The applicant was no longer in the workplace prior to his dismissal and from that point the Direction did not apply to him.
The applicant's argument seemed to be that because the Direction stated that "a member of the NSWPF cannot perform any duties unless", provided he was not in the workplace but on leave there was no requirement to comply with the mandate and become vaccinated. The applicant was on leave from 1 October 2021 for the express reason that he was not compliant with the mandate and was not vaccinated. In my view, this argument is disingenuous. It is clear in both directions on 7 and 25 September 2021 what was required of the applicant. The mandate required that he become vaccinated against COVID-19. In this regard, I refer to the matter of Welch v Commissioner of Police [2023] NSWIRComm 1002 at [65]-[70] where the same argument presented by the applicant was rejected. The circumstances in this matter are analogous to those in Welch and I can see no reason to depart from that reasoning.
[2]
Whether or not the applicant's removal from the NSW Police Force is Harsh in its consequences from a personal and economic perspective.
I have considered the applicant's arguments that the decision was harsh when compared the conduct he engage in. The applicant had served in the Police Force for about 8 years when he was removed from his role. This is a relatively lengthy period. The applicant led evidence about the financial impact of the decision. He has found another job which pays about $10,000 less in terms of the base rates of pay. He notes that that he was paid considerably more as a police officer due to the penalties and allowance that applied to his employment. I note that the applicant has made a personal family decision to work part-time. He conceded he receives greater flexibility in his new role. The applicant is slightly worse off financially at this time, but he has largely mitigated his losses, since he has been removed, from the NSWPF. He is to be commended for this. The applicant has landed on his feet. I would not be surprised if he goes on to have a fruitful and full career, in his current place of employment or elsewhere.
The loss suffered by the applicant is not just financial. He also lost his career as a Police Officer. The NSWPF also lost the investment they made in him to become trained in his role. I take these matters into account as an impact upon him relevant to his interests, as he has presented them.
[3]
Other arguments presented by the applicant
Although the parties agreed to the matters to be determined by the Commission, I address some of the additional matters raised by the applicant. The applicant argued Police Officers who were involved in Domestic Violence related matters, had been retained by the NSWPF. It would appear, from the submission, what the applicant was seeking to argue and have accepted is that in comparison to those types of matters, the failure to comply with the mandate is a lesser offence and accordingly, a disproportionate outcome.
While I understand what the applicant has put in this regard, it is important to focus on the conduct of the applicant in failing to follow the Police Commissioner's Direction. This is a serious matter and for reasons that I will turn to, is within the public interest that the Police Commissioner have a Police Force who it can rely upon to comply wit her directions at the time that they are given.
The applicant also argued that other mitigation strategies could have been put in place so he could remain in the NSWFP. These included, for example, taking RAT tests, social distancing, and the use of hand sanitisation. I note that the decision was taken by the Police Commissioner, as is set out in her reasons and also the respondent's evidence before the Commission, that at the time the mandate was implemented, there was a need for a high order or further steps to be taken, in order to mitigate the risks associated with the COVID-19 risk, which, at the time, were identified as extreme.
I note also the evidence that was given today by Superintendent Driver, to the effect that no one strategy or one mechanism for reducing the risk was complete and that these needed to be look at, in conjunction with the other strategies that were in place.
The applicant also argued that he was a person of integrity and I would say today he took some umbrage at what the Police Commissioner has said to him, with respect to his personal integrity. I can understand why the applicant would feel that way. It is an unusual position to find oneself in to have, so openly and clearly, your integrity attacked in the way that is has been in this matter. To the extent that the applicant's integrity has been attacked by the Police Commissioner, it was in respect of the applicant's failure to comply with the Direction. That is, the requirement to be vaccinated because of the important position he occupied as a Police Officer. In this regard, I agree with that Police Commissioner has said with respect to the applicant's integrity.
[4]
The interests of the applicant and the public interest
I have already referred at various points in this decision to the interests of the applicant and to the public interest and I have taken these matters into account. For completeness, I note that the applicant made submissions about shortages in police officers in Orange and whilst this is relevant, there is also in my view an important public interest in the Police Commissioner having confidence that Police Officers that they will comply with her directions even when the Police Officer does not agree with them for whatever reason. I am required and I also do take into account the public interest of maintaining the integrity of the New South Wales Police Force and the fact that the Police Commissioner made the order pursuant to s 181D (1) of the Act. In my view on balance, the public interest favours removal of the applicant. In making this decision, I also as I have previously noted, take into account what the applicant has put forward with respect to his training and the investment that has been made in building his capability as a Police Officer in the NSWPF.
In all of these circumstances, I have decided to dismiss the application. The applicant has not discharged his onus to demonstrate that the decision was harsh, unreasonable, or unjust. In all of the circumstances, I have decided to dismiss the application.
Although I am of this view and I am of the view that the tactical burden never shifted to the respondent, I will turn briefly to consider the respondent's case.
[5]
The respondent's case
The respondent led evidence about the reason for the Direction and Vaccination Requirement. This evidence was from Superintendent David Driver. Superintendent Driver is an officer within the Professional Standards Command of the NSWPF and was previously responsible for Work Health and Safety matters within the New South Wales Police Force and this included COVID-19 responses. 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 vaccines 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 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 infection controls and the benefits and availability of vaccination.
Superintendent Driver set out the process whereby the NSWPF concluded that, especially in light of the Delta variant outbreak, lower order mitigations were no longer satisfactory and the NSWPF needed to mandate what it considered the higher order 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.
Superintendent Driver's evidence was that the Vaccination Requirement was removed from 1 July 2023.
Superintendent Driver was cross-examined by the applicant in the proceedings. His evidence was to the following effect:
1. The NSWPF relied upon the government's advice, including that issued by ATAGI in making its decisions about how to manage the risks associated with the COVID-19 virus.
2. The Delta variant was more dangerous that the Omnicom variant of the virus.
3. They NSWPF did not mandate a booster when this was recommended by ATAGI, but instead encouraged the workforce to receive the additional vaccine.
4. The reason for mandating the first two vaccines was that is took the risk assessment from extreme to medium risk and it was considered an additional necessary control.
5. The applicant posed a higher risk as an unvaccinated person in the workplace.
The respondent tendered a bundle of documents in the proceedings that were admitted into evidence. This included information pertaining to the impact COVID-19 was having on the workforce at the time the decision was made to mandate the vaccines. Mr Watts took the Commission in final submissions to statistical information produced by the respondent that demonstrated that the impacts upon the NSWPF was rising rapidly in the period proceeding the decision to mandate the two shots of COVID-19 vaccines.
In my view, the respondent's case only served to support the Police Commissioner's reasons for the removal of the applicant.
For the forgoing reasons, I have decided to dismiss the application.
[6]
Orders
I make the following Order:
1. The application in proceeding 2022/11383 is dismissed.
[7]
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: 31 July 2023
Pursuant to s 181E of the Act, "[a] police officer who is removed from the NSWPF by an order under s 181D may apply to the Industrial Relations Commission for a review of the order on the grounds that the removal is harsh, unreasonable or unjust".
Section 181F of the Act sets out the order in which a review under s 181E is to be conducted by the Commission. It is specific. It is in the following terms:
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 approach the Commission is required to take in reviews of this kind has been the subject of a number of recent decisions, including by the NSW Court of Appeal in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 (Zisopoulos) and by the Supreme Court of New South Wales in Storey v Commissioner of New South Wales Police Force (No 2) [2020] NSWSC 1429 (Storey).
In Zisopoulos, regarding the onus of proof in review proceedings under s 181E of the Act, the majority (Bell P, with whom Macfarlan JA separately agreed) concluded (at [84]-[89] and [96]) that the reference in sub-s 181F(2) to the burden of establishing that the removal is harsh, unreasonable or unjust is a reference to the applicant's legal onus, which at all times rests on the applicant to the proceedings before the Commission, and is not a reference to any "evidentiary" or "tactical onus" which may shift during the course of the proceedings.
In its decision, the Court of Appeal quoted with approval [176] of Starr v Commissioner of Police [2001] NSWIRComm 226 at [86]:
"If the case presented by the applicant raises a basis for the Commission's intervention, it will be for the Commissioner, in answer to the applicant's case, to introduce evidence sufficient to demonstrate that the removal was warranted. This is not a matter that depends on onus. It is simply that once the applicant establishes a case then a burden may shift to the Commissioner to respond to relevant aspects of that case. In some matters, such as the present, this may include a burden to produce evidence vindicating the factual findings made, having regard to deficiencies in the process adopted by the Commissioner. (emphasis added)"
The Court of Appeal decision implicitly endorses the approach adopted in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 (Tredinnick). In particular, reference was made with approval (as it was in Tredinnick) to the passage by Lord Donaldson of Lymington MR in Amoco Oil Co. v Parpada Shipping Co. Ltd (The "George S.") [1989] 1 Lloyd's Law Reports 369 at p 370 (cited at [69] of Zisopoulos):
"I now turn to the burden of proof. It is trite law that the legal burden lies upon the claimant. He who alleges must prove. The appellants allege a short delivery and consequential loss and they must prove both. How they prove it and the evidential burden involved is another matter. Proof must be met by counterproof and that in turn by a reinforcement of the original proof (Smith v. Bedouin per Lord Shand at p. 79). If at any particular stage in the evidence one party would succeed, it is for the other party to adduce further or better evidence and, if he does so and thereby achieves a contingently winning position, the first party must do likewise or lose. In other words, the evidential burden swings or may swing between the parties throughout the hearing, but in the end, in the context of a claim for short delivery, the owner of the cargo must prove the short delivery if he is to succeed in his claim and the shipowner must either prevent his doing so or prove affirmatively that, although there was indeed a short delivery, it occurred in circumstances for which he was not responsible."
Importantly, Bell P made the following observation with respect to the nature of the review proceedings at [83]:
"The nuanced nature of a s 181E review based upon the statutory criteria of harsh, unreasonable or unjust is one that the legislature has entrusted to a specialist tribunal in the form of the IRC. The IRC's review is not "de novo" but, on the other hand, as Mr Kirk accepted in oral argument, is closer to a merits review than judicial review. Assessment as to whether a particular decision of the Police Commissioner engages the statutory criteria necessarily must have regard to the basis and reasoning employed by the Police Commissioner in any given case."
Macfarlan JA agreeing with the reasons given by the President, observed at [96] that:
"the better view of the judgements under review is that in referring to an evidential onus passing to the Police Commissioner as a result of the evidence called in Mr Zisopoulos' case being adduced, Murphy C and the Full Bench were referring to the "tactical onus" described by Sir Nicolas Browne-Wilkinson CV in Brady (Inspector of Taxes) v Group Lotus Car Cos plc [1987] 2 All ER 674 at 686-7… that is, a practical burden to adduce further evidence because the other party has produced enough evidence to win if that does not occur."
Zisopoulos makes clear that the role of the Commission in these review proceedings is to analyse the case being presented by the applicant, identifying the factual contentions being advanced, and determine whether those matters are proven or not. It is the applicant who must prove his or her case, including the factual contentions in support of that case, consistent with what the Full Bench of the Commission held in Tredinnick. Whether or not an applicant succeeds in proving his or her case turns on the Commission's assessment of the evidence adduced by the parties, including inferences to be drawn from the failure of either party to call particular evidence.
Returning to the Act, the Commission must take into account both the interests of the applicant and the public interest as provided by sub-s 181F (3), to which I have already referred.
The requirements of the Act were succinctly summarised by Wright J in Storey at [126]-[128], where his Honour stated, after setting out sub-s 181F (2):
"126. This makes it clear that the applicant for review bears at all times the burden of leading evidence to establish, on the balance of probabilities, all of the factual elements of his or her case and of making good the propositions that those factual elements mean that the removal was "harsh", or "unreasonable" or "unjust", on the proper construction of those words in ss 181E and 181F the Police Act.
127. Section 181F also, in effect, establishes a number of mandatory considerations which the IRC "must consider" or "must have regard to", namely:
1. the Police Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, set out in the removal order as required by s 181D(4): s 181F(1)(a);
2. "the case presented by the applicant as to why the removal is harsh, unreasonable or unjust": s 181F(1)(b);
3. "the case presented by the [Police] Commissioner in answer to the applicant's case": s 181F(1)(c);
4. "the interests of the applicant": s 181F(3)(a); and
5. "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))": s 181F(3)(b).
128. The applicant for a review under s 181E(1) will generally seek to discharge the burden of establishing that the removal was harsh, unreasonable or unjust by leading evidence and making submissions before the IRC. That evidence and those submissions will be "the case presented by the applicant". Examples of the type of case an applicant might present in order to establish that their removal was harsh, unreasonable or unjust can be drawn from the joint judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; [1995] HCA 24 including that:
(1) the removal was harsh because of its consequences for the personal and economic situation of the officer or because the removal was disproportionate to the gravity of the misconduct in respect of which the Police Commissioner acted;
(2) the removal was unreasonable because it was based upon inferences which could not reasonably have been drawn from the material before the Police Commissioner; or
(3) the removal was unjust because the employee was not guilty of the misconduct on which the Police Commissioner acted."
I have applied these principles to this matter.
The Police Commissioner's Statement of Reasons
The Police Commissioner's Statement of Reasons sets out the background to the Order being made, then summarises the applicant's response before setting out the allegations. The following appears under the heading "Consideration":
"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. You are a Senior Constable with eight years of service and experience. I expect you to always act in accordance with your obligations under the Police Act 1990 and the NSW Police Force Code of Conduct and Ethics.
In addition, the NSW Police Force's primary obligation under the WHS Act is to ensure the safety of its workers and other persons so far as is reasonably practicable. 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.
In your Response and your exemption report, you contend that alternative risk mitigation strategies, other than vaccination, could be used to address the health risk posed by COVID-19.
Vaccination is a higher order risk control mechanism for the virus. This has been acknowledged and accepted by SafeWork NSW, the safety regulator in this State.
While I accept that other risk control measures can be implemented, they are not mutually exclusive with vaccination. As you know, the NSW Police Force has adopted numerous risk control measures over the past 18 months to address the risk posed by COVID-19, beyond directing all members of the organisation to be vaccinated, including the use of masks, hand sanitiser and social distancing, amongst other measures. However, vaccination remains the most effective risk control measure, in circumstances where members of the NSW Police Force, who provide an essential service, often [come] face-to-face with persons in the community, are at a heightened risk of contracting the virus.
Further, and regardless of your contention that alternative risk mitigation strategies can be adopted, that does not affect my conclusion that you were lawfully directed to be vaccinated, and you have chosen to disobey that direction. Failing to comply with a lawful direction amounts to serious misconduct, and to my mind, illustrates that you consider you can pick and choose which lawful orders you comply with, and those that you do not comply with.
I note that, in your Response and your exemption report, you suggest that you would submit to regular rapid antigen testing if allowed to return to your duties. While I accept that is a risk control measure and may assist in providing an early indication of infection, it of itself does not reduce the risk (a) of you contracting COVID-19 from positive cases; (b) of you spreading COVID-19 to others (as a rapid antigen test would simply say you were positive but not reduce your transmissibility to others); or (c) of hospitalisation / serious consequences should you contract COVID-19. It remains the case that vaccination reduces these risks and is considered a higher order safety control than rapid antigen testing. Given the spread of the virus throughout the community, there is an increasing likelihood that members of the NSW Police Force will become infected while performing their 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, I 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.
In your Response, you express an objection to being directed to be vaccinated against COVID-19, and in particular, you state that you should be free to decide whether to [inject] substances into your body without that decision being tied to ongoing employment.
I acknowledge your concerns, 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 I have given.
In your Response, 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 by 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.
You refer to the fact no direction has yet been made in relation to a 'booster' dose. This does not detract from your decision not to comply with a lawful direction, unlike those officers still performing duties. Given the permutations of COVID-19, future work health and safety control measures will be considered, and directions may be made - including further vaccinations. Even if such a direction was made, it is apparent you would [choose] not to comply.
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 issued by myself and former Commissioner Fuller, APM. The health and wellbeing of every person is a core priority. and it is an obligation you share. Capacity to meet and follow safety instructions is core to the competent performance of our duties.
I take into account that on 23 January 2017 you were subject to disciplinary action pursuant to s 173 of the Police Act 1990. A warning notice was issued by your Commander, A/Superintendent Luke Arthurs. At that time, you were reminded of your obligation to always act in accordance with the Police Act 1990, the NSW Police Force Code of Conduct and Ethics, Statement of Values and all relevant policies and procedures.
I have also carefully reviewed all of the material associated with this matter and taken into account the details of your career history within the NSW Police Force as supplied by you in your Response.
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.
I expect and the law demands that New South Wales police officers will uphold their solemn Oath of Office at all times. Our Oath requires all New South Wales police officers to act professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty.
I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Force Code of Conduct and Ethics.
I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer."
(emphasis as it appears in the original)
The Police Commissioner's reasons set out a rational basis for the conclusions she made with respect to the removal of the applicant as a Police Officer of the NSWPF. They demonstrate that the applicant knew about the basis for his removal in advance of a decision being made and was afforded an opportunity to respond to those reasons before he was removed from the NSWPF.
The Police Commissioner's reasons include an explanation for the decision to make the Direction, including the medical risks then faced by the NSWPF and the community by the COVID-19 virus, the advice received by the NSWPF about responding to that risk and the nature of the work of Police Officers. In my view, the Police Commissioner's reasons articulate a rational and reasonable basis for the decision to give the Direction. With respect to the decision that the applicant had engaged in misconduct, the Police Commissioner referred additionally to the hierarchical nature of the NSWPF.
In this matter the applicant has contested the reasoning of the Police Commissioner that the direction need only be lawful, as opposed to being both reasonable and lawful. Indeed, usually it is the case that to find misconduct for a failure to comply with a direction, it needs to be found to be both reasonable and lawful. However, I accept that position is different in the context of a direction issued to Police Officers in NSW. Such a direction needs to be lawful, with no requirement of reasonableness.
The Police Commissioner set out the legal basis for the position that a direction need only be lawful and should not be reviewed by the Commission in s181E proceedings for "reasonableness": Respondent's Outline of Submissions at [19]-[34]. I agree with the Police Commissioner's position for the following reasons, which I have largely adopted from the Police Commissioner's written submissions on this point.
The NSWPF is established by s 4 of the Act. Subsection 6(3)(b) of the Act provides that one of the services which is provided by the NSWPF is 'the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way.' The provision necessarily captures injury or death occasioned by way of the COVID-19 pandemic, and protection against the same sits squarely within the statutory mission and purpose of the NSWPF.
There is no doubt that the relationship between the Police Commissioner and members of the NSWPF is hierarchical in nature. Members of the NSWPF are not engaged as employees, but as independent office holders exercising original authority in the execution of their duties. A Police Officer is required to take an oath or affirmation of office pursuant to s 13 of the Act to keep and preserve the peace and to discharge their duties faithfully according to law. Police Officers do not have their appointment governed by a contract of employment and are not employees at common law. Their obligations and duties are found within the statutory scheme set out in the Act and the Police Regulation 2015 (NSW) (Police Regulation) as well as the common law. The powers and duties of a Police Officer arise both at common law and by way of statute, including the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which is referenced at s 14 of the Act.
Section 8 of the Act provides the statutory basis for the Commissioner to manage and control the NSWPF. Subsections 8(3)-(4) provides:
(3) The Commissioner may classify the various duties that members of the NSWPF are required to perform and allocate the duties to be carried out by each such member.
(4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of the NSWPF with respect to the management and control of the NSWPF.
A Police Officer who fails to follow a lawful order or carry out a lawful duty is guilty of a criminal offence pursuant to s 201 of the Act. Similarly, cl 8 of the Police Regulation provides that police officers are to comply strictly with the Act and the Regulation and promptly comply with all lawful orders from those in authority over them. Given the special protective role the NSWPF has within our community, these obligations are hardly surprising.
The Police Commissioner's Direction is lawful as it is within the scope of the statutory power conferred on her. The Direction did not transgress any positive law. That is to say, there is nothing 'illegal' or unlawful about persons becoming vaccinated to carry out, or continue, their work safely.
The applicant has failed to present any cogent argument that demonstrates that the Direction is unlawful. True it is that no one can be required to become vaccinated. However, in the context of being directed to do so by the Police Commissioner as a Police Officer, the choice not to follow that Direction is misconduct.
The operation and scope of s 201 of the Act has been considered and determined by the High Court in State of New South Wales v Fahy (2007) 232 CLR 486 (Fahy) at [21] in which it was held that:
"Read as a whole, the Police Service Act [as it was then known] demonstrated that the evident purpose of the legislation was, as may be expected, to create a hierarchical and disciplined force. Chief among the statutory provisions giving effect to that purpose was s 201 which made it a criminal offence for a police officer to neglect or refuse either to obey any lawful order or to carry out any lawful duty as a police officer."
Similarly, in Benic v State of New South Wales [2010] NSWSC 1039 (Benic) at [20], the Supreme Court read s 201 as giving the Commissioner of Police the power to 'give a direction to any member of the NSWPF with respect to their conduct, functions or actions, including putting them in harm's way, with which the member cannot lawfully refuse to comply without committing an offence.'
Accordingly, I agree with the Police Commissioner's submission that to the extent that the applicant believed, rightly or wrongly, that COVID-19 vaccination put him in harm's way, this does not excuse him from complying with the Direction in circumstances where there is nothing unlawful about becoming vaccinated.
In Falconer v Commissioner of Police (No 4) [2022] WASC 271 (Falconer), the Supreme Court of Western Australia stated that:
"the right to bodily integrity is curtailed, by necessary implication, where the effectiveness of the force is based on obedience to command, and where the nature of the office requires members to carry out duties which may expose them to harm... the infringement of a common law right which is inconsistent with membership of a disciplined force is not, in itself, a sufficient reason to declare the order unlawful."
It has also been determined in other matters before this Commission that the Direction itself need only be lawful with no additional requirement of reasonableness: see Denshire v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1048 at [27]-[28]; Roberts v Commissioner of Police, New South Wales Police Force [2023] NSWIRComm 1039 at [51]. In my view, those decisions were correctly decided on this point.