Harrison v Commissioner of Police

Criminal Appeal Act 1912 LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990

Bankstown City Council v Paris (1999) 93 IR 209 Harrison v Commissioner of Police [2006] NSWIRComm 319 Hosemans v Commissioner of Police (2004) 138 IR 159 CASES CITED: Little v Commissioner of Police (No 2) (2002) 112 IR 213 Morrison v Joy Manufacturing Co. Pty Ltd (2004) 137 IR 8 Newton v New South Wales Police Service (1999) 87 IR 66 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Van Huisstede v Commissioner of Police (No 2) (2001) 106 IR 56

Applicant: Mr B Docking of counsel Solicitors: Oates and Smith Solicitors LEGAL REPRESENTATIVES: Respondent: Mr P Skinner of counsel Solicitors: Legal Services New South Wales Police

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

GLEN ARNOLD HARRISON v COMMISSIONER OF POLICE (NO. 2)

Application under section 181E of the Police Act 1990 by Glen Arnold Harrison for review of an order of the Commissioner of Police

1 In these proceedings the applicant has made an application for costs under s 181(2)(c) of the Industrial Relations Act 1996 (IR Act) on the ground that the Commissioner of Police (the respondent), "unreasonably failed to agree to a settlement of the claim". The application arises following my decision that the applicant's removal from the New South Wales Police under s 181D of the Police Act 1990 was harsh, unreasonable or unjust: Harrison v Commissioner of Police [2006] NSWIRComm 319. 2 In relation to the present application the respondent has taken a threshold jurisdictional point that s 181(2)(c) of the IR Act does not apply to proceedings in the Commission for a review of the respondent's findings to remove the applicant under the Police Act. The parties agree that this issue should be resolved separately and that if the respondent's submissions on jurisdiction fail, then the parties should be given time to confer on the outstanding issue of the costs application. 3 The respondent's submissions are advanced on a number of bases. First, it is said that neither the applicant nor the respondent in these proceedings are, "(parties) to proceedings under Part 6 of Chapter 2 (Unfair dismissals)", of the IR Act, which is a prerequisite for the application of s 181(2)(c). Secondly, and in support of the first basis, the respondent contends that s 181G(1) of the Police Act is in similar language to s 196(2) of the IR Act. Section 196(2), according to the respondent, was examined by the Full Bench in Morrison v Joy Manufacturing Co. Pty Ltd (2004) 137 IR 8 which held that the section does not "read in" or "graft in" provisions such as s 5F of the Criminal Appeal Act 1912. By analogous process of reasoning the respondent contends that s 181G(1) does not apply s 181(2)(c) of the IR Act to the legislative scheme for review of decisions to remove an applicant under the Police Act. Thirdly, the respondent seeks to distinguish Walton J's decision to grant costs under s 181(2)(c) of the IR Act in Van Huisstede v Commissioner of Police (No 2) (2001) 106 IR 56. According to the respondent the decision is not binding on the Commission (being a first instance decision). Nor it appears was there any objection to the application for costs made under s 181(2)(c) nor any contradictor to the proposition that the Commission had the requisite jurisdiction to make the order. 4 Each of these matters will be examined in turn. Whether applicant and respondent are parties to unfair dismissal proceedings under IR Act

5 As a preliminary observation it is my view that the respondent's contention that there is, in effect, no interaction between the review provisions under Part 9 Division 1C of the Police Act and s 181(2)(c) of the IR Act is misconceived. In order to illustrate this, it is necessary to set out the relevant provisions in full. 6 Section 181G(1) of the Police Act provides:

181G Application of Industrial Relations Act 1996 to reviews

(1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. 7 Section 181(2)(c) of the IR Act provides:

(2) However, the Commission when it is not in Court Session may award costs only in the following cases:

(c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or... 8 A cursory reading of the two provisions reveals that s 181G(1) focuses on the provisions generally of the IR Act, insofar as they apply to the unfair dismissal proceedings under that Act and subject to certain expressed modifications. Section 181(2)(c) focuses on whether a litigant is a party (my emphasis) to proceedings under the unfair dismissal provisions of the IR Act for the purposes of an award of costs. The respondent's contention in this regard is that, simply stated, he was not a party to IR Act unfair dismissal proceedings and therefore s 181(2)(c) does not apply.

9 It is the respondent's reliance on the fact that he was not a party to IR Act unfair dismissal proceedings that in my view is misconceived. Clearly the respondent was a party to review proceedings under the Police Act. Section 181G(1) insofar as the present costs application is concerned, requires consideration as to whether the provisions of the IR Act apply, "in the same way", as they apply to unfair dismissal proceedings. In this regard the applicant has directed my attention to a number of Full Bench authorities in this jurisdiction which have dealt with the point. 10 The first of the these is Newton v New South Wales Police Service (1999) 87 IR 66. In that judgment the Full Bench analysed the review provisions under the Police Act (which was then known as the Police Service Act 1990). In relation to s 181G (in the same terms as the present s 181G) the Full Bench said at [80]:

The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications... It follows from those various provisions that in procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s84 of the Industrial Relations Act . At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply. 11 The next authority is Little v Commissioner of Police (No 2) (2002) 112 IR 213. In considering whether there had been errors made in the decision at first instance the Full Bench approved earlier observations made by Walton J in Van Huisstede v Commissioner of Police (2000) 98 IR 57 concerning the terms of s 181G:

[64] We consider that the errors essentially derived from the failure to consider the terms of s181G of the Police Service Act . That section was the subject of discussion by Walton J, Vice-President, in Van Huisstede v Commissioner of Police in circumstances where the respondent had contended that the legislature intended to draw a distinction between the "removal" of a Police Officer and a dismissal at common law. It had been contended in that respect that a distinction should be drawn between an application brought under s84 of the Industrial Relations Act and a review conducted under s181E of the Police Service Act . His Honour made the following preliminary observations as to the operation of s181G:

I note that the Commissioner relied upon the provisions of s181D(8) to demonstrate that the legislature had drawn a distinction between the dismissal and the removal of an officer. This contention would be usefully examined in the context of ss51 and 82 of the Act. However, it is not clear to me that a distinction has, in fact, been drawn by the legislature between 'dismissal' and 'removal' in s181D(8). Even if it did give such an indication, it does not seem, in my view, to affect the requirements of s181G (which is a key provision governing review proceedings under Division 1C of Part 9 of the Act). Section 181G applies the provisions of the IR Act in relation to the review of unfair dismissals (with some exceptions) to an application for review under the Act. Notwithstanding that the legislature expressly constrained the operation of certain aspects of the IR Act, it did not limit the Commission's general powers as to unfair dismissals, and to this extent, it may be inferred that the legislature intended that the Commissioner's decision would be reviewable in a similar manner as dismissals otherwise reviewable under Part 6 of Chapter 2 of the IR Act.

[65] We consider that those observations represent the correct approach to the construction of s 181G of the Police Service Act. That provision has the effect of applying to proceedings brought under s181E of the Police Service Act the provisions of Part 6 of Chapter 2 of the Industrial Relations Act in such a manner as to import the provisions of Part 6 to the review proceedings together with the corresponding adoption of the jurisprudence of the Commission with respect to the unfair dismissal provisions of the Industrial Relations Act, except where expressly excluded by the provisions of s181G(1).

[66] This much is clear, in our view, from the plain words of s181G of the Police Service Act. It also follows from a consideration of the nature of the exclusions that appear in s181G. Those provisions indicate the legislature sought to exclude only the general powers of the Commission in relation to unfair dismissals in review proceedings under the Police Service Act , to the limited extent specified in the section. We note, in this respect, in Newton v New South Wales Police Service (No. 2) (1999) 87 IR 66 at 80, the Full Bench of the Commission stated:

The effect of s181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications bought under s84 apply to s181F review proceedings, subject to the there specified modifications. 12 The third authority is Hosemans v Commissioner of Police (2004) 138 IR 159. There the Full Bench conveniently draws together the preceding Full Bench decisions which considered the interaction between the two statutory schemes, that is, the review provisions under Part 9 Division 1C of the Police Act (which includes s 181G) and the unfair dismissal proceedings under the IR Act. After referring to the approaches of the Full Bench in Newton and Little (extracted above) the Full Bench endorsed those approaches:

[104] We agree with the approach of those authorities. As a matter of statutory construction there can be no doubt that a review under the Police Act is akin to unfair dismissal proceedings under the Industrial Relations Act (subject to limited modifications). Contrary to his Honour's conclusions a review has as its legislative underpinning proceedings under Div 6, Pt 2 of the Industrial Relations Act relating to unfair dismissals. The language of s 181G(1) of the Police Act unambiguously states that the provisions of the Industrial Relations Act apply to an application for review in the same way as they apply to an application relating to an unfair dismissal under Pt 6 Ch 2 of the Industrial Relations Act subject only to the modifications denoted. Those modifications have no material impact upon the considerations applicable in this matter (and in any event are quite confined). Further, those modifications do not detract in any fundamental sense from what we see is the overriding intention and purpose of s 181G, that is, as expressed by the Full Bench in Newton v Police Service (NSW) to which we have earlier referred. We concur with and reaffirm the view expressed on that occasion (at 80) as follows:

The effect of s 181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s 84 apply to s 181F review proceedings, subject to the there specified modifications. Relevant to the matter of concern raised by Mr Hendy is the limitation placed upon the introduction of new evidence by s 181G(1)(f) and (2); the protection thereby afforded to a dismissed police officer is manifest. It follows from those various provisions that in procedural respects the hearing of the review proceedings will be conducted in the familiar way, with applicants being in a similar position to that of applicants in proceedings brought under s 84 of the Industrial Relations Act . At the hearing, again from a procedural point of view, the applicant on whom the onus rests will put his or her case, the Commissioner of Police will respond and the applicant will reply. 13 The Full Bench in Newton held that the effect of s 181G was that the provisions of the IR Act which "ordinarily apply" to the unfair dismissal provisions in that Act also apply to reviews under Part 9 Division 1C of the Police Act. According to Little, s 181G imports the unfair dismissal provisions into review proceedings under the Police Act, subject only to the expressed modifications set out in s 181G(1). In Hosemans the Full Bench found similarly that reviews under the Police Act were "akin" to the unfair dismissal proceedings under the IR Act. In my view s 181G(1) on its plain reading, casts a wide net importing into its statutory context the provisions generally of the IR Act (insofar as they apply to the unfair dismissal proceedings under that Act and subject only to the limited modifications). It is not in doubt that resort may be had to ss 181(2)(a), (b), (c) and (c1) of the IR Act in unfair dismissal proceedings under that Act (see for example Bankstown City Council v Paris (1999) 93 IR 209). Since s 181 (or any part of s 181) of the IR Act is not a provision requiring express modification under s 181G(1) of the Police Act it follows from this construction that s 181 of the IR Act applies to review proceedings under Part 9 Division IC of the Police Act by reason of s 181G. 14 Some support for this construction of s 181G(1) may be found in Part 9 Division 1A of the Police Act. That division deals with reviews of the Commissioner's orders under Part 9 Division 1 of the Act. Division 1 in turn concerns various remedies falling short of dismissal or the imposition of a fine available to the Commissioner following findings of misconduct or unsatisfactory performance. Section 179 contained in Division 1A is in the following terms:

(1) In the application of Part 5 of Chapter 4 of the Industrial Relations Act 1996 to proceedings under this Division, the provisions of sections 163, 167, 169 (4), 172, 181 and 184 of that Act do not have effect.

(2) Proceedings under this Division are to be dealt with by a judicial member of the Commission unless the President of the Commission otherwise directs under section 159 of the Industrial Relations Act 1996.

(3) Despite section 160 of the Industrial Relations Act 1996, the President of the Commission may not delegate the President's functions under section 159 of that Act in respect of proceedings under this Division. 15 Part 5 of Chapter 4 of the IR Act deals with the procedure and powers of the Commission and the Industrial Court. As the applicant has submitted on the present application the legislature has expressly modified the application of the IR Act to reviews under Part 9 Division 1A by excluding s 181 of the IR Act. It would follow from this that an applicant who was successful under s 174 of the Police Act in reviewing the Commissioner's order under s 173 of the same Act (namely that the order was harsh, unreasonable or unjust) could not then make an application for costs under s 181 of the IR Act. In contrast s 181G of the Police Act makes no such modification by excluding s 181. This is a difference of some significance and in my view is indicative of the legislature's intention not to exclude s 181 from having operation in review proceedings under Part 9 Division 1C of the Police Act. 16 In Van Huisstede v Commissioner of Police (No 2), Walton J considered that the provisions of s 181 of the IR Act were applicable to review proceedings under Part 9 Division 1C of the Police Act. His Honour's view was based on three grounds. These were:

1. Subject to certain limited exceptions, s 181G(1) of the Police Service Act 1990 incorporates the provisions of the Act generally in relation to applications to the review of an order made under the Act, and not merely those provisions of the Act falling within Pt 6 of Ch 2; 2. The incorporation of the provisions of the Act by the operation of s 181G(1) is only affected by the limited range of exceptions appearing in that section. Those exceptions do not include the provisions of s 181 of the Act. 3. The provisions in the Act which are excluded from the review process by s 181G(1) are not confined to those sections of the Act falling within Pt 6 of Ch 2. It is reasonable to infer, therefore, that the legislature intended that those aspects of the Act which are brought into the review process by s 181G are similarly not confined to the sections of the Act falling within Pt 6 of Ch 2. 17 In my view Walton J's decision provides further support for the construction of s 181G(1) of the Police Act advanced in this present decision. Whether s 181G(1) is in similar language to s 196(2) of the IR Act

18 The respondent's second contention that s 181(2)(c) does not apply to review proceedings under Part 9 Division 1C of the Police Act involves a comparison between s 181G(1) of the Police Act and s 196(2) of the IR Act. According to the respondent the provisions are sufficiently similar to warrant the same approach in these proceedings as was taken by the Full Bench in Morrison v Joy Manufacturing Co. Pty Ltd to the construction of s 196(2) of the IR Act (namely that the section did not "read in" provisions of the Criminal Appeal Act). 19 In order to make good this contention there must, as a starting point, necessarily exist the requisite similarity between s 181G of the Police Act and s 196(2) of the IR Act. Section 181G(1) has been earlier set out in this decision. s 196(2) of the IR Act provides:

(2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction.

20 It will be immediately apparent that the two provisions are in fact fundamentally different in terms of their purported scope. Section 181G(1) is generally worded and on its face incorporates the entire IR Act into the statutory regime under Part 9 Division 1C of the Police Act insofar as the IR Act provisions apply to the unfair dismissal provisions under that Act and except for the expressed modifications in s 181G(1). In contrast s 196(2) is expressly confined in its terms to the exercise of the Court's summary jurisdiction. Put another way, s 181G(1) applies generally the provisions of the IR Act to reviews under the Police Act "in the same way" as those provisions apply to the unfair dismissal provisions of the IR Act. Section 196(2) applies the Criminal Appeal Act to appeals and references "in the same way" as that Act applies to appeals or references to the Court of Criminal Appeal in its summary jurisdiction. Section 196(2) therefore is confined in its scope to Courts exercising summary jurisdiction. This was precisely why the Full Bench in Morrison v Joy Manufacturing found that s 5F of the Criminal Appeal Act fell outside the ambit of s 196(2) of the IR Act. 21 In that judgment the central issue for the Full Bench was whether under s 5F of the Criminal Appeal Act and s 196 of the IR Act, an appeal would lie from an interlocutory judgment at first instance. The Full Bench held that it would not primarily on the basis that it lacked jurisdiction. This was because under s 5F, which refers to prosecution of offenders on indictment, an appeal would not lie to the Full Bench of the Industrial Court from interlocutory judgments or orders of a judicial member of the Court in the Court's summary jurisdiction, (the Industrial Court having no indictable jurisdiction, as to which see s 168 of the IR Act). 22 The purported connecting words in s 196(2), namely "in the same way", did not therefore pick up s 5F(1)(a) of the Criminal Appeal Act, s 5F(1)(a) being confined to courts exercising indictable jurisdiction. No such limitation exists however between s 181G(1) and s 181(2) of the IR Act since that latter provision forms part of the provisions generally of the IR Act and does not require modification when applying the IR Act provisions to a review under Part 9 Division 1C of the Police Act. Whether Van Huisstede v Commissioner of Police (No 2) should be followed

23 Walton J's findings in Van Huisstede v Commissioner of Police (No 2) were made without the benefit of submissions from the parties, neither of whom took objection to the Commission having jurisdiction to decide the issue of costs. The respondent contends that Walton J's findings should be seen in the context in which they were made, namely without rigorous testing of the issues. In addition the respondent reminds the Commission that as a first instance decision it is not binding on the present application. 24 As my earlier analysis of the interaction between the two legislative schemes under the Police Act and the IR Act suggests, my conclusions as to jurisdiction effectively mirror the findings of Walton J. I therefore agree with his Honour's findings, but even if I did not I would have, in the interests of comity, adopted them for the purpose of this decision. 25 The respondent's contentions as to the jurisdiction of this Commission to award costs following a successful application for review under s 181E of the Police Act therefore fail. 26 The Commission makes the following orders:

1. The respondent's preliminary objection to the jurisdiction of the Commission to award costs having failed, the parties have 14 days, that is until 4 May 2007, to resolve the issue of costs.

2. In the event that the issue of costs is not resolved the parties have liberty to apply at any reasonable time on or before 4 May 2007.

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