In 1906 Justice O'Connor in the High Court, immediately after his reference to the broader sense of the word "ambiguity" referred to above, quoted with approval the following passage from the third edition of Maxwell on the Interpretation of Statutes :
"General words admit of indefinite extension or restriction, according to the subject to which they relate, and the scope and object in contemplation. They may convey faithfully enough all that was intended, and yet comprise also much that was not; or be so restricted in meaning as not to reach all the cases which fall within the real intention. Even, therefore, where there is no indistinctness or conflict of thought, or carelessness of expression in a statute, there is enough in the vagueness or elasticity inherent in language to account for the difficulty so frequently found in ascertaining the meaning of an enactment, with a degree of accuracy necessary for determining whether a particular case falls within it" ( Bowtell v Goldsborough Mort & Co Limited (1996) 3 CLR 444 at 457).
(The Hon J J Spigelman : "Statutory Interpretation: Identifying the Linguistic Register" (1999) 4 Newcastle Law Review 1 at 4 - 8.)
Preliminary conclusion
48 A consideration of the provision at issue in these proceedings in the light of the other provisions of the legislative and regulatory scheme, as exemplified by the earlier references to particular provisions, and when seen in the light of the authorities referred to, in my view demonstrates clearly that the issue between the parties will not be resolved by fine distinctions being drawn between the way in which the word "pay" or the phrases such as "with pay", "without pay" or "full pay" are used in the various provisions. It is clear that the drafting of the various provisions may not have involved close attention being paid to ensuring that possibly fine distinctions between various phrases were in fact intended to have any particular effect or any particular shade of meaning. No doubt particular provisions have come from various sources over the years and it is to be observed that the present statute and regulation are meant to serve a variety of purposes. For example, they deal with the statutory and regulatory framework and the provision of conditions of employment for two groups of officers and employees whose employment was drawn from two different statutory areas; namely the Police Regulation Act 1899 and the Public Sector Management Act 1998 (and its predecessors, the Public Service Act 1902 and the Public Service Act 1979).
49 Uninstructed by the submissions of the parties to which reference will shortly be made, an application of the principles of construction, keeping steadily in mind the mandate to ensure a rational and purposive result in the construction process, makes comfortably clear that the intention of the provision is to provide a power in the Commissioner to suspend officers from duty on two distinct bases. The first basis is "with pay" and the second "without pay". That is, in the latter situation, a suspension not only from office but a suspension "from pay", to use the words of sub-clause 40(3). The result of this construction is that suspension of the first type ("with pay") would be a suspension which left the pay situation, or the situation as to pay, of the officer intact, apart from those elements of pay which might by their very nature be episodic or subject to significant variation, such as payment for overtime. The loading provided by clause 4 of the award would thus continue to be paid in that situation.
Utility of declaratory relief
50 It will be convenient to refer to the submissions of the parties to ascertain whether consideration of them leads to a different conclusion to that reached on a preliminary basis. However, before turning to those submissions, it is appropriate to note one other important consideration arising from the fact that the application here is an application for declaratory relief. No demur to the granting of such relief, at least in principle, has been raised by the respondent. I consider that the concession implicit in the respondent's approach is appropriate. There is undoubted power provided by s 154 of the Industrial Relations Act 1996 to grant the declarations sought. Section 154(1) provides:
The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed.
51 There are a number of recent authorities of this Court which make plain the scope for and availability of appropriate relief provided by s 154 provision: for example, Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at 126 - 127; Ford v SAS Trustee Corporation (2000) 98 IR 444 at 476; State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 at [20]; "A" v Commission for Children and Young People & Anor (2001) 107 IR 211 at 213 and Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at 369.
52 It is also to be observed that the grant of declaratory relief is, by its very nature, discretionary. Nevertheless, I consider that it would be appropriate to grant declaratory relief whether I concluded that the proper construction of the relevant provision was consistent with the approach of the applicant or consistent with that advanced by the respondent. It is plain that there is a genuine issue between the parties as to the rights of Constable Griffiths which should be the subject of authoritative determination. In addition, the provisions in issue are of significance in the proper administration of an important area of public sector employment in this State. Although the relevant clause of the Regulation was varied in 1999 subsequent to Constable Griffiths' suspension, the amendment did not materially alter clause 40. Similarly, although the Police Service Regulation 1990 has been replaced by the Police Service Regulation 2000, that instrument contains a provision in relevantly similar terms to that considered in these proceedings. Similar issues were also the subject of declaratory relief granted by Spurling J of the Supreme Court in Chate v Commissioner of Police (1997) 76 IR 70.
Applicant's submissions
53 The applicant's written submissions helpfully set out the essential elements of its approach in this way:
7. The relevant effect of clause 40(1) of the Regulation is to empower the Commissioner, in the prescribed circumstances, to suspend a police officer from office in one of two different ways - either with pay, or without pay. The provision, in conferring a power to suspend with pay, does not give the Commissioner a general discretion to determine the amount of pay which an officer will receive whilst on suspension. The words of clause 40(1) - in particular, the words "may suspend the officer from office (with or without pay)" - are not apt to describe any such general discretion. They describe two alternative and opposite types of suspension rather than a range of modes of suspension. It is clear that in the context of the provision that "pay" is referring to the pay attaching to the office from which the officer is to be suspended - not an amount to be determined by the Commissioner in his discretion.
8. The correctness of alternative constructions of statutory provisions may be tested against their results: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. If the power of the Commissioner to suspend an officer with pay under clause 40(1) carried with it a discretion to determine the amount of pay to be received by the officer whilst on suspension, that would mean that a suspension on half salary only, or even a suspension with the payment of a merely nominal amount, could be said to constitute a suspension with pay. This would [be] an absurd result, and one unlikely to have been intended.
9. The language of clause 40(3) is to be contrasted with that of clause 40(1). Clause 40(3) (together with clause 40(2)) gives the Commissioner the power to take specified measures to alleviate any undue hardship suffered by a police officer who is suspended without pay. Clause 40(3) in particular permits the Commissioner to approve a maintenance payment of not more than 100% of salary of the officer at the time of suspension. The words of the provision clearly give the Commissioner a discretion to determine, up to a specified limit, the amount of any maintenance payment to be made to an officer in the prescribed circumstances. Similar language could have been used in clause 40(1), but it was not. Furthermore, if the Commissioner did have the flexibility to determine the quantum of pay of an officer whilst suspended under clause 40(1), then clause 40(3) would be largely unnecessary. It is apparent that the purpose of clause 40(3) is to ameliorate the potentially harsh consequences of the exercise of the limited power under clause 40(1) to suspend either with or without pay.
10. The correct approach in this case is therefore to determine what elements of the remuneration attaching to the office from which Mr Griffiths was suspended can be said to fall within the word "pay".
11. The word "pay" is not defined in the Regulation, or in the Act. In its ordinary sense (as a noun), it relevantly means "payment, as of wages; wages, salary or stipend" (Macquarie Dictionary, 3rd ed., p.1579). "Remuneration" also means "pay" (Macquarie Dictionary, p.1802).
54 The applicant relied on judicial interpretations of the word "pay" where it has been held as capable of bearing wide meaning: for example, Rogan v Director-General of Technical and Further Education . It was said that the only relevant limitation which may apply to the word "pay" is that it is sometimes not regarded as apposite in relation to allowances designed to reimburse or indemnify for expenses: Bayley v Bayley [1922] 2 KB 227; Stuart-Robinson v Lloyd (1932) 47 CLR 482; and that:
14. The unqualified word "pay" is clearly wider in scope than the phrase "ordinary pay" and its equivalents. But even "ordinary pay", depending on it context, might be capable of encompassing the type of loading referred to in paragraph 2 above. For example, in Kezich v Leighton Contractors Proprietary Limited (1974) 131 CLR 362, it was held that payment for overtime which was ordinarily worked fell with[in] the scope of the phrase "ordinary wage or salary ... for ordinary hours". And in Registered Clubs Association of New South Wales v Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch [2000] NSWIRComm 262 (14 December 2000, Glynn J), it was held that an award casual loading of 33 1/3 per cent fell within the expression "ordinary pay" as defined in the Long Service Leave Act 1955.
15. Therefore, on the ordinary meaning of the word, and as judicially defined, the "pay" of a police officer would include the 10 per cent loading referred to in paragraph 2 above. It is a regularly-paid allowance evidently intended to compensate police officers for the standard incidents of their employment. It does not reimburse or indemnify police officers for expenses incurred.
55 The applicant also argued that although clause 40(1) uses the word "pay" and clause 40(3) uses the word "salary", the latter term like the word "pay", is a word capable of bearing a broad meaning: Commissioner for Government Transport v Kesby (1972) 127 CLR 374 at 388 per Gibbs J. Thus, "salary" has been held to include shift penalties and regular overtime: Kesby at 388 - 9; and an allowance for skill: Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720. In accordance with this approach the reference to "salary" in clause 40(3) would be capable of encompassing the 10 per cent loading referred to in the award. The word "pay" as used in clause 40(1) must be at least as wide in meaning as "salary" in clause 40(3). On the basis of the dictionary definitions and authorities relied on by the applicant it was submitted that an absurd result would result if "pay" had a narrower meaning than "salary". Further, it would, for example, mean that an officer suspended without pay under clause 40(1), but who then received (say) a 100 per cent maintenance payment under clause 40(3), would receive more remuneration than an officer who was suspended with pay under clause 40(1).
56 The applicant's submission concluded on this note in submitting that the Court should therefore grant the orders sought by the applicant:
19. The fact that a police officer on suspension does not perform weekend work, shift work, or recalls to duty whilst on suspension is not relevant to a consideration of whether a police officer suspended with pay is entitled to be paid the additional loading referred to in paragraph 2 above. A police officer on suspension does not perform any duties at all, but it of course does not follow that because of this fact a police officer who is suspended with pay should not receive any salary at all. The whole purpose in having a statutory power to suspend a police officer with pay can only be to allow the police officer to receive payment despite the fact that there is no performance of duties such as would normally be required in order to entitle the police officer to be paid. This proposition applies as much to the additional loading as it does to the base salary.
20. The pay attaching to the office from which Mr Griffiths was suspended included the additional 10 per cent loading. The Commissioner, having decided to suspend Mr Griffiths from his office with pay, did not have a discretion to withhold the payment of that loading. It follows therefore that:
(i) The suspension of Mr Griffiths on the basis that he would receive his base salary but not his additional loading was not a suspension "with or without pay" in accordance with clause 40(1) of the Regulation; and
(ii) Any valid suspension of Mr Griffiths with pay must involve payment to him of his additional loading.
Respondent's submissions
57 The respondent submitted that, while the starting point for the interpretation of the word "pay" is its ordinary meaning, the ordinary meaning does not provide a great deal of assistance although it arguably favours the respondent's contentions. In addition to cases relied on by the applicant, for example Rogan v Director-General of Technical and Further Education and Metropolitan Water Sewerage and Drainage Board v Histon , the respondent referred to Mette v Howarth (1935) 53 CLR 55 where the High Court considered whether a lump sum payment payable under superannuation legislation upon the retirement of a public servant, was "pay" for the purpose of the Bankruptcy Act . In their joint judgment in that case, Evatt and McTiernan JJ said at 66:
The word "pay" includes the remuneration granted to the holder of a rank or office in the case where he is relieved for the actual performance of the duties of the office. In this sense it includes the half pay of a military officer. A characteristic of a payment which answers the description "pay" is that the payee receives it on account of the occupancy of some office, rank or employment.
58 Accordingly, it was submitted that, even though in Rogan and Histon the court dealt with the concept of "pay" as being one that was wider than "salary" it is clear from the judgments that the comprehension of an allowance within the term "pay" is directly referrable to the performance of duties of the office or position. Thus, it is said (citing from the respondent's helpful written submissions):
13. In the present circumstances the payment made under clause 4 of the Award is a "loading for work performed on weekends, shift work, recall to duty and other incidents of employment other than those covered elsewhere in this Award and Agreement No. 2396 of 1982 made between John Patrick Ducker, on behalf of her Majesty the Queen and the Police Association of New South Wales". The allowance, properly characterised, is compensation for the inconvenience, disruption and other dis-amenities resulting from being required to perform duty in the circumstances identified in clause 4 of the Award. Like the special responsibilities allowance in Rogan the amount is not "pay" unless there is a performance of duty and the consequent suffering of the relevant inconvenience, disruption and dis-amenity.
14. Next, it is relevant that the expression "with … pay" is different from other terms that are used throughout the Regulation. In particular clauses 72, 75 and 97 of the Regulation all refer to "full pay". The use of this expression seems to connote a wider concept than the use of the word "pay" (alone) in its context in the Regulations. Clause 40(1), of course, provides for suspension on "pay" but not necessarily (apparently) on "full pay". The concept of "full pay", it is submitted, can only be wider if it is read to include all payments that would be made had the officer concerned been at work - such a phrase stands in distinction to "pay". There is otherwise no sound distinction between the two concepts within the Regulations.
15. In ascribing a meaning to the word "pay" in Regulation 40(1) the Commission should have regard to the scheme of legislative and award regulation that applied at the relevant time. Significantly both the Award and the Regulations dealt with terms and conditions of employment.
16. It is clear that putting aside the proviso to the commencement of clause 3 (which deals with salaries) the clause in question provides for the payment of an annual salary whilst a person remains an "officer". The clause is like the award clause that was considered in Gapes v Commercial Bank of Australia Limited (1979) 41 FLR 27.
17. Regulation 40 for which clause 3 of the Award is subject provides an exception to the payment of salary.
18. Note that the payment of the loading, the special duties allowance and the on call allowance are not "subject to the regulation" or expressed to be "subject to the regulation" - they are, as is submitted above, only payable when the conditions precedent to payment operate. Those clauses do not need to be "subject to … the regulations" for the purpose of suspension because they simply do not (and cannot) operate where an officer is suspended - contrast the position in respect of salary, absent a provision allowing suspension there would be no right to withhold salary from a person who remained an officer.
59 The respondent's submission concluded on the basis that the interpretation it advances:
gives a real meaning as to why the payment of salary is expressed to be "subject to the regulations"; and that where there is no performance of duties there is no right to payment of the allowance provided for by clause 4 of the Award; the allowance therefore cannot come within the meaning of the word "pay" for the purpose of Regulation 40(1). The application should accordingly be dismissed.
Meaning of the words "salary" and "pay"
60 It is necessary now to consider the submissions as to the meaning to be given to the related words "salary" and "pay". Not surprisingly, the judgments relied on which consider the meanings to be provided to these words are judgments dealing with the construction and application of various statutes which use the relevant word in a wide variety of different contexts. Care must therefore necessarily be taken to avoid giving the word a meaning which so depends on the context of the particular judgment that its subsequent application would exceed what is reasonably available. Notwithstanding these caveats it seems comfortably clear that the terms "salary" and "pay" are terms of wide import and that, again in general terms, the meaning of the term "pay" is wider than the term "salary". Cases which exemplify these propositions include Commissioner for Government Transport v Kesby (1972) 127 CLR 374 where the leading judgment in the High Court was that of Gibbs J and Metropolitan Water Sewerage and Drainage Board v Histon . It has also been held that the concept of "pay" is, generally speaking, a wider concept than that of "salary". As McHugh JA said in Rogan v Director-General of Technical and Further Education at 350 (with the concurrence of Kirby P and Samuels JA):
The pay of an employee is a wider concept than that of the salary applicable to the office which the employee holds. It covers every payment to the employee in his character as an employee in respect of the performance of the duties of his office or position.
61 Although it was held in Stuart-Robertson v Lloyd (1932) 47 CLR 482 that the concept of "pay" may be narrower than that of "income", even in the narrowest sense of the latter word, the payment considered in that case was held to be income but not "pay, pension, salary or wages" as it was in the character of a reimbursement or indemnity for expenses incurred in the discharge of duties; see also Bayley v Bayley [1922] 2 KB 227.
62 In Nette v Howarth , Evatt and McTiernan JJ said:
The word "pay" includes the remuneration granted to the holder of a rank or office in the case where he is relieved from actual performance of the duties of the office. In this sense it includes the half-pay of a military officer. A characteristic of a payment which answers the description "pay" is that the party received on account of the occupancy of some office, rank or employment . (emphasis added)
63 Their Honours distinguished the word "pay" from the word "pension". The term "pension" was held to describe a payment to a person who had retired in consideration of past services. A payment received as a refund of contributions to a pension fund because there was in fact no entitlement to a pension under the relevant statute was, in turn, distinguished from the concepts "pay" or "pension". Some of the cases referred to which give the concept of "pay" a narrow view are cases which turn particularly on their own special facts: see, for example, Upperton v Ridley [1900] 1 QB 680; on appeal: Upperton (Pauper) v Sir Matthew White Ridley [1903] AC 281; Goodwin v Sheffield Corporation [1902] 1 KB 629. I do not consider that any of these authorities contradict the general propositions in paragraph [60] or tell against the preliminary conclusion earlier set out in paragraphs [48] and [49].
64 I conclude that the term "pay" in the subject clause of the Regulation is wide enough to include, and is intended to include, both the salary and the loading set out in the respective award clauses.
History of long service leave provisions
65 It may be observed that an important aspect of the respondent's submissions involves reliance on the contrast between the phrase in Clause 40 "with pay" and the phrase appearing elsewhere in the Regulation, "full pay". Reference has earlier been made to the "patchwork" of references to various kinds of pay or payment in different parts of the Regulation and how, at least inferentially, the situation has occurred by a process of accretion through amendment or variation in various contexts over many years.
66 Consideration of the broader history of long service or extended leave tends to indicate that the notion of "full pay" arose from the way in which, historically, long service leave came to be granted to public servants and other officers and employees in the public sector of the various States. A useful conspectus of the early history may be found in the 1983 publication by Hugh Selby entitled Long Service Leave (Law Book Company Ltd, 1983), the successor to the earlier works by Watson J. The early pages of that work show how the antecedents of current long service leave provisions were the furlough provisions enacted for public servants in the pre-Federation colonies. The earliest provisions referred to are Victoria's Public Service Act 1862 and South Australia's Civil Service Act 1862.
67 Interestingly, the Victorian statute provided leave "where any officer desires to visit Europe or some other distant country". The Governor in Council could grant an officer "leave of absence upon half salary for a period not exceeding twelve months" where the officer had at least ten years service. The counterpart provisions in the South Australian statute did not condition the grant of leave upon a desire to visit Europe "or some other distant country" but only that the officer have "at least ten years continuous service". The benefit granted was "not exceeding twelve months' leave of absence on half salary , or, at his option, six months' leave of absence on full salary " (emphasis supplied). Similar entitlements were provided for additional periods of service.
68 In tracing the history further, Selby refers to the civil service in New South Wales securing similar concessions through regulation. The concessions also were initially granted as an exercise of discretion. By 1918 the leave had come to be a vested right for civil servants. The first New South Wales legislation providing for long service leave was enacted the next year. The relevant legislation was the Public Service (Amendment) Act 1919, ss 13 and 14 of which, importantly for present purposes, granted every officer with fifteen years service an entitlement to "three months leave on full pay or six months on half pay " with similar entitlements at the completion of twenty years service etc. Selby does not deal specifically with the situation of police officers. However, it appears that similar entitlements were not granted, at least by legislation, to police officers until 1944. The relevant statute was the Police Regulation (Amendment) Act of that year. The statute inserted ss 12A and 12B in the Police Regulation Act 1899. Those sections provided similar entitlements to those which had been granted under the Public Service Act 1902 by the 1919 amending statute: that is, an entitlement to "three months leave on full pay or six months leave on half pay " after a member of the police force had fifteen years of service, with similar entitlements for subsequent periods of service. These provisions have their counterpart in the current Regulation, clauses 71 to 72 of which, as earlier noted, continue the dichotomy between "full pay" and "half pay".
69 In my opinion, the historical circumstances of long service leave having been granted over a considerable period on the basis of a certain amount of leave on full pay or twice that amount of leave on half pay, indicates that the use of the phrase "full pay" in the Regulation is not intended to create a distinction between "full pay" and "with pay". Rather, it is to be seen as having its origin in provisions where the distinction being drawn was between "full pay" leave and leave at "half pay". There is thus no basis to construe the relevant phrase, that is the phrase "with pay", as involving a distinction with the notion of "full pay". The origin of the former phrase is to be explained on an entirely different basis. This circumstance also emphasises the importance of approaching the matter in terms of the principle enunciated by Priestley JA in Murphy v Farmer .
70 These considerations also, in my view, confirm the correctness of the preliminary conclusions earlier expressed. The outcome for which the applicant has contended should be accepted, at least in principle.
The relief to be granted
71 It is to be observed that the grant of declaratory relief carries with it the grant of liberty to apply to seek further relief should the declaration granted not resolve the issues between the parties: see Royal Insurance Company Limited v Mylius (1926) 38 CLR 477 at 497 per Isaacs J (with whom Knox CJ and Starke J agreed) and Quin v Attorney General New South Wales (1988) 28 IR 244 at 249, 261. Subject to that consideration, although it seems appropriate to grant relief broadly as sought by the applicant, the precise orders sought are not appropriate. The orders sought were premised on the assumption that the suspension of Constable Griffith was not a suspension in accordance with cl 40(1) of the Regulation. Although it has been found that he was not appropriately paid for the suspension, I have no doubt he was suspended, and validly suspended, with pay in accordance with the relevant subclause. The declaratory orders made will reflect that conclusion and will, to that extent, vary from those sought by the applicant. The second declaration sought was, in any event, too wide. The form in which it is made is set out in the third declaration granted which has been accordingly slightly reformulated.
Declarations and orders
72 The Court makes the following declarations and orders:
Declarations that:
1. The suspension of Constable Barry Griffiths, a member of the applicant, the Police Association of New South Wales, from his office in the Police Service of New South Wales during the period 24 May 1996 to 8 March 1999 was a suspension with pay in accordance with clause 40(1) of the Police Service Regulation 1990.
2. The said suspension did not comply with the requirements of clause 40(1) of the said Regulation in that Constable Barry Griffiths was not paid, during the period of suspension, the ten per cent salary loading payable to him as an officer of the Police Service of New South Wales and as required by the Crown Employees (Non-Commissioned Police Officers) Award, as in force and as varied during that period.
3. The ten per cent salary loading payable to Constable Griffiths as an officer of the Police Service of New South Wales and as required by the Crown Employees (Non-Commissioned Police Officers) Award, as in force and as varied during that period, must form part of his pay for the purpose of his suspension from office with pay under clause 40(1) of the said Regulation.