McGhee v Commissioner of Police

McGhee v Commissioner of Police - [2010] NSWIRComm 165 - NSWIRComm 2010 case summary — Zoe

[11]

1 Robert Bruce McGhee, a former Inspector of Police, was removed from the Police Force in 2008 on the ground that the Commissioner of Police had lost confidence in him because of his conduct. The conduct related to a conviction for driving under the influence, a breach of the Police Force's secondary employment policy and a failure to comply with operational procedures in the conduct of a search warrant. Mr McGhee sought a review of the removal order, which was made under s 181E(1) of the Police Act 1990, contending his dismissal was harsh, unreasonable or unjust. Mr McGhee's application was heard by Kavanagh J. In McGhee and Commissioner of Police [2010] NSWIRComm 22, her Honour dismissed the application, finding that the removal was not harsh, unreasonable or unjust. 2 Mr McGhee now seeks leave to appeal and, if leave is granted, to appeal from her Honour's decision. An interlocutory issue has arisen, however, whereby the appellant seeks leave to have reconsidered by a five-member Full Bench the correctness of the Full Bench majority's decision in Commissioner of Police v Reid-Frost [2010] NSWIRComm 2; (2010) 192 IR 363 in respect of the majority's treatment of s 181D(3)(c) and s 181D(4) of the Police Act. The relevance of the interlocutory application is that Kavanagh J relied on aspects of the majority decision in Reid-Frost in determining to dismiss the appellant's application. The Commissioner of Police opposes the interlocutory application. This decision deals with the interlocutory issue. 3 Even if we were inclined to grant the appellant's application, which we are not for the reasons given below, we are not sure there would be any necessity to constitute a Bench of five judges because such a Bench has no more authority than a three-member Bench: see Williams v Fawcett [1986] QB 604 per Sir John Donaldson MR at 615; Younghusband v Luftig [1949] 2 KB 354 per Lord Goddard CJ at 361, even though the judgment of a five-member Bench will attract considerable respect. However, the point was not argued and there is no necessity to decide it. 4 The Full Bench indicated in making directions that the question of leave to reconsider Reid-Frost would be dealt with on the papers. Mr B Docking of counsel for the appellant requested that there be convened a short hearing before the Full Bench in order that the respondent's counsel could provide to the Commission copies of documents that Mr Docking contended were necessary for him to put complete submissions on the question of whether leave should be granted to allow for a reconsideration of Reid-Frost. In view of the approach we have taken to the question of leave, it is unnecessary for there to be a hearing.

[12]

5 The respondent referred to the relevant authorities regarding the capacity to reargue the correctness of previous judgments at a Full Bench level. It was submitted the capacity was limited: see Clutha Developments Pty Limited v Barry (1989) 18 NSWLR 86 at 99-100; Proctor v Jetway Aviation Pty Limited [1984] 1 NSWLR 166 at 171; and Lynch v G C Schmidt Pty Limited (1995) 59 IR 205. 6 It was further submitted leave to reargue the correctness of a previous decision will only be granted where there is demonstrable error: see Re Crown Employees (New South Wales Fisheries, Salaries and Conditions of Employment) Award [2003] NSWIRComm 405; (2003) 129 IR 369 at 387 [77]; Proctor at 171 and In re Commercial Travellers (State) Award [1980] AR (NSW) 92 at 97 (per Beattie P, Cahill and Macken JJ). Such a power must be exercised with the restraint embodied in the maxim stare decisis: Clutha at 99. As the respondent also submitted, these principles were applied by a Full Bench in National Distribution Services Ltd (now Rothmans Distribution Services Ltd) v Kellett (1997) 80 IR 475 at 483-485. 7 The appellant drew attention to the more recent authority of Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [261]-[301] as cited with approval in Jemena Gas Networks (NSW) Limited v Mine Subsidence Board [2010] NSWCA 146 at [46]. In Gett it was relevantly held that intermediate appellate courts are not legally bound by their own earlier decisions, but should only depart from such authority or the authority of courts of co-ordinate jurisdiction within the national system if they are of the view that the decision is 'plainly wrong' and, such an error having been identified, there are 'compelling reasons' to depart from the earlier decisions: at [273], [277]-[278], [281], [286]. It was noted that 'plainly wrong' speaks to the strength of the conviction of the later court that the earlier judgment was erroneous. It is not sufficient for the Court to merely conclude that the earlier approach was open, but is no longer preferred. The nature of the error can be demonstrated by application of the correct legal analysis (at [283], [294]-[295]). 'Compelling reasons' for departure from an authority identified as erroneous encompass both jurisprudential and practical considerations (at [301]). 8 We agree that the authorities to which we have been referred determine the tests to be applied by this Full Bench as to whether it should reconsider an earlier decision made by a Full Bench of the Commission as having been wrongly decided. We would only add a further authority relied upon by the appellant, namely, Queensland v Commonwealth [1977] HCA 60; (1977) 139 CLR 585 at 599 per Gibbs J where his Honour stated: It would be futile to attempt to state any succinct general principle by which the Court should be guided in deciding whether to overrule an earlier decision of its own. Some cases may be clear enough. On the one hand the Court would be slow to disturb a decision which applied a principle that had been carefully worked out in a succession of cases, and had been more than once reaffirmed. On the other hand, a judgment which had been given per incuriam, and was in conflict with some other decision of the Court, or with some well-established principle, might be readily reviewed. 9 The appellant contended that Reid-Frost was contrary to a decision of another court that the Commission was bound to follow. The essential ground on which the appellant relied for a review of the decision in Reid-Frost was that Reid-Frost was decided per incuriam and in conflict with established natural justice or procedural fairness principle, as there was no reference to the NSW Court of Appeal majority judgments of Street CJ and Moffitt P in Parramatta City Council v Hale (1982) 47 LGRA 319 or to the Federal Court judgment of Graham J in Lohse v Arthur (No 3) [2009] FCA 1118; (2009) 188 IR 205, which it was contended, provided 'a comprehensive and useful guidance as to natural justice and procedural fairness principles in the context of employment law and a public sector decision-maker.' It was submitted that the Commission was bound by the approach and principles in Parramatta City Council or the NSW Court of Appeal's guidance should be applied because that Court is in the Commission's appellate hierarchy. 10 The appellant also submitted in support of his leave application that, within the Commission, there is effectively a 'two-all split' between the majority in Reid-Frost, as opposed to the minority in Reid-Frost combined with the s 181E review not subject to appeal in Richards and Commissioner of Police [2009] NSWIRComm 137 and Richards and Commissioner of Police (No 2) [2009] NSWIRComm 214. The appellant failed to identify with any precision the particular matter, issue or principle said to be the subject of a 'two-all split'. However, on the assumption that the asserted 'two-all split' concerned the alleged requirement for the Commission in review proceedings to conduct a time and motion study to determine whether the Commissioner for Police 'considered' the police officer's Response then the assertion is incorrect because as it will be seen later, Haylen J did not support the notion of a time and motion study. Moreover, the suggestion of a split overlooks the unanimous decision of the Full Bench in Hessenberger v Commissioner of Police [2010] NSWIRComm 24; (2010) 191 IR 468, which affirmed the reasoning in Reid-Frost. 11 It was further submitted for the appellant that he was denied procedural fairness because he was not afforded any reasonable opportunity to be heard in Reid-Frost. The appellant submitted that the majority in Reid-Frost reached conclusions about the application of Minister for Aboriginal & Torres Strait Islander Affairs v Minister for Lands (WA) [1996] FCA 1509; (1996) 67 FCR 40 in that case, which were adverse to: (i) the appellant's interests as the removal decision in Reid-Frost was made at the same 1 May 2008 meeting; and (ii) his 7 August 2009 first instance submissions relying upon Minister for Aboriginal & Torres Strait Islander Affairs. The appellant said he had no opportunity to be heard by the Full Bench in Reid-Frost in relation to the application of Minister for Aboriginal & Torres Strait Islander Affairs. We note the appellant's contention the Full Bench 'should have' adopted the same approach as was adopted in Minister for Aboriginal & Torres Strait Islander Affairs yet he did not assert that the Full Bench was bound to adopt such an 'approach'. Given the quite different statutory context that is not surprising. In any event, we regard the decision in Reid-Frost to the effect that Minister for Aboriginal & Torres Strait Islander Affairs was distinguishable, as entirely correct (at [35]-[37]). 12 Finally, on this point, the appellant had no right of appearance in Reid-Frost. That he should have been given an opportunity to be heard in Reid-Frost is hardly a basis to support the granting of leave. Moreover, as the respondent submitted: The first instance decision in Reid-Frost was delivered on 25 May 2009 and the Appellant obviously knew he was removed on the same day as Reid-Frost. It was either well known to him or could have readily been ascertained by the Appellant, that an appeal for Reid-Frost was being prosecuted in the latter half of 2009.

[14]

14 The appellant took no issue with the majority judgment (Walton J, Vice-President and Kavanagh J) or the minority judgment (Haylen J) in Reid-Frost insofar as there was: (i) reference in both judgments to existing principle that removal of a police officer requires 'a careful and punctilious regard to correct procedure' and the procedural stipulations in the statute are of significant importance to the review of a decision made under s 181D (at [9], [123], [144], [145]); and (ii) the majority at [63] agreed with the analysis of the minority judgment at [94] that the Commissioner of Police under s 181G(1)(f)(ii) does not have a right to call new evidence. Further, as the majority observed, there may be cases where the assessment of the merits of an application may result in a procedural failure per se, rendering the removal harsh, unreasonable or unjust (at 11). 15 The appellant's application is that there should be a reconsideration of what the majority in Reid-Frost said as to: (a) The time taken by the Commissioner at the meeting at which a s 181D removal decision is made or a decision is made to issue a statutory notice. Emphasised as requiring re-consideration are as follows: [34] We do not exclude the possibility that there may, from time to time, be other documents or statements which bear upon the question of whether there was a procedural failure in relation to the consideration of the written submissions provided by an applicant under s 181E to the Commissioner of Police. However, that question is not answered appropriately, in our view, by the somewhat arid examination of whether the Commissioner had allocated a particular period of time for the relevant assessment. The legislature should not be taken as contemplating, by the provisions of s 181D(3)(c), that the Commissioner would be subjected to, essentially, a time study in order to ensure, as the sub-section contemplates, that the police officer was given a fair opportunity to be heard in his or her defence . … [37] We would finally observe under this heading that the Commissioner may be taken as reaching his decision along a continuum extending to those assessments giving rise to and found in the Notice. This points to the danger of applying a test based on time in assessing whether the Commissioner had adequately considered a submission received from a police officer. Kavanagh J applied this approach at J[91] - [93] and [94]. The Full Bench should find that each case has to be considered in terms of the evidence adduced and the inferences properly drawn in that particular case; the course taken at the meeting is one subject matter that the Commission is entitled to rely upon to draw the inference of fact that the Commissioner did not take into consideration the officer's response. Specifics that the Commission is entitled to rely upon include: if the Commissioner received any assistance by way of oral information or the provision of a written report from an analyst who has read the officer's response; the number of minutes the discussion occupied at the meeting; was other business transacted as [sic] the meeting; the number of pages purportedly considered by the Commissioner; whether the Commissioner had the advantage of placing side by side the statutory notice and the Commissioner's Confidence Submission ("CCS") with the officer's response; and it is not sufficient that the Statement of Reasons merely adverts to issues raised by the officer and then discards them. (b) That the decision of the Full Court of the Federal Court of Australia in Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia and ors (1996) 67 FCR 40; [1996] FCA 1509 (" Minister for Aboriginal and Torres Strait Islander Affairs ") did not assist an applicant in a s 181E review (at [35]). The trial judge applied this approach at J[94]. The Full Bench should find that the approach in at least [47], [50] and [54] in Minister for Aboriginal and Torres Strait Islander Affairs might be applied depending upon the evidence adduced and the inferences properly drawn in that particular case. (c) That questions about whether the Commissioner adequately considered a submission need to be essentially addressed in the light of the s 181D(4) reasons as they are the centrepiece or lynchpin of any assessment as to whether there occurred any procedural unfairness relevant to a review. Emphasised as requiring re-consideration are as follows: [33] When referring to 'formulations', Tobias JA was referring to the "proper, genuine and realistic consideration" formulation that had been judicially expounded with respect to the requirement in administrative law for a decision maker to 'consider' a relevant matter. Here, we consider that, for the most part, the question of whether or not the Commissioner considered the submission of the respondent in accordance with the requirements of s 181D(3)(c) depended on what the Commissioner had written in his reasons for deciding to remove the officer on confidence grounds . This is a matter about which an objective evaluation may be undertaken by the Commission in a review brought with respect to an application made under s 181E. … [36] We are not here engaged in judicial review or findings as to the validity of an Act, per se , but, as we have noted, the ultimate question concerns whether the procedure adopted contributed to the removal being unfair. More significantly, as we will soon develop, the statutory scheme for reviews under the Act makes the Commissioner's Reasons for Decision the centrepiece of any assessment as to whether there occurred any procedural unfairness relevant to a review. Questions about whether the Commissioner adequately considered a submission need to be essentially addressed in that light . … [44] We should add, in this respect, that the foregoing analysis reveals that the lynchpin of any inquiry as to procedural fairness in a review under Div 1C of Pt 9 of the Act is the content of the Reasons for Decision of the Commissioner. Procedural issues associated with the issuing of a Notice or taking into consideration a submission advanced by a police officer (per s 181D(3)(c)) are secondary to that consideration and, ultimately, only really serve to complement an assessment as to whether the Reasons for Decision given by the Commissioner demonstrate procedural failure. The trial judge applied this approach at J[93] and [94].

[25]

Ninth, given that s 181F(1)(a) of the Act requires the Commission to consider and review the Reasons for Decision reached by the Commission this suggests that attention is to be given to the adequacy of the reasons given by the Commissioner not just in terms of the substance but also whether they demonstrate a deficiency in the opportunity given to the police officer to be heard or a failure by the Commissioner to give proper regard of what was put by the officer in his or her written submissions in response to the Notice. In this sense the "lynchpin of any enquiry as to procedural fairness" in a review under Division 1C of Part 9 of the Act is the content of the Reasons for Decision of the Commissioner : see Reid-Frost [43]-[44]. See also [36] ("the statutory scheme for reviews under the Act makes the Commissioner's Reasons for Decision the centrepiece of any assessment as to whether there occurred any procedural unfairness relevant to a review. Questions about whether the Commissioner adequately considered a submission need to be essentially addressed in that light"). Tenth, whilst the possibility that other documents or statements may exist that bear upon the question of whether there was procedural failure in relation to the consideration of the written submissions provided by an Application under s 181E, cannot be excluded, that question is not answered appropriately by the somewhat arid examination of whether the Commissioner had allocated a particular period of time for the relevant assessment. The legislature should not be taken as contemplating, by the provisions of s 181D(3)(c), that the Commissioner would be subjected to, essentially, a time study in order to ensure, as the sub-section contemplates, that the police officer was given a fair opportunity to be heard in his or her defence: see Reid-Frost at [34] and [37] (the danger of applying a test based on time). (emphasis in original). 17 Whilst only some of these conclusions have been made the subject of this preliminary challenge, we consider it would be useful for the proper administration of this aspect of our jurisdiction to state that we agree with the statements of law and principle expressed by the majority in Reid-Frost. Our particular reasons for rejecting the conclusions of the appellant in this matter are set out below.

[26]

18 It is to be borne in mind that what the appellant seeks to contend is that the Full Bench is bound by the decision in Parramatta City Council and that decision stands for the propositions that in challenging whether or not a mandated consideration (such as that required by s 181D(3)(c)) has occurred, such a challenge can be based on the following: a decision maker did not receive advice on what is in a report; the number of minutes a meeting took; the number of pages provided to a decision maker and when they were provided; what other business was transacted at the meeting; and whether a decision maker made a side-by-side comparison of critical documents (in the present case whether the Commissioner had the advantage of placing the statutory notice and the 72-page Commissioner's Confidence Submission side-by-side with the appellant's 63-page response submission) for the purpose of undertaking the requisite consideration. 19 In other words, it is apparently contended, amongst other things, that in circumstances where it is demonstrated the decision maker could not have read and properly considered material relevant to the mandated consideration within the time taken in the meeting convened to undertake the consideration, Parramatta City Council is authority for the proposition that (in proceedings under Div 1C of Pt 9 of the Police Act) any decision to remove a police officer will be procedurally unfair and, regardless of the merits, amenable to relief. Therefore, the approach taken in Reid-Frost, and followed by Kavanagh J in the first instance proceedings - that, inter alia, the question of whether there was a procedural failure is not answered appropriately by the somewhat arid examination of whether the Commissioner had allocated a particular period of time for the relevant assessment - is wrong. 20 In Parramatta City Council, s 90 of the Environmental Planning and Assessment Act 1979 ('EPA Act') required a council, in determining a development application, to take into consideration certain specified matters relevant to the development that was the subject of the application. Section 91 provided that an application shall be determined by the granting of consent to the application, either unconditionally or subject to conditions or by refusing consent. In 1981, the Parramatta Sports Club Ltd made application to Parramatta City Council for consent, pursuant to the EPA Act, for the use of certain land for the purposes of a sports stadium. Pursuant to the Parramatta Planning Scheme Ordinance the land was zoned open space: existing recreation within which zone the use of land for the purposes of a sports ground was permissible with the consent of the council. The use of the land as an entertainment centre was prohibited. 21 The Council considered the application. Members of the Council had been furnished with a lengthy report from council officers recommending approval subject to numerous conditions, including the provision of car parking facilities, and the making of road improvements. At the commencement of the meeting a motion was moved for approval on conditions substantially departing from those recommended. Council rejected an amendment to obtain advice from the council officers as to the effect of the changes. Council carried the motion for approval on the substituted conditions. 22 The objectors to the development brought proceedings in the Land and Environment Court. McClelland CJ held, inter alia, that the Council had failed to comply with s 90 of the EPA Act and that its decision was so unreasonable as to be legally invalid. He made a declaration and injunction. There was an appeal. Street CJ and Moffitt P (Reynolds JA dissenting) held, inter alia, that the Council had failed to take into account the matters required to be considered under s 90. The Council, as a body, did not have a reasonable opportunity of understanding the significance of the proposed changes in conditions and the council lacked any assistance as to the consequences of discarding the conditions recommended by their officers and arising out of the advice of the Traffic Authority and the Department of Main Roads. Consequently, the appeal was dismissed. 23 In his decision, Street CJ stated: Before proceeding to contrast the new conditions introduced as those to which the development would be made subject with those recommended by the chief town planner in conformity with the requirements of Government authorities, it is appropriate to observe that, not only were the aldermen who opposed the stadium left in the dark regarding the import of these new conditions and their effect upon the acceptability of the project as a whole, but also the majority group exercised their voting preponderance so as to preclude the new conditions being considered or reported on by the chief town planner. The majority, in effect, cut themselves adrift from the chief town planner and the requirements of the other governmental authorities. In so doing, a very real practical impediment exists in the way of the council now asserting, as it sought to do on the hearing of this appeal, that it was entitled to rely upon the researches and advice of its officers. The inescapable fact is that there was no real opportunity afforded to the aldermen present as a group at that meeting to comprehend, let alone give consideration to, the content or significance of the proposed new conditions and there was no opportunity whatever afforded to the council's officers to consider these and advise the council upon them. Having regard to the demonstrable significance of the changes, I find it impossible to resist the conclusion reached by Mr Justice McClelland that the council failed to give to the application the consideration required by s 90(1).

[29]

Both the fact and the result of the departure by the council from the carefully formulated recommendations of its own officers, and both the fact and result of its repudiation of the important explicit requirements of the Traffic Authority and the Department of Main Roads, must necessarily attract concern regarding the regularity and validity of the council's deliberations and decision. It is difficult to see how a responsible body, properly discharging its duty to the public, could have arrived at the conclusion the council did. I need not go so far as to consider whether the conclusion is, on its face, so grossly unreasonable as to render it void. The unreasonableness in this case serves only as a pointer to the real origin of invalidity, namely that the course of proceedings at the meeting precluded the members of the council as a group from having virtually any opportunity to comprehend and evaluate, from their own resources, or with the aid of the council's expert officers, the significance of material changes in highly relevant aspects of matters the council was required under s 90(1) to take into consideration. It is but a short step, and I take it again without hesitation, to conclude that the council did not in fact fulfil its statutory obligation to take into consideration the matters specified in s 90(1), insofar as such matters bore upon the important problems of parking, traffic and access involved in this proposal for the sports stadium. 24 In his decision, Moffitt P referred to the requirements of s 90: The obligation imposed by s 90(1) is direct and specific. First it should be observed that s 90(1) provides that the consent authority "shall take into consideration" such of the matters in (a) to (s) as are relevant. It was put to us that the authority could consider relevant matters and reject them. An assertion in these terms has an ambiguity likely to produce error. If the submission means that it is sufficient that the authority advert to a relevant matter and that it can then discard it, the submission must be rejected, because the requirement is that the matter shall be taken into consideration. It may well be that the council fell into this very error, which the submission made on its behalf seems to suggest, namely that having adverted to what was said concerning the environmental matters in the report, it discarded some matters without taking them into consideration. The obligation imposed by s 90(1) is defined by the positive terms of the subjection, so that a gloss upon them is neither necessary nor desirable. 25 Later in his judgment the President stated (at 359): The very many ways in which the development in the form consented to would have environmental impacts and the very many ways that such impacts could be lessened or avoided were all open to differing points of view, which a mind prepared to consider the impact and the means of avoiding or mitigating harm, could be expected to be prepared to receive and indeed welcome. The badge of a mind that does not consider and hence which fails to consider is a refusal or neglect to receive matter or argument about it, unless or [sic] course it is irrelevant or vexatious. Where, as here they were deep and genuine environmental questions involved, in which there must be genuine competing points of view and where it appeared on material before the council meeting that bodies of independence had expressed views apparently of concern or opposition on environmental questions, a council mind which did not appear to want to know what they were, but was prepared to receive and act on one point of view and in respect of some critical environmental harm did nothing to require protection, there is provided a very strong indication that the decision was come to without taking relevant environmental matters into consideration. 26 Parramatta City Council was concerned with not only a different field of law, which is not to say matters of principle determined in that other field of law (in this case administrative law) might not be applied by this Commission, but the facts bear no likeness whatsoever to the facts in Reid-Frost or to those considered by Kavanagh J, and concerned a completely different statute to the Police Act. Moreover, the appellant seeks to wrongly elevate aspects of the judgment in Parramatta City Council to points of binding principle.

[30]

27 As the respondent observed, Parramatta City Council involved the following relevant facts: (a) The majority of the Councillors, who supported the Development Application, had decided outside and prior to the critical meeting of Council that occurred on 16 October 1981, to force through the giving of consent irrespective of matters requiring consideration under s 90(1) of the EPA Act. (b) Reports critical to the consideration of matters under s 90(1) of the EPA Act were 'swept under the table without any consideration at the meeting of 16th October' even though objectors to the Development had formally requested that such reports be accessed and taken into account. (c) The Councillors who were required to make a collegiate/group decision at the meeting were provided with, and had 'considered' in advance, the substantial report from Council's officers recommending approval of the Development Application but only on the basis of extensive and complex conditions. At the public meeting itself, extensive amendments to those conditions were proposed and effectively 'forced through' in spite of the fact that the Councillors who opposed the Stadium were 'left in the dark' regarding the import of the new conditions and their effect upon the acceptability of the project as a whole. (d) The majority of the Councillors, being those in favour of the Development, had adopted a deliberate 'tactic' vis-à-vis the late introduction of substantial changes to the recommended conditions so as to deny the opponents of the Stadium on Council a proper opportunity to understand the development implications of the proposals, before they were required to vote on them. (e) Once the extensive and complex conditions recommended by Council's officers had been 'shorn' from the Report recommending Council approval of the Development Application, the Councillors present and voting at the meeting did not have before them any or any sufficient material upon which to make an informed decision as to whether the matters set out in s 90(1) of the EPA Act were satisfied/protected against. 28 Thus, as Street CJ stated at 336, the real origin of invalidity was that: [T]he course of proceedings at the meeting precluded the members of the council as a group from having virtually any opportunity to comprehend and evaluate, from their own resources, or with the aid of the council's expert officers, the significance of material changes in highly relevant aspects of matters the council was required under s 90(1) to take into consideration. 29 As we earlier noted, the leave sought by the appellant in the present proceedings in reliance on Parramatta City Council, relates to a reconsideration of the majority's decision in Reid-Frost that the question of whether there was a procedural failure in relation to the consideration of the written submissions provided by an applicant under s 181E of the Police Act to the Commissioner of Police was not answered 'by the somewhat arid examination of whether the Commissioner had allocated a particular period of time for the relevant assessment.' 30 The appellant also seeks to take issue with the Full Bench's decision that the lynchpin of any inquiry as to procedural fairness is the content of the Reasons for Decision of the Commissioner and that procedural issues associated with taking into consideration a submission advanced by a police officer are secondary to that consideration and only really serve to complement an assessment as to whether the Reasons for Decision given by the Commissioner demonstrate procedural failure. It seems to us this latter complaint follows necessarily from the first complaint and does not flow directly from Parramatta City Council. 31 What the appellant seeks to contend, in effect, is that it was determined in Parramatta City Council that Councillors were not provided with the time or resources to consider the implications of extensive amendments to the conditions to be imposed on the Development Application and whether those amendments complied with the requirements of s 90(1) of the EPA Act, thereby invalidating the approval. It followed, therefore, that the Full Bench was wrong to find in Reid-Frost it would be an arid exercise to consider whether the Police Commissioner had allocated a particular period of time for the relevant assessment. What the appellant wishes to submit is that the Commission, in determining any question of procedural fairness, must look at how long the Commissioner devoted to the relevant documentation in order to determine whether he devoted enough time to reading and assimilating the material so as to satisfy the Commission he had done so. That is, the Commissioner should be subjected to a time study in order to ensure that the police officer had been given a fair opportunity to be heard in his or her defence. 32 The proposition that procedural unfairness may be determined by considering how long it took a decision maker to read and assimilate material only has to be stated to understand it is a flawed approach. There could be no proper basis for contending there is a direct correlation between the amount of time spent considering the material and the quality of the consideration. Further, as the majority observed in Reid-Frost at [37]: [T]he Commissioner may be taken as reaching his decision along a continuum extending to those assessments giving rise to and found in the Notice. This points to the danger of applying a test based on time in assessing whether the Commissioner had adequately considered a submission received from a police officer. 33 Contrary to the appellant's submissions, Parramatta City Council does not support the approach contended for by the appellant. That case is not authority for the proposition that a determination can only be reached as to whether or not relevant matters were 'taken into consideration' by considering how much time was taken in considering those matters at the relevant meeting. We consider the respondent is correct in submitting the Court of Appeal in Parramatta City Council only regarded the speed with which complex issues were processed at the public meeting, as merely confirmatory of the improper and invalid approach that had been adopted by the majority of the Councillors, not the central rationale for deciding invalidity. In other words, the evidence regarding the time taken to consider the amendments helped to demonstrate the improper approach to the obligations under s 90(1) of the EPA Act, but it was on the whole of the evidence (see Moffitt P at 336) - what occurred prior to the meeting and the course of the whole proceedings at the meeting, as well as the consequences flowing from a failure to consider the requirements of s 90(1) - that led the Court of Appeal to dismiss the appeal. As Moffitt P said at 337, 'it is the combined force of quite a number of circumstances pointing to it which lead me to draw the inference of fact on which my conclusion rests …' (emphasis added). 34 Moffitt P also said at 345: As in any case, civil or criminal, the state of mind of an individual (or of a body) can be proved by inference from what the person (or body) does or says or omits to do or say. The question whether a particular inference should be drawn as to a person's or body's state of mind should be resolved by a consideration of the whole of the relevant evidence. (emphasis added) 35 Further, we do not consider, as the appellant appears to contend, that Parramatta City Council is authority for the proposition that a conclusion can only be reached as to whether or not relevant matters were 'taken into consideration' by considering whether an opportunity was provided to enable a 'side-by-side' comparison of critical documents. Street CJ's remarks regarding side by side were made in the following contexts: The enormity of sweeping them aside, to be replaced by prescriptions which were largely vacuous and inadequate to meet the stated requirements in respect of parking, traffic and access, can be better demonstrated by describing side by side at a later point in this judgment the conditions recommended by the chief town planner and the conditions actually forced through at the council meeting. At this stage it will be convenient to turn to the events at the meeting itself.

[31]

I have no hesitation, in this case, in recognizing that the members of the council as a group did not have a reasonable opportunity of understanding the significance of the material changes that were involved in Alderman Elliott's new set of conditions. I have quoted some extracts from the chief town planner's recommended conditions and from those proposed by Alderman Elliott. This may present a misleadingly simple contrast. The aldermen at the meeting had before them the chief town planner's report with its conditions set out in eleven foolscap pages of single spaced typing. Alderman Elliott either read out verbatim or "outlined" the contents of his conditions set out in eight pages of single spaced typing. Those present did not have the advantage of being able to place the two documents side by side to see the departures. Indeed, even if they had, the mass of the contents is not readily assimilable. In the context of the tension of the events of the events [sic] at this critical meeting, it must have been virtually impossible to comprehend them adequately, let alone evaluate them in the light of the mandated matters in s 90(1). During the hearing of the appeal we had the advantage of having the differences identified, analysed and explained by senior counsel. The aldermen had no such assistance. 36 Street CJ was merely illustrating the disadvantage in which Councillors were placed in not being able to compare the town planner's report with the documents containing the amended conditions. His Honour was not elevating a side-by-side comparison of documents to a binding obligation under particular statutory provisions that require a decision maker to take written submissions into consideration. 37 Section 90 of the EPA Act required the Council to take into consideration a large number of matters, which if they were not taken into account could have serious environmental consequences that could cause harm 'to residents, institutions, businesses and other organizations and to members of the public': at 342 per Street CJ. In contrast, the Police Commissioner is required to take into consideration the response of the police officer served with a Notice under s 181D(3)(a) of the Police Act. 38 Unlike what the EPA Act requires, the Police Commissioner is also required to set out the reasons supporting the removal order (s 181D(4)), which then enables the Commission to make an assessment as to whether there occurred any procedural unfairness relevant to a review. Questions about whether the Commissioner adequately considered a submission needs to be essentially addressed in that light: Reid-Frost at [36]. 39 The appellant referred to what Moffitt P said at 337 regarding the subject matters that provided the inference on which his Honour's conclusions rested. The first was stated as follows: The terms or lack of them upon which the consent was given and in consequence the development which could therefore take place, taken with the considerable environmental harm and problems of mitigation which undeniably arose which were either not dealt with by the council at all or in any real sense. 40 The appellant contended that the reference by Moffitt P to '[t]he terms or lack of them upon which the consent was given' could be equated to the Statement of Reasons required by s 181D(4) of the Police Act. It was submitted, therefore, that the present appellant was in a stronger position due to the statutory requirement in s 181D(4). 41 The reference by Moffitt P to '[t]he terms or lack of them upon which the consent was given' were not the Council's reasons for approving the development application, but rather the drastically amended/emasculated recommendation of approval of the application. Moffitt P was indicating that a consideration in the proceedings was that the terms or lack of them upon which consent was given, taken with the considerable environmental harm and problems of mitigation which arose, were either not dealt with by the council at all or in any real sense. This is quite different to the consideration required under the Police Act. Whether the Commissioner dealt with a police officer's written submissions will be evident from the Reasons for Decision required by s 181D(4), not by asking how much time the Commissioner spent reading the submission. It must be observed that the legislature placed particular emphasis in the statutory scheme for the removal of police officers and the review of same on the reasons given by the Commissioner (ss 181D(4) and 181F(1)(a)). 42 As Boland J stated in Hosemans v New South Wales Police (No 3) [2005] NSWIRComm 161, the Commissioner must obtain an understanding of the facts and circumstances as set out in the police officer's submission and of the contentions that those submissions urge based on those facts and circumstances. If it is revealed the written submissions were not adequately addressed that will be confirmatory of a failure to properly consider the written submissions and may, subject to the nature of the contentions advanced by the officer, be a relevant matter to be taken into account in the review proceedings. The consequence, as the majority pointed out in Reid-Frost at [41], might be that the procedural failure warrants a conclusion that the removal was consequently harsh, unreasonable or unjust. Alternatively, the procedural failure itself may not be sufficient to conclude that the removal was harsh, unjust or unreasonable but it may be a relevant consideration to be taken into account in conjunction with the merits of the matter. However, the first inquiry is not how long the Commissioner took to consider the written submissions. 43 We would add to what we have said in the preceding paragraph by referring with approval to what the majority in Reid-Frost stated at 67: Reliance on the judgment of the Court of Appeal in Anderson is appropriate because the judgment under appeal focussed upon procedural failures in the course of the determination of the s 181E application in contrast to the conduct of a merit review. If concentration is to be given to a procedure said to be inconsistent with a statutory requirement or one said to result in an invalidity because of that error or omission, then it is appropriate to have regard to principles of administrative law to guide the assessment made in that more limited context. The ultimate question remains whether the removal was harsh, unjust or unreasonable (and that question involves a merit review). Anderson directs attention to the proper means of assessing whether the Commissioner had, under s 181D(3)(c), 'considered' a submission by a police officer by directing attention to the ordinary grammatical meaning of the word 'consider' and then requiring an objective assessment. Thus, whether the Commissioner had failed to consider an aspect of a submission must be addressed in the context of the reasons given by the Commissioner as identified in the reasoning in Anderson and in accordance with the requirements of s 181F(1)(a). 44 Whilst Haylen J dissented as to the outcome in Reid-Frost, it is significant that his Honour expressed the opinion (at [140]-[141]) that, in most cases, it should not be necessary and the Commission should not be called upon to wade through the detailed records of other officers in order to make an assessment as to whether or not a particular officer's written Response had been properly considered in accordance with the provisions of the Police Act. His Honour also stated that such an exercise, if it warranted being undertaken, should not descend into a form of detailed time and motion study, but should be conducted: (a) on the general understanding that the Commissioner had the opportunity to consider the documentation supporting the Commissioner's Confidence Submission (at the Notice issue stage) and is, therefore, likely to have a degree of familiarity with the matter, especially where there is a specific incident under consideration; and (b) the Commissioner's Reasons for Removal will disclose on their face 'the extent to which' the substance of the officer's Response has been addressed.

[34]

48 Whilst that may be so, nothing Graham J had to say in Lohse is inconsistent with the approach taken by the majority in Reid-Frost. The appellant's only specific reference to Lohse was in respect of what Graham J said at 53: Much of the evidence touching upon Mr Arthur's consideration of this matter prior to the making by him of his determination on 30 March 2008 supports an inference that Mr Arthur did not bring an open mind to the determination of the issues with which he was confronted. In my opinion one cannot simply look at his ultimate reasons and work backwards from the manner in which he expressed them to an inference that he did bring an open mind to the issues. 49 Lohse was concerned with the Public Service Act 1999 (Cth). The matter concerned action taken against an employee for misconduct and breach of the Australian Public Service Code of Conduct. The statement by Graham J at 53 of his Honour's judgment was in the context of the primary issues to be decided in the case. One of the issues was whether the decision maker was unbiased. Graham J found the decision maker did not bring an open mind to the determination of the issues with which he was confronted. 50 We do not understand the appellant in these proceedings to be contending that the Commissioner did not bring an open mind to the determination of the issues with which he was confronted. As the respondent submitted: Accordingly, it is not surprising that no application was made by the Appellant for "leave" to call the Commissioner of Police with a view to pursuing such a serious allegation (but noting that the state of the evidence was such that an application would have been doomed to fail as no "extraordinary" grounds existed for overcoming the statutory presumption against the Commissioner being called to give evidence in such review proceedings: see s 181H of the Act). 51 At [42] Graham J noted the requirement to exercise statutory power in light of the statutory requirements: The expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e. in accordance with procedures that are fair to the individual in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the Act seeks to advance or protect or permits to be taken into account as legitimate considerations... 52 The majority in Reid-Frost focussed on the statutory context. After referring to Hosemans No 3, their Honours stated: [32] However, we would also adopt, as being relevant to a consideration as to whether or not the Commissioner has adhered to the requirements of s 181D(1)(c), the discussion by the New South Wales Court of Appeal in Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337 at [58] (' Anderson ') as to the proper approach to statutory requirements imposed on a decision maker to 'consider'. Anderson concerned a judicial review, but the following observations of Tobias JA, (with whom Spigelman CJ & Macfarlan JA agreed) are applicable to the consideration of the question raised in this matter: Of course, the relevant matter must be more than adverted to or given mere lip service. Nor would it be sufficient to advert to the matter and then discard it as irrelevant: Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 50 ATR 253 at 265 [62] per Hely J. But whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written. That process is not, we believe, assisted to any significant degree by resorting to formulations which purport to qualify what is an ordinary English word, namely, 'consider' and which, as the Full Federal Court observed in Anthonypillai , invoke " language of indefinite and subjective application ".

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