Plaintiff v Defendant

Supreme Court of Victoria|2008-01-30|Before: BELL J

The applicant also complains that the Committee's reasoning entailed the adoption of a view and thereafter imposing an onus upon the applicant to displace that view. I am not persuaded that such an analysis correctly characterises what happened. In coming to an administrative decision, the Committee is entitled to express a preliminary view, provided it remains open to be persuaded otherwise...[30]

80 For reasons that were extensively examined by Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng,[31] the application of these principles must take into account the fact that the Chief Commissioner was exercising an administrative discretion. In the circumstance of this case I do not think that makes any difference to the result.

82 On the other hand, it is clear that s 68(1) authorises a dismissal decision only on the basis of the Chief Commissioner's final state of satisfaction, which can legitimately be formed only after taking the member's submissions into account. To repeat, no legal or evidentiary onus is cast on the member at any stage. The Chief Commissioner must "have... and display a willingness, indeed an anxiety"[32] to consider the submissions put forward and to revise or abandon previously expressed provisional views. If it might reasonably appear to a fair-minded observer that the Chief Commissioner's final state of satisfaction might have been the product of a prejudgment, the exercise of the dismissal power would thereby fail. Whether this is so or not must, in the end, be a question of fact in each case, remembering that the question is whether the member has established that a fair-minded observer might reasonably apprehend that the Chief Commissioner's mind was not reasonably open to persuasion. In that connection, the reasons are again very important, for the appearance or not of prejudgment will most readily be discerned from their content.

83 When I examine the reasons in the present case, I cannot conclude a fair-minded observer might reasonably apprehend that the Chief Commissioner's mind was closed to persuasion in the direction of Mr Shields' submissions in response. In my mind, the reasons demonstrate the opposite. The Chief Commissioner's careful consideration of Mr Shields' submissions shows she took them seriously into account. Her acceptance of some of those submissions shows she was prepared to depart from her provisional views in significant respects. Her rejection of many of Mr Shields' submissions is not evidence of prejudgment. The language she used to express her final findings and conclusions reflected her adherence to the mandatory statutory procedure, not her prejudgment of the issues.

84 For these reasons, grounds two and three of the judicial review application, and ground one as it relates to prejudgment, must be rejected.

85 It is therefore unnecessary to consider the doctrine of necessity.

86 Mr Shields submits the Chief Commissioner improperly exercised the power in s 68 by failing to take into account:

• the availability of alternative means of dealing with the issues, for example the ordinary disciplinary provisions

87 He also submits the Chief Commissioner used the power in s 68 of the Police Regulation Act against him for an improper purpose, namely to avoid the procedures and protections available in relation to disciplinary charges specified in Division 2 of Part IV.

88 These submissions raise a number of important issues which I will work through one by one.

89 When exercising a statutory power, a decision-maker is obliged to taken into account all relevant considerations and exclude irrelevant considerations. The relevant and irrelevant considerations are identified by reference to the subject matter, scope and purpose of the statute.[33] To obtain judicial review, it must be established the consideration was one the decision-maker was bound to consider or exclude.[34] It is not enough to construct a list of possibly relevant considerations and then point to one that was not considered.[35]

90 The consideration required is one of real substance, not one of mere form. Therefore, the obligation to consider is not sufficiently performed in law when the decision-maker fails to take relevant considerations into account in "any real sense",[36] fails to consider the considerations "genuinely and realistically"[37] or fails to undertake "proper, genuine and realistic"[38] consideration. However, the weight to be given to a consideration is generally a matter for the decision maker to determine:[39] Judicial review does not go beyond declaring and enforcing the law that determines the limits and governs the exercise of the decision-maker's powers,[40] which means the merits of the decision are the province of the decision-maker and not the courts.[41]

91 It follows from this formulation of the principles that it is first necessary to identify the subject matter, scope and purpose of the power in s 68(1). In that connection, whether the provision confers a discretion or imposes a duty is a critical preliminary question.

Does section 68(1) confer a discretion or impose a duty?

The Chief Commissioner, by written order, may dismiss a member of the force (other than a Deputy Commissioner or an Assistant Commissioner) if the Chief Commissioner is satisfied that the member is unsuitable to continue as a member of the force, having regard to -

(b) the potential loss of community confidence in the force were the member to continue as a member of the force.

93 Because s 68(1) says the Chief Commissioner "may dismiss" the member, Mr Shields submits it confers a power that is discretionary in nature. It follows, he submits, that the Chief Commissioner had a discretion not to dismiss Mr Shields even if she was satisfied he was unsuitable to continue. The Chief Commissioner could and should have exercised that discretion in his favour by taking into account the materials going to his good record of service and character and the availability of the ordinary disciplinary provisions.

94 I think it is clear from the reasons given in the order that the Chief Commissioner did not approach the exercise of the power in s 68(1) in a two-stage manner, the first being whether she was satisfied and the second being whether she should dismiss. I think she exercised the power on the basis that she was required to make one decision on the question of Mr Shields' unsuitability, as to which his record of service and character and all other relevant considerations had to be taken into account. Having decided that question against Mr Shields, she did not consider whether or not, in her discretion, she should dismiss him. The question is, was that approach correct? That question requires an analysis of an important issue of statutory interpretation, one which must begin with s 45(1) of the Interpretation of Legislation Act 1984. That year - 1984 - you will soon see is of present significance.

95 I will set out the complete terms of s 45(1) later. It is enough now to say it states a rule that the word "may" in a statute confers a discretionary power. Section 68(1) of the Police Regulation Act states the Chief Commissioner "may" dismiss from the force a member who she is satisfied is unsuitable to continue on the specified grounds. If s 45(1) applies to the interpretation of s 68(1), the power in the latter would be permissive and discretionary, full stop. By s 45(3), the common law principle of interpretation that would produce a different result, with which I will later deal, would be abrogated. I must therefore decide if it is s 45 or the common law principle of interpretation that applies.

96 Section 45(1) of the Interpretation of Legislation Act applies to "this Act or any Act passed ... after the commencement of" that Act. By s 11(1) of that Act, which s 4(1)(b) makes apply to itself, an Act commences on the day that is, by the Act, fixed as the commencement day. Section 2 of that Act fixes 1 July 1984 as the commencement day. In consequence, s 45(1) applies the Interpretation of Legislation Act to itself and any other Act passed after 1 July 1984. To shorten things, I will refer just to the year (hence its significance).

97 Plainly enough, s 45(1) does not apply to the interpretation of the Police Regulation Act generally, for that Act was passed in 1958. But the dismissal power at issue in the present case is in s 68, which was inserted into the Police Regulation Act by s 13 of the Police Regulation and Firearms (Amendment) Act 1999. Section 13 commenced on 22 August 1999.[42] Again, from now on I will just refer to the year.

98 Mr Shields submits s 45(1) of the Interpretation of Legislation Act does apply to s 68 of the Police Regulation Act because it was inserted by legislation passed after the first commenced in 1984. As I have said, so interpreted, s 68(1) would confer a discretionary power and not a compulsive one. That conclusion is demanded by previous decisions of the Full Court of this Court on the proper interpretation and application of s 45.[43] As has been held, s 45 was designed to remove any doubt about how a power expressed in terms of "may" or "shall" should operate and be interpreted.[44]

99 Here now is s 45(1) and (3), this time, as related to Acts, in full:

(1) Where in this Act or any Act passed... on or after the commencement of this Act the word 'may' is used in conferring a power, that word shall be construed as meaning that the power so conferred may be exercised, or not, at discretion.

(3) The provisions of this section shall have effect notwithstanding any rule of construction to the contrary and any such rule is hereby abrogated with respect to this Act and any Act passed... on or after the commencement of this Act.

100 You will see immediately that the critical opening words of s 45(1) - "any Act passed... on or after the commencement of this Act" - do not differentiate between a principal Act and an amending Act. As a matter of language, the words might apply to both kinds of Acts, neither of which are defined in the Interpretation of Legislation Act. So interpreted, s 45(1) might govern the interpretation of s 68(1) of the Police Regulation Act, as the amending Act[45] that inserted it was passed in 1999 after the commencement of the Interpretation of Legislation Act in 1984.

101 That interpretation of s 45(1) gains support from the provisions of s 4(1)(a) of the Interpretation of Legislation Act, which were relied on by Mr Shields in the submissions made to me. This is s 4(1)(a), as relevant:

(a) unless a contrary intention appears in this Act or in the Act... concerned, extend and apply to all Acts, whether passed before or after the commencement of this Act,...

If it applies to s 45(1), s 4(1)(a) would operate to make the former applicable to "all Acts... passed after the commencement" of the Interpretation of Legislation Act. The Police Regulation and Firearms (Amendment) Act 1999 is such an Act.

102 But the Interpretation of Legislation Act was written against the background of an important common law principle about how amending legislation is to be interpreted. According to that principle, an amending Act is read with the principal Act it amends "as one connected and combined statement of the will of Parliament, unless the contrary intention appears on the amending Act."[46] Those words were spoken by Isaacs J in Sweeney v Fitzhardinge[47] in reference to the affect of a provision of the Interpretation Act 1897 (NSW), but they equally explain the scope of an independent common law principle of interpretation.[48] Bennion calls this the principle of "textual amendment", so that -

under modern practice the intention of Parliament when effecting textual amendment of an Act is usually to produce a revised text of the Act which is thereafter to be construed as a whole.[49]

The Court of Appeal has taken this principle of co-interpretation of amending and principal legislation into account in other contexts.[50]

103 For two reasons, I would take that principle into account when interpreting s 45(1): the principle is not abrogated by s 45(1) or any other provision of the Interpretation of Legislation Act, and it is not inconsistent with that Act to do so.

104 Parliament is presumed to know about important principles of interpretation, such as the co-interpretation principle. Where legislation does not abrogate such a principle, expressly or by necessary intendment, and it would be otherwise applicable, the court can infer that the legislation was not intended to interfere with its operation, the silent expectation being that it would be applied in the usual way. This other general common law principle of interpretation was, in reference to the Interpretation of Legislation Act, written into statutory law by s 4(2), which provides this:

Nothing in this Act excludes the application to an Act... of a rule of construction applicable thereto and not inconsistent with this Act.

105 Now the Interpretation of Legislation Act deals with amending legislation in many places - too many to mention here. In each case, the provision deals with some significant (usually mechanical) question concerning the passing or operation of such an Act. In no case, however, does a provision require an amending Act to be interpreted independently of its principal Act. What useful indications there are point in the other direction. For example, the provisions dealing with the numbering of provisions are based on the textual unity of the amending and principal legislation so that, under ss 39A and 39B, the original numbering system, in the absence of a contrary provision, is preserved. It is clear, I think, that neither by express provision nor necessary intendment does the Interpretation of Legislation Act abrogate the co-interpretation principle.

106 Interpreting s 45(1) in a way that takes this common law principle into account is not inconsistent with the other provisions of the Interpretation of Legislation Act. Only s 4(1)(a) may be seen to be inconsistent with such an interpretation. But it does not apply where a contrary attention appears. For the reasons that follow, I think a contrary intention does appear in s 45(1).

107 The starting point must be the fact that s 45 supplies a definite contrary intention to the applicability of s 4(1)(a) in a relevant and important respect. Whereas s 4(1)(a) would make s 45(1) (for example) extend and apply to all Acts whenever passed, section 45(1) makes itself apply only to Acts passed after the commencement of the Interpretation of Legislation Act. As regards the nature of a statutory power, Parliament thus deliberately chose to leave past Acts to be interpreted according to the pre-existing common law principles; only future Acts would be interpreted according to s 45. The common law principles were abrogated by s 45(3) only for those future Acts (and the Interpretation of Legislation Act itself). The legislature placed s 45 beyond the reach of s 4(1)(a) to this definite extent. The pre-1984 provisions of the Police Regulation Act are an example.

108 It is but a small and logical step to take to interpret s 45 in a way that requires amending Acts to be likewise interpreted. The legislature would not have intended that different rules would govern the interpretation of diverse provisions of the same principal legislation, depending on whether they were passed before or inserted by amendment after the commencement of the Interpretation of Legislation Act in 1984. Rather, the legislature would have intended the legislation to be interpreted consistently by reference to the one definite rule.

109 I think s 45 was enacted in a form that assumes the continued operation of the common law principle about the co-interpretation of amending and principal Acts. In consequence, s 45 generally applies such that past legislation, even if amended in the future, is to be interpreted according to that common law principle, whereas future legislation (and the Interpretation of Legislation Act) is to be interpreted according to s 45. In respect of amending legislation, s 45 would thus generally supply a contrary intention to the application of s 4(1)(a). The legislature placed s 45 beyond the reach of s 4(1)(a) in respect of past legislation and, generally, also in respect of future legislation amending past legislation.

110 I say generally because there may be something express or necessarily implicit in the amending legislation to bring it within s 45. The common law principle requiring amending Acts to be interpreted with their principal Acts is subject to any contrary intention so appearing in the former.[51]

111 Let me now apply this reasoning to the Police Regulation Act 1958 and the Police Regulation and Firearms (Amendment) Act 1999. As regards the nature of the power inserted by the second as s 68(1) of the first, there is simply nothing to suggest the co-interpretation principle would not apply. The older and the younger parts of the two thus together form one legislative organism. For all the purposes of statutory interpretation of relevance in this case, that organism presumptively came to life in 1958, before the commencement of the Interpretation of Legislation Act in 1984. Therefore the nature of the power in s 68(1) of the Police Regulation Act falls to be identified according to the common law principles about the interpretation of powers expressed in terms of "may" and "shall", not according to the rule stated in s 45(1) of the Interpretation of Legislation Act. To those principles I now turn.

Interpreting powers expressed in terms of "may" and "shall"

112 The nature of a power like the one in s 68(1) has been discussed in many notable decisions of the High Court, for example in Ward v Williams,[52] Finance Facilities Pty Ltd v Federal Commissioner of Taxation[53] and Leach v R.[54] As Windeyer J said in Finance Facilities,[55] the question whether a power is discretionary -

does not depend on the abstract meaning of the word 'may' but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the 'may' becomes a 'must'. Illustrative cases go back to 1663: R v Barlow.[56] Today it is enough to cite Julius v Bishop of Oxford;[57] and add in this Court Ward v Williams.[58] But I select one other reference out of a multitude: Macdougall v Paterson.[59] There Jervis CJ said in the course of the argument[60] 'The word "may" is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise'. And, giving judgment, he said:[61]

'We are of opinion that the word "may" is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.'

113 Leach v R[62] is a case very similar to the present. It concerned s 19(5) of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), which provided this:

The Supreme Court may refuse to fix a non-parole period if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility for release on parole.

The applicant argued the Court had a discretion to fix a non-parole period even if it was satisfied of the specified matters. The High Court rejected that submission. It held:

The word 'may' is used, not to give a discretion, but to confer a power which is to be exercised upon the Court being satisfied of the matters described in the provision.[63]

114 Applying these principles to this case, I think the power in s 68(1) is expressed in terms that confer a duty. I cannot read the section as permitting the Chief Commissioner, at her discretion, to retain in the force a member who she is satisfied is unsuitable to continue, having regard the member's integrity and the potential loss of community confidence. Such a reading would defeat the object and purpose of s 68(1), which is to promote and maintain the integrity of, and community confidence in, the force. I do not think the Parliament has left it to the Chief Commissioner to decide whether such a member should be retained. Under s 68(1), once the Chief Commissioner is properly satisfied of their unsuitability, she must dismiss them.

115 The way other powers in the Act are expressed strongly supports this conclusion. I will give three pertinent examples.

116 First, it is significant that s 68(1) does not specify a list of possible actions from which the Chief Commissioner can make a selection. The dismissal power in s 68(1) is just that - a dismissal power. An example of a different kind of provision is s 76(1), which specifies the "one or more" determinations a person conducting a disciplinary inquiry may make. Such a power is plainly discretionary, unlike s 68(1). Appeals against a Chief Commissioner's dismissal under s 68(1) go to the Appeal Board under s 68B. When determining an appeal, that Board has a list of powers from which it can make a discretionary choice, but not dismissing a member whose appeal fails is not one them for, in that case, the Board must confirm the Chief Commissioner's order (s 68D(1) and (5)).

117 Second, ss 76(1) (for example) and s 68(1) operate in the context of very different procedures, both adapted to the different nature of those powers. Section 76(1) is exercised in the context of an inquiry (see ss 73 and 75) at which the various options can be examined, depending on the severity of the breach of discipline and the other relevant factors. Section 68(1) is exercised in the context of a procedure (see s 68(1)-(3)) that is directed at determining one fundamental question - whether, to the Chief Commissioner's satisfaction, the member is unsuitable to continue.

118 Third, s 68 is found in Part IV. That part makes provision, in four different divisions, and in different terms, for four different kinds of power.

119 Division 1 (containing s 68) deals with the dismissal of members found by the Chief Commissioner to be unsuitable, having regard to their integrity and the potential loss of community confidence. This dismissal power has the attributes I have already described. Only the Chief Commissioner, who has the general superintendence of the force,[64] can exercise the power, for it is non-delegable.[65] An appeal is available to the Appeal Board on the limited ground that the decision is "not sound, defensible or well-founded" (s 68B(1)) and according to specified procedures (s 68C)). The Appeal Board's powers have already been mentioned.

120 Division 2 deals with members who have committed breaches of discipline of widely varying gravity (see s 69(1)). It contains a mechanism for conducting preliminary investigations (s 70), for charging the member (ss 71-72), for holding inquiries (ss 73 and 75) and for making determinations (s 76)). By contrast with the dismissal power in s 68, a number of determinations are possible, ranging from reprimand (s 76(1)(a)) to dismissal (s 76(1)(g)).

121 Divisions 3 deals with members alleged to have committed criminal offences punishable by imprisonment (s 79). The possible actions also cover a range - also from reprimand (s 80(1)(a)(i)) to dismissal (s 80(1)(e)).

122 Division 4 deals with a member's fitness for duty (s 82). The possible responses range from transfer (s 85(a)) to dismissal (s 85 (c)).

123 In my view, a comparison of the first power - the one in s 68 - with the other three suggests the former, unlike each of the latter, is not discretionary.

124 That conclusion does not fully dispose of Mr Shields' submission that the Chief Commissioner failed to take relevant considerations into account. However, the real issues raised by that submission must be whether a member's prior record, and the availability of the disciplinary and other processes, are relevant considerations, and were properly taken into account, given that s 68(1) confers a power not a discretion.

Did the Chief Commissioner ignore relevant considerations?

125 Is the Chief Commissioner bound to consider evidence of the prior good service and character of a member of the force before exercising the power to dismiss in s 68(1)? I think she is.

126 Before dismissing someone, the Chief Commissioner has to be satisfied the member is unsuitable to continue, having regard to their integrity and the potential loss of community confidence in their continuance. The member's history of prior good service and good character (and, logically, the contrary) are plainly relevant in the Chief Commissioner's consideration of those matters.

127 However, there will no doubt be cases where these considerations may count positively for the member, yet the Chief Commissioner will still be legitimately satisfied that the member, by reason of the gravity of their conduct, is unsuitable to continue. That, I think, is what happened in Mr Shields' case. His testimonial evidence was impressive. Its relevance was acknowledged by the Chief Commissioner. Her reasons for decision specifically stated that Mr Shields' submissions in these respects were considered. There is no basis for doubting either that statement or that the submissions were properly considered. But the reasons stated the Chief Commissioner was satisfied that Mr Shields was unsuitable to continue because she was satisfied of grounds 1 and 3, which I have already set out. I infer from the Chief Commissioner's reasons that she thought the gravity of those grounds simply overwhelmed the other considerations, and I do not find that conclusion in any way surprising.

128 Is the Chief Commissioner bound to consider the availability of the disciplinary and other provisions of Part IV before exercising the power to dismiss in s 68(1)?

129 Mr Shields submitted the answer to this question was yes. According to those submissions, the power to dismiss in s 68 had to be seen in the context of Part IV as a whole. Therefore, before exercising the power in s 68, the Chief Commissioner was obliged to consider whether the other processes in Part IV, especially the disciplinary processes in Division 2, should be followed. Those submissions led to the further submission that the Chief Commissioner had dismissed Mr Shields under s 68 for the improper purpose of avoiding the charging and inquiry processes in Division 2.

130 The Chief Commissioner submitted the answer to the question was no. Her submissions were that the power to dismiss under s 68(1) is free-standing. The single statutory criterion is the member's unsuitability to continue, having regard to their integrity and the potential loss of community confidence in their continuance. Whether alleged misconduct (for example) could form the basis of a disciplinary offence was beside the point. The availability of the alternative statutory mechanism for dealing with such cases is not relevant to fulfilling the scope, object and purpose of the power in s 68. Therefore, when exercising that power, the Chief Commissioner was not bound to consider the alternative statutory processes for dealing with the matter.

131 I reject the substance of Mr Shields' submissions, but for the reasons that follow, which do not involve fully accepting the submissions of the Chief Commissioner.

132 The Chief Commissioner relied on the decision of Allsop J in Eaton v Overland.[66] In that case, s 28 of the Australian Federal Police Act 1979 (Cth) gave the Commissioner power, at any time, to terminate the employment of an AFP employee, who might include a police officer. Other legislation set up a regime for dealing with disciplinary charges brought against officers.

133 The officer applicant contended that, where misconduct was alleged, the dismissal power in s 28 could not be used - at all - because the misconduct could form the basis of, and be dealt with as, a disciplinary charge. Allsop J rejected that submission. He held the disciplinary submissions did not form an exclusive code for dealing with such cases. With respect, I think this conclusion was clearly correct.[67] As we shall see, similar reasoning applies to the Chief Commissioner's power under s 68 of the Police Regulation Act.

134 Allsop J went on to deal specifically with this critical question: what if the circumstances presented the Commissioner with alternative ways for dealing with the person? Here is his Honour's important conclusion:

Sometimes, possibly here, the alleged underlying facts will give the Commissioner a choice to act by bringing disciplinary charges or to act under his employment or command powers. If he chooses the latter he may do so because he feels that most relevant and important are questions of deployment, assignment, secondment or suitability for employment. He may see, in those circumstances, the bringing of formal disciplinary charges as unnecessary and inappropriate.

As I read the legislation there is nothing to prevent, and ample power to permit, such a choice.[68]

You will note the passage says, in effect, that the Commissioner, after considering the matter, could adopt the most appropriate course. Again, I respectfully agree. But Allsop J did not say the Commissioner could simply exclude from consideration one obvious potential course.

135 It is helpful to look again, in a summary way, at the statutory scheme. To repeat, Division 1 (containing s 68) deals with the dismissal of members found by the Chief Commissioner to be unsuitable, having regard to their integrity and the potential loss of community confidence. Division 2 deals with members who have committed breaches of discipline of widely varying gravity (see s 69(1)). The possible responses range from reprimand (s 76(1)(a)) to dismissal (s 76(1)(g)). Divisions 3 deals with members alleged to have committed criminal offences punishable by imprisonment (s 79). The possible responses also range from reprimand (s 80(1)(a)(i)) to dismissal (s 80(1)(e)). Division 4 deals with a member's fitness for duty (s 82). The possible responses range from transfer (s 85(a)) to dismissal (s 85(c)).

136 It is obvious these provisions might apply in disparate factual settings. There may be cases in which the factual circumstances give rise only to concerns about the member's suitability to continue under s 68. There may also be cases in which the factual circumstances give rise to overlapping concerns about the member's suitability to continue under s 68 and also the member's liability for an alleged breach of discipline under s 69, the member's liability for an alleged commission of a criminal offence under s 79 or the member's fitness for duty under s 82. In cases of that latter kind, I think the Chief Commissioner is bound to consider what is the appropriate way to deal with the matter.

137 Take a case where the Chief Commissioner is satisfied the member is guilty of serious misconduct. To act under s 68(1), the Chief Commissioner has to be satisfied the member is unsuitable to continue having regard to their integrity and the potential loss of community confidence. That the serious misconduct might be appropriately dealt with as a disciplinary matter under s 69 may be relevant to her consideration of those matters. The Chief Commissioner might conclude, for example, that there was a low potential for loss of community confidence if the community could see that the matter was being appropriately dealt with in that alternative manner. On the other hand, she might conclude the nature of the misconduct was such that it was appropriate to deal with it by way of dismissal under s 68.

138 It is for the Chief Commissioner to determine the appropriate way to proceed in such circumstances. The fact that the issues were capable of being dealt with in a disciplinary hearing under Division 2 would not be a bar to the Chief Commissioner dismissing the member under s 68, if she was satisfied he or she was unsuitable to continue on the specified grounds.[69] The question always remains: is the Chief Commissioner satisfied of the member's unsuitability to continue on the specified grounds?

139 Under the Police Regulation Act, it is not quite legally accurate to say the existence of overlapping circumstances gives rise to a choice on the part of the Chief Commissioner as to how to deal with the situation. I have already expressed my view that s 68 does not confer a discretionary power. It is a power to dismiss a member who the Chief Commissioner is satisfied is unsuitable to continue. It follows that the proper exercise of the power cannot be chosen or not chosen. If the circumstances give rise to issues that require consideration under s 68, they do not cease to do so, or come to require something less, because, on one view, they might be dealt with in a disciplinary hearing. Thus the Chief Commissioner has a duty positively to consider the matter under s 68, whether or not it may also be considered under, say, the disciplinary provisions. Having done so, and having become satisfied of the member's unsuitability on the specified grounds, she must issue a dismissal order. However, in some cases, the availability of an alternative statutory process might influence the Chief Commissioner's assessment of the member's suitability to continue on the specified grounds, such that she may consider it appropriate to allow that alternative process to be adopted rather than exercise her powers under s 68, which is a question entirely for her.

140 Mr Shields relied on the Second Reading Speech of the Minister for Police and Emergency Services to support his submission that the availability of the disciplinary and other provisions of Division 2 of Part IV was always a relevant consideration under s 68(1). Among other things, the Minister said this of s 68:

The government recognises that this gives a significant power to the chief commissioner. It expects that it will be exercised very sparingly and only in circumstances where the existing processes in the Police Regulation Act 1958 relating to disciplinary and criminal charges cannot be used to deal with the matter appropriately.[70]

141 To my mind, this statement was intended to express no more than the Minster's hopeful expectation that the power would be used sparingly and only in the specified circumstances. It is not permissible to use this or any other aspect of the Second Reading Speech to import, by interpretation, a limitation that s 68 cannot be used where the other statutory processes are applicable. This is because the clear terms of Division 1 of Part IV create a free-standing dismissal and appeal regime that is in no way limited by the terms of Divisions 2, 3 or 4 of Part IV. The meaning of the clear statutory terms of that regime cannot be affected by extrinsic material, such as the Second Reading Speech, for the "words of a Minister must not be substituted for the text of the law." [71]

142 On the other hand, it is permissible to consider the Second Reading Speech, and the whole of Part IV, as part of the context in which, at the first instance, s 68 must be interpreted.[72] But that context does not support the importation of a limitation on the operation of s 68. In any event, the Minister fell far short of saying that the power was confined to cases where the disciplinary and other alternative provisions were not available. Indeed, he acknowledged that it was up to the Chief Commissioner to determine how the matter should "appropriately" be dealt with.

143 While it does not support the importation of a qualification, this mention of what the Chief Commissioner should "appropriately" do does fortify me in my view that the legislature intended, in appropriate cases, that the Chief Commissioner would be bound to consider the alternative statutory processes when deciding whether, under s 68, she was satisfied the member was unsuitable to continue on the specified grounds.

144 But I do not think that, under the legislation, the Chief Commissioner is bound to consider the availability of possible alternative processes in every case. There has to be something in the nature of the case or the submissions of the member to make it relevant. The present case is, I think, an excellent example of one whose nature did not call for consideration of possible alternative processes. Once the Chief Commissioner was satisfied of grounds 1 and 3, it is inconceivable that her view of the Mr Shields' unsuitability to continue would be influenced by the possibility of holding a disciplinary hearing, for example. Nor did his submissions make the issue relevant. The submissions of Mr Shields' solicitors were ample and forceful, but did not mention the possibility of alternative processes being adopted. The submissions dealt with the issues entirely within the framework of s 68, which was not only appropriate but unavoidable, for the plain fact was that Mr Shields was facing almost certain dismissal under that section if the Chief Commissioner was satisfied of the grounds specified in the notice.

145 On the issue of relevant considerations, Mr Shields' submissions are thus reduced to this proposition: the Chief Commissioner ignored a relevant consideration - possible alternative processes - that theoretically might have arisen in a case of a different nature or, alternatively, might have been, but understandably were not, raised in the submissions made on his behalf. The answer to the proposition is that, in Mr Shields' case, this consideration was not one the Chief Commissioner was bound to take into account, and she did not improperly exercise the power in s 68(1) by not doing so.

146 It remains to deal with Mr Shields' submissions on improper purpose.

147 Statutory powers for the dismissal of police officers must be exercise for the purpose for which they were conferred and in good faith.[73] It is apparent from the express terms of s 68(1) that it was conferred for the purpose, which I have described as fundamentally important, of maintaining the integrity of, and community confidence in, the police force. However convenient it may be to describe the power in s 68(1) as "managerial", I would not myself use that word in reference to the power. In my mind the word "managerial" is more apt to describe a discretionary or executive power. That is the way the word is used in industrial law, where the expression "managerial prerogative" refers to the capacity of management - the employer - to make decisions at its discretion. I think it would be unfortunate - and legally incorrect - for the power in s 68(1) to be understood in that way, for that is not the nature of the power that has been conferred. The power conferred is quite definite, both as to the substantive basis on which, and the procedures pursuant to which, it must be exercised. I think the terms of the statute tell us eloquently that s 68(1) confers a power of dismissal for maintaining the integrity of, and community confidence in, the force, nothing more and nothing less.

148 It would be improper for the Chief Commissioner to exercise the power of dismissal in s 68 for the purpose of avoiding the application of alternative statutory processes, such as the disciplinary processes in Division 2 of Part IV, and not for the purpose of maintaining the integrity of, and community confidence in, the police force. This Court could make orders for judicial review if it were plainly established that the Chief Commissioner had so misused her power.

149 There is not a scintilla of evidence in this case to suggest the Chief Commissioner dismissed Mr Shields for that or any other improper purpose. She dismissed him because she found he had engaged (among other things) in humiliating and degrading conduct towards women, and had allowed his relationship with a young female constable to lead him to extend favourable treatment to her to the disadvantage of others. Those grounds constituted a lawful basis for the Chief Commissioner to be satisfied that Mr Shields was unsuitable to continue to be a member of the force, having regard to his integrity and the potential loss of community confidence were he to continue. Whether or not those grounds were capable of being dealt with under Division 2 of Part IV, for example, the Chief Commissioner was entitled to dismiss Mr Shields under s 68(1), and she did not act for an improper purpose in doing so.

150 Ground four of Mr Shields' judicial review application has therefore not been made out.

151 Mr Shields submitted that the Chief Commissioner made two important findings for which there was no evidence:

that he had provided no motive on the part of Mr O'Regan to provide false information
that he had not raised any issues about the credibility of the complainant and witnesses in relation to the Frankston incidents

152 It may be accepted that it is an error of law to make a finding for which there is no evidence. If an error of law of that kind is disclosed by the dismissal order, which constitutes the record of the decision, it would be a jurisdictional error, being an error of law on the face of the record.

153 Turning to the issue concerning Mr O'Regan, the notice of proposed dismissal specified Mr Shields had conducted himself in an intimidating and unprofessional manner towards that person at a petrol station.

154 Mr Shields' submissions in response were, among other things, that the statement was taken from Mr O'Regan eight months later, that it was Mr Regan who behaved inappropriately at the petrol station, that Mr Regan had made the complaint to stop a parking ticket being given to him and that no statement was taken from a sergeant of police with whom Mr O'Regan had made telephone contact and to whom Mr Shields had given the same explanation.

155 The Chief Commissioner's order referred to the finding in the notice concerning Mr O'Regan and noted the contents of Mr Shields' submissions in response. It noted that Mr Shields' version contained an attack on Mr O'Regan's credit and that Mr O'Regan's statement was made eight months after the incident, as well as the other matters relied on in the submissions.

156 The Chief Commissioner maintained the finding concerning Mr O'Regan. She said (in par 21(a)):

I continue to accept the truth of the matters contained in O'Regan's statement. I do not regard the matters raised in the Response, including the timing of the making of O'Regan's statement, as sufficiently impugning O'Regan's credit to warrant rejection of the version of events contained in that statement.

I think that statement can only be understood as a rejection, following the consideration, of the attack by Mr Shields on Mr O'Regan's credit, based in particular on the allegation that he made the complaint to stop being issued with a parking ticket.

157 The Chief Commissioner went on to say this (in par 21(b)):

I note that you have pointed to no motive to fabricate on the part of O'Regan, nor have you suggested any reason why O'Regan should not be believed. You have not requested that I ask questions of Mr O'Regan at an oral hearing.

Having regard to the Chief Commissioner's earlier statement, this statement cannot be understood to have been made in ignorance of Mr Shields' submissions about Mr O'Regan making the complaint to stop being issued with a parking ticket, for those matters where referred to in paragraph 21(a). In this statement in paragraph 21(b), I think the Chief Commissioner was proceeding on the basis that she had dealt with the question of the attack on Mr O'Regan's credit - which necessarily picks up the question of the alleged motive to fabricate and reason not to believe Mr O'Regan - in paragraph 21(a). Paragraph 21(b) should be understood on that basis.

158 Turning next to the Frankston incidents, the notice specified the finding that Mr Shields had made derogatory remarks to a female member of the public outside the Pier Hotel and Seascape Café in that area.

159 Mr Shields' submissions in response referred, among other things, to his denial of the words attributed to him by the civilian witnesses. Again, he "expressly denied" the allegations. The submissions referred to the corroboration of his denial by two other officers.

160 The Chief Commissioner's order dealt extensively with Mr Sheilds' submissions in response, both with those I have just described and others that were made. The Chief Commissioner's consideration began with this statement (par 11(a)):

You have not raised any issues about the credibility of the female complainant or any other witnesses.

161 Mr Shields submits that statement - which he treated as a finding of fact - was made without evidence because, in his denial of the allegations, it was implicit that he was raising issues about the credit of the complainant and the other witnesses. That is the sole basis of this aspect of Mr Shields' no evidence submission to this Court on this subject.

162 Mr Shields' submissions must be rejected. Assuming that the statement was a finding of fact, in paragraph 11(a) the Chief Commissioner was saying only that Mr Shields had not expressly raised any of the credibility issues mentioned, which was plainly supported by the evidence. To the extent that Mr Shields had made an implicit submission on this question in his general submissions, it was implicitly rejected by the Chief Commissioner.

163 Ground five of the judicial review application must be rejected, which means that Mr Shields has not succeeded on any of the grounds on which he relied. The judicial review application must be rejected as a whole.

164 In 2006 former Senior Sergeant Richard Shields was dismissed from the Victoria police force by the Chief Commissioner, Christine Nixon, under s 68(1) of the Police Regulation Act. She did so because, applying the criteria specified in that section, and having investigated the allegations against him, she was satisfied Mr Shields was unsuitable to continue, having regard to his integrity and the potential loss of community confidence were he to remain in the force.

165 Mr Shields sought judicial review of the Chief Commissioner's decision. Putting forward wide-ranging grounds, Mr Shields contended the Chief Commissioner breached the rules of natural justice, committed errors of law by misinterpreting and misapplying the legislation, failed to take relevant considerations into account, used the dismissal power for an improper purpose and made findings without evidence. Mr Shields sought orders quashing the dismissal and remitting the matter back to the Chief Commissioner for reconsideration.

166 I have considered and rejected each of these grounds.

167 Mr Shields was not denied natural justice. The Chief Commissioner followed the correct statutory procedure and gave Mr Shields a full and proper opportunity to answer the allegations against him, which his solicitors took up on his behalf.

168 The Chief Commissioner did not commit any errors of law. As required by the legislation, she made provisional findings, from which she was prepared to depart, and about which she gave Mr Shields the opportunity to make submissions. She made final findings only after considering his submissions.

169 Mr Shields' good character and record of service to date was taken into account by the Chief Commissioner. She did not ignore any considerations she was bound to take into account. In particular, in this case, she was not bound to consider the possible availability of the ordinary processes for disciplining police officers, for these were not in issue. The power to dismiss in s 68(1) has to be exercised according to its own terms, which is how the Chief Commissioner approached the matter.

170 The Chief Commissioner did not exercise the power in s 68(1) for the improper purpose of avoiding those ordinary disciplinary processes. Finally, the findings attacked by Mr Shields were supported by evidence.

171 The Chief Commissioner has a positive responsibility under the Police Regulation Act to maintain the integrity of, and community confidence in, the Victoria police force. Section 68 was introduced by amendment in 1999 to enhance the capacity of the Chief Commissioner to carry out that responsibility. It did so by giving her the power to remove a member who she is satisfied is unsuitable to continue. Section 68(1) does not confer a discretionary power that can be exercised by the Chief Commissioner according to her managerial prerogative. It operates in a compulsive manner for the definite purpose for which it was conferred. Once the Chief Commissioner is satisfied the member is unsuitable to continue, having regard to their integrity and the potential loss of community confidence if they were to continue, she must dismiss them.

172 In the present case, the Chief Commissioner made these findings, which were very serious:

• Mr Shields had openly engaged in persecutory, intimidatory and bullying behaviour towards others, including conduct that humiliated and degraded women

• Mr Shields had allowed his relationship with a probationary constable who was not under his management and supervision to lead him improperly to place her professional development ahead of members formally under his management and supervision

173 Having found Mr Shields engaged in that conduct, the Chief Commissioner was legally entitled to be satisfied that Mr Shields was unsuitable to continue as a member of the force, having regard to his integrity and the potential loss of community confidence were he to continue. Mr Shields' dismissal was not unlawful.

174 The application for judicial review will be dismissed.

[1] Section 68(2)(a) of the Police Regulation Act 1958.

[2] See Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297, 301-305; Public Service Board of New South Wales v Etherton [1985] 1 NSWLR 430, 432; see also R v Little; Ex parte Fong [1983] VicRp 20; [1983] 1 VR 237, 251.

[5] Ibid 272 citing Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 628-629.

[6] Robb and Dale v Chief Commissioner of Police [2005] VSC 310; (2005) 23 VAR 244, 268; following Bigg v NSW Police Service (1998) 80 IR 434, 458; Little v Commissioner of Police (No 2) (2002) 112 IR 212; Van Huisstede v Commissioner of Police [2000] NSWIRComm 97; (2000) 98 IR 57, 104-105.

[7] The further ground that the Chief Commissioner had an obligation to conduct an oral hearing was not pressed.

[8] See Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 651-657, especially 657; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, 67; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12, 20.

[9] McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357; Glaxsmithkline Australia Pty Ltd v Anderson [2003] FCA 617; (2003) 130 FCR 222, 245; Secretary of the Department of Primary Industries v Costa [2007] VSC 88, [21]. The principle is implicit in the judgment of Brennan J in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, 424-425.

[10] Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, 425.

[11] See eg Boucher v Australian Securities Commission (1996) 41 ALD 274, 279-280; Secretary of the Department of Primary Industries v Costa [2007] VSC 88, [21].

[12] [1984] FCA 57; (1984) 1 FCR 354 (Woodward, Northrop and Jenkinson JJ).

[14] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272.

[15] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287; approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272.

[16] Shock Records Pty Ltd v Jones [2006] VSCA 180, [85] per Bell AJA, Callaway and Ashley JJA agreeing; Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121, [3] per Ashley JA and [19]-[22] per Redlich JA.

[17] State Electricity Commission v Commissioner for Equal Opportunity [1992] VicRp 6; [1992] 1 VR 79, 88.

[19] Ibid 88. For a discussion of the analogous principles that apply to the decisions of judges, see generally Fletcher Construction Australia Pty Ltd v Lines MacFarlane and Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1, 30-31; Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 18; Pettitt v Dunkley [1971] 1 NSWLR 376, 382, 387-388; De Iacovo v Lacanale [1957] VicRp 78; [1957] VR 553, 557-559 and Intertransport International Private Ltd v Bruce Donaldson and Liquid Bulk Solutions Pty Ltd [2005] VSCA 303, [18]-[19].

[21] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492.

[22] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 532.

[23] See eg Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 100; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100, 116.

[27] Ibid 554; approved in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531 for this proposition: "The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion."

[30] Ibid 244; citing Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, 122, which contains a useful summary of the principles at 122-123, and R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 264.

[31] (2001) 205 CLR 507, 562-563, Gleeson CJ and Gummow J agreeing at 538-539.

[32] R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 555.

[33] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40.

[35] Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375.

[36] Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388, 392.

[37] Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169, 195.

[38] Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1, 13 citing Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987); see also Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87, 96; Sacharowitz v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 2; (1991) 33 FCR 480, 486; Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169,178-179; Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453, 468; cf Bruce v Cole (1998) 45 NSWLR 163, 186; Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426, 435-442.

[39] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41.

[40] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 271-272 citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36.

[41] See generally A Goninan and Co Ltd v Commissioner of Patents [1997] FCA 424; (1997) 75 FCR 200, 210-211.

[42] See s 11(1) of the Interpretation of Legislation Act and the proclamation under s 2(2) of the Police Regulation and Firearms (Amendment) Act dated 10 August 1999 which was published in the Victoria Government Gazette on 12 August 1999, 1889.

[43] Accident Compensation Commission v Murphy [1988] VicRp 52; [1988] VR 444, 447_; Encyclopaedia Britannica (Australia) Inc v Director of Consumer Affairs_ [1988] VicRp 82; [1988] VR 904, 912-913.

[44] Accident Compensation Commission v Murphy [1988] VicRp 52; [1988] VR 444, 447.

[45] It is not necessary to consider the principles governing the classification of Acts as amending or otherwise (see generally DC Pearce and RS Geddes, Statutory Interpretation in Australia (6th ed, 2006) 247-250, 261), because the Police Regulation and Firearms (Amendment) Act is plainly an amending Act.

[46] Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 735.

[48] Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453, 479.

[49] Francis Bennion, Statutory Interpretation (3rd ed, 1997) 212; see generally DC Pearce and RS Geddes, Statutory Interpretation in Australia (6th ed, 2006) 261.

[50] See eg Transport Accident Commission v Sweedman [2004] VSCA 162; (2004) 210 ALR 140, 149; Shaw v Yarranova Pty Ltd [2006] VSCA 291; (2006) 15 VR 289, 308.

[51] Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453, 479.

[56] (1663) Carthew 293 [1741] EngR 139; [90 ER 773]; 2 Salk 609 [91 ER 516].

[63] Ibid 608; see further Khoshabeh v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1158; (1994) 51 FCR 104, 106, 110-111.

[67] See also Gaisford v Fisher (1997) 45 ALD 87, 91-92 where Finn J held the disciplinary regime in the Public Service Act 1922 (Cth) did not displace an administrative security clearance regime just because the case concerned misconduct that might be dealt with under the former as well as the latter.

[69] Robb and Dale v Chief Commissioner of Police [2005] VSC 310; (2005) 23 VAR 244, 275.

[70] Victoria, Parliamentary Debates, Legislative Assembly, 22 April 1999, 588.

[71] Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 518.

[72] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

[73] Sydney Municipal Council v Campbell [1925] AC 338, 343; Arthur Yates and Co Pty Ltd v Vegetable Seeds Committee [1945] HCA 55; (1945) 72 CLR 37, 67-68, 82.

Interpretation Act 1897(NSW)

Sentencing (Crime of Murder) and Parole Reform Act 2003(NT)

Legislation Act 1984

Regulation and Firearms (Amendment) Act 1999

Under the Police Regulation Act 1958

Police Regulation and Firearms (Amendment) Act 1999

Police Regulation Act 1958

Federal Police Act 1979

Interpretation Act 1897(NSW)

Sentencing (Crime of Murder) and Parole Reform Act 2003(NT)

Legislation Act 1984

Regulation and Firearms (Amendment) Act 1999

Under the Police Regulation Act 1958

Police Regulation and Firearms (Amendment) Act 1999

At a glance

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Cases Cited (46)