NSW Commissioner of Police v Cottle

Supreme Court of NSW|2019-06-19|Before: Simpson AJ

Solicitors: K&L Gates (Plaintiff) Brazel Moore Lawyers (First Defendant) NSW Crown Solicitor's Office (Second Defendant) File Number(s): 2019/82306 Decision under appeal Court or tribunal: Industrial Relations Commission Citation: Trevor Allan Cottle v Commissioner of Police [2018] NSWIRComm 1080 Date of Decision: 19 December 2018 Before: Chief Commissioner Kite SC; Commissioner Constant; Commissioner Sloan File Number(s): 2017/275452

Factual background

The defendant, Trevor Cottle, was a member of the NSW Police Force from 20 December 2002 until 15 December 2016. On 1 December 2016 he was notified that the Commissioner had decided, under the provisions of s 72A of the Police Act, to cause him to be retired.
By application filed in the IRC on 14 December 2016 Mr Cottle sought a remedy under s 84 of the IR Act, claiming that the decision was a "dismissal", and that the dismissal was "harsh, unreasonable or unjust".
On 3 February 2017 the Commissioner filed in the IRC a notice of motion in which he sought a declaration that the IRC had no jurisdiction to deal with Mr Cottle's claim. On 22 August 2017 a Commissioner of the IRC, Murphy C, accepted that the IRC lacked jurisdiction and dismissed Mr Cottle's application: Trevor Allan Cottle v Commissioner of Police [2017] NSWIRComm 1055.
Pursuant to s 187 of the IR Act, Mr Cottle sought and was granted leave to appeal to the Full Bench of the IRC against the decision. On 19 December 2018 the Full Bench upheld the appeal and set aside Murphy C's decision: Trevor Allan Cottle v Commissioner of Police [2018] NSWIRComm 1080. The Full Bench held that the IRC did have jurisdiction to determine Mr Cottle's claim and remitted the matter for hearing and determination by Murphy C.
Pursuant to s 69 of the Supreme Court Act 1970 (NSW) the Commissioner then sought, in this Court, a declaration and orders in the following terms: "1 A declaration that [the IRC] does not have jurisdiction to hear and determine [Mr Cottle's] application for an unfair dismissal remedy filed pursuant to s. 84 of the Industrial Relations Act 1996 (NSW). 2 An order in the nature of certiorari, quashing the Appeal Order of [the IRC]. 3 An order in the nature of prohibition, preventing [the IRC] from hearing and determining [Mr Cottle's] application for an unfair dismissal remedy filed with [the IRC] pursuant to s. 84 of the Industrial Relations Act 1996 (NSW). 4 An order in the nature of mandamus, requiring [the IRC] to dismiss [Mr Cottle's] application for an unfair dismissal remedy filed pursuant to s. 84 of the Industrial Relations Act 1996 (NSW)."

Jurisdiction of this Court

At the outset of the hearing of the Commissioner's application, I indicated that I wished to be satisfied of the jurisdiction of a single judge of this Court to deal with the application. I was referred to the decision of the Court of Appeal in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [4]-[5]. On the strength of that decision I accept that a judge of the Supreme Court has jurisdiction to grant relief under s 69 of the Supreme Court Act, although the jurisdiction is limited to cases where jurisdictional error is asserted. There is no question that the Commissioner's application falls squarely within that category. Jurisdiction is therefore established.

The Commissioner's application

As indicated above, the Commissioner contends that, notwithstanding the apparent application of s 84 of the IR Act to members of the Police Force, on the true construction of the Police Act as a whole, that application is excluded. That is because, the Commissioner contends, the two Acts cannot operate together in a coherent fashion in respect of Mr Cottle's claim; the detailed provisions of the Police Act are inconsistent with the application of the IR Act; and the Police Act operates as a cohesive whole and must, therefore, be taken to override any apparent application of the IR Act. The Commissioner relies heavily on the decision of the High Court in Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2, and, to a lesser extent, on the decision in Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5.
Mr Cottle contests that position; he argues, in effect, that, at least in respect of s 72A of the Police Act, s 84 of the IR Act can operate without violence to the provisions of the Police Act and should be interpreted as adding "an additional layer of legislation on top of" the Police Act (see Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 at 553, quoted in Eaton at [45]).
Which of the competing positions is correct depends upon ascertaining the legislative intention of Parliament. The starting point is that the law presumes that statutes do not contradict one another; the question is not which law prevails, but whether that presumption is displaced: Eaton at [48]. If the presumption (of consistency) is displaced, and there is between the two statutes an explicit or implicit contradiction, the later enactment impliedly repeals the former: Ferdinands at [47]. It is now necessary to examine the relevant provisions of each statute. I will start with the IR Act.

The Industrial Relations Act

The IR Act received Royal Assent on 13 June 1996 and commenced on 2 September 1996. It replaced the Industrial Relations Act 1991 (NSW) ("the IR Act 1991").
The relevant substantive provisions of the IR Act have already been mentioned. Chapter 2 deals with Employment. Part 6 of Ch 2 (ss 83-90B) is concerned with "Unfair Dismissal".
Section 83 is headed "Application of Part [6]". Relevantly, s 83(1)(a) provides that Pt 6 applies to the dismissal of any public sector employee. As noted above, in the Dictionary it is made plain that "public sector employee" includes a member of the Police Force. Subsection (5) of s 83 provides that, in Pt 6, "dismissal", in the case of a public sector employee, includes "dispensing with the services of the employee".
By s 84(1) an employee who has been dismissed and who claims that the dismissal is "harsh, unreasonable or unjust" may apply to the IRC for the claim to be dealt with under Pt 6. A similar (but not identical) provision was contained in Pt 8 of the IR Act 1991. The provisions of Pt 8 also were expressed to apply to public sector employees, a term which was defined to include members of the Police Service: McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032 at [24]. Section 245(3) excepted from the operation of the Part members of the Senior Executive Service of the Police Service (as the Police Force was once called).
Section 88 sets out matters that the IRC may "if appropriate" take into account in determining claims under s 84. Section 89 states five orders that the IRC may make in determining claims. These include orders for reinstatement, re-employment in another position, and payment of compensation.
Chapter 4 of the IR Act deals with the IRC. Part 5 of Ch 4 (ss 162-184) provides for "procedure and powers of [the IRC]". By s 162(1) the IRC may, subject to the IR Act, determine its own procedure. By pars (a) and (b) of subs (2) it is to act as quickly as possible and conduct its proceedings publicly, or, if it considers necessary, privately. The following paragraphs of subs (2) spell out other procedural matters that lie within the discretion of the IRC. It will be necessary to make further reference to some procedural matters.

The Police Act

The Police Act began life as the Police Service Act 1990 (NSW). It was renamed as the Police Act 1990 with effect from 12 July 2002: Police Service Amendment (NSW Police) Act 2002 (NSW). It has been subject to extensive, but piecemeal, amendment over the years. The references that follow are references to the provisions of the Police Act as applicable at the time relevant to these proceedings. Although some provisions may have changed, it will be convenient to use the present tense.
By s 4 the NSW Police Force ("the Police Force") is established. An overview of the Police Act demonstrates that the Police Force is intended to be a highly structured and disciplined organisation. By s 5 it is comprised of four classes of members: (i) the Commissioner; (ii) members of the Police Force Senior Executive Service ("the Senior Executive Service"); (iii) all other police officers and administrative officers employed under the Police Act; and (iv) temporary employees. By s 33(1) the Senior Executive Service comprises persons holding positions for the time being determined by the relevant Minister to be executive positions.
The "Mission and Functions" of the Police Force are set out in s 6. Section 7 states "values" of the Police Force. By s 8(1) the Commissioner is, subject to the direction of the Minister, responsible for the management and control of the Police Force. The Commissioner's powers include the power to classify the various duties members of the Police Force are required to perform, and to allocate the duties to be carried out by each such member (subs (3)).
By s 13(1), before any person exercises any of the functions of a police officer, the person must take the oath or make the affirmation of office as a police officer in accordance with the regulations.
Part 6 (ss 62-80) is concerned with "non-executive police officers" and applies to all police officers other than the Commissioner and members of the Senior Executive Service. Division 2 of Pt 6 contains a number of provisions pertaining to appointment to various positions in the Police Force, transfer and promotions.
Section 72A appears in Pt 6, Div 2. It is unnecessary to repeat its terms. It was inserted into the Police Act to commence on 4 February 2008: Police Amendment Act 2007 (NSW). Section 72A was repealed by the Government Sector Employment Legislation Amendment Act 2016 (NSW) and substantially re-enacted (in slightly modified terms) as s 94B of the Police Act.
Division 4 of Pt 6 is headed "Appointment and promotion of constables". It contains one section only, s 80, which is as follows: (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. Subsection (3) has been italicised because of its importance to the discussion below of the issues involved in this application.
Part 8A (first inserted in June 1993 and replaced by the current version in 1998) contains detailed provisions for investigating and dealing with complaints about police officers. It does not contain any provisions for the termination of employment of police officers about whom complaints have been made and substantiated.
Part 9 (ss 173-187) appears under the heading "Management of conduct within NSW Police Force". Division 1 (s 173) is headed "Misconduct and unsatisfactory performance". Section 173 provides for a variety of actions that may be taken by the Commissioner with respect to police officers who engage in misconduct. A distinction is made between "non-reviewable action" and "reviewable action". Non-reviewable action is set out in Sch 1 and includes such action as mentoring, reprimand, warning, retraining, and others (I have given only a sample). "Reviewable action" is, generally, action of more consequence. Subsection (2) of s 173 specifies four forms of reviewable action that the Commissioner may order be taken with respect to police officers who engage in misconduct - reduction of rank or grade, reduction in seniority, deferral of salary increment, and any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate.
The significance of the distinction between reviewable and non-reviewable action is that, both before and after making an order for reviewable action, the Commissioner must take certain procedural steps: ss 173(5) and (6). Subsection (9) provides: (9) Except as provided by Division 1A: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes [the IRC]. Subsection (10) nevertheless preserves the jurisdiction of this Court to review administrative action (referring, obviously to administrative action by the Commissioner under s 173).
Division 1A (ss 174-181) in its original form was inserted with effect from 13 December 1995: Police Service Amendment Act 1995 (NSW). It was further amended in 1996: Police Legislation Amendment Act 1996 (NSW), and took its current form from 8 March 1999: Police Service Amendment (Complaints and Management Reform) Act 1998 (NSW). It was further amended by the Industrial Relations Amendment (Industrial Court) Act 2013 (NSW) (assented to 31 October 2013, commenced on 20 December 2013, those amendments have no present relevance).
Division 1A of Pt 9 expressly and in considerable detail provides for review by the IRC of reviewable orders made by the Commissioner under s 173(2). Section 174(1) provides that a police officer of whom such an order is made may apply to the IRC for review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust.
Section 175 sets out the procedure for review. The procedure differs, in significant respects, from the procedure set out in Pt 5 of Ch 4 of the IR Act. By subs (1) the IRC is required to commence hearing an application within four weeks after it is made. By subs (2) the applicant for an order for review has the burden of establishing that the order (of the Commissioner) to which the application relates is beyond power or is harsh, unreasonable or unjust. That subsection is expressed to apply "despite any law or practice to the contrary". By subs (4) the IRC must have regard (inter alia) to the interests of the applicant, and the public interest. The public interest is expressed to include the fact that the Commissioner made the order pursuant to s 173. No equivalent or corresponding provisions appear in the IR Act
Sections 176-178 contain specific provisions that apply to the conduct of reviews under s 174, including (s 176) a requirement that the IRC endeavour, by all means it considers proper and necessary, to settle the claim by conciliation, and (by s 177) specifying the orders that the IRC may make if conciliation is unsuccessful.
Section 179(1) expressly excludes certain provisions of Ch 4, Pt 5 of the IR Act - that is, the procedures and powers of the IRC. The excluded provisions include (again, I list only a sample) provisions that the IRC is not bound to act in a formal manner, is not bound by the rules of evidence, and is to act according to good conscience and the substantial merits of the case (IR Act, s 163) and provisions as to costs (IR Act, s 181).
By s 179(2) proceedings under Div 1A are to be dealt with by a member of the IRC who is an Australian lawyer unless the President of the IRC otherwise directs (which he is empowered to do by s 159 of the IR Act). No such requirement appears in the IR Act.
Section 180 contains some evidentiary provisions specific to applications for review under s 174.
Division 1B (s 181D) is concerned with "Summary removal of police officers in whom Commissioner does not have confidence". Section 181D(1) provides: (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct.
Subsections (3) and (4) of s 181D, effectively, make detailed provision for procedural fairness to be afforded to a police officer before removal and require the grounds on which the Commissioner does not have confidence in the officer to be specified, and reasons for the decision to remove the officer to be given. Subsection (7) provides: (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission.
Subsection 7A (like subs (10) of s 173) preserves the jurisdiction of this Court to review administrative action (on this occasion, obviously, referring to administrative action by the Commissioner under s 181D(1)).
Division 1C (ss 181E-181J) deals with "Review of Commissioner's decision under Division 1B". Section 181E(1) provides: (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission … for a review of the order on the ground that the removal is harsh, unreasonable or unjust.
Section 181F makes specific provision for the proceedings on review. Inter alia, it specifies the sequence in which the IRC is required to proceed in conducting a review under Div 1C: it "must" first consider the Commissioner's reasons for the decision to remove the applicant; it "must" secondly consider the case presented by the applicant as to why the removal is "harsh, unreasonable or unjust"; and it "must" thirdly consider the case presented by the Commissioner in reply. This is in contrast to s 162 of the IR Act, which empowers the IRC (subject to provisions of the IR Act) to determine its own procedure.
Section 181G deals with the application of the IR Act to reviews under Div 1C. Essentially, it provides that, subject to specific modifications, the provisions of the IR Act apply to an application for review under Div 1C. The modifications to those provisions are not insignificant. By way of example, they reduce the time for application (21 days under the IR Act) to 14 days (s 181G(1)(b)(i)); and they remove the capacity of the IRC to extend that time (see IR Act, s 85) (s 181G(1)(b)(ii)).
Section 218 of the Police Act is a curious and troublesome provision. It 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 88 or any provision of the Industrial Relations Act 1996.
Section 44(2) provides that the employment of an executive officer, and any matter relating to such employment "is not an industrial matter" for the purposes of the IR Act. Section 88(1) makes similar provision in relation to the employment of non-executive officers.
In Eaton, the High Court held that s 218(1): "is now patently erroneous" (at [87]) and that it: "does not operate in its terms." (at [90]) The former was because Pt 9 of the Police Act does affect the IR Act; the latter was a consequence of "the level of inconsistency" between Pt 9 and the unfair dismissal provisions of the IR Act.

The competing arguments

The competing submissions may be outlined with relative brevity. Notwithstanding the apparent clarity with which s 84 of the IR Act is framed (and which, on its face, would leave little room for doubt that it applied to members of the Police Force), the Commissioner argued that, on analysis of the whole of the Police Act, a legislative intention to exclude that application is manifest. It is of some interest that the Commissioner does not expressly invoke the principle that, in the event of contradictory legislation, the later is taken to repeal the earlier. That may be to do with the piecemeal fashion in which relevant amendments have been made over the years to the Police Act.
The Commissioner's contention was, in essence, that Pt 6 of Ch 2 of the IR Act cannot sit with the provisions of the Police Act properly understood and as a whole. Although his argument was that there was "an apparent contrariety" between the Police Act and the IR Act (by which he was referring to Ch 2, Pt 6), he fell short of asserting any direct contradiction in the provisions. Rather, he argued that, when the overall scheme of the Police Act, taking into account the ends to which it is directed and the means by which those ends are to be achieved, are considered, there is little if any room for review by an external body of a decision to dismiss a member of the Police Force.
Acceptance of the Commissioner's argument entails an express finding that s 84 of the IR Act does not mean what it says insofar as it is expressly stated to apply to police officers.
Essentially, the Commissioner's argument was captured in the submission that: "The Police Act has the appearance of an exhaustive scheme about the appointment, conduct, discipline and removal of police officers."
The Commissioner pointed, for example, to the provisions of Pt 8A, which is concerned with the management of complaints against police officers, and the provisions of Pt 9, which is concerned with management of conduct within the Police Force. The argument was that, in enacting ss 174 and 181E, Parliament can be seen to have turned its mind to conferring specific jurisdiction on the IRC in relation to discipline and removal of police officers. It will be recalled that s 174 makes specific provision for a police officer in respect of whom an order for reviewable action under s 173 has been made to apply to the IRC for review of the order; importantly, Div 1A of Pt 9 then makes specific provision for the procedures to be followed by the IRC in respect of such applications. Those procedures are not identical with procedures laid down in the IR Act.
The same is true of s 181E, which makes specific provision for a police officer in respect of whom an order for removal has been made under s 181D to apply to the IRC for review of the order; Div 1C makes specific provision for the procedures to be followed by the IRC with respect to such applications. Again, the procedures are not identical with those contained within the IR Act.
From all of this, the Commissioner argued, a legislative intention should be discerned to exclude the operation of the IR Act in matters concerning regulation, discipline, employment, and, particularly, dismissal, of members of the Police Force.
In support of his argument the Commissioner drew heavily on the reasoning of the High Court in both Ferdinands and Eaton, to which it will be necessary to return. Ferdinands involved corresponding (but not identical) South Australian legislation. Eaton involved both the Police Act (s 80(3)) and the IR Act. In Ferdinands, the Court held that the Police Act 1998 (SA) impliedly repealed the wrongful dismissal provisions of the Industrial and Employee Relations Act 1994 (SA) (which had provided a procedure for certain employees, including public employees, who had been dismissed to apply to the Industrial Relations Commission for a determination that the dismissal was harsh, unreasonable or unjust and for relief against the dismissal) to the extent to which they otherwise would have applied to the termination of the appointment of a member of the SA Police in consequence of conviction for an offence (see [20] per Gummow and Hayne JJ, Gleeson CJ at [4], Callinan J at [148]). In Eaton, the Court held (for reasons to be discussed below) that the provisions of Ch 2 Pt 6 of the IR Act could not operate coherently with s 80(3) of the Police Act.
The strategy adopted on behalf of Mr Cottle was to attempt to distinguish the circumstances applicable in Eaton, and those applicable in this case. The nub of the argument was that the decision in Eaton does not dictate the decision in the present case, because, in Eaton, the High Court had under consideration s 80(3), while Mr Cottle's employment was terminated under s 72A. Distinctions can be drawn between the two sections, and the High Court decision should therefore be seen as confined to s 80(3). The High Court, it was argued, did not designate the Police Act as an "exclusive code" with respect to dismissal (or termination of employment) under the Police Act, and, accordingly, the conclusions as to s 80(3) are not necessarily applicable to s 72A.

Additional observations

Before turning to Eaton, it is convenient to make two observations.
First, the jurisdiction conferred on the IRC by Ch 2 Pt 6 of the IR Act, is predicated on the "dismissal" of an employee by an employer. In those circumstances, and having regard to the language of s 72A, a preliminary question arises: is "causing an employee to be retired" on medical grounds a "dismissal" for the purposes of s 84?
Subsection (5) of s 83 of the IR Act addresses that question, defining, relevantly, "dismissal" as "dispensing with the services of the employee". In Smith v Director General of School Education (1993) 31 NSWLR 349 the question was whether the annulment of the appointment of a probationary school teacher constituted, for the purposes of the IR Act 1991 a dismissal. "Dismissal" was, in the IR Act 1991, defined in a manner similarly to the manner in which "dismissal" is defined under s 83(5) in relation to a person employed in the public sector to include: "the Crown's dispensing with … the services of the person."
The Full Court of the Industrial Court (Fisher CJ, Bauer and Hungerford JJ) held that the annulment was a dismissal. Their Honours accepted (from a conclusion by the minority judge (Brereton J) in Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47), that "dismissal" means: "… the termination of services by the employer without the employee's consent." Their Honours added that, where an employee does not freely consent to the termination "understood in a broad sense", the circumstances may still amount to dismissal as "a constructive dismissal".
That approach was endorsed by a Full Bench of the IRC in Robinson v Commissioner of Police [2014] NSWIRComm 35. Mr Robinson, like Mr Cottle, was a police officer who was medically retired (although with his consent, and, possibly, his active encouragement) under s 72A of the Police Act. Later, pursuant to provisions of the Workers Compensation Act 1987 (NSW), he sought reinstatement. The provision on which he relied allowed for orders for reinstatement when an injured worker was dismissed because of unfitness for employment as a result of injury (ss 241 and 242).
In that case, the Commissioner argued that Mr Robinson's "discharge" from his employment did not amount to a dismissal, and that, therefore, the power in the IRC under s 242 (of the Workers Compensation Act) to order reinstatement was not enlivened. The Full Bench of the IRC rejected the submission, and found that medical retirement, even where voluntary, nevertheless constituted "dismissal".
Given the breadth of the definition of "dismissal" in relation to public sector employees, and given two authoritative decisions of the IRC, one of them of long standing, I accept that the termination of Mr Cottle's employment under s 72A amounted to dismissal within the meaning of s 84(1) of the IR Act. Indeed, the contrary was not argued.
The second observation is that, in the Police Act, three mechanisms for termination of employment under the Police Act are to be found. Only one uses the terminology of "dismissal". That is s 80(3), which relates to the termination of the employment of probationary constables. Section 181D uses the terminology "remove"; s 72A uses the language "cause to be removed". What the three have in common is that each brings about an end to the employment relationship, and that end may come about against the wishes of the police officer concerned.
There is nothing in the language of s 84 or the related provisions of the IR Act that differentiates between the three mechanisms for termination of employment in the Police Force: that is, absent any contraindication elsewhere, if s 84 applies to a dismissal brought about by one of those mechanisms, it could be thought to apply to dismissal under either of the other mechanisms. The converse is also true. If s 84 does not apply to a dismissal brought about by one of those mechanisms, it is difficult to see why it would apply to either of the others.
There are, however, contraindications in the Police Act. Specifically, decisions under s 173 (which are not dismissals, but orders for "reviewable action" - that is, some kind of penalty), and decisions under s 181D (which are dismissals) are reviewable in the IRC. In each case, the ground for review is that the decision is harsh, unreasonable or unjust (an echo of the grounds for review under s 84). But the route to the IRC for review of s 173 and s 181D decisions is not s 84 of the IR Act, but s 174 and s 181E, respectively, of the Police Act. And, as pointed out above, the procedures to be followed by the IRC are stated, not in the IR Act but in the Police Act, and are specific to the decisions under review. Division 1A is not concerned with termination of employment and can be left in abeyance. Its continued relevance is marginal at best.
The enactment of Pt 9 Div 1C is a strong indication that the legislature considered that s 84 of the IR Act did not provide entrée to the IRC for police officers dismissed (removed) under s 181D. The enactment of Div 1C of Pt 9 of the Police Act post-dated the enactment of s 84 of the IR Act. That the legislature considered that s 84 did not apply to police officers removed under s 181D is not conclusive that it did not. But the enactment of Div 1C is a clear indication that, to the extent (if any) that s 84 applied to s 181D decisions, it was, by implication, repealed on the enactment of s 181E.
No provisions corresponding to Pt 9 Div 1C exist in relation to dismissals under either s 72A or s 80(3). There is, therefore, no implied repeal of any entitlement to IRC review via the IR Act. But, in Eaton, the High Court nevertheless (by majority - Crennan, Kiefel and Bell JJ in a joint judgment, Heydon J in a separate concurring judgment, Gageler J dissenting) held that review of a decision to dismiss a probationary constable under s 80(3) of the Police Act was unreviewable in the IRC. It is now necessary to examine the reasons for that conclusion, in order to determine whether they apply equally to decisions under s 72A.

Commissioner of Police v Eaton

Mr Eaton was appointed to the Police Force, in accordance with s 80(2) of the Police Act, on probation. Following disputes about his conduct, and while he was still on probation, he was dismissed under s 80(3). It is convenient to repeat the terms of s 80(3): (3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason.
Mr Eaton sought in the IRC a remedy under s 84, claiming that the dismissal was harsh, unreasonable or unjust. He was successful and an order for his reinstatement was made: Eaton v Commissioner of Police [2010] NSWIRComm 1035. The Commissioner appealed to the Full Bench, which allowed the appeal and held that the IRC lacked jurisdiction to make the orders it had: Commissioner of Police v Eaton [2011] NSWIRComm 51; (2011) 207 IR 209.
Pursuant to s 69 of the Supreme Court Act Mr Eaton sought judicial review in the Court of Appeal. That Court found that the IRC had jurisdiction, quashed the decision of the Full Bench, and remitted the matter to the IRC to be determined according to law: Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30; (2012) 218 IR 289. By special leave the Commissioner appealed to the High Court, which, as I have noted above, confirmed the findings of the Full Bench that the IRC did not have jurisdiction.
I begin with the reasons of the plurality. Their Honours began their analysis of the relevant IR Act provisions by noting that, by its terms and the definition of "public sector employee", s 83(1)(a) of the IR Act "is apt to apply to police officers" (including probationary constables): ([61]). Nonetheless, their Honours went on to explain why the provisions do not apply to probationary constables. After noting the remedies available to the IRC (IR Act, s 89), and the matters available to be taken into account (s 88) their Honours concluded that: "65 … the unfair dismissal regime of the IR Act was not framed with something like the Police Force in mind." That conclusion, it may interpolated, is significant for present purposes because it is not confined to dismissals under s 80(3); it is of wider, more general, application.
Their Honours then referred in considerable detail to the provisions of Pt 9 Div 1C, which expressly permits review in the IRC of s 181D (removal) decisions, but drew attention to the points of variance between the procedure there provided for and the procedure under the IR Act: [70]-[71], [76]-[77].
Their Honours next directed their attention to specific provisions of s 80(3), the terms of which, the Commissioner argued ([74]), and the plurality accepted ([90]) "are strongly suggestive of an unfettered power to dismiss". Their Honours held that s 80(3): "… 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."
Their Honours considered the effect of s 218 of the Police Act, which they described as "troublesome". Section 218(1), in its clear terms, states that the IR Act (including, presumably, Pt 6) is not affected by anything in the Police Act. That, their Honours said (at [87]) "is now patently erroneous" since Pt 9 clearly does affect the IR Act. Section 218(1) does not operate in its terms ([90]). What s 218 does is to: "… leav[e] intact the power of the [IRC] to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act." ([91]) Their Honours found such a restriction in s 80(3).
The conclusions of the plurality are expressed in [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." (internal citation omitted)
The rule of construction to which their Honours alluded was stated as a presumption: "… that a later, general enactment is not intended to interfere with an earlier, special provision unless it manifests that intention very clearly." ([46]) The Police Act was enacted in 1990 (although, as has been said, it has been subject to periodic amendment, including in relation to provisions relevant to these proceedings) and is specific to the regulation and management of the Police Force. The IR Act is the later enactment, enacted in 1996, and is in more general terms. The rule of construction would therefore be a presumption that the IR Act was not intended to interfere with the earlier, special, provisions of the Police Act.
Heydon J agreed in the result, but expressed his reasons differently. His Honour identified four reasons for reaching the same conclusion. Summarised, they were: 1. the terms of s 80(3): the words "at any time", "without giving any reason", and "probationary" were all pointers to an intention to exclude the jurisdiction of the IRC, as inconsistent with challenge on the ground that the dismissal decision was harsh, unreasonable or unfair. The exercise of an "unfettered power to dismiss": "… is necessarily immune from challenge on the ground of harshness, unreasonableness or unfairness." ([17]); 1. the remedies available under s 89 (for example, reinstatement, re-employment in another position) of the IR Act are "clearly inconsistent" with the Commissioner's power under s 80(3), and: "Section 80(3) 'is clearly indicative of an authority that reposes in the Commissioner to dismiss a probationary police officer without interference of any kind'." ([19]); 1. the general provisions of the IR Act must give way to the particular provisions of s 80(3) ([21]); 2. The effect of the Pt 9 Div 1C provisions is more restrictive than the provisions of Ch 6 of the IR Act, meaning that, were s 84 to apply, a dismissed probationary constable would have different, and in some respects superior, rights to those of confirmed police officers removed under s 181D.
The question for present consideration is whether that reasoning in relation to s 80(3) is applicable to decisions under s 72A. If it is, the result is inevitable.

The decisions in the Industrial Relations Commission

As outlined above, Mr Cottle's application for a remedy under s 84 of the IR Act came before Murphy C in the IRC. Murphy C expressed his conclusions succinctly. He rejected a submission advanced on behalf of Mr Cottle that the decision of the High Court in Eaton, and decisions of the IRC in McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032 and McDonald v Commissioner of Police (No 3) [2016] NSWIRComm 1049 are confined: "18 … to the narrow questions of whether or not a dismissed probationary police officer (as in Eaton) or police officer who claims to have been constructively dismissed (as in McDonald) is excluded from the general unfair dismissal provisions of the IR Act." Murphy C considered that the language used in both cases: "… strongly suggests that the provisions of the Police Act constitute an exclusive code which sets out the only manner in which police officers, whose employment with the police force has been terminated pursuant to the provisions of that Act, may seek a remedy in this Commission."
Murphy C concluded: "19 This exclusive code does not provide for a 'merit review' by this Commission of any such termination, beyond that which is specifically provided for under Divisions 1C and 1D of Part 9 of the Police Act. As a consequence, police officers whose employment with the police force has been terminated otherwise than by way of an order made under section 181D of the Police Act, whether by way of dismissal of a probationary officer; or by way of alleged constructive dismissal; or by way of medical retirement; or by way of any other means, are precluded from seeking a remedy pursuant to the unfair dismissal provisions in Chapter 2, Part 6 of the IR Act."
On Mr Cottle's appeal, the Full Bench took a different view. At [51] and [52] the Full Bench outlined the principal submissions advanced on Mr Cottle's behalf as: 1. to designate the Police Act as "an exclusive code" represented a misunderstanding of the decision in Eaton; 2. the decision ignored the construction given by the High Court to s 218 of the Police Act, which was that that section: "… left 'intact the power of the [IRC] to deal with industrial matters concerning police officers, unless especially restricted by a provision of the Police Act'"; 1. the implied inconsistency arose in Eaton because the wording of s 80(3) of the Police Act strongly suggested an unfettered right to dismiss a probationary constable, such that s 218 does not operate in its terms; whereas there are no such inconsistent terms in s 72A of the Police Act.
The Full Bench said: "64 It is clear that the High Court in Eaton considered that the terms of s 80(3) were the key to the question of implied inconsistency in the case before it. We agree with [Mr Cottle] that Eaton is not authority for the proposition that the Police Act is an exclusive or exhaustive code applying to the dismissal of police officers. It is also evident that the High Court in Eaton did not determine that the Police Act impliedly repealed the IR Act, as in the South Australian case of Ferdinands. 65 Contrary to the conclusions of [Murphy C] at [18] of the Decision, the language of the judgments in Eaton does not point to such conclusions. The recognition of the operation of s 218 of the Police Act required an analysis of s 80(3) to discern whether there was such inconsistency between it and Pt 6 of Ch 2 of the IR Act as to exclude application of the latter in respect of the dismissal of probationary police officers."
The Full Bench again referred to the High Court's construction of s 218 of the Police Act as leaving intact the power of the IRC to deal with industrial matters concerning police officers unless especially restricted by a provision of the Police Act, and expressed the view that Eaton: "72 … is authority for the proposition that the Police Act is not an exclusive code."
The Full Bench concluded (at [77]) that there was no "contrariety" in the two legislative schemes such as to exclude the operation of the IR Act, and, at [82], that the discretion conferred by s 72A of the Police Act, by contrast with the discretion conferred by s 80(3) was not unfettered.
At [89] the Full Bench noted that (absent review under s 84 of the IR Act) no review of a s 72A decision was available; that would "arguably be anomalous" in conferring on an officer dismissed under s 181D merits review while an officer dismissed under s 72A had no such review available. The Full Bench noted that there were "no special terms" associated with s 72A that were inconsistent with the powers of the IRC under Ch 2 Pt 6 of the IR Act. They also noted "an obvious parallel" with the right given by s 242 of the Workers Compensation Act 1987 (NSW) for police officers injured in the course of duty to seek reinstatement.
The Full Bench concluded that medical retirement under s 72A was "an industrial matter" for which the IRC's power under Ch 2 Pt 6 had been left intact and not expressly restricted by a provision of the Police Act.

Conclusion

I have set out above the competing submissions of the parties.
Although the provisions of Pt 9 Div 1C are not directly relevant to decisions under s 72A, neither are they directly relevant to decisions under s 80(3). Nevertheless, the plurality in Eaton appear to have treated those provisions as a significant indicator that the jurisdiction purportedly given to the IRC under s 84 of the IR Act was incompatible with the terms of s 80(3) of the Police Act. So also did Heydon J. Indeed, the plurality (at [90]) said that the provisions of Pt 9 provide an example of inconsistency with provisions of the IR Act relating to unfair dismissal. That reasoning must apply equally in relation to s 72A.
Each of the reasons given by Heydon J applies, to a greater or lesser degree, to s 72A decisions. His Honour (like the plurality) placed significant weight on the characterisation of the s 80(3) discretion as "unfettered". The Full Bench noted acceptance on behalf of the Commissioner that the s 72A discretion was not, like the s 80(3) discretion, "unfettered". Presumably that was because the discretion only arises when the necessary preconditions of unfitness and permanency have been found to exist. But once those preconditions have been found to exist, the language of s 72A, like the language of s 80(3), unequivocally suggests an unfettered power to take the action for which the section provides. It is true that the language of s 80(3) is more explicit than that of s 72A, with direct reference to "at any time" and "without giving any reason". But, apart from the precondition of permanent unfitness, s 72A does not impose any restriction on the exercise of the discretion. Notably, there is no requirement for any steps to be taken with respect to notice to the police officer that action under s 72A is contemplated, nor any requirement that reasons be given. This is in contrast to action under Pt 9 Div 1C which makes specific provision for those steps to be taken.
The inconsistency with the remedies for which s 89 of the IR Act provides remain apposite. Those remedies, it will be recalled, include reinstatement or re-employment in a different position. Reinstatement is clearly not an available remedy in respect of a police officer who fulfils the preconditions of s 72A (one of which is that the police officer is, on medical grounds, unfit to discharge or incapable of discharging the duties of the position). (It may be accepted that it is less clear that re-employment in an alternative position is not an available remedy.)
The contrast between the generality of the IR Act and the particularity of the Police Act also remains apposite. Section 72A is, even more than s 80(3), a provision of considerable particularity, applying only where the stated pre-conditions have been found to exist.
The fourth reason given by Heydon J, the contrast with the restricted nature of the review available for "removed" police officers, with what would be the more expansive review under s 80(3) (if Pt 6 of the IR Act were available) is also apposite. Availability of a s 84 review would mean that a police officer, caused to be retired on medical grounds, would have a merit review of the discretionary decision. It should be emphasised that the discretionary decision is not the finding of incapacity or unfitness on medical grounds, but the consequential decision when those findings have been made. The concepts of "harshness, unreasonableness or unfairness" are not easy to relate to what are, not discretionary decisions but, specialist medical findings.
I have concluded that, for present purposes, the provisions of s 72A are relevantly indistinguishable from the provisions of the s 80(3). The reasoning in Eaton with respect to dismissal under s 80(3) demands the same conclusion in relation to decisions under s 72A. Of particular importance is the observation by the High Court that: "… the unfair dismissal regime of the IR Act was not framed with something like the Police Force in mind." That, as I have suggested above, is a statement of general application.
I am satisfied that the reasoning in Eaton binds me to conclude that Ch 2 Pt 6 of the IR Act does not apply to police officers in respect of whom a decision under s 72A has been made.
Before concluding, however, there is, with respect to s 72A, another consideration which was not the subject of argument. What follows is therefore tentative. As I have suggested above, a s 72A decision depends upon two anterior findings: that the officer is medically unfit to discharge the duties of the position held, and that that unfitness appears to be permanent. Once those findings are made there is little room for a finding of harshness, unreasonableness or unjustness in a determination to cause the police officer to be retired. The true challenge would necessarily be to the underlying findings of permanent incapacity. Review under s 84 of the IR Act is an inappropriate vehicle for such a challenge. On the anterior findings there is also little room for the remedies available under s 89 of the IR Act (although I have acknowledged that re-employment in a different position could be a possibility).
The Commissioner's application must succeed. I therefore: 1. Declare that the Industrial Relations Commission of NSW does not have jurisdiction to hear and determine the application by Trevor Cottle for a remedy under s 84 of the Industrial Relations Act 1996 (NSW) for unfair dismissal. 2. Order that the order of the Full Bench of the Industrial Relations Commission of NSW of 8 October 2018 be quashed. 3. Order that the appeal to the Full Bench of the Industrial Relations Commission be dismissed. 4. Order that the defendant pay the costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2019

Industrial Relations Act 1991(NSW)

Police Service Act 1990(NSW)

Police) Act 2002(NSW)

Police Amendment Act 2007(NSW)

Government Sector Employment Legislation Amendment Act 2016(NSW)

Police Service Amendment Act 1995(NSW)

Police Legislation Amendment Act 1996(NSW)

Police Service Amendment (Complaints and Management Reform) Act 1998(NSW)

Industrial Relations Amendment (Industrial Court) Act 2013(NSW)

Industrial and Employee Relations Act 1994(SA)

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