Having considered the material contained in your written submissions, I believe you have failed to negate the issues raised in the grounds and I do not accept them as a valid rebuttal of the issues raised in respect of you. I have formed the view, based on weighing up the material provided to me, in contrast to your denials, that you have, over an extended period displayed a lack of competence to carry out the duties of a senior police officer. You have shown an inappropriate attitude and demeanour towards female officers, shown a continued disregard to the orders of your superiors and abrogated your responsibilities as a police officer. For these reasons I find that I cannot have confidence in your suitability to remain a member of the New South Wales Police Service.
8 I turn first to the aspect of the applicant's case which criticises the approach of the Commissioner in relying upon an accumulation of events over a long period of years as justifying the formation of his relevant lack of confidence. It seems to me that to expunge the applicant's history in the context of a case such as this is quite impossible. It may be, in an appropriate case, that a reference to history is uninstructive. However, where over the years it is seen that there has arisen a continual series of events, each of which may have required and received appropriate attention at the time, there may be a culmination of that history in events which cause a re-examination of it as a whole. Even though each incident might, arguably, not warrant dismissal, there may remain room for the formation of a view that the person has demonstrated repeatedly failings which cause, and justify, a loss of confidence. This may be the more so where the nature of the incidents is similar.
9 Nevertheless, certain issues were not relied upon, I think correctly, by the Commissioner as contributing much weight to the reasons for dismissal. I do not intend to gainsay that view. The matters of substance which arise justify an examination of them in isolation. If they support dismissal the other matters are not required as additional matter justifying dismissal; if they do not, the other matters will not achieve the result sought by the Commissioner.
10 In the present case, the re-examination of that history was provoked by particular incidents relating to the applicant's allegedly unlawful accessing of the COPS system, a computerised system of recording criminal and other records, and other information. There had also been some recent difficulty arising over what was thought by the Police Service to be his use, contrary to direction, of what was referred to as his "smiling policeman" persona. Each of these events, in my opinion, were matters of substance which required examination. They were not trivial issues for all of which the applicant had an acceptable explanation. In addition, a difficulty arises as the result of the evidence given in the proceedings concerning an alleged breach of instruction concerning contact with a certain female police officer.
11 Before dealing with the particulars of these events, it is necessary to consider, in general terms, the nature of the problems advanced and their juxtaposition with the relief available should the applicant succeed. The problems raised against the applicant relate to his conduct, his relationships with female police officers, his supervisory abilities and insofar as the evidence given in the case is concerned, his honesty. The evidence on the matter of supervision satisfies me that the applicant had serious and repeated difficulties with the supervision of staff under him such that I would not order his reinstatement into a supervisory position, were there any other course available, without appropriate remediation. Counsel for the applicant and the Police Commissioner agreed that the power to order reinstatement in these proceedings would not include the power to order reinstatement in a position below that occupied at the time of dismissal. That is to say, if the Commission were persuaded that reinstatement were necessary but that it were preferable to a rank without supervisory responsibilities, such an order would not be available as a matter of jurisdiction. It follows that were the applicant successful in the proceedings but found seriously wanting in respect to supervision, the only remedy involving reinstatement would be to order reinstatement to his former position leaving the Police Commissioner to take such steps as he might be advised with respect to, in effect, demotion.
12 The consequences for the applicant of dismissal from the Police Service are considerable indeed. His age of 53 years obviously affects his future prospects of finding suitable work. Apart from any difficulties in that regard, however, there would be experienced a substantial reduction in the superannuation benefit which would otherwise operate should he be able to remain in the Service until age 60. He would then receive either a fortnightly pension of $1,606.40 or lump sum benefits totalling over $484,000. However, as a dismissed officer the entitlement is $103,000, a portion of which must be preserved until age 55.
13 In the ordinary course of reinstatement matters a penalty of that kind seems to me to be a most material fact in determining whether a dismissal was harsh, unreasonable or unjust (s.84 of the Industrial Relations Act 1996). However, while the same test applies under s.181E of the PS Act, such considerations seem to have less significance in the context of a statutory regime which confers upon the Police Commissioner a power to terminate the services of an officer in whom he has lost confidence. If the loss of confidence is justified, the penalty is the loss of employment with such consequences as that might visit upon the officer, variable as it may be depending upon the length of service. On the other hand, if the loss of confidence cannot be justified, the employment of the officer must be maintained. Leaving aside the matter of supervision referred to in par. 11 hereof, there does not seem to be room for a middle view that the Commissioner was justified in forming the loss of confidence in suitability to continue as a police officer but that dismissal would be harsh, unreasonable or unjust, meaning that the person be restored to the Police Service. Such a result would seemingly defeat the clear object of the statutory scheme.
14 Another matter of importance to mention in the context of relief is an undertaking offered by the applicant to resign (or retire) upon his attaining 55 years of age; this would ensure the reduction in his entitlement to superannuation would be substantially lessened. The Commissioner's submission, which I consider partly correct, is that under the statutory scheme I have no jurisdiction to receive the undertaking. I take that view because of the particular purpose of the proceedings, which is to review the Commissioner's order. In such a review it seems to me there may be 'jurisdiction' to receive such an undertaking but only where the Commission has otherwise determined to find in the favour of the applicant
15 Section 181F(3) appears to take into account this difference with the Commissioner's confidence provisions by requiring the Commission to have regard to: