Roberts v Commissioner of Police, NSW Police Force

Applicant's evidence

1. The applicant was the only person to give evidence on his behalf.
2. He filed a document titled "Brief of Evidence", totalling 200 pages, on 28 June 2022 (ABoE), and an untitled covering document of submission and evidence, referring to the 200 pages, dated 3 July 2022 (AS). He also filed a document titled "Reply to the respondent's documents" on 9 August 2022.
3. The applicant began his AS describing his history with the NSWPF, including: 1. Studying a Bachelor of Policing as a means to be accepted to join the NSWPF. He described the financial cost he bore in undertaking this study; 2. His work ethic, commitment to being a police officer, and the satisfaction he gained from the vocation; and 3. The unknown dangers and effects of COVID-19 not deterring him and his colleagues from doing their duty as police officers. He described his own personal sacrifice in isolating from his partner at the time, due to her pregnancy and the unknown effects of COVID-19 on pregnant women.
4. The AS did not directly address the events which lead to the applicant being served with the 181D Notice, although he did refer to "making numerous requests for a copy of the NSW Police Force COVID-19 Vaccination Risk Assessment" prior to being served with that notice.
5. The ABoE included the Exemption Request, which sought an exemption based on: 1. Available vaccinations not providing either immunity or preventing transmission; 2. COVID-19 only having a 2% fatality rate, and more than a 98% full recovery rate for those under 70 without serious co-morbidity; 3. The availability of alternative risk controls, such as temperature checks, PPE and social distancing in the workplace, or regular testing; and 4. The anticipated availability of non-mRNA vaccines in the near future.
6. The Exemption Request asked for "any related Worksafe Plans, Material Safety Data Sheets, Work Place Risk Assessments and the policy and procedures for an illness or adverse effects, including lifelong disabilities or death caused by the vaccines."
7. The 181D Response was also included in his ABoE, and it set out the applicant's reasons for not being vaccinated in detail, including: 1. That the vaccination requirement was "forcing" a medical procedure on him; and 2. A rejection by the applicant of respondent's underlying health rationale for the vaccine mandate. In particular, the applicant denied that the vaccines prevent transmission, and denied that there was evidence that the vaccines were the most effective protection against COVID-19.
8. The 181D Response denied that the applicant had "deliberately chosen not to comply with the vaccine mandate…", rather asserting that he had "… simply sought to engage with [the respondent] …" as to whether the vaccine mandate was lawful and reasonable.
9. The 181D Response then set out sixteen bases upon which he objected to being vaccinated.
10. On their face, some of these bases had a rationale connection to the substance of the Direction. As set out in the 181D Response, these included: 1. The novelty and newness of the then available vaccines; 2. Those vaccines not being as effective as advertised; 3. Those vaccines not preventing people catching or transmitting COVID-19; 4. The risk of adverse reactions; 5. The blanket nature of the mandate; 6. The absence of a contractual basis for requiring the applicant to be vaccinated; and 7. That vaccination is not mandatory in Australia.
11. Some of the other bases advanced were, frankly, less relevant. These, again as set, included: 1. Demonisation of President Trump for his COVID-19 views; 2. President Biden, Speaker Pelosi, and Premiers Andrews and Berejiklian "flouting their own lockdown and mask wearing laws"; 3. Elected officials and public servants gaining pay rises during the pandemic; 4. There being insufficient promotion of increasing exercise, losing weight and maintaining a healthy diet, including vitamin supplements; and 5. That getting a vaccination would be akin to the applicant being forced into a medical experiment.
12. The applicant submitted that his doctor had suggested he wait until the Novavax vaccine was available, due apparently to a lower risk of adverse reactions in the nature of heart conditions. No evidence from the doctor was produced in response to the s 181D Notice, or to the Commission.
13. The applicant included a large body of material about COVID-19, COVID-19 vaccines and the reported adverse effects of vaccines in the ABoE. This ranged from reputable material published by the Australian Government about COVID-19, COVID-19 vaccines and adverse effects, raw data of reported adverse events, mortality reports from the ABS, through to personal experiences of one person known to the applicant, and media reports about COVID-19 from a range of sources in Australia and from overseas.

Cross examination of the applicant

1. During cross examination, the applicant was taken to s 210 of the Police Act. It was put to him that s 210 required him to comply with any lawful direction from a superior officer. It was further put that s 210 did not require that order to be reasonable.
2. The applicant did not accept that any order needed to be obeyed and went so far as to deny that every lawful order needed to be obeyed. He did not agree that an unreasonable order need be obeyed.
3. The applicant was asked, given that Novavax had become available since his removal, if he had become vaccinated with the Novavax vaccine. He had not been vaccinated, both because his removal from the NSWPF removed his reason to be vaccinated, and because he had in the meantime become opposed to receiving Novavax. His reason was that he had determined that Novavax was not traditional vaccine technology.
4. He was very clear that he would not agree to being vaccinated with any of the vaccines available in Australia at the time of hearing. He was less clear whether this was mostly in reliance on advice from his doctor, or whether it was based on his own more general research of COVID-19, vaccines against COVID-19 and adverse reactions to such vaccines.
5. It was clear to the Commission that the applicant did not accept that official government sources were necessarily the best sources of information about COVID-19, COVID-19 vaccinations and adverse reactions to such vaccines.
6. The applicant agreed that his substantive role, of a general duties police officer, could not be performed from home, although he considered that alternative duties could have been provided so that he did not interact with members of the public.

David Driver

1. Superintendent Driver was an officer within the Professional Standards Command of the NSWPF. He was responsible for work health and safety matters within the NSWPF, and this included COVID-19 responses.
2. He set out in considerable detail a history of: 1. The NSWPF enforcement of COVID-19 public health orders; 2. Priority access to COVID-19 vaccinations granted to members of the NSWPF; 3. Mandatory vaccination requirements for NSWPF members in certain settings prior to 7 September 2021, such as in hotel quarantine; 4. Encouragement by the NSWPF for its members to become vaccinated; 5. The impacts of the Delta outbreak from June 2021, and how this had several impacts which caused greater numbers of NSWPF members to become infected, and the impact on the NSWPF workforce of infections and mandatory isolation; 6. How public health orders, driven by the Delta variant, prevented NSWPF members living in certain local government areas from attending work if they were unvaccinated; and 7. The information provided via the NSWPF intranet about COVID-19, inflection controls and the benefits and availability of vaccination.
3. Superintendent Driver set out the process whereby the NSWPF concluded that, especially in light of the Delta variant outbreak, lower order mitigants were no longer satisfactory, and the NSWPF needed to mandate what it considered the higher order risk mitigant of vaccination for all NSWPF members. His evidence was that given the size of the workforce, and the urgency of the situation, an expedited process was needed to implement the vaccination requirement.
4. Superintendent Driver's evidence was that, in lieu of upfront workforce wide consultation and given the volume of material already provided to NSWPF members about vaccination, and the fact that approximately 80% of the NSWPF workforce were fully vaccinated, specific concerns of individual members could be properly addressed via the exemption request process.
5. He gave evidence of discussions the NSWPF had with both the Police Association and the Public Service Association about the vaccination requirements.
6. Superintendent Driver's evidence was that the vaccination requirement remains in force for NSWPF members.

Mark Pluss

1. Chief Inspector Pluss was the Human Resources Duty Officer for the North Shore Police Area Command, where the applicant worked at the time of his removal.
2. Chief Inspector Pluss described the job of a general duties police officer, which was the role held by the applicant. His evidence was that those duties: 1. Include responding to calls from the public, staffing the front counter at police stations, and some related administrative duties, including compiling reports and briefs of evidence; 2. Are predominantly public facing, with it not being unusual for a general duties officer to spend their whole shift among the general public; 3. Cannot be performed remotely, or purely from an office at a police station; 4. Require police officers to deal with vulnerable members of the public and attend locations where there will be people likely to be more vulnerable to the COVID-19 virus; and 5. It is not operationally practicable to restrict an officer from attending 'high risk' locations or situations, including because of the inherent need for such officers to be able to respond swiftly to emergency situations.
3. It was his evidence that all sworn and unsworn members of the NSWPF in the North Shore Command were essential workers, and thus were required by the Area Commander to attend their assigned police stations to work throughout the pandemic. He gave evidence of one exception, being a pregnant officer, whose doctor had provided a medical certificate permitting only desk or office duties, because of her pregnancy.
4. Chief Inspector Pluss set out a history of the respondent telling all members of the NSWPF, including the applicant, of the Vaccination Requirement on 7 September 2021, followed by a history of the applicant seeking and being refused an exemption. This included Chief Inspector Pluss recommending against that exemption. The decision to refuse it was made by a more senior officer. His evidence about the basis of the exemption request accorded with the applicant's evidence.
5. Chief Inspector Pluss agreed with the applicant that there had been an exchange of emails between the applicant and the Area Commander in which the applicant sought a risk assessment of the impact of COVID-19 on the station at which the applicant was then working. His evidence accorded with the applicant's that: 1. No such assessment was conducted, and so none was provided to the applicant; and 2. The Area Commander responded to each email, providing NSWPF Fact Sheets on the COVID-19 vaccines, and referring the applicant to his doctor for any medical questions about COVID-19 vaccines.
6. Chief Inspector Pluss' evidence about the 181D Notice, the 181D Response, and the 181D Order and Statement of Reasons did not contradict the applicant's evidence. In any event, the documents speak for themselves.

Consideration

1. Pursuant to s 181E, "[a] police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission … for a review of the order on the ground that the removal is harsh, unreasonable or unjust."
2. Section 181F of the Police Act sets out several important matters as to the conduct of reviews under s 181E. "181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows - (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to - (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1))."

The Commissioner's reasons for removal

1. As Mr Seck of counsel for the respondent submitted, the Statement of Reasons set out the Commissioner's reasons. The Statement of Reasons set out: 1. The functions of the NSWPF, including "the protection of people from injury and death and [the provision of] essential services in emergencies"; 2. The obligation of the NSWPF to provide for the safety of members and the community; 3. The reasons why the Vaccination Requirement had been implemented, including: 1. The NSWPF being a critical service, its members coming into contact with people infected with COVID-19 and those vulnerable to COVID-19 and those medically unable to protect themselves; 2. The NSWPF role in enforcing public health requirements; 3. Fatality and illness of NSWPF members and their families; and 4. Providing the "most effective protection against COVID-19"; 1. The details of the Vaccination Requirement, and that the respondent considered that requirement to constitute a lawful direction; 2. A history of the actions of the applicant after the Direction was issued, and of the correspondence between the applicant and the respondent that followed the Direction being issued. I note that this history was consistent with the evidence before the Commission; 3. The allegations and findings against the applicant, being: "I am satisfied that there are reasonable grounds to conclude that you have deliberately chosen not to comply with the direction of former Commissioner Fuller, APM, dated 7 September 2021 and my direction issued on 25 September 2021. In particular, you have: failed to receive one or both dose(s) of a COVID-19 vaccine within the specified timeframe; and / or failed to provide evidence of your vaccination status. In the circumstances, I find that your conduct was contrary to the Police Act 1990, the Police Regulation 2015, the WHS Act and the NSW Police Force Code of Conduct and Ethics." [Emphasis in original] and 1. A recitation of the various legislative and NSWPF Code of Conduct provisions the respondent said were relevant.
2. The Statement of Reasons then set out why this background had led the respondent to remove the applicant from the NSWPF, including: "As set out in the Notice, I am very concerned by your conduct as detailed above. I expect the highest standards of behaviour from sworn officers of the NSW Police Force and for all NSW Police Force officers to place integrity above all. The NSW Police Force is a hierarchical disciplined organisation, and you are required to comply with all lawful orders. … … As you are aware, the NSW Police Force plays a vital role in the NSW Government's response to COVID-19. The risk of exposure to the virus by members of the NSW Police Force is high. I note in your Responses that you disagree that the risk of exposure is high. Amid one of the most significant health and economic emergencies the State of New South Wales has faced, you have deliberately chosen not to comply with the lawful directions issue by myself and former Commissioner Fuller, APM. In your Responses you deny that your failure to abide by the direction was deliberate. The health and wellbeing of every person is a core priority, and it is an obligation you share. Indeed, in addition to your obligations under s 201 of the Police Act 1990 and cl 8 of the Police Regulation 2015, the WHS Act requires you to obey reasonable directions and to take steps to ensure your own safety and that of others, including your colleagues and members of the public. Capacity to meet and follow safety instructions is core to the competent performance of our duties. It is a requirement of every member of the NSW Police Force to provide essential services in emergencies and to protect the public from injury or death. This includes the vulnerable and elderly, your colleagues, and their families. The NSW Police Force must always be operationally ready, and all members must be ready, willing, and able to perform their duties. An inability to perform every aspect of your duties has the potential to adversely impact the administration of justice. In the circumstances, am satisfied that, by choosing not to comply with the requirement to be vaccinated against COVID-19, you have decided to place your own interests ahead of the collective interests of the NSW Police Force and the community. I take into account that you deny this proposition. In your Responses, you express an objection to being directed to be vaccinated against COVID-19, and in particular, you raise human rights issues as well as the 'mixed messages' and the behaviour of elected representatives, medical personnel and media commentators. I acknowledge that your objections appear to be based on concerns genuinely held by you. However, your objection is not an answer or excuse to your failure to comply with the direction for you to be vaccinated. I accept that you have the right to choose whether to be vaccinated against COVID-19 or not. If you choose not to be vaccinated, I accept you will have your own reasons for that decision. But in so choosing, you are also choosing not to comply with the direction to be vaccinated. It follows that you are choosing to no longer be a member of the NSW Police Force. Not only does your decision pose unacceptable risks to the health and safety of yourself, your colleagues and members of the public, but a failure to comply with a direction amounts to serious misconduct. I do not see how I can continue to have confidence in a police officer who chooses to disobey a direction, particularly one that is as important to the safety of all members of the NSW Police Force and members of the public as the direction that has been given. … … While you have supplied me with medical information, which I have considered, it does not amount to a medical contraindication certificate in the form approved by NSW Health, which, as I set out above, is the only medical evidence that I will accept in exempting a person from my direction to be vaccinated. … In your Responses, you have questioned the safety of the currently available vaccinations for COVID-19. It is apparent, from information that is publicly available to all members of the community, that the TGA undertakes a rigorous process for assessing all vaccinations before they are approved for use. This includes evaluating the effectiveness and safety of vaccinations before they are authorised to be used. The TGA has made it clear this process was not fast-tracked, and further, that they continue to monitor clinical data to ensure that vaccines remain safe for use in the community. … … Instead, the evidence suggests that the risk of experiencing any serious side effects associated with the vaccine is infinitesimally small. Accordingly, I do not accept your contentions in your Response about the safety of vaccinations. In your Responses, you have also questioned the efficacy of, and necessity for, vaccination. In short, I do not accept your attempts to cast doubt over the effectiveness of the COVID-19 vaccinations currently available in New South Wales There is substantial evidence that is publicly available, from credible sources, that establishes vaccination significantly reduces the risk of serious illness and death from COVID-19. While I acknowledge there are reports to the contrary, including those you refer to in your Responses, some of these are from sources that are either not credible, or that are otherwise outweighed by the vast majority of medical opinion, both in Australia and around the world. … The fact remains that COVID-19 presents a real risk to the health and safety of members of the NSW Police Force and their families. As SafeWork NSW has identified, vaccination is a higher order risk control measure that best addresses the risk. … … In your Responses, you say that the direction that you be vaccinated against COVID-19 is unreasonable. You say that, to be enforceable, the direction must be both lawful and reasonable. You are not an employee of the NSW Police Force, but rather, you are appointed to the office of police officer on oath or affirmation. Your functions are those prescribed both in statute and the common law. They include, as set out in the Notice, the obligation to promptly comply with all lawful orders given by those in authority over you, pursuant to cl 8 of the Police Regulation 2015. This includes orders given the Commissioner of Police. A failure to comply with a lawful order is a criminal offence under s 201 of the Police Act 1990. This reflects the disciplined and hierarchical nature of the NSW Police Force. It is clear from these statutory provisions, as well as the common law and the hierarchical structure of the organisation, there is no requirement for the direction to you to be reasonable. It only needs to be lawful. I am satisfied that the direction is lawful, and that you have failed to comply with it promptly, or at all. Your failure to comply with a lawful direction strikes at the heart of your oath of office and obligations as a police officer. In the circumstances, I do not see how I can have confidence in your ongoing suitability to remain a police officer. … I have carefully considered the issues you raised in your Responses. I have carefully reviewed all of the material associated with this matter, and taken into account the character evidence and details of your career history within the NSW Police Force as supplied by you with your response to the Notice. However, your decision not to comply with the direction demonstrates that you lack the integrity to continue as a police officer, and by not being vaccinated against COVID-19 you no longer have the ability to perform your duties. I see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer. …" [Emphasis in original]
3. I consider that in themselves the Commissioner's reasons set out a rational basis, with a proportionate outcome for the Commissioner's decision to remove the applicant. They disclose that applicant knew about the basis and the likely outcome and was given an opportunity to respond before the removal was effected.
4. The Commissioner's reasons speak for themselves, but of note are the medical risks then faced by the NSWPF, the advice received by the NSWPF about responding to that risk, the nature of the work of police officers, the hierarchical nature of the NSWPF and the unambiguous nature of the Vaccination Requirement.
5. As set out in the Statement of Reasons, and as submitted by the respondent at hearing, I accept and proceed on the basis that the Direction needs to be lawful, with no requirement of reasonableness, as the applicant is a police officer. This accords with the analysis of the High Court in State of New South Wales v Fahy (2007) 232 CLR 486 at [21], which was adopted by the Supreme Court in Benic v State of New South Wales [2010] NSWSC 1039 at [20].
6. The applicant's submission that he could choose in some cases not to obey lawful orders is explicitly rejected.

The case presented by the applicant

1. Before the Commission, and earlier in his responses to the respondent, the applicant has been consistent, and undoubtedly sincere, as to why he does not wish to comply with the Vaccination Requirement and why his removal was harsh, unreasonable and/or unjust. At its heart is his view that he should not be required to receive a vaccination against his wishes.
2. Although he did not express his submissions in such terms, for a range of clearly articulated reasons the applicant does not believe that he should be required to be vaccinated, and accordingly removing him from the NSWPF was harsh, and possibly unjust. These reasons were set out by him in his evidence to the Commission and in his earlier Exemption Request and his 181D Response. It is not necessary to repeat them.
3. I consider that the case presented by the applicant has been answered by the respondent in the Statement of Reasons. This is because, as already set out, the applicant's case has been consistent from the outset, and the respondent was able to consider them in her decision to remove the applicant.
4. It is not necessary to repeat at length all of the respondent's answers. They are extracted above at [48], and the reasons summarised above at [50] and I consider they correctly analyse why the case presented by the applicant does not discharge his obligation to establish that his removal was harsh, unreasonable or unjust.
5. Two aspects of the case presented by the applicant should be addressed at greater length; the submission that Vaccination Requirement was unlawful and the submission that the s 181D process was inappropriate for use in respect of a police officer in the circumstances of the applicant.
6. The second can be shortly addressed. Firstly, as the respondent has done, by pointing to the hierarchical nature of the NSWPF. More than in most workplaces, a conscious decision by a police officer not to comply with a clear direction of the Police Commissioner raises a rational basis for the Commissioner to lose confidence in the officer to continue in the NSWPF. Secondly, it is unavoidable that the s 181D process will be used, as it is the only process open to the respondent in the circumstances. The applicant could identify no alternative process when asked by the Commission.
7. The choice faced by the applicant in deciding whether to become vaccinated or risk being removed from the NSWPF was undoubtedly a difficult one for the applicant. The respondent clearly set out in the Statement of Reasons that this was the choice faced by the applicant.
8. The question of the legality of the vaccination requirement is simple. It is not unlawful to be vaccinated, and it is within the scope of the statutory power conferred on the Commissioner, and so the requirement is lawful. This is consistent with previous decisions of this Commission, and of the Fair Work Commission.
9. The point in time at which the Vaccination Requirement was set was the height of the Delta variant outbreak in NSW. Widespread lockdowns which responded to that outbreak were in effect at that time. The time at which the applicant was removed from the NSWPF was sufficiently proximate to the time and events when the Direction was issued that the Commission finds that the concerns which caused the respondent to issue the Directions remained fully relevant.
10. Accordingly, the applicant has not persuaded the Commission that his removal was harsh, unreasonable or unjust.

The Commissioner's case in response

1. Consideration of the case in response has been addressed in considering the case put by the applicant and does not need repeating.

The interests of the applicant and the public interest

1. In substance, proper regard has been had to each interest in the foregoing consideration. In express terms the public interest in this case, especially as it is defined in s 181F(3) of the Police Act, strongly supports the removal decision, and the applicant's interest do not sufficiently support a finding that the removal was harsh, unreasonable or unjust.
2. In particular, the hierarchical nature of the NSWPF, the unambiguous nature of the Vaccination Requirement, and the rational basis for the Vaccination Requirement leaves the public interest strongly supportive of the removal decision.
3. Regard has been had above to the interests of the applicant in not being required to make a choice between his appointment as a police officer and his desire not to be vaccinated against COVID-19. The Commission is not persuaded, for the reasons set out above, that the applicant's interests make or indeed are capable of making, the removal harsh, unreasonable or unjust.

Outcome

1. It is inevitable from the foregoing consideration that the dismissal of the applicant was not harsh, unreasonable or unjust as contemplated by s 181E of the Police Act.

Order

1. Accordingly, the application for review is dismissed.

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: 28 April 2023