Denshire v Commissioner of Police, New South Wales Police Force

Evidence

1. As I set out earlier, the respondent led evidence about the reason for the Direction and Vaccination Requirement. This evidence was from David Driver. Superintendent Driver is an officer within the Professional Standards Command of the NSWPF, and was previously responsible for Work Health and Safety matters within the New South Wales Police Force and this included COVID-19 responses. He set out in considerable detail a history of: 1. The NSWPF Enforcement of COVID-19 Public Health Orders; 2. Priority access to COVID-19 vaccines granted to members of the NSWPF; 3. Mandatory vaccination requirements for NSWPF members in certain settings prior to 7 September 2021, such as in hotel quarantine; 4. Encouragement by the NSWPF for its members to become vaccinated; 5. The impacts of the Delta outbreak from June 2021 and how this had several impacts which caused greater numbers of NSWPF members to become infected and the impact on NSWPF workforce of infections and mandatory isolation; 6. How Public Health Orders, driven by the Delta variant, prevented NSWPF members living in certain Local Government Areas from attending work if they were unvaccinated; and 7. The information provided via the NSWPF intranet about COVID-19 infection controls and the benefits and availability of vaccination.
2. Superintendent Driver set out the process whereby the NSWPF concluded that, especially in light of the Delta variant outbreak, lower order mitigants were no longer satisfactory and the NSWPF needed to mandate what it considered the higher order mitigant of vaccination for all NSWPF members. His evidence was that, given the size of the workforce and the urgency of the situation, an expedited process was needed to implement the vaccination requirement.
3. Superintendent Driver's evidence was that in lieu of upfront of workforce-wide consultation and given the volume of material already provided to NSWPF members about vaccination, and the fact that approximately 80 per cent of the NSWPF workforce were fully vaccinated, specific concerns of individual members could be properly addressed via the exemption request process.
4. He gave evidence of discussions the NSWPF had with both the Police Association and the Public Service Association about the Vaccination Requirement.
5. Superintendent Driver's evidence was that the Vaccination Requirement remains in force for NSWPF members.

The Police Act

1. Pursuant to s 181E of the Act, "[a] police officer who is removed from the NSWPF by an order under s 181D may apply to the Industrial Relations Commission for a review of the order on the grounds that the removal is harsh, unreasonable or unjust".
2. Section 181F of the Act sets out several important matters as to the conduct of reviews under s 181E. 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows - (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to - (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)).

The Commissioner's reasons

1. The Commission's reasons are to be found in the Statement of Reasons which accompanied the respondent's order under s 181D(1) of the Act, both dated 1 June 2022, although served on the applicant on 8 July 2022.
2. The Statement of Reasons set out: " … As set out in the notice, I am very concerned by your conduct … . I expect the high standards of behaviour from sworn officers of the NSW Police Force and all NSW police officers to place integrity above all. The NSW Police Force is a hierarchical disciplined organisation, and you are required to comply with all lawful orders. You are a Senior Constable with 18 years of service and experience. I expect you to always act in accordance with your obligations under the Police Act 1990 and the NSW Police Force Code of Conduct and Ethics. You also have a statutory obligation to comply with the Act, Code and the Police Regulation 2015, whether you are on or off duty. … … As you are aware, the NSW Police Force plays a vital role in the NSW Government's response to COVID-19. The risk of exposure to the virus by members of the New South Wales Police Force is high. It is a requirement of every member of the NSW Police Force to provide essential services in emergencies and to protect the public from injury or death. This includes the vulnerable and elderly, your colleagues and their families. The NSW Police Force must always be operationally ready, and all members must be ready, willing and able to perform their duties. An inability to perform every aspect of your duties has the potential to adversely impact the administration of justice. In the circumstances, I am satisfied that by choosing not to comply with the requirement to be vaccinated against COVID-19 you have decided to place your own interests ahead of the collective interests of the NSW Police Force and the Community. In your Response, you have suggested that there is insufficient consultation with you about the direction to be vaccinated, in contravention of the WHS Act. The NSW Police Force has assessed the risk posed by the COVID-19 virus. Information about the risks associated with COVID-19, in addition to being publicly available, was regularly circulated to all members of the NSW Police Force. Information about vaccination was also regularly circulated, particularly in circumstances where the NSW Government gave priority access to vaccines to all members of the NSW Police Force. The fact remains that COVID-19 presents a real risk to the health and safety of members of the NSW Police Force and their families. As SafeWork NSW has identified, vaccinated is a high order risk control that best addresses the risk. In those circumstances, the direction to be vaccinated was given to all members of the NSW Police Force in September 2021. In addition, the requirement for mandatory vaccination received public support from the Police Association of NSW. Furthermore, you had an opportunity to seek an exemption from the requirement to be vaccinated. You had an opportunity to present material as to why the requirement was not reasonable in your circumstances and you in fact availed yourself of that opportunity. In all the circumstances, the issues you raised do not address or excuse your conduct in the form of failing to comply with the lawful direction to be vaccinated. I note that in your Response you suggest that you could perform your duties from home as a risk mitigation strategy. However, operational duties must be performed in the field. Further, the operational effectiveness of the NSW Police Force relies on teamwork, collaboration and visibility in the community, which can only be achieved through in-person attendance at NSW Police Force premises, as well as in the field. It is not operationally viable for the NSW Police Force to provide alternative duties to every member of the organisation who chooses not to be vaccinated, to allow them to work from home. You are appointed to a position in the NSW Police Force and are assigned particular duties. While alternative duties can be provided on a temporary basis, for example, to an officer recovering from an injury, I will not be permanently modifying positions nor providing alternative duties for some indeterminate period to accommodate individual who choose to disobey a direction to be vaccinated. If I were to do so, this would compromise the operational effectiveness of NSW Police Force. In your response, you also say that the direction that you be vaccinated against COVID-19 is unreasonable. You say that to be enforceable, the direction must be both lawful and reasonable. You also seem to suggest that you should not be required to comply with the direction to be vaccinated by virtue of the Award. You are not an employee of the NSW Police Force, but rather you are appointed to the office of police officer on oath or affirmation. Your functions are those proscribed both in statute and the common law. They include, as set out in the Notice, the obligation to promptly comply with all lawful orders given by those in authority over you pursuant to clause 8 of the Police Regulation 2015. This includes orders given by the Commissioner of Police. Failure to comply with a lawful order is a criminal offence under s 201 of the Police Act 1990. This reflects the disciplined and hierarchical nature of the NSW Police Force. It is clear from these statutory provisions, as well as the common law and the hierarchical structure of the organisation, there is no requirement for the direction to you to be reasonable. It only needs to be lawful. I am satisfied the direction is lawful and that you have failed to comply with it promptly, or at all. Your failure to comply with a lawful direction strikes at the heart of your oath of office and obligations as a police officer. In the circumstances, I do not see how I can have confidence in your ongoing suitability to remain a police officer. In your Response, you contend that the direction that you be vaccinated contravenes your human rights. I acknowledge and accept that you have the right to accept whether or not to undergo a medical procedure in the form of vaccination. I cannot deprive you of that right or entitlement and I am not seeking to do so. The direction that all members of the NSW Police Force be vaccinated is one that all individuals can choose to comply with or not. If you decide not to be vaccinated, as part of the exercise of your rights not to subject yourself to a medical procedure, that is your decision and prerogative. However, it is my decision there is consequently no place for you in the NSW Police Force, given the risks that you will pose and the fact that you have chosen to prioritise your personal interests over compliance with the direction, which amounts to serious misconduct. You also refer to health issue that were being investigated. … Put simply, you have not provided me with any … medical contraindication certificate with your Response nor have you provided me with any medical evidence to suggest that you cannot be vaccinated against COVID-19. To the extent you rely on medical grounds, I have concluded it is not sufficient to excuse your decision not to comply with the lawful direction which amounts to misconduct. Amid one of the most significant health and economic emergencies the State of New South Wales has faced, you have deliberately chosen not to comply with the lawful directions issued by myself and the former Commissioner Fuller APM. … I have carefully reviewed all of the material associated with this matter and taken into account the character evidence and details of your career history within the New South Wales Police Force, as supplied by you in your Response. However, your decision not to comply with the direction demonstrates that you lack the integrity to continue as a police officer, and by not being vaccinated against COVID-19 you no longer have the ability to perform your duties. I can see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer. … "
3. Consideration of the Commissioner's reasons is, in my view, straightforward. They set out a rational basis, with a proportionate outcome for the Commissioner's decision to remove the applicant. They show that the applicant knew about the basis for her removal in advance, and was afforded an opportunity to respond to that basis before she was removed from the NSWPF.
4. The Commissioner's reasons speak for themselves, of note are the medical risks then faced by the NSWPF, the advice received by the NSWPF about responding to that risk, the nature of the work of police officers, the hierarchical nature of the NSWPF, and the unambiguous nature of the Vaccination Requirement.
5. The totality of these makes it hard to review the decision to remove the applicant as: 1. Harsh, given the proportionality; 2. Unreasonable, given the process; or 3. Unjust, given the breach of the Direction.
6. As set out in the Statement of Reasons, and as submitted by the respondent at hearing, I accept and proceed on the basis the direction needs to be lawful, with no requirement of reasonableness, as the applicant is a police officer. The issue of whether the direction needed to be lawful and reasonable, or only lawful, is clearly an important aspect of the Commissioner's reasons.
7. I adopt the submissions of the respondent under the heading "Direction need only be lawful" from the respondent's Summary of Case to the following extent: Paragraphs 18 to 27 and paragraph 29, including the footnotes therein. I do not adopt paragraph 28 as the portion of the reasons from the Queensland Industrial Relations Commission cited references employees. It is unclear if the Queensland Industrial Relations Commission was considering civilian employees of the Queensland Police Service, or if contrary to the submissions of the respondent, in fact sworn police officers in Queensland are employees. Direction need only be lawful 18. The Respondent submits that, having regard to the statutory scheme which governs the NSWPF, directions issued by the Respondent need only be lawful, and need not necessarily be reasonable. 19. The NSWPF is established by section 4 of the Police Act, Section 6(3\b) of the Police Act provides that one of the services which is provided by the NSWPF is 'the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way' Such a provision necessarily captures injury or death occasioned by way of the COVID-19 pandemic, and protection against the same sits squarely within the statutory mission and purpose of the NSWPF. 20. The NSW Police Force is a disciplined force of the Crown. [1] The relationship between the Commissioner and members of the NSW Police Force is hierarchical in nature. Members of the NSWPF are not engaged as employees, but rather independent office holders exercising original authority in the execution of their duties. [2] A police officer is required to take an oath or affirmation of office pursuant to section 13 of the Police Act to keep and preserve the peace and to discharge their duties faithfully according to law. [3] As such, police officers do not have their appointment governed by a contract of employment, and are not employees at common law. Their obligations and duties are found within the statutory scheme set out in the Police Act and the Police Regulation 2015 (NSW) (Police Regulation) as well as the common law. The powers and duties of a police officer arise both at common law and by way of statute. 21. The hierarchical and disciplined nature of the NSWPF is cemented at s 12 of the Police Act, which sets up a descending order of ranks and grades for members of the NSWPF, thereby creating a structure of command. It is within this context, that s 8 of the Police Act provides the statutory basis for the Commissioner to manage and control the NSWPF as a disciplined force. In particulars 8(3)-(4) provides: (3) The Commissioner may classify the varlous duties that members of the NSWPF 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 NSWPF with respect to the management and control of the NSWPF. 22. A police officer who fails to follow a lawful order or carry out a lawful duty is guilty of a criminal offence pursuant to s 201 of the Police Act. Similarly, cl 8 of the Police Regulation provides that police officers are to comply strictly with the Police Act and the Police Regulation and promptly comply with all lawful orders from those in authority over them. 23. The Respondent's Direction is lawful as it is within the scope of the statutory power conferred on the Commissioner and there is nothing illegal or unlawful about requiring persons to be vaccinated in order to carry out, or continue, their work. [4] Indeed, in the recent decision of Southcombe v Commissioner of Police, [5] the Commission relevantly concluded, in respect of the same Direction: [17] A direction to do something which is legal is, in my view, almost impossible to concede as an unlawful direction. Getting vaccinated is without question a lawful activity. … [19] The Appellant had a choice to be vaccinated or not to work for the New South Wales Police Force. It may be a choice she does not like, but it was a lawful one. 24. Notwithstanding the contentions in the Applicant's Submissions to the effect that the Direction was either unlawful or not a lawful order, the Applicant points to no illegality which would inhere in the Direction. That is because there is no such illegality. 25. The operation and scope of section 201 of the Police Act has also been considered and determined by the High Court in State of New South Wales v Fahy (2007) 232 CLR 486 at [21] in which it was held that: Read as a whole, the Police Service Act [as it was then known] demonstrated that the evident purpose of the legislation was, as may be expected, to create a hierarchical and disciplined force. Chief among the statutory provisions giving effect to that purpose was s 201 which made it a criminal offence for a police officer to neglect or refuse either to obey any lawful order or to carry out any lawful duty as a police officer. 26. Similarly, in Benic v State of New South Wales [2010] NSWSC 1039 at [20], the Supreme Court read section 201 as giving the Commissioner of Police the power to 'give a direction to any member of the NSWPF with respect to their conduct, functions or actions, including putting them in harm's way, with which the member cannot lawfully refuse to comply without committing an offence.' 27. To the extent that the Applicant chose not to get vaccinated, this is not a justification excusing her from complying with her statutory obligation to abide by the Direction in circumstances where there is nothing unlawful about becoming vaccinated. The fact that it is an offence for an officer to neglect or refuse to obey any lawful order or to carry out any lawful duty directly distinguishes the service of a police officer from the duties ordinarily owed by an employee to their employer. [6] … 29. … In Falconer v Commissioner of Police (No 4) [2022] WASC 271, the Supreme Court of Western Australia stated that: … the right to bodily integrity is curtailed, by necessary implication, where the effectiveness of the force is based on obedience to command, and where the nature of the office requires members to carry out duties which may expose them to harm ... the infringement of a common law right which is inconsistent with membership of a disciplined force is not, in itself, a sufficient reason to declare the order unlawful. [7] [Emphasis and footnote in original.]
8. For completeness, I observe that the applicant did not make submissions against those of the respondent set out above.

The case presented by the applicant

1. As set out under background in the applicant's submissions: 1. The applicant's employment is governed by the terms and conditions of the Crown Employees' Award which took effect from 12 March 2021 and remains in force … 3. The Award does not contain any requirement relating to vaccination despite the above average exposure police officers have to communicable diseases such as hepatitis, HIV and respiratory illness, including Corona viruses. 4. Termination of the applicant's employment was not due to deficiencies in performance of for failing to comply with a condition of employment. It was in reliance of failing to comply with a direction issued on 7 September 2021 by Commissioner of Police, Michael J Fuller, APM and a subsequent direction issued on 25 September 2021 by Deputy Commissioner Webb APM, collectively the vaccination direction.
2. I note that at hearing, the applicant submitted that she in fact complied with the Direction by not attending work if unvaccinated. This is not only contrary to her written submissions, and what was set out in her original application, it is contrary to her 181D Response. This submission fails at every level, to be credible.
3. What is in issue, is the applicant's failure or refusal to be vaccinated and that is the only rational basis before the Commission.
4. Before addressing the case presented by the applicant in more detail, I refer to the submissions of Mr Watts, as to the effect of: 1. Tredinnick v Commissioner of Police [2016] NSWIRComm 1026; 2. Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; and 3. Bolton v Commissioner of Police (No 2) [2021] NSWIRComm 1055.
5. Unequivocally, the law is that the onus is on the applicant to prove that her removal was harsh, unjust or unreasonable. As para 46 of Boulton sets out; "Ground H5 asserts error in the Commission's finding that allegations 1, 2, 3, 7, 8, 9 and 10, were established by the evidence adduced by the parties in the course of the review. In so far as this ground is to be read as suggesting that proceedings under s 181E require that the misconduct alleged against a police officer be proven, it is misconceived. The onus was rather on Mr Boulton to make out the case that the removal was harsh, unjust or unreasonable, by disproving the allegations or raising sufficient doubt in the Commissioner's reasoning to require the Police Commissioner to response to that doubt as was made clear in Zisopoulos."
6. The applicant advanced a two-step logic as to why the removal was harsh, unreasonable or unjust. 1. The Direction needed to be lawful and reasonable; and 2. The Direction was not lawful or reasonable.
7. The totality of the applicant's submissions on the Direction needing to be lawful and reasonable was an orthodox analysis of the requirements of directions to employees. However, as already determined, police officers are not employees. Moreover, I have already determined the Direction need only be lawful and not also reasonable.
8. I proceed therefore to consider the applicant's submissions only to the extent that they challenge the lawfulness of the Direction.
9. The applicant's submissions do set out some principles which refer solely to lawfulness, albeit clearly in an employment context. These reference the direction given not being one to do something illegal and being within the scope of employment.
10. I do not consider that this differs in effect from the test pressed for by the respondent. However, as there is no employment, and no employment contract, the test is the statutory scheme which governs the NSWPF.
11. Further, in analysing the submissions of the applicant, I am unable to discern any that actually challenge the lawfulness of the Direction. Having set out what the applicant says are the boundaries of a lawful direction, the remaining submissions of the applicant only address matters going to the reasonableness of the Direction. In this regard I refer to para 64, which is the summary of the applicant's submission, which says that: 64. Given that: a. Covid-19" poses little risk to those in the applicant's demographic (or the New South Wales Police Force age demographic); b. "Covid-19 vaccines" do not prevent the transmission of "Covid-19" regardless of the number of doses a person receives and therefore remaining unvaccinated "does not adversely affect the health and safety of others"; c. Workers have a personal duty under s 28 of the Work Health and Safety Act to "take reasonable care for their own safety"; d. "Covid-19 vaccines" pose a serious risk of injury and death to individuals that would otherwise not be at risk of serious illness or death from "Covid-19"; and e. The Respondent had not provided any evidence that "Covid-19" poses a risk to the workplace to any greater degree than other common respiratory illnesses; and f. The Respondent has not provided any evidence that "Covid-19" vaccines reduce the transmission of "Covid-19" or reduce the likelihood of contracting "Covid-19"; the Vaccination Direction is not a "lawful and reasonable direction" or a "reasonable policy or procedure relating to the health and safety of the workplace".
12. The applicant's submissions, therefore, do not persuade the Commission that the vaccination requirement was an unlawful direction and therefore the applicant has not persuaded the Commission that the removal was unjust.
13. If, contrary to my determination above, it had been necessary for a direction of the Commissioner of Police to also be reasonable, as well as lawful, this would not have changed the outcome. This is because, as submitted by Mr Watts, the applicant's submissions are fundamentally misconceived.
14. Insofar as they address the reasonableness of the Direction, the submissions proceed on the basis that the respondent has failed to show the Direction was reasonable.
15. As set out earlier, and in particular in the passage from Bolton extracted above, no such onus reposes on the respondent. The onus to establish unreasonableness would, if it existed, be borne by the applicant.
16. The applicant, in reply, did make submissions which I take to object to the process of her removal. I do not consider that these raise anything more than what was said in her 181D Response. The do not rise to the level required by Bolton.
17. To the extent that the applicant has submitted that removal was harsh for its proportionality, I observe that: 1. The applicant has made a number of references to concerns about the safety of available vaccines; and 2. These have been, at best, footnoted with hyperlinked references to sources, which it is asserted, support these concerns.
18. They may do.
19. However, it is not the role of a tribunal such as the Commission to "click through" links and make conclusions based on the Commission's independent reading of material not specifically put in evidence. Moreover, much of the material would have likely needed expert evidence. All of it would have needed placing explicitly in evidence and would have required submissions as to its relevance.
20. Albeit, in a more concise form, much of what the applicant put to the Commission was put to the Commissioner and the Commissioner dealt with those in her reasons. Those reasons remain relevant and persuasive.
21. As a hierarchical organisation, in the NSWPF, more than in most workplaces, a conscious decision by a police officer not to comply with a clear direction of the Police Commissioner creates a rational basis for the Commissioner to lose confidence in that officer. The Commission considers that removal is a proportionate response to the conscious decision of the applicant not to comply with the Vaccination Requirement.
22. Two matters in particular, set out by the respondent in her Statement of Reasons, bear repeating: 1. The core duties of a police officer cannot be performed remotely. They must be performed in contact with the public at police stations and in the community; and 2. It is operationally impracticable at the least, and likely impossible in fact, for the NSWPF to allow all officers who wished not to be vaccinated to be given non-operational duties.
23. In my view, these are a complete answer to any suggestion the removal was harsh because the applicant could have used remote computer access to work, or could have been stood down until the pandemic had ended, as set out in her submissions in reply.
24. One other matter set out in the applicant's submissions in reply should be addressed. The submission was that to be dismissed on the basis of serious misconduct, a term usually reserved for the most heinous of crimes, is harsh.
25. While it may seem hard to be removed in this way, the 181D process is the only one open to the Commissioner, and as set out above, the NSWPF is a hierarchical organisation in which more than most workplaces, a conscious decision not to follow the Commissioner's direction founds a rational basis for removal.
26. It is understandable that the applicant is offended and distressed at being removed via a process that would also be used for a police officer who had committed a serious criminal offence. But as I have observed, the Parliament has given the Commissioner one process to remove police officers.
27. As Mr Watts, of counsel for the respondent submitted, there is no evidence before the Commission, and no submission made by the applicant, as to any basis on which the removal was harsh in the particular circumstances of the applicant.
28. The Commission finds the removal was not harsh.

The case of the Commissioner in answer

1. To the extent that it is necessary to consider the case of the Commissioner in answer, and given the foregoing this is limited, in my view this answer has already been considered in addressing the case put by the applicant.
2. One submission bears repeating. That is the time and circumstances in which the Direction and Vaccination Requirements were issued. These are set out in the evidence of Superintendent Driver. The time of removal and the circumstances then existing, are sufficiently proximate that the reasons for the Vaccination Requirement remained relevant.

The interests of the applicant and the public interest

1. In explicitly articulating considerations required by s 181F(3) in this matter, I will repeat the words I used in Roberts v Commissioner of Police, New South Wales Police Force [2023] NSWIR Com 1039, because I consider they are apt here.
2. In substance, proper regard has been given to each interest in the foregoing consideration. In express terms the public interest in this case, especially as is defined in s 181F(3) of the Act, strongly supports the removal decision and the applicant's interests do not sufficiently support a finding that the removal was harsh, unreasonable or unjust.
3. In particular, the hierarchical nature of the NSWPF, the unambiguous nature of the Vaccination Requirement and the rational basis for the Vaccination Requirement, leaves the public interest strongly supportive of the removal decision.
4. Regard has been had above to the interests of the applicant in not being required to make a choice between her appointment as a police officer and her desire not to be vaccinated against COVID-19. The Commission is not persuaded, for the reasons set out above, that the applicant's interests make, or indeed are capable of making, the removal harsh, unreasonable or unjust.

Outcome

1. Accordingly, the applicant has not discharged the onus borne by her to persuade the Commission that her removal was harsh, unreasonable or unjust.

Orders

1. The application for review is dismissed. C Muir Commissioner

Endnotes

1. See Enever v The King (1906) 3 CLR 969 at 982; Fletcher v Nott (1938) 60 CLR 55 at 77; New South Wates v Perpetual Trustee Company Limited (1956) 92 CLR 113 at 120-122; Attorney-General (NSW) v Perpetual Trustee Company Limited (1952) 85 CLR 237 at 254-256; Police Service Board v Morris (1985) 156 CLR 397 at 412.
2. Enever v R (1906) 3 CLR 969 at 982; Attorney General for NSW v Perpetual Trustee Co Ltd (1952) 85 CLR 23; Attorney General (NSW) v Perpetual Trustee Co Ltd (1955) 92 CLR 113 at 122 and 129.
3. Also see Police Regulation 2015 (NSW) at cl 7.
4. Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Ply Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 [85], [179]
5. [2022] NSWIRComm 1112
6. 18 State of New South Wales v Briggs [2016] NSWCA 344 at [60]. See also Heydon J in Commissioner of Police v Eaton (2013) 252 CLR 1 at [26] and Garengele v State of New South Wales [2015] NSWSC 655 at [234]: The power of the Commissioner to control his or her police officers is significantly greater than in the orthodox employer/ employee relationship, where the employer's power to control the employees is regarded as the reason for the imposition of a duty on an employer.
7. Falconer v Commissioner of Police (No 4) [2022] WASC 271 at [38]. 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. Decision last updated: 19 May 2023