Pinchen v Commissioner of Police, New South Wales Police Force

Industrial Relations Commission (NSW)|2022-11-17

Introduction

This decision concerns the interpretation of s 181G(1)(b) of the Police Act 1990 (NSW) and s 85 of the Industrial Relations Act 1996 (NSW), which together prescribe the time within which a police officer may make an application to the Commission for a review of his or her removal from the Police Force on the grounds that the removal is harsh, unreasonable or unjust.

Background

Mr Pinchen was a Senior Constable in the New South Wales Police Force. On 22 August 2022 the Respondent, the Commissioner of Police, Karen Webb APM, made an order under s 181D(1) of the Police Act removing Mr Pinchen from the New South Wales Police Force. The order was served on Mr Pinchen on 26 August 2022 at 4.50pm. Pursuant to s 181D(5) the removal took effect on the day the order was made.
On 9 September 2022 Mr Pinchen filed an application pursuant to s 181E(1) of the Police Act seeking a review of the Commissioner's order. It is not in dispute that if the day Mr Pinchen was served with the order is included in the calculation of time, Mr Pinchen's application was filed on day 15. If the day of service of the order is not counted, the application was filed on day 14.
On 5 October 2022 the Commissioner of Police filed a notice of motion, supported by an affidavit sworn by the Commissioner's solicitor, Christa Lenard, seeking an order dismissing, or otherwise setting aside, the application for review. The Commissioner of Police asserted that pursuant to s 181G(1)(b)(i) of the Police Act, the application was required to have been made within 14 days, starting on the day on which Mr Pinchen was given a copy of the order to which the application relates. According to the Commissioner, as Mr Pinchen was given a copy of the order on 26 August 2022 and his application was filed on 9 September 2022, his application was filed one day out of time. Pursuant to s 181G(1)(b)(ii) of the Police Act the Commission does not have any discretion to accept an application filed out of time. The Respondent therefore contended that the application for review must be dismissed for want of jurisdiction.

The Relevant Statutory Provisions

Section 181E (1) of the Police Act provides as follows: (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 (referred to in this Division as the "Commission") for a review of the order on the ground that the removal is harsh, unreasonable or unjust.
Section 181G(1) of the Police Act provides as follows: (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications-- (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read-- (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless-- (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave.
As may be observed, s 181G(1)(b)(i) and via that section, s 85 of the Industrial Relations Act, are the sections applicable to the present application.
Section 85 of the Industrial Relation Act provides as follows: (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and-- (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to-- (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal.
It is not in dispute that pursuant to s 181G(1)(b)(ii) the Commission may not extend the time within which an application under s 181E(1) may be brought: Reid-Frost v Industrial Relations Commission of New South Wales [2013] NSWCA 161 at [3] (Basten JA); Bailey v Commissioner of Police [2014] NSWIRComm 53 (Walton J, P). What is in dispute is whether the phrase "starting from the day on which the applicant is given a copy of the order" means that the 14-day period stipulated in s 181G(1)(b)(i) starts to run on that very day, or on the following day.
It is also not in dispute that for the purposes of calculating time under s 181G(1) (b)(i), a 'day' is indivisible, such that, whether an act occurs at 12:01am or 11:59pm, - or in the present case, at 4:50pm - the act will have occurred on that day: Prowse v McIntyre (1961) 111 CLR 264; Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation [1965] HCA 20; 113 CLR 662; Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421.

The Submissions of the Commissioner of Police

Mr M Watts, counsel for the Respondent (and applicant on the motion), made oral and written submissions which may be summarised as follows: 1. section 181G of the Police Act makes it clear that the provisions in Part 6 of Chapter 2 of the Industrial Relations Act apply, but with important statutory modifications; 2. the removal, by s 181G(1)(b)(ii), of any discretion on the part of the Commission to accept an application for review out of time, illustrates a statutory intention to impose a rigid deadline for the filing of applications under s 181E of the Police Act; 3. an application under s 181E(1) of the Police Act is not an unfair dismissal claim under the Industrial Relations Act, which may be made no later than 21 days after the dismissal, but rather is an application made under the Police Act and must be filed within 14 days starting from [on] the day on which the applicant is given a copy of the order issued under s 181D; 4. while it is commonly accepted that where a written instrument requires a period of time to be computed 'from' a specified date, the day from which the period runs is excluded, there is no rigid rule to that effect and the context may indicate that the word 'from' is intended to include the specified date: Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation [1965] HCA 20; 113 CLR 662 at 668 (Barwick CJ); Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 at 440-441 (Gibbs J, as he then was); Chief Commissioner of Land Tax v Macary Manufacturing Pty Ltd [1999] NSWCA 471; 48 NSWLR 299 at [7] (Spigelman CJ, see also Mason J at [89] and Sheller JA at [97]-[98]); 5. section 36(1) of the Interpretation Act 1987 (NSW), (which provides: "If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event"), is reflective of the so-called 'general rule', however s 5(2) of the Interpretation Act, (which provides: "This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned"), also reflects the position taken in the authorities, that is, that context may displace the 'general rule'; 6. the word "from" in s 181G(1)(b)(i) is supported by surrounding words that provide context and consistent with the proper approach to statutory construction, each must be given work to do: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71]; 7. the word "starting", appearing adjacent to and immediately preceding the word "from" contextualises the preposition, and in particular, makes clear when the 14 day period commences to run - the phrase "starting from" is more akin to, and should be understood as being consistent with, the use of the word "on" or "at", which are words which are generally understood at common law, to be inclusive of the day on which the relevant act occurs: Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277 at 285 - 286 (Jordan CJ with Street J and Maxwell AJ agreeing); Watson v Uniframes Ltd [1994] FCA 880, 55 FCR 556 at [9] (Davies J); 8. considered in context, and giving meaning to all the words that appear in s 181G(1)(b)(i), the 14-day period must commence on the day the police officer receives their removal order; 9. such construction is consistent with the ordinary understanding of the phrase in s 181G(1)(b)(i) of the Police Act and the words used in the provision amount to a 'contrary intention' within the meaning of s 5(2) of the Interpretation Act, displacing the operation of s 36(1) of that same statute; 10. that the construction contended for by the Applicant, which blends the words used in s 85(1) of the Industrial Relations Act with the words of s 181G(1)(b)(i) of the Police Act results in a nonsensical provision, particularly as the date of dismissal and the date the applicant is given a copy of the removal order may be different (see s 181D(5)). A portmanteau expression of the two provisions would thus (incomprehensibly) read: An application under this Part must be made not later than [14 days, starting from the day on which the applicant is given a copy of the order to which the application relates] after the dismissal of the employee. 1. the general words in s 85(1) of the Industrial Relations Act, "after the dismissal of the employee", must give way to the specific words that the legislature has compelled to be inserted by way of s 181G(1)(b)(i) of the Police Act (see eg Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 242 ALR 152 at [130] where the maxim generalia specialibus non derogant is explained and applied), with the result that the word "after" no longer appears in the clause at all - the word cannot be retained once the statutory modification is made; 2. the conclusion that the day on which the removal order is served is included in the 14-day period is consistent with the view taken by Walton J, P (as his Honour then was) in Bailey v Commissioner of Police, albeit that the proper construction of s 181G(1)(b)(i) was not in issue in that matter as both parties agreed that the application for review was unarguably filed several days out of time, and as a matter of comity the Commission should follow that decision, as it cannot fairly be contended that it is plainly wrong.
The position of the Commissioner of Police is perhaps best, and most persuasively explained by Mr Watt's opening oral submission: "A retailer is holding a sale and that sale is advertised in a newspaper advertisement that reads, "sale for seven days starting from Monday". Now, any person that would read that advertisement, we would say, would understand that the sale starts on the Monday and that if they go to the store on the Monday the sale would be on and that it would go for seven days. Monday, Tuesday, Wednesday, Thursday, Friday, Saturday, Sunday. If they turned up the following Monday the sale would be over because it's a sale for seven days starting from Monday. We say that that's an entirely orthodox and straightforward understanding of the words used in that advertisement and in particular the words "starting from". What Mr Pinchen effectively contends for, to adopt his position on this motion to that hypothetical, is that the sale for seven days starting from Monday, wouldn't actually start on Monday, it would start on the Tuesday and if a person turns up to the store on the Monday, and I suspect there might be a few of those people, they would be told, "no, no the sale hasn't started today it starts on Tuesday and it runs for seven days from the Tuesday and incorporates the following Monday."
The oral and written submissions made Mr Gibian, senior counsel for the Applicant, Mr Pinchen (and respondent on the motion) in response, may be summarised as follows: 1. section 181G(1) of the Police Act indicates that the provisions of the Industrial Relations Act apply to an application under s 181E "in the same way" as they apply to an unfair dismissal application, subject only to the modifications (not replacements) identified in that section; 2. relevantly s 85(1) of the Industrial Relations Act is the operative provision which imposes the time limit on the making of an application under s 181E, which "is to be read" subject to the modification made by s 181G(1)(b)(i), the effect of which is twofold: 1. the time limit is shortened by requiring the reference to 21 days to be read as a reference to 14 days; and 2. the day after which the time period starts to run is identified as "the day on which the applicant is given a copy of the order" rather than the date of the dismissal [removal]; 1. thus s 85(1) as modified by s 181G(1)(b)(i) reads as follows: An application … must be made not later than [14] days after the [day on which the applicant is given a copy of the order to which the application relates] or An application … must be made not later than [14] days after the dismissal of the employee [starting from the day on which the applicant is given a copy of the order to which the application relates] 1. the word "after" is not removed from s 85(1) by s 181G(1)(b)(i) as that sub-section does not qualify the words "must be made not later than xx days" (and so they must remain and be given effect to) and thus if the word 'after' is omitted (as submitted by the Respondent), the provision would make no sense - the provision can only be consistent with ordinary grammatical English if the word "after" forms part of the relevant statutory command; 2. the important words are "must be made not later than [14] days after" an event - in s85(1) the event is "the dismissal", in s181G(1)(b)(i) the event is "the day on which the applicant is given a copy of the order"; 3. the words "starting from" is not intended to do anything other than identify that instead of the dismissal, the relevant event for the purpose of calculating the applicable time period, is the giving of the removal order to the police officer; 4. this interpretation makes sense in circumstances where s181D(5) alters the common law position whereby a termination of a contract of employment takes effect upon the notice of termination being served, or upon the expiration of the period of notice; 5. the respondent's focus on the meaning to be given to the word "from" and the phrase "starting from" is a distraction - what is being measured is the number of days after the relevant event; 6. s 36(1) of the Interpretation Act supports the view that time is be reckoned by not counting the day on which the order was given to the applicant as s 181G(1)(b)(i) provides that time is to reckoned from an act or event being the "the day on which the applicant is given a copy of the order to which the application relates"; 7. while s 5 of the Interpretation Act provides that the provisions of that Act may be displaced by statutory language indicating a contrary intention, s 181G(1)(b)(i) does not indicate a contrary intention to the general rule in s 36(1) merely by identifying an "act or event" as the starting date from which time runs - clear language such as "commencing on" or 'beginning on" is required to displace the general rule: Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal 21 FCR 524 at 526- 527 (Beaumont J); Watson v Uniframes Ltd [1994] FCA 880; 55 FCR 556 at [9] (Davies J); 8. the authorities distinguish the use of the expressions where time starts "on" a particular date from expressions where time runs "from" a particular date or event, the former expression indicating that the day on which the event occurred is included, while the latter expression indicates that the day on which the event occurred is required to be left out of account and the first day is the day following the event: Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277 at 285 - 286 (Jordan CJ with Street J and Maxwell AJ agreeing); Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation [1965] HCA 20; 113 CLR 662 at 668 (Barwick CJ); Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 at 440-441 (Gibbs J, as he then was); 9. the Respondent's construction involves reading s181G(1)(b)(i) as if it says something which it simply does not: that is, as if it reads "starting on" rather than "starting from"; 10. a provision which requires that an act be done 14 days starting from a particular day is quintessentially a provision by which, in the words of s 36(1) of the Interpretation Act, a period of time is prescribed "dating from a given day, act or event"; 11. Bailey v Commissioner of Police cannot be relied upon to support the Respondent's construction because: 1. the applicant was self-represented and the required date of filing of his application for review was not in issue or subject to argument; and 2. contrary to the position advanced by the Commissioner of Police, Walton J, P in fact accepted the construction of the provisions advanced by Mr Pinchen in these proceedings (at [11]), (specifically the second of the two portmanteau expressions of the two provisions advanced by Mr Pinchen as set out above), but he then made an error in the calculation of time described at [12]; and 1. s 181E is a protective and beneficial provision which allows a police officer to challenge an order of the Police Commissioner which has a dramatic effect on their career and life, such that its effect should not be cut down by reading s 181G(1)(b)(i) too broadly: Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541 at 543.
Mr Gibian drew my attention to a number of persuasive authorities.
In Tio v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 53; 126 FCR 185 the Full Court (Lindgren, Stone and Downes JJ) had to answer the question: "Was the Minister's decision (made on 5 June 2002) to proceed with the cancellation of visas made after the end of the period of 90 days referred to in par 135(4)(b) of the Migration Act 1958 (Cth)?" Section 135(4)(b) of the Migration Act relevantly provided: "If: (a) … (b) at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation; the Minister is not to proceed with the Cancellation.
The question which had arisen, and which the Full Court was to determine, concerned the time of commencement of the period of 90 days referred to in s 135(4)(b). Lindgren J found at [12] that the words "commencing at the time specified in the notice" were to be construed as having the same effect as the words "commencing on the date specified in the notice" and, consistent with Darwin Broadcasters and Watson v Uniframe, this meant that the date specified in the notice would be counted as the first day of the 90-day period.
Importantly for this matter, his Honour then went on to say at [13]: If, on the other hand, par 135(4)(b) had said "commencing from the date specified in the notice", the date 7 March would be required to be left out of account and the first day of the 90-day period would be 8 March, so that the period would expire at the end of 5 June 2002: Acts Interpretation Act 1901 (Cth) subs 36(1) (and, in the context of private instruments, compare Forster v Jodedex Australia Pty Ltd (1972) 127 CLR 421 at 440-441, per Gibbs J). But, again, par 135(b)(b) does not say that.
I consider that "commencing from" and "starting from" have the same meaning, and while Lindgren J's remarks were obiter dicta, such remarks, of an experienced judge of a superior appellate court, who was in the majority, carry considerable weight.
Mr Gibian also drew my attention to the remarks of Beaumont J in Darwin Broadcasters, although that decision ultimately does little to resolve the present conundrum. While the issue in that case concerned the ability of the Federal Court to extend the time in which an application could be lodged for an order for review of a decision of the Australian Broadcasting Tribunal to grant a radio licence, in circumstances where, inter alia, the proceedings for the extension were brought outside the 60-day time limit set by the Broadcasting Act 1942 (Cth), the computation of that 60-day period was also considered.
The legislation in that case prescribed the 60-day period as "commencing on the day on which the notice is given". His Honour expressed the following opinion at 526-527 which, I observe, is not necessarily inconsistent with the submissions made by Mr Watts: A question arises as to how the period of 60 days is to be calculated. By s 36(1) of the Acts Interpretation Act 1901 (Cth), it is provided that where in any Act any period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event. In the present case, the period is to commence "on" a certain day. It follows, in my opinion, that the Acts Interpretation Act does not apply here. In the first place, the Acts Interpretation Act applies where the period is to date "from" a given day, act or event. This can, I think, be distinguished from a provision that a period is to commence "on" that day. Even if that not be so, the question still remains whether s 83A(11) has indicated a "contrary intention" within the meaning of the Acts Interpretation Act. In my opinion, such an intention does appear from the choice of the language used in s 83A(11). By its terms, s 83A(11) should, I think, be taken to be indicating that the 60-day period was to commence on 1 December 1989 (being the date on which the statutory notice was given), and to expire at midnight between 29 and 30 January 1990: see Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, per Mason J at 453).
In the present case of course, the period does not commence "on" a certain day, but rather the period is computed "starting from" a certain day. According to Mr Gibian "starting from" means the same as "from" simpliciter and cannot be regarded as meaning "on", as contended by the Applicant. Mr Gibian invited me to infer that if the legislature intended to start the 14-day period on the day the officer was given the removal order the parliamentary draftspersons would have used the word 'on', rather than 'from', given the long-established judicial approach to the calculation of time when those words are used.
In response to Mr Watt's hypothetical 7-day sale "starting from Monday", Mr Gibian submitted that the "example is entirely inapt because it is referring to a circumstance in which an event starts on a particular time, that is, an event that starts at a particular time, not a provision which is setting a date on which something finishes, a "not later than" provision."
Notably Mr Watts was unable to point me to any authority where the preposition 'from', when used in a statutory provision concerning the calculation of a period of time, with or without an additional verb such as 'starting' or 'commencing', had been interpreted so as to include the nominated day or event in the calculation.
Lastly, Mr Gibian referred to me to the decision of Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541 in which the Court of Appeal was required to determine whether the jurisdiction of the Government and Related Employees Appeal Tribunal under the Government and Related Employees Appeal Tribunal Act 1980, ss 20 and 21, was limited only to appeals involving a decision concerning the promotion of an employee. The court determined that it was not so limited, and that the Tribunal could also hear appeals where the officer was transferred to a position which had the potential for financial advantage. In finding in favour of the broader construction Kirby P (as his Honour then was) stated at 543 - 544: "Thirdly, and most importantly, the provision for appeals is a beneficial one, conferring on employees of the Public Service entitlements to the review of decisions which were not enjoyed by Crown servants by the prerogative or at common law and which are not generally enjoyed, at least to the same extent, by employees in the private sector: see Suttling v Director-General of Education (1985) 3 NSWLR 427. The entitlement to appeal conferred by s 20 is a beneficial entitlement of employment. It should not be excluded or confined by the exceptions provided in s 21, except to the extent that those exceptions are clear. Any doubt about the scope of s 21(1)(e) should be resolved in favour of the enhancement of the right of appeal and against its diminution by the operation of the exclusion. In the present case it is not essential to rely upon this rule of construction. The language, context and legislative history of s 21(1)(e) make the meaning sufficiently clear. But the recognition of the beneficial operation of the statute provides another reason for giving the paragraph the construction urged by the appellant and for rejecting the respondent's appeal to the suggested general purpose and intended operation of the Act."
The submissions of Mr Pinchen in this matter mirrored the view Kirby P took in Cole, that is, it is not necessary to rely upon this rule of construction in this case as the meaning of s 181G(1)(b)(i) is clear, but to the extent it is not, I should resolve the doubt in favour of the Applicant who faces an unextendible time limit in which he might access the beneficial entitlement to seek a review of an order pursuant to s 181E.

Other Sources of Guidance

Neither party directly referred to the Second Reading speech made in respect of the Police Service Amendment Bill 1997 which introduced, inter alia, Division 1C into Part 9 of the Police Service Act (as the Police Act was then called), although it was referred to in a footnote in the Commissioner's written submissions and in Bailey v Commissioner of Police. It is well accepted that such extrinsic materials may be considered to understand the context of the statutory text, although it cannot displace the meaning of the statutory text: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39].
The Second Reading Speech made in the Legislative Assembly on 18 June 1997 by the Minister for Police, the Hon Mr Whelan, reveals a number of important matters which contextualise s 181G(1)(b)(i) including: 1. the Bill dealt with a "single issue", namely the "industrial rights flowing from the termination of employment of police officers under the provisions commonly referred to as the commissioner's confidence"; 2. the amendments arose from the Royal Commission into the New South Wales Police Service conducted by Justice Wood which had uncovered extensive corruption within the Police Service (as it was then known); 3. that the Government regarded the ability of the Commissioner of Police to divest the Service of those who failed to meet its standards as "crucial to reform the Police Service": "Without the means to quickly and efficiently terminate the employment of individuals who cannot or will not comply with minimum standards of integrity, conduct and competence, it is doubtful that we will ever reap the full benefits of the reform process"; 4. that the Government considered that the old system "did not work" and that it was "cumbersome, protracted and legalistic. It effectively meant that the corrupt and the hopeless could seek sanctuary and remain within the Police Service. The system required the proving of departmental charges before the Police Tribunal. After the Tribunal had made a recommendation, action was taken on the basis of its findings. The action was then subject to appeal to the Government and Related Employees Appeal Tribunal, GREAT, which routinely put dismissed officers back into the service. The system could be manipulated and beaten. Corrupt officers knew that and took comfort from it…. The system sheltered those who least deserved it, and failed the people of New South Wales, who looked to the Police Service to be a model of honesty, integrity and community service."; 5. in November 1996 the Parliament "threw out the old system" in response to an interim report of the Royal Commission, by introducing s 181D into the Police Service Act, thereby giving the Commissioner of Police "a fast and effective way to rid the service of those who had forfeited the right to be police officers in this State"; 6. following the introduction of s 181D the exercise of the Commissioner's power to dismiss was subject to a limited review by the Supreme Court on administrative law or judicial review principles. It was agreed that the post-dismissal process - the appeal rights - should be revisited after the final report of the Royal Commission was delivered; 7. the Bill represented the Government's response to the options proposed in the Royal Commission's final report and only concerned the processes after a police officer has been removed from the Police Service; 8. the Government sought to "strike a balance between the spirit of the Royal Commission's recommendations and existing industrial law and practice in New South Wales" and it was the view of the Government that the "result is a process that retains the Commissioner's power to ensure that the service is able to quickly free itself of those who failed to live up to professional standards of integrity, competence and behaviour, but also protects against injustice"; and 9. that it was the view of the Government that: "the Bill accommodates the unique nature of policing, overcomes the problems of past appeal processes, and puts the police officer on a similar footing to other employees under the Industrial Relations Act."
The following remarks of the Minister are particularly germane: "The Bill provides police officers with the right to go to the Industrial Relations Commission to seek review of a dismissal decision. Again, while similar to the protection provided to other workers under the unfair dismissal provisions of the Industrial Relations Act, it is not identical as there are some important differences… For the sake of clarity I should stress that the lodging of an application for review will not stay the Commissioner's decision. What that means in practice is that the applicant becomes a former police officer from the time the Commissioner signs the order to dismiss him or her. This is an enormous change in the past, when police officers not only abused the system to get back into the service, but also made it virtually impossible to get them out in the first place. It is in the interests of the applicant, the community and the Police Service that any reviews arising out of dismissals be finalised quickly. That is why the bill provides that an application for review must be lodged within 14 days, and requires the hearing be commenced within four weeks. Hearings under Division 1C of the Police Service Act will be conducted by the IRC in a similar way to hearings under Part 6 of Chapter 2 of the Industrial Relations Act."
It seems to me the Second Reading speech generally supports the construction of s181G(1)(b)(i) contended for by Mr Pinchen. While it is clear that the legislature intended police officers to have a more limited period in which they could seek a review of a dismissal decision compared to other public sector employees, it is also clear that save for important differences introduced by the Bill, the processes for determination of unfair dismissal claims provided for in the Industrial Relations Act were to be followed. Noting that the time allowed in the Industrial Relations Act for making an application for relief from an unfair dismissal was and is 21 days from the date of dismissal, the Minister's remarks support a view that s 181G(1)(b)(i) was simply intended to reduce the time available to police officers to make such an application by one week.
Some guidance is also to be gained from the decision of Commissioner of Police v Eaton [2013] HCA 2; 252 CLR 1. In that case the High Court grappled with the interaction of s 80(3) of the Police Act, which provides that the Commissioner may dismiss a probationary police officer from the NSW Police Force at any time, and without giving any reason, with the right of review under s 84 of the Industrial Relations Act. It was accepted by both parties in that case that the right of review in s 181E of Police Act was not available to probationary officers.
When comparing the rights of non-probationary police officer's with the rights of other public sector employees (the latter being the rights the first respondent in Eaton sought to invoke), Heydon J (who agreed with the majority in upholding the appeal and finding that a decision to dismiss a probationary officer was not subject to a review under the Industrial Relations Act) made the following remarks regarding s 181G(1) of the Police Act at [28]: "Another relevant provision is s 181G of the Police Act. Sub-section (1) commences with the words: "The provisions of the [IR Act] apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications". Section 181G(1) is significant in two respects. One is that pars (a)-(f) of s 181G(1) apply six provisions of the IR Act in modified form to applications for review by non-probationary police officers. The other is that some of these modifications are adverse to the applicant seeking review under s 181E. For example, s 181G(1)(b) gives the applicant only 14 days within which to apply for review under s 181E, compared to the 21 days within which a claimant under s 84(1) of the IR Act can apply to have a claim dealt with."
Clearly his Honour considered that the modification effected by s 181G(1)(b)(i) was only to the period of time and not to the manner of calculation of time, although like Lindgren J in Tio, his Honour's remarks were obiter and the proper construction of s 181G(1)(b)(i) was not in issue on the appeal.
For completeness I also note the remarks of the majority (Crennan, Kiefel and Bell JJ) at [59] (with emphasis added): "Proceedings on applications for review under s 181E(1) are subject to detailed provisions in Div 1C of Pt 9 of the Police Act, which are expressed so as to omit or modify, directly or indirectly, provisions of the IR Act which would otherwise govern the process by which a claim of unfair dismissal is determined. Similar changes are effected to the process which is to attend applications under s 174(1). The provisions of Div 1C respecting the review process are self-contained and reference to the IR Act is not necessary. The Police Act makes it clear that the IR Act is not to apply to these applications. Section 181D(7) provides that, except as provided by Div 1C, no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under s 181D and no appeal lies to any tribunal in connection with any such decision or order. "[T]ribunal" is defined to include the IR Commission.
I understand these remarks to be directed to the majority's view that the specific provisions of the Police Act prevail over the general provisions of the Industrial Relations Act and that while the Industrial Relations Act may apply generally to the Police Act , it did not apply "where the operation of the former produces an internal inconsistency in the latter" (at [92]). In my view the majority's remarks which I have emphasised above, are not directed to those parts of Div 1C of Part 9 of the Police Act which expressly direct reference to the Industrial Relations Act, in particular s 181G(1).
Lastly, I have considered whether the general construction of s 181G provides any guidance. Two features of s 181G are notable. First, as was submitted by Mr Gibian, s 181G(1) is drafted so as to make a kind of "narrative modification" to the provisions of the Industrial Relations Act, "rather than precise redraftings". Section 181G(1) instructs the reader to 'read' certain provisions in the Industrial Relations Act in a certain way. Save for sub-sections 181G (1)(a), (b)(ii), and (d), which provide that whole sub-sections are "to be read" as if they were omitted, s181G(1) does not use a drafting style which clearly states that certain words or phrases are to be wholly replaced by other words or phrases.
The use of this drafting style makes it clear that the Police Act does not amend the Industrial Relations Act, nor, is it intended to impliedly repeal the Industrial Relations Act. Clearly the Industrial Relations Act is to continue unaffected by the Police Act and only persons subject to the Police Act are affected by the modifications to the Industrial Relations Act occasioned by the Police Act.
Moreover, when the modifications made in s 181G(1) are examined, it is apparent that the drafting style used does not lend itself to the construction of grammatically correct composite clauses. For instance, s 181G(1)(c) provides as follows: (c) section 86 (Conciliation of applications) is to be read as if it provided that a member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review,
Section 86 of the Industrial Relations Act provides as follows: The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation.
Section 86 does not deal at all with the subject matter of s181G(1)(c), namely the identification of a member of the Commission who may conduct the review proceedings following an unsuccessful conciliation. Section 181G(1)(c) essentially requires the reader to insert a sub-section into s 86 that does not otherwise exist, without expressly stating that a new sub-section should be inserted for the purposes of a s181E review application. It is also notable that s 181G(1)(c) does not expressly state that the words in s 86 should continue to be given effect: on one view s181G(1)(c) could be read as an instruction to wholly replace the words in s 86 with the words that appear in s 181G(1)(c). This is essentially the approach the Commissioner urges in respect of s181(1)(b)(i). However, that would result in the instruction that the Commission conduct a conciliation in an attempt to settle the applicant's claim being removed, thereby removing the purpose of s 86 and arguably, giving the modification no work to do. Plainly that is not what is intended.
I note that sub-s 181G(1)(f) similarly requires the insertion of words into s 163 of the Industrial Relations Act which introduce a topic into that provision - the adducing of new evidence - which is otherwise not expressly or implicitly mentioned in the provision.
Generally the drafting style used in s 181G(1) is one which I consider requires the reader to first read and understand the meaning of the applicable provision in the Industrial Relations Act, and then to modify the provision as indicated by s 181G(1) in a way that gives effect, so far as is possible, to both provisions. The instruction that a particular provision, which is otherwise to be retained and so be given effect to, is to be "read as if", does not lend itself to a precise redrafting of a 'portmanteau' provision as both parties unsuccessfully attempted to do in respect of s 181G(1)(b)(i) and s 85(1).
The other notable feature of s 181G(1) is that the modification brought about by s 181G(1)(b)(i) cannot be fully applied on its terms without defeating the object of s 85(2) of the Industrial Relations Act.
The reference to "21 days" appears twice in s 85 - first in sub-s 85(1), the second in sub-s 85(2), which allows the Commission to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal, provided certain conditions are met, including that the similar application was made within the time required by the Commonwealth law. Sub-s 85(2)(c) stipulates that the application to the Commission must be made "not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under [Part 6 of Chapter 2]".
Section 181G(1)(b)(i) is not limited in its application to sub-s 85(1). On its terms it applies equally to sub-s 85(2). However, this would completely defeat the object of the sub-s 85(2) which is to allow applicants a grace period in the event they make an application for relief under Commonwealth law. Plainly this is an error. The existence of such an error in the provision I am being asked to construe does not give me confidence that the drafters of the provision intentionally used the phrase 'starting from' so that it meant 'on', as the Commissioner contends.

Consideration

The authorities referred to by both parties indicate that where a period is expressed to being "at" or "on" a date, that date will generally be included in the calculation, while a period expressed to begin "from" or "after" a date, that date will generally be excluded. The authorities and s 5(2) of the Interpretation Act also confirm that the general approach to those words can be displaced by the context in which they are used, if that context reveals a 'contrary intention'.
Section 181G(1)(b)(i) uses the word "from", but with the confounding preposition "starting", as well as the word "on" when referring to the event which must first occur to trigger the review period, namely the giving of the removal order to the applicant. As Davies J remarked in Watson v Uniframes Ltd at [6], "[i]ssues of this type are always difficult", however the combination of words used in the applicable provisions in this case are particularly difficult to reconcile. Contrary to Mr Gibian's submission, the Commissioner's motion was not "without merit" or "obviously untenable".
Submissions with which I agree, and which support the Commissioner's proposed construction of the provisions, or at least detract from the Applicant's proposed construction, include: 1. that a sensible portmanteau or composite construction of the two clauses in favour of the Applicant is not possible without altering the position of or entirely omitting, certain words, whereas the portmanteau construction contended for by the Respondent is sensible and, while omitting the words "after the dismissal of the employee", such omission is arguably consistent with the maxim that specific provisions override general ones; 2. the Applicant's second formulation of a portmanteau clause is particularly problematic as it takes as its reference point both the dismissal date (which in this case was on 22 August 2022) and the day on which the applicant is given a copy of the order (which in this case was on 26 August 2022); 3. that the parties and Walton J, P in Bailey v Commissioner of Police, construed the provisions in the manner contended for by the Commissioner. I do not accept that Walton J, P made an error in his calculation of time at [12] of the decision and I consider that his Honour's description of the effect of the modification to s 85(1) brought about by s 181G(1)(b)(i) at [11] was not intended to be a definitive interpretation of the two provisions; and 4. the general intention of the legislature when it introduced Division 1C into Part 9 of the Police Act was to provide more limited rights of review than those available to the public sector employees generally.
However, on balance I am inclined to adopt the construction contended for by Mr Pinchen for the following reasons: 1. the chapeau to s 181G(1) makes it plain that the provisions of the Industrial Relations Act apply to an application for a review under Division 1C of Part 9 the Police Act in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to the provisions in Division 1C and the modifications set out in s 181G (1) (a)-(f); 2. similarly, the narrative drafting style of s 181G(1) makes clear that all of the provisions of the Industrial Relations Act that apply to an unfair dismissal application under Part 6 of the Chapter 2 of the Act are to apply to an application made under Division 1C of Part 9 of the Police Act, save that some provisions are to apply in a 'modified' form; 3. where a provision of the Industrial Relation Act is not to apply at all, s 181G(1) expressly states that the provision "is to be read" as if the sub-section were "omitted"; 4. s 181G(1)(b)(i) does not 'omit' s 85(1), consequently it must still be given some work to do; 5. the object of s 85(1) is to impose a time limit on the making of an application for relief in respect of an unfair dismissal - it does this by stipulating that such an application must be made "not later than [x] days after" the dismissal of the employee; 6. when read in conjunction with s 181D(5), which provides that a dismissal takes effect on the date of the Commissioner's order, regardless when the police officer is made aware of the order, it can be seen that the modification wrought by s 181G(1)(b)(i) is not intended to be a rewriting of s 85(1) to give it a different operation, but is only intended to reduce the period of review from 21 days to 14 days and to identify that the relevant event which triggers the commencement of the review period (the following day) is the giving of the order, rather than the date of the dismissal; 7. viewed in this way, the word 'starting' is given work to do - it identifies that instead of the dismissal (which is otherwise still the object of a review pursuant to Division 1C of Part 9 of the Police Act and Part 6 of Chapter 2 of the Industrial Relations Act), the relevant event for the purpose of calculating the applicable time period, is the giving of the removal order to the police officer; 8. support for this construction is found in the Second Reading speech of the Minister for Police in respect of the Police Service Amendment Bill 1997 and the decision of Heydon J in Eaton - the Minister indicated and his Honour understood, that the intention of the modification occasioned by s 181G(1)(b)(i) was to reduce the time within which to lodge a review from 21 days to 14 days; 9. I infer that the drafters of s 181G(1)(b)(i) would be familiar with the provisions of ss 5 and 36 of the Interpretation Act and consequently I cannot accept that the drafters intended to mean 'on' or 'at' when they used the phrase 'starting from'; 10. I am fortified in this view by the obiter views of Lindgren J in Tio to the effect that a period 'commencing from' a certain day would require that day to be left out of account and by the fact that the Commissioner of Police could not point to any authority - binding or otherwise - in which the phrase 'starting from' had been interpretated to include the date indicated, in a calculation of time; and 11. the construction adopted in Bailey v Commissioner of Police is not binding or persuasive in circumstances where the issue was not argued, and the decision did not turn on the correct interpretation of s 85(1) as modified by s 181G(1)(b)(i).
While Mr Watts' retail sale analogy commends a construction of s 181G(1)(b)(i) and s 85 which could be said to be consistent with the ordinary understanding of the phrase 'starting from', I accept Mr Gibian's submission that the analogy is referring to a circumstance in which an event starts on a particular time, "not a provision which is setting a date on which something finishes, a "not later than" provision." Again, I am guided by the views of Lindgren J in Tio in coming to this view.
While I am satisfied that the modification occasioned to s 85(1) of the Industrial Relations Act by s 181G(1)(b)(i) of the Police Act is sufficiently clear, so as to not require resort to the rule of construction that beneficial provisions should be construed so as to give the fullest relief which the fair meaning of its language will allow, resort to such rule further supports Mr Pinchen's position. Resort to this rule of construction would be indicated if I am wrong that the construction of the provisions is not attended by doubt, noting that there may be no room for it to operate where the words used have a clear meaning: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; 260 CLR 232, [33] - [34] (French CH, Kiefel, Bell and Keane JJ), [94] - [95] (Gageler J).
While I accept that Division 1C of Part 9 of the Police Act prescribes a more limited regime for a review of a decision to removal a police officer from the Police Force, than that otherwise provided for under the Industrial Relations Act, I cannot discern an intention on the part of the legislature to make it even more restrictive by starting the period in which a review may be applied for on the day the applicant learns of his or her dismissal. Section 181E is a remedial and beneficial provision which allows a police officer to challenge an order of the Commissioner of Police which is likely to have a dramatic and damaging effect on the officer's life. Where an exception from a remedial or beneficial provision is capable of two constructions, the narrower construction is to be preferred so as to give full operation to the remedial or beneficial provision.
If the period in which to file an application for review started on the day the officer received the order, he or she would not have 14 clear days in which to file their application, but rather 13 days plus some hours, depending on the time of day they received the order. In the present matter, as noted above, Mr Pinchen received the order at 4:50pm, leaving him 10 minutes before the traditional close of business of that day. This compares with the 21 clear days plus some hours, that most other members of the public service have in which to bring a claim for unfair dismissal, if one accepts that usually a dismissal cannot take effect until the employee receives notice of it, and often it will take effect at some time after notice is received.
If the intention of the legislature were to allow only 13 clear days for police officers to file an application for review of their removal rather than 14 clear days, clear language was required: Darwin Broadcasters at 526-527 (Beaumont J); Watson v Uniframes Ltd at [9] (Davies J). This would have been achieved by stating that a reference to 21 days in section 85(1) should be read as if it were a reference to "14 days, starting on the day on which the applicant is given a copy of the order to which the application relates". Given the use of the word 'from' instead of 'on' and the terms of s 36(1) of the Interpretation Act, I accept Mr Pinchen's submission that the effect of the modification made by s 181G(1)(b)(i) is to shorten the time limit from 21 days to 14 days; and to stipulate that the day after which the time period starts to run is identified as the day on which the applicant is given a copy of the order, rather than the date of the dismissal.

Orders

The Respondent's notice of motion seeking an order that the Applicant's application for review pursuant to s 181E of the Police Act 1990 (NSW) be dismissed for want of jurisdiction is dismissed.
The matter is listed for conciliation on 22 December 2022 at 2pm in person.

Amendments 08 December 2022 - Correction to Paragraph [38] from 'grammatical' - to "grammatically". 21 March 2023 - Correction made by inserting the word 'to' after the word 'infer' in Paragraph [22]. 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: 21 March 2023

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