Dempster v Comrie

Preliminary Issue for Determination 5 On 18 June 1999, Mr Hammond of counsel appeared for the respondents, Mr Grace QC with Mr Niall of counsel appeared for Mr Dempster. Mr Hammond contended that the Court did not have jurisdiction to entertain Mr Dempster's application as the provisions of Part XA of the WR Act have no application to decisions by the force to transfer police officers from one position to another. Consequently, Mr Hammond submitted that there was no serious issue to be tried before the Court. 6 The starting point of Mr Hammond's submission was s490 of the WR Act. That section provides as follows: "A section of this Division has effect only for so long and insofar as the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria refers to the Parliament of the Commonwealth a matter or matters that result in the parliament of the Commonwealth having sufficient legislative power for the section so to have effect." 7 The Commonwealth Powers (Industrial Relations) Act 1996 (Vic) ("the State Act") referred to the Parliament of the Commonwealth "certain matters relating to industrial relations". See s1(a) of the State Act. Section 4 of the State Act provides that certain powers of the State Parliament relating to industrial matters are specifically referred to the Commonwealth Parliament. For material purposes, s4(6) of the State Act provides that: "The matter of freedom of association, namely the rights of employees, employers and independent contractors in the State to join an industrial association of their choice, or not to join such an association, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth is referred to the Parliament of the Commonwealth for a period commencing on the day on which this subsection commences and ending on the day fixed under or by section 6 as the day on which the reference of that matter under this Act terminates but no longer." 8 Section 6 of the State Act provides for the termination of references under that Act. It was not suggested by Mr Hammond or Mr Grace that the reference provided in s4(6) of the State Act had terminated. 9 Part XA of the WR Act, which makes comprehensive provision with respect to freedom of association "has effect in relation to conduct in Victoria". See s496 of the WR Act. 10 Although the provisions of Part XA can be called in aid by most workers in Victoria, Mr Hammond contended that the effect of s5(1)(b) of the State Act was that Part XA of the WR Act could not be called in aid by a police officer to challenge the force's transfer of her or him "from place to place or position to position". 11 Section 5 of the State Act is headed "Matters excluded from a reference". Section 5(1)(b) of the State Act provides that: "A matter referred by a subsection of section 4 does not include ... (b) matters pertaining to the number, identity, appointment (other than matters pertaining to terms and conditions of appointment not referred to in this paragraph), probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers." 12 Section 3 of the State Act defines "law enforcement officer" to include "a member of the police force". Mr Hammond's short point was that the power to transfer or discipline a police officer was not a matter that had been referred to the Commonwealth Parliament. For the purposes of this case, the effect of that submission is that Part XA of the WR Act cannot be availed of by a police officer in Victoria to prevent a transfer for disciplinary or other reasons or to punish her or his "nominated employer", the first respondent, or the state for such conduct even if it was conduct that would ordinarily have led to orders being made under Part XA of the WR Act to remedy it or punish the perpetrators of it. 13 Mr Grace contended that the purpose of s5(1)(b) of the State Act was to prevent the Australian Industrial Relations Commission from making any awards dealing with the matters set out in the paragraph. He further contended that one is unable to shelter behind s5(1)(b) if the purpose of the transfer is to victimise a police officer in the context of Part XA of the WR Act. 14 Mr Grace also submitted that even if Mr Hammond's submissions about the relationship between the State Act and Part XA of the WR Act are correct, there still remains Mr Dempster's reliance on the accrued jurisdiction of the Court. I will later deal with the accrued jurisdiction issue. It is important before doing so to consider the competing submissions on the effect of s5(1)(b) of the State Act. In so doing it is instructive to consider the background to its introduction. 15 The Commonwealth Powers (Industrial Relations) Bill 1996 ("the Bill") when read for a second time by the Premier in the Legislative Assembly on 19 November 1996 did not contain the provision which later became s5(1)(b) of the State Act. When the Bill received its second reading in the Legislative Council in early December 1996 amendments were moved to it during the committee stages of the debate. Those amendments include what became s5(1)(b) of the State Act. 16

17 At pages 1068-1069 of the Hansard of the Legislative Council Debates on 5 December 1996, the Minister for Industry, Science and Technology, the Honourable M A Birrell, said as follows: "My comments will broadly relate to a number of other amendments which involve the issue of law enforcement officers and the police. As part of this reform we will be transferring the broad industrial relations jurisdiction that covers the Victoria Police Force and other law enforcement officers such as police recruits and police reservists into the federal jurisdiction. Although one option open to the government was to refer all industrial relations powers other than those applying to Victoria police we did not regard that as desirable because it would have meant having a free‑standing Employee Relations Commission that applied only to the police, and we regard it as important that we have a single jurisdiction. We should make this transfer with our eyes wide open because there are matters, other than those matters pertaining to the terms of employment, that should remain the prerogative of Victorian Police command. We make that distinction, rich in the knowledge that one of the great challenges for any government is to have a police force that is free of corruption, whose command can correctly discipline the small number of individuals who fit into the category of 'crook cops'. Historically, the Victoria Police Force has been largely free of accusations of corruption or impropriety and has been highly respected. There is no doubt that the way to achieve that is to have the ability to rigorously discipline individuals who are unfortunately not living up to the high standards of the balance of the force. This amendment, and the others that relate to it, result from the government's belief that it is important that matters already covered by, for example, the Police Regulation Act continue to be the domain of state government and that they correctly relate to the powers which should be exercised judiciously and fairly by police command. The amendment is broadly a restatement of the status quo in Victoria. The government and police command believe it is important. In the long term it will be the difference between having an honest police force and allowing the rare 'crook cop' to use the legal system to get re‑employed against the wishes of an honest command which has gone through the proper process. There is no academic issue, and there is no better example of that than the action of the New South Wales Labor government in acting with public support to ensure its police are subject to proper disciplinary mechanisms rather than industrial relations legalisms that let off some of the crooks. An editorial published in the Sydney Morning Herald of 29 November 1996 - it shows how contemporary this issue is - praises the Carr government:

The police association (of New South Wales) continues to claim, though, that the reforms -

and the Minister is here quoting from the Sydney Morning Herald:

"mark 'the darkest day in the history of New South Wales industrial relations'. This response does not fit the facts. With the assistance of the opposition (which also deserves credit for standing firm), the reform legislation introduced by the Carr government has abolished a longstanding rort that has allowed corrupt police to exploit a legalism in the NSW industrial relations system. Since 1985, 75 per cent of police sacked because of criminal conviction have been reinstated by industrial tribunals. Sacked police will have appeal rights under administrative law, but they will no longer be able to go to the Industrial Relations Commission." That is the end of the Sydney Morning Herald quote. The Minister continues:

"There are certainly long‑standing legal and legislative precedents for police forces being uniquely different, as in the case with defence forces. When people join a police or defence force, they do so in the knowledge that they are joining a military‑type organisation that has statutory protection responsibilities. As Premier Carr in New South Wales has found, that means having a different industrial relations regime for the police. That industrial relations difference is the status quo in Victoria, and these amendments will retain that status quo as a right. Police Command will have the capacity to discipline or geographically transfer officers and give directions on other matters such as the colour of the uniform or the style of the dress, and the disgraceful legalisms which have been allowed to exist in other states which have led to crook cops being put back into the police force, will not occur here. The government says up front that members of the police force are different from other public sector employees. It is not just that the Victorian government happens to agree with the Carr government on this matter. The government also draws the attention of the house to recommendations of the New South Wales royal commissioner that a number of measures be introduced into the New South Wales police force on which the Carr government has acted. Those measures are a clear indication of the type of command required by the chief commissioner. They include the right of the commissioner to control appointments, transfers and removals, and broad‑ranging disciplinary powers. It is correct to do this; and the government does so openly and honestly. It represents the status quo in Victoria, but the government emphasises that in the absence of these provisions the legalisms of the industrial relations system - it is fairly cheap IR law, more politics than law -would be able to prevail."

18 It is apparent from the Minister's speech that the intention of the State Parliament was to inter alia, not refer to the Commonwealth Parliament any power to legislate to limit the right of the first respondent to transfer a member of the force, even for a reason which may be prohibited under Part XA of the WR Act. 19 I accept Mr Hammond's submission that the Court has no jurisdiction to entertain a claim by Mr Dempster based on Part XA of the WR Act with respect to the intention of the respondents to transfer him out of the force's training department.

20 Mr Grace submitted that there remains a serious issue to be tried based on the accrued jurisdiction of the Court. By his application, Mr Dempster, apart from reliance on Part XA of the WR Act, seeks to invoke the accrued jurisdiction of the Court to seek orders "in the nature of certiorari and prohibition". Mr Dempster alleges that the decision to transfer him was unlawful in that: (1) it was not authorised by the Police Regulation Act 1958 (Vic)

(2) Mr Ashby, the second respondent, was not authorised to make the decision

(4) the decision was made contrary to natural justice or procedural fairness; and

(5) the decision was made "at the direction or behest of another". 21 The Court is empowered to hear a claim made in the accrued or associated jurisdiction of the Court even where there is a complete absence of power to determine the primary claim, unless the primary claim is colourable or made for the purpose of fabricating jurisdiction. See Gunnedah Shire Council v Grout (1995) 134 ALR 156. 22 It is not clear whether Mr Dempster's non‑WR Act claims rely on the common law and hence seek to invoke the accrued jurisdiction of the Court or whether those claims rely on the Police Regulation Act 1958 (Vic) and seek to invoke the associated jurisdiction of the Court referred to in s32 of the Federal Court of Australia Act 1976 (Cth). The Court's accrued jurisdiction to hear non‑federal common law claims arises from ss75 and 76 of the Constitution. See Stack v Coast Securities (1983) 154 CLR 261, 290-294 and Sutherland v Fabglass Bathroom Products Pty Ltd, Industrial Relations Court of Australia, Marshall J, 26 July 1995, unreported. 23 There is no reason to suggest that Mr Dempster's claim under the WR Act was not made bona fide. Mr Grace's submission in support of the Court's jurisdiction to entertain the claim was, whilst ultimately unsuccessful, nonetheless arguable. It was only when the Court considered the relevant Parliamentary Debates that the correctness of Mr Hammond's submissions on that point was clear. Consequently, in my opinion, the Court is unable to dismiss Mr Dempster's application for interlocutory relief in a context where no full or final argument was put on the question concerning whether such relief should be granted by reference to the claim made in the accrued and/or associated jurisdiction of the Court. When the Court comes to consider the grant of interlocutory relief by reference to the non-WR Act claims, one consideration which will loom large on the question of balance of convenience is whether or not Mr Dempster's current secondment expires on 30 June 1999. If the secondment expires on 30 June 1999 there would be little utility in granting interlocutory relief which would operate beyond then. 24 The Court will further consider the application for interlocutory relief tomorrow by video link between Melbourne and Adelaide. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Dated: 21 June 1999 Counsel for the Applicant: Mr D Grace QC with Mr R Niall

Solicitor for the Applicant: Holding Redlich

Counsel for the Respondents: Mr J Hammond

Solicitor for the 1st and 2nd Respondents: Freehill Hollingdale & Page

Solicitor for the 3rd Respondent: Victorian Government Solicitor

Date of Hearing: 18 and 21 June 1999

Date of Judgment: 21 June (ex tempore as revised from the transcript)