Police Association of New South Wales v State of New South Wales

Supreme Court of NSW|2019-05-16|Before: Adamson J

New South Wales, Royal Commission into the New South Wales Police Service, The Complaints and Discipline System (1997) Vol 2, Ch 4 Category: Principal judgment Parties: Police Association of NSW (First Plaintiff) Nicholas Gardner (Second Plaintiff) State of New South Wales (First Defendant) Commissioner of NSW Police (Second Defendant) Representation: Counsel: M Gibian SC (Plaintiffs) M Seck (Defendants)

Solicitors: Police Association of NSW (Plaintiffs) K&L Gates (Defendants) File Number(s): 2018/282564

The relevant facts

On 20 December 2002 the Officer was appointed to the NSW Police Force. In 2008 he was appointed to a positon as a Surveillance Operative attached to the State Surveillance Branch. The work of the State Surveillance Branch is performed by police officers who hold designated positions as Surveillance Operatives.
On 22 April 2008 the Officer was promoted to the grade of Senior Constable. During the seven-year period until 7 August 2018, the Officer regularly "acted up" as a Team Leader of a surveillance team attached to the State Surveillance Branch. Although the position of Surveillance Operative is nominally attached to a head office in a covert location in the Sydney basin, the work of such operatives and their Team Leader is largely covert surveillance performed in the field at various locations in New South Wales which are generally within the Sydney basin.
As a Surveillance Operative, the Officer was entitled to a Plain Clothes Allowance of $1,259 per annum under cl 65.9 and Table 15 of the Police and Crown Employees (Police Officers - 2017) Award (the Award). The Plain Clothes Allowance was paid in lieu of the provision of a uniform. He was also entitled to a Special Duties Allowance of $1,243 per annum under cl 42.2 and Table 9 of the Award.
On 7 August 2018 the Commissioner, through his delegate, made the Order following the making of complaints about the Officer, the first two of which concerned inappropriate conduct towards women and the third of which concerned bullying.
The Order contained reasons which, after setting out the allegations and findings, said as follows: "Consideration You should be in no doubt that I am very concerned about these matters. I consider it particularly important that all sworn officers conduct themselves in a manner that is consistent with the highest standards of behaviour on and off duty. Your conduct described above falls short of those standards. In relation to Allegations 1 and 2, your conduct towards your two female colleagues was threatening and intimidating and entirely inappropriate and unprofessional. I am alarmed that this behaviour has occurred on two occasions within a short period of time. These incidents were serious enough that both Senior Constable [K] and Senior Constable [W] expressed concerns about working with you. In relation to Allegation 3, it appears you are unaware of your obligations under the Respectful Workplace Behaviours Guidelines which make it clear that bullying and harassment can occur regardless of whether there was an intention to bully or harass the person. Your conduct towards Senior Constable [M] demonstrates a lack of insight into your behaviour. There is no excuse for a police officer with your experience who regularly relieves in a Sergeant's role, to engage in behaviour towards another police officer that is intimidating and is a potential risk to that officer's health and safety. The effect of your conduct on Senior Constable [M] was such that it was a contributing factor to the officer seeking a transfer out of the State Surveillance Branch. I am particularly concerned that an officer with your length of service, training and experience appears incapable of respectful and appropriate behaviour not only in the workplace but also when encountering your colleagues off duty. When considering the managerial action available to me, I have regard for the fact you will be warned by the Region Commander. This should leave you in no doubt as to the serious nature of your misconduct. However, to assist you in modifying and adjusting your behaviour I have decided to impose a remedial measure. I have determined that it is in your best interests and in the interest of the NSW Police Force for you not to remain at SSB [State Surveillance Branch] but for you to be transferred to a new command. At this new command you will be under a new Senior Management Team with the opportunity for greater supervision and support. I note you have been at SSB since 2008. A new location will allow you to build relationships with new colleagues and to work in a less insulated environment where you will have the support from a greater number of supervisors. This new opportunity will assist you to address your behaviour in particular your anger issues and your attitude towards other police officers so you can reach the high standards of conduct that are expected. Accordingly, I hereby order that non-reviewable action under s 173(2), Schedule 1, of the Police Act 1990, being a non-disciplinary transfer to Chatswood Police Station, North Shore Police Area Command, be taken. As stated above, this Order is not intended as a punitive or disciplinary sanction. Instead my intent in making this Order is to implement remedial action which I believe is required to support you to reach the standards expected of you. The transfer is designed to ensure you meet these obligations. This Order takes effect on the date on which it is made. In making this order, I reinforce the need for you to act at all times in accordance with the obligations and requirements of the Police Act 1990, the Police Regulation 2015 and the NSW Police Force Code of Conduct and Ethics. Any continued misconduct may result in further management action, which may include consideration of reviewable action under s 173(2) of the Police Act 1990 or removal under s 181D of the Police Act 1990." [Emphasis added.]
Although the Order did not affect the Officer's rank, seniority or base salary, he lost his entitlement to the two allowances set out above since he became a uniformed officer and would not necessarily be performing special duties. However, to the extent to which he is required to perform any of the special duties specified in 42.2 of the Award for Grade 1 officers in his new location, he will be entitled to a special duties allowance.
On 23 August 2018 the plaintiff filed an application in the Industrial Relations Commission (IRC) under s 174 against the defendants (the IRC Application). On 31 August 2018 the defendants filed a notice of motion in the IRC seeking a declaration that it has no jurisdiction to review a non-reviewable order. On 3 September 2018 the IRC made directions and listed the IRC Application for hearing on 12 October 2018.
On 14 September 2018 the plaintiff commenced the present proceedings by summons in this Court seeking the relief referred to above. On 24 September 2018, the IRC stood over the IRC Application pending determination of these proceedings. On 16 May 2019, the first plaintiff filed a third amended summons to make the Officer, who was formerly named as the third defendant, the second plaintiff. This course, which was not opposed, was done in order to overcome issues relating to the standing of the first plaintiff to obtain the relief claimed.

The principal issue

The principal issue is whether it was open to the Commissioner, as a matter of law, to treat the action contained in the Order as "non-reviewable action" within the meaning of s 173 and Sch 1. This question turns on whether the Order effected a "non-disciplinary transfer", which would make it "non-reviewable action" or whether the transfer was not "non-disciplinary", which would make it reviewable action. Certain procedures are required for "reviewable action", which are not required for "non-reviewable action". It is common ground that the procedural requirements for "reviewable action" were not complied with.
It is accepted that if the action taken under the Order amounted to a "non-disciplinary transfer", the Order is valid. In substance, the plaintiff submitted that the Order constituted reviewable action since the transfer was not "non-disciplinary". The defendants submitted to the contrary. The term "non-disciplinary transfer" is not defined. It appears only in Schedule 1. There is no reference in the Act to a "disciplinary transfer".

The relevant legislative history and statutory framework

In support of their contentions, the parties relied on relevant legislative history and statutory framework which is summarised below.

The legislative history

Section 6 of the Police Regulation (Appeals) Act 1923 (NSW) gave a right of appeal to any member of the police force who was "dissatisfied" with any decision of the Inspector-General with respect to "the granting or refusal of promotion to him or the imposition upon him, of any punishment where such punishment consists of the infliction of a fine, suspension, or reduction, whether in rank or pay, dismissal or discharge, or transfer".
The Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 (NSW), which was the statutory successor to the Police Regulation (Appeals) Act, similarly referred, in terms, to "punishment" and provided that a police officer could appeal "against a decision of the Commissioner to punish the police officer" by the imposition of a fine, reduction in salary, demotion to a lower rank or grade and suspension, dismissal, discharge or transfer: s 182.
The Act was substantially amended by the Police Service (Complaints and Reform) Act 1998 (NSW) (the 1998 Amendment). The 1998 Amendment was intended to give effect to the recommendations of the Royal Commission into the New South Wales Police Service, Final Report (1997) (the Wood Report) in Volume 2, Chapter 4. Chapter 4 of the Wood Report, entitled "The Complaints and Discipline System" identified several deficiencies in the existing system for complaints against police officers and recommended that the system be changed from what it referred to as the "formal adversarial model" to a "more managerial or remedial model that places the responsibility on commanders at patrol or equivalent level to deal with complaints and matters of discipline" (4.12). The Wood Report quoted from the reasons of the Full Federal Court (Bowen CJ, Gallop and Lockhart JJ) in Hardcastle v Commissioner of Police (1984) 53 ALR 593. Their Honours said at 597 that the purpose of a disciplinary system within a professional organisation is to "protect the public, to maintain proper standards of conduct and to protect the reputation of the organisation. It is not to punish."
The Wood Report said, in the context of the concepts involved in the "managerial system" which it envisaged, that there should be a presumption that the first recourse will be to "remedial rather than punitive action" (4.26). At 4.29, the Wood Report said: "While the expectation is that resort to behavioural management strategies rather than punishment will be sufficient in most cases, there will be occasions of serious misconduct where, although falling short of justifying dismissal or criminal prosecution, some form of personal detriment will be required to act as a deterrent, and to meet the reasonable expectations of a complainant. It is for this reason that the managerial process needs to include a disciplinary component, although resort to the latter should occur only when the Local Commander is satisfied that simple remedial intervention is insufficient."
The Wood Report, at 4.33, recommended that the options in the case of "bad performance" should fall into two categories: reviewable and non-reviewable. The recommendation with respect to the categories was as follows: "Non-Reviewable informal discussion with the officer to elicit the cause of the behaviour attracting concern, and the ways in which improvement can be achieved, including: retraining; counselling; personal development; supervision; transfer from a particular area of work; assignment to work with a mentor; change of shift; referral to welfare, for example, in cases involving difficulties in personal relationships or substance abuse; presentation of a report; conciliation or other form of problem solving, involving the complainant; caution; reprimand; restriction of duties; and transfer to uniform. Reviewable fine (reviewable if exceeds five penalty units); deferral of an increment; loss of seniority; reduction in salary; annulment of an appointment; demotion or reduction in rank or position; and dismissal for want of Commissioner's confidence." [Emphasis added.]
The Wood Report continued at 4.34: "It is anticipated that, in cases of serious misconduct involving a criminal offence, the Service would prosecute the officer concerned and/or invoke the dismissal procedure. In those cases, however, where for technical reasons the evidence or information available would not be admissible in a prosecution, a managerial disciplinary outcome falling within the reviewable category might be necessary. Otherwise, the Local Commander would not be expected to use any of the reviewable options unless satisfied that there was no option within the non-reviewable category appropriate for the circumstances of the particular case."
In the Second Reading Speech for the Police Service (Complaints and Management Reform) Bill (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 October 1998), the Minister for Police said that the amendments to Part 9 of the Police Service Act (as the Act was then known) were "based on the recommendations in chapter 4" of the Wood Report. At pp 8790-8791, the Minister said: "Emphasis will be placed on using appropriate modern management tools to improve performance and correct instances of minor misconduct. These tools include coaching, mentoring, training and development, counselling, increased professional, administrative or educational supervision, and performance enhancement agreements. Other approaches will also be available for use where necessary. These can include issuing a reprimand, imposing restricted duties, the recording of adverse findings and a change of shift for a limited period. In accordance with royal commission recommendation 72, sanctions of reduction in rank or grade, reduction in seniority and deferment of an increment will be available for the more serious cases in which some form of personal penalty is required to act as a deterrent. In accordance with royal commission recommendation 74, a right of review to the Industrial Relations Commission is available for these sanctions as their imposition may have a financial impact on the officer concerned." [Emphasis added.]

The implementation of the recommendations of the Wood Report in Part 9, Division 1 of the 1998 Amendment

The long title of the 1998 Amendment is: "An Act to amend the Police Service Act 1990 so as to make provision with respect to the handling of complaints about police officers and the management of police officers' misconduct and unsatisfactory performance and so as to abolish the Police Tribunal; to make consequential amendments to certain other Acts: and for other purposes."
The 1998 Amendment relevantly repealed and replaced Parts 8 and 9 of the Police Service Act. The new Part 9, entitled "Management of conduct within NSW Police Force", contains Division 1, entitled "Misconduct and unsatisfactory performance". Section 173, the only provision in Division 1, provides: "173 Commissioner may take action with respect to police officer's misconduct or unsatisfactory performance (1) In this section: non-reviewable action means action referred to in Schedule 1. reviewable action means action referred to in subsection (2), other than non-reviewable action. (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate. (3) The Commissioner may also order that action referred to in subsection (2) be taken with respect to a police officer whom the Commissioner has required to participate in a remedial performance program prescribed by the regulations and whose performance as a police officer after having participated in that program is, in the Commissioner's opinion, still unsatisfactory. (4) The Commissioner may make an order under subsection (2) or (3) whether or not the misconduct or unsatisfactory performance has been the subject of a misconduct matter or investigation under Part 8A or the Law Enforcement Conduct Commission Act 2016 and whether or not the police officer has been prosecuted or convicted for an offence in relation to the misconduct or unsatisfactory performance. (5) Before making an order for reviewable action, the Commissioner: (a) must cause to be served on the police officer a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and (b) must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and (c) must take into consideration any written submissions received from the police officer: (i) during the period of 7 days referred to in paragraph (b), or (ii) if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served. (6) As soon as practicable after making an order for reviewable action, the Commissioner must cause written notice that the order has been made to be served on the police officer concerned. The notice must be served personally or (if personal service is impracticable) by post. (7) The written notice must contain the terms of the order and must indicate: (a) the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the order has been made, and (b) whether the order results from a misconduct matter that has been investigated, or is being investigated, under Part 8A or the Law Enforcement Conduct Commission Act 2016, and (c) the Commissioner's reasons for making the order. (8) An order for action referred to in subsection (2) takes effect: (a) in the case of non-reviewable action, when the order is made, or (b) in the case of reviewable action, at the expiry of the time within which an application for a review of the order may be made under section 174 or, if such an application is made within that time, when the application is finally determined. (9) Except as provided by Division 1A: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission. (10) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (11) Nothing in Division 1A limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (12) Despite section 31, the Commissioner's functions under this section may only be delegated to a member of the NSW Police Force who is senior to the police officer in respect of whom those functions are being exercised."
Schedule 1 identifies the following as "non-reviewable action": "coachingmentoringtraining and development increased professional, administrative or educational supervision counsellingreprimandwarningretrainingpersonal development performance enhancement agreements non-disciplinary transfer change of shift (but only if the change results in no financial loss and is imposed for a limited period and is subject to review) restricted duties recording of adverse findings" [Emphasis added.]
It can be seen that, although the 1998 Amendment Act substantially implemented the recommendations of the Wood Report, the wording of Schedule 1 did not precisely replicate the wording in the recommendations. In particular, the two items concerning transfer in the Wood Report's "non-reviewable" list, being "transfer from a particular area of work" and "transfer to uniform", were replaced by "non-disciplinary transfer" in Schedule 1. Further, although the Minister referred in the Second Reading Speech to actions the imposition of which "may have a financial impact on the officer concerned" as being the reason for making such actions reviewable, financial impact is not expressed as a determinant in s 173 or Schedule 1, except in the case of a change of shift. The matters which the Minister instanced as potentially having a financial impact were reduction of rank or grade, reduction in seniority and deferment of increment. These three matters were specifically provided for in s 173(2)(a), (b) and (c) and are plainly reviewable.

The Police Act and the Police Regulations 2015 (NSW)

Police Act

Section 4 established the NSW Police Force. By s 5, the police force comprises the Commissioner, NSW Police Force senior executives and all other police officers or non-executive administrative employees. By s 8(1), the Commissioner is, subject to the directions of the Minister, responsible for the management and control of the police force. The Commissioner's responsibilities include the "effective, efficient and economical management of the functions and activities of the NSW Police Force": s 8(2). The Commissioner may classify the various duties that members of the force are required to perform and allocate the duties to be carried out by each member: s 8(3). The Commissioner may also issue instructions: s 8(4). The "positions" in the force consist of "such positions as the Commissioner may determine in accordance with this Act": s 10(1). The Commissioner may create, abolish or otherwise deal with any position and must classify and grade each position: s 10(2).
These provisions have led courts to describe the NSW Police Force as a hierarchical disciplined force of the Crown: State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 at [51] (Leeming JA, McColl and Ward JJA agreeing). As Brennan J said in Police Service Board v Morris (1985) 156 CLR 397 at 412; [1985] HCA 9: "Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty nor abuse their powers."
Section 10(4) provides: "Police officers of the rank of constable (or such of those police officers as the Commissioner determines) are to be appointed to that rank or to a grade within that rank, and hold a position (but not a separate position) in the NSW Police Force."
Section 12(1) lists the ranks of the force in descending order from Commissioner (s 12(1)(a)) to Constable (s 12(1)(f)). Persons exercising any of the functions of a police officer must first take an oath or affirmation of office as prescribed by the regulations: s 13(1).
Senior executives in the force are "employed" (s 32) pursuant to a contract of employment (s 38) and receive a "total remuneration package (comprising monetary remuneration and employment benefits) and any allowances": s 38(3).
Part 6 deals with "Non-executive police officers". It provides for "appointment" of such officers, "whether by transfer or promotion or otherwise": ss 63 and 64.
Section 69 relevantly provides: "69 Transfer of non-executive police officers (1) If the Commissioner considers it to be in the interests of the NSW Police Force to do so, the Commissioner may transfer a non-executive police officer from one non-executive police officer position to another non-executive police officer position or non-executive administrative employee position. (2) Such a transfer may be made if: (a) the position to which the officer is transferred entitles its holder to the same level of remuneration as the officer's former remuneration, or (b) the position to which the officer is transferred entitles its holder to a lower level of remuneration than the officer's former remuneration and: (i) the officer consents to the transfer at the lower level of remuneration, or (ii) the officer requested the transfer or the transfer is made pursuant to an order under section 173, or . . ."
Part 6B deals with "industrial matters relating to non-executive officers" and relevantly provides, by s 86(1), that the "salary, wages or other remuneration" of a non-executive officer may be determined by the Commissioner.
Section 88, which is contained in Part 6B, is a privative clause, and relevantly provides as follows: "88 Industrial or legal proceedings excluded (1) The engagement of, or the failure to engage, a person as a non-executive officer, or any matter, question or dispute relating to any such engagement (or failure to engage), is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996. (3) The failure of a non-executive commissioned police officer to be appointed for a further term of office as provided by section 75 is, for the purposes of this section, taken to be a failure to engage the person as a non-executive officer."
Part 8A was replaced by the 1998 Amendment. It deals with "complaints about the conduct of police officers, administrative employees and the NSW Police Force". Various terms, such as "misconduct information", "misconduct matter", "police complaint", "police misconduct" and "serious misconduct" are expressed to have the same meaning as in the Law Enforcement Conduct Commission Act 2016 (NSW) (the LECC Act).
Part 9 was also replaced by the 1998 Amendment. It deals with "management of conduct" within the force. Division 1, which contains s 173 (set out above) is entitled, "Misconduct and unsatisfactory performance". The Commissioner's power to make an order for action, whether non-reviewable or reviewable, "with respect to a police officer who engages in misconduct" is conferred by s 173(2). The actions in s 173(2)(a), (b) and (c) are plainly reviewable, since they are not contained in Schedule 1. The actions in s 173(2)(d) may be reviewable or non-reviewable, except those in parentheses, which are non-reviewable.
Division 1A of Part 9 provides for review of a Commissioner's order under Division 1 (s 173) for "reviewable action" by the IRC. Division 1B, entitled "Summary removal of police officers in whom Commissioner does not have confidence", contains s 181D, which empowers the Commissioner to remove police officers. Review of such a decision is provided for in Division 1C. The IRC may review the order on the ground that removal is "harsh, unreasonable or unjust".
Part 10 provides for offences relating to the force. An officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence: s 201.
Part 12, "Miscellaneous", contains s 213 which provides: "213 Protection from personal liability A member of the NSW Police Force is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law (whether written or unwritten)."

Police Regulations 2015

Clause 5 of the Police Regulation 2015 (NSW) (the Regulations) provides for grades within ranks of police officers. The grades for Constables are Senior Constable and Constable. Thus a Senior Constable has the rank of Constable and the grade of Senior Constable.
Clause 7 of the Regulations sets out the form of oath or affirmation to be taken by a police officer under s 13.

Law Enforcement Conduct Commission Act 2016 (NSW)

Another recommendation of the Wood Report was that there be a separate commission dealing with the conduct of those engaged in law enforcement, including police officers. The implementation of this recommendation led to the Police Integrity Commission and, more recently to the Law Enforcement Conduct Commission (LECC), which was established by the LECC Act. One of the objects of the LECC Act is to provide for independent oversight and review of the investigation by the NSW Police Force of misconduct concerning the conduct of its members: s 3(c).
The LECC Act draws a distinction between "police misconduct", which is defined in s 9(1) and "serious misconduct" which is defined in s 10(1). Police misconduct means "any misconduct (by way of action or inaction) of a police officer" (s 9(1)), whereas "serious misconduct" is relevantly defined to include conduct of a police officer that could result in prosecution for a serious offence or serious disciplinary action against the officer for a disciplinary infringement (s 10(1)). "Serious disciplinary action" is defined to mean "terminating the employment, demoting or reducing the rank, classification or grade of the office or position held by the officer . . . or reducing the remuneration payable to the officer or employee".
Although the distinction drawn between serious misconduct, which could result in serious disciplinary action, and non-serious misconduct does not, in terms, reflect the distinction drawn by s 173 between "reviewable" and "non-reviewable" action, there are close analogies between the provisions. The action encompassed by the definition of "serious disciplinary action" in s 10(2) of the LECC Act includes termination (for which provision is made in s 181D of the Police Act), demotion or reduction in rank (for which provision is made in s 173(2)(a) of the Police Act) and "reducing the remuneration payable to the officer", which would appear to be analogous to s 173(2)(a), (b) and (c) of the Police Act.
The connection between the LECC Act and the Police Act is apparent from provisions such as s 28(1)(b)(ii) of the LECC Act which provides that the functions of LECC include assembling evidence which may be used in deciding whether to take action under s 173 or s 181D of the Police Act. Under s 29 of the LECC Act, LECC may make recommendations as to whether consideration should be given to the taking of action under Part 9 of the Police Act "or other disciplinary action". It was not suggested that the LECC Act or its statutory predecessor determined the question at issue in the present case although it was said to be relevant background.

The practice note

I note for completeness that the parties referred to a practice note maintained by Professional Standards Command of the NSW Police Force, entitled "Complaint Practice Note Ref 10/2, entitled Non-Reviewable (Schedule 1) Transfer". As the content of the practice note cannot affect the meaning of "non-disciplinary transfer" as a matter of statutory construction, it is unnecessary to refer to it further.

Summary of the parties' submissions

The parties made detailed written and oral submissions which will be addressed, to the extent necessary, in the reasons set out below. It is convenient at the outset to summarise their respective submissions.

Summary of plaintiffs' submissions

Mr Gibian SC, who appeared for the plaintiffs, submitted that the transfer was not "non-disciplinary" and therefore was "reviewable action". He contended that a "non-disciplinary transfer" was one which did not have the effect of reducing the officer's remuneration and which could have been effected irrespective of any finding of misconduct or disciplinary cause. Thus he argued that the transfers provided for in s 69(2)(a), (b)(i) and that part of (b)(ii) where "the officer requested the transfer" were all "non-disciplinary transfers" but that a "transfer . . . made pursuant to an order under section 173" in s 69(2)(b)(ii) was a disciplinary transfer and therefore reviewable.
He submitted that the action required by the Order did not fall within s 69(2)(a) because the officer would not be entitled to the "same level of remuneration" since he would be entitled neither to the Special Duties Allowance nor to the Plain Clothes Allowance. He submitted that, because the Officer had been transferred to a "lower paid position" without his consent, the transfer could not be non-disciplinary because there was an element of sanction in the loss of allowances occasioned by it which constituted a financial penalty.
Mr Gibian contended that the subjective intention of the Commissioner in imposing the transfer and, in particular, whether it was intended to be "remedial" or "punitive" would be an unworkable basis to distinguish between non-disciplinary transfers and other transfers.

Construction of "non-disciplinary transfer"

Mr Seck, who appeared for the defendants, submitted that whether a transfer was to be regarded as "non-disciplinary" or otherwise was to be determined by its nature and purpose and not by its effect, whether financial or otherwise, on the officer concerned. He relied on the decision of the IRC in Commissioner of Police v Skelly [2010] NSWIRComm 18 in which the IRC found, at [51], that the distinction is that "the purpose of a non-disciplinary transfer is remedial and that reviewable orders are for the purpose of punishment".
Mr Seck accepted that, although the Commissioner (or relevant decision-maker under power of delegation) was not obliged to give reasons for non-reviewable action, the Court could take into account any reasons that were given to determine the nature and purpose of the transfer. He submitted that if the Commissioner formed the view that a non-disciplinary transfer was the appropriate remedial measure to address a police officer's misconduct then, unless legal error has been shown, the Order was validly made.
Mr Seck submitted that the construction for which the plaintiff contended could not be correct because an order for "non-disciplinary transfer" could be made under s 173, as contemplated by s 173 itself and Schedule 1. Mr Seck submitted that a finding of "misconduct" cannot be used to distinguish non-disciplinary transfers from other transfers because s 173 itself presupposes that there has been relevant misconduct.
Mr Seck contended that it was open to the Commissioner to make an order under s 173 for non-disciplinary transfer which may result in the reduction in the allowances of a police officer. He argued that, although all of the measures in s 173(2)(a), (b) and (c) would result in a reduction of remuneration, some of the measures listed in Schedule 1 (being non-reviewable action) could also result in financial loss.
Further and in the alternative, Mr Seck submitted that a transfer could be made under s 69(2)(a) even if the allowances for the position were different since the "remuneration" in the context of the Act was a reference to the base salary and any increments and did not include "allowances", which were referable to particular circumstances of the police officer's duties at any given time: such as whether plain clothes had to be worn or special duties performed. He submitted that the Award distinguished between remuneration, which is determined by rank and grade, and allowances, which depend on particular services rendered or as compensation for unusual conditions of service.

Jurisdiction

Mr Seck submitted that even if the Commissioner erred in treating the action to transfer the Officer under the Order as non-reviewable, the error was not jurisdictional and therefore ss 88 and 213 deprived this Court of jurisdiction. In the alternative, he submitted that even if jurisdictional error were established, an order in the nature of certiorari or prohibition would not lie and a bare declaration could not be made. He accepted that a declaration tailored to the specific circumstances of the present case could be made if jurisdictional error were established.

Construction

Mr Gibian submitted that Commissioner of Police v Skelly was incorrect and, as it was a decision of the IRC, it had no precedential value in this Court.

Jurisdiction

Mr Gibian submitted that neither s 88 nor s 213 applied to the present case. He contended that "engagement" in s 88 did not extend to "transfer" and relied on Public Service Board (NSW) v Public Service Association (NSW); Re Steele (1987) 17 IR 286. He submitted that the purpose of s 213 was to protect persons from personal liability, not to protect the decisions made by such persons from judicial review. He submitted that this Court's jurisdiction was preserved, in any event, by s 173(10).

Jurisdiction

The first question is whether any of the privative clauses relied upon by the defendants apply.

Section 88 of the Police Act

The application of s 88 turns on whether these proceedings are in respect of an "industrial matter" and, accordingly, whether the "transfer" of the Officer concerned his "engagement" "as a non-executive officer". I do not regard Public Service Board (NSW) v Public Service Association (NSW); Re Steele as of assistance in deciding this question as it turned on different legislation.
The defendants submitted that the word "engagement" in s 88(1) was not apt to include non-executive police officers (who are not employees), although it would be apt to include non-executive administrative officers (who are employees). The reason for this is that non-executive police officers are appointed and not engaged: State of New South Wales v Briggs at [53]. Accordingly, Mr Seck submitted that the word "engagement" in s 88(1) ought be read as including "engagement and appointment" so as to apply to both non-executive administrative officers (who were engaged) and non-executive police officers (who were appointed). He submitted that there was no discernible reason why s 88 would be limited to non-executive administrative officers when it was expressed to apply to non-executive officers generally, albeit by reference to "engagement".
Mr Seck submitted that if engagement were read as including appointment, then transfer was necessarily included because appointment is defined, for the purposes of Part 6, to include transfer in s 63, as is emphasised by the wording of s 64.
I do not accept these arguments. The defendants' submissions would appear to be at odds with s 88(3), which specifically deems the failure of a non-executive commissioned officer to be appointed for a further term of office as provided for in s 75, to be "a failure to engage the person as a non-executive officer" for the purposes of s 88. Thus, it can be inferred that the legislature was attuned to the distinction between engagement on the one hand and appointment on the other and chose to use the term engagement, but not appointment in s 88(1). Although there may well have been an intention to exclude the appointment and transfer of non-executive police officers from the operation of the Industrial Relations Act 1996 (NSW), the wording of s 88 is insufficiently clear to give effect to that intention.
In Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2, the plurality (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) summarised the principle to be applied to the construction of privative clauses at [72] as follows: "The second basic rule, which applies to privative clauses generally, is that it is presumed that the parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies. Accordingly, privative clauses are strictly construed."
Applying this rule, I am not satisfied that s 88 excludes this Court's jurisdiction under s 69 of the Supreme Court Act to provide relief in respect of errors of law on the face of the record. Section 88 cannot affect this Court's jurisdiction with respect to jurisdictional error: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [100] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

Section 213 of the Police Act

The defendants also relied on s 213. They contended that the Commissioner exercised a function under s 173(2) in good faith and that the words in s 213 "not liable for any injury or damage" included being liable to suit in respect of the public law remedies sought in these proceedings. The defendants relied on Kaldas v Barbour [2017] NSWCA 275; (2017) 350 ALR 292 (Kaldas).
In Kaldas, the plaintiff sought relief against the defendants arising out of a report of the NSW Ombudsman. The defendants relied on s 35A of the Ombudsman Act 1974 (NSW) which relevantly provided: "35A Immunity of Ombudsman and others (1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith. (2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court. (3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith."
The Court held that the plaintiff's claims were precluded by s 35A. The Court held that "liable" in s 35A meant "liable to suit" because of width of the words "whether on the ground of want of jurisdiction or on any other ground, to civil or criminal proceedings": [121] (Bathurst CJ); [314]-[318] (Basten JA, Macfarlan JA agreeing). Basten JA reasoned at [315] that the words "want of jurisdiction or any other ground" only had meaning in the context of judicial review and that therefore "civil proceedings" must have been intended to include applications for judicial review.
The defendants in the present case argued that the word "function" in s 213 must be a reference to the statutory powers conferred by the Act and that the words "whether written or unwritten" at the end of s 213 constituted an important extension which indicated that the protection was intended to apply to both in respect of statutory and common law "liability", which was apt to include judicial review.
The defendants also relied on the statutory history of s 213, which in its previous form provided in part: "213 Protection from personal liability (1) A member of NSW Police is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law with respect to the protection of persons from injury or death or property from damage. . . ."
The effect of the amendment made by the Police Legislation Amendment (Civil Liability) Act 2003 (NSW) was to delete the words "with respect to the protection of persons from injury or death or property from damage" and add the words and parentheses, "(whether written or unwritten)" at the end of s 213(1). The Explanatory Note explained the proposed amendment as follows: "Section 213 (1) of the Police Act 1990 currently provides that a member of NSW Police is not personally liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under that Act or any other Act or law with respect to the protection of persons from injury or death or property from damage. Schedule 3 [1] re-enacts section 213 of the Act to remove the limitation that the function exercised by the member of NSW Police must be with respect to the protection of persons from injury or death or property from damage for the exclusion from civil liability to apply. The re-enacted section also makes it clear that it extends to functions conferred by the unwritten common law. The exclusion of personal liability effected by the re-enacted section does not prevent a person from suing the Crown for a tort committed by a member of NSW Police who has the benefit of the exclusion if the Crown is vicariously liable for that tort. This results from the operation of section 10 of the Law Reform (Vicarious Liability) Act 1983, which provides that a statutory exemption from civil liability is to be disregarded in determining whether a person is vicariously liable for the tort of a person who has the benefit of the exemption."
I reject the construction of s 213 for which the defendants contended. There are important differences between the wording in s 35A of the Ombudsman Act considered in Kaldas and s 213. The word "liable" in s 213 is qualified by the words "for any injury or damage". It cannot, in my view, be concluded that the legislature intended by these words to include applications for judicial review in this context. Although it is possible to conceive of the word "liable" being amenable to applications for judicial review, on no view can it be said that any such "liability" is "for any injury or damage". The remedies available in actions for judicial review are limited to orders in the nature of the former prerogative writs (prohibition, mandamus or certiorari) and declarations. Such relief is given on the basis of errors of law (whether on the face of the record or jurisdictional) and not "for any injury or damage".
Further, although the heading of the section, "Protection from personal liability" is not part of the Act (s 35(2) of the Interpretation Act 1987 (NSW)), it nonetheless constitutes extrinsic material which can be used in the interpretation of the Act: ss 34(1) and 31(2)(a) of the Interpretation Act. The protection from "personal liability" in the heading is apt to refer to liability for "any injury or damage". This section is related to the provisions in the Law Reform (Vicarious Liability) Act 1983 (NSW) which require persons seeking damages for torts committed by police officers in the performance or purported performance of their functions as police officers generally to sue the Crown instead of the police officers concerned.
It would have been open to the legislature to oust this Court's jurisdiction for applications for judicial review which are not confined to jurisdictional error: Kirk v Industrial Court of New South Wales at [100]. It has not done so either expressly or by necessary implication in s 213. The rule set out above for the interpretation of privative clauses requires such provisions to be construed strictly.
It is not necessary to consider the effect of s 173(10) as I am not satisfied that this Court's jurisdiction to grant relief for error of law on the face of the record has been affected by ss 88 or 213. In these circumstances, s 69 of the Supreme Court Act applies, with the consequence that the reasons of the Commissioner's delegate form part of the "record" under s 69(4) of the Supreme Court Act as the Commissioner is, relevantly a "tribunal" for the purposes of s 69(3) of the Supreme Court Act: cf. Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13, where Basten JA noted at [17] that it was assumed by the parties that the assessor was a "tribunal".

Construction

As referred to above, the meaning of the words "non-disciplinary transfer" must be informed by a view as to what makes a transfer disciplinary. The distinction between a non-disciplinary transfer and a disciplinary is important because of the consequences of the classification. A non-disciplinary transfer can be ordered under s 173 without reasons and without the officer who is to be transferred having the rights provided for reviewable action in s 173, although the officer is still entitled to procedural fairness: Summersford v Commissioner for Police [2018] NSWCA 115 at [86]-[88] (Payne JA, McColl and Basten JJA agreeing). Schedule 1 specifically envisages that an officer in respect of whom a finding of misconduct has been made could be the subject of a non-disciplinary transfer. Accordingly, the word "non-disciplinary" (being the negative form of "disciplinary") cannot bear its usual English meaning as, for Schedule 1 to apply, there must have been a finding of misconduct under s 173, the consequences of which would generally be regarded as "disciplinary".
I reject the argument put on behalf of the plaintiffs that a "non-disciplinary transfer" must be one which falls within s 69(2)(a), (b)(i) or the first part of (b)(ii) (if the officer requested the transfer). An order for "non-disciplinary transfer" could be made under s 173, as contemplated by s 173 and Schedule 1. A finding of "misconduct" cannot be used to distinguish non-disciplinary transfers from other transfers because s 173 itself presupposes that there has been relevant misconduct.
In these circumstances, it is not necessary to decide whether "allowances" fall within "remuneration" since this question only arises if a transfer which was neither consented to nor requested must fall within s 69(2)(a) to be "non-disciplinary".
The parties' arguments summarised above pose the construction question in terms of a choice between, as the defendants contend, the purpose of the decision-maker, and, as the plaintiffs contend, the effect on the police officer.
The meaning of "non-disciplinary transfer" invites a search for a feature or features which are capable of distinguishing on a consistent basis between those matters in Schedule 1 on the one hand and actions which may be taken which are not in the list in Schedule 1 on the other. In other words: what do the actions in Schedule 1 have in common that is lacking in the actions which are specified in s 173(1)(a), (b) and (c) and other reviewable actions under s 173(1)(d)?
The distinction between a non-disciplinary and a disciplinary transfer was considered by the IRC (Boland J President; Walton J Vice-President; Grayson DP) in Commissioner of Police v Skelly. The IRC said, at [51], that the purpose of a non-disciplinary transfer is "remedial" whereas the purpose of a disciplinary transfer is "punishment". The IRC at [36] observed that "reviewable action" was "more serious" whereas "non-reviewable action" "by and large represent[ed] milder forms of corrective or rehabilitative action". The IRC continued at [37]: "This analysis offers some explanation as to why the legislature employed the adjective 'non-disciplinary' as a description of an action of transferring a police officer under Schedule 1, although the meaning of those words is accompanied by some ambiguity as the action derives from misconduct by an officer. However, the reference to 'non-disciplinary' in the context of transfers in Schedule 1 is indicative, in our view, of the legislature's intention to situate actions in that Schedule which are essentially remedial or managerial in nature and less severely corrective."
The IRC, at [41]-[42], rejected the distinction for which the plaintiffs contended in the present case because the distinction was not reflected in the differences between the actions in s 173(2) and those in Schedule 1. It said at [41]: "Whilst there was an absence of evidence on the question, there was no demur from the proposition that 'restricted duties' in Schedule 1 may often result in financial loss, as may a reduction in 'seniority' (referred to in s 173(2)(b)) not result in any financial loss."
The defendants accepted that I was not bound by Commissioner of Police v Skelly but urged me to adopt the approach which it endorsed. While the observations in Commissioner of Police v Skelly as to the significance, or lack thereof, of financial loss are helpful, I am not persuaded that it is a useful or workable distinction to say, as the IRC did at [51], that the purpose of a non-disciplinary transfer is "remedial" whereas the purpose of a disciplinary transfer is "punishment". If the Commissioner purported to transfer someone for "remedial" purposes but the transfer was, on any reasonably objective basis, punitive, it would not be an answer to say that the Commissioner's stated purpose was determinative if it was, in effect, colourable.
Further, one of the central tenets of those parts of the Wood Report extracted above was, as the Full Federal Court said in Hardcastle v Commissioner of Police at 597, that the object of disciplinary action was to protect the public, maintain proper standards of conduct by the police force and protect its reputation and not to punish. Since that decision, the High Court in Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 (Rich v ASIC) has pointed out the difficulties of distinguishing between "punitive" and "protective" orders and described any such distinction as "elusive": [32] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). This is another reason why the decision of the IRC in Commissioner of Police v Skelly must be viewed with caution since, although it was decided after Rich v ASIC, the reasons of the IRC did not refer to it. In the Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102, Basten JA (Tobias JA agreeing) at [83] identified the specific purpose for which orders are to be made "in the disciplinary jurisdiction generally" as "protective in the public interest and not punitive with respect to the individual". His Honour continued at [83]: "This is not to deny that such orders may be punitive in effect."
One of the difficulties of deciding whether purpose or effect is the relevant touchstone is that when regard is had to all the matters on the list in Schedule 1, neither is a reliable arbiter. The purpose of all actions taken by the Commissioner, whether reviewable or non-reviewable, under s 173 can be assumed to be remedial in the sense that the officer's performance is to be improved with the object of assisting the officer to comply with the oath or affirmation of office.
Within Schedule 1, there are distinctions to be drawn between the various actions that might be ordered under s 173(2). For example, some actions would appear to fall within a generally remedial category: coaching, mentoring, training and development, increased professional, administrative or educational supervision, counselling, retraining, personal development and performance enhancement agreements. Others are designed to express disapproval and are classically punitive in effect, although they have a corrective purpose: reprimand, warning and recording of adverse findings. The third category broadly comprises changes to work arrangements: non-disciplinary transfer, change of shift (but only if the change results in no financial loss and is imposed for a limited period and is subject to review) and restricted duties.
While the actions in the first category might be unlikely to have financial consequences, actions in the second category might result in failure to achieve a higher rank or grade in future. Actions in the third category may result in financial consequences, with the exception of change in shift because of the words in the Schedule following it in parentheses. From the officer's point of view, there may be an element of "penalty" in each of the categories. For example, increased supervision might be regarded as punitive because it removes an element of autonomy and independence. If "financial loss" were determinative, one would have expected the qualification to the "change of shift" action to be added to the action of "non-disciplinary transfer". In these circumstances, no assumption can be made that the legislature regarded financial consequences as the determinant between non-disciplinary and disciplinary transfers.
The construction for which the plaintiffs contended, that a transfer under s 173 which had any adverse financial consequence for the officer could not be a non-disciplinary transfer, has the attraction of relative certainty. However, it is not for the courts, under the guise of statutory construction, to convert what Parliament has cast as a matter for evaluative judgment for the Commissioner (whether a particular transfer is non-disciplinary) into a mathematical assessment, merely because it would provide greater certainty as to whether the officer concerned is entitled to the procedures in ss 173(5)-(7) and to a right of review in the IRC under Division 1A of Part 9.
The only unequivocal financial detriment to the Officer from the transfer, as Mr Gibian ultimately accepted, was the loss of the entitlement to an allowance for special duties as his duties at the new location would no longer necessarily fall within a category which attracted the allowance. The Officer would retain his rank (of Constable) and grade of Senior Constable. Although he would be required to wear a uniform, it would be provided to him and he would be relieved of the obligation to purchase his own plain clothes from the allowance which was designed to cover such expenditure. It is plain from the reasons for the Order that the reason, or purpose, of the transfer was to help him to modify and adjust his behaviour in circumstances where he would have greater supervision and work in a "less insulated environment where [the Officer] will have the support from a greater number of supervisors".
Such action as was required under the Order would appear to be precisely the sort of action which the Wood Report contemplated as being "non-reviewable" because it was, in essence, an operational and managerial response to established "misconduct" (to use the words of s 173) or "bad performance" (to use the words of the recommendation from the Wood Report at 4.33 extracted above).

Conclusion

Having regard to the limits of this Court's jurisdiction, which are confined to errors of law on the face of the record or jurisdictional errors, the question for this Court is whether it was open to the Commissioner, in the circumstances disclosed by his reasons, which form part of the record, to regard the transfer the subject of the Order as a non-disciplinary transfer. The plaintiffs have failed to make out any error of law in the Order and have failed to persuade me that it was not open to the Commissioner to treat the action as a "non-disciplinary transfer", which was, accordingly, non-reviewable action within the meaning of s 173.

Costs

The parties accepted that costs ought follow the event in accordance with the general rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

Orders

For the reasons given above, I make the following orders: 1. Dismiss the third amended summons filed on 16 May 2019. 2. Order the plaintiffs to pay the defendants' costs.

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 May 2019

Police and Crown Employees (Police Officers - 2017) Award Police Legislation Amendment (Civil Liability) Act 2003(NSW)

Police Regulation (Appeals) Act 1923(NSW)

Police Regulation 2015(NSW)

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

Police Service (Complaints, Discipline and Appeals) Amendment Act 1993(NSW)

Police Regulations 2015(NSW)

Police Legislation Amendment (Civil Liability) Act 2003(NSW)

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