduct where, although falling short of justifying dismissal or criminal prosecution, some form of personal detriment will be required to act as a deterrent, and to meet the reasonable expectations of a complainant. It is for this reason that the managerial process needs to include a disciplinary component, although resort to the latter should occur only when the Local Commander is satisfied that simple remedial intervention is insufficient'; (f) 'The options available in the case of bad performance should fall into two categories, one of which is reviewable and the other of which is not' (para.4.33); (g) The Royal Commission identified that one instance of non-reviewable conduct involved the 'transfer from a particular area of work', which it identified as a way 'in which improvement can be achieved' (para.4.33); and (h) 'The Local Commander would not be expected to use any of the reviewable options unless satisfied that there was no option within the non-reviewable category appropriate for the circumstances of the case' (para.4.34) (emphasis added). 45 A 'two-tiered approach' was said to be confirmed by the second reading speech to the Police Service Amendment (Complaints and Management Reform) Act 1998 ('the 1998 Act'), which introduced s 173 in its present form. The amendments made by the 1998 Act to the Police Service Act 1990 were largely based upon recommendations made in the Wood Royal Commission. In this respect, the Minister for Police, Mr Whelan, relevantly said (Legislative Assembly, Hansard, 21 October 1998 at 8790) that the 1998 Act was '[b]ased on the recommendations in chapter 4 of the Final Report of the Royal Commission … [and] overhauls the complaints and discipline provisions of the Police Service Act 1990.' 46 The appellant relevantly noted the following from the second reading speech: (a) 'A primary concern of the Royal Commission was that the complaints system was divorced from the supervision responsibility of managers, and from a managerial commitment to improve the performance of staff about whom complaints are made … The Royal Commission was firmly of the view that the Police Service should move from a formal adversarial model to a more managerial or remedial mode' (8790); (b) The 1998 Act would repeal 'the outdated discipline system based on proving discipline charges in an adversarial manner and imposing punishment' (8790); (c) 'Emphasis will be placed on using appropriate modern management tools to improve performance and correct instances of minor misconduct. These tools include coaching, mentoring, training and development, counselling, increased professional, administrative or educational supervision, and performance enhancement agreements. Other approaches will also be available for use when necessary. These can include issuing a reprimand, imposing restricted duties, the recording of adverse findings and a change of shift for a limited period' (8790); (d) 'In accordance with Royal Commission recommendation 72, sanctions of reduction in rank or grade, reduction in seniority and deferment of an increment will be available for the more serious cases where some form of personal penalty is required to act as a deterrent . In accordance with Royal Commission Recommendation 74, a right of review to the Industrial Relations Commission is available for those sanctions where their imposition may have a financial impact ' (emphasis added) (8791); (e) The 1998 Act 'does not provide for external review provided for managerial actions which do not impact financially ' (emphasis added) (8791). 47 Whilst there is a reference to 'financial impacts' in the Second Reading Speech, we do not think that the reference should be construed as representing the basis for delineating reviewable and non-reviewable actions, but, rather, as a means of explaining a reviewable action as one having a particular disciplinary or punitive aspect. The Final Report of the Wood Royal Commission and the Second Reading Speech assist in the understanding of the legislative scheme, namely, that an additional, strictly non-disciplinary or non-punitive course of action was made available to the Commissioner of Police to deal with misconduct by a police officer. 48 The provisions of s 173(2) and Schedule 1 are inconsistent with the notion that the legislation had intended to distinguish between available actions based upon purely financial criteria. The extrinsic material does, however, provide substantial support for the appellant's submission that a distinction is to be made between reviewable action and non-reviewable action, with the former to be regarded as a sanction directed to more serious forms of misconduct and the latter being directed to rehabilitating the officer or to the taking of remedial action rather than have the objective of punishment. 49 In this light, we do not consider Sams DP was correct in concluding that "I do not see how it is possible to conclude that a transfer which arises from the disciplinary process can be a non disciplinary transfer", although we would prefer to describe the operation of the legislation as being that the Commissioner may choose a non-punitive transfer as a means of dealing with misconduct by a police officer. Whether order was for reviewable action

50 We have determined that Sams DP erred in finding that a non-reviewable order involving a non-disciplinary transfer could not be made under s 173(2). In the context of what constitutes non-reviewable action, we have also determined his Honour erred in finding that a transfer which arises directly from a disciplinary investigation and sustained findings of misconduct could not be a non-disciplinary transfer. In other words, s 173(2) empowers the Commissioner to make an order for non-reviewable action involving a non-disciplinary transfer consequent upon findings of misconduct. 51 Given our finding that the purpose of a non-disciplinary transfer is remedial and that reviewable orders are made for the purpose of punishment, it remains to determine the nature of the action taken by the Commissioner.

52 In considering the purpose of the order, firstly, the order itself states that it is a non-reviewable order being an order for a non-disciplinary transfer and that reviewable action was not being taken. Secondly, the order explained why reviewable action was not being taken: I have taken into consideration the fact that your son also participated in the physical altercation on 17 March 2009, and that he does not wish to take the matter any further. These factors do not alleviate my concerns in regards to your conduct but you should be aware that these matters have influenced the decision to refrain from taking further management action against you including reviewable action . (emphasis added) 53 Thirdly, the order expressly stated that the purpose of transferring Sergeant Skelly was so that he would be subject to increased supervision.

54 The counterpoint relied upon by the respondent, and adopted by his Honour, was that following an investigation of the incident involving Sergeant Skelly's son, the Police Force took the view that the assault amounted to serious misconduct warranting criminal charges and punishable by a s 181D dismissal process (see [75]-[76]). His Honour found there was no satisfactory or logical explanation as to how it was, in those circumstances, that the conduct was purportedly dealt with in a manner involving no punishment at all, via a non-disciplinary transfer (see [75]). Accordingly, the position of the respondent was that as the appellant regarded Sergeant Skelly's conduct as serious enough to warrant removal, it must follow the true purpose of the s 173 order was to punish Sergeant Skelly and, therefore, and in truth, the transfer was for disciplinary purposes and subject to review.

55 Whilst his Honour was in error in his understanding of the distinction between reviewable and non-reviewable action, we do consider that the aforementioned factors are relevant for the assessment of the action taken by the Commissioner. So, too, is the further factor relied upon by the respondent, namely, that the respondent had suffered some financial and non-financial detriment by virtue of the transfer. 56 An assessment of whether an action taken by the Commissioner was under ss 173 and 174 is not to be determined entirely by the labelling of that action by the Commissioner. Objective factors must also be taken into account to ascertain the intention and effect of the order. We do not, however, consider that the factors alluded to by the respondent in this case really cast any doubt upon the description given by Superintendant Rae to the transfer. It is particularly so in the light of the clear and unchallenged evidence of Inspector Woolf. 57 Most significantly, Inspector Philippa Woolf, the NSW Police Human Resource Manager for the Northern Region, gave sworn evidence that there was not a high level of front line supervision available in the Macquarie Local Area Command. Inspector Woolf also said that Gosford Police Station offered the 'greatest scope for supervision and support' for Sergeant Skelly. The Inspector explained that: At Gosford, there is an inside supervisor, a custody sergeant and a mobile supervisor on each shift. Working as a sergeant at Gosford, Mr Skelly would be under the direct supervision of a duty officer on all shifts. Being housed in the same building as the Duty Officers means there is a greater opportunity for contact with the supervisors, and therefore increase supervision and mentoring opportunities. 58 Inspector Woolf was not required for cross-examination and her evidence was unchallenged. We accept that Inspector Woolf's evidence corroborated the stated reasons in the s 173 order, namely, 'I have concluded that you require greater supervision than is available to you while stationed at Boolaroo police station.'

59 We find that the s 173 order made by Superintendent Rae on 7 January 2009 was an order for non-reviewable action. Orders

60 The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld and the decision and orders of Sams DP are quashed. (3) The respondent's application under s 174 of the Police Act 1990 is dismissed. _____________________

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