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[2026] NSWCA 120
respondent. The further amended summons filed on 11 May 2026 was dismissed with costs: [155]-[156].
The Court of Appeal held that the Full Bench had to examine the Police Commissioner’s actual reasons for removing Hanna, which were framed around reasonable grounds rather than proof of criminal guilt. The Full Bench was not required to give separate warning that it would apply the statutory review framework, and its approach had also been raised during the hearing. The Court rejected the argument that s 191 required the Full Bench to use a restricted factual-appeal test in every case. Although one aspect of the Full Bench’s reliance on the Local Court finding was erroneous, and the Cellebrite inference was questionable, those matters did not amount to jurisdictional error. The judicial review application was dismissed with costs.
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2,386 words · generated 05/10/2026
This was an application for judicial review, not an appeal on the merits. Peter Guirguis Hanna, a former sergeant in the NSW Police Force, asked the Court of Appeal to quash a Full Bench decision of the Industrial Relations Commission. The Full Bench had reversed a first-instance decision reinstating him. The Court of Appeal, constituted by Bell CJ, Ward P and Leeming JA, dismissed Hanna’s further amended summons with costs. Bell CJ and Ward P agreed with Leeming JA: [1]-[3], [155]-[156].
11 cited instruments linked from this judgment.
The dispute arose from four videos found on Hanna’s mobile phone. The Police Commissioner considered there were reasonable grounds to conclude that the videos amounted to child abuse material, that Hanna had failed to report receiving them, and that he had shown one of them, Video 2, to a colleague. The Commissioner removed Hanna under s 181D of the Police Act 1990 (NSW) on 24 August 2022, concluding she no longer had confidence in his suitability to remain a police officer: [17], [20], [27]-[38].
The criminal proceedings did not resolve all the issues in the employment review. Hanna was convicted in the Local Court of knowingly possessing Video 2. The District Court later set aside that conviction, finding Video 2 was not “offensive” within s 91FB of the Crimes Act 1900 (NSW): [14]-[16]. The Court of Appeal stressed that the Police Commissioner’s removal decision was not based on the existence of a conviction. Its focus was the Commissioner’s own assessment of reasonable grounds and her resulting loss of confidence: [93]-[97].
Hanna applied to the Commission under s 181E of the Police Act, which permits review on the ground that removal is “harsh, unreasonable or unjust”. Commissioner O’Sullivan framed the case around whether the alleged misconduct had occurred, assessed on the civil standard, and found Hanna had proved he did not commit the acts alleged. He ordered reinstatement: [43]-[57].
The Police Commissioner appealed under s 187 of the Industrial Relations Act 1996 (NSW). The Full Bench found that Commissioner O’Sullivan had treated proof of criminal offences as decisive, rather than examining whether the Commissioner’s reasonable-grounds reasoning had been displaced. It also found errors concerning the evidence about Video 2, Video 4, and Hanna’s integrity. It allowed the appeal and dismissed Hanna’s s 181E application: [67]-[78].
The central statutory instruction was s 181F of the Police Act. It required the Commission to consider, first, the Police Commissioner’s reasons; second, the applicant’s case; and third, the Commissioner’s response. It also placed the burden on the applicant to establish that removal was harsh, unreasonable or unjust: [39]-[42]. The Court treated that sequence as important. The review could not properly be decided by asking only whether the applicant had committed the criminal offences.
The Commissioner’s reasons consistently described the allegations as matters for which she was satisfied there were “reasonable grounds”. Her notice used that formulation, and her reasons explained how she reached her conclusion and why the conduct affected her confidence in Hanna’s suitability: [27]-[38]. The Court accepted the Full Bench’s view that the first-instance review had to assess that reasoning, rather than replace it with a criminal trial or a finding that guilt had been proved: [90]-[97].
The procedural fairness challenge failed for two related reasons. First, the statutory framework required the Commission to consider the Commissioner’s reasons, including the basis and standard expressed in them. Leeming JA said separate notice that the statute would be applied would ordinarily not be necessary: [89]-[92]. Second, the Full Bench hearing was not silent on the point. The Commissioner’s counsel referred to the reasonable-grounds formulation, and members of the Full Bench questioned Hanna’s counsel about the distinction between that formulation and the criminal standard: [98]-[101].
The Court also considered whether any lack of notice could have affected the result. It held it could not. The Full Bench stated that, even if a civil standard were required, it would have been satisfied on that standard. In the Court of Appeal’s view, more explicit notice would not have created a realistic possibility of a different outcome: [103]-[108].
The Court rejected the proposed reading of s 191(3) of the Industrial Relations Act. Section 191(1) says that an appeal to a Full Bench is not a new hearing and is determined on the evidence and material from the first instance. Section 191(3) says the Full Bench cannot merely substitute its decision and must follow principles applying to appeals from discretionary decisions: [60], [110]-[115]. The Court read subsection (3) in the context of the dispute it was enacted to resolve. It confirmed the application of House v The King principles to discretionary decisions, rather than imposing a “not reasonably open” test on every factual issue in every appeal: [120]-[128].
The Court accepted that one part of the Full Bench’s reasoning was erroneous. It had relied on the Local Court’s finding that Hanna showed Video 2 to his colleague, even though the evidence before Commissioner O’Sullivan was different: Hanna and the colleague had both given evidence and been cross-examined. Leeming JA considered the Local Court finding to be of virtually no assistance in resolving that direct conflict: [142]-[145]. But the error was one strand among several, not a fundamental departure from the Full Bench’s authority. It was not jurisdictional: [146]-[147].
The Cellebrite “read” notation was also insufficient. The Full Bench addressed it “for completeness”, and its inference that “read” meant viewed was open to doubt, particularly because some videos showed the same timestamp. But the issue was minor, additional reasoning and unnecessary to the result: [148]-[150]. The Court’s point was not that every aspect of the Full Bench’s reasoning was correct. It was that judicial review requires jurisdictional error, not merely an error that might have been corrected on appeal.
The judgment did not announce a new test for removal under s 181D. Rather, it applied the existing statutory framework and explained how that framework affected the Commission’s review. Section 181D gave the Police Commissioner a broad power to remove an officer where the Commissioner lacked confidence in the officer’s suitability, having regard to competence, integrity, performance or conduct. The statute did not prescribe a particular standard of proof for the Commissioner’s assessment: [20]-[25].
The judgment relied on Zisopoulos for the proposition that there was no direct statutory requirement for the Commissioner to adopt a particular standard of proof or a Briginshaw approach. Depending on context, reasonable suspicion could be sufficient if it caused the Commissioner to lose confidence in the officer’s suitability: [25]-[26]. In Hanna, the Full Bench’s approach was consistent with that reasoning: [76].
The review under s 181E was nevertheless not an unrestricted reconsideration of the removal decision. Section 181F required the Commission to start with the Commissioner’s reasons and placed the burden on the removed officer to establish that removal was harsh, unreasonable or unjust: [39]-[42]. The Court underscored that the reviewer must engage with the basis on which the Commissioner acted. A criminal acquittal or a finding that an offence was not proved does not automatically answer whether removal was harsh, unreasonable or unjust where the Commissioner’s decision rested on reasonable grounds and wider questions of confidence and suitability: [93]-[97].
As to appeals, the Court confirmed that an appeal by way of rehearing requires the appellate body to identify error: [110]-[112]. It also confirmed that s 191(3) applies House v The King principles when reviewing discretionary decisions, particularly discretionary remedies such as reinstatement. The provision did not displace the general approach to appellate review in Warren v Coombes: [117]-[128]. This was the Court’s construction of the existing section, not a legislative amendment or a new statutory text.
The decision also restates the boundary between appeal and judicial review. A tribunal can make factual errors within jurisdiction. The Court’s supervisory jurisdiction is engaged only when the alleged error amounts to jurisdictional error, not simply because the reviewing court might have reached a different factual conclusion: [82]-[86], [146].
At [90], Leeming JA said it was not possible to decide whether removal was harsh, unreasonable or unjust “without having close regard to the Police Commissioner’s reasons, including the standard of proof adopted in those reasons”. In plain English, the Commission had to understand the actual basis for the decision it was reviewing, rather than assume that the Commissioner had to prove criminal guilt.
At [92], the judgment states that where legislation defines how the decision-maker must approach a case, separate notice that the statute will be applied is needed only in a “most unusual case”. That does not remove the general duty of procedural fairness. It means that, in this case, the statutory task itself was sufficiently clear, and the parties had an opportunity to address the relevant issue.
At [103]-[107], the Court considered materiality. Even assuming more explicit notice would have been appropriate, the Full Bench had made an alternative finding that it would have been satisfied on the civil standard. The Court therefore saw no realistic possibility that a different notice would have changed the decision.
At [127], the Court explained that s 191(3) did not create a uniquely restricted appellate body. Its function was to resolve an earlier disagreement about review of discretionary decisions. In practical terms, the section did not require the Full Bench to treat all factual findings as immune from intervention unless they were not reasonably open.
At [146], Leeming JA emphasised that the Full Bench could make factual errors within jurisdiction. This is central to understanding why some criticisms of its reasoning did not succeed. The Court was not deciding whether every inference was correct. It was deciding whether any error was so fundamental that the Full Bench had exceeded its authority.
At [155]-[156], the Court’s conclusion is direct: no jurisdictional error was established, and the summons was dismissed with costs.
The decision is most relevant where a statutory review body must examine a decision-maker’s stated reasons and the decision-maker has relied on reasonable grounds, suspicion, or another basis short of proof of criminal guilt. It indicates that the review body’s task may be distorted if it asks only whether the underlying conduct was proved as a criminal offence, without evaluating the original decision’s actual reasoning and the statutory test for review: [89]-[97].
It is also relevant where a party argues that procedural fairness required advance notice of a legal or statutory approach. The result will depend on the statute, the issues raised at the hearing, and whether the party had a practical opportunity to respond. Here, the statutory provision itself prescribed the order of consideration, and the transcript showed discussion of the reasonable-grounds question: [88]-[102].
For appellate practice, the case matters where legislation says an appeal is not a new hearing and separately refers to principles applying to appeals from discretionary decisions. The judgment requires attention to the statutory wording and the history and context of the provision, rather than assuming that a rule directed to discretionary decisions governs every issue on appeal: [110]-[128].
Finally, the decision is relevant to judicial-review applications that challenge factual reasoning by an administrative tribunal or commission. It illustrates that even a demonstrated factual error may not be jurisdictional where it is peripheral, one strand of reasoning, or not necessary to the outcome: [141]-[150]. The judgment does not say that factual errors can never be jurisdictional. It holds that the errors raised in this case did not cross that threshold.
The judgment is dated 30 June 2026 and the supplied text contains no later judicial decisions applying or considering it. No conclusion about how later courts have treated Hanna can therefore be drawn from the material provided.
The judgment itself discusses earlier authorities. It follows the general appellate approach in Warren v Coombes, treating appellate courts as required to give appropriate weight to trial-level advantages but not to perpetuate an error merely because a finding was open: [117]-[118]. It explains Big W Discount Stores v Donato by reference to the dispute over appellate review of discretionary remedies, and distinguishes the broader approach in Outboard World: [121]-[128].
It also applies the procedural fairness principles in SZBEL and Kioa, with the practical, context-specific approach described in TCL Air Conditioner: [88]. For the Police Act review, it applies Zisopoulos on the need to assess the Police Commissioner’s reasoning and the absence of a prescribed standard of proof: [89], [95]-[97]. These are the authorities the Court used to reach its result; they do not establish how subsequent courts have treated this judgment.
The Court expressly left open the correct construction of “offensive” in s 91FB of the Crimes Act. Leeming JA discussed the argument that the provision might require material to be “significantly offensive”, but said the construction was not argued and that his comments should not be treated as even a tentative view: [16]. The decision should therefore not be cited as resolving that statutory question.
The Court also did not decide that the Police Commissioner’s reasonable-grounds approach will be appropriate in every removal case. The judgment explains that the statutory power is broad and the Commissioner’s reasons matter, while also recognising that the consequences depend on context: [21]-[26]. The relevant standard and reasoning in a different case would need to be identified from that case’s statutory setting and decision.
Nor did the Court determine the factual truth of each allegation against Hanna afresh. It held that the Full Bench’s decision was not vitiated by jurisdictional error. It accepted that the Local Court finding had little assistance in the later evidentiary setting and identified possible difficulty with the Cellebrite inference, but treated those as non-jurisdictional matters: [145]-[150].
Finally, the judgment recognises that a sufficiently fundamental error in an appellate tribunal’s approach may amount to jurisdictional error, but does not provide an exhaustive boundary for that category. Its discussion at [82]-[86] describes the required departure as fundamental, and its application at [146]-[150] shows why the errors alleged here were insufficient. The precise line will depend on the statutory function and the nature and importance of the error.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hanna v Commissioner of Police [2026] NSWCA 120
Hearing dates: 11 May 2026; written submissions 14 and 22 May 2026
Decision date: 30 June 2026
Before: Bell CJ at [1];
Ward P at [2];
Leeming JA at [3]
Decision: Further amended summons filed on 11 May 2026 dismissed, with costs.
Catchwords: ADMINISTRATIVE LAW – judicial review – jurisdictional error – decision of Industrial Relations Commission allowing appeal from decision of Commissioner to reinstate a police officer – nature of jurisdictional error – whether Full Bench denied applicant procedural fairness by determining appeal in accordance with s 181F of Police Act 1990 (NSW) – where parties before Commission at first instance had proceeded on narrower basis – extent to which approach taken by Full Bench was flagged at hearing – whether any material denial of procedural fairness
APPEALS – Industrial Relations Commission – whether appellate intervention confined to cases where unreasonable findings made – construction of s 191 of Industrial Relations Act 1996 (NSW) – whether jurisdictional error by Full Bench in finding appellable error in findings by Industrial Relations Commission at first instance
POLICE – police officer charged with possession of child abuse material – officer found guilty in Local Court but conviction quashed on appeal by District Court – officer removed from Police Force on basis that the Police Commissioner had reasonable grounds to consider offending had occurred – consideration of reasoning of Police Commissioner – nature of obligation under s 181F of Police Act 1990 (NSW) to review decision of Police Commissioner
Legislation Cited: Crimes Act 1900 (NSW) ss 91FB, 91H
Industrial Relations Act 1991 (NSW), s 382
Industrial Relations Act 1996 (NSW), ss 179, 187, 191
Industrial Relations Amendment Act 2023 (NSW), sch 2 cl 2.28 item 4
Interpretation Act 1987 (NSW), s 31
Police Act 1990 (NSW), ss 181D, 181E, 181F, 181K
Supreme Court Act 1970 (NSW), ss 75A, 101
Cases Cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Altaranesi v Industrial Relations Commission of New South Wales [2011] NSWCA 351
Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151; [2023] NSWCA 294
Big W Discount Stores v Donato (1995) 58 IR 239
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
CCH Australia Ltd v Bowen (1998) 79 IR 206
Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2
Commissioner of Police v Hanna [2025] NSWIRComm 21
Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314
Commonwealth of Australia v Bank of New South Wales (1949) 79 CLR 497; [1950] AC 235
CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192; [1970] HCA 43
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 1; [2023] HCA 10
Dibb v Transport for New South Wales [2024] NSWCA 157
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Electricity Commission v Crump (1993) 48 IR 296
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hanna v Commissioner of Police, NSW Police Force [2024] NSWIRComm 1058
Hanna v Director of Public Prosecutions [2022] NSWDC 491
Hollingsworth v Commissioner of Police (1999) 47 NSWLR 151
Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
KMD v CEO (Department of Health NT) [2025] HCA 4; 99 ALJR 474
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
LPDT v Minister for Immigration (2024) 280 CLR 321; [2024] HCA 2
Monis v R; Droudis v R [2011] NSWCCA 231; 215 A Crim R 64
Monis v R; Droudis v R (2013) 249 CLR 92; [2013] HCA 4
Mutual Life & Citizens’ Assurance Company Ltd v Evatt (1970) 122 CLR 628; [1971] AC 793
NSW Police Force v X [2014] NSWLC 23
Outboard World Pty Ltd t/a Budget Waste Control (Sydney) v Muir (1993) 51 IR 167
Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services (2015) 250 IR 412; [2015] NSWIRComm 16
Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112; 242 IR 318
Re Coldham Ex parte Brideson (No 2) (1990) 170 CLR 267; [1990] HCA 36
Re Solicitors (State) Award (No 3) (1997) 72 IR 225
State of New South Wales v Culhana (2025) 117 NSWLR 448; [2025] NSWCA 157
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361; [2014] FCAFC 83
Wang v Crestell Industries Pty Ltd (1997) 73 IR 454
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Western Sydney University v Thiab (2023) 111 NSWLR 241; [2023] NSWCA 57
Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505
Zurich Australian Insurance Ltd v CIMIC Group Ltd (2024) 115 NSWLR 297; [2024] NSWCA 229
Category: Principal judgment
Parties: Peter Guirguis Hanna (Applicant)
Commissioner of Police (First Respondent)
Industrial Relations Commission of New South Wales (Second Respondent, submitting)
Representation: Counsel:
G Reynolds SC, B Mostafa (Applicant)
P Herzfeld SC, M Watts (First Respondent)
Solicitors:
McNally Jones Staff Lawyers (Applicant)
Makinson d’Apice Lawyers (First Respondent)
File Number(s): 2025/435440
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
In August 2022, the NSW Police Commissioner removed Mr Peter Guirguis Hanna from the NSW Police Force under s 181D of the Police Act 1990 (NSW) on the basis that she no longer had confidence in his suitability to continue as a police officer. The removal followed the discovery of four videos stored on the camera roll of Mr Hanna’s mobile phone, which the Police Commissioner was satisfied on “reasonable grounds” constituted “child abuse material” within the meaning of 91FB of the Crimes Act 1900 (NSW). The Police Commissioner was also satisfied on “reasonable grounds” that Mr Hanna had failed to report his receipt of those videos and had shown one of the videos to a colleague. Mr Hanna had originally been convicted of knowing possession of child abuse material in respect of that video by the Local Court. However, on appeal, the District Court considered the video not to be “offensive” within the meaning of s 91FB and set aside the conviction.
Before the Industrial Relations Commission, Mr Hanna sought review of his removal by the Police Commissioner under s 181E of the Police Act on the basis that it was “harsh, unreasonable or unjust”. At first instance, Commissioner O’Sullivan ordered Mr Hanna’s reinstatement, finding that his removal was “unreasonable” and “unjust” because he was satisfied that Mr Hanna, on the civil standard, proved he did not undertake the acts of misconduct alleged by the Police Commissioner. On appeal to the Full Bench of the Industrial Relations Commission under s 191 of the Industrial Relations Act 1996 (NSW), Mr Hanna’s reinstatement was overturned on the basis that Commissioner O’Sullivan erroneously imposed an onus on the Police Commissioner to prove that Mr Hanna had committed an offence, failed to have regard to the reasoning of the Police Commissioner which looked at whether there were “reasonable grounds” to make certain findings, and made numerous erroneous factual and evidentiary findings.
On application for judicial review, Mr Hanna contended that the Full Bench’s decision was attended by jurisdictional error by (1) asking whether there were “reasonable grounds” to conclude that the applicant had engaged in misconduct or had been in possession of child abuse material, and in doing so denying procedural fairness to Mr Hanna; (2) misconceiving of its jurisdiction under s 191; and (3) erroneously reasoning in respect of possession of the videos, the Local Court conviction, the Cellebrite “read” notations, and whether the videos were “offensive”.
The Court (Leeming JA, Bell CJ and Ward P agreeing) held, dismissing the further amended summons:
Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361; [2014] FCAFC 83, applied.
State of New South Wales v Culhana (2025) 117 NSWLR 448; [2025] NSWCA 157, Big W Discount Stores v Donato (1994) 58 IR 239, Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54, Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, Electricity Commission v Crump (1993) 48 IR 296, considered.
Outboard World Pty Ltd t/a Budget Waste Control (Sydney) v Muir (1993) 51 IR 167, Re Solicitors (State) Award (No 3) (1997) 72 IR 225, Wang v Crestell Industries Pty Ltd (1997) 73 IR 454, CCH Australia Ltd v Bowen (1998) 79 IR 206, Hollingsworth v Commissioner of Police (1999) 47 NSWLR 151, distinguished.
BELL CJ: I agree with Leeming JA.
WARD P: I agree with Leeming JA.
LEEMING JA: Mr Peter Guirguis Hanna, who formerly held the rank of sergeant in the New South Wales Police Force, has invoked this Court’s supervisory jurisdiction, seeking to quash the decision of the Industrial Relations Commission of New South Wales, constituted by a Full Bench of three Presidential members (Chin and Paingakulam JJ and Schmidt AJ), itself allowing an appeal from a decision of the Commission constituted by a single Commissioner (Commissioner O’Sullivan) reinstating him to the NSW Police Force following his removal by the Police Commissioner. In what follows, I shall refer to the “Police Commissioner” and “Commissioner O’Sullivan” to avoid confusion. I shall refer to Mr Hanna as “the applicant” although he was the respondent before the Full Bench, and the appellant before the District Court in separate proceedings, being an appeal from the Local Court.
The applicant relies upon seven grounds. The seventh was added by leave granted at the hearing, on terms which permitted the parties to supply further written submissions (which has occurred). The issue in this Court is whether the decision of the Full Bench is affected by jurisdictional error as alleged. The principal grounds are whether the Full Bench failed to accord the applicant procedural fairness, or misapplied the test for appellate intervention, or seriously misapprehended the basis of the Police Commissioner’s decision.
The essential chronology is as follows. Between July 2019 and April 2021, the applicant and a Roman Catholic priest, Father Kolodziej, exchanged 594 messages on the application known as “WhatsApp”. Many of the messages attached photographs or videos. The majority were harmless. Some contained sexualised images of women. They included photographs of women in states of partial undress, some with crude captions (for example, one contained the caption “Boobs Nature’s Stress Balls” above a woman wearing a bikini).
Four of the videos on the applicant’s phone were alleged to amount to “child abuse material” within the meaning of s 91FB of the Crimes Act 1900 (NSW), which is reproduced below. The applicant denied that he had ever seen, or knew that he had received, three of those four videos (“Video 1”, “Video 2” and “Video 3”, being those sent to his handset on 22 January 2021, at 9:08am and 10:17am, and 6 March 2021, at 7:55am). The fourth (“Video 4”) had been sent a year earlier, on 9 April 2020.
The videos themselves were not placed in evidence in this Court. I have not seen them. It is necessary, in order to address various aspects of the applicant’s submissions, to say something of the contents of Video 2 and Video 4, based on what emerges from the record.
Video 2 shows a young child in the presence of two adults engaged in sexual intercourse (the District Court, which held that it did not amount to child abuse material, described its contents in more detail in a passage reproduced below). The Police Commissioner alleged that the applicant had shown Video 2 to a work colleague, who then reported it as child abuse material. The applicant maintained that that did not occur, and instead the colleague had somehow obtained access to his mobile handset, and was lying when she said that he had showed it to her.
Video 4 was the subject of expert evidence in the Commission. All that matters for present purposes is that when the Police Commissioner made her decision to remove the applicant, she had the summary from a Detective Sergeant of its contents:
Showing a male child, 3-5 years old, rubbing the bare buttocks of a female, the camera then focuses on the child’s genitals where he is wearing underwear and the child has an erection.
On 19 May 2021, the applicant was asked to provide and did provide his work and personal mobile handsets to the police force, and a “Cellebrite” download of the handset was obtained, which included the WhatsApp messages between him and the priest. He was charged on 2 June 2021 with four counts of possessing child abuse material contrary to s 91H of the Crimes Act*.*
At all relevant times, s 91H(2) of the Crimes Act has made it an offence to possess child abuse material. The maximum penalty is imprisonment for 10 years. “Possess” is defined to include, “in relation to material in the form of data, being in possession or control of data”. “Child abuse material” is defined in s 91FB:
91FB Child abuse material—meaning
(1) In this Division—
child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive—
(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
(d) the private parts of a person who is, appears to be or is implied to be, a child.
(2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include—
(a) the standards of morality, decency and propriety generally accepted by reasonable adults, and
(b) the literary, artistic or educational merit (if any) of the material, and
(c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and
(d) the general character of the material (including whether it is of a medical, legal or scientific character).
(3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).
(4) The private parts of a person are—
(a) a person’s genital area or anal area, whether bare or covered by underwear, or
(b) the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.
Video 2 prima facie falls within s 91FB(1)(c), because the child is in the presence of others engaging in sexual activity. Video 4 prima facie falls within s 91FB(1)(d) read with subs (4)(a) (noting that the child’s private parts may be covered by underwear) and may also fall within s 91FB(2)(b). But in all cases the definition also requires that the video be “offensive” within the meaning of the provision.
The prosecution took place in the Local Court. By the time of hearing, the charge in relation to Video 4 had been dropped (the record does not disclose why this occurred). The work colleague gave evidence concerning the applicant showing Video 2 to her, while the applicant called no evidence. The Local Court convicted the applicant of knowing possession of Video 2 and determined that it was child abuse material. The charges relating to Videos 1 and 3 were dismissed on the basis that knowing possession of them had not been established beyond reasonable doubt.
4. The video was 2 minutes and 12 seconds in length. It shows two adults having sexual intercourse with the female on top of the male, facing away from the male who is lying down on a bed. The male is naked and the female has a shirt on but is naked from the waist down. A young child enters the bedroom at which point the female holds her hand up towards the child in a manner meant to stop the child from entering. The child entered the room and was given a torch by the female and for the bulk of the duration of the video the child is facing away from the couple and utilising the touch. At one point the adults kiss while the child is looking in the opposite direction. The child then climbs onto the bed and onto the back of the female whilst the male appears to protectively hug the female so as to cover up the fact of the sexual intercourse occurring. After a very short time the child is kissed by the male and then gets off the bed and leaves the room.
5. There is no issue that the child was in the presence of another person engaged in a sexual activity so as to comply with s91FB(1)(c). The question to be determined is whether having regard to the standards of morality, decency and propriety generally accepted by reasonable adults and the general character of the material, the video depicts material “in a way that reasonable persons would regard as being, in all the circumstances, offensive”.
In the meantime, the applicant had been suspended from the NSW Police Force. The Police Commissioner exercised the power under s 181D of the Police Act 1990 (NSW) to remove him from the NSW Police Force, by order dated 24 August 2022. That occurred after his conviction in the Local Court and before his successful appeal to the District Court. It will be necessary in what follows to address in some detail the basis on which the Police Commissioner acted.
The applicant exercised his right of review under s 181E, and following a hearing which lasted four days in August and December 2023, the Industrial Relations Commission, constituted by a single Commissioner, found that the removal was unjust and unreasonable and reinstated the applicant to the NSW Police Force: Hanna v Commissioner of Police, NSW Police Force [2024] NSWIRComm 1058.
The Police Commissioner thereafter appealed pursuant to s 187 of the Industrial Relations Act 1996 (NSW). The appeal was heard on 9 April 2025 and, by decision delivered on 5 August 2025, the appeal was allowed: Commissioner of Police v Hanna [2025] NSWIRComm 21. The form of the orders ultimately made set aside the orders made by Commissioner O’Sullivan, who had reinstated the applicant to the NSW Police Force, and dismissed the applicant’s application under s 181E. It is that decision which the applicant contends is vitiated by jurisdictional error.
by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer’s suitability to continue as a police officer, having regard to the police officer’s competence, integrity, performance or conduct.
The power of removal is broad. It is not framed as a power exercisable on proving misconduct, on being satisfied of any particular standard, or on being satisfied of any particular condition, other than the Commissioner’s lack of confidence in “the police officer’s suitability to continue as a police officer” in the role. The concluding words “having regard to the police officer’s competence, integrity, performance or conduct” connote a broad area of inquiry.
Before making such an order, the Police Commissioner was obliged under s 181D(3) to give a notice which set out the grounds on which the Commissioner did not have confidence in the officer’s suitability to continue as a police officer, in response to which the police officer must have at least 21 days to make written submissions. The Police Commissioner was required to take into consideration those written submissions: s 181D(3)(c).
Any order made by the Police Commissioner “must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force” in accordance with s 181D(4). The content of those reasons is informed by the right of review, which is provided by Division 1C of Part 9 of the Act.
The Police Commissioner is required to form a view about a particular police officer’s suitability. That view may be informed by a variety of considerations: what conduct is relevant; whether that conduct constitutes misconduct against statutory provisions or ethical guidelines or workplace standards; whether that officer can be trusted to perform his or her duties; what consequences arise for the integrity of the Police Force by retaining or dismissing the officer. These considerations do not exhaust the matters to which the Police Commissioner may have regard.
The statute is non-prescriptive as to how the Police Commissioner forms the conclusion that he or she lacks confidence in the officer. In many or most cases, the lack of confidence will reflect a view which is adverse to the officer. However, the statute does not prescribe how that view is to be formed, or the standard which the Police Commissioner is to apply so as to reach that view. Thus it has been held in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314 at [31] that there is “no direct statutory reason” for the Police Commissioner to adopt any particular “standard of proof or to require satisfaction” in any particular sense, such as the sense stated in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Bell P, with whom Macfarlan JA agreed, continued:
There may have been sound reasons for the Police Commissioner to do so [scil*,* adopt a Briginshaw standard], but the important point for present purposes is that he was not obliged to do so.
It may, for example, be open to the Police Commissioner to remove an officer in circumstances where he had reasonable suspicion that the officer had engaged in serious criminal conduct but could not be satisfied of the commission of that conduct either to the civil or criminal standard, cf. Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62; [1980] FCA 85. Depending on the context, however, the very existence of such reasonable suspicion may be sufficient for the Police Commissioner to exercise the s 181D removal power, if the existence of that suspicion has caused the Police Commissioner not to have confidence in the police officer’s suitability to continue as a police officer, having regard to the police officer’s competence, integrity, performance or conduct. (Emphasis added.)
By notice dated 25 February 2022, the Police Commissioner advised the applicant that she was considering his suitability to continue as a police officer, taking into account his integrity and conduct described in the notice. The notice summarised the factual allegations concerning his possession and showing to a colleague Video 2, and then identified three “Allegations”.
Allegation 1 was:
There appear to be reasonable grounds on which I could conclude that you were in possession of four videos that amount to child abuse material, as described in [a statement which had been supplied].
There appear to be reasonable grounds on which I could conclude that you failed to report that Father Kolodziej sent you three videos via WhatsApp (two on 22 January 2021 and another on 6 March 2021) that appear to amount to child abuse material.
In addition, there appear to be reasonable grounds that you failed to report that you received a video containing child abuse material on 9 April 2020 via WhatsApp.
There appear to be reasonable grounds on which I could conclude that, in March 2021, you attempted to show [the colleague], and played in her present, a video containing child abuse material.
In the circumstances, there appear to be grounds on which I could conclude that your conduct was contrary to s 7 of the Police Act 1990 and Points 1, 3 and 6 of the NSW Police Force Code of Conduct and Ethics, as outlined in relation to Allegations 1 and 2 above.
There also appear to be grounds on which I could conclude that your conduct was contrary to P[o]ints 3 and 4 of the NSW Police Force Code of Conduct and Ethics, the Respectful Workplace Behaviour Policy Statement and the Respectful Workplace Behaviours Guidelines.
Even if I were to be satisfied that the video did not contain child abuse material, it appears you sought to show a sexually explicit video to one of your junior colleagues, despite her assertions that she did not want to see it. As a Sergeant of Police, you are expected to conduct yourself with the highest standards of behaviour, and to lead the way in relation to appropriate workplace behaviour. You[r] alleged conduct suggests an extreme lack of insight into your responsibilities as a member of this organisation, particularly as a supervisor.
The possession of any child abuse material is abhorrent. The exploitation of children is a particularly serious issue. I expect all officers to be vigilant in detecting and preventing matters of this nature. The public are entitled to expect, and I demand, that police officers protect the most vulnerable members of the community, such as children, from exploitation and abuse. If I were to be satisfied that either Allegation 1 or 2 were proven, it would demonstrate contempt and disrespect for the law, this organisation, and your Oath of Office.
It is necessary to summarise in some detail the reasons given by the Police Commissioner accompanying her decision to remove the applicant from the NSW Police Force, which bear directly upon the grounds of review in this Court.
Those reasons, which occupy ten pages accompanying the notice of his removal dated 24 August 2022, commenced with the factual and procedural background and then turned to the three Allegations. In each case, the Police Commissioner said, “I am satisfied that there are reasonable grounds for me to conclude” that the applicant (a) was in possession of four videos that amounted to child abuse material, (b) had failed to report that Father Kolodziej had sent three videos to him and that his failure to do so amounted to neglect of duty and (c) in March 2021, had attempted to show his work colleague, and played in her presence, a video containing child abuse material.
After stating those matters in respect of which the Police Commissioner was “satisfied that there are reasonable grounds”, the Police Commissioner made a series of positive findings – not expressed as matters where she was satisfied on reasonable grounds – that the applicant’s conduct was contrary to the Police Act, the Police Regulation, the Crimes Act and the NSW Police Force Code of Conduct and Ethics.
The reasons concluded with a long section headed “Consideration” which is best reproduced verbatim:
As set out in the Notice, I am extremely concerned by your conduct as detailed above. I expect the highest standards of behaviour from sworn officers of the NSW Police Force and for all NSW Police Force officers to place integrity above all.
I have carefully considered the issues you raised in your Response.
In relation to Allegations 1 and 3, you say you are unable to respond to the allegations, as these matters relate to your Appeal against your conviction. I am aware that you have appealed your conviction in relation to possession of child abuse material. However, the ongoing criminal proceedings does not prevent me from determining for myself whether or not you engaged in the behaviour alleged and whether that behaviour was contrary to the high standards that are expected from all members of the NSW Police Force.
Having considered the material available to me, I am satisfied that you had a number of videos containing child abuse material in your possession for several months. I am also satisfied that you attempted to show [the colleague], and played in her presence, one of those videos. I find that your conduct was contrary to the values of the NSW Police Force.
In relation to Allegation 2, you say you did not open the videos sent to you by Father Kolodziej, so were unaware of their contents. You therefore deny that you neglected your duty in failing to report them. However, in circumstances where [the colleague] says you played Video 2, which was sent to you by Father Kolodziej on 22 January 2021, in her presence in March 2021, and you were able to describe its contents, I do not accept your assertion that you had not opened the videos sent by Father Kolodziej. You have also not commented on your failure to report the video sent to you from another number on 9 April 2020. I am satisfied that you failed to report your receipt of the four videos and your failure amounted to neglect of duty.
I am satisfied that you engaged in the conduct as set out in Allegations 1 to 3, and I am extremely troubled by it. The evidence demonstrates that you had child abuse material in your possession for a number of months. I am very concerned that you neglected your duty in failing to report them being sent to you. I am also very concerned that you then sought to show one of the videos to a colleague. Your conduct demonstrates an extreme lack of judgement, and insight into your responsibilities as a member of this organisation.
The possession of any child abuse material is abhorrent. The exploitation of children is a particularly serious issue. I expect all officers to be vigilant in detecting and preventing matters of this nature. The public are entitled to expect, and I demand, that police officers protect the most vulnerable members of the community, such as children, from exploitation and abuse. Your conduct demonstrates contempt and disrespect for the law, this organisation, and your Oath of Office.
l have carefully reviewed all of the material associated with this matter. I have taken into account the character evidence you have provided, and details of your career history within the NSW Police Force, including your senior rank, and over 20 years of service. I have taken into account your financial obligations, and the impact that removal from the NSW Police Force will have on you.
Against that, I have had regard to the public interest and the need to maintain the integrity of the NSW Police Force. lt is the mission of the NSW Police Force to work with the community to reduce violence, crime and fear. The community must trust that sworn members of the NSW Police Force will protect people from harm. Your conduct has betrayed that trust.
These matters would go to the very heart of your personal judgement and integrity. Given the magnitude of your misconduct I 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. I find that I can no longer rely upon your integrity as a police officer to perform policing duties.
I expect, and the law demands, that New South Wales police officers will uphold their solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty.
I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Force Code of Conduct and Ethics.
I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer.
Division 1C of Part 9 of the Police Act governs the review of the Police Commissioner’s decision to remove police officers from the NSW Police Force. Within that Division, s 181E(1) has at all relevant times provided that a “police officer who is removed from the NSW Police Force … may apply to the Industrial Relations Commission … for a review of the order on the ground that the removal is harsh, unreasonable or unjust”. At the time the applicant filed his application, that review was to be conducted by the Commission constituted by a single member who was an Australian lawyer (see former s 181K(1); the current provision, which requires that the Commission be constituted by a single judicial member, was inserted by item 4 of cl 2.28 of Schedule 2 of the Industrial Relations Amendment Act 2023 (NSW) with effect from 1 July 2024).
Section 181F mandates the approach to be taken by the Commission so constituted. It does so with notable specificity. The section has provided at all material times as follows:
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 first matter which the Industrial Relations Commission must consider on an application for review is the Police Commissioner’s reasons. In Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [4] this was described as the Commission’s “first duty”.
The applicant had “at all times the burden of establishing” that his removal from the NSW Police Force was “harsh, unreasonable or unjust” despite “any law or practice to the contrary”: s 181F(2). The Commission was also required under s 181F(3) to have regard to both “the interests of the applicant” and “the public interest”.
The hearing before Commissioner O’Sullivan took four days – three days in August 2023 and a fourth in December 2023 (when the evidence of the 8th and final witness in the applicant’s case was taken and both sides addressed). A decision was delivered on 26 September 2024.
Both parties framed the question on review as whether the applicant had discharged the onus of proving that he “did not engage in the misconduct the subject of the three findings” made by the Police Commissioner that the applicant (1) possessed four videos containing child abuse material for several months, (2) had failed to report his receipt of the four videos, and (3) played one of those videos in the presence of his female colleague.
Commissioner O’Sullivan identified the three principal contentions advanced by the applicant as follows at [61]:
(1) in relation to Videos 1–3, the applicant did not contravene s 91H of the Crimes Act in that he did not have those in his possession;
(2) the respondent considered evidence that was insufficient to support the finding that Videos 1–4 constituted child abuse material; and
(3) the respondent relied upon the description of Videos 1–4 [which] was inaccurate.
Unlike his appeal against conviction to the District Court, the applicant not only sought to establish that the videos were not child abuse material, he also denied he had been in possession of Videos 1, 2 and 3, and to that end necessarily challenged the evidence of the colleague who said she had been shown Video 2 by the applicant at their workplace. The essence of his contention was that the colleague had access to his mobile phone during cigarette breaks, and had come across the video when scrolling through his phone, and then lied that he had shown it to her.
The Police Commissioner also expanded her case, in particular by relying on the evidence of a second work colleague, who was an administrative employee of the NSW Police Force, and who said that the applicant had engaged in behaviour constituting sexual harassment “and other inappropriate workplace conduct” while a member of the NSW Police Force. Commissioner O’Sullivan ruled that that evidence (which had not been relied on by the Police Commissioner when deciding to remove the applicant) was relevant only to remedy.
No submissions, written or oral, were expressly directed at whether there were “reasonable grounds” to conclude, as the Police Commissioner had, that the three allegations before the Police Commissioner were made out.
In light of those submissions, Commissioner O’Sullivan addressed whether the misconduct alleged in those findings had in fact occurred, applying at [103] the civil standard to the elements of the relevant offences under the Crimes Act. He held that the applicant’s removal was “unjust” and “unreasonable” within the meaning of s 181E(1) of the Police Act because he found that the applicant had “met his onus in proving that he did not undertake the acts of misconduct the subject of allegations 1-3”: at [149].
Although Commissioner O’Sullivan referred to s 181F towards the outset of his reasons (at [46]–[51]), after setting out both sides’ cases, when dealing with the parties’ central contentions, he turned immediately to the factual issues.
Under the heading “(1) Playing of Video 2”, he found the first work colleague to be “an unimpressive witness” at [108] and expressed his conclusion at [114]–[116] as follows:
… I find that the applicant has made out that [the colleague] has been untruthful in relation to the playing of Video 2 to her on March 2021 and that she somehow had seen Video 2 at some point, given she had an opportunity to, and did access the applicant’s mobile phone.
It is difficult to form a concluded view as to [the colleague’s] motive as to why she would invent the Playing of Video 2, however, I do accept that the applicant had raised concerns with the applicant regarding her time sheet. Given the regular and friendly relationship between the applicant and [the colleague] it is unsurprising that the applicant treated the issue in an informal manner.
I am further satisfied in arriving at this conclusion when regard is had to the implausibility of a long standing member of the Police Force stating to another person that they were in possession of child sexual abuse material.
Under the heading “(2) Possession”, Commissioner O’Sullivan accepted the applicant’s evidence that he had not seen any of Videos 1–3, despite responses sent from his handset to the priest at 9:34am on 24 January 2021 (“Very funny”) and 9:15am on 9 March 2021 (“Love them”). Commissioner O’Sullivan accepted the applicant’s evidence that those responses related only to other textual and innocuous video material sent to him by the priest: at [123]–[125].
Under the heading “(3) Is Video 4 child abuse material?”, Commissioner O’Sullivan concluded that a reasonable person would not find it “significantly offensive”: at [139]–[140].
The result was a conclusion that the applicant did not possess child abuse material, and did not commit an offence, and did not show Video 2 to his work colleague: at [142]. The evidence of the second colleague, which had only been admitted on a limited basis, was not available to support the applicant’s removal from the NSW Police Force: at [144].
Commissioner O’Sullivan formed the following conclusion as to this video at [138]–[140]:
The clear purpose of the video is for the viewer to think that the child has an erection and that somehow this is humorous and this is how the applicant and Mr Makhlouf perceived it.
Although Video 4 could be considered by some as offensive and not humorous, it does not fit within the category of material that will constitute child abuse material for the purposes of s 91FB(1)(a)-(d) and it does not reach the requisite level that the reasonable person, in all the circumstances, would consider it significantly offensive for the purposes of s 91H of the Crimes Act.
In reaching this conclusion I have taken into account the following matters:
(1) neither the child nor the woman is in a sexual pose;
(2) neither the child nor the woman were involved in sexual activity;
(3) the child was not physically harmed; and
(4) the child did not appear distressed at any time during the film.
Commissioner O’Sullivan addressed the sole remaining issue, which was that the manner in which the applicant had presented evidence before the Commission showed he lacked integrity, and rejected it: at [146]–[148].
Consequently, Commissioner O’Sullivan made orders reinstating the applicant to the NSW Police Force, and deeming his period of employment not to have been broken. The Police Commissioner appealed.
Appeals are creatures of statute: Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [57]. The incidents of an appeal turn on the terms of the particular statute conferring the entitlement of appeal.
By the time Commissioner O’Sullivan’s decision was delivered and orders reinstating the applicant had been made, the Police Act had been amended, as part of a suite of amendments made by the Industrial Relations Amendment Act 2023 (NSW). Under s 181K as amended, an appeal from a single member of the Industrial Relations Commission was to be conducted before a Full Bench constituted by three judicial members: s 181K(2).
The nature of an appeal before the Full Bench had remained unaltered for many years. It was governed by s 191 of the Industrial Relations Act 1996 (NSW):
191 Nature of appeal
(1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against.
(2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against.
(3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received.
Note.
The above section generally follows the decision of the Full Industrial Relations Commission in Big W Discount Stores v Donato (1995) 58 IR 239 as to the nature of an appeal. The appeals in respect of which the section applies include appeals in connection with awards, unfair dismissals, approvals of enterprise agreements, unfair contracts or contraventions of dispute orders.
The first ground of review in this Court is that the Full Bench did not accord procedural fairness to the applicant. Accordingly, it is necessary to provide some detail of the positions advanced by the Police Commissioner and the applicant, and the conduct of the hearing by the Full Bench, which was completed in a day accompanied by the supply of some subsequent written submissions.
First, the Police Commissioner advanced nine grounds of appeal, which were as follows:
1. The Commissioner erred in applying the criminal law provisions, including relying on authorities pertaining to the criminal law, to his consideration of whether the Respondent had met his onus of proof.
2. The Commissioner erred in concluding that the Respondent was not in possession of Videos 1 to 3.
3. The Commissioner erred in concluding that the Respondent had met his onus of proof on Allegation 3 in the absence of the Respondent presenting an exculpatory case on evidence that explained how [the colleague] saw Video 2 on the Respondent’s phone.
4. The Commissioner:
(a) erred in concluding that [the colleague] was untruthful; or, in the alternative,
(b) failed to provide adequate reasons to explain why he concluded that [the colleague] was untruthful about her interaction with the Respondent in which she said he showed her Video 2.
5. The Commissioner erred in his consideration of Video 4, including:
(a) failing to have regard to the Applicant’s case, including the evidence of Dr Kenny, which was a mandatory consideration under s 181F(1)(b) of the Police Act 1990;
(b) in determining, contrary to the unchallenged expert evidence of the Respondent, that the child did not appear to be uncomfortable or distressed in the video;
(c) in determining that the ‘clear purpose’ of the video was for viewers to think that the child in the video had an erection, and that this was somehow humorous, in circumstances where there was no evidence before the Commissioner regarding the purpose for which the video was made;
(d) in determining that Video 4 did not meet the definition of ‘child abuse material’ in the Crimes Act 1990, including failing to provide adequate reasons to explain or support that conclusion; and
(e) in determining that Dr Kenny’s unchallenged expert opinions were not supported, or in the alternative, in failing to provide adequate reasons to explain or support that conclusion.
6. The Commissioner erred in only accepting the evidence of [the second colleague] for the purposes of remedy, rather than accepting her evidence for all purposes.
7. The Commissioner:
(a) erred in concluding that [the second colleague] was not a witness of credit; or, in the alternative,
(b) failed to provide adequate reasons to explain why he concluded that [the second colleague] was not a witness of credit.
8. The Commissioner erred by failing to consider, or at least, failing to provide adequate reasons that addressed, the following substantive arguments raised by the Appellant below, which were germane to the Commissioner’s consideration of whether the Respondent’s removal was harsh, unjust or unreasonable and/or the public interest in s 181F(3)(b) of the Police Act 1990:
(a) that the Respondent was not a person of sufficient integrity to be a police officer and member of the NSW Police Force, including in light of his evidence seeking to justify why Videos 1 to 4 were not offensive;
(b) that the Respondent failed to meet his onus of establishing that Videos 1 to 3 were not child abuse material;
(c) that the Respondent’s evidence that he spoke to [the colleague] about time sheet fraud was unsupported by objective evidence and implausible;
(d) that neither [of the two work colleagues] had any motivation to be untruthful; and
(e) that even if the Respondent did not know of Videos 1 to 3 on his mobile phone, his recklessness, carelessness or wilful blindness in that regard was still misconduct deserving of sanction.
9. The Commissioner erred in ordering reinstatement when the evidence established that the Respondent was totally unfit to perform the duties of his position.
Secondly, neither party before the Full Bench made oral or written submissions which expressly contended that Commissioner O’Sullivan had erred by failing to adopt or engage with the “reasonable grounds” standard used by the Police Commissioner.
Thirdly, the Full Bench observed that it could only intervene to correct error or where there had been a demonstrable failure by the primary decision-maker to properly exercise the discretion afforded to him or her: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services (2015) 250 IR 412; [2015] NSWIRComm 16 at [10]. It was common ground in this Court that the identification of error was essential to any intervention by the Full Bench, although the Police Commissioner insisted that in order to make the requisite finding of error it was not necessary to point to an argument advanced before but rejected by Commissioner O’Sullivan.
Fourthly, the reasons of the Full Bench are much more substantial than those of Commissioner O’Sullivan. They comprise 66 pages containing 260 paragraphs, most of which are relatively lengthy, as opposed to 181 paragraphs, most of which are single sentences, over 47 pages. In large measure, that reflects the fact that there were 9 grounds of appeal before the Full Bench, as opposed to three principal issues before Commissioner O’Sullivan.
The reasons addressing each ground may be summarised as follows. Concerning ground 1, the Full Bench concluded that Commissioner O’Sullivan erred because he “proceeded on the basis that he was required to be persuaded that each element of the offence against s 91H … had been proven (to the civil standard)” which “effectively and erroneously imposed an onus on her to prove that [the applicant] had committed an offence”: at [141]. Instead, the correct question was whether the applicant’s case “cast sufficient doubt about the Police Commissioner’s reasoning that reasonable grounds existed”: at [140]. The Full Bench held “it was open to her to remove [the applicant] in circumstances where she had at least ‘reasonable grounds’ to believe that he had committed an offence against s 91H” and that the content of the videos “constituted reasonable grounds” to treat them as child abuse material: at [142]–[145].
Concerning ground 2, on possession, the Full Bench observed that the burden to show that the applicant was not knowingly in possession fell on the applicant and he “failed to discharge his onus” because there were “at least reasonable grounds … which were not impeached by any sufficient doubt” cast by the applicant.
Accordingly, grounds 1 and 2 were made out: at [158]–[160]. Central to the success of these grounds was the fact that a finding that the criminal offences had not been committed did not undermine the decision of the Police Commissioner who had acted on the basis that there were reasonable grounds to believe that he had committed those offences.
By summons which was amended on the day of the hearing, the applicant invokes this Court’s supervisory jurisdiction to review the decision of the Full Bench for jurisdictional error. Consistently with what was determined in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [96]–[100], s 179 of the Industrial Relations Act (which provides for decisions of the Commission being final and purported to prevent them from being “appealed against, reviewed, quashed or called into question by any court or tribunal”) cannot exclude this jurisdiction: see Altaranesi v Industrial Relations Commission of New South Wales [2011] NSWCA 351 at [25]–[33]. As much was common ground. Section 179 does not extend to a purported decision (being a decision vitiated by jurisdictional error) as a matter of construction, a result confirmed by the instruction to construe legislation so as not to exceed legislative capacity in s 31 of the Interpretation Act 1987 (NSW): Kirk at [104]–[105].
Ground 1 addressed the approach taken by the Full Bench in focussing upon whether there had been reasonable grounds for concluding that the applicant had engaged in misconduct, which was said to amount to a denial of procedural fairness, because it was said that the Full Bench had proceeded on that basis without notice to the applicant. Ground 2 and 3 maintained that the Full Bench had fallen into jurisdictional error in taking the approach that the Commission had needed to, and that the correct approach was to, “focus on whether there were reasonable grounds for concluding that the applicant had engaged in the misconduct alleged against him by the Police Commissioner” in the case of ground 2, and in the case of ground 3, “ask whether the applicant had been in possession, even unknowingly, of material that could on reasonable grounds be characterised as child abuse material”. Grounds 4-6 asserted that the Full Bench fell into jurisdictional error in respect of certain aspects of its reasoning, details of which will be addressed below. Ground 7, which was permitted by leave granted at the hearing, was that the Full Bench fell into jurisdictional error by misconceiving its jurisdiction to interfere with factual findings, in essence because it was said that it was necessary by reason of s 191 for the Full Bench first to “conclude that the [Commission’s] factual finding was not reasonably open on the evidence”.
It is convenient and appropriate to follow the order taken by senior counsel for the applicant, who had not appeared in any of the four courts or tribunals which have hitherto occupied some seven days of hearings over more than four years, and commence with ground 1, an approach which accords with what was said in Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 at [36]–[37], Western Sydney University v Thiab (2023) 111 NSWLR 241; [2023] NSWCA 57 at [166], (2024) 115 NSWLR 297; [2024] NSWCA 229 at [27] and [2024] NSWCA 157 at [17]. It is basal that a litigant is entitled to a procedurally fair hearing. I shall then deal with grounds 2 and 7, the latter of which raises a question of principle of general application concerning the nature of appellate review by the Full Bench. I shall then address the remaining grounds. I shall follow also the approach adopted by the Police Commissioner, and address each ground on its merits. But before doing so, it is as well to pause to recall the nature of the jurisdiction invoked.
The proceeding in this Court is not an appeal. The essential nature of the application, necessarily, is that the Full Bench departed so far from the function conferred upon it by statute that the result is affected by jurisdictional error, with the orders made being a nullity, and there being an undetermined appeal still pending before the Full Bench.
The Full Bench lacked authority to determine the appeal other than in a manner which was procedurally fair. The first ground, if made out, and if the claimed procedural unfairness was material, would result in jurisdictional error. Moreover, it is at least arguable that if the Full Bench, which is a tribunal as opposed to a court, misconceived in a fundamental way the nature of the appeal it was hearing and determining, it likewise committed jurisdictional error.
On the other hand, to the extent that the applicant complains about particular aspects of the review of factual findings by the Full Bench, that is unlikely to amount to jurisdictional error even if the error is established. Parts of the amended summons are framed as if this Court were conducting an appeal by way of rehearing under s 101 of the Supreme Court Act 1970 (NSW), save that each ground is preceded by, “The Full Bench fell into jurisdictional error in …”. It is unlikely, to say the least, that a decision of an industrial tribunal constituted by three judges has departed so seriously from statutory requirements that in seven different ways there has been jurisdictional error. And in truth, it is readily seen that most of the grounds of review, even if they were made out, do not come close to establishing jurisdictional error. It is as well to recall what was said in this Court in another application for review of a decision of the Full Bench of the Commission (Public Service Association and Professional Officers*’* Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112; 242 IR 318 at [35]):
It follows that, so long as the Full Bench addressed itself to the right question, did not misunderstand the nature of the opinion it was required to form, or reach a conclusion which was manifestly unreasonable or otherwise beyond the limits of power, this Court cannot intervene: cf The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 (Latham CJ); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [20]-[25] (Gummow and Kiefel JJ). No error of this kind was identified.
What is clear is the need to identify the element of misconduct and assess its seriousness and weigh that against the consequence of proposed dismissal. The absence of any reference to that essential exercise indicates that it was probably not undertaken.
Ground 1 is that the Full Bench’s adoption of an approach that asked whether there were “reasonable grounds” for the Police Commissioner’s findings of misconduct was adopted without notice to the applicant, thereby denying him procedural fairness.
It is uncontroversial that the duty to accord procedural fairness to the applicant attaches to it an entitlement “to know the case sought to be made against him and to be given an opportunity of replying to it”: Kioa v West (1985) 159 CLR 550 at 582; [1985] HCA 81. While there is no universal test to determine the content of the duty, it is clear that the content will turn on the particular statutory framework applicable in the case. Thus it is trite that “the statutory framework within which a decision‑maker exercises statutory power is of critical importance when considering what procedural fairness requires” and that “the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26]. The fair procedure which is required is not abstract, but instead is essentially practical. “The concern of the law is to avoid practical injustice. Fairness is normative, evaluative, context-specific and relative”: TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361; [2014] FCAFC 83 at [86].
Statute (namely, s 181F(1)(a) of the Police Act) required Commissioner O’Sullivan to proceed by “firstly” considering the Police Commissioner’s reasons for the decision to remove the applicant from the NSW Police Force. As Bell P said in Zisopoulos at [83]–[84]:
83. … Assessment as to whether a particular decision of the Police Commissioner engages the statutory criteria necessarily must have regard to the basis and reasoning employed by the Police Commissioner in any given case.
84. Depending upon the basis of the Police Commissioner’s decision …, the burden of establishing that a decision to remove a police officer is harsh, unreasonable or unjust may be satisfied in a given case by casting sufficient doubt on the Police Commissioner’s reasoning process so as to justify the IRC’s intervention. But it is important always to remember that “sufficient doubt” is not “any doubt”, and the raising of a doubt, sufficient or otherwise, does not in any way alter or affect the legal burden which lies on the removed police officer to demonstrate that his or her removal was harsh, unreasonable or unjust. So also, the mere “going into evidence” by, or the raising of an alternative hypothesis on behalf of, a removed police officer will not per se establish that a removal was harsh, unreasonable or unjust nor will it place an evidentiary or tactical burden on the Police Commissioner to justify his original decision to remove the officer. Whether or not it does will be a function of the basis of the Police Commissioner’s original decision and of the strength of the evidence led by the removed officer and or the credibility of the alternative hypothesis. (Emphasis added.)
It was at all times plain that the statutory task required of Commissioner O’Sullivan was to engage in a close reading of the reasons of the Police Commissioner. It is not possible to assess whether or not the removal by the Police Commissioner was “harsh, unreasonable or unjust” without having close regard to the Police Commissioner’s reasons, including the standard of proof adopted in those reasons, for the exercise of the power of removal.
True it is that the battlelines framed by the parties before Commissioner O’Sullivan proceeded directly to whether allegations 1, 2 and 3 had been established, and Commissioner O’Sullivan decided the review on that basis. The agreement of the parties did not entitle Commissioner O’Sullivan to disregard s 181F, nor did it mean that there was no error on the part of Commissioner O’Sullivan for the purposes of the appeal brought to the Full Bench.
The litigants were represented by experienced senior counsel. It would be surprising if the requirements of procedural fairness meant that it was necessary for the Full Bench to explain that they would proceed on the basis that Commissioner O’Sullivan had been bound by s 181F. Where a statute defines how the Court must approach the applicant’s case, only in a most unusual case will the requirements of procedural fairness require that there must be separate notice that that statute will be applied.
The Full Bench considered that Commissioner O’Sullivan erred in determining the applicant’s review by considering whether or not the applicant had committed criminal offences, which had not been the basis of the Police Commissioner’s decision to remove him. Instead, the Police Commissioner had repeatedly said that she was satisfied on reasonable grounds that each of the allegations had been made out, as a consequence of which she did not have confidence in him. It is clear that findings, whether by the District Court on appeal to the effect that the Crown had not established to the criminal standard the elements of the offence involving Video 2, or by the Local Court that the Crown had not established to the criminal standard the elements of the offence involving Videos 1 and 3, or by Commissioner O’Sullivan that Video 4 was not child abuse material and that the applicant was not in possession of Videos 1–3, did not of themselves undercut the basis on which the Police Commissioner had exercised the power of removal.
The reasons of Commissioner O’Sullivan treated as dispositive the conclusion that none of Allegations 1, 2 and 3 was made out. That approach departs from what was required by s 181F(1)(a), because the starting point must be a consideration of the reasons of the Police Commissioner, and those reasons proceeded not on the basis that the allegations were made out, but instead that she was satisfied on reasonable grounds that they were made out.
The Full Bench was correct to frame the proper review that Commissioner O’Sullivan was statutorily obliged to undertake, in considering the reasons of the Police Commissioner. Their Honours observed at [104]:
Accordingly, it was necessary for the Commissioner to determine whether the Police Commissioner’s satisfaction that there were reasonable grounds to conclude that Mr Hanna’s possession of child abuse material amounted to a criminal offence was unreasonable or was attended by sufficient doubt so as to justify the Commission’s intervention.
There is nothing unduly technical about the distinction upon which the Full Bench relied. Putting to one side whatever the test imposed by s 91FB involves, it is clear that there will be cases on the borderline where minds may reasonably differ as to whether a video amounts to child abuse material. In the present case, the Local Court and the District Court differed as to whether Video 2 was “offensive” within the meaning of s 91FB. The basis on which the Police Commissioner acted was not that the applicant had been convicted of the offence of possessing child abuse material. It was because the Police Commissioner formed the view that there were reasonable grounds for her to conclude that he had possessed child abuse material.
No doubt forensically it suited the applicant for the issue to be framed before Commissioner O’Sullivan as it had been in the District Court, namely, whether he had committed an offence. But inviting Commissioner O’Sullivan to decide the application on that basis (a course in which the Police Commissioner appears to have acquiesced) carried with it the risk that a favourable outcome would be susceptible to challenge because that was not the basis upon which the power of removal had been exercised.
In any event, I do not accept that the approach adopted by the Full Bench was unheralded to the parties. Senior counsel for the Police Commissioner below had twice taken the Full Bench to the facts that Allegations 1 and 3 were based on the existence of reasonable grounds on which the Police Commissioner could reach a conclusion (Transcript, 9 April 2025, 8.20, 14.35). The address of senior counsel who then appeared for the applicant commenced at line 25 of page 31 of the transcript. Commencing at line 34 of the same page, there was the following exchange:
PHILLIPS: … the statement of reasons goes into detail as to what was contrary to the Crimes Act by quoting from div 15A of the Crimes Act on the basis that Mr Hanna possessed child abuse material.
Now, when the Commissioner says what [he] did was contrary to the Crimes Act, that’s the standard which one needs to have a look at with respect to what are the elements of the Crimes Act said to have been this conduct was contrary to. And this-
SCHMIDT AJ: I’m not sure that I follow the submission about standard.
PHILLIPS: Well-
SCHMIDT AJ: The Commissioner commences with the statement that she’s satisfied that there are reasonable grounds to conclude that Mr Hanna was in possession of four videos that amount to child abuse and then goes on to say “in the circumstances I find that your conduct was contrary to the various statutory codes of conduct”. The standard that the Commissioner is applying is not the criminal standard is it? No.
PHILLIPS: It’s not a criminal standard. What the Commissioner is applying is the elements of the offence.
VICE PRESIDENT: But not only that.
VICE PRESIDENT: But if sole reliance was placed on the Crimes Act, then perhaps that’s so. But to the extent that it’s not, failure to overcome the hurdle of the Crimes Act elements isn’t fatal to the reasoning of the Commissioner in relying on allegation 1, is it not?
PHILLIPS: Well, just in relation to allegation 1, what is led is possession of four videos that amount to child abuse material. That embraces the wording of the Crimes Act. Now, and it can’t be that merely because they were on your phone that’s sufficient, because—
VICE PRESIDENT: Well, why can’t she be saying, for instance, that the respondent’s possession of the four videos that amount to child abuse material within the definition is nonetheless contrary to the relevant code of conduct and ethics?
PHILLIPS: But the Commissioner didn’t do that. …
It is fair to say that counsel did not engage with what had been put forward by two members of the Full Bench, both of which squarely challenged the proposition that it was sufficient to uphold Commissioner O’Sullivan’s determination that the criminal offences had not been committed. That failure to engage may have been a deliberate forensic tactic, or there may have been other reasons. But I am unable to conclude that there was any denial of procedural fairness on the part of the Full Bench in the course which their Honours took.
In this Court, the applicant, in response, emphasised that the transcript merely reflected a discussion about the standard of proof, and that discussion could not be understood as sufficient notice that the Full Bench would adopt a “reasonable grounds” approach. However, the acceptance that there was a debate about “a number of standards” strengthens the conclusion that an opportunity was given to the applicant to be heard as to how the standard was adopted in the Police Commissioner’s reasons.
The applicant also sought to characterise the reasons of the Police Commissioner as being “not based merely on the Police Commissioner having ‘reasonable grounds’ for thinking that Allegations 1 to 3 were made out” but instead that “she was satisfied that these three allegations were made out”. I acknowledge that there is some tension between the various formulations in the ten pages of reasons given by the Police Commissioner. However, their gravamen turned upon the Police Commissioner being satisfied that there were reasonable grounds for Allegations 1, 2 and 3. It was open to the Full Bench to consider Commissioner O’Sullivan’s characterisation to be erroneous. That is not only because to my mind the characterisation by the Full Bench of the Police Commissioner’s adopted standard is correct, but also because even if that were not so, the issue in this Court is confined to jurisdictional error, and far from there being any jurisdictional error, the Full Bench was obliged to determine whether Commissioner O’Sullivan had departed from what was required by s 181F.
Finally, even if contrary to the above, a denial of procedural fairness could be established on the basis that the standard of proof on “reasonable grounds” was required to be made explicit, I am unpersuaded that that denial was “material”. A denial of procedural fairness will result in jurisdictional error only if there was a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: LPDT v Minister for Immigration (2024) 280 CLR 321; [2024] HCA 22 at [7] and [14]. What difference would even more explicit notification of the way in which the Full Bench were approaching their task have served?
The applicant contended that he would have (1) raised the “pitch” of his submissions because proving an allegation on “reasonable grounds” is a more demanding standard than simply proving the allegation, (2) submitted that the Police Commissioner should amend the grounds of appeal before the Full Bench, or (3) submitted that the framework departed from the manner in which the case was run below.
Furthermore, if it were necessary, say for example because the Police Commissioner had bound herself to the civil standard of proof or if the context of the finding otherwise demanded adherence to that standard, we would also be satisfied that the factors we have identified are sufficient to establish the reasonableness of a finding that Mr Hanna had committed such an offence according to the civil standard of the balance of probabilities.
The applicant invited this Court to read [143] as a contingent observation: that, had the civil standard been required, a finding to that standard would have been reasonable, but not a finding which was actually made. I am unable to accept that reading. Courts and tribunals often make contingent findings such as that in [143]. That is the ordinary meaning of the paragraph’s premise (“if it were necessary” or “if the context of the finding otherwise demanded adherence”), and of the words “we would also be satisfied”.
The consequence of that finding is that the decision could not realistically have been different had the applicant’s standard been adopted. Even if the applicant were correct and the standard of “reasonable grounds” were set aside entirely, the Full Bench was nevertheless satisfied that the applicant did not sufficiently persuade on the civil standard.
For all those reasons, ground 1 is not made out.
The Full Bench fell into jurisdictional error by misconceiving its jurisdiction to interfere with factual findings made by the IRC.
Particulars
a. Section 191 of the Industrial Relations Act require that, in order to overturn the IRC on a question of fact, the Full Bench first had to conclude that the IRC’s factual finding was not reasonably open on the evidence.
b. The Full Bench did not take the approach identified in the preceding particular when overturning factual findings of the IRC.
The foundation of this ground is s 191 which has been reproduced above. Subsection (1) provides that the appeal is “not by way of a new hearing” but is determined on the evidence and material adduced in relation to the decision appealed against. It is necessary to bear in mind that appeals do not fall into a simple taxonomy, but instead turn upon the incidents of the particular statute; cf Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [89]. Nonetheless, the first subsection makes clear that the general nature of the appeal is by way of rehearing, rather than what was once commonly expressed as a hearing de novo. Subsection (2) makes it clear that there is a limited power to receive further evidence (which must either post-date the decision or be accompanied by “special grounds”). That provision is also familiar, resembling s 75A(7)-(9) of the Supreme Court Act.
The fact that the appeal is by way of rehearing, rather than de novo, means that it is necessary to identify some “legal, factual or discretionary error”. That was the point made in Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23], by reference to the nature of an appeal to the Full Court of the Family Court:
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. (Citations omitted.)
The same point was made by this Court in State of New South Wales v Culhana (2025) 117 NSWLR 448; [2025] NSWCA 157 at [41]–[43].
In contrast with s 191(1) and (2), subsection (3) is unusual. It, and the note which relates to it, are as follows:
(3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received.
Note.
The above section generally follows the decision of the Full Industrial Relations Commission in Big W Discount Stores v Donato (1995) 58 IR 239 as to the nature of an appeal. The appeals in respect of which the section applies include appeals in connection with awards, unfair dismissals, approvals of enterprise agreements, unfair contracts or contraventions of dispute orders.
Ground 7 seized on s 191(3) and attributed to it a constraint, namely, that the Full Bench had first to identify House v The King error, before intervening in any appeal, irrespective of its nature.
By reference to the note in s 191, the applicant pointed to what had been said by the Full Commission of the Industrial Relations Commission of New South Wales in Big W Discount Stores v Donato (1994) 58 IR 239 at 243 concerning the nature of an appeal under the former s 382(4) of the Industrial Relations Act 1991 (NSW), where it was held by reference to what had been said by Barwick CJ in Edwards v Noble (1971) 125 CLR 296 at 304; [1971] HCA 54 that in an appeal by way of rehearing, it was necessary to show that a finding of fact was not reasonably open on the evidence. The applicant submitted that the Full Bench’s failure to comply with s 191(3) amounted to jurisdictional error.
There are many difficulties with the applicant’s submission. But the first, which is fundamental, is that it misapprehends the effect of s 191(3).
As was explained in Culhana at [57]–[59], the view expressed by Barwick CJ in Edwards v Noble, which had been reproduced extensively in Big W Discount Stores v Donato, was reiterated by the Chief Justice in a number of decisions, including Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 and Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192; [1970] HCA 43. It was never a view of a majority of the High Court of Australia. And it was decisively rejected by the joint majority judgment of the High Court in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, where it was said at 551-552:
There is in our respectful opinion no authority that entitles us to depart from the doctrine expounded in this Court in cases before and including Paterson v Paterson (1953) 89 CLR 212 and in the House of Lords in Benmax v Austin Motor Co Ltd [1955] AC 370. The balance of opinion in cases since Edwards v Noble inclines in favour of adherence to that doctrine. Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.
… Again with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.
Subsequent decisions of the High Court have adhered to the proposition, which should be regarded as fundamental, that the ordinary incident of an appeal in this country gives deference to findings of primary and secondary facts where the trial judge enjoys an advantage, but otherwise does not refrain from intervention on the basis that some finding is “open”, thereby leaving error to be perpetuated. Examples include Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [25], Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [25]–[26] and KMD v CEO (Department of Health NT) [2025] HCA 4; 99 ALJR 474 at [21].
Warren v Coombes is familiar to any appellate advocate. Mr Reynolds SC, for the applicant, prayed that familiarity in aid of his submission that, a decade later, when Big W Discount Stores v Donato was decided, “it’s not as if President Fisher and his colleagues would not have been well aware of the very important decision in Warren v Coombes”.
There was a large dispute in the High Court of Australia throughout most of the time in which Barwick CJ held office as to the fundamental way in which an appellate court was to approach its task. That dispute was resolved by Warren v Coombes. Some 15 years later, in the early 1990s, there was a dispute in the Industrial Relations Commission of New South Wales, on a much smaller issue, but which led to a series of inconsistent decisions. In order to construe s 191(3) – which was the provision which resolved that dispute – it is necessary to understand that dispute.
The issue in Big W Discount Stores v Donato was a discretionary decision to reinstate an employee on terms that he be paid one half of the wages which he would otherwise have received but for his dismissal. As Mr Herzfeld SC for the Police Commissioner pointed out, Big W Discount Stores v Donato was delivered shortly after the earlier decision of the Full Commission, differently constituted, in Outboard World Pty Ltd t/a Budget Waste Control (Sydney) v Muir (1993) 51 IR 167. That decision also concerned a claim of wrongful dismissal. The Commission identified three stages: (a) the ascertainment of the facts, (b) the determination of whether the dismissal was “harsh, unreasonable or unjust” within the meaning of the statute, and (c) the discretionary power to craft a remedy. The primary tribunal was said to enjoy a “definite advantage” in relation to finding primary facts, but in relation to the second stage, in accordance with what had been established in Warr**en v Coombes, it was said that “the appellate tribunal will be as well-placed as the primary tribunal to make its own decision on that question, and should do so”. In relation to the third stage, the starting point was whether error of the nature identifying in House v The King was made out, but the Full Commission then considered whether it flowed from a recent High Court decision ( (1990) 170 CLR 267; [1990] HCA 36) that a less circumscribed approach applied. The Full Commission concluded that it did, stating at 181-182:
We consider that the approach adopted by the High Court in Brideson (No 2) has equal application to the disposition of an appeal from a decision of a single member of the Commission, including an appeal against the exercise of discretion by such member. That is to say, the Full Commission must, on all questions arising for determination on an appeal, including questions going to discretion, decide the matter for itself on the evidence at first instance together with such evidence or information as may have been called for by it, and in the light of the state of the law then existing. In doing so it should have regard to the decision the subject of the appeal and the accompanying reasons, giving a good deal of weight to the decision where it concerns a discretionary issue. Further, proper consideration should be given to the advantage possessed by the primary tribunal in seeing and hearing the witnesses where evidentiary issues are concerned. But the duty of the Full Commission is to impose its own decision should it differ from the decision under appeal.
We appreciate that this view is inconsistent with that taken by the Full Commission in Electricity Commission v Crump (to which we have earlier referred) concerning an appeal from a decision in s 246 proceedings. However, on this occasion, unlike what we understand was the position in that case, the relevant issues have been fully argued with particular reference being made to the important High Court decision in Brideson (No 2).
Once again, the principles to be applied in an appeal against a decision of a member of the Commission to the Full Commission were debated by the parties and, in particular, the implications of the decision of the Commission in Outboard World Pty Ltd v Muir (1993) 51 IR 167. In this decision, the Commission said:
“We appreciate that this view is inconsistent with that taken by the Full Commission in Electricity Commission v Crump (to which we have earlier referred) concerning an appeal from a decision in s 246 proceedings. However, on this occasion, unlike what we understand was the position in that case, the relevant issues have been fully argued with particular reference being made to the important High Court decision in Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267; 33 IR 473.”
Because we are of the view that the decision in Electricity Commission v Crump (1993) 48 IR 296 at 302 and the line of authority upon which it was based applied the correct principle in the determination of an appeal from a decision of a Commissioner exercising discretion pursuant to s 246 of the 1991 Act, we are constrained therefore to state the reasons why we distinguish the authority of Brideson No 2 in regard to such appeals.
Thus in the period between 1993 and 1995, there were three decisions of the Commission concerning the way in which a Full Bench would review on appeal the exercise of discretion in the third stage (ie, remedy) of an unfair dismissal claim. Electricity Commission v Crump in 1993 said that the applicable principles were those in House v King. Outboard World Pty Ltd v Muir in 1994 said that was wrong, and that while weight should be given to the advantages at first instance, the duty of the Full Commission was to impose its own decision. Big W Discount Stores v Donato in 1995 held that Outboard World was wrong and Electricity Commission v Crump was right.
The resolution to these starkly divided decisions in the Industrial Relations Commission in relation to a fundamental aspect of the appellate function of the Full Commission (namely, review of the discretionary relief consequent upon a conclusion of wrongful dismissal) was s 191(3) of the new Act which commenced the following year.
Read in the light of the dispute between Outboard World and Big W Discount Stores, it is clear that s 191(3) confirms that in the exercise of a discretionary power, such as the power to order reinstatement including on terms following a wrongful dismissal, the ordinary principles applicable to House v The King apply, consistently with what was held in the decision cited in the note, and contrary to what had been held in Outboard World.
However, there is no sound basis to treat s 191(3) as overturning Warren v Coombes in the general exercise by the Full Commission of its appellate functions. There are generally worded statements in Big W Discount Stores v Donato which, if read out of context, might support such a proposition, but it is basic that passages in reasons for judgment are to be read contextually. As was pointed out in Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151; [2023] NSWCA 294 at [323], that is to say “nothing more and nothing less than what was said by the Judicial Committees of the Privy Council in Commonwealth of Australia v Bank of New South Wales (1949) 79 CLR 497 at 637-638; [1950] AC 235 at 308 and Mutual Life & Citizens*’* Assurance Company Ltd v Evatt (1970) 122 CLR 628 at 643; [1971] AC 793 at 809, namely, that all judicial reasoning must be understood secundum subjectam materiam (according to the subject matter)”.
The obvious meaning of s 191(3), including the note, was to resolve the dispute between Outboard World and Big W Discount Stores v Donato, rather than to create a new, unusually confined creature, namely, an appeal where all aspects of the appellate function are only available if the first instance tribunal has made a finding which was not reasonably open. If the true meaning of s 191 were to create such a limited appellate body, it would have been necessary to use quite different language in s 191(1) and (2). It is nonsensical to read the section as a whole as entailing that the principles of appellate review applicable to discretionary decisions are applicable to all decisions, including non-discretionary decisions.
Ground 3 was that there was jurisdictional error by the Full Court in taking the approach “that the [Commission] had needed, and that the correct approach was, to ask whether the applicant had been in possession, even unknowingly, of material that could on reasonable grounds be characterised as child abuse material”. It was said that the “core” of the Police Commissioner’s reasoning was that the applicant had been in knowing possession of Videos 1–4, and that that reasoning had been misunderstood by the Full Bench in such a fundamental way that there was jurisdictional error.
This ground fails at the outset. The Police Commissioner’s reasons were not based on unknowing possession, but instead that she was satisfied there were reasonable grounds for concluding that he had possession of the videos.
The applicant said that the reasons of the Full Bench were sufficiently irrational as to amount to jurisdictional error. The reasons relevantly addressing this point are at [153]–[164], and best reproduced in full:
… [T]he task of assessing whether an applicant has met the onus imposed by the Police Act in respect of a particular decision of the Police Commissioner necessarily must have regard to the basis and reasoning employed by the Police Commissioner in the given case. In Mr Hanna’s case, this included the Police Commissioner’s satisfaction that he possessed, and failed to report videos that depicted real children involved in a sex act, witnessing a sex act, and that concentrated on a child’s erection, in circumstances that caused her to lose confidence in Mr Hanna’s judgment, integrity, commitment to protecting the public (especially children) from harm and, thus, his suitability to remain a police officer.
This reasoning was not confined to the elements of the offence against s 91H. In considering whether Mr Hanna had discharged his onus, the Commissioner therefore had to consider the notion of “possession” of the videos with an ordinary and broad meaning, irrespective of the technical meaning of the term as it is used in s 91H of the Crimes Act.
Mr Hanna was in possession of his mobile phone. Therefore, in ordinary parlance, he was in possession of all the data stored on that mobile phone. He possessed this data in circumstances where he had, at least, viewed Video 4, which depicted a child with an erection after being directed to massage a woman’s buttocks, and did nothing to report it for investigation.
The submission that, given the very large quantities of pornographic material which Mr Hanna was receiving (of which only 4 videos involving children were detected) he could not reasonably have been aware of the existence of videos which he had not viewed has some superficial attraction. But it does so only in theory and in the absence of the particular circumstantial context that applied to Mr Hanna.
For Mr Hanna, the difficulty with that submission is that he was nevertheless aware that he was in possession of Video 4, which had been sent to him in March or April 2020, before he received any of Videos 1–3. Mr Hanna was thereby effectively on notice that he had received pornographic material, or material of a sexual nature, which involved a child. At a minimum, as a police officer, he should have been vigilant to monitor the pornographic or sexual material he knew he was receiving, to ensure that it did not contain any more images of children. Mr Hanna well knew that material which was sent to him via WhatsApp was automatically downloaded to his camera roll.
Accordingly, even if it could be accepted that Mr Hanna was unaware of the existence of Videos 1–3 on his mobile phone (which is rejected), we find that he failed to discharge his onus in establishing that he did not have possession of the videos stored on his phone. That should have been the end of the matter.
He also possessed this data in circumstances where he had shown Video 2 (which depicted a child witnessing a sex act) to a female subordinate, again without reporting it, and then subsequently falsely denied that he had viewed this video.
We have found in [142]–[147] above that there were at least reasonable grounds for the Police Commissioner to consider that these videos amounted to child abuse material, which were not impeached by any sufficient doubt cast by Mr Hanna, either as to his possession of them, or their content.
This Commission recognised in Storey that child abuse is abhorrent and that there is a considerable public interest in the most vulnerable in our community being protected. In making its decision, the public interest is a matter which the Commission must take into account: Police Act s 181F(3).
Even if Mr Hanna’s possession of these videos did not involve an offence under s 91H of the Crimes Act or Pt 10.6 of the Criminal Code, to which reference was also made by the parties, it must be accepted that the public interest was served by the removal from the police force of an officer who stored this material on his phone, did not refer any of it for investigation, and showed a female subordinate officer one of the videos (as to which see our conclusions in the next section dealing with appeal grounds 3 and 4).
It was reasonable for the Police Commissioner to find that Mr Hanna’s conduct did not meet the stated requirements of the Police Act, the Police Regulation, and the NSW Police Force Code of Conduct and Ethics.
Accordingly, Grounds 1 and 2 of the Police Commissioner’s appeal are made out.
That reasoning is not based solely on “unknowing possession”. It is much more nuanced.
The Full Bench proceeds on the undisputed and undisputable basis that in 2020 the applicant received Video 4 and had actual knowledge of its nature. He responded to that video by mentioning the young boy’s apparent erection. He must have viewed the video. It followed, as the Full Bench explained, that the applicant was on notice that the priest was sending him videos involving children in sexualised roles. Irrespective of whether Video 4 was or was not “child abuse material” within the meaning of s 91FB of the Crimes Act, it was scarcely irrational for the Full Bench to reason that he should have been vigilant to monitor the pornographic or sexual material he knew he was receiving from the priest, to ensure that it did not contain images of children. Nor was it irrational for the Full Bench to reason that he kept the video on his phone, and failed to report it to authorities.
Moreover, the Full Bench intervened in the rejection of the first work colleague’s evidence that she had been shown Video 2, as noted at [160]. (I return to this when dealing with ground 4 below.) On that basis, the further reasoning that the applicant (a) had actual knowledge of Video 2, (b) had failed to report it to the authorities, and (c) had showed it to a work colleague supported the conclusion that it was against the public interest for him to remain a member of the NSW Police Force. That reasoning is not “seriously irrational”; it is, with respect, utterly appropriate.
That is sufficient to dispose of this ground.
Ground 4 is that “the Full Bench fell into jurisdictional error in using adversely to the applicant the fact that the applicant had been convicted in the Local Court for possession of child abuse material on the basis of possessing Video 2, which conviction had been overturned on appeal only on the basis that Video 2 was not child abuse material”.
It will be recalled that in the Local Court, the applicant’s work colleague gave evidence, and the applicant did not, with the Local Court accepting her account. Before Commissioner O’Sullivan, both the colleague and the applicant gave evidence and were cross-examined. Commissioner O’Sullivan addressed the divergent accounts at [105]–[116], finding that the colleague was “an unimpressive witness”, while the applicant made appropriate concessions although some of his evidence was “troubling”. Ultimately, Commissioner O’Sullivan found that the colleague “has been untruthful in relation to the playing of Video 2 to her on March 2021 and that she somehow had seen Video 2 at some point, given she had an opportunity to, and did access the applicant’s mobile phone”: at [114].
On appeal, the Full Bench overturned that finding. Their Honours did so relying upon a number of matters. One was that Commissioner O’Sullivan had failed to consider the plausibility of the alternative explanation. A second was whether the colleague had a motive to lie about how she had come to see Video 2 on the applicant’s mobile phone, about which Commissioner O’Sullivan had said that he was unable “to form a concluded view”. A third was that the applicant had accepted that he had received hundreds of images and videos on his mobile phone in the period between his receipt of Video 2 and when the colleague stated he had played it to her, that led to the result that the prospect of the colleague happening upon and then playing this particular two minute video during a period of unsupervised access to the applicant’s handset being “inherently and highly improbable”. A fourth was that the character evidence did not assist the applicant, given that he was evidently aware of his possession of Video 4, which they regarded as child abuse material. A fifth was that although it had been submitted that it was inherently unlikely that the applicant would show child abuse material to his colleague, the context was that he was in the habit of showing her videos on his phone and his evidence was that he did not consider the video to be either child abuse material or offensive.
In addition to those five matters, the Full Bench relied upon the “undisturbed Local Court finding that Mr Hanna had shown Video 2 to [his colleague]” in order to establish the “glaring improbability” of Commissioner O’Sullivan’s finding that the colleague had viewed Video 2 on the applicant’s handset without his knowledge (at [186]). The Full Bench then proceeded to find not merely that Commissioner O’Sullivan had erred, but went on to say that “there was insufficient evidence for Mr Hanna to discharge his onus and therefore the question as to the truthfulness of [the colleague] did not properly arise”: at [189].
Ground 5 challenged the reasoning at [120]–[124] of the Full Bench’s decision. It concerned the notation on the Cellebrite printout of the WhatsApp messages between the applicant and the priest, namely, that certain of the messages had been “read”. The background to this is that despite hundreds of messages being tendered from the Cellebrite analysis of the applicant’s handset, and each of the four messages from the priest being described as “read” on the printout, there was no technical evidence called by either side as to the meaning of that status. The applicant contended that it meant that the video had been downloaded onto the phone but did not imply that it had been watched on the handset.
Once again, there is nothing in this ground. First, the section of the reasons of the Full Bench commences with the words “for completeness” and concludes with an acceptance of the Police Commissioner’s submission that the applicant had failed to discharge his onus of establishing that “read” on each of the videos did not signify that he had in fact opened and viewed the videos. It is true, in light of submissions made in this Court, that there is some basis for doubting that that is the appropriate inference. Some of the messages are stated to have been “read” at precisely the same time – to the second – which seems consistent with the notation indicating the time they were downloaded, rather than the time they were viewed. But even taking the facts most favourably to the applicant, this is a world away from jurisdictional error. It concerns a minor aspect of the fact finding which was addressed by the Full Bench expressly as a matter of additional reasoning unnecessary to the outcome of the appeal. That cannot give rise to jurisdictional error. The reasoning was not expressed to be dispositive, and even if it were wholly wrong, it did not affect the order of the Full Bench; how then may the order be vitiated by jurisdictional error?
This ground is not made out.
Ground 6 is that the Full Bench “fell into jurisdictional error when concluding that the applicant lacked the integrity required to be a police officer because of the evidence he had given to the effect that Videos 1–4 were not offensive”.
This ground concerns [245]–[250] of the reasons of the Full Bench. In those paragraphs, the Full Bench upheld ground 8 of the Police Commissioner’s appeal, to the effect that Commissioner O’Sullivan had failed properly to have regard to the public interest under s 181F(3)(b) in failing to have regard to the applicant’s view that the videos were not offensive. The short point is that the Full Bench was correct, and Commissioner O’Sullivan had failed to have regard to those matters. They were matters to which Commissioner O’Sullivan was required to have regard, which had been raised before Commissioner O’Sullivan and before the Full Bench.
In this Court, the submission was refined to one that was based upon a temporal consideration. It was said that it was not open to have regard to the applicant’s evidence before Commissioner O’Sullivan, because that post-dated the decision to remove him from the NSW Police Force. That submission is untenable. There is an express power to admit further evidence on appeal, and the re-exercise of discretion in the event that error is made out is to be conducted on the evidence as it is at the time.
Finally, no differently from other grounds advanced, this ground is not material, and could not of itself vitiate the order made by the Full Bench, as the applicant realistically acknowledged. This ground is not made out.
For those reasons, the decision of the Full Bench is not attended by jurisdictional error. The further amended summons must be dismissed. No reason was put forward to depart from the usual order as to costs in UCPR r 42.1.
I propose that the further amended summons filed on 11 May 2026 be dismissed, with costs.
**********
Hanna
Commissioner of Police
[1938] HCA 34
[2025] NSWIRComm 21
[2003] HCA 22
[2010] HCA 1
[2006] HCA 63
(2000) 203 CLR 172
(2023) 113 NSWLR 151
(1995) 58 IR 239
(1938) 60 CLR 336
(1998) 79 IR 206
(2013) 252 CLR 1
(1949) 79 CLR 497
(2005) 226 CLR 1
(1970) 124 CLR 192
(2023) 279 CLR 1
(1971) 125 CLR 296
(1993) 48 IR 296
(2003) 214 CLR 118
(1999) 47 NSWLR 151
(2010) 239 CLR 531
(1985) 159 CLR 550
(2010) 241 CLR 390
(2011) 242 CLR 573
(2019) 266 CLR 129
(2024) 280 CLR 321
(2013) 249 CLR 92
(1970) 122 CLR 628
(1993) 51 IR 167
(2015) 250 IR 412
(1990) 170 CLR 267
(1997) 72 IR 225
(2025) 117 NSWLR 448
(2006) 228 CLR 152
(2014) 232 FCR 361
(1997) 73 IR 454
(1979) 142 CLR 531
(2023) 111 NSWLR 241
(1966) 39 ALJR 505
(2024) 115 NSWLR 297
(1994) 58 IR 239
(1980) 44 FLR 41
(1944) 69 CLR 407
(1953) 89 CLR 212
The further amended summons filed on 11 May 2026 was dismissed with costs: [155]-[156].
Concerning grounds 3 and 4, the Full Bench again noted that, on the criminal standard, there was “reasonable doubt about whether Video 2 was child abuse material” yet there were “nevertheless reasonable grounds for the Police Commissioner to consider that it was”: at [176]. On the facts, the applicant’s hypothesis that the material was innocently accessed was “inherently and highly improbable” (at [183]) and the Full Bench considered Commissioner O’Sullivan’s contrary assessment of the work colleague’s evidence was “glaringly” improbable, entitling a review of the findings of fact: at [186]. The Full Bench found that Commissioner O’Sullivan erred in holding that the applicant discharged his onus (at [189]) and erred in finding the colleague untruthful (at [190]) but did “not accept that the Commissioner’s reasons … were inadequate” (at [191]). Thus grounds 3 and 4(a) were made out, but not ground 4(b).
Concerning ground 5, the Full Bench considered whether “there were reasonable grounds … to have concluded that Video 4 contained child abuse material” at [208] and found the same kind of error as in Grounds 1-2, namely, that Commissioner O’Sullivan had effectively applied the criminal standard of “significantly offensive”. In addition, their Honours held that he had disregarded the definition of s 91FB(1)(d) and (4) (at [213]) and departed from unchallenged expert evidence (at [215]–[218]). The Full Bench held that Commissioner O’Sullivan’s “subjective impression of the contents of the video did not constitute a proper basis for rejecting Dr Kenny’s unchallenged assessment” (at [221]). Ground 5 was made out.
Concerning ground 6, the limitation of the second colleague’s evidence to remedy was “a matter of consensus between the parties in the proceedings below” (at [236]) and so Commissioner O’Sullivan could not be found to have erred, such that this ground was not made out.
Concerning ground 7, the Full Bench agreed that forming a view of the second colleague’s credit as a whole based on only one allegation “was contrary to law” (at [237]) and there was “no basis for the Commissioner’s credibility finding” in this respect (at [238]). Ground 7 was thus made out, although unnecessary given the conclusions elsewhere.
Concerning the applicant’s integrity, raised within ground 8(a), bearing in mind his “strident defence of Videos 1–4 as being both appropriate and humorous” (at [243]), the Full Bench found his evidence “demonstrated that he lacked the integrity required to be a trusted police officer, as the Police Commissioner had concluded” (at [249]) and that Commissioner O’Sullivan “again fell into error” in failing to address this: at [248]. Ground 8 was made out.
Concerning ground 9, the Full Bench found that, given the conclusion that the applicant lacked the integrity to be a member of the NSW Police Force, it followed that his reinstatement would not have been ordered, even accepting that he was ultimately found not guilty of the offence of possessing child abuse material: at [255]–[259].
It will be clear from that summary that the Full Bench found error in the approach adopted by Commissioner O’Sullivan which in substance began and ended with his consideration of whether the applicant had committed a criminal offence. That was not “a standard to which the Police Commissioner’s reasons” for removing the applicant “were bound”. Consistently with what was said in Zisopoulos, the Full Bench observed at [38]–[39] that there was “no statutory reason for the Police Commissioner to choose this standard of proof” and that the “reasonable grounds” approach was “open” provided that it caused the Police Commissioner “not to have confidence in the police officer’s suitability to continue as a police officer”.
The result was that, as the Full Bench observed at [257] and [259], the applicant’s successful conviction appeal “did not, of itself, establish that his removal was unreasonable or unjust” because the applicant’s evidence “did not establish that the basis and reasoning employed by the Police Commissioner failed to provide a proper basis for her conclusion that she could no longer have the necessary confidence in his suitability to continue as a police officer”.
The Full Bench allowed the appeal, quashed the orders made by the Commission and dismissed the applicant’s application under s 181E.
The gravamen of (1) is directed to a difference in the method of argument on the standard of “reasonable grounds” yet it discloses no realistic possibility of a different result. To displace a conclusion made as a finding, the applicant would have to disprove the finding. To displace a conclusion expressed in terms of “reasonable grounds”, the applicant would have to disprove the finding being reasonably open. The difference is merely one of degree. The same arguments, or a subset of the same arguments, would be advanced. I accept the Police Commissioner’s submission that it is fanciful to suppose that the applicant held back arguments on the question of whether the videos formed child abuse material, against the possibility that he may alternatively need to demonstrate that the conclusion was not reasonably open. A difference in pitch is not a difference in substance which could realistically have changed the outcome.
Both (2) and (3) relate to arguments seeking to set aside the “reasonable grounds” approach in favour of the standard of proof adopted by Commissioner O’Sullivan. However, the Full Bench’s observations at [143] make clear that, even if Commissioner O’Sullivan’s position was adopted and the Police Commissioner could be understood as adopting the civil standard, the Full Bench were satisfied that this was met:
The context also explains what this Court once noted as a curiosity of s 191(3), namely, that it was expressed to be for the avoidance of doubt: Public Service Association and Professional Officers*’* Association Amalgamated Union of New South Wales v Secretary of the Treasury at [27]. The doubt in 1995 was palpable: it was the conflicting decisions of the Full Commission concerning the way in which discretionary decisions of relief following a finding of wrongful dismissal were to be reviewed.
The applicant pointed to various decisions of the Commission which proceeded on the basis that a narrower test applied. These included Re Solicitors (State) Award (No 3) (1997) 72 IR 225, Wang v Crestell Industries Pty Ltd (1997) 73 IR 454, CCH Australia Ltd v Bowen (1998) 79 IR 206 and Hollingsworth v Commissioner of Police (1999) 47 NSWLR 151. At one stage, senior counsel for the applicant flirted with the proposition that the latter, a decision of the Commission “in Court Session”, might be regarded as a decision of an intermediate appellate court for the purposes of deference. I would reject this submission. It is plain from Kirk itself that judicial review is available to this Court of those bodies. It cannot be the case that in the exercise of this Court’s supervisory jurisdiction, any special deference is to be given to that body by virtue of the fact that it is itself exercising an appellate jurisdiction.
Further, none of the decisions upon which the applicant relied was a decision where the nature of the appellate function had been argued, as opposed to asserted. Decisions are not authority for what they do not decide: CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13]; Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 1; [2023] HCA 10 at [42].
Finally and in any event, it is clear enough that even if all of the above is wrong, many of the errors disclosed in the decision of Commissioner O’Sullivan amount to House v The King error. But it is not necessary to pause any longer to identify them. This ground fails.
In this Court, the applicant submitted that the “undisturbed finding” by the Local Court had no, or next to no, probative value in the fact finding process engaged in by Commissioner O’Sullivan. In the Local Court, the applicant had not given evidence. Before Commissioner O’Sullivan, both the applicant and the first work colleague had been cross-examined extensively; in the case of the colleague, including on her testimony in the Local Court. I agree with the applicant that in those circumstances, what had been found by the Local Court in a completely different evidentiary situation, which had not been challenged on appeal to the District Court, was of virtually no assistance in resolving the direct conflict in testimonial evidence in the Commission.
However, it is not sufficient for the applicant to point to error. Not only must the error be material, but it also must be jurisdictional. When asked why this ground gave rise to jurisdictional error, the applicant maintained that it was “seriously” irrational to have relied upon the undisturbed Local Court finding. Accepting that there may be cases where one factual matter plays such a critical role in the decision-making process that a seriously irrational finding in relation to it may amount to jurisdictional error – although it is difficult to conceptualise such a case – this is well removed from that. This ground is a challenge to one of a number of strands of reasoning directed to one aspect of the fact finding process of the Full Bench. It is to be borne steadily in mind that the Full Bench is empowered to make errors of fact within jurisdiction.
In short, I agree that one, relatively minor aspect of the reasoning process is erroneous. That falls far short of establishing jurisdictional error. This ground is not made out.