Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales & Anor v Commissioner of Police

CATCHWORDS: Declaratory relief - s154 of the Industrial Relations Act 1996 - Part 2.7 of the Public Sector Employment and Management Act 2002 - interpretation - statutory construction - suspension from duty without pay following criminal charge - charge dismissed - salary withheld during period of suspension forfeited to State after misconduct unrelated to the subject matter of the charge proven and disciplinary action taken - Held: salary withheld is not forfeit to the State - declaratory orders made - interest - costs

Crimes Act 1900 Industrial Relations Act 1996 LEGISLATION CITED: Proceeds of Crime Act 1987 (Cth) Public Sector and Employment Management Act 2002 Public Service Act 1992 (Cth)

Beckwith v R (1976) 135 CLR 569 Chate v Commissioner of Police (1997) 76 IR 70 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Director of Public Prosecutions v Logan Park Investments Pty Ltd and Another (1995) 132 ALR 449 Dixon v Commonwealth (1981) 55 FLR 34 CASES CITED: Everingham v Director-General of Education (1993) 31 ALD 741 Lewis v Heffer [1978] 3 All ER 354 Police Association of NSW v Commissioner of Police (2002) 123 IR 301 Public Service Board (NSW) v Public Service Australia (NSW) (1986) 14 IR 445 R v Cole and others, ex parte Dixon 27 ACTR 13 State Transit Authority (NSW) v Seamen's Union of Australia (1994) 53 IR 349

Applicants: Mr M Gibian of counsel Solicitors: W G McNally Jones Staff LEGAL REPRESENTATIVES: Respondent: Mr J H Pearce of counsel Solicitors: Legal Services Commissioner of Police

PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES & ANOR v COMMISSIONER OF POLICE

Application under s 154 of the Industrial Relations Act 1996

1 In these proceedings, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Stephen Dabrowski (the applicants) have filed an amended application for declaratory orders under s 154 of the Industrial Relations Act 1996. 2 The declarations sought are:

1. that the salary withheld from (Stephen Dabrowski) during the period he was suspended without pay from 26 November 2004 until 5 April 2007 is not forfeited to the State;

2. that (Stephen Dabrowski) is entitled to be paid all salary, superannuation and other emoluments pertaining to his position as roster officer (Grade 5) in the employ of the respondent and to retain all leave and other entitlements accruing and accrued to that position in the period from 26 November 2004 to 5 April 2007;

4A. that the respondent is liable to pay (Stephen Dabrowski) the amount of $137,794.05 less applicable taxation. 3 The substantive grounds upon which the applicants move for relief are:

14. If an officer is suspended as a result of having been charged with a criminal offence under section 49(1)(b) of the Public Sector Employment and Management Act 2002, any salary withheld from an officer during a period in which the officer is suspended without pay is forfeited to the State only if the officer is convicted of the offence concerned as a result of the operation of section 49(3) of that Act.

15. As the second applicant was not convicted of the offence concerned, the salary withheld during the period of his suspension without pay is not forfeited to the State by operation of section 49(3) of the Public Sector Employment and Management Act 2002 and the second applicant is entitled to be paid all salary, superannuation and other emoluments pertaining to his position as Roster Officer (Grade 5) in the employ of the respondent and to retain all leave and other entitlements accruing and accrued to that position in the period from 11 November 2004 to 24 January 2007.

16. The purported continuation of the suspension of the second applicant by notice dated 22 January 2007 was void and to no effect as far as it intended to operate after 24 January 2007 because the criminal charge that provided the reason for the second applicant's suspension had been dismissed and the decision to suspend the second applicant made on 26 November 2004 was no longer supported by section 49(1) of the Public Sector and Employment Management Act 2002.

17. As a consequence, the second applicant is no longer validly suspended and is entitled to return to duty and to be paid all salary, superannuation and other emoluments pertaining to his position as Roster Officer (Grade 5) in the employ of the respondent and to retain all leave and other entitlements accruing and accrued to that position from 24 January 2007 to date.

4 On 9 November 2004, Mr Dabrowski was charged with an offence under the Crimes Act 1900. On 26 November 2004, he was sent a letter signed by Ian Peters, Executive Director, Human Resource Services for the respondent. In the letter, Mr Dabrowski was informed that he was to be investigated under the provisions of the Public Sector Employment & Management Act 2002 (PSEM Act) in relation to both the charge and "additional matters". The letter proposed that the investigation be conducted into four allegations of misconduct. The first allegation involved the subject matter of the charge of 9 November 2004. The remaining allegations were the subject of a previous preliminary inquiry conducted under the PSEM Act 1988. The four allegations of misconduct allege that Mr Dabrowski:

1. engaged in disgraceful conduct by committing an act of indecency with a person under the age of 16 years (the subject of the charge of 9 November 2004);

2. untruthful during the course of the previous preliminary enquiry and interview process;

3. continued to engage in inappropriate associations with known criminals or persons of interest to police even after having been previously advised by senior officers not to do so during the course of the previous criminal investigation and preliminary enquiry; and,

4. as a result of the above allegations acting in a manner which is unacceptable and contrary to the NSW Police Code of Conduct and Ethics. 5 In the letter, Mr Dabrowski was also advised that Gregory Evans, the respondent's Local Area Manager, Coffs/Clarence Local Area Command, would undertake an investigation into the four allegations and prepare an investigation report. During the investigation process, Mr Dabrowski was to be interviewed by Mr Evans and afforded an opportunity to respond to the allegations. Mr Dabrowski was also warned that because the allegations were being treated as disciplinary matters under the PSEM Act, findings may be made following receipt of the investigation report that he had engaged in misconduct and that disciplinary action may be taken against him, including his dismissal from employment.

6 The letter added: "I have also determined in accordance with s 49(1) of the Public Sector Employment & Management Act 2002 that in light of the new criminal charges (sic) against you, you will be suspended from duty without pay effective from 26 November 2004 until the investigation processes and criminal matters (sic) are dealt with. This suspension from duty without pay will commence immediately from the abovementioned date."

7 Mr Dabrowski was also advised that the decision to suspend him from duty without pay would be reviewed on a monthly basis, "or once the court matters and/or investigation into misconduct are resolved, (whichever occurs first)." Between the period 22 December 2004 and 22 January 2007, a series of letters was generated by the respondent informing Mr Dabrowski that his suspension without pay would continue and reminding him that the decision to suspend him from duty without pay would be reviewed on a monthly basis or "once the Court matter and/or investigation into misconduct are resolved, (whichever comes first)." According to Mr Dabrowski, during this period he did not receive letters regarding the monthly review of his suspension for the months of March and December 2005, and January, July and September 2006. Mr Dabrowski also contends that in many instances the letters were not received within the required 30-day period. A list annexed to Mr Dabrowski's statement nominates several occasions where letters were not received for periods in excess of two months. Mr Dabrowski nominates twelve other occasions in which the letters were received more than 30 days apart, contrary to the Premier's Memorandum 94-35, a copy of which is also annexed to Mr Dabrowski's statement. Memorandum 94-35 headed "Suspension of Public Employees from Duty" notes that in cases of decisions to suspend, the decision should be reviewed, "at least every 30 days".

8 The review letters, with the exception of the letter dated 22 August 2005, contain the following paragraph: "As previously advised, given the nature of the criminal charges (sic) against you, your suspension from duty without pay (effected on 26 November 2004), will continue in accordance with Section 49(1) of the Public Sector Employment and Management Act 2002, until such time as the criminal matter s are (sic) resolved."

9 The letter of 22 August 2005 was written in response to a request made by Mr Dabrowski for a review of the decision to suspend him without pay. The letter informs Mr Dabrowski that his suspension without pay will continue for the following reason: "In view of the seriousness of the charges (sic) against you, your suspension from duty without pay (effected on 26 November 2004), will continue in accordance with Section 49(1) of the Public Sector Employment and Management Act 2002."

10 A file copy of the missing review letter of December 2005 was produced by the respondent during the proceedings in order to show that it was sent to Mr Dabrowski by the respondent.

11 On 12 May 2006, the respondent wrote to Mr Dabrowski to confirm an interview with him set down for 11 May 2006, as part of the investigation into the allegations of misconduct. The letter also outlined the four allegations of misconduct first set out in the letter to Mr Dabrowski of 26 November 2004. It is apparent from the letter of 12 May 2006 that Mr Dabrowski has, at this stage, enlisted the assistance of the Public Service Association, and the respondent has been in receipt of correspondence from that organisation requesting particulars of the allegations of misconduct and other matters. The letter also sets out the procedure to be followed at the proposed interview, as well as after the interview under s 45(2) of the PSEM Act.

12 On 26 June 2006, the respondent wrote to Mr Dabrowski informing him of a fifth allegation of misconduct, namely: "(That) between December 2004 to June 2006 you continued to engage in inappropriate associations with known criminals or persons of interest to police." Mr Dabrowski is informed that this new allegation will form part of the current investigations against him under s 46(1)(a) of the PSEM Act .

13 On 27 July 2006, a sixth allegation of misconduct is added to the allegations of misconduct against Mr Dabrowski under investigation by the respondent. This new allegation is set out in the letter as follows: "6. that you lied under oath during the course of giving evidence at GREAT hearing of appeal No. PSD/401/04 on 28 March 2006 as reported in the GREAT decision of 4 July 2006." The letter also informs Mr Dabrowski: "Please note the investigations in relation (sic) allegation 1 will be held in abeyance until the criminal proceedings have been finalised. Notwithstanding this, the investigations in relation to 2-6 will proceed."

14 An attachment to the letter of 12 May 2006 contained particulars of the allegations being investigated. The omission of any reference to the first allegation in the attachment suggests that the interview will traverse only the facts in relation to allegations 2, 3 and 4. This accords with the letter of 27 July 2006 sent to Mr Dabrowski advising him that investigations into "allegation 1" will be held in abeyance until the charge is determined. He was also invited to bring an observer to the interview in the role of advisor but not advocate. He was also told that he could bring any written submissions to the interview and that he would be given an opportunity to provide further written submissions within seven days following the interview.

15 In the meantime the two further allegations of misconduct had become the subject of the investigation. On 28 July 2006, Dianne Elphinstone, Executive Officer to Director of Operations Professional Standards Command, wrote to Mr Dabrowski advising him that she would also be conducting an interview in relation to the allegations of misconduct (allegations 2-6) currently the subject of investigation. Ms Elphinstone notes in the letter, "... investigations in relation to allegation 1 are to be held in abeyance until the criminal proceedings have been finalised." In the letter, Mr Dabrowski is told that he will be provided with an opportunity to respond to questions in relation to allegations 2-6 and make comments on any matters. He was also to be afforded the opportunity to bring an observer, any written submissions and would be given the opportunity to provide further written submissions nine days after the completion of the interview. Mr Dabrowski was also provided with documentation to which Ms Elphinstone said she intended to refer during the interview.

16 On 24 January 2007 at Lismore Local Court the charge against Mr Dabrowski was dismissed. The Public Service Association, in reliance on the dismissal of the charge, wrote a letter the following day to the respondent requesting that he provide Mr Dabrowski with restoration of his withheld salary and arrange for Mr Dabrowski's immediate return to work. In reply on 28 February 2007, the respondent wrote that Mr Dabrowski's suspension without pay, "... was initiated in relation to both the criminal charges and investigations into alleged misconduct", and that, "whilst the criminal matters may have been finalised within the legal system, the allegation of misconduct ie. allegation 1 relating to this matter is yet to be investigated and determined through the disciplinary process". The letter adds: "In addition, the disciplinary processes and final determination relating to the remaining allegations of misconduct (ie. allegations 2-6) are not yet finalised, and as such I do not consider it appropriate to alter the status of Mr Dabrowski's current suspension from duty. I have determined that Mr Dabrowski will continue on suspension (without pay) and the suspension will continue to be reviewed in accordance with the relevant guidelines."

17 In an undated letter sent some time after the respondent's letter of 25 February 2007, Mr Dabrowski is informed that the investigation report has been considered; the allegations of misconduct 2-6 have been proven; and, the respondent is now considering imposing disciplinary action against him in relation to the proven allegations of misconduct. Mr Dabrowski is also informed that the respondent is considering forfeiture of the salary withheld during his period of suspension without pay. In this regard, the following passage advises: "As required, I am also considering action that your salary withheld during the suspension without pay under the provisions of Section 48 and 49 of the Public Sector Employment and Management Act 2002 ought to be forfeited to the State of New South Wales." Mr Dabrowski is given 14 days from the receipt of the letter to make any submissions in response to the issue of disciplinary action. In relation to allegation 1 Mr Dabrowski is told that it may still be the subject of further investigation under the PSEM Act .

18 By letter dated 29 March 2007, the respondent informs Mr Dabrowski that, following consideration of detailed submissions and information provided by him through his legal representatives, the decision has been made, with effect from 29 March 2007, to take disciplinary action against him under Part 2.7 of the PSEM Act. The letter adds:

"The disciplinary action I have determined is that you are to be dismissed from employment with the New South Wales Police Force effective from 5 April 2007.

Please note that as a result of the disciplinary action taken against you and in accordance with the provisions of the Act, all salary withheld during the period of suspension without pay will be forfeited to the Crown."

19 Mr Dabrowski was employed by the NSW Police Force as an administrative officer. Under s 3(1) of the Police Act 1990 the position is defined as "a member of the NSW Police Force other than a police officer or a temporary employee". By operation of s 184 of the Police Act, the provisions of Part 2.7 of the PSEM Act, apply to administrative officers in the same way as they apply to officers of the Public Service. 20 Part 2.7 of the PSEM Act sets out provisions dealing with the conduct and performance of officers in the Public Service. For present purposes, the relevant provisions of Part 2.7 are extracted below:

42 Definitions (1) In this Part: disciplinary action , in relation to an officer, means any one or more of the following: (a) dismissal from the Public Service,

(b) directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time,

(c) if the officer is on probation - annulment of the officer's appointment,

(d) except in the case of a senior executive officer - reduction of the officer's salary or demotion to a lower position in the Public Service,

(f) a caution or reprimand. misconduct - see section 43. procedural guidelines means the guidelines in force from time to time under section 44. remedial action , in relation to an officer, means any one or more of the following: (a) counselling,

(c) monitoring the officer's conduct or performance,

(e) the issuing of a warning to the officer that certain conduct is unacceptable or that the officer's performance is not satisfactory,

(f) transferring the officer to another position in the Public Service that does not involve a reduction of salary or demotion to a lower position,

Procedural Guidelines - means the guidelines in force from time to time under s 44.

43 Meaning of "misconduct" (1988 Act, s 66) (1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of any provision of this Act or the regulations,

(b) performance of duties in such a manner as to justify the taking of disciplinary action,

(c) taking any detrimental action (within the meaning of the Protected Disclosures Act 1994 ) against a person that is substantially in reprisal for the person making a protected disclosure within the meaning of that Act,

(d) taking any action against another officer that is substantially in reprisal for an internal disclosure made by that officer. (2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened: (a) while the officer concerned was not on duty, or

(b) before the officer was appointed to his or her position.

(1) The Director of Public Employment may, from time to time, issue guidelines for the purposes of: (a) dealing with allegations of misconduct as a disciplinary matter, and

(b) the taking of disciplinary action with respect to officers under this Division. (2) The Director of Public Employment may from time to time amend, revoke or replace the procedural guidelines.

(3) The procedural guidelines as in force from time to time must be made publicly available in such manner as the Director of Public Employment thinks appropriate.

(4) The regulations may make provision for or with respect to any matter for which the procedural guidelines can provide. In the event of any inconsistency between a provision contained in the procedural guidelines and a provision in the regulations, the latter is to prevail.

45 Requirements relating to procedural guidelines (1) The procedural guidelines must be consistent with the rules for procedural fairness.

(2) Without limiting subsection (1), the procedural guidelines are to ensure that: (a) the officer to whom an allegation of misconduct relates is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the officer, and

(b) the officer is given an opportunity to respond to the allegation. (3) A formal hearing involving the legal representation of parties and the calling and cross-examination of witness is not to be held in relation to an allegation of misconduct and the taking of disciplinary action with respect to an officer.

(4) However, subsection (3) does not prevent the appropriate Department Head from: (a) conducting such investigations into an allegation of misconduct as the Department Head considers necessary, or

(b) conducting interviews with the officer to whom the allegation relates or with any other person in connection with the matter concerned, or

(c) taking signed statements from the officer or any such person.

46 Dealing with allegations of misconduct (1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may: (a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or

(b) decide that it is appropriate to take remedial action with respect to the officer. (2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the appropriate Department Head may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer.

(3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.

(4) Even though the appropriate Department Head decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Department Head may, at any stage of the process: (a) decide to take remedial action with respect to the officer concerned, or

(b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both. (5) A decision under this section by the appropriate Department Head to take remedial action with respect to an officer does not, if it appears to the Department Head that the officer may have engaged in any misconduct while the remedial action is being taken, prevent the Department Head from dealing with the alleged misconduct as a disciplinary matter under this section.

48 Disciplinary action may be taken if officer is convicted of serious offence (1988 Act, s 76) (1) If an officer is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, the appropriate Department Head may: (a) decide to take disciplinary action with respect to the officer, or

(b) decide to take remedial action with respect to the officer. (2) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.

(3) A reference in subsection (1) to the conviction of an officer for an offence punishable by imprisonment for 12 months or more includes a reference to the officer having been found guilty by a court of such an offence but where no conviction is recorded.

49 Suspension of officers from duty pending decision in relation to misconduct or criminal conviction (1988 Act, s 77) (1) If: (a) an allegation that an officer has engaged in misconduct is being dealt with as a disciplinary matter in accordance with the procedural guidelines, or

(b) an officer is charged with having committed an offence referred to in section 48, the appropriate Department Head may suspend the officer from duty until the allegation of misconduct or the criminal charge has been dealt with. (2) Any salary payable to a person as an officer while the person is suspended from duty under this section is (if the appropriate Department Head so directs) to be withheld.

(3) If: (a) it is decided to take disciplinary action with respect to the person for the misconduct, or

(b) the person is convicted of the offence concerned, the salary withheld under subsection (2) is forfeited to the State unless the appropriate Department Head otherwise directs or that salary was due to the person in respect of a period before the suspension was imposed. (4) If the appropriate Department Head has suspended an officer from duty under this section, that Department Head may at any time remove the suspension. Consideration 21 The respondent does not challenge the Court's power to make binding declarations of rights under the section. Indeed, the jurisdiction of the Commission to grant declaratory relief has long been established and frequently resorted to in relation to public sector employment legislation: see for example Public Service Board (NSW) v Public Service Australia (NSW) (1986) 14 IR 445 (purported suspension of a public servant); State Transit Authority (NSW) v Seamens Union of Australia (1994) 53 IR 349 (entitlement of an employee to salary withheld during a period of suspension); Police Association of NSW v Commissioner of Police (2002) 123 IR 301 (remuneration payable during a period of suspension). 22 The applicants' primary contention for the granting of relief is that the salary withheld as a result of Mr Dabrowski's suspension does not forfeit to the State by operation of s 49(3) because he was not convicted of the charge. The respondent, on the other hand, submits that the decision to suspend Mr Dabrowski was based on two matters, namely the pending criminal charge and the five allegations of misconduct (allegations 2-6). 23 Both parties rely on the correspondence exchanged between them, which has been set out earlier in this judgment, to make good their respective contentions. 24 Before embarking on an analysis of the correspondence however, it is first necessary to refer to some basic principles of statutory construction and the different constructions urged on this Commission by the parties in relation to the proper approach to the statutory scheme under Part 2.7 of the PSEM Act. 25 Consistent with the contemporary approach to statutory construction, it is appropriate at the outset, and not at a later stage when ambiguity might be thought to arise, to consider the natural and ordinary meaning of the words read as a whole and in the context in which they appear. A statement of this approach appears in the joint judgment of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408:

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd , if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. 26 Neither party has sought to identify any ambiguity or obscurity in the provisions of Part 2.7. Rather, the parties advance two different constructions of s 49. Part 2.7 establishes a scheme for managing the conduct of officers of the Public Service, including administrative officers in the NSW Police Force (as it is currently known). Central to the scheme is the imposition of disciplinary action in the form of punishment for misconduct (s 46), unsatisfactory performance (s 47), and a conviction for a criminal offence (s 49). Disciplinary action is defined in s 42 and includes dismissal, reduction of salary or demotion to a lower position, the imposition of a fine, or, a caution or reprimand. The scheme also sets out the mechanism or procedure for dealing with impugned conduct as a disciplinary matter. Section 44 provides for the issuing of procedural guidelines for the purpose of dealing with allegations of misconduct, and, the taking of disciplinary action against officers who fall within the ambit of ss 44-46 (the provisions dealing with allegations of misconduct). Section 45 sets out the requirements relating to the guidelines, and specifically requires consistency between the implementation of the guidelines and the application of the rules for procedural fairness when undertaking an investigation into allegations of misconduct: s 45(1). 27 Misconduct, which is defined in s 43, includes a contravention of any provision of the PSEM Act or the Regulations or, the performance of duties in such a manner as to justify the taking of disciplinary action. Section 46 outlines a discrete procedure for dealing with allegations of misconduct within the procedural guidelines. A quite separate and different procedure for dealing with convictions for serious offences (that is, offences punishable by imprisonment for 12 months or more) is set out in s 48. 28 Section 49 provides that an officer may be suspended from duty and his or her salary withheld if an allegation of misconduct is being dealt with as a disciplinary matter under the guidelines, or the officer is charged with a serious offence as referred to in s 48. (A disciplinary matter is a matter which is being dealt with under the guidelines.) Under s 49(3), if a decision is made to take disciplinary action with respect to, "the misconduct", or, if the officer is convicted of, "the offence concerned", then the salary withheld may be forfeited to the State. 29 The objects of Part 2.7, as set out in s 41, are: (a) to maintain appropriate standards of conduct and work-related performance in the Public Service;

(b) to protect and enhance the integrity and reputation of the Public Service;

(c) to ensure that the public interest is protected. 30 According to the applicants, the provisions of Part 2.7, which includes s 49, should be strictly construed. The reasons advanced in support of this contention are essentially two. First it is said that s 49 is a disciplinary provision which can have the effect of imposing a very substantial penalty upon an officer, "... by permitting a Department Head to deprive the officer of usual salary for a period of a suspension." Whether or not a decision to suspend itself constitutes "disciplinary action", s 49 forms part of the procedures for dealing with disciplinary matters and should be strictly construed. Secondly, s 49(3) sets out the circumstances in which monies otherwise owing to an officer forfeit to the State. The section has the effect, according to the applicants, of depriving an officer of a right to income to which the officer would otherwise be entitled. Provisions providing for the forfeiture of property, here money, have been strictly construed and any ambiguity is to be resolved in favour of the owner of the property. 31 The respondent submits in reply that forfeiture of salary under s 49(3) is not a disciplinary action (as defined in s 42). Section 49 should not therefore be given a strict construction because the act of forfeiture is not a punishment. The power in s 49 is a power to, "aid the proper administration, the maintenance of high standards of integrity and the preservation of morale in the public service -- as described in R v Cole (1979) 27 ALR 13 at 33." 32 In my view, suspension of an employee or officer, as the case may be, constitutes a serious detriment since it deprives a person of his or her entitlement to work. Suspension without pay deprives a person of the right to be paid a salary. These consequences have been recognised in a number of decisions. In Dixon v Commonwealth (1981) 55 FLR 34, the full Federal Court said (at 44):

The second decision to suspend in the present case was made under the statutory powers conferred by s 62 (1) of the Act. That decision, if valid, deprived the appellant of his entitlement to perform his duties as a permanent officer in the Australian Public Service. It also deprived him of the right to be paid his salary for an indefinite period which was likely to endure for so long as it took the Australian Public Service to make a decision on whether he should be dismissed. In the event, the period was from 19th May, 1978, to 7th September, 1978. Plainly, the decision to suspend the appellant was a statutory decision which adversely affected the rights and legitimate expectations of the appellant. It was likely to have profound emotional, social and financial effects upon him. 33 Observations to similar effect were made by King CJ, Mohr and Bollen JJ in Everingham v Director-General of Education (1993) 31 ALD 741 at 745:

There can be no doubt that a suspension under s 27 affects the rights and interests of the teacher. It is not punitive in character but rather what Lord Denning MR in Lewis v Heffer [1978] 1 WLR 106` described as "a holding operation, pending inquiries". Nevertheless the suspension coupled with the direction that the respondent was not entitled to salary, resulted in deprivation of her right to follow her calling as a teacher and deprivation, at least temporarily, of salary. 34 The deprivation of rights as a consequence of suspension of duties does not however necessarily equate to the imposition of a punishment. Nor does s 49 lend itself to such a construction. An officer who has engaged in misconduct or been charged with an offence may be suspended pending inquiry into the allegation of misconduct or determination of the charge This is the clear meaning which may be derived from the words in s 49(1). The reasons for suspension are therefore in the nature of a "holding operation, pending inquiries". The suspension itself is not punitive in character. The distinction was explored by Lockhart J in R v Cole and others, Ex Parte Dixon 27 ALR 13. The issue before his Honour was the power to suspend from duty prior to the laying of a charge in the context of the application or otherwise of the rules of natural justice. Under s 55(3) of the Public Service Act 1992 (Cth) an officer could be suspended, "... pending determination of the charge or in any case where the charge has not been sustained, immediately upon a finding to that effect". The wording is reminiscent of the wording in s 49(1)(b). At 33-34, his Honour relied on an extract from a judgment of Lord Denning in Lewis v Heffer [1978] 3 All ER 354 where it was said:

"But then comes the point: are the NEC to observe the rules of natural justice? In John v Rees [1970] Ch 345, Megarry J held that they were. He said, at p 397: "Suspension is merely expulsion pro tanto . Each is penal, and each deprives the member concerned of the enjoyment of his rights of membership or office. Accordingly, in my judgment the rules of natural justice prima facie apply to any such process of suspension in the same way that they apply to expulsion" "Those words apply, no doubt, to suspensions which are inflicted by way of punishment: as for instance when a member of the Bar is suspended from practice. But they do not apply to suspension which are made, as a holding operation, pending inquiries. Very often irregularities are disclosed in a government department or in a business house: and a man may be suspended on full pay pending inquiries. Suspicion may rest on him: and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something must be done at once. The work of the department of the office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended. 35 Forfeiture of property (which would include a salary) however, is more in the nature of a penalty. A provision which provides for forfeiture of salary, such as s 49(3) may therefore, where the language suggests some ambiguity or obscurity, be interpreted in favour of the individual against whom the provision is sought to be imposed. A useful statement of the modern approach to the interpretation of a penal provision is found in Beckwith v R (1976) 135 CLR 569 at 576 per Gibbs J:

The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences. The rule is perhaps one of last resort. 36 In Director of Public Prosecutions v Logan Park Investments Pty Ltd and Another (1995) 132 ALR 449, the respondent-corporations applied for relief against an order that their property would be forfeited by the Commonwealth at the end of six months following the conviction of M, who allegedly controlled the corporations. The forfeiture orders were made under s 30(1) of the Proceeds of Crime Act 1987 (Cth). Following the dismissal of the application, the respondents then sought leave to make an application for relief against the forfeiture of the same property under s 31 of that Act. Leave was granted at first instance. In dismissing an appeal against the grant of leave, Kirby ACJ (as he then was) made a number of general observations about provisions dealing with forfeiture of property, including the following (at 456):

2. Provisions for the forfeiture of property have conventionally been construed strictly. The Act contains an elaborate scheme, the predecessor of which was first introduced into Australian Federal law by the Customs Act 1901 (Cth) . That Act contains a number of provisions for the forfeiture of goods. A strict approach to the construction of forfeiture provisions was endorsed by the majority of the High Court in Murphy v Farmer (1988) 165 CLR 19 affirming the decision in this Court: see Murphy v Farmer (1987) 87 FLR 149; 72 ALR 691 . In the High Court (at 27f) Deane, Dawson and Gaudron JJ explained: "... there were competing arguments which are based on the substantive content of [the section]. They point in opposite directions. On the one hand, it is arguable that the purpose of forfeiture provisions ... is 'to ensure the strict and complete observance of the Customs laws'... and that that purpose would be best served by the automatic forfeiture ... [o]n the other hand, it seems to us to be more strongly arguable that clear words should be required before there is attributed to the Parliament an intention to take the draconian step of imposing automatic forfeiture as a penalty for "any" wrong ... regardless of whether the wrong information was provided as the result of an innocent mistake or excusable ignorance. The effect of the penalty of automatic forfeiture ... can be devastating and quite disproportionate in that it applies regardless of the value of the goods or the importance or effect of the wrong statement which was made ... [i]t is ... in our view, proper to approach the construction of the actual words of the Act on the basis that it is to be presumed that clear words would have been used if it were intended to impose automatic forfeiture. ..." 37 As earlier indicated in these reasons, the applicants have not pointed to any ambiguity or obscurity in s 49 which may render a construction in their favour. In any event, in my view, the meaning of the provision may be determined by reference to the ordinary rules of construction. 38 The provisions of Part 2.7 reveal clearly enough that two separate regimes operate when dealing with allegations of misconduct and offences as disciplinary matters. The procedures governing misconduct allegations are set out in ss 46 to 49. Those sections incorporate the mandatory use of procedural guidelines issued under s 44 when dealing with misconduct as a disciplinary matter. Use of the procedural guidelines is subject to the rules of procedural fairness which must be adhered to throughout the disciplinary process. Section 45 sets out a comprehensive procedure under the guidelines in relation to allegations of misconduct. It includes an initial written advice to the officer, the subject of an allegation (s 45(2)(a)), followed by an opportunity to respond afforded to the officer (s 45(2)(b)), an investigation into the allegation or allegations (s 45(4)(a)), interviews (s 45(4)(b)), and the taking of signed statements (s 45(4)(c)). In contrast, if an officer is charged with a serious offence the procedure is more streamlined. Disciplinary action is not considered until the officer is convicted of the offence as defined under s 48(1). Under s 48(2), prior to taking any disciplinary action, the officer must be given an opportunity to make representations in relation to any disciplinary action which is proposed. 39 Decisions to suspend without pay and forfeiture of salary in relation to alleged misconduct are governed by a combination of ss 49(1)(a) and 49(3)(a). In relation to a charge and subsequent conviction, decisions to suspend without pay and forfeited salary are governed by a combination of ss 49(1)(b) and 49(3)(b). The applicants rely on a construction of s 49 as drawing a direct link between the reason for suspension in s 49(1) and the circumstances in which salary is forfeited under s 49(3). In response, the respondent contends that the ordinary and natural meaning of s 49(3) is that where the salary has been withheld under s 49(2) and either of the factual circumstances set out in s 49(3)(a) and 49(3)(b) are satisfied, then salary so withheld under s 49(2) is forfeited to the State unless the appropriate department head otherwise directs. In other words, any salary withheld during a period of suspension may be subject to forfeiture in the event of disciplinary action taken against the officer for misconduct or, if the officer is convicted of the offence, irrespective of the reason for the suspension. 40 The construction for which the applicants contend, in my view, must be preferred. It is borne out by a plain reading of the words and the structure of the section. Sections 49(1) and 49(2) provide for suspension without pay pending investigation into allegations of misconduct or determination of a criminal charge. Once the misconduct has been investigated or the charge determined and a conviction incurred, a decision to forfeit salary withheld during a suspension may be made in accordance with s 49(3). A decision under s 49(3) that a person's salary is forfeited to the State is the final step following a proven allegation of misconduct or a conviction for a criminal offence. It proceeds directly from the precedent step to suspend an officer without pay and necessarily relates to either the same misconduct or the same offence referred to in s 49(1)(a) and (b) respectively. On a plain reading of the words of s 49, "the misconduct" in s 49(3)(a) is a reference to the same "misconduct" in s 49(1)(a), and, "the offence concerned" in s 49(3)(b) is a reference to the same "offence" in s 49(1)(b). 41 Nor can the construction of s 49 for which the respondent contends be correct. A simple example suffices to illustrate this. If the respondent were correct then an officer who is suspended after being charged with a criminal offence, which is subsequently dismissed, can nevertheless forfeit any salary withheld during the period of suspension if, at a later time, he is cautioned or reprimanded for misconduct which bears no relationship to the subject matter of the charge. Clearly, this would be an unjust result. 42 A similar conclusion was reached by the Full Bench in Seamen's Union of Australia. In that decision, two employees of the respondent were suspended from duty without pay after being charged with the offence of larceny as a servant. The suspensions and withholding of salary were effected under clause 15 of the Transport Administration (SRA Staff) Regulation 1989 (the regulation). At the same time, the respondent instituted disciplinary proceedings against each employee under clause 14 of the regulation. Under that clause, suspension without pay was one of the listed punishments which could be imposed in disciplinary proceedings. The charges against each employee were later dismissed. Following negotiations, the suspensions of both employees were lifted and the disciplinary proceedings under clause 14 withdrawn. The respondent declined however to pay to the employees the salaries withheld during the respective periods of their suspensions. In relation to this refusal to pay the salaries withheld, the Full Bench said (at 353): "In our opinion, a decision not to institute proceedings, or a decision to discontinue or withdraw proceedings as was the case here, automatically discharges any temporary suspension because the power exists only to suspend pending the institution or determination of such proceedings. Similarly, if any such disciplinary proceedings proceeded to a determination that the officer was not guilty and that the charge(s) be dismissed, then, in our opinion, any suspension under cl 15 would also terminate. In these types of cases, namely, no charge(s) laid or discontinuance or acquittal, the officer concerned would be entitled to payment of the salary which had been withheld from him during the period of the suspension. To hold otherwise, it seems to us, would involve not only a strained construction of the Regulation but would also produce unjust or absurd results." 43 In the present circumstances, Mr Dabrowski was charged with an offence which was later dismissed following a defended hearing in a local court. Nevertheless, the respondent continued Mr Dabrowski's suspension without pay and subsequently advised him that the salary so withheld was forfeited to the State because the misconduct allegations 2-6 had been investigated and disciplinary action taken in the form of Mr Dabrowski's dismissal in reliance on s 49(3)(a). This, the respondent was entitled to do, but only if Mr Dabrowski's suspension without pay under s 49(2) was by reason of s 49(1)(a), that is, because he had engaged in misconduct which was being dealt with as a disciplinary matter. 44 It remains to consider the correspondence between the parties in order to discern the reason or reasons for Mr Dabrowski's suspension without pay and the circumstances of the respondent's decision to forfeit Mr Dabrowski's salary withheld during his period of suspension. 45 Mr Dabrowski was informed by letter of 26 November 2004 that he was to be investigated in relation to allegations of misconduct. These allegations were said to arise from, "both the current criminal charges (sic)", and allegations of misconduct which emerged from an earlier preliminary inquiry. The letter then informs Mr Dabrowski that "... in light of the new criminal charges against you, you will be suspended from duty without pay ... until the investigation process and criminal matters are dealt with", and, that the decision will be reviewed monthly, "or once the Court matters and/or investigation into misconduct are resolved (whichever occurs first)". The monthly review letters repeat in exact words the reason for the suspension without pay. Almost all of those letters, with the exception of two, commence with the words, "I refer to previous advice ... regarding your suspension from duty without pay ... pending criminal charges (sic) and investigations into misconduct." The letter of 22 August 2005 states: "In view of the seriousness of the charges (sic) against you, your suspension from duty without pay ... will continue in accordance with s49(1) ...".

The letter of 20 December 2006 commences with the words: "I refer to previous advice regarding your suspension from duty without pay, pending a determination regarding disciplinary action, pursuant to s49(1)(b) ...", and, "... given the nature of the allegation of misconduct (and the outstanding criminal matters (sic)), I have determined that your suspension from duty, without pay, will continue at this time." 46 During the period in which Mr Dabrowski was charged and suspended from duty without pay, the respondent, at the same time, investigated five allegations of misconduct (allegations 2-6). The first allegation which dealt with the subject matter of the charge was held in abeyance pending determination of the charge. What the correspondence reveals is that after the charge was dismissed, the investigation into allegations 2-6 continued. A request made on Mr Dabrowski's behalf that the salary withheld during the suspension be "restored" and that he be returned to work, was declined. Mr Dabrowski was informed, that his suspension, "... was initiated in relation to both the criminal charges (sic) and investigations into alleged misconduct." 47 The earlier correspondence does not bear this out. Although it is not entirely straightforward, the correspondence from the respondent prior to the dismissal of the charges informs Mr Dabrowski that his suspension without pay is due to the criminal charge. The first letter of 26 November 2004 is written shortly after Mr Dabrowski is charged with the subject offence (9 November 2004). The advice that he will be suspended without pay is preceded by the words, "in light of the new criminal charges (sic) ...". There is no dispute that at that time there was only one offence with which Mr Dabrowski had been charged. The monthly review correspondence uses the same choice of words. The letter of 20 December 2006, which uses a different form of words, nevertheless refers to previous advice concerning Mr Dabrowski's suspension without pay, "pending a determination regarding disciplinary action, pursuant to section 49(1)(b) ...". That section deals with the suspension of an officer from duty who is, "... charged with having committed an offence referred to in section 48". The letter of 22 August 2005 states unequivocally the reason for Mr Dabrowski's suspension, namely, "In view of the seriousness of the charges (sic) against you ...". In addition, in the undated letter sent some time after 25 February 2007 (and after the dismissal of the charge), Mr Dabrowski is told that the respondent is considering whether his salary withheld during his suspension, "under the provisions of sections 48 and 49 ..." ought be forfeited. Since section 48 is concerned with disciplinary action which may be taken if an officer is convicted of a serious offence, it provides a clear indication that the reason for Mr Dabrowski's suspension without pay under s 49 was that he had been charged with committing an offence referred to in s 48. 48 It remains to consider the formula of words repeated in the correspondence, that Mr Dabrowski's suspension from duty without pay would continue, "... until the investigation process and criminal matters are dealt with". The applicants suggest that the words merely refer to the duration of suspension and not the reason for the suspension. The respondent relies on the words as providing support for his contention that the basis of the decision to suspend was twofold, that is, the allegations of misconduct and the charge. I am inclined to the view that the words suggest the duration of the suspension. This is because, in almost all of the correspondence, the words are preceded by the advice to Mr Dabrowski that, "... in light of the new criminal charges" he is suspended without pay. Moreover, the weight of the correspondence, in particular, the letter of 22 August 2005 and the undated letter written some time after 25 February 2007, supports the inference that the reason for Mr Dabrowski's suspension without pay was the fact that he was charged with a serious offence and not because of concurrent allegations of misconduct. 49 I find therefore that the salary withheld from Mr Dabrowski during the period he was suspended without pay from 26 November 2004 until 5 April 2007 should not have been forfeited to the State. I propose to grant the relief sought by the applicants in Order 1 of the amended application. 50 In relation to the second order sought in the amended application, Mr Dabrowski seeks his accrued annual leave and extended (long service) leave accrued during the period of his suspension. There does not appear to be any dispute about this. If, as I have found, the salary payable to Mr Dabrowski during the period of his suspension is not forfeited under s 49(3), then, in my view, he is entitled to be paid, or retain, his statutory entitlements, accruing and accrued, during the period of the suspension: Chate v Commissioner of Police (1997) 76 IR 70. 51 It is unnecessary for me, in view of these findings, to consider the remaining contentions advanced by the applicants for the grant of relief. 52 In relation to order 4A of the amended application, the parties advised the Commission in oral submissions that they would be content, if the Commission made the declarations sought, to engage in discussion as to the quantum payable to Mr Dabrowski. In order to facilitate this course, I propose to make an additional order that the parties confer between themselves as to an appropriate amount and file Short Minutes of Order reflecting the agreed amount within 14 days of the date of this decision. 53 The applicants also seek consequential orders relating to interest and costs. The respondent made no submissions in relation to these two items. I propose therefore to make orders that the respondent pay interest on the amount ordered to be paid from 26 November 2004, which is the date the decision was made to suspend Mr Dabrowski from duty without pay, until 5 April 2007, being the date of his dismissal from the NSW Police Force. Costs will also be awarded to the applicants, as agreed or assessed. Orders

54 The Commission makes the following declarations and orders:

(1) the salary withheld from Stephen Dabrowski during the period he was suspended without pay from 26 November 2004 until 5 April 2007 is not forfeited to the State of New South Wales;

(2) Stephen Dabrowski is entitled to be paid all salary, superannuation and other emoluments pertaining to his position as Roster Officer (Grade 5) in the employ of the Commissioner of Police and to retain all leave and other entitlements accruing to that position and accrued in the period from 26 November 2004 to 5 April 2007;

(3) the parties are to confer as to the quantum of amount reflecting declarations 1 and 2 above and file Short Minutes of Order as to the monetary amount agreed within 14 days of the date of this decision;

(4) the respondent is to pay interest on the monetary amount agreed, as reflected in declarations 1 and 2 above, from 26 November 2004 until 5 April 2007, in accordance with Schedule 5 of the Uniform Civil Procedure Rules 2005;

(5) the respondent is to pay the applicants' costs as agreed or assessed;

(6) the parties have liberty to apply to the Commission at any reasonable time within 14 days of the date of this decision. ________________

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