Laurence Godkin v Commissioner of Police, New South Wales Police Service - [2007] NSWIRComm 202 - NSWIRComm 2007 case summary — Zoe

NSWNSWIRComm

Laurence Godkin v Commissioner of Police, New South Wales Police Service

[2007] NSWIRComm 202

Industrial Relations Commission (NSW)|2007-07-01|Before: Staunton J, Mr J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2007-07-01

Before

Staunton J, Mr J

Source

Original judgment source is linked above.

Judgment (77 paragraphs)

[1]

CITATION: Laurence Godkin v Commissioner of Police, New South Wales Police Service [2007] NSWIRComm 202 This decision has been amended. Please see the end of the judgment for a list of the amendments.

[2]

APPLICANT: Laurence Godkin PARTIES: RESPONDENT: Commissioner of Police, New South Wales Police Service

[3]

CATCHWORDS: Application for declaratory relief pursuant to s 154 of the Industrial Relations Act 1996 - declaratory power of the Court considered - application of Court's powers of interpretation under s 175 of the Act considered - held, on first considerations, the applicant's transfer under s 67(1) of Police Act contrary to the spirit and intent of s 67(1)(a) of that Act - necessary to consider provisions of s 89 and s 63 of the Police Act - definitions of 'appointment' and 'vacant position' in s 63 of the Police Act relevant - when taken together, applicant's transfer under s 67(1) of the Police Act not an industrial matter pursuant to the Industrial Relations Act 1996 relevant to the Commission's jurisdiction - held the privative provisions of s 89(3) of the Police Act ousts power of the Court to grant legal relief - held the Court has no jurisdiction to make the declaratory or consequential orders sought - Hickman principles considered - in all the circumstances, not persuaded that Commissioner acted in bad faith in exercising power to transfer under s 67(1) relying on s 67(1)(a) - application dismissed - issue of costs reserved.

[11]

4 There is no relevantly significant factual dispute between the parties as to the background giving rise to the application currently before the Court. 5 The applicant currently holds the rank of Sergeant with the NSW Police Force. He joined the Force in 1987 and performed general duties and highway patrol duties. 6 In March 2000, Sergeant Godkin was transferred to a teaching position at the Goulburn Police Academy. He was then at the rank of Senior Constable. In April 2003 he was promoted to Sergeant. Further, he held the position of Acting Senior Sergeant for a limited period in 2006. 7 During the latter period of 2002 and extending into 2003, an inquiry was undertaken into allegations of sexual misconduct and inappropriate relationships with students by police officer teachers at the Police Academy. That inquiry was known as the 'Professional Distance Inquiry' (the Inquiry). 8 The applicant was one of the police officers who was the subject of the Inquiry's investigations. That Inquiry made adverse findings against the applicant in relation to two complaints. A subsequent review of the Inquiry's findings and recommendations determined that one of the two adverse findings could not be sustained. That left one adverse finding of sexual harassment consisting of inappropriately touching a female student and making inappropriate sexually suggestive comments and gestures towards her. 9 In October 2003, when that finding was sustained, the decision taken by police management was to counsel the applicant. The applicant remained at the Police Academy but, for the most part, was removed from duties that involved him having any direct contact with students at the Academy. In or about June 2006, when he was promoted to Acting Senior Sergeant, he was put in charge of the Simulated Patrol Assessment Centre (SPAC) at the Academy. As deposed to by the applicant: [32] The SPAC program consists of three parts. Session 1 students are the recruits. Session 2 students are completing their training prior to being attested as Probationary Constables, and the third component are Distance Education Session 1 students. 10 On 9 August 2006, in circumstances largely not disputed, Sergeant Godkin was transferred by the Commissioner from the Police Academy to the Goulburn LAC (Local Area Command) pursuant to s 67(1) of the Police Act 1990 and in accord with s 67(1)(a) of that Act. 11 The basis of the Commissioner's decision under s 67(1) of the Police Act was that Sergeant Godkin's transfer was in the interests of the NSW Police. 12 The background to the decision taken by the Commissioner to transfer Sergeant Godkin was deposed to in considerable detail by Acting Assistant Commissioner McWhirter. He is currently the Director of Human Resources for the NSW Police. His affidavit was tendered without objection subject only to the deletion of one paragraph that was not pressed. I will return to the relevant parts of that affidavit later in this judgment. 13 It was Acting Assistant Commissioner McWhirter who, under delegation, exercised the Commissioner's power to transfer Sergeant Godkin pursuant to s 67(1) of the Police Act. 14 No issue was taken to Acting Assistant Commissioner McWhirter's power of delegation made pursuant to s 31 of that Act to transfer Sergeant Godkin relying on s 67(1) of the Police Act. 15 It is that transfer and the basis of the Commissioner's reasons for doing so that grounds Sergeant Godkin's application for declaratory relief in the terms filed. 16 What the applicant asserts, notwithstanding the explanation given by Acting Assistant Commissioner McWhirter, is that Sergeant Godkin's transfer is invalid in that it has not been effected in accordance with s 67(1)(a) of the Police Act. The decision to transfer Sergeant Godkin was done, it was contended, for an ulterior motive, that being to avoid further adverse media publicity in relation to the Police Academy. 17 Further, it was submitted, the decision to transfer Sergeant Godkin in August 2006 was oppressive in that it amounted to further disciplinary proceedings for matters that were the subject of disciplinary proceedings finalised in 2003. It was, in effect, a disciplinary transfer in relation to non-reviewable action taken in 2003. The declaratory power of the Court

[14]

The declaratory jurisdiction arises 'in relation to a matter' in which the Commission has jurisdiction whether or not any consequential relief is or could be claimed: s 154(1). The declaratory power is therefore not contingent upon the existence of proceedings which are otherwise within jurisdiction as the power arises in relation to a matter as opposed to proceedings. 22 See also the decision of Hungerford J in A v Commissioner for Children and Young People and anor [2001] 107 IR 211 at [8] and Ford v SAS Trustee Corporation [2000] 98 IR 443 at [76] where his Honour stated, correctly in my view: The fundamental nature of the declaratory power in s 154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter about which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it. 23 Having regard to the above decisions, with which I concur, I do not agree with the contention as framed in the application for relief that reliance was placed on the Court's 'inherent power' to grant such relief. That issue was considered by the Full Court of the Industrial Court in PEIRA v PSA (NSW) (Re Scorzelli) [1993] 49 IR 169. In that matter the Court considered whether the Court had an inherent power to grant declaratory relief in the absence of any statutory power in the Industrial Relations Act 1991 (the 1991 Act). 24 In considering that issue, the Full Court said: The fact that the parliament did not choose to make any provision to the effect of s 30A of the 1940 Act appears to us in the light of the legislative history and the course of decision making with respect to declaratory judgments generally to be decisively against a conclusion that the Court now has an inherent power to grant declarations in respect of any matter arising under the 1991 Act.

[21]

Section 23, likewise, operates in respect of matters in which the court has jurisdiction. It does not grant, or extend, jurisdiction. (emphasis added) 29 Further, in concurring with Gleeson CJ, Kirby P said at 586: When, however, the legislation which confers jurisdiction on the Land and Environment Court is examined, I am driven to the same conclusion as Gleeson CJ has reached. Certainly, I do not agree with the concession made in Whitehouse (at 382) that s 22 of the Land and Environment Court Act 1979, of itself, confers on that Court a general "implied incidental power to deal with matters not expressly within its statutory jurisdiction". By its terms, s 22 confers on the Court the power to grant remedies "in every matter before the Court". This can only mean every matter properly before the court, that is, before the court within the jurisdiction conferred by statute or, consistent with statute, necessarily imported because it is a court. 30 One final matter in relation to the Court's power to grant declaratory relief. On behalf of the applicant, reliance is placed on the decision of the Full Bench in Public Service Board (NSW) v Public Service Association (NSW) [1986] 14 IR 445 at 447 to support the proposition that the Court's jurisdiction to grant declaratory relief was 'very wide'. 31 Reference to the above judgment and p 447 in particular does not support the above proposition - at least insofar as s 154 of the Industrial Relations Act 1996 is concerned. Any reference to the expression 'very wide' in referring to the declaratory powers of the Court having regard to s 30A of the Industrial Arbitration Act 1940 (the 1940 Act) is clearly reference to a submission made by counsel on behalf of the PSA in those proceedings. 32 Indeed, it is necessary to go to p 448 to elicit the Court's conclusions in relation to the then declaratory powers of the Court where it was said: The new power to make declaratory orders is couched in language which is consistent with that used in the Supreme Court Act , clearly demonstrating an intention that the Commission is to be vested with a discretionary power to make declaratory orders similar to that of the ordinary courts.

[24]

(2) No proceedings before the commission shall be open to objection on the ground that a merely declaratory order or award is sought thereby, and the commission may make binding declarations of right whether or not any consequential relief is, or could be, sought. 34 In initial contentions filed in relation to this application, counsel for the applicant referred to s 175, Powers of Interpretation, of the Act as being relevant to the application for declaratory relief. Section 175 provides: The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 35 As I understand it, in relying on s 175, the applicant does not do so suggesting s 175 is a source of the Court's declaratory powers but rather pointing to the Court's power to interpret any relevant law or instrument in connection with a matter before it. 36 I would agree with the submission made by counsel for the respondent that only the Commission, pursuant to its arbitral powers under Ch 3 of the Act, (not the Industrial Court), requires recourse to the powers of interpretation that s 175 provides. Where the interpretation of a statute arises for consideration pursuant to the jurisdiction of the Court under s 153 of the Act, the Court would exercise its powers of interpretation relying on the general principles of statutory interpretation subject, of course, to it being a matter within the Court's jurisdiction. Relevant considerations 37 The respondent asserts that the matter that is the basis of the application for relief is not one over which the Court has jurisdiction. 38 In so asserting, the respondent points in the first instance to the relevant provisions of s 67(1)(a) of the Police Act that provides: If the Commissioner considers it to be in the interests of the NSW Police to do so, the Commissioner may transfer a non-executive officer from one non-executive officer position to another non-executive position: (a) if the position to which the officer is transferred entitles its holder to the same remuneration as the officer's former remuneration, or ....... 39 Putting to one side for the moment the provision in s 67(1) as to what is meant by the Commissioner's considerations 'in the interests of the NSW Police', it is the provisions in s 67(1)(a) that the applicant contends have been invalidly utilised by the Commissioner to transfer him from the Police Academy. 40 In support of that submission, the applicant maintains that the administrative decision taken by Acting Assistant Commissioner McWhirter, under delegation, to continue to pay him the Special Duties Allowance for Teacher, Foundational Studies, Education Services as provided by clause 39, Special Allowances of the Crown Employees (Police Officers - 2005) Award, is payment of an allowance as part of his remuneration to which he is not currently entitled. In short, the applicant submits, his transfer to a position at the Goulburn LAC is not one that 'entitles' him to the allowance that s 67(1)(a) requires in order to ground the Commissioner's power to transfer him under s 67(1). 41 In my view, there seems no doubt the decision to continue to pay Sergeant Godkin the above Special Duties Allowance was done to satisfy the requirements of s 67(1)(a) that requires an officer transferred pursuant to that sub-section to be transferred to a position that 'entitles' the officer to the same level of remuneration as the officer's former remuneration. The allowance clearly formed part of Sergeant Godkin's remuneration while at the Police Academy. As Acting Assistant Commissioner McWhirter deposed: [1] In his previous position at the NSW Police Academy, Sergeant Godkin was paid a Special Duties Allowance (Teacher, Foundational Studies, Education Services) at the rate payable to officers three years after permanent appointment (Code 1644) in accordance with the Crown Employees (Police Officers - 2005) Award (Teaching Allowance).

[28]

[5] In accordance with my intention that Sergeant Godkin should continue to be entitled to the Teaching Allowance, on 5 July 2007, I issued the following memoranda: .............. 43 It is not necessary, for the purposes of this judgment, to set out the memoranda referred to. Suffice to say that the decision made by Acting Assistant Commissioner McWhirter included the following direction: When Sergeant Godkin transferred from the NSW Police College to the Goulburn LAC on 10 August 2006, it was agreed that his allowances would be maintained. Further, he is to continue to receive this allowance until such time that he is transferred from your Command. 44 There seems little doubt that the Special Duties Allowance for Teacher, Foundational Studies, Education Services is an allowance directed quite specifically to an officer appointed to a position involving teaching duties within the overall educational services provided by the NSW Police. Reference to clause 39, Special Duties Allowance of the abovementioned Award lists, by grade, a specific array of allowances to be paid to an officer who holds a position designated within the gradings. Once he was transferred from the Police Academy, Sergeant Godkin was clearly not in a designated position attracting the allowance under clause 39 of the Award. 45 The respondent submitted that the overriding primary provision contained in clause 39 gave the power to determine the payment of an allowance to the Commissioner. That provision states: In addition to the rates prescribed for Non Commissioned Officers by clause 34 Salaries and clause 35 Loading of this Award a Non-Commissioned Officer who holds a position set out hereunder shall on the determination of the Commissioner be paid the appropriate allowance prescribed in Table 7 - Special Duties Allowances (Non-Commissioned Officers) of PART B Monetary Rates of this Award, provided that, in respect to grades 1 to 5 where more than one rate applies to a Non-Commissioned Officer they shall only be entitled to one rate namely the higher or highest. (emphasis added) 46 While the Commissioner 'shall' determine the payment of the allowance, such determination is predicated on the officer holding a position specified in sub-clause (ii) of clause 39. In his current position, Sergeant Godkin does not hold the position of Teacher, Foundational Studies, Education Services designated in sub-clause (ii) Grade 2 of clause 39, that had been the position he held at the Police Academy prior to his transfer. 47 It is abundantly clear, in his current position at Goulburn LAC, Sergeant Godkin does not hold a position that, in the normal course of events, would entitle him to receive the Special Duties Allowance he is currently receiving by dint of administrative fiat. 48 That the Commissioner is the person who determines the payment of the allowance does not, in my view, overcome the other condition precedent that entitles an officer to payment of the allowance - that being that he or she 'holds a position set out hereunder' as provided in sub-clause (i) of clause 39. 49 On one view, it would appear to be an arbitrary use of the Commissioner's power to determine payment of an allowance under clause 39 of the Award to an officer who did not hold a position designated in sub-clause (ii). On the face of the evidence, that is exactly what occurred in order to transfer Sergeant Godkin from the Police Academy under s 67(1) of the Police Act because, as the respondent contends, it was in the interests of the NSW Police to do so. 50 It should also be noted that s 67(1)(a) provides for an officer to be transferred by the Commissioner if the position to which the officer is transferred entitles the officer to the 'same remuneration' as he or she was receiving prior to the transfer. While the submissions received have centred on the continuing payment of the Special Duties Allowance as part of that remuneration, it has also been contended by the respondent that, at the Goulburn LAC, there may be the potential for overtime work and penalty rates that may result in Sergeant Godkin enjoying greater overall earnings following his transfer. 51 No evidence was produced to support such a proposition and it is entirely speculative. In any event, there is no inherent entitlement to overtime or penalty rate payments and, as I understand the position at the present time, Sergeant Godkin is not in receipt of any such payments. 52 Given the above, it is my view that in purporting to transfer Sergeant Godkin pursuant to s 67(1) of the Police Act, and specifically s 67(1)(a), the Commissioner did so contrary to the spirit and intent of s 67(1)(a). That is, he determined to effect Sergeant Godkin's transfer by determining to continue to pay him an allowance to which he was not entitled in order to effect his transfer under s 67(1) of the Police Act. 53 On first considerations, the above finding would be sufficient to ground a declaration that Sergeant Godkin's transfer from the Police Academy under s 67(1)(a) of the Police Act was invalid. Such preliminary considerations, however, are clearly contingent on other considerations, particularly the provisions of s 89 of the Police Act and the definitions contained in s 63 of that Act. 54 Section 89 of the Police Act provides: (1) The appointment of or failure to appoint a person to a vacant non-executive position, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996.

[34]

56 Clearly, a transfer such as that determined in relation to Sergeant Godkin is an appointment for the purposes of s 89(1) of the Police Act. As well, given the definition of vacant appointment in s 63, Sergeant Godkin's transfer to what was described by Acting Assistant Commissioner McWhirter as an 'over strength position' at the Goulburn LAC would be categorised as a vacant position, being 'a position that is not held by a person'. 57 Given the above, Sergeant Godkin's transfer under s 67(1) of the Police Act is, in accordance with s 89(1) of the Act, not an industrial matter for the purposes of the Industrial Relations Act 1996 and is therefore not amenable to the jurisdiction of the Commission (as distinct from the jurisdiction of the Court). I am dealing with the jurisdiction of the Court under s 153(1)(b) and s 154 of the Act concerning the Court's power to make binding declarations of right. Accordingly, is it open to me and within jurisdiction to make a declaration as to the validity or otherwise of Sergeant Godkin's transfer? 58 In my view, the answer to that question is found within the privative provisions of s 89(3). Those provisions, as set out above, are sweeping in their import. When taken together with the definitions in s 63 of the Act, to which I have already referred, they effectively prohibit any 'proceedings' contemplated, including a declaration or 'other relief' in relation to the transfer of Sergeant Godkin to the 'over strength position' at the Goulburn LAC, irrespective of the 'invalidity of any such appointment'. 59 In my view, the privative provisions of s 89(3), when taken together with the relevant definitions in s 63, effectively oust the jurisdiction of the Court to grant the relief sought in relation to the transfer of Sergeant Godkin from the Police Academy. 60 The applicant contends that the application of what are generally referred to as the Hickman principles to the privative provisions of s 89(3) will not protect a manifest defect in the sense that the decision to transfer was not a bona fide attempt to exercise the power relying on the decision of the Court of Appeal in Mitchforce v Industrial Relations Commission of New South Wales and ors [2003] 124 IR 79 and Plaintiff 5157/2002 v Commonwealth (2003) 211 CLR 476. 61 Reference to the Hickman principles is reference to the decision of the High Court in R v Hickman; ex parte Fox (1945) 70 CLR 598 where the High Court effectively concluded that a privative provision in legislation is effective to protect from jurisdictional error provided the impugned decision embraces the following principles: (i) it was a bona fide attempt to exercise its power; (ii) it relates to the subject matter of the legislation; and (iii) it is reasonably capable of reference to the power given to the tribunal. 62 If I am wrong in my conclusion as to the combined application of ss 89 and 63 of the Police Act to Sergeant Godkin's application for declaratory relief, I am also not persuaded that, in exercising his power to transfer Sergeant Godkin under s 67(1) of the Act, relying as he did on s 67(1)(a), the Commissioner has acted in a manner that would render his decision invalid, relying on the above Hickman principles to usurp the privative provisions of s 89(3) of the Police Act. 63 Applying the above principles to the issue before me, the Commissioner's decision cannot be said not to relate to the subject matter of the legislation. Likewise, the Commissioner's decision under s 67(1) was reasonably capable of being a reference to the power given to the Commissioner or his delegate. 64 As to the Commissioner's decision to transfer Sergeant Godkin not being a bona fide attempt to exercise his power under s 67(1), it is necessary, in my view, to consider the reasons given for the Commissioner exercising his power to transfer Sergeant Godkin. They are detailed in the affidavit of Acting Assistant Commissioner McWhirter and are unchallenged. They are, relevantly as follows:

[75]

[66] On 10 August 2006, NSW Police Force Public Affairs released the story that two officers had been moved from the NSW Police Academy. Annexed to this affidavit and marked "G" is a true copy of the NSW Police press release. 65 In considering the totality of the above facts and circumstances then prevailing, the Commissioner's decision to transfer Sergeant Godkin pursuant to s 67(1) by exercising his power to determine the continuing payment of the Special Duties Allowance to Sergeant Godkin despite his disentitlement to it was not a decision that, in my view, could be said to have been made in overall bad faith such as to invalidate his power to transfer under s 67(1) of the Police Act. In short, I would agree that the decision to transfer Sergeant Godkin was, at that time, in the interests of the NSW Police. 66 Finally, I am not persuaded that the Commissioner's decision is invalid because it was taken for the 'ulterior motive' of avoiding adverse media publicity. The unchallenged background to the Commissioner's decision, as detailed by Acting Assistant Commissioner McWhirter, attests to the diverse operational and policy issues underpinning the Commissioner's considerations on the issue. 67 Section 67(1) of the Police Act gives to the Commissioner the power to transfer an officer if 'the Commissioner considers it to be in the interests of the NSW Police to do so'. In short, I accept the respondent's contention that the Commissioner's power to 'consider' what is in the best interests of the NSW Police does not involve the Court in an objective analysis of policy considerations but the respondent's state of mind and the exercise of discretion and judgment that his decision to transfer is based upon. There is force in the respondent's submission that the Commissioner's decision to transfer Sergeant Godkin was, given the facts and circumstances, a clear case of discretionary operational decision making where the Commissioner has had regard to a broad range of policy and other matters as part of his considerations underpinning the decision to transfer Sergeant Godkin. As such, it was said, such discretionary powers are inapt for judicial resolution and are not justiciable. 68 While I do not necessarily agree with the ultimate conclusion drawn by the respondent that the Commissioner's discretionary powers are not justiciable, I accept that a Court would not lightly intervene in the exercise of the Commissioner's power to transfer under s 67(1) (discounting the privative provisions of s 89(3) for the moment) unless the decision to transfer was 'definitely extraneous to any objects the legislature could have had in view': See The Queen v Australian Broadcasting Tribunal; ex parte 2HD Pty Limited (1979) 144 CLR 45 at 49. Such a consideration does not apply to the circumstances before me. 69 It is clear the Commissioner was faced with difficult and unusual circumstances. As Acting Assistant Commissioner McWhirter deposed: [67] After Mr Godkin and the other officer were transferred to the Goulburn LAC, the Commissioner determined that no officer was to be attached to the NSW Police Academy under any circumstances who had an adverse finding regarding sexual misconduct. I am aware that a number of officers have since been rejected from coming in to the NSW Police Academy from the field to conduct Simulated Patrol Assessment Centre sessions because they had sexual adverse findings recorded against them. 70 In conclusion, for the reasons as set out above, the transfer of Sergeant Godkin from the NSW Police Academy to the Goulburn LAC is not a matter within the jurisdiction of the Court. Accordingly, the application is dismissed. 71 I will hear further from the parties on the question of costs.

Laurence Godkin v Commissioner of Police, New South Wales Police Service

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