Scavera v Commissioner of Police, New South Wales Police Force

Catchwords

204 IR 448 Lottoland Australia Pty Ltd v Australian Communications and Media Authority [2019] NSWSC 1041100 NSWLR 328 Police Association of New South Wales v State of New South Wales [2020] NSWCA 3101 NSWLR 626 Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36290 FCR 369 Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 20681 NSWLR 348 Summersford v Commissioner of Police [2018] NSWCA 11597 NSWLR 831 Williams v Secretary, Department of Education [2022] NSWIRComm 1007

Judgment (7 paragraphs)

[1]

DECISION

Senior Constable Paul Scavera is a police officer of the New South Wales Police Force (NSWPF). He graduated from the NSWPF Academy on 23 August 2023 and was stationed at Bankstown Police Area Command, where he has performed general duties for ten years. In July 2021 he was appointed a 'Leading Senior Constable' (LSC) within Bankstown Police Area Command.
In November 2022, the Respondent, the Commissioner of Police, raised concerns in relation to SC Scavera's conduct, performance and competence. On 17 January 2023 SC Scavera was served with an undated 'Notice of Revocation' advising that his position of LSC was to be revoked within 14 days "due to the serious nature of the allegations relating to [his] performance and competence, which is not to the standard of [his] Leading Senior Constable Agreement."

Leading Senior Constable

Before embarking on my analysis of the relevant facts and law it is helpful to explain the nature of the LSC position.
Ms Emily Baxter, an employed solicitor of the solicitors for the Respondent, provided some details regarding the position in her affidavit sworn on 4 August 2023.1 She was the only witness for the Respondent and was not required for cross examination. Her affidavit, which included four annexures, was admitted without objection.
Ms Casey Young, a solicitor employed by the Police Association of New South Wales (PANSW), also provided some details regarding the LSC position in her statement made on 28 August 2023. [1] She and SC Scavera were the only witnesses for the Applicant, and neither were cross examined. The Applicant tendered a bundle of documents through each witness. No objection was taken to any of the Applicant's evidence.
A LSC appointment is not part of the statutory rank and grade structure of the NSWPF: ss 5 and 12 of the Police Act; Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36; 290 FCR 369 at [42] (Griffiths, Rangiah and Perry JJ). Rather, a LSC appointment is made pursuant to the terms of the Crown Employees (Police Officers - 2021) Award (Police Award). The relevant clauses are cll 3.10 and 41 which provide: 3. Definitions … 3.10 "Leading Senior Constable" means and includes those Non-Commissioned Officers employed by the New South Wales Police Force, who on or after the date of operation of this Award are appointed as a Leading Senior Constable in accordance with clause 41, of this Award. … 41. Leading Senior Constables 41.1 Subject to provisions duly agreed between the Commissioner and the Association a Non-Commissioned Officer of the rank of Senior Constable may be appointed as a Leading Senior Constable. 41.2 The Commissioner may revoke the appointment of a Leading Senior Constable at any time. The circumstances under which such an appointment is revoked will be subject to provisions duly agreed between the Commissioner and the Association. The revocation of the appointment of a Leading Senior Constable will not be regarded as reviewable action for the purpose of section 173(3) of the Police Act 1990. 41.3 Incremental progression for Leading Senior Constables will be subject to the provisions of clause 63 of this Award. 41.4 Where a Leading Senior Constable is to be permanently appointed as a Detective or Police Prosecutor as a result of a voluntary transfer to that position, they will immediately prior to their permanent appointment, revert to the Level and Step they would have attained if they had never been appointed as a Leading Senior Constable. Only then will the Non-Commissioned Officer transition in accordance with subclause 38.2. 41.5 A Leading Senior Constable, who is involuntarily transferred, involuntarily temporarily transferred or involuntarily seconded to a position that would normally attract the salary of a Detective or Police Prosecutor, will be subject to provisions duly agreed between the Commissioner and the Association. 41.6 In circumstances where an officer who has previously held an appointment as a Leading Senior Constable, and who has relinquished such appointment with a view to seeking appointment elsewhere, applies for a further appointment, that such officer may, in their application seek appointment at the level and step previously achieved, and if such an officer succeeds in gaining that further appointment as a Leading Senior Constable, then such officer is to be appointed at the level or step previously held. Their incremental date however will be the date of taking up duty in the new appointment, and such officer will be required to serve a minimum of twelve months on the level or step at which they were appointed, before being eligible for further incremental movement. These provisions will not apply to any officer whose previous appointment as a Leading Senior Constable was revoked for any reason whatsoever or who has voluntarily relinquished their appointment in circumstances of adverse performance assessments.
A cursory reading of cl 41.2 (and without reference to the Police Act), suggests that the Respondent's motion must succeed: it appears to state that the revocation of the appointment of a LSC will not be regarded as reviewable action. It is not a matter of dispute that SC Scavera's employment is governed by the Police Award. However, SC Scavera argues that cl 41.2 does not remove his right to seek a review of the revocation pursuant to s 173 of the Police Act. He contends that the provisions of the Police Award cannot alter the operation of s 173 and in any event, cl 41.2 is inconsistent with s 173 of the Police Act and that pursuant to s 405(1) of the Industrial Relations Act 1996 (NSW) (IR Act), cl 41.2 has no effect. I will return to these arguments in due course.
The evidence did not reveal when cl 41 was inserted into the Police Award, although the Respondent in written submissions filed on 19 September 2023 (RS) stated that the terms relating to LSCs were included for the first time in the Crown Employees (Police Officers - 2005) Award. I have no reason to doubt that submission, however the evidence shows that the position was first created in or around 2001, pursuant to an agreement between the Respondent and PANSW.
On 26 April 2001 the Respondent and PANSW entered into a Memorandum of Understanding (MOU) "to progress priority issues for continued reform in the NSW Police Service" (as the NSWPF was then known). The MOU contained the following relevant provisions: 1. Preamble … This Agreement is premised on the basis that there will be no new salaries or condition claims arising from negotiation of productivity and efficiency improvements covered by this Agreement. Relevant Awards and other industrial instruments will incorporate clauses to give effect to this commitment. … 5. Timeframes This Agreement recognises a long-term commitment to reform of the NSW Police Service. In achieving this outcome, a range of key priorities have been agreed and are listed in Appendix A. … … APPENDIX A KEY PRIORTIES - SERVICE WIDE AGENDA … 2. Improvements to Service Delivery … 2.5 Leading Senior Constables The parties agree to implement the process for the selection and appointment of Leading Senior Constable (Field), as set out in Appendix D to the Memorandum of Understanding. … APPENDIX D LEADING SENIOR CONSTABLES (FIELD) Objective: to provide incentive for experienced officers to remain in general duties work and to take a greater role in guiding, mentoring, and tutoring less experienced officers. The positions will be taken up by those with high levels of professional knowledge, who have the respect of junior officers, who are approachable, and who prefer not to move into supervisory/management positions. Implementation: Proposal will only proceed if fully funded by Treasury. The proposal will be implemented via an agreement under s 86 of the Police Service Act. The Agreement will be established consistent with the nominal term of the Awards Arising out of the MOU. Target date for positions to be established - July 2001. Numbers: 1200 positions will be established in filled, subject to the availability of sufficient eligible candidates. Numbers will vary from LAC to LAC. Each LAC will receive an allocation. Positions will only be placed in GDs. They are NOT additional positions, nor are they promotional positions. Distribution of the numbers can be used to lift experience levels in particular LACs including "hard to fill" locations. Distributions of positions will be undertaken in consultation with the Police Association. Remuneration: These positions will be remunerated on a new incremental scale to be reflected in the s.86 agreement on the following basis: Level 1, Step 1: $52,339 (unloaded) $57,573 (loaded) Level 1, Step 2: $52,339 (unloaded), $57,573 (loaded) Level 2 and thereafter: $53,703 (unloaded) $59,073 (loaded) Eligibility: Positions open to Senior Constables with 10+ years experience. … Selection: by Local Area Commander. … Appointment: on a permanent basis subject to annual performance review with capacity to be returned to normal remuneration level for unsatisfactory performance. Normal remuneration level in this context shall mean the incremental level and step to which the officer would have progressed had they not been appointed as a leading senior constable. Any officer returned to their normal remuneration level shall also return to their previous incremental date for the purposes of future movements. Normal competency requirements shall continue to apply on the basis of the obligations imposed on officers by virtue of the training year requirements. Performance Review: An appropriate performance appraisal system will need to be developed and implemented. 360 degree peer review is proposed. Internal Review: Review of selection and performance decisions to be made by internal review only - 1 x LAC; 1 x HR Manager; 1 x Association representative - all from a different Region. Such review will be conducted on both the merit and process undertaken in selection and performance decisions. The rules of evidence and procedure shall not apply, and no party shall be entitled to be represented. Decision of the review panel will be binding. s. 173 of the Police Service Act to have no application to determination to return officer to normal remuneration level. Upon execution of the MOU, the Association will support an approach by the Commissioner to Government to amend the provisions of s.173 to reflect the parties agreement that the provisions of s.173 shall not apply to a decision to return officer to normal remuneration level. In the event of a finding by a court that the provisions of s.173 apply, the parties agree that the provisions of the section 86 Agreement can be renegotiated. … Transfer and Secondments: Officers transferred or seconded at their own request, for any reason what so ever, cannot take their appointment with them. … … Competency Requirements: Officers will be required to abide by all normal competency requirements. …
It is convenient to note at this juncture that the 'Police Service Act' referred to in Appendix D to the MOU is a reference to the Police Service Act 1990 which is now known as the Police Act 1990. The name of the Act was changed on 12 July 2002. [2] Also, as at the date of the MOU, s 86 of the Police Service Act 1990 was a provision identical to what is now s 87 of the Police Act. The section was renumbered on 1 December 2006. [3] Section 87 of the Police Act (s 86 of the Police Service Act 1990) provides: 87 Commissioner may enter into agreements (1) The Commissioner may enter into an agreement with any association or organisation representing a group or class of non-executive officers with respect to industrial matters. (2) The Commissioner is not authorised to enter into such an agreement with respect to a matter if the Industrial Relations Commission does not have jurisdiction to make an award or order with respect to that matter because of section 405 of the Industrial Relations Act 1996. (3) An agreement under this section binds all non-executive officers in the class or group affected by the agreement, and no such officer (whether a member of the association or organisation with which the agreement was entered into or not) has any right of appeal against the terms of the agreement.
As foreshadowed in the MOU, and ostensibly pursuant to s 86 of the Police Service Act 1990, on 17 September 2001, the Respondent and the PANSW entered into an agreement known as the "Leading Senior Constables Agreement" (LSC Agreement). It contains 10 clauses. Of relevance are clauses 7, 8 and 10: 7 Appointment and Revocation Appointment of officers as Leading Senior Constables, and the revocation of such appointments, shall be in accordance with the provisions agreed between the Commissioner and the Association as contained in Appendix D, to the Memorandum of Understanding signed by the Commissioner and the Association on 26 April, 2001, and any further provisions duly agreed between the Commissioner and the Association. 8. Conditions of Employment Except as expressly modified by the provisions of this Agreement, and subject to any other provisions that may be agreed between the parties in relation to Leading Senior Constables, the conditions of employment applying to all officers subject to this Agreement, shall be those applying generally to all other Non-Commissioned Police Officers of the Police Service as expressed in the Police Service Act, 1990 and Regulations, and in the various Awards, Agreements and Determinations covering such offices from time to time. … 10. Area, Incidence and Duration This Agreement shall apply to those officers duly appointed as Leading Senior Constables as and from the date of appointment as a Leading Senior Constable, including appointment subject to review, but not earlier than the beginning of the first full pay period to commence on or after 1 July, 2001, in accordance with the provisions of this Agreement, and shall continue to apply whilstever such appointment remains valid and has not been subject to revocation, and whilstever this Agreement continues in force. This Agreement shall operate from the beginning of the first full pay period to commence on or after 1 July, 2001, and shall remain in force until 31 December, 2002, and shall continue in force thereafter until one month's notice of its termination is given by either party.
No party contended that the LSC Agreement has been terminated.
In or around 2002 ,NSWPF developed a set of guidelines known as the Leading Senior Constable Guidelines (LSC Guidelines). The Respondent submitted that the LSC Guidelines constitutes 'further provisions duly agreed between the Commissioner and the Association' as countenanced by cl 7 of the LSC Agreement and, pursuant to cll 41.1 and 41.2 of the Award, LSC appointments and revocations of appointments respectively, are subject to the LSC Guidelines. This was not a matter of debate, and, subject to what follows below, I accept that this is the case.
Amendments were made to the LSC Guidelines in 2004, 2008 and 2014. The current version of the LSC Guidelines were tendered in evidence. It was not submitted that the current version of the LSC Guidelines are an agreement under s 87 of the Police Act. It seems, because it was expressly designated as such, that the 2001 version of the LSC Guidelines was an agreement made under s 86 of the Police Service Act, but that since at least 2008 the LSC Guidelines have not expressly stated that they constitute an agreement under s 87 of the Police Act and that instead, the "LSC Guidelines must be regarded as having been made only for the purpose of complying with the obligations of the Commissioner and the Association under cl 41 of the Award": Ryan v Commissioner of Police, NSW Police Force at [164] - [178]. In any event, nothing turns on this point. Similarly, although the Respondent submitted, consistent with the view express by the Full Bench of the Industrial Court in Commissioner of Police v Bennett [2011] NSWIRComm 17; 204 IR 448 at [65], that the Police Award itself is an agreement under s 87 of the Police Act [4] , and this was not disputed by SC Scavera, ultimately this is of no consequence.
The following provisions of the LSC Guidelines are relevant: … 2. Scope These Guidelines apply to eligible Senior Constables, affected Commanders, Human Resource Managers and the officers responsible for administering the selection and ongoing management of Leading Senior Constables. They establish a consistent framework for the management of 1200 Leading Senior Constable opportunities across the state. 3. Appointment of a Leading Senior Constable Appointing Leading Senior Constables is a process of 'self-management' by Commands, with the relevant Commanders having the authority to fill vacant Leading Senior Constable opportunities as they arise on an ongoing basis. … 4. Inherent requirements of a Leading Senior Constable 4.1 General The inherent requirements of a Leading Senior Constable are to work closely with less experience Constables to: ● provide situational leadership ● act as a role model and ● provide support, mentoring and guidance in all aspects of the relevant situation. … 8. Appointments … A Leading Senior Constable once appointed, remains a Leading Senior Constable until such time as the officer is promoted, transferred to another location or section at their request, or voluntarily chooses to terminate their appointment or has their appointment revoked. 9. Revocation of Leading Senior Constable Appointment Commanders must advise the Leading Senior Constable in writing of their intention to revoke their Leading Senior Constable status and outline reasons for their decision. Decisions must be factually based and be supported by documentation e.g. Career Management System Performance Reviews and any records of counselling. Where possible the notice should be presented to the Leading Senior Constable in person with provision for its receipt to be acknowledged by the officer. 9.1 Minor Misconduct (Local Management Issue) or Unsatisfactory Performance In this case LSCs should be advised in writing by the relevant Commander of their intention to revoke the officer's Leading Senior Constable status due to their performance and/or conduct. Leading Senior Constables will be given 14 days to seek a review. If no review is sought the officer's Leading Senior Constable status should be revoked at the expiration of the 14 day period. If a review is sought then the officer's Leading Senior Constable status would continue until the outcome of the review is known. 9.2 Significant Misconduct or Performance Issue This would generally involve one or more of the following: ● A sustained complaint warranting referral to the Internal Review Panel or Commissioner's Advisory Panel. ● A mandatory referral to the Commissioner's Advisory Panel or Internal Review Panel pursuant to Chapter C, Complaints against Police of the NSW Police Force Handbook; ● Suspension or other significant interim risk management action; □ Charged with and/or found guilty of a criminal offence. In these cases the officer's Leading Senior Constable status will be immediately revoked. The Leading Senior Constable opportunity may be left open pending the outcome of any proceedings arising out of the above matters. If the outcome of the proceedings results in no formal management action being taken, the officer may seek a review of their revocation. The review must be sought within 14 days of receipt of written notification of the outcome of the proceedings. Should an officer's Leading Senior Constable status be reinstated, consideration may be given to backdating the officer's Leading Senior Constable salary and increment. … 10. Review Process 10.1 Reasons for which an officer may request a review are: ● … ● … ● … ● … ● An officer's probity, conduct or integrity is called into question after appointment and consideration is being given to revoking their appointment. ● An officer's performance has been assessed as unsatisfactory, including as an FTO and/or in the demonstration of one or more competencies and as a consequence, consideration is being given to revoking their appointment. ● … ● … 10.2 Reasons for which an officer's Leading Senior Constable status can be revoked and has no right to review are: ● loss of civilian driving license and or certification to drive police vehicles. ● the result achieved in the peer assessment rankings. ● not achieving 80% in the annual Leading Senior Constable CAT test, after failing the test on the third attempt. ● the necessity to defer an officer's incremental progression. ● suspension of the officer. ● the necessity to implement a Remedial Performance Program (RPP) pursuant to Clause 55 of the Police Regulation 2008. All applications for review must be lodged within 14 days of the officer being informed of their revocation or non-appointment. Officers may seek a review outside the 14 day period in extenuating circumstances only. … … 10.3 The Review Process The following review process has been agreed to in order to monitor the selection, appointment and revocation of the Leading Senior Constable classification. This will be the responsibility of a specially convened panel comprising of: ● the relevant Region Human Resources Manager or delegate. ● an independent Commander, and ● a Police Association executive member or other nominated representative. … 10.4 Application for Review … 10.5 Review Panel … 10.6 Decisions of the Review Panel Decisions of the Review Panel are to be provided to the HR Manager establishing the Panel, who is to inform the officer requesting the review of the decision of the Review Panel as soon as possible. In light of the decision made, appropriate action is then to take place. Review Panels are not required to give written reasons but should fully articulate to the officer seeking the review the nature of the deliberations and the basis of the decision upon request. … 10.7 Further Review The unanimous or majority decisions of Review Panels are binding. However, unlimited capacity exists for the Commander, Human Resources to review a decision of the Review Panel. Where it can be demonstrated that the Review Panel has not followed the proper procedure as detailed in these Guidelines, an officer may request a review of the Review Panel's decision by lodging a manuscript report to the Commander, Human Resources within two weeks of being advised of the Panel's decision. The relevant Commander, Human Resources Manager or Police Association Executive representative may also request a review of the Panel's decision where they have valid concerns that the Review Panel has not followed procedure. …
The Respondent maintains that the only review available to an officer whose position as Leading Senior Constable is revoked, or at least the only review available to SC Scavera, is an internal review pursuant to chapter 10 of the LSC Guidelines.

Consideration

The Respondent contended, at RS [4.1], that: "the decision or determination made by the Commander of the Bankstown Police Area Command, Superintendent Johnston, to revoke SC Scavera's LSC Status was not an order under section 173 of the Police Act. It was not an order of the Commissioner of Police (directly or by her delegate). It was a decision or determination made by the Commander pursuant to the terms of the [LSC Guidelines]."
The Respondent further submitted at RS [4.15], that: "(a) as is apparent from the Notice, and confirmation of the revocation decision on 4 July 2023, the revocation of the LSC status is not given by way of an order or anything described as an order. (b) there is nothing in the text of the Notice or the confirmation of the decision that indicates that the decision or determination to revoke the LSC status was pursuant to the powers set out in section 173 of the Police Act. It is obvious that the decision or determination derived from the Guidelines."
No documentary evidence was tendered by either party showing the form of the "confirmation of the revocation decision on 4 July 2023." SC Scavera gave evidence that he was "informed" of the decision on or about 4 July 2023, but he did not explain how he was so informed. As already observed, Superintendent Johnston did not give evidence. In the circumstances, the primary documentary guidance as to the nature of the revocation decision is the Notice of Revocation.
The Notice of Revocation read as follows (with irrelevant personal information and the wording of paragraph 9.1 of the LSC Guideline which I have set out at paragraph 19 above, redacted): Name: Paul Scavera Rank: Leading Senior Constable Registered Number: XXXX Background This notice is issued following performance and conduct issues raised during complaint investigations IAPro reference number MIR2022-1536, MIR2022-1475, MIR 2022-1585 and MIR2022-1602 in relation to your conduct, performance and competence. Sustained findings were made in relation to the following issues: 1. MIR2022-1475 ● Service Standards/Ethical Standards/Guidelines: Maladministration (as described in the LECC Act) - Mistake of law or fact. ● Service Standards/Ethical Standards/Guidelines: Unreasonable /unprofessional behaviour (not customer service related). 2. MIR2022-1475 ● Service Standards/Ethical Standards/Guidelines: Supervisory issues - Fail to adequately supervise. 3. MIR2022-1602 ● Investigation: Inadequate Investigation 4. MIR2022-1585 ● Investigation - Outcome: Deficient/inadequate investigation - Other In addition to the above sustained complaints, there were failings identified in your involvement in the prosecution of XXXXX who was charged with 'Refuse/fail to comply with direction under Part 14'; 'Use offensive language in/near public place/school' and 'intimidate police officer in execution of duty w/o abh - T2'. Police Prosecutors advised that your statement lacked relevant details of the offences, that there was no justification for the use of police powers and that no effort had been put into the matter. As such, two offences were withdrawn by authority of the Crime Manager with the defendant pleading guilty to failing to comply with the move on direction. Notice of Revocation Your position of Leading Senior Constable will be revoked within 14 days. The reason for this is due to the serious nature of the allegations relating to your performance and competence, which is not to the standard of your Leading Senior Constable Agreement. Leading Senior Constable Guidelines - 9. Revocation of Leading Senior Constable Appointment 9.1 … Officers in the position of Leading Senior Constable are expected to be role models for their colleagues and perform their duties at a high standard as set out in the Leading Senior Constable Performance Agreement. Your performance and competence has been below the standard expected from an officer of your position and experience. You have 14 days to seek a review as to why your Leading Senior Constable status should not be revoked. Application for this review is to be submitted through your commander. The review will be conducted by the Region Commander who will determine your suitability to retain this position. Failure to seek a review will result in your Leading Senior Constable status being revoked after the 14 day exploration period. [signed] Superintendent Adam Johnson
I accept that the terms of the Notice of Revocation indicate that Superintendent Johnson's 'decision or determination' to revoke SC Scavera's LSC status was made pursuant to the LSC Guidelines and that there is no reference to s 173 of the Police Act. However, I also accept SC Scavera's submission, made in his written submissions in reply dated and filed on 4 October 2023 (ARS) at [11] and [12], that: "… whether action taken against an officer falls under s 173 must depend on an objective assessment of the purpose and effect of the decision in light of the circumstances revealed by the evidence. If a sanction is imposed on an officer because the Commissioner or a delegate consider it is appropriate action against an officer who has engaged in misconduct, the action falls under s 173. Were it otherwise, compliance with the procedural protections in s 173(5)-(7) and access to review by the Commission under s 174 would be entirely at the option of the Commissioner and depend purely upon the stated description of the action. That cannot have been the intention of Parliament."
That the characterisation of the action taken is to be determined objectively and that the Commissioner's view as to whether an action is reviewable or not is not determinative, is consistent with the Court of Appeal's decision in Police Association of New South Wales v State of New South Wales [2020] NSWCA 3; 101 NSWLR 626 (Macfarlan, White JJA and Barrett AJA). In that matter the Court had to consider whether a transfer of an officer from his position as a surveillance operative within the State Surveillance Branch to a general duties position at Chatswood police station, was a 'non-disciplinary transfer' as designated by the Commissioner, and hence non-reviewable action. The Court upheld an appeal from the primary judge who had determined that it was "open" to the Commissioner to treat the action as a 'non-disciplinary transfer' and that the action was, accordingly, non-reviewable action within the meaning of 173.
As Macfarlan JA explained: "10. In the absence of any indication in the legislation that the correct characterisation of a transfer is to be determined by ascertaining the Commissioner's subjective purpose in making it, its purpose and effect, and hence its characterisation, is in my opinion to be determined objectively, based upon all the circumstances, including as a factor, although not a determinative one, the Commissioner's characterisation, if any, of the transfer. In this respect, I therefore respectfully disagree with the primary judge's view that the characterisation is "a matter for evaluative judgment for the Commissioner" (Judgment at [89]). It follows that the question for the Supreme Court on a judicial review application is not, as the primary judge found, whether it was "open to the Commissioner to treat the action as a 'non-disciplinary'" transfer (Judgment at [92]) but rather whether the transfer was in fact "non-disciplinary" in character. 11. In characterising the objective purpose and effect of a transfer, the impact on the officer's remuneration will in my view be of significance, although again not necessarily determinative. Where the impact is adverse and considerable, the prejudicial effect of the transfer may be obvious. A minor, incidental impact on remuneration may lead to a different result."
Macfarlan JA's views were mirrored by Barrett AJA at [119]: "… The question whether a particular transfer is "non-disciplinary", like the question whether any action other than transfer ordered under s 173(2) is "reviewable action" or "non-reviewable action", is to be answered by reference to the statutory specifications in Schedule 1 in which discretionary or evaluative decisions of the Commissioner play no part. It is, in every case, a matter of assessing the particular action objectively against the statutory criteria."
Thus, if objectively, the 'decision or determination' constitutes action of the kind described in s 173(2) and does not constitute action of the kind listed in Schedule 1 to the Police Act, prima facie, the action will be 'reviewable action' and SC Scavera will be entitled to apply for a review of the order pursuant to s 174.
The Respondent initially submitted (at part 5 of the RS) that a "consideration of the Police Act as a whole" and in particular the ability of the Commissioner to enter into binding agreements with PANSW under s 87 and the fact that the Commissioner had entered into such agreements in the form of the LSC Agreement, the Police Award and (at least initially) the LSC Guidelines, revealed that it "is evident that a decision to revoke LSC status is not reviewable action." It is clear that SC Scavera had, at least initially, understood the Respondent to be contending, in effect, that cl 41.2 of the Police Award and the LSC Guidelines prevailed over ss 173 and 174 of the Police Act. Frankly, that was also my understanding based on the RS. However, in oral submissions Mr Darams, senior counsel for the Respondent, accepted that if the Commission were to find that the revocation was an 'order' within the meaning of s 173(2) and is 'reviewable action', then the parties' agreement(s) ostensibly to the contrary, will not "carry any weight". As Mr Darams submitted: " … we rely upon these provisions more to the context in supporting the submission I'll ultimately make about the operation of 173(2) and the type of decision that has been made in this case and that it falls outside 173(2)." [6]
I consider this is a concession correctly made. Division 1 and 1A of Part 9 of the Police Act, including ss 173-174, were introduced by the Police Service Amendment (Complaints and Management Reform) Act 1998 (NSW) and commenced on 9 March 1999. As SC Scavera submitted at ARS [3], and I accept, "[s]elf evidently, agreements or policy documents made years after the relevant provisions were enacted cannot possibly influence the proper interpretation of those provisions."
I also accept the submissions made by SC Scavera in his Outline of Submissions filed on 29 August 2023 (AS) that: 1. a provision of the Police Award, made under the IR Act, cannot alter the correct interpretation or application of separate legislation or remove statutory rights conferred on officers under the Police Act; 2. s 173(5)-(7) of the Police Act confer important procedural rights on an officer who has been subject of reviewable action on the basis of misconduct or unsatisfactory performance: see Police Association of New South Wales v State of New South Wales at [46(4)] (Barrett AJA); similarly s 174 affords an officer who is likely to be seriously prejudiced by an action taken against him or her on the basis of misconduct or unsatisfactory performance, a right of appeal: see Police Association of New South Wales v State of New South Wales at [3] (Macfarlan JA); 3. a conferral of jurisdiction upon a court or tribunal will not be taken to have been withdrawn, unless the withdrawal of jurisdiction is clear and unmistakeable and only to the extent clearly prescribed: see Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206; 81 NSWLR 348 at [89] (Giles JA) and decisions cited therein; similarly the authorities make clear that a narrow construction should be adopted in interpreting legislation which purports to take away the rights individuals would otherwise have pursuant to statute; see Williams v Secretary, Department of Education [2022] NSWIRComm 1007; 316 IR 160 at [59] and decisions cited therein; 4. s 10 of the IR Act does not clearly and unmistakeably permit the Commission, by award, to withdraw the jurisdiction conferred upon it by s 174(1) permitting an officer to seek review of reviewable action, nor does it allow the removal of the procedural rights afforded to officers by s 173(5)-(7); 5. the powers of the Commissioner under s 173 of the Police Act are a "function under the Police Act 1990 in relation to the discipline, promotion or transfer of a police officer …" and as such, pursuant to s 405 of the IR Act, the Commission cannot make an award that is inconsistent with that function; 6. the function bestowed by s 173 includes, in respect of 'reviewable action', the procedural rights set out in s 173(5)-(7), and the right of review afforded by s 174; and 7. to the extent the Police Award seeks to redefine or alter what constitutes 'reviewable action', it is inconsistent with the Police Act and has no effect by operation of s 405(1) (c.f. Commissioner of Police v Bennett [2011] NSWIRComm 17; 204 IR 448 at [65]). Contrary to RS [5.16], no such inconsistency arises in relation to the creation of the position of LSC or the prescription in the Police Award of rates of pay for those positions, but as submitted at ARS [16], purporting to remove the individual rights of officers subject to action as a result of findings of misconduct plainly does give rise to a direct inconsistency with a function under the Police Act.
SC Scavera also submitted, in the alternative, that cl 41.2 of the Police Award has no effect in any event as it refers only to the revocation of appointment as a LSC not being reviewable action for the purposes of s 173(3). Section 173(3) deals with action taken with respect to an officer whose performance is considered unsatisfactory following participation in a remedial performance program, as opposed to action with respect to an officer who has engaged in misconduct under s 173(2). Mr Darams SC suggested in oral submissions that the reference to s 173(3), was a typographical error, although senior counsel for SC Scavera, Mr Gibian SC, did not accept that this was necessarily the case and suggested it may be deliberate drafting, to exclude review in relation to action taken for unsatisfactory performance, but not in relation to misconduct [7] . In any event, it is not a matter to be resolved because the Respondent's case was not that cl 41.2 of the Police Award prevails over the Police Act, but rather that s 173 was simply not engaged upon analysis of the facts. [8] That is the question that I ultimately have to determine.
SC Scavera submitted that the revocation of LSC status constituted reviewable action because: 1. as provided for in the MOU, LSC Agreement and/or the LSC Guidelines, a LSC is responsible for providing situational leadership, to act as a role model and to provide supervision, mentoring and guidance to less experienced officers, and is entitled to a higher rate of pay, such that the revocation of the status and reversion to the position of senior constable falls within the ordinary understanding of a "reduction of the police officer's seniority" referred to in s 173(2)(b); and 2. the forms of non-reviewable action set out in Schedule 1 do not include revocation of appointment to a position, including revocation of appointment as a LSC, such that when such a revocation was imposed as a consequence of a finding that SC Scavera had engaged in misconduct and that his performance was assessed to be unsatisfactory, it constituted "any other action… the Commissioner considers appropriate", as referred to in s 173(2)(d); 3. the privative provision in s 173(9) shows "a plain parliamentary intent that actions taken unless they fall within a limited class of non-reviewable action, … with respect to an officer who is engaged in misconduct or whose performance is unsatisfactory, will be dealt with under that section" and it would be "quite inconsistent … for the Act to be construed to have the effect that, in fact, other actions taken with respect to an officer who is engaged in misconduct would not be covered by the privative provision and could be subject of other review or consideration by a tribunal or court other than the particular process contemplated by Div 1A" [9] ; 4. the revocation of SC Scavera's LSC appointment was imposed as a consequence of a finding he had engaged in misconduct and his performance was unsatisfactory.
In support of the view that the revocation was imposed as a consequence of a finding he had engaged in misconduct and his performance was unsatisfactory, SC Scavera pointed to: 1. the fact that the Notice of Revocation recorded that it has been imposed "following performance and conduct issues raised during complaint investigations IAPro reference number MIR2022-1536, MIR2022-1475, MIR2022-1585" and that "the reason for this is due to the serious nature of the allegations relating to your performance and competence"; 2. the Notice of Revocation expressly referred to paragraph 9.1 of the LSC Guidelines which relates to "Minor Misconduct (Local Management Issue) and Unsatisfactory Performance"; 3. the Notice of Revocation was issued contemporaneously with the Conduct Management Plan and the Commander's Warning Notice which were similarly issued "as a result of the misconduct investigation" and "in consequence of your misconduct".
The Respondent submitted that the revocation of SC Scavera's LSC status: 1. was not an order of the Commissioner, but rather, consistent with the procedure provided for in the LSC Guidelines, it was a decision or determination of the Commander, namely Superintendent Johnson; 2. the decision or determination of the Commander, consistent with the Award and the LSC Guidelines (and the precursor agreements made with PANSW) was not reviewable action within the meaning of s 173; 3. there are other provisions in the Police Act which permit the Commissioner to revoke a particular status which do not permit review of that action pursuant to s 173 - eg ss 66AC(4), 66A(3), 71(6) and 76; and 4. was not the result of SC Scavera having engaged in misconduct, but rather, as was expressly stated in the Notice of Revocation, such action was taken "due to the serious nature of the allegations relating to [his] performance and competence".
I do not accept the Respondent's submissions and, subject to the qualifications noted below, I accept SC Scavera's submissions as I have outlined them in paragraph [51] above.
First, I consider, given the terms of ss 8 and 31 of the Police Act, together with s 49(1) of the Interpretation Act 1987 (NSW), that the ability of the Commander to revoke a LSC appointment must involve a delegation of that power - which cl 41.2 of the Award itself expressly states is a power available only to the Commissioner - to the Commander. This view is consistent with that of the Full Court in Ryan v Commissioner of Police, NSW Police Force at [187]: "... First, as cl 41.2 of the Award confers a discretion on the Commissioner to revoke a LSC appointment, the reference to the decision of a Commander involving "their intention to revoke", must envisage a delegation by the Commissioner of that power: see s 49(1) of the Interpretation Act; ss 8, 31 of the Police Act."
In the premises, any decision of the Commander, is for all intents and purposes, a decision of the Commissioner.
The notion that the revocation was not an 'order' within the meaning of s 173(2) because it was "not given by way of an order or anything described as an order" cannot be accepted. The Respondent correctly observed that an 'order' for the purposes of Part 9 of the Police Act is not defined in the Act. The Respondent referred to the observations of Sackar J in Lottoland Australia Pty Ltd v Australian Communications and Media Authority [2019] NSWSC 1041; 100 NSWLR 328 at [89] to the effect that it is helpful to turn to dictionary definitions to ascertain the natural and ordinary meaning of words. The Respondent referred to the Macquarie Dictionary definition of "order" which (I confirmed via the online edition) includes "an authoritative direction, injunction, command or mandate." Applying that definition, I consider that the statement: "Your position of Leading Senior Constable will be revoked within 14 days", made by a Superintendent to a lowlier ranking officer, clearly constitutes an "order" within the meaning of s 173(2).
Secondly, while it seems clear from the MOU, the LSC Agreement, cl 41.2 of the Police Award and the LSC Guidelines, that the Commissioner and PANSW had agreed between themselves, as long ago as 2001, that a revocation of a LSC appointment would not constitute reviewable action under s 173 , I agree with SC Scavera that any action taken by the Commissioner against an officer in respect of the officer's misconduct, unless referred to in Schedule 1 of the Police Act, constitutes reviewable action. As Payne JA observed (McColl and Basten JJA agreeing) in Summersford v Commissioner of Police [2018] NSWCA 115; 97 NSWLR 831 at [38] (with emphasis added): Part 9 of the Police Act deals with management of conduct within the NSW police. The Police Act distinguishes between non-reviewable action, which is referred to in schedule 1, and reviewable action, which is the balance of action which may be taken in respect of a police officer's misconduct: s 173. The Commissioner may order reviewable or non-reviewable action with respect to a police officer who has engaged in misconduct: s 173(2).
As SC Scavera correctly noted at ARS [17], the fact that there are other provisions in the Police Act permitting the Commissioner to revoke a particular status which do not permit review of that action pursuant to s 173, is of no assistance to the Respondent as those provisions do not deal with misconduct. Similarly, the fact that the LSC Guidelines confer a capacity on the Commissioner (via her delegates) to revoke a LSC appointment for reasons other than misconduct, does not mean that when revocation does occur for misconduct, s 173 is not engaged.
Finally, it is plain from any sensible reading of the Notice of Revocation that the action was to be taken because SC Scavera had been found to have engaged in misconduct. To the extent there was an ambiguity, it is resolved by reference to the Commander's Warning Notice which was issued contemporaneously with the Notice of Revocation.
It is the case that the Notice of Revocation states that the reason for the revocation is due to the serious nature of the allegations relating to SC Scavera's performance and competence. However, the first page of the Notice states that "sustained findings" had been made with respect to each of the four identified complaints. Thus, the allegations had converted to matters of established fact. In those circumstances the reference to "allegations" on the second page of the Notice must be understood to mean "findings".
It is also the case that it not entirely clear from the Notice of Revocation whether the sustained findings made in respect of the four complaints constituted misconduct (which is a prerequisite to s 173(2) being engaged) or merely unsatisfactory performance. It is also not entirely clear, nor was it fully argued, whether this distinction matters. As I understand SC Scavera's submissions, if the Commissioner (or her delegate) takes action of the kind referred to in s 173(2)(a) - (d) for either misconduct or unsatisfactory performance (even if the officer has not first been required to participate in a remedial performance as stipulated in s 173(3)), it will constitute 'reviewable action' if the action is not referred to in Schedule 1. Neither party referred me to any authority which clarified the matter, although it would be odd if a review of the Commissioner's action were only available where it was taken (or asserted to be taken) with respect to the officer's misconduct, but not if the same action was taken with respect to the lesser sin of unsatisfactory performance.
In any event, for the reasons that follow, I am convinced that the revocation was taken because the Commissioner (via her delegate) considered that SC Scavera had engaged in misconduct.
The reference in the Notice of Revocation to paragraph 9.1 of the Guideline is not of great assistance as that paragraph refers to both 'minor misconduct' and 'unsatisfactory performance' although the reference at least confirms that misconduct, albeit 'minor', was a possible reason for the revocation. However, the question as to the nature of the impugned conduct is wholly resolved by the contemporaneously issued "Commander's Warning Notice" which provides details of the findings made in respect of three of the four complaints identified in the Notice of Revocation and states on the final page, in bold: "Pursuant to Section 173(2) and Schedule 1 of the Police Act 1990, I hereby order that non-reviewable action, being the issue of this notice, be taken in consequence of your misconduct."
This statement makes plain that the sustained findings in respect of three of the complaints (MIR 2022-1536, MIR2022-1602 and MIR2022-1475), being three of the four complaints referred to in the Notice of Revocation, constituted misconduct sufficient to entitle the Superintendent Hayston to issue a warning notice pursuant to s 173(2) and Schedule 1 of the Police Act. This being the case, the revocation of SC Scavera's LSC appointment must also have been for misconduct and not for unsatisfactory performance.
To the extent the Respondent contends that the reason for the revocation was not in fact for misconduct, despite this being found to have been engaged in by SC Scavera in respect of three of the four complaints, but rather for some lesser demeanour arising from the same three complaints, I do not consider that such 'evaluative decision' to be determinative of the matter. To allow the Respondent to characterise the revocation decision as being for conduct other than misconduct, in circumstances where the officer's impugned conduct has otherwise been characterised by the Respondent as constituting misconduct, and so remove an officer's right to review of the decision, will not be permitted for the reasons identified at [49(3)] above. Such an approach would not be consistent with an objective assessment of the circumstances as revealed by the evidence, being the approach taken by the Court of Appeal in Police Association of New South Wales v State of New South Wales [2020] NSWCA 3; 101 NSWLR 626. As Mr Gibian, submitted: "the subjective understanding of the decision maker, as to the basis of or the nature of the power being exercised, cannot be determinative of the correct application of the statute." [10] The same reasoning applies equally to the argument that the revocation was not an 'order' within the meaning of s 173(2) as no words to that effect were used. The rights of an officer provided for in Part 9 of the Police Act cannot be trammelled by the Respondent's manipulation of the reasons for action being taken against the officer, or the manner in which that action is communicated to the officer.
For completeness I accept Mr Daram's oral submission, by reference to the remarks of Barrett AJA in Police Association of New South Wales v State of New South Wales at [120], to the effect that just because there is a contemporaneous finding of misconduct does not necessarily mean that action taken with respect to an officer was taken because of the misconduct. For instance, as hypothesised by his Honour, an officer may be transferred because he or she is unable to perform necessary duties in the present position, or to defuse personality clashes at a particular location, or to manage excess staff, without reference to the officer's misconduct. However, that is not the case in this matter. The revocation was expressed to be because of the sustained allegations made against SC Scavera and the evidence confirms that those sustained allegations were considered to amount to misconduct.
Mr Gibian submitted that even a decision to revoke a LSC appointment for mere allegations of misconduct, rather than findings, would still fall within the scope of s 173. [11] I am not sure that is so, given the wording of s 173(2) which provides that the Commissioner may order that action be taken "with respect to a police officer who engages in misconduct", but I do not need to decide this question given that I consider that the action in this case was taken because of sustained findings that SC Scavera had engaged in misconduct. In any event, as Mr Gibian pointed out in his closing remarks, a revocation of a LSC appointment on the strength of allegations alone would likely fall foul of the LSC Guidelines which, in cl 9, stipulate that revocation decisions must be factually based and be supported by documentation. [12]
I accept SC Scavera's submission that the revocation was 'seriously prejudicial' to him and constituted a reduction in his seniority, given the nature of the LSC role and the significant reduction to his salary. If not a reduction in seniority, it must by 'other action' within the meaning of s 173(2)(d) as the scheme of s 173 does not permit action to be taken with respect to a police officer who engages in misconduct to escape review pursuant to s 174 unless the action is referred to in Schedule 1. Revocation of LSC status is not referred to in Schedule 1.
In the premises, SC Scavera is entitled to have the revocation of his appointment reviewed pursuant to s 174 of the Police Act.

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