On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.
31 In Lennard , Tobias JA also referred with approval to R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681. In that case, Spigelman CJ observed (at 687 [13]-[15]):
[13] The contemporary approach to construction is well described as 'literal in total context' (E Dreidger Construction of Statutes (2nd ed, 1983) p2). See eg CIC Insurances Ltd v Bankstown Football Club Ltd (1995-97) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490; 72 ALJR 841 at [69]. The courts no longer "make a fortress out of the dictionary" ( Cabell v Markham 148 F2d 737 (1945) at 739 per Learned Hand J.
[14] Putting to one side obvious typographical errors (see Bennion Statutory Interpretation (3rd ed, 1997) pp675-677), the court supplies words "omitted" by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable form, the true construction of the words actually used. In my opinion, the authorities do not warrant the court supplying words "omitted" by inadvertence per se.
[15] Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. ( McAlister (1990) 169 CLR 324 at 330; R v Di Maria (1996) 67 SASR 466 at 472-474). If a court can construe the words actually used by the Parliament to carry into effect the Parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the Court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction.
The Relevant Legislative Scheme
66 Section 173(1) identifies the two forms of action available under the Act:
(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.
67 Section 173(2) identifies what is 'reviewable action' for the purposes of this Division:
(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.
68 It will be immediately observed that there is no definition of a disciplinary transfer in s 173(2). However, there can be no doubt that there is a power for the Commissioner to impose a 'disciplinary transfer' under s 173(2)(d) - 'any other action that the Commissioner considers appropriate'. Indeed, the power to do so has often been exercised, although usually in conjunction with some other reviewable action, such as a reduction in rank or deferral of a salary increment. This power is also to be found in the Force's own policy document for handling complaints against officers - the Complaints Handling Guidelines. At page 84, s 173 reviewable action is defined as:
s deferral of an officer's increment
s reduction in rank
s disciplinary transfer
s permanent removal from specialist duty
s forced payment of compensation to the NSW Police Force where the officer has been negligent
s any other action (other than dismissal) that the Commissioner considers appropriate.
69 It follows, therefore, that there can be no room to doubt that there exists both disciplinary and non disciplinary transfers as a matter of both policy and practical application and that a disciplinary transfer must be reviewable action for the purposes of the Act. This, of course, does not answer the question as to what is a 'non disciplinary transfer'?
70 'Non reviewable action' is identified at Schedule 1 of the Act and relevantly refers to a non disciplinary transfer:
coaching
mentoring
training and development
increased professional, administrative or educational supervision
counselling
reprimand
warning
retraining
personal development
performance enhancement agreements
non-disciplinary transfer
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)
restricted duties
recording of adverse findings
71 A convenient starting point is s 171 of the Act, which is expressed as follows:
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.
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. The corollary of this proposition, it seems to me, is that in the absence of any consequential adverse findings against the officer, he or she would expect to be returned to their previous position as a matter of course. My view as to this aspect of the interpretation of the words, is supported by the Force's Complaint Handling Procedures at page 12:
Taking interim management action is legally provided for through section 171(2) of the Police Act ('...action on a complaint may be taken otherwise than under this Part...').
Interim management action can be taken at any time in relation to a complaint matter until final management action is determined and implemented. It is critical that any action taken is clearly recorded as 'interim management action' to differentiate between this action and final management action. Taking interim management action does not prevent a commander from taking final management action. The interim management action is taken in response to an identified risk while managing the complaint allegation . (my emphasis)
73 Further support for my conclusion can be found in the Force's Transfer and Tenure Policy which defines a management transfer as:
Management Initiated Transfer
A transfer that is initiated by NSW Police to address particular skills, experience and/or staffing needs at an identified location. Management Initiated Transfers are not initiated to address the conduct or work performance concerns of an individual.
Management Transfers - Performance
A transfer arising as a result of concern about the conduct or work performance of an officer. Management Transfers are limited to exceptional circumstances and may be given effect under the provisions of Section 173 of the Police Act 1990.
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.
75 Firstly, there was no satisfactory explanation - let alone a logical one - as to why conduct, which at various points in the process was considered as warranting criminal charges and punishable by a s 181D dismissal process, should end up at the very lower end of the seriousness scale; indeed, on the Force's own case, said to be no punishment at all. The explanation that Mr Skelly Jr's affidavit of 4 August 2008, changed everything is, with respect, 'clutching at straws' and cannot be accepted. I note that AC Shearer and the CMT believed that it changed nothing. Moreover, the fact that the Force knew full well Mr Skelly Jr did not intend to give evidence against his father was known months before when he told Sgt Holmes on 17 March 2008, and also when he was interviewed by Insp Lundberg. His affidavit did no more than confirm his earlier stated intention. It had, in reality, changed nothing.
76 Secondly, the terms of the order itself (expressed almost as if it is a final warning) and the fact that the Force considered the allegation of assault had been sustained departmentally, makes it pellucidly clear how serious the Force regarded the allegation of misconduct. It beggars belief that these conclusions would lead to no more than a non punitive outcome, particularly considering Sgt Skelly had been the subject of a Commander's Warning and reviewable action for similar conduct only a few years earlier.
77 Thirdly, the s 173 order will result in Sgt Skelly's transfer from his current desk duties at Newcastle under an Interim Management Plan, involving strict supervision, to an operational role, involving supervising junior officers dealing with the public. Given the Force's concern with a second sustained finding of assault, and its view that Sgt Skelly had 'anger management issues', it is difficult to understand the rationale for transferring him to a front line policing role with a public interface.
78 Fourthly, as I will later develop, there is no doubt that Sgt Skelly's transfer will have a punitive effect on him. It is difficult to comprehend why, if it wasn't to punish, that the Gosford station was selected, particularly where it would seem unarguable that other closer locations would provide him with the equivalent or similar level of supervision and support. It is about as far as one can go south without crossing the regional boundary.
79 It will be seen that I have not relied on the objected to evidence of Sgt Skelly's conversations with Supt Rae (see paras 26 to 28), although it is open to conclude that the conversations corroborate those aspects of the evidence I have just referred to.
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. 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. 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.
82 Ms Sharp submitted that the Force's definition of a non disciplinary transfer was that it is a rehabilitative response, rather than a punitive response to an incident/s of misconduct. While I do not find it strictly necessary to respond to this contention, I would make a few observations to demonstrate the irrationality of that definition in the present context. I would begin by referring to the dictionary definition of 'punitive'. In the Concise Oxford Dictionary it is defined as 'inflicting or intended to inflict punishment'. The Macquarie Dictionary defines it as 'serving for, concerned with or inflicting punishment'.
83 Ms Sharp's definition is predicated on a distinction between a rehabilitative response and a punitive one. In my view, such a distinction is cloudy and unclear and, in a disciplinary context, cannot be differentiated as Ms Sharp would suggest. It seems to me that most, if not all disciplinary action, will be intended to have an element of rehabilitation attached to it. In other words, it would be a curious notion indeed to suggest that whatever disciplinary action is imposed, it would have no bearing at all on whether the officer was likely to engage in similar misconduct in the future, i.e. whether the officer had been rehabilitated. Support for this proposition is available by reference to s 173(3) which permits the Commissioner to order reviewable action where an officer has been required to participate in a remedial performance program, but whose performance is still considered as unsatisfactory. To me this demonstrates the clear link between rehabilitative responses and punitive (reviewable action) ones.
84 Even so, in my opinion, a non disciplinary transfer might well be punitive in its effect, even if it was not the intent of the decision makers. As I earlier said, I do not consider that a case has been made out as to the intent of the decision makers, and, for present purposes, I need not get to that step. I do not accept that a transfer, particularly a forced one, is not punitive simply because the officer suffers no loss of income, rank or seniority. On one view, by its very nature, 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. Putting this aside, the fact is, (as is the case here), that the additional transport costs in terms of time and actual expense must constitute a punitive effect. Obviously, it will be a matter of degree, and in some cases, might in fact, result in some advantage (eg. if a transfer was effected closer to home). However, the question of degree, is more properly addressed in considering whether a s 173 order is 'harsh, unreasonable or unjust'. At this point in the proceedings, that is not a relevant factor. In my opinion, Sgt Skelly will be impacted upon, in a punitive way, by being transferred from Lake Macquarie to Gosford. In applying the ordinary meaning of the word 'punitive', the order must be seen, at the very least, as being 'concerned with punishment'. Ms Sharp's definition, therefore, cannot be sustained.
85 When viewed in terms of Ms Sharp's definition of a non disciplinary transfer, which I have rejected, I do not consider that the principle of the 'presumption of regularity' for which she further contends, is able to be maintained. I would also rely on what I said in an earlier notice of motion in this matter: Daniel Skelly and Commissioner of Police [2009] NSWIRComm 70 at par [11]:
11 Further, in my opinion, the intent of the order cannot be established by simply looking at the terms of the order itself. That may reveal absolutely nothing about the intent of the order, and, of course, say nothing about its effect. Nevertheless, such inquiry may not mean any such order was made in 'bad faith'. In my view, one must go behind the reasons for the order in order to obtain a full and complete picture of all the relevant facts and circumstances of a particular case.
86 Further and finally, when looking at the context and purpose of s 173 in particular, and from 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. Mr Howell's references to the extrinsic material of predecessor legislative provisions dealing with police discipline, the findings of the Wood Royal Commission and their legislative manifestation, make good this proposition. In my view, if the Commission was to dismiss this application for want of jurisdiction, in circumstances where a serious finding of misconduct could not be tested by this Commission, it would constitute a denial of natural justice and be contrary to both the spirit and intent of the present legislation.