McDonald v Commissioner of Police [2016] NSWIRComm 1032 | Case summary

The Eaton litigation

In David Eaton v Commissioner of Police ([2010] NSWIRComm 1035 (30 June 2010)) Commissioner Bishop considered an application pursuant to section 84 of the IR Act by the applicant, David Eaton. Mr Eaton was a probationary constable who had been dismissed during his probationary period.
Section 80 of the Police Act is in the following terms: 80 Appointment and promotion of constables (1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable. (2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations. (3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason. (4) The promotion of police officers within the rank of constable is subject to the regulations.
Commissioner Bishop rejected the submission, put on behalf of the respondent that, having regard to the power granted to the respondent by section 80(3), the Commission, in determining a probationary constable's claim, was not permitted to, or ought not, conduct a review of the merits of the section 80(3) decision, as to do so would require the Commission to form a judgement as to reasons underlying the probationary constable's dismissal. It was submitted that such a process, leading as it may to the Commission overturning the respondent's merit decision, would render the section 80(3) power nugatory and give the words "at any time" and "without giving any reason" no real work to do .
Commissioner Bishop went on to consider the merits of the applicant's unfair dismissal application and, ultimately, ordered his reinstatement.
On appeal, a Full Bench of the Commission (Walton VP, Marks and Kavanagh JJ) came to a different view (Commissioner of Police v Eaton ([2011] NSWIRComm 51 (5 May 2011)). The Full Bench held that the Commission did not have jurisdiction under section 84 of the IR Act to hear and determine an unfair dismissal application by a probationary constable who had been dismissed pursuant to section 80(3) of the Police Act.
The Full Bench (at [55]) noted that, if a dismissed probationary constable was able to pursue an unfair dismissal application under Chapter 2, Part 6 of the IR Act, that probationer would have greater rights than would an officer who was removed by order of the Commissioner, given the limitations imposed by Part 9 of the Police Act.
The Full Bench then stated: 57. The respondent sought to rely on s 218 of the Police Act , which is in the following terms: 218 Industrial Relations Act 1996 not affected (1) The Industrial Relations Act 1996 is not affected by anything in this Act. (2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996. In his submissions, the respondent asserted that s 218 was a complete answer to the appellant's submissions. 58. The principles to be applied in considering whether there is inconsistency in provisions of the kind contained within s 218 in the context of more specific provisions of other legislation are well known. They are discussed in the High Court of Australia in Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353. The test, which seemingly the Court applied in that case, was to consider whether or not the two pieces of legalisation under consideration could "work together"(at [11]). We have found the decision of the New South Wales Court of Appeal in Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 more helpful. However, in considering that decision, care needs to be taken to accommodate the focus of attention which was on the particular words used in the Public Service Act, namely "unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act ...." 59. In his judgment, Street CJ referred first to Rose v Hvric and then observed that the words "expressly provided" "merely serve to emphasise the generality of the main provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests ..." (quoting from Rose v Hvric). Street CJ also referred to whether or not there was an implied contradiction in the two pieces of legislation such that "the two cannot live together." 60. Street CJ concluded that particular provisions contained within the Public Service Act, which dealt specifically and in a positive manner with the circumstances of redundancy, necessarily contained "a negative implication precluding the making of an Award inconsistent in operation, or in contradiction of the enactments ...." (at 636). 61. A superficial review of Pt 9 of the Police Act is sufficient to enable a conclusion that s 218(1) cannot mean what is prima facie expressed in the subsection. There are specific provisions which we have earlier set out that directly impact upon the application of certain provisions of the Act to the circumstances set out in Pt 9. A ready example is s 179(1) of the Police Act which particularises certain provisions of the Act, which do not have effect. In these circumstances, it cannot be said that the Act is not affected by anything in the Police Act. It is clearly affected. It is erroneous to argue that the provisions of s 179 of the Police Act have no effect because of the application of s 218 of the Act. 62. Accordingly, s 218 must have some other meaning. Its construction must be approached in the same manner adopted by the Court of Appeal in the Public Service Association case. That is, positive statements about certain matters will have the necessary effect of negativing the jurisdiction and powers created by the Act. 63. We would construe this provision as leaving intact the power of the Commission to deal with industrial matters covering police officers unless especially restricted by some provision of the Police Act . This conclusion is consistent with the judgment of the Full Commission of the Industrial Commission of South Australia in Nassar (at 395).
The Full Bench upheld the appeal by the Commissioner of Police, quashed the decision of Commissioner Bishop and dismissed the application by Mr Eaton for a remedy pursuant to section 84 of the IR Act.
Mr Eaton instituted proceedings in the Court of Appeal for judicial review and sought orders in the nature of certiorari and mandamus to require the Commission to exercise its jurisdiction in relation to his unfair dismissal application (Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30 (6 March 2012) per Bathurst CJ, Handley AJA and Tobias AJA).
The Court of Appeal held as follows: That the Commission had jurisdiction to hear and determine the applicant's claim under Pt 6 of Ch 2 of the IR Act and that the relief sought by the applicant should be granted. per Tobias AJA. Bathurst CJ agreeing: (a) A survey of the legislative history of the Police Act and the IR Act reveals that the legislature, through the respondent and the Police Minister, was aware at all material times that first, probationary constables who were dismissed pursuant to s 80(3) of the Police Act were entitled to engage and had engaged Pt 6 of Ch 2 of the IR Act ; second, that Divisions 1B and 1C of Pt 9 of the Police Act were enacted in 1997 with that knowledge and, third, that those Divisions were not intended to apply to probationary, as distinct from, confirmed police officers. (b) The present case was one of implied inconsistency and not explicit inconsistency. (c) The fact that the applicant was a probationary police officer did not relevantly differentiate his dismissal under s 80(3) of the Police Act from the removal of a confirmed officer from the Police Force pursuant to s 181D(1) of that Act. (d) To permit a probationary constable to engage Pt 6 of Ch 2 of the IR Act would not relevantly place that officer in a position of advantage over a confirmed officer seeking to engage the provisions of Divisions 1B and 1C of Pt 9 of the Police Act . (e) The remedies available to the Commission under Pt 6 of Ch 2 were not irreconcilable with the position of a dismissed officer as a probationary constable. (f) There was no good reason why the power of the respondent to dismiss under s 80(3) could not be read harmoniously with the right of the dismissed officer to engage Pt 6 of Ch 2. The right of that officer to engage those provisions did not detract from or inhibit the respondent's power to dismiss the officer pursuant to s 80(3). (g) As s 80(3) was the only provision (apart from s 88 which was irrelevant) of the Police Act relied on by the respondent as being incompatible with Pt 6 of the IR Act , as it pre-dated the IR Act , it could not effect an implied repeal of those provisions with regard to the dismissal of a probationary police officer. (h) The respondent's position was not assisted by Divisions 1B and 1C of Pt 9 of the Police Act which post-dated Pt 6 of Ch 2 of the IR Act as the parties accepted that Pt 9 did not apply to probationary police officers. (i) The existence of Pt 9 did not lead to the conclusion that on its true construction s 80(3) excluded a dismissed probationary police officer from engaging the unfair dismissal provisions of Pt 6 of Ch 2 of the IR Act . (j) Irrespective of the validity of the implied inconsistency argument, Pt 6 of Ch 2 of the IR Act (in its application to probationary police officers) was saved by s 218(1) of the Police Act. per Handley AJA; Bathurst CJ agreeing: (a) There are a number of provisions of the Police Act which evince an intention not to exclude probationary constables from the unfair dismissal provision of the IR Act . (b) There were also provisions of the IR Act which assume that a decision of the Commission under its unfair dismissal provisions might be inconsistent with the Police Act . (c) Both with respect to the Police Act and the IR Act Parliament had given close attention on a number of occasions to the relationship between the two statutes without excluding probationary constables from the unfair dismissal regime in the IR Act. (d) By virtue of s 83(2)(b) of the IR Act , the unfair dismissal provisions of that Act apply to probationary constables unless specifically excluded by regulation and there was no relevant exclusion in the present case. (e) Section 80(3) of the Police Act is not intrinsically inconsistent with the unfair dismissal regime of the IR Act and even if there was such an inconsistency, the IR Act , being the later Act, should by virtue of s 218 of the Police Act and s 405(3) of the IR Act , prevail. (f) Accordingly, the unfair dismissal regime in the IR Act should be characterised as adding an additional layer of legislation to the Police Act so that each may operate within its respective field: Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 at 553-4 per Lord Wilberforce, applied. (g) The Commission therefore has jurisdiction to hear and determine the applicant's claim under the unfair dismissal regime of the IR Act.
Specifically, in relation to the question of whether Chapter 2, Part 6 of the IR Act confers greater rights on an applicant than does Part 9 of the Police Act, Tobias AJA observed as follows: 74. Section 181G is headed " Application of Industrial Relations Act 1996 to reviews ". Section 181G(1) then provides that the provisions of the IR Act are to apply to an application for review under Division 1C in the same way as they apply to an application under Pt 6 of Ch 2 of IR Act subject to the provisions of Division 1C and to a number of modifications which are then set out. 75. Those modifications were relied upon by the Full Bench (at [55] of its reasons (see [113] below)) and the respondent on the present application to support a finding that if Pt 6 of Ch 2 of the IR Act applies to a probationary constable, that officer will be in a more beneficial position in the Commission than a confirmed officer whose right of review by the Commission is subject to those modifications. It is therefore necessary to set them out in full: His Honour then set out section 181G of the Police Act in full. 76. I pause to make the following observation. Apart from s 181G(1)(d) and (f), the other modifications effected by s 181G(1) are in my view inconsequential. Although relied on by the respondent, I would make the same comment with respect to s 181G(1)(d) notwithstanding that its effect is to deny a confirmed police officer a right of review under Pt 6 of Ch 2 of the IR Act where he or she is subject to a threat of dismissal or, more accurately given the terms of s 181D(1), removal from the NSW Police Force. However, that is counterbalanced by the provisions of s 181D(8) which provide that removal of a police officer under s 181D(1) has the same effect as if that officer had resigned (or if under the age of 55, retired) from the Police Force. 77. That leaves the provisions of s 181G(1)(f). It refers to s 163 of the IR Act which relevantly provides as follows: His Honour then set out section 163 of the IR Act in full. 78. However, the modification effected by s 181G(1)(f) is ameliorated by s 181G(2). It is true that the benchmarks to be achieved before leave must be granted are at least theoretically higher than under s 163 of the IR Act which empowers the Commission to receive new evidence at its discretion. But that discretion is not entirely unfettered and must, like all such discretions, be exercised judicially. Thus one would imagine that the Commission would not allow new evidence if it did not have any real probative value with respect to the issues under consideration. 79. It follows in my opinion that the modifications to Pt 6 of Ch 2 of the IR Act effected by s 181G of the Police Act are not so significant as to justify the weight given to them by the Full Bench in support of its finding that the legislature could not have intended to give probationary police officers greater rights over confirmed officers when seeking a review of their dismissal or removal, as the case may be, from the Police Force on the ground that such dismissal or removal was harsh, unreasonable or unjust. I shall refer further to this issue below. And later: 113. The second reason advanced by the Full Bench in rejecting the submission that a probationary police officer had no (this appears to be a misprint) right of review under s 84, was stated in the following terms: 55. Secondly, the counterpoint to the respondent's submissions is that the construction proposed by the respondent, namely, that the probationer would have rights under s 84 of the Act would result, as the appellant submitted, in the probationary constable effectively having greater rights than the constable in the case of a dismissal or removal (given the limitations imposed by Pt 9 of the Police Act ). I have commented on this assertion at [74] - [79] above. Section 218 of the Police Act 114. Both before the Full Bench and in this Court the applicant relied on the provisions of s 218(1) of the Police Act the terms of which I have set out at [64] above. At [61] of its reasons the Full Bench observed that a superficial review of Pt 9 of the Police Act was sufficient to enable the conclusion that s 218(1) could not be read literally as there were specific provisions of the Police Act which had a direct impact upon the application of various provisions of the IR Act to the circumstances set out in Pt 9. A ready example was s 179(1) of the Police Act which particularised certain provisions of the IR Act which did not have effect. Accordingly, there are provisions of the IR Act which are affected by the Police Act contrary to the literal words of s 218(1). 115. The Full Bench's conclusion on the effect of s 218 was as follows: 63. We would construe this provision as leaving intact the power of the commission to deal with industrial matters covering police officers unless especially restricted by some provision of the Police Act . This conclusion is consistent with the judgment of the Full Commission of the Industrial Commission of South Australia in Nassar (at 395). 116. It is sufficient to observe at this point that there are difficulties with this conclusion. It does not necessarily follow that because the general words of s 218(1) must give way to those specific provisions of the Police Act which expressly modify or exclude provisions of the IR Act such as s 44(2A) and Pt 9, that the provisions of Pt 6 of Ch 2 of the IR Act do not apply to those police officers who are dismissed from the NSW Police Force otherwise than pursuant to the scheme in Pt 9.
It is apparent that the Court of Appeal came to a different conclusion to that of the Full Bench on: 1. the significance of the modifications made by section 181G of the Police Act to the provisions of Chapter 2, Part 6 of the IR Act as those provisions are to be applied to applications made under section 181E of the Police Act, and 2. whether a dismissed probationary constable would, effectively, have greater rights than a confirmed constable, in the case of dismissal or removal, if the former had access to Chapter 2 , Part 6 of the IR Act in circumstances where the rights of the latter are those prescribed by Part 9 of the Police Act.
It also appears that the Court of Appeal, based on the reasoning of Tobias AJA as set out above, would have determined that a police officer, who claimed to have been constructively dismissed, could apply to the Commission for relief in relation to unfair dismissal under Chapter 2, Part 6 of the IR Act because that officer had not been removed pursuant to Part 9 of the Police Act.
The Commissioner of Police appealed from the decision of the Court of Appeal to the High Court
The High Court by majority (Heydon, Crennan, Kiefel and Bell JJ, Gageler J dissenting) upheld the Commissioner's appeal and reversed the decision of the Court of Appeal (Commissioner of Police v Eaton [2013] 252 CLR 1). The High Court held that a decision to dismiss a probationary officer under section 80(3) of the Police Act was not subject to a merits review under Chapter 2, Part 6 of the IR Act. The general provisions of the IR Act did not apply in the face of the special, and inconsistent, terms of the Police Act.
On the issue of the differences between the processes to be adopted by the Commission pursuant to Chapter 2, Part 6 of the IR Act as opposed to those prescribed by Part 9 of the Police Act, Heydon J stated as follows: 22. Fourthly, the Commissioner's powers under s 80(3) of the Police Act in relation to probationary constables stand in contrast with the Commissioner's powers under s 181D of the Police Act in relation to police officers. Section 181E of the Police Act provides that a non-probationary police officer who is removed from the NSW Police Force by an order under s 181D of the Police Act may apply to the Commission for a "review" of the order on the ground that the removal is harsh, unreasonable or unjust. That is a process which is distinct from the process of having a "claim" dealt with under s 84(1) of the IR Act. 23. In some respects, the process under s 181E for a removed non-probationary police officer is superior to the process under s 84(1) for a dismissed employee. For example, s 181E(3) imposes a duty on the Commissioner to make available to the applicant all the documents and other material on which the Commissioner relied in deciding under s 181D(1) that the Commissioner did not have confidence in the applicant's suitability to continue as a police officer. The Commissioner is subject to no equivalent duty in relation to s 84(1) of the IR Act. 24. In other respects the processes, whether superior or inferior from the point of view of the removed non-probationary police officer or the dismissed employee, are different. Thus s 181F(1) requires the Commission to proceed on a "review" in the following way. First, it must consider the Commissioner's reasons for the decision to remove the non-probationary police officer from the NSW Police Force. Secondly, it must consider the case presented by the applicant for the view that the removal was harsh, unreasonable or unjust. Thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. This stands in contrast with the procedure in relation to s 84(1) applications. Section 88 of the IR Act provides that the Commission "may, if appropriate", take into account six factors, the last of which is "such other matters as the Commission considers relevant." Liberty not to take account of a relevant matter gives the Commission fluidity. Its role, as the Commissioner submitted, is "very free flowing". 25. If a probationary constable dismissed under s 80(3) of the Police Act could apply to the Commission under s 84(1) of the IR Act, that probationary constable would enjoy a right of review superior to that of a confirmed constable. Indeed, that probationary constable would enjoy a right of review superior to that of any police officer of higher rank. That would, in turn, produce remarkable anomalies. 26. One anomaly is that if dismissed probationary constables could make applications under s 84(1) they would be in a better position than non-probationary officers. The rights of review s 181E gives to the latter in relation to s 181D removals would be more qualified than those s 84(1) gives to the former in relation to s 80(3) dismissals. In proceedings under s 84(1), where the dismissal has taken place because of alleged criminal activity, the employer bears the burden of proving that the crime was committed. But in proceedings under s 181E for review on the ground that removal was harsh, unreasonable or unjust, the applicant bears the burden of proving that the crime was not committed. That is because the applicant has, under s 181F(2), the burden of establishing that the applicant's removal from the NSW Police Force was harsh, unreasonable or unjust. The consequences of s 181F(2) are not narrow or trivial. They are significant in view of the fact that s 201 of the Police Act renders it a criminal offence for a police officer to neglect or refuse to obey any lawful order or carry out any lawful duty as a police officer. The scope for criminal offences by police officers, and for removal because of them, is thus wide. 27. Another anomaly stems from the fact that s 181F(3)(b) of the Police Act operates adversely to the applicant under s 181E reviews. Section 181F(3)(b) provides: 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: ... (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). This is a reference to the "public interest" in a different sense from the "public interest" referred to in s 146(2) of the IR Act. Section 146(2) requires the Commission to: take into account the public interest in the exercise of its functions and, for that purpose, [the Commission] must have regard to: (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy. The objects of the IR Act are stated in s 3. They are broad, but they relate essentially to industrial relations. The matters referred to in s 181F(3)(b) of the Police Act stand outside s 146(2) of the IR Act. The Commission's duty to have regard to the public interest as defined in s 181F(3)(b) is adverse to the interests of applicants seeking reviews under s 181E of orders made under s 181D. An applicant for a remedy under s 84(1) of the IR Act does not face that obstacle. 28. Another relevant provision is s 181G of the Police Act. Sub-section (1) commences with the words: The provisions of the [IR Act] 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. Section 181G(1) is significant in two respects. One is that pars (a)-(f) of s 181G(1) apply six provisions of the IR Act in modified form to applications for review by non-probationary police officers. The other is that some of these modifications are adverse to the applicant seeking review under s 181E. For example, s 181G(1)(b) gives the applicant only 14 days within which to apply for review under s 181E, compared to the 21 days within which a claimant under s 84(1) of the IR Act can apply to have a claim dealt with. 29. As the Full Bench said, on the first respondent's construction of the IR Act, probationary constables "effectively [have] greater rights" than non-probationary officers in the above respects. 30. The first respondent submitted that the practical consequences of the differences between the beneficial way that probationary constables would be treated on his case when compared to non-probationary police officers are not large. In a sense that may be true. But the differences do reveal a different statutory scheme and structure applying to s 84(1) applicants. That statutory scheme and structure creates a regime which in some respects is less beneficial to s 181E applicants than the Ch 2 Pt 6 scheme is to s 84(1) applicants. In view of the generally fragile position of probationary constables and the more secure position of other police officers, that is a significant anomaly. Probationary constables have relatively slight expectations, for they may not survive the probationary period of testing. Non-probationary police officers have relatively greater expectations, for the simple reason that they are not on probation. On the first respondent's case, those with slight expectations are given better means of protecting them than the means given to those with firmer expectations. The first respondent's construction of s 84(1) of the IR Act, which leads to this outcome, is extremely suspect for that reason. Instead of a coherent and harmonious scheme, it produces a self-contradictory scheme. A statutory scheme by which it is easier for the Commissioner to part with those endeavouring to show themselves fit for non-probationary office than it is for the Commissioner to part with those who once showed themselves fit but may have now become unfit is intelligible. The reverse scheme is not. 31. The first respondent submitted that no provision in the Police Act expressly excluded merits review under Ch 2 Pt 6 of the IR Act by the Commission of a decision to dismiss a probationary police officer. The necessary implications of the two Acts read together, however, have that effect.
Clearly, his Honour disagreed with the Court of Appeal, and agreed with the Full Bench of the Commission, as to the significance of the different statutory schemes applicable to section 181E applications for review of a removal order as opposed to section 84 unfair dismissal applications. A construction of the two statutory schemes which would have resulted in dismissed probationary officers having superior rights than those of confirmed officers who have been removed, would have created a significant anomaly.
Crennan, Kiefel and Bell JJ considered the contrast between Part 9 of the Police Act and Chapter 2, Part 6 of the IR Act in the following terms: The structure and operation of the Police Act 51. The NSW Police Force established by the Police Act is comprised principally of the Commissioner, the Senior Executive Service and other police officers. The Senior Executive Service is comprised of executive officers. Aside from those officers and the Commissioner, all other police officers are referred to as non-executive officers. The Commissioner has responsibility for the management and control of the NSW Police Force, subject to the direction of the relevant Minister. 52. Non-executive police officers include probationary constables. As the term suggests, such constables are on probation until they are confirmed as officers of the NSW Police Force. In O'Rourke v Miller, Gibbs CJ said that "probation is a time of testing or trial and a probationer whose conduct, character or qualifications fail to meet the test need not be confirmed in the office to which he was provisionally appointed." 53. Clauses 13 and 14 of the Police Regulation 2008 deal with the process of confirmation of appointment as a constable. In addition to completion of initial basic training and a period of probation, cl 13 requires a satisfactory fitness report concerning the probationer before an appointment can be confirmed. Amongst the matters which the fitness report is to address pursuant to cl 14 are the probationary constable's integrity and conduct. Integrity is a value of the NSW Police Force; so much is stated in the Police Act. It is against this background that ss 80(1) and 80(3) respectively provide that, subject to the Act and its attendant regulations, the Commissioner may appoint a person as a police constable and may dismiss a probationary police constable at any time and without giving any reason. 54. Jarratt v Commissioner of Police (NSW) holds that the power of dismissal conferred by s 51(1) of the Police Act, which is in terms similar to s 80(3), is conditioned upon procedural fairness being afforded. However, procedural fairness does not in every circumstance require the giving of reasons. The terms of s 80(3) - that the Commissioner is not obliged to give any reasons - also have the effect that the validity of a dismissal does not depend upon the existence of any particular cause for dismissal. 55. Section 51(1) applies to an executive officer, who may be removed from office "at any time for any or no reason and without notice", by the Governor on the recommendation of the Commissioner, in the case of the removal of a Deputy Commissioner or Assistant Commissioner, and in any other case, by the Commissioner alone. Executive officers are not subject to the application of Pt 6 of the IR Act. By s 44(2)of the Police Act, their employment is not an industrial matter for the purposes of the IR Act and by s 44(2A), Pt 6 of the IR Act does not apply. The IR Act itself confirms that Pt 6 does not apply to an executive officer of the NSW Police Force. 56. Part 9 of the Police Act is entitled "Management of conduct within NSW Police Force". It provides the Commissioner with powers to make orders respecting police officers, including for their removal, and it permits review of those orders by reference to a process which is adapted from and different in some respects from that which is provided for under Pt 6 of the IR Act. It is evident from the terms of Pt 9 of the Police Act that it applies to confirmed police officers and not probationary constables. Thus the only statutory mechanism of review which might apply to probationary constables subject to an order of dismissal under s 80(3) is that provided by Pt 6 of the IR Act. 57 Section 181D(1) in Div 1B of Pt 9 of the Police Act provides that the Commissioner may remove a police officer if the Commissioner does not have confidence in the officer's suitability to continue as a police officer, having regard to the officer's competence, integrity, performance or conduct. By contrast with s 80(3), an order made under s 181D(1), with respect to a confirmed police officer, must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. Clearly enough, the provision of reasons is in aid of the review that is permitted. By s 181E(1), a police officer who is removed from the NSW Police Force under s 181D may apply to the IR Commission for a review of the order on the ground that the removal is harsh, unreasonable or unjust. 58. Division 1 of Pt 9 also provides that the Commissioner may take action with respect to a police officer's misconduct or unsatisfactory performance by ordering, inter alia, a reduction in the police officer's rank, grade or seniority; an action other than dismissal. Certain actions ordered by the Commissioner are subject to review under s 174(1), which provides that a police officer may apply to the IR Commission for a review of the order, on the ground that it is beyond power or is harsh, unreasonable or unjust. 59. Proceedings on applications for review under s 181E(1) are subject to detailed provisions in Div 1C of Pt 9 of the Police Act, which are expressed so as to omit or modify, directly or indirectly, provisions of the IR Act which would otherwise govern the process by which a claim of unfair dismissal is determined. Similar changes are effected to the process which is to attend applications under s 174(1). The provisions of Div 1C respecting the review process are self-contained and reference to the IR Act is not necessary. The Police Act makes it clear that the IR Act is not to apply to these applications. Section 181D(7) provides that, except as provided by Div 1C, no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under s 181D and no appeal lies to any tribunal in connection with any such decision or order. "[T]ribunal" is defined to include the IR Commission. 60. It will be necessary at a later point in these reasons to identify some of the more substantial changes effected by the Police Act to the review process that is to be undertaken by the IR Commission with respect to claims of unfair dismissal brought by police officers, and to compare that process with the processes under the IR Act. At this point it is convenient to turn to the provisions of the IR Act respecting the application of Pt 6 and the matters relevant to determinations of claims of unfair dismissal. Part 6 of the IR Act 61. Section 83(1)(a) in Pt 6 of the IR Act, by its terms and the definition of a public sector employee, is apt to apply to police officers. Section 83(3) restricts the application of Pt 6 to non-executive police officers, which term includes probationary constables. 62. Section 83(2)(b) of the IR Act provides that regulations made under the Act can exempt employees who are serving a period of probation or a qualifying period. However, the relevant regulation exempts only a class of employees who are serving a probationary or qualifying period, the duration of which is determined in advance. Probationary constables under the Police Act do not come within the regulation. Clause 12(1) of the Police Regulation 2008 provides that the Commissioner may determine the period of probation. In Ferraris v Commissioner of Police, the Full Bench of the IR Commission held that the effect of a similar clause was that the Commissioner could increase the period of probation at any time. It follows that the requirement of the regulation cannot be met. 63. On an application under s 84(1), the IR Commission may make an order for reinstatement, re-employment, remuneration or compensation. It may do so if it is satisfied that the dismissal was harsh, unreasonable or unjust. In so determining, the IR Commission may have regard to the conduct of the employee and whether the employer acted reasonably in all the circumstances, as the Full Bench in this case observed. A general provision for an enquiry into the reasonableness of the conduct of an employer might not be thought suitable to a decision of the Commissioner to dismiss a police officer on the basis of misconduct. Further, as the Full Bench observed in this case, the relief which may be provided by the IR Commission is at odds with the prima facie right of the Commissioner under s 80(3) to dismiss. 64. There are other matters which the IR Commission may take into account under s 88 of the IR Act in connection with a claim for unfair dismissal. They include, most relevantly, whether a reason for the dismissal was given and, if so, its nature and its substance. The fact that reasons were given, or not, may be relevant to an assessment of the reasonableness of the employer. It will be recalled that s 80(3) of the Police Act does not oblige the Commissioner to give reasons. The IR Commission may also take into account whether a warning of unsatisfactory performance was given and whether or not the applicant requested reinstatement. A warning may not be practicable where issues of the integrity of a police officer are involved. By its nature, s 80(3) would not permit a request for reinstatement. 65. Of course, these are matters which may or may not be taken into account as relevant by the IR Commission to a case before it. But they serve to highlight the fact that the unfair dismissal regime of the IR Act was not framed with something like the Police Force in mind. It is a general statute. And they raise the question of how, and by reference to what matters, the IR Commission would approach the task of reviewing a dismissal by the Commissioner under s 80(3). Unfair dismissal claims - the Police Act 66. Consideration was given in Pt 9 of the Police Act to the means by which claims of unfair dismissal made by confirmed police officers are to be determined by the IR Commission. It was evidently not considered appropriate to apply the processes provided in the IR Act which apply to claims of unfair dismissal under that Act. In what follows, attention is directed to the provisions of Div 1C of Pt 9 of the Police Act, which concern applications under s 181E(1) respecting orders for removal made by the Commissioner. It is not necessary to survey the processes in Div 1A of Pt 9, concerning applications under s 174(1). 67. The Court of Appeal does not appear to have given any weight to the changes to the unfair dismissal regime brought about by the operation of Div 1C. The Full Bench, however, detailed some of the provisions of Div 1C, commented upon the limitation of IR Commission procedures they effected, and concluded that if a probationary constable were able to pursue a claim under Pt 6 of the IR Act, he or she would have greater procedural rights than a confirmed officer would have. In these observations the Full Bench was plainly correct. 68. It may first be observed that, under the IR Act, the IR Commission has power to order an employer not to dismiss an employee where a threat to do so has been made. The Police Act provides that an application under s 181E does not effect a stay of the operation of an order for removal of a police officer. There are also differences regarding the bringing of applications. The Police Act excludes the ability of the IR Commission to accept an application made out of time. The Police Act requires a hearing to be commenced within four weeks of an application being made under s 181E. No such strictures are placed on the IR Commission under the IR Act. 69. A claimant under s 181E of the Police Act bears the onus of proving that a dismissal was harsh, unreasonable or unjust. There is no equivalent provision in the IR Act, which in general terms empowers the IR Commission to determine its own procedures. In the Court of Appeal, Tobias AJA observed that in practice the IR Commission usually places the onus of proof on the applicant for relief, although the Full Bench has held that the employer must establish misconduct, where this is alleged in a case of dismissal. Dismissals under s 80(3) of the Police Act may well involve questions of integrity and misconduct. 70. There are two provisions in Div 1C of Pt 9 of the Police Act which are significant for the focus which they bring to bear upon the IR Commission's decision, a focus which is not possible under the IR Act regime. The first provision requires the IR Commission to consider the material relating to an unfair dismissal claim in a particular order, commencing with the Commissioner's reasons. The second provision requires the IR Commission to consider the "public interest". The IR Act has as its objects matters of public interest, such as the promotion of efficiency and productivity in the New South Wales economy. Section 146(2) requires the IR Commission to take into account the public interest in the exercise of its functions and, for that purpose, to have regard to the objects of the IR Act, and the state of the economy of New South Wales and the likely effect of its decisions on that economy. The matters of public interest to which the Police Act directs attention are different. The Police Act requires, for the purposes of Div 1C of Pt 9, that the public interest be taken to include maintaining the integrity of the NSW Police Force and the fact that the Commissioner made an order for removal. 71. Matters pertaining to evidence are touched upon in the Police Act. New evidence cannot be admitted before the IR Commission in review proceedings under Div 1C, except upon notice and by leave. Under the IR Act, the IR Commission may compel the attendance of witnesses. But under Div 1C of Pt 9 of the Police Act, neither the Commissioner, nor any member of the Commissioner's Advisory Panel, is a compellable witness without leave of the IR Commission, which can be granted only if extraordinary grounds exist. And later: 76. The regime provided for in Pt 9 of the Police Act for the claims of confirmed police officers evidences a concern that the processes of Pt 6 of the IR Act are not in all respects appropriate to be applied to decisions of the Commissioner to dismiss or make other like orders. Part 9 maintains a focus on the Commissioner's decision, a focus which is not provided by the general provisions of the IR Act. Part 9 elevates the Commissioner's decision to one of public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force. The placing of the burden of proof upon the police officer dismissed is consistent with the weight to be given to the Commissioner's decision, as is the provision which prevents a review of that decision by reference to additional material. 77. These are not insignificant matters. They raise important questions concerning the interaction between Pt 6 of the IR Act and the Police Act and as to the internal consistency of the Police Act. If Pt 6 applied to probationary constables, confirmed police officers' claims of unfair dismissal would be dealt with under the particular provisions of Pt 9 of the Police Act, while probationary constables' claims would be dealt with under the general provisions of the IR Act, which were not considered by the legislature in enacting the Police Act to be suited to the same topic. An anomalous position would result whereby probationary constables would enjoy greater procedural rights than confirmed police officers, as the Full Bench correctly observed.
With respect to the operation of section 218 of the Police Act, their Honours stated: 82. Handley AJA also considered that s 218 of the Police Act has the effect that, in the absence of an appropriate exemption by regulation, the unfair dismissal regime of the IR Act applies to probationary constables. Section 218 of the Police Act is troublesome. It was regarded by the Court of Appeal as possibly determinative of the question whether s 80(3) of the Police Act affects the application of the IR Act's unfair dismissal regime, at least if read literally. There is a difficulty with doing so, as will be explained. 83. Section 218 of the Police Act provides: (1) The Industrial Relations Act 1996 is not affected by anything in this Act. (2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996. The predecessor to s 218 was s 117 of the Police Act, as enacted. At that time the statute in force dealing with industrial matters in New South Wales was the Industrial Arbitration Act 1940 (NSW). The reference in s 117(1) to the Industrial Arbitration Act 1940 not being "affected by anything in this Act" may have been explicable on the basis that it made plain that the Police Act did not, in any relevant respect, repeal the 1940 Act. The words "is not affected by" were apt to preserve the 1940 Act. 84. Section 117 was subsequently amended in 1993 to refer to the Industrial Relations Act 1991 (NSW), when it was renumbered s 218. It was again amended in 1997 to refer to the IR Act, at around the same time amendments were made to insert Div 1B and Div 1C of Pt 9 into the Police Act. It appears to have been updated at these points in time by reference to the industrial relations statutes then in force, but apparently without consideration having been given to its new context and its continuing purpose. 85. This lack of consideration is evident from the terminology of the provision, which has remained unchanged. As enacted, s 117(2) referred to ss 44 and 89 of the Police Act. As enacted, s 44(2) relevantly provided that the employment of an executive officer was not an industrial matter for the purposes of the Industrial Arbitration Act 1940. Section 89(1) provided that the appointment of or failure to appoint a person to the position of administrative officer was not an industrial matter for the purposes of the 1940 Act. Thus, by s 117(2), s 44 continued to operate to exclude executive officers altogether from the IR Act and s 89 continued to make some exclusion with respect to administrative officers. 86. Section 44(2) remains in the Police Act. However, s 89 was repealed in 2006 and re-enacted as s 88, which is in substantially the same terms. Resort is necessary to s 68(3) of the Interpretation Act 1987 (NSW) so that the reference to s 89 in s 218(2) can be read as a reference to s 88. 87. More significantly, sub-s (1) of s 218 is now patently erroneous. The IR Act is affected by Pt 9 of the Police Act, as has been pointed out. Part 6 of the IR Act does not automatically apply to claims by police officers for unfair dismissal. Section 181E in Pt 9 of the Police Act permits the making of such a claim, but with the modified processes which Pt 9 provides. Another example of a provision of the Police Act which affects the IR Act is s 179(1), which particularises certain provisions of the IR Act which do not have effect, as the Full Bench observed. 88. The Court of Appeal's interpretation of s 218(2) assumes that it operates so that unless expressly provided by the Police Act, the IR Act is to apply. The terms of s 218(2), and the omission of such words, do not readily lend themselves to this construction. Even if one were to proceed from that assumption, the general provision of s 218 would yield to what is implied by s 80(3) of the Police Act. 89. It was pointed out in Rose v Hvric that the word "expressly" only emphasises the generality of such a provision. It makes clear that no case is outside the provision unless that is the necessary result of the operation of another enactment according to the intention that it manifests. It follows that an implication of inconsistency with the general provision will suffice to oust its application. Such an implication arises where the other provision concerned can be seen to mean more than it actually says; it may be contrasted with an inference. 90. The provisions of Pt 9 of the Police Act provide an example of inconsistency with provisions of the IR Act relating to unfair dismissal. The level of inconsistency is such that s 218(1) does not operate in its terms. Section 80(3) is impliedly inconsistent with s 218. It conveys more than that the Commissioner may dismiss without giving reasons. It implies an unfettered power and therefore that the decision is not to be subjected to a review on the merits. That implication is supported by other aspects of the construction of the Police Act, to which reference has been made. Thus if the general jurisdiction of the IR Act is recognised by s 218, it is withdrawn by s 80(3) insofar as decisions under that provision are concerned. 91. The conclusion reached by the Full Bench is, with respect, correct. The Full Bench construed s 218 as leaving intact the power of the IR Commission to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act. Conclusion and orders 92. The IR Act may apply generally to the Police Act, but not where the operation of the former produces an internal inconsistency in the latter. Such an effect, which would be reached if a decision under s 80(3) of the Police Act were subject to review under Pt 6 of the IR Act, cannot be taken as intended. The conclusion reached concerning the non-application of Pt 6 of the IR Act to a decision made under s 80(3) may further be tested by reference to s 218 of the Police Act and the rule of construction mentioned at the outset of these reasons. In each case, the general provisions of the IR Act do not apply in the face of the special, and inconsistent, terms of s 80(3) of the Police Act. 93. The appeal should be allowed and the orders proposed by Heydon J made.
In essence, the High Court held that the provisions of Part 9 of the Police Act are inconsistent with, and prevail over, those of Chapter 2, Part 6 of the IR Act.
However, it must be remembered that the Eaton litigation was concerned with a dismissal under section 80(3) of the Police Act, which gave the Commissioner express power to dismiss a probationary officer at any time and without giving any reason. The question at each stage of this litigation was whether such a dismissal could be reviewed by the Commission under Chapter 2, Part 6 of the IR Act, which establishes the Commission's general unfair dismissal jurisdiction.
The present matter concerns the concept of constructive dismissal, for which there is no legislative prescription, and whether an alleged constructive dismissal of a confirmed police officer can be reviewed by the Commission in its general unfair dismissal jurisdiction.

McDonald v Commissioner of Police

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