The Industrial Relations Commission of New South Wales has jurisdiction under s 84(1) of the Industrial Relations Act 1996 (NSW) to hear and determine an application by a...
Section 72A of the Police Act does not expressly or by necessary implication exclude the operation of Pt 6 of Ch 2 of the IR Act; the absence of an equivalent to s 44 (which...
The power in s 72A is distinguishable from the unfettered power in s 80(3) considered in Commissioner of Police (NSW) v Eaton because s 72A applies to confirmed non-probationary...
Issues before the court
Whether a non-executive police officer retired under s 72A of the Police Act 1990 (NSW) may apply under s 84(1) of the Industrial Relations Act 1996...
Cited legislation
10 cited instruments linked from this judgment.
Plain English Summary
The High Court held that when the NSW Police Commissioner medically retires a non-executive police officer under section 72A of the Police Act, that officer can still go to the Industrial Relations Commission and argue the retirement was unfair. The Court looked at the two Acts together and decided Parliament had not ruled out such claims. Unlike probationary officers or executive officers, there was no clear statement removing the Commission's oversight, the retirement power used clear medical tests rather than an unlimited power, and a section in the Police Act said the industrial relations law was not affected. The unique nature of policing did not change this because the law expressly included police in the unfair dismissal rules for public employees.
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Deep Dive
2,692 words · generated 24/04/2026
What happened
Trevor Cottle, a non-executive police officer, was notified by the NSW Commissioner of Police on 1 December 2016 that he would be retired pursuant to s 72A of the Police Act 1990 (NSW) on medical grounds with effect from 15 December 2016. Section 72A permits the Commissioner to retire a non-executive police officer if the officer is found on medical grounds to be unfit or incapable of discharging the duties of the position, the unfitness or incapacity appears likely to be permanent, and it has not arisen from actual misconduct or causes within the officer's control. Mr Cottle regarded this compulsory retirement as a dismissal and applied to the Industrial Relations Commission of New South Wales under s 84(1) of the Industrial Relations Act 1996 (NSW), claiming that the dismissal was harsh, unreasonable or unjust.
The IR Commission at first instance dismissed the application on the basis that it lacked jurisdiction. A Full Bench of the IR Commission reversed that decision. The Commissioner then commenced proceedings in the Supreme Court of New South Wales seeking a declaration that the IR Commission had no jurisdiction to hear and determine the application. Simpson A-J granted the declaration. On appeal, the Court of Appeal (Bell P, Basten and Payne JJA) held that the IR Commission did have jurisdiction, set aside the orders made below, and dismissed the Commissioner's summons.
The Commissioner was granted special leave to appeal to the High Court. The sole issue before the High Court was whether a non-executive police officer retired under s 72A could validly invoke the unfair dismissal provisions in Pt 6 of Ch 2 of the IR Act. By majority (Kiefel CJ, Keane, Gordon and Steward JJ, Gageler J agreeing), the High Court dismissed the appeal with costs, holding that the IR Commission possessed the necessary jurisdiction. The Court emphasised that resolution of the question turned upon the proper construction of the relationship between the two statutes as they stood at the date of Mr Cottle's notification.
Why the court decided this way
The Court began from the principle that the relationship between overlapping statutes is a question of legislative intention to be extracted from all available indications. It cited the plurality in Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1 at 18-19 [45] (drawing on Lord Wilberforce in Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538) for the possible interpretations of overlapping statutes and the presumption that Parliament does not intend statutes to contradict one another. That presumption yields only where the provisions cannot "stand or live together" after close attention to the particular text, context and purpose.
Applying that framework, the joint judgment (Kiefel CJ, Keane, Gordon and Steward JJ) identified several textual and structural indications that s 72A does not exclude Pt 6 of Ch 2 of the IR Act. First, s 72A is framed by reference to three objective criteria rather than an unfettered discretion. Those criteria—medical unfitness or incapacity, likely permanence, and absence of misconduct or controllable causes—supply a stable basis upon which the IR Commission could assess whether the retirement was harsh, unreasonable or unjust even if no reasons are furnished by the Commissioner. This contrasted with s 80(3), which permits dismissal of a probationary police officer "at any time and without giving any reason" and which the Court in Eaton had held conveyed an intention that the decision not be subjected to merits review.
Second, the Police Act contains express exclusions of the IR Act in defined circumstances but none for non-executive officers retired under s 72A. Section 44(2A) expressly provides that Pt 6 does not apply to the employment of executive officers, including their retirement under s 50. Division 1C of Pt 9 contains detailed modifications to the unfair dismissal regime, but only for officers removed under s 181D on grounds of competence, integrity, performance or conduct. The absence of any equivalent provision for s 72A was treated as a powerful indication that Parliament did not intend the same immunity or modification. The Court noted that if Parliament had wished to immunise medical retirements it could readily have done so, as it had for executives.
Third, s 218(1) states that the IR Act "is not affected by anything in this Act", although that statement is qualified by s 218(2) and other express provisions. Gageler J regarded s 218(1) as supplying the "complete answer", explaining that its meaning is that no provision of the Police Act is to be construed as altering the legal operation of any provision of the IR Act unless there is explicit or implicit contradiction. Merely inferential contradiction, even if it might have been expected had the drafter's logic been pursued to its end, is insufficient to displace the express statement. The joint judgment similarly treated s 218(1), together with s 85 (which designates the Commissioner as the employer of non-executive officers for industrial matters before a competent tribunal), as positive indications that the general jurisdiction conferred by the IR Act on public sector employees—including members of the NSW Police Force—continued to apply.
The Court rejected the Commissioner's reliance on the unique operational character of the NSW Police Force. While acknowledging the hierarchical command structure, the conferral of special powers, and the Commissioner's responsibility for management and control, the joint judgment held that those considerations "must yield to the terms of the IR Act and its express inclusion, for the purposes of Pt 6 of Ch 2 of the IR Act, of its members" and to the terms of ss 85 and 218. It was not demonstrated that those features were "necessarily antithetical" to unfair dismissal review. Nor was there any necessary anomaly in non-executive officers retired on medical grounds enjoying fuller review rights than those removed under s 181D; the modifications in Div 1C were deliberately confined to the latter category.
Finally, the Court addressed the practical availability of remedies. Although reinstatement or re-employment may not always be appropriate, compensation remains available under s 89(5) of the IR Act where it would be impracticable to order reinstatement or re-employment. The IR Commission could also examine the Commissioner's satisfaction of the statutory criteria in s 72A and the discretionary decision to retire the officer. These considerations reinforced the conclusion that the two statutory regimes could operate harmoniously.
Before and after state of the law
Prior to this decision the law was unsettled. In Commissioner of Police (NSW) v Eaton the High Court had held that the unfettered power to dismiss probationary constables under s 80(3) of the Police Act was inconsistent with the unfair dismissal jurisdiction in Pt 6 of Ch 2 of the IR Act. The plurality in Eaton emphasised the probationary context, the absence of any obligation to give reasons, and the implication that the decision was not to be subjected to merits review. The present case was therefore the first occasion on which the High Court considered the interaction between s 72A (introduced in 2007) and the unfair dismissal regime.
The Police Act had previously contained express carve-outs. Section 44 excluded unfair dismissal review for executive officers. Division 1C of Pt 9, inserted to deal with removals under s 181D, imposed the onus on the applicant, required regard to the public interest (including the integrity of the NSW Police Force), altered the constitution of the Commission in some cases, and made the Commissioner not compellable to give evidence. No such provisions applied to medical retirements. Section 218(1) had been described in Eaton as "patently erroneous" because of the express exclusions elsewhere in the Police Act, yet the plurality in Eaton accepted that it nevertheless recognised the "general jurisdiction" of the IR Act.
After the decision, it is settled that non-executive police officers retired under s 72A (or its successor provision) retain the full suite of rights under Pt 6 of Ch 2 of the IR Act, unmodified by the Police Act. The IR Commission may inquire into whether the statutory criteria were met, whether the discretion was exercised in a manner that was harsh, unreasonable or unjust, and may order reinstatement, re-employment, remuneration or compensation. The decision confirms that the specific modifications enacted for s 181D removals are not to be read across to medical retirements. It also reinforces that s 218(1) operates as a strong presumption in favour of the continued application of the IR Act unless explicit or implicit contradiction appears. The anomaly (if any) of more generous review rights for "no-cause" medical retirements than for cause-based removals under s 181D is now a matter for Parliament, not judicial adjustment.
Key passages with plain-English translation
Paragraph [41]–[43] of the joint judgment sets out the three objective criteria in s 72A: the officer must be found on medical grounds to be unfit or incapable; the unfitness must appear likely to be permanent; and it must not result from misconduct or causes within the officer's control. Plain-English translation: The section only lets the Commissioner retire someone if these three medical and causation tests are satisfied. Because the tests are clear and factual, a tribunal can check whether the Commissioner got them right or used the power unfairly.
At [49] the Court states that the absence of any obligation to give reasons under s 72A is "a clear 'indication' of parliamentary intention that supports the approach of the Police Commissioner" but immediately qualifies this by noting that the IR Commission "may take into account whether a reason has been given for dismissal" under s 88(a)–(b) of the IR Act and that "a claim for unfair dismissal is capable of being determined in the absence of such reasons". Plain-English translation: Not having to give reasons points against review, but not decisively; the Commission can still decide the case using the medical criteria themselves.
Paragraph [50] observes: "Section 72A does not expressly exclude the reach of the IR Act in the case of non-executive police officers. In that respect, it is entirely unlike the treatment of executive officers under the Police Act." Reference is made to s 44(2A). Plain-English translation: When Parliament wanted to stop unfair dismissal claims it said so clearly for executives. It did not say so for ordinary police officers retired on medical grounds, so the normal rules continue to apply.
In the concluding paragraphs ([53]–[54]) the Court endorses Bell P's observation that it would be "anomalous in the extreme" to deny non-executive police officers a remedy available to other public sector employees, and that there is "no necessary inconsistency" between s 72A and the review rights under the IR Act. Plain-English translation: Treating police differently from other public workers without clear legislative words would be strange. The two laws can work together without conflict.
Gageler J at [66]–[73] emphasises s 218(1) and cites Rose v Hvric (1963) 108 CLR 353 for the distinction between "explicit or implicit contradiction" and "merely inferential contradiction". Plain-English translation: The Police Act itself says it does not interfere with the industrial relations law. That statement can only be overridden by a direct clash, not by a guess about what Parliament might have intended if it had thought the matter through further.
What fact patterns trigger this precedent
This precedent is triggered whenever a non-executive police officer (that is, a member of the NSW Police Force other than a member of the Senior Executive Service) is retired on medical grounds under s 72A (or its current successor, s 94B) and contends that the retirement was harsh, unreasonable or unjust. The officer must have been "found on medical grounds" to be unfit or incapable, with the unfitness or incapacity appearing likely to be permanent and not arising from misconduct or controllable causes. The precedent applies even if the Commissioner gives no reasons, because the statutory criteria themselves supply an objective yardstick.
It does not apply to probationary constables dismissed under s 80(3), to executive officers retired or removed under ss 50 or 51, or to officers removed under s 181D for reasons going to competence, integrity, performance or conduct. Those categories remain governed by Eaton or by the specific regime in Div 1C of Pt 9. The decision is also confined to the unfair dismissal jurisdiction in Pt 6 of Ch 2 of the IR Act; it does not disturb the Commissioner's broader management powers under ss 8, 10 and 11 of the Police Act or the limitations in s 405(1)(b) of the IR Act concerning awards that would interfere with discipline, promotion or transfer.
The fact pattern must involve a "public sector employee" within the meaning of the IR Act Dictionary, which expressly includes members of the NSW Police Force. The retirement must be compulsory; voluntary medical retirement would fall outside s 84. Because the IR Act applies to "any public sector employee", the precedent extends by analogy to materially identical medical retirement powers in the Teaching Service Act 1980 (NSW) s 76, the Transport Administration Act 1988 (NSW) s 68Q(3) and the Government Sector Employment Act 2013 (NSW) s 56, as expressly noted by Gageler J.
How later courts have treated it
As a 2022 High Court authority, the decision has not yet been the subject of extensive later treatment within the source text itself. However, the judgment expressly positions itself as clarifying the limits of Eaton. The joint judgment repeatedly distinguishes Eaton on the basis that s 80(3) concerned probationary officers and used language implying an unfettered, unreviewable power, whereas s 72A applies to confirmed officers and contains objective criteria. Later courts are therefore directed to treat the two powers as materially different.
The decision affirms the continuing force of the presumption against statutory contradiction and the primacy of express statements such as s 218(1). It endorses the Court of Appeal's reasoning that it would be "anomalous in the extreme" to deny non-executive police officers a remedy available to other public sector employees in the absence of clear legislative words. Future courts applying the IR Act to other public sector medical retirement powers are likely to treat the analysis as confirmatory that, absent express exclusion, the unfair dismissal jurisdiction remains available.
The judgment also confirms that the detailed modifications in Div 1C of Pt 9 are to be read as confined to their subject matter—removals under s 181D—and not as indicating a general parliamentary intention to treat all police employment matters differently from other public sector employment. Courts considering analogous overlaps between specialist disciplinary regimes and general industrial legislation are therefore instructed to search for explicit or implicit contradiction rather than mere inference.
Still-open questions
The judgment leaves open whether the IR Commission, when reviewing a s 72A retirement, may substitute its own view of the medical evidence or is confined to reviewing the reasonableness of the Commissioner's satisfaction of the statutory criteria. The joint judgment notes that the Commission "could assess whether an officer's dismissal was 'harsh, unreasonable or unjust'" by reference to the degree of unfitness, the nexus with the position, the cause of the unfitness, and the discretionary decision to retire, but does not spell out the precise standard of review.
It remains unclear how the public interest consideration that the IR Commission must take into account under s 84 of the IR Act interacts with the public interest in maintaining the integrity of the NSW Police Force that is expressly required to be considered under s 181F(3)(b) for s 181D matters. The Court did not decide whether the latter consideration can be imported by analogy.
The interaction between s 72A and the hurt-on-duty provisions or workers' compensation legislation is not addressed. Nor does the Court express a view on whether an officer who succeeds in an unfair dismissal claim could be re-employed in a non-operational role or whether operational suitability remains a non-justiciable management prerogative.
Finally, the decision notes that s 218(2) contains an obvious error (corrected by later statute) but does not explore the full scope of the qualifications to s 218(1) that might arise from other unexpressed but necessarily implicit inconsistencies. These residual questions will require future litigation to resolve, but the core holding—that medical retirement of non-executive officers remains reviewable—now rests on clear High Court authority.
Catchwords
NSW Commissioner of Police v Cottle
Judgment (70 paragraphs)
On appeal from the Supreme Court of New South Wales
J K Kirk SC with M C L Seck for the appellant (instructed by Kingston Reid)
R J de Meyrick for the first respondent (instructed by Brazel Moore Lawyers)
Police Association of New South Wales intervening, limited to written submissions
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Industrial law (NSW) - Jurisdiction - Unfair dismissal - Industrial Relations Commission of New South Wales ("IR Commission") - Where first respondent had been retired as non‑executive police officer by NSW Commissioner of Police ("Police Commissioner") under s 72A of Police Act 1990 (NSW) on medical grounds - Where dismissal claimed by first respondent to be harsh, unreasonable or unjust under s 84 of Industrial Relations Act 1996 (NSW) ("IR Act") - Where Pt 6 of Ch 2 of IR Act confers jurisdiction on IR Commission to review dismissal of "any public sector employee", including any member of NSW Police Force - Where s 72A of Police Act does not expressly exclude or modify reach of Pt 6 of Ch 2 of IR Act - Where s 85 of Police Act states Police Commissioner is employer of non‑executive police officers for proceedings dealing with industrial matters - Whether Police Act excludes application of IR Act to decisions made under s 72A of Police Act - Whether IR Commission had jurisdiction to hear and determine application under s 84 of IR Act.
Words and phrases - "harsh, unreasonable or unjust", "indication of parliamentary intent", "Industrial Relations Commission", "jurisdiction to hear and determine", "non‑executive police officer", "objective criteria", "overlapping statutes", "Police Commissioner", "police officer", "power to dismiss", "public sector employee", "retirement on medical grounds", "statutory construction", "unfair dismissal", "unique functions of the NSW Police Force".
Industrial Relations Act 1996 (NSW), ss 83, 84, Pt 6 of Ch 2.
Police Act 1990 (NSW), ss 44, 50, 72A, 80, 85, 181D, 218, Div 1C of Pt 9.
KIEFEL CJ, KEANE, GORDON AND STEWARD JJ. On 1 December 2016, the Commissioner of the NSW Police Force ("the Police Commissioner") notified the first respondent ("Mr Cottle") that he would be retired as a non‑executive police officer pursuant to s 72A of the Police Act 1990 (NSW)[1] with effect from 15 December 2016. Section 72A provides:
(a) a non-executive police officer is found on medical grounds to be unfit to discharge or incapable of discharging the duties of the officer's position, and
(i) appears likely to be of a permanent nature, and
(ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control,
the Commissioner may cause the officer to be retired."
Aggrieved, Mr Cottle sought relief in the Industrial Relations Commission of New South Wales ("the IR Commission"). Mr Cottle claimed that his "dismissal" was "harsh, unreasonable or unjust" for the purposes of s 84(1) of the Industrial Relations Act 1996 (NSW) ("the IR Act"). The IR Commission dismissed Mr Cottle's application because it considered it had no jurisdiction to hear it. That decision was overturned by a Full Bench of the IR Commission.
The Police Commissioner sought a declaration (and other consequential relief) in the Supreme Court of New South Wales that the IR Commission did not have jurisdiction to hear and determine Mr Cottle's application[2]. Simpson A‑J decided that the Police Commissioner's application must succeed and ordered the declaratory relief sought. On appeal, the Court of Appeal of the Supreme Court of New South Wales decided that the IR Commission did have jurisdiction to hear Mr Cottle's application[3].
The sole issue for determination is thus whether a non‑executive police officer, who has been retired pursuant to s 72A of the Police Act, may validly make an application pursuant to s 84(1) of the IR Act that she or he has been unfairly dismissed. Resolution of that issue turns upon the relationship between the Police Act and the IR Act, and requires a consideration of the scope and operation of each Act[4].
For the reasons given below, the Court of Appeal correctly decided that the IR Commission did have jurisdiction to hear and determine Mr Cottle's application.
The NSW Police Force is established by the Police Act and, at the time of Mr Cottle's retirement, relevantly comprised the Police Commissioner, members of the Senior Executive Service, and other (non‑executive) police officers and administrative officers[5].
The Police Act defines a "police officer" to be a "member of the NSW Police Force" who holds a "position which is designated under [the Act] as a position to be held by a police officer"[6]. The Police Commissioner is required to designate the positions to be held by police officers[7]. A position is to be so designated if the Police Commissioner is relevantly satisfied that the holder will be required to carry out or be concerned in "operational police duties"[8].
The Police Commissioner is responsible for the management and control of the NSW Police Force[9]. As such, the Police Commissioner may, amongst other things, classify and allocate the duties that members of the NSW Police Force are required to perform and instruct members with respect to the "management and control" of the NSW Police Force[10]. The Police Commissioner may also "create, abolish or otherwise deal with any position in the NSW Police Force" and "establish, or abolish, or change the name" of any branch of the NSW Police Force (other than the Senior Executive Service)[11]. The Police Commissioner may appoint a person of good character and with suitable qualifications as a police officer of the rank of constable[12]. Such a person, upon appointment, will hold a "position" in the NSW Police Force[13].
Several provisions of the Police Act address issues concerning industrial matters and members of the NSW Police Force. For example, police officers at common law are not employees but are "independent office holders exercising original authority under statute and the common law"[14]. However, s 85 of the Police Act modifies that position in the case of non-executive police officers where there are proceedings concerning "industrial matters". Section 85 appears in Pt 6B of the Police Act, which is headed "Industrial matters relating to non-executive officers". In the case of non‑executive police officers where there are proceedings concerning an "industrial matter", s 85 provides:
"The Commissioner is to be the employer of non‑executive officers for the purposes of any proceedings relating to non-executive officers held before a competent tribunal having jurisdiction to deal with industrial matters."
Pursuant to s 86, the Police Commissioner may determine the "salary, wages or other remuneration of a non-executive officer". Pursuant to s 87, the Police Commissioner may enter into an agreement with an association or organisation representing a group or class of non-executive police officers in relation to industrial matters (but only where the IR Commission has "jurisdiction to make an award or order with respect to that matter").
The Police Commissioner has three powers to dismiss a non-executive police officer. The first is the power in s 80(3) to dismiss any probationary police officer from the NSW Police Force "at any time and without giving any reason" (the operation of which was considered in the context of an unfair dismissal claim by this Court in Commissioner of Police (NSW) v Eaton[15]). The second is in s 72A, which is the subject of this appeal and is set out earlier in these reasons. A very similar power to cause the retirement of executive officers is also conferred on the Police Commissioner under s 50. The third is s 181D, which is the power to remove police officers in whom the Police Commissioner does not have confidence, having regard to their "competence, integrity, performance or conduct".
Section 72A was introduced into the Police Act in 2007 by the Police Amendment Act 2007 (NSW). Substantially identical powers to cause the retirement of persons employed in the public sector have existed for some time in New South Wales[16]. Those powers include s 56 of the Government Sector Employment Act 2013 (NSW), which replaced former s 25 of the Public Sector Employment and Management Act 2002 (NSW). Upon the second reading of the Police Amendment Bill 2007, the then Minister observed that new s 72A "will be consistent" with s 25[17]. Save for the express reference to the need for "medical grounds" in s 72A, the two powers are almost identical.
The power of dismissal conferred by s 181D(1) of the Police Act provides for the ability to remove a police officer if the Police Commissioner does not have confidence in that officer's "suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct". The Police Commissioner must give the police officer a notice setting out the grounds for the proposed exercise of that power and, once exercised, the reasons for removal pursuant to that power[18]. The police officer so removed may apply, pursuant to Div 1C of Pt 9 of the Police Act, to the IR Commission for review on the ground that her or his dismissal was "harsh, unreasonable or unjust"[19].
"(1) In this section, a reference to the employment of an executive officer is a reference to:
(b) the removal, retirement, termination of employment or other cessation of office of an executive officer ...
(2) The employment of an executive officer, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996.
(2A) Part 6 (Unfair dismissals) and Part 9 (Unfair contracts) of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of an executive officer." (emphasis added)
Critically, there is no equivalent to the foregoing provision in the case of the forced retirement of a non-executive police officer under s 72A.
Finally, there is s 218 of the Police Act, which provides:
"(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."
Because of the express provisions in the Police Act which exclude the reach of the IR Act, s 218(1) was described as "patently erroneous" by the plurality in Eaton[24]. Whilst that must be so, the plurality nonetheless also accepted that, by s 218, the Police Act recognised "the general jurisdiction of the IR Act"[25].
Part 6 of Ch 2 of the IR Act deals with "unfair dismissals". Specifically, s 83(1) in Pt 6 provides that the Part applies to the dismissal of "any public sector employee". The term "public sector employee" is defined in the Dictionary to the IR Act to include a member of the NSW Police Force[26].
On an application made under s 84(1) of the IR Act, if satisfied that a dismissal was "harsh, unreasonable or unjust", the IR Commission may make an order for, among other things, reinstatement, re‑employment, remuneration or compensation[27]. It was not in dispute that causing retirement pursuant to s 72A of the Police Act constituted "dismissal" for the purposes of s 84(1) of the IR Act[28]. In determining a claim, the IR Commission may take into account: whether the applicant was given a reason for dismissal and, if so, the nature of that reason; whether a warning of unsatisfactory performance had been given to the applicant before dismissal; the nature of the applicant's duties; whether the applicant requested reinstatement or re-employment; and such other matters as the IR Commission considers relevant[29].
The potential application of the IR Act to a non-executive police officer is not confined to unfair dismissals under Pt 6. It was not in dispute, for example, that pursuant to Pt 1 of Ch 2 of the IR Act, the IR Commission may, in a proceeding before it, make an award "setting fair and reasonable conditions of employment for employees"[30]. It has authority in a proceeding before it to approve an enterprise agreement entered into between an employer and an industrial organisation or an employer and employees[31]. It also has authority to conciliate and arbitrate an "industrial dispute"[32]. And it may enforce the provisions of the IR Act that address the right of an employee to, among other things, be free from victimisation[33]. Pursuant to s 405(1)(b) of the IR Act, any award or order of the IR Commission does not have effect to the extent that it is inconsistent with a function under the Police Act "with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty".
The principles of construction for overlapping statutes
In Eaton, the plurality expressed the applicable principle of statutory construction as follows[34]:
"Argument on the appeal proceeded upon the basis that the two statutes should be read together, in order to determine whether there is any relevant inconsistency in their respective operation. The question of the relationship between the two statutes is one of legislative intention. In Associated Minerals Consolidated Ltd v Wyong Shire Council, Lord Wilberforce pointed to several possible interpretations where the field of application of two related statutes is different, but where the later statute does not expressly repeal or override the earlier:
'The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field?'" (footnotes omitted)
After consideration of this Court's decision in Ferdinands v Commissioner for Public Employment[35], the plurality in Eaton referred to the presumption that statutes do not contradict one another[36]. In that respect, the principle that an Act of Parliament should be construed in a way that best achieves a harmonious result also informs the construction of two statutes which may share a field of operation[37]. Nonetheless, if, properly construed, it is concluded that the two statutes or provisions cannot "stand or live together", the presumption is displaced[38]. That "requires the construction of, and close attention to, the particular provisions in question"[39]. Ultimately[40]:
"the question as to the operation of the statutes remains a matter to be gleaned by reference to legislative intention. That intention is to be extracted 'from all available indications'."
The Police Commissioner focused on there being two overlapping statutes that potentially addressed the circumstances of a non-executive police officer's retirement on medical grounds. The Police Commissioner submitted that the power to cause retirement conferred by s 72A of the Police Act was necessarily inconsistent with the unfair dismissal regime contained in Pt 6 of Ch 2 of the IR Act. It followed, the Police Commissioner submitted, that Parliament must be taken to have intended that a non-executive police officer who has been retired pursuant to s 72A should not be entitled to make an application for unfair dismissal pursuant to s 84(1) of the IR Act. The power conferred by s 72A was, in that respect, said to be relevantly analogous to the power to dismiss probationary constables in s 80(3), which had been the subject of this Court's decision in Eaton, and which was found by the majority to be inconsistent with s 84(1) of the IR Act.
The Police Commissioner emphasised the important and distinct role the NSW Police Force assumes within the community of New South Wales. Police officers are given special powers, are entrusted with the use of deadly weapons not available to members of the public, and are authorised, in defined circumstances, to use reasonable force in the course of carrying out their duties. They are commonly exposed to traumatic events and to violence. The NSW Police Force is a hierarchical command structure where lawful orders must be obeyed and where the Police Commissioner is required to manage and control the entire Police Force. None of these features were in dispute.
Construing s 72A of the Police Act and Pt 6 of Ch 2 of the IR Act together
Section 72A is a provision which has objective criteria for its operation. It relevantly confers a discretion on the Police Commissioner to retire a non-executive police officer if the following three conditions are present: the "police officer is found on medical grounds to be unfit to discharge or incapable of discharging [her or his] duties"[41]; the police officer's "unfitness or incapacity" appears likely to be of a "permanent nature"[42]; and the "unfitness or incapacity" is not the result of "actual misconduct on the part of the officer, or from causes within the officer's control"[43].
Section 72A is distinguishable from s 80(3), as considered in Eaton, for two reasons. First, s 80(3) is concerned with probationary police officers, who undergo a process to achieve confirmation of their appointment as police officers. Their position, as the plurality observed, may be contrasted with that of a police officer who has been confirmed and "whose history in the Police Force may need to be taken into account by way of review of a dismissal"[44]. Non‑probationary police officers also have a greater expectation of job security than probationary police officers, "for the simple reason that they are not on probation"[45].
Secondly, the terms of s 80(3) are strongly suggestive of the Police Commissioner's "unfettered" power to dismiss[46]. In that respect, the Police Commissioner "may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason"[47]. As the plurality observed, these words convey more than a power to dismiss without giving reasons. They imply "an unfettered power and therefore that the decision is not to be subjected to a review on the merits"[48]. No equivalent language is found in s 72A. Section 72A, as previously stated, operates by reference to three objective criteria, the satisfaction of which enlivens the Police Commissioner's discretion to cause the retirement of a non-executive police officer.
It is true that, as with s 80(3), there is no obligation on the part of the Police Commissioner to give reasons for an exercise of power under s 72A. For the reasons given by the plurality in Eaton, this is a clear "indication" of parliamentary intention that supports the approach of the Police Commissioner[49]. It arguably jars with the discretion given to the IR Commission to take into account whether a reason has been given for dismissal and, if given, the nature of that reason[50]. However, the fact that the IR Commission may take into account whether a reason has been given for dismissal also indicates that a claim for unfair dismissal is capable of being determined in the absence of such reasons. Moreover, the objective criteria contained within s 72A provide a stable basis on which the IR Commission could assess whether an officer's dismissal was "harsh, unreasonable or unjust" for the purposes of s 84 of the IR Act even in the absence of reasons having been given.
[1]
Section 72A was repealed by Sch 3 to the Government Sector Employment Legislation Amendment Act 2016 No 2 (NSW) and was replaced with an equivalent power inserted as s 94B in the Police Act. ↑
[2]
Commissioner of Police (NSW) v Cottle (2019) 291 IR 215. ↑
[3]
Cottle v Commissioner of Police (NSW) (2020) 298 IR 202 ("Cottle Appeal"). ↑
[4]
In what follows, references to those two Acts are to the form each was in when Mr Cottle was notified of his retirement under s 72A on 1 December 2016. ↑
[5]
Police Act, ss 3(1), 4, 5, 62 and 63. See also Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1 at 21 [51] per Crennan, Kiefel and Bell JJ. ↑
Cottle Appeal (2020) 298 IR 202 at 217 [60] per Bell P (Basten and Payne JJA agreeing). See also New South Wales v Briggs (2016) 95 NSWLR 467 at 481‑484 [50]-[63] per Leeming JA. ↑
See for example s 76 of the Teaching Service Act 1980 (NSW); s 68Q(3), formerly s 68I, of the Transport Administration Act 1988 (NSW). ↑
New South Wales, Legislative Council, Parliamentary Debates (Hansard), 27 November 2007 at 4360. ↑
[23]
Section 44 was also repealed by Sch 3 to the Government Sector Employment Legislation Amendment Act 2016 No 2 and s 44(2) was replaced with an equivalent provision excluding the reach of the IR Commission in relation to any matter, question or dispute relating to the employment of an executive officer: Police Act, s 42(1). ↑
[24]
(2013) 252 CLR 1 at 30 [87] per Crennan, Kiefel and Bell JJ. ↑
[25]
Eaton (2013) 252 CLR 1 at 31 [90] per Crennan, Kiefel and Bell JJ. ↑
[26]
See also Eaton (2013) 252 CLR 1 at 18 [43], 23 [61] per Crennan, Kiefel and Bell JJ. ↑
[27]
IR Act, s 89. See also Eaton (2013) 252 CLR 1 at 24 [63] per Crennan, Kiefel and Bell JJ. ↑
IR Act, Pt 2 of Ch 2; see specifically Div 2. ↑
IR Act, ss 210 and 213; see generally Pt 1 of Ch 5. ↑
Eaton (2013) 252 CLR 1 at 18‑19 [45] per Crennan, Kiefel and Bell JJ, quoting Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 at 553. ↑
[36]
Eaton (2013) 252 CLR 1 at 19‑20 [47]-[48] per Crennan, Kiefel and Bell JJ. ↑
[37]
Eaton (2013) 252 CLR 1 at 28 [78] per Crennan, Kiefel and Bell JJ, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70] per McHugh, Gummow, Kirby and Hayne JJ. ↑
[38]
Eaton (2013) 252 CLR 1 at 19‑20 [48] per Crennan, Kiefel and Bell JJ, quoting Ferdinands (2006) 225 CLR 130 at 138 [18] per Gummow and Hayne JJ. ↑
[39]
Eaton (2013) 252 CLR 1 at 20 [48] per Crennan, Kiefel and Bell JJ. See also Ferdinands (2006) 225 CLR 130 at 137-138 [18] per Gummow and Hayne JJ. ↑
[40]
Eaton (2013) 252 CLR 1 at 19 [46] per Crennan, Kiefel and Bell JJ, quoting Wyong Shire Council [1975] AC 538 at 554 per Lord Wilberforce. ↑
Eaton (2013) 252 CLR 1 at 27 [73] per Crennan, Kiefel and Bell JJ. ↑
Eaton (2013) 252 CLR 1 at 13 [30] per Heydon J. ↑
Eaton (2013) 252 CLR 1 at 27 [74] per Crennan, Kiefel and Bell JJ. ↑
Eaton (2013) 252 CLR 1 at 31 [90] per Crennan, Kiefel and Bell JJ. ↑
Eaton (2013) 252 CLR 1 at 27 [74]-[75], 28 [77] per Crennan, Kiefel and Bell JJ. ↑
cf Eaton (2013) 252 CLR 1 at 19 [46], 27 [72] per Crennan, Kiefel and Bell JJ. ↑
Cottle Appeal (2020) 298 IR 202 at 219 [76] (Basten and Payne JJA agreeing). ↑
Cottle Appeal (2020) 298 IR 202 at 218 [70] (Basten and Payne JJA agreeing). ↑
In any event, consideration of the so called "anomalous" consequences of a particular construction of legislation is a matter to be approached with caution: see Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511 at 518-519 per Black CJ and Sundberg J. ↑
cf Eaton (2013) 252 CLR 1 at 10 [19] per Heydon J. ↑
Pursuant to s 89(5) of the IR Act, compensation may be ordered where the IR Commission considers that it would be "impracticable to make an order for reinstatement or re‑employment". ↑
Eaton (2013) 252 CLR 1 at 30 [87] per Crennan, Kiefel and Bell JJ. ↑
Schedule 3.22 [3] to the Statute Law (Miscellaneous Provisions) Act 2014 (NSW). ↑
Parties
Applicant/Plaintiff:
NSW Commissioner of Police
Respondent/Defendant:
Cottle
Legislation Cited (10)
Police Amendment Act 2007(NSW)
Public Sector Employment and Management Act 2002(NSW)
(NSW)[63], the Transport Administration Act 1988(NSW)
Statute Law (Miscellaneous Provisions) Act 2014(NSW)
Division 1C of Pt 9 of the Police Act modifies what would otherwise be the procedure for reviewing a case of unfair dismissal in the IR Commission. For example, unlike the position prevailing under the IR Act, an applicant has the burden of establishing that her or his removal was "harsh, unreasonable or unjust"[20]. In making its decision, the IR Commission must have regard to "the interests of the applicant" and "the public interest", which includes "the interest of maintaining the integrity of the NSW Police Force"[21]. Amongst other modifications, s 181G alters Pt 6 of Ch 2 of the IR Act; s 181H provides that the Police Commissioner is not compellable to give evidence; s 181I preserves the privilege against self-incrimination as provided under the Evidence Act 1995 (NSW); and s 181K makes changes to the permitted constitution of the IR Commission for a review under Div 1C.
The Police Act expressly excludes the application of the IR Act in three places[22]. One of these is s 44, which excludes the power of the IR Commission to review the retirement (s 50) or removal (s 51) of an executive officer as a possible unfair dismissal. Section 44(1)-(2A) provides[23]:
Section 72A does not expressly exclude the reach of the IR Act in the case of non‑executive police officers. In that respect, it is entirely unlike the treatment of executive officers under the Police Act. As stated above, the power to cause the retirement of executive officers under s 50 has been, by reason of s 44(2A), expressly immunised from the reach of Pt 6 of Ch 2 of the IR Act. That is a very powerful indication against the conclusion that the power to cause the retirement of non‑executive police officers under s 72A shares the same immunity[51].
The language of s 72A does not, by reason of necessary implication, exclude the operation of Pt 6 of Ch 2 of the IR Act. For the reasons already expressed, s 72A confers a power to cause retirement substantially similar to those powers that have been enacted in relation to other public sector employees, and which now apply more broadly to all public sector or public service employees[52]. The power is thus not unique to the NSW Police Force. When retired, those public sector employees generally enjoy rights to seek review in the IR Commission for unfair dismissal. Thus, as Bell P correctly observed in the Court of Appeal, "it would be anomalous in the extreme" if non‑executive police officers were to be denied a remedy afforded generally to public sector employees[53]. As Bell P also correctly observed, there is no necessary inconsistency between the power to cause retirement under s 72A and rights of review under the IR Act that would justify a conclusion that s 84(1) of the IR Act should "yield" to the Police Act[54].
Further, the elaborate modification of rights of review for police officers removed pursuant to s 181D of the Police Act does not support a conclusion that s 72A is, by implication, inconsistent with Pt 6 of Ch 2 of the IR Act. Contrary to the submissions of the Police Commissioner, the rights conferred by Div 1C of Pt 9 of the Police Act, and the modifications made by that Division to Pt 6 of Ch 2 of the IR Act, do not support a broad proposition that Parliament intended to treat the employment of police officers differently from the employment of other public sector employees. Rather, they support the narrower proposition that Parliament intended to confer such rights and make such modifications only in the case of a police officer removed for reasons related to the officer's "competence, integrity, performance or conduct"[55]. If Parliament had wanted to prescribe similar rights and modifications in the case of an exercise of the power to cause retirement of non-executive police officers on medical grounds, or indeed had wanted to immunise the exercise of such power entirely from the reach of Pt 6 of Ch 2 of the IR Act[56], it could easily have done so through legislative means. Significantly, Parliament has not done so.
No necessary anomaly arises from the conclusion that non‑executive police officers dismissed for "cause" under s 181D would have lesser review rights than non‑executive police officers retired "without cause" under s 72A. The basis for that supposed anomaly is an assumption that a non-executive police officer retired under s 72A should not be entitled to the same rights of review as other public sector employees simply because lesser rights are conferred in the case of a police officer's removal under s 181D[57]. The correctness of that assumption has not been demonstrated. Moreover, it has not been shown that the reasons suggested as to why Parliament might have reposed a power in the Police Commissioner to cause the retirement of a non‑executive police officer under s 72A, namely, the unique functions of the NSW Police Force and the Police Commissioner's responsibility for the management of the NSW Police Force, were necessarily antithetical to the right of review for unfair dismissal by the IR Commission.
Nor is it correct to observe that the "primary" remedies for unfair dismissal, namely, reinstatement or re-employment[58], are not apt to be applied in the case of a review of a non-executive police officer's retirement caused by an exercise of the power in s 72A of the Police Act[59]. First, this overlooks that compensation is another remedy which may be available[60]. Secondly, that which might be "harsh, unreasonable or unjust" for the purposes of s 84(1) of the IR Act could well include conclusions reached about a police officer's degree of unfitness, the nexus between the unfitness and the discharge of an officer's position, and the cause of the unfitness. It could also include matters going to the discretionary power to cause a police officer to be retired. In a given case, it might be appropriate to reinstate an officer because of a mistaken, and thus arguably unjust, conclusion concerning the police officer's unfitness. It might be appropriate to re‑employ a police officer in a different position because it would be "harsh, unreasonable or unjust" not to do so. Where it would be impracticable to order remedies of this type, the IR Commission would then still have the power to order compensation[61].
Finally, it may be accepted that the NSW Police Force performs unique functions. But that characterisation of the Police Force must yield to the terms of the IR Act and its express inclusion, for the purposes of Pt 6 of Ch 2 of the IR Act, of its members. It must also yield to the terms of both ss 85 and 218 of the Police Act. As already mentioned, whilst s 218 has in part been found to be "patently erroneous"[62], it does not mean that it should not otherwise be included as an "indication" of parliamentary intent. The Court of Appeal was thus correct to emphasise the presence of both ss 85 and 218 in the Police Act.
The appeal should be dismissed with costs.
GAGELER J. The Police Commissioner did not dispute that Pt 6 of Ch 2 of the IR Act is expressed in terms capable of application to the compulsory retirement on medical grounds of non-executive police officers under s 72A of the Police Act in the same way as those terms indisputably apply to the compulsory retirement on medical grounds of other categories of public sector employees under materially identical provisions of the Teaching Service Act 1980 (NSW)[63], the Transport Administration Act 1988 (NSW)[64] and the Government Sector Employment Act 2013 (NSW)[65]. The Police Commissioner nevertheless argued that compulsory retirement on medical grounds of non-executive police officers under s 72A of the Police Act "is not apt to be addressed under general industrial relations legislation". The overarching theme of the argument was that the peculiar nature of police work is such that the Police Commissioner must have unique power to determine the merits of the compulsory retirement of a police officer on medical grounds. A complementary theme of the argument was that the modified application of Pt 6 of Ch 2 of the IR Act to the summary removal of a police officer in whom the Police Commissioner does not have confidence under Div 1C of Pt 9 of the Police Act "indicates that Parliament intended the Police Act to embody special provisions, to the exclusion of the general provisions of the IR Act regarding the remedies available in relation to discipline and dismissal of police officers".
The complete answer to the Police Commissioner's argument in my opinion lies in the express statement of legislative intention in s 218(1) of the Police Act that the IR Act "is not affected by anything in" the Police Act. As I said in Commissioner of Police (NSW) v Eaton[66], "the meaning and legal effect of the statement is that no provision of the Police Act is to be construed as operating to alter the legal operation of any provision of the IR Act".
Of course, the legislative intention stated in s 218(1) of the Police Act is not unqualified. Plainly, it is qualified by the operation of the provisions of the Police Act referred to in s 218(2) (noting that the obvious error in s 218(2) to which attention was drawn in Eaton[67] has since been legislatively corrected[68]). Plainly, it is qualified by the operation of other provisions of the Police Act that are expressed to exclude provisions of the IR Act, of which Div 1C of Pt 9 of the Police Act is an example. According to the plurality in Eaton, it is also qualified by the "impliedly inconsistent"[69] operation of s 80(3) of the Police Act.
However, as the plurality in Eaton recognised[70] in referring to Rose v Hvric[71], although the express statement of legislative intention in s 218(1) of the Police Act must yield to "[e]xplicit or implicit contradiction", the express statement of legislative intention must be taken to prevail against "merely inferential contradiction"[72]. Put in other words drawn from Rose v Hvric, "while an exception ... may be effected by an inconsistent implication in [another] provision ... it cannot result from an enactment which is not inconsistent in meaning and therefore in operation, even though the [other provision] provide[s] ground for a conclusion that the draftsman's train of thought, if logically pursued, would have led him to enact the exception"[73].
The Police Commissioner's argument, on analysis, rises no higher than one of inferential contradiction. The considerations on which the Police Commissioner relied are insufficient to create a further qualification to the express statement of legislative intention in s 218(1) of the Police Act.
Accordingly, I agree that the appeal should be dismissed.