Consideration
109 The assessment of the reasonableness of the requirement involves an examination of the requirement. It is not concerned with the conduct of either party in relation to the application of the requirement. It is not concerned with whether the parties have acted reasonably or unreasonably, an evaluation of the correctness of the decision or whether other alternatives were reasonable: Commonwealth of Australia v Human Rights and Equal Opportunity Commission [1995] FCA 1067; (1995) 63 FCR 74 at 87; Wilson at 61; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78 (Commonwealth Bank v HREOC) at 112-3; State of Victoria v Schou (No 2) [2004] VSCA 71; (2004) 8 VR 120 (Schou) at [26]-[27]. The test of reasonableness is an objective one: Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 (Catholic Education Office) at [115]. It is less demanding than necessity but more demanding than a test of convenience: Catholic Education Office at [115].
110 On the indirect discrimination aspect of the claim, in Ryan at [249] I observed that:
Whether a requirement or condition is reasonable cannot be considered in the abstract. The nature and extent of its discriminatory effect must be balanced against the reasons for the requirement including any commercial considerations; whether it is appropriate and adapted to its purpose and has a logical and understandable basis; and whether there is a less discriminatory option, including any accommodation of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory: Waters v Public Transport Corporation (1991) 173 CLR 349 at 378. These are questions of fact and degree.
111 In Ryan FC, the Full Court concluded that the Commissioner, by cl 1.42 of the LSC Guidelines, required the applicant, at least, to comply with a condition that he be able to fulfil the inherent requirements of the LSC role: Ryan FC at [202].
112 As referred to above, and as submitted by the respondents, the condition is not to be considered in isolation, but in the context of the LSC Guidelines. In Ryan at [254], I described:
The LSC is an appointment not a rank. The positions are limited per Command. The positions are subject to management by the Commander and subject to conditions reflected in the Guidelines, which themselves are subject to change. It is not necessarily a continuing position in that it is subject to conditions including yearly assessments, performance reviews, and there are circumstances where the appointment may or must be revoked. The position does not travel with the officer if the officer changes Command. It was designed to recognise the experience and skills of, and provide leadership assistance by, experienced Senior Constables.
113 Where a former LSC no longer holds that status, it results in that officer being paid at the Senior Constable rate, which is lower than the LSC rate: Ryan at [253]. That is so, regardless of the basis on which the officer no longer holds the LSC status. It is not confined to the exercise of the discretion under cl 1.42 where the officer cannot return to pre-injury duties and is unable to undertake the inherent requirements of the role. Indeed, it will also occur, inter alia, where the LSC is transferred to another location or section at their request: s 8. Nor is cl 1.42 confined to an officer who is certified unable to return to pre-injury duties and is unable to perform the inherent requirement of the position. Rather, as noted above at [45], it also applies to officers who have been deployed to other suitable employment.
114 That said, the applicant's submission was premised on the basis that a failure to meet the condition in relation to the inherent requirements of the LSC position results in the automatic revocation of an officer's LSC status, the consequence being a cut to his pay on sick leave affecting his superannuation upon being medically retired. However, that position ignores that the failure to meet the condition simply enlivens the Commissioner's discretion to consider revocation. Accordingly, in the circumstances of this case, the applicant was required to comply with the condition that he be able to return to pre-injury duties and be able to fulfil the inherent requirements of the LSC position, in order that his LSC status not be subject to discretionary review.
115 It follows that where an officer fails to meet the condition, cl 1.42 provides for a case-by-case discretionary determination of that officer's LSC status by the relevant commander. That determination can weigh the evidence and merits of each officer's case. Plainly, the Commissioner's delegate is an appropriate person to consider revocation given their knowledge of the officer's circumstances (and the extent and impact of their inability to fulfil the inherent requirements of the LSC role), the operational needs for training, mentoring and leadership, and the existing allocation of LSCs per command. The circumstances would include the duty of care to that officer's welfare and that of their colleagues in the NSWPF. I note also that the inability to fulfil the inherent requirements of an LSC does not mean the officer will necessarily cease working or be medically retired. That the condition enlivens a discretionary decision that may consider the full range of relevant circumstances speaks to the appropriate and adapted nature of the condition.
116 Ryan provides a discussion of the creation of the LSC position, and the policy underlying it at [59]-[68]. Under the agreement that created the position and LSC Guidelines, there is only limited funding for, and allocation of LSCs to each command (the number allocated depending on the command), and there is no capacity for a commander to increase the number of LSCs allocated to the command: cl 19.
117 As the applicant correctly submitted, part my reasoning in Ryan where I dismissed this aspect of his claim, was that a consequence of revocation is that it frees up the LSC position to be filled by another officer: Ryan at [253]. The applicant had argued then, as he did in this hearing, that the condition is unnecessary because of the ability of the commander to place the officer in an overstrength position if they are likely to be medically retired.
118 The Full Court accepted that an LSC may be moved to an overstrength position pursuant to cl 8, allowing the LSC position to be filled by another officer: Ryan FC [197]. It was not suggested otherwise in Ryan, rather, I observed that placing an LSC in an overstrength position did not mean that the supernumerary would continue to be paid at an LSC rate (a point addressed below): Ryan [147]. It can be accepted, as the applicant submitted, that the option to place an officer in an overstrength position is not limited only to officers likely to be medically discharged as a result of being hurt on duty. However, there is no requirement or obligation to move an eligible officer to an overstrength position. Rather, at its highest, it is an alternative approach that may be adopted in a given case where the discretion is enlivened, in circumstances where the LSC is likely to be medically discharged and satisfies the criteria set out in the Medical Discharge Standard Operating Procedures: LSC Guidelines cl 8. It should also be borne in mind that an officer is not necessarily entitled to retain his LSC status while he is on sick leave: Ryan FC [207]. Accordingly, as noted above at [50], while Mr Ryan may have been entitled to remain on full pay while he remained on sick leave, it was not necessarily an entitlement to remain on the LSC rate of pay.
119 The Full Court's decision (although it was not expressly addressed), implies that contrary to the finding in Ryan, moving an officer to an overstrength position involves that person continuing to be paid at the level of an LSC. There is only limited evidence as to the funding of the LSC positions (reflecting that funding was allocated when the positions were created). Nonetheless, it can be inferred that positions are funded, and there is not an unlimited or open-ended budget for funding positions. It follows that for however long an officer is in an overstrength position, it raises the issue of funding another officer holding the newly freed LSC appointment. This is because placing an officer in an overstrength position frees up an LSC appointment, but not the funds attached to it. Plainly, that results in an additional financial burden to fill the original LSC position that becomes free. In contrast, upon having his LSC status revoked, the applicant returned to the position of Senior Constable until medical retirement, attracting a reduced rate of pay, freeing up the LSC position (and associated funding) and enabling it to be filled. Accordingly, the ability to put an officer in an overstrength position, while relevant to the assessment of the reasonableness of the condition, does not achieve the same outcome as the revocation of the LSC. That conclusion is strengthened when regard is had to the logical basis for the condition, addressed below.
120 As the applicant acknowledged, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Catholic Education Office at [88], [111], citing Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (Waters) at 394-395, 383-384 and 410; Schou at [26]. That must especially be the case where the alternative does not address the objective of the impugned condition: see for example, Waters at 395.
121 As with the original hearing, the applicant's submission in many respects focused on his individual position, and an assertion that the consequence is unreasonable because it is unfair in his case: see above at [102]. In substance, the applicant's position was that it was unfair that his LSC status was revoked as some other LSC's still held their status at medical retirement, and cl 1.42 did not exist at the time he was given the LSC status. As to the second aspect, in Ryan at [257] I observed:
…That the clause did not exist in the earlier Guidelines does not suggest it was not reasonable or needed. To the contrary, that the changes were made by agreement between the Association and the Commissioner gives rise to the inference that, in light of the Guidelines as they previously operated, the changes were deliberate, necessary and appropriate. That the changes occurred after the applicant took up the position does not practically affect the assessment of the reasonableness of the condition. Although the applicant referred to that fact, he never articulated its significance to his argument in relation to his claims. It has not been suggested that the clause does not apply to him by virtue of that fact.
122 As noted above at [103], the applicant also submitted that a factor relevant to the reasonableness of the condition was that Mr Ryan was already on sick leave and already in the process of being considered for medical retirement at the time the condition was imposed on him. However, as previously explained, this decision was made in a context where the applicant was seeking a return to work.
123 In any event, as noted above, whether the condition is reasonable does not turn on whether the decision in the applicant's case was reasonable or correct. Rather, it is the reasonableness of the requirement or condition that must be judged for the purposes of s 6(3) of the DD Act, not the reasonableness of the conduct of either party, or the decision to require the person to comply with that requirement or condition: Nojin v Commonwealth of Australia [2011] FCA 1066; (2011) 283 ALR 800 at [85]; Schou at 26. Accordingly, as the respondents submitted, the issue is not whether the exercise of the discretion has been applied consistently or fairly, rather it is the requirement or condition that needs to be reasonable. The applicant submitted, by reference to the Whalebone Affidavits, that where the condition had not been used to revoke other officers' LSC status, that reflected on the condition's necessity. However, the fact that three officers retained their LSC status at the time they were medically retired does not assist, particularly given the unknown circumstances as described above at [85]. Given the limitations on the evidence as previously described, it does not advance the submission that the condition that enlivens the discretion is unreasonable. Moreover, contrary to the applicant's submission that the condition had been imposed on Mr Ryan alone, the fact that other officers had their LSC status reviewed (and some revoked) prior to medical retirement reflects that the condition enlivening the discretion has been applied to other officers.
124 A factor, perhaps a very important factor, relevant to reasonableness of a condition or requirement is whether the point of distinction adopted has a logical and understandable basis: Commonwealth Bank v HREOC at 112. The term, condition or requirement does not necessarily have to be one with which all persons or most persons agree: Wilson at 61.
125 I am satisfied, on balance, that the condition has a logical, rational and understandable basis.
126 The failure to meet the condition enlivens the Commissioner's discretion to consider revocation. The discretionary decision will be exercised in the circumstances of the case, by the commander, who is well positioned to do so.
127 As explained above, the position of LSC is an appointment, not a rank, the positions are limited per command and the number of LSC positions allocated to a command are financed. The Guidelines do not provide that the appointment to the status of LSC is necessarily indefinite.
128 A logical consequence of retaining Mr Ryan in an overstrength position on the LSC salary where funding for LSCs is finite, is that there is no funding for a replacement LSC, or if one were to be employed, the funding would have to be taken from elsewhere. In that context, it is apparent the impugned condition, by providing the commander a discretion, is also administering a policy decision to allow the financial resources of the NSWPF to be reallocated from persons who cannot perform the LSC function to the employment of those who can. Once that is understood, any less discriminatory alternative that does not enliven a discretion to revoke an officer's LSC status (and thereby does not provide the possibility of reallocating funding), does not achieve that object of the condition. Reallocating funding from an LSC who has had their status revoked to a working LSC may be unpopular, at least for the person having the status revoked, but it has a rational basis in the finite resources and operational needs of the police force. The same analysis is an answer to the applicant's submission that the Commissioner could have created new or additional LSC positions as needed. Moreover, when this purpose is understood, it becomes clear that contrary to the applicant's submission, cutting the amount he was being paid on sick leave was not the only effect of the condition.
129 As outlined in Ryan at [184] and [258], it remains the case that if a consequence of placing an officer in an overstrength position is to limit the ability to employ an active LSC in a particular branch, that plainly undermines the purpose for which the LSC positions were created. Those purposes include assisting the retention of experienced officers and recognising their leadership role within a command. In those circumstances, a command would find themselves without the benefit of the situational leadership, support, guidance and mentoring an LSC provides to less experienced constables. That is reflected in Superintendent Glinn's letter advising the applicant of the decision to revoke his LSC status, which took into account, inter alia, "the operational need to fill this "critical training role with a suitable fully operational officer within the Command as soon as possible".
130 Having considered the nature and discriminatory effect of the condition, whether the condition is appropriate and adapted, the logical and rational basis for the condition, and in that context, the absence of a less discriminatory alternative that would achieve the same object, I am satisfied the respondents have established that the condition in cl 1.42 of the LSC Guidelines is reasonable for the purposes of s 6(3) of the DD Act.
131 Accordingly, the applicant's claim pursuant to s 6 of the DD Act must fail.