Summersford v Commissioner of Police

Relevant statutory provisions

1. Whether the plaintiff was entitled to procedural fairness and, if so, what procedural fairness involved in his circumstances, are closely related questions, which require a detailed and careful analysis of the Act. All references to legislation in these reasons are, unless otherwise indicated, to the version of the Act for the period 1 December 2014 to 7 December 2016.

Parts 2 and 4 of the Act

1. Part 2, entitled "NSW Police Force", includes s 7 which provides, amongst other matters, that each member of the NSW Police Force (the Force) is to act in a manner which "places integrity above all" (s 7(a)) and "preserves the rights and freedoms of individuals" (s 7(c)). Section 8(2) provides that the defendant's responsibility includes the effective, efficient and economical management of the functions and activities of the Force. The defendant has power to issue "instructions" to members of the Force with respect to its management and control: s 8(4). Under s 31 (which is contained in Pt 4), the defendant may delegate any of his functions and powers other than the power of delegation.

The legislative history of Pts 8A and 9 of the Act

1. Parts 8A and 9, Div 1 and Div 1A, were inserted into the Act by the Police Service Amendment (Complaints and Management Reform) Act 1998 (NSW) (the 1998 Amendment) to give effect to recommendations of the Royal Commission into the New South Wales Police Service conducted by the Honourable Justice Wood (the Wood Royal Commission). The reforms were designed to replace the existing disciplinary processes, which centred on the laying of charges, the conduct of formal hearings of complaints (which were often associated with significant delay), and the imposition of punitive measures. The Wood Royal Commission emphasised the importance of simplifying disciplinary procedures and reducing formality and legal complexity and recommended a more flexible managerial approach which encouraged the use of direct remedial measures to address misconduct of police officers.
2. The Wood Royal Commission also stressed the importance of protecting and supporting those who made complaints about police officers. The Interim Report of the Wood Royal Commission at [5.55] said: "5.55 One of the terms of reference for this Royal Commission requires it to examine the experience of internal informers or witnesses from within the Police Service. This area of the complaints system will be discussed in the Final Report. It is emphasised, however, that the new complaints system must ensure that police officers are encouraged to make a report about the misconduct of others by ensuring that they are provided with the protection and support to meet their statutory obligation to do so."
3. In the Final Report, review of "managerial decisions" was addressed in the following terms at [4.106]-[4.107]: "D. REVIEW OF MANAGERIAL DECISIONS THE REVIEW PRINCIPLE 4.106 Any procedure for review of a managerial action needs to take into account the following facts: • that such action is taken in the course of the effective administration of an organisation, and cannot depend upon, or be confined to matters that are capable of proof by legally admissible evidence; • that not every such action can be allowed to be the subject of review, lest the organisation become paralysed in its operations; and • that where review is permitted, it should involve more than a second-guessing of the original decision-maker and permit intervention only where good reason exists. 4.107 If a managerial process is to be adopted in place of the existing complaints and discipline system then there has to be a mutual accommodation: • on the part of the Police Service, it means an abandonment of the punitive approach, and an acceptance of a new responsibility for retraining and preserving careers of individual officers; and • on the part of the Associations and its members, it calls for an acceptance that the system should be less formal, and any right of review somewhat less extensive than its predecessor."
4. The purpose of the amendments appears from the following extract from the Second Reading Speech for the bill that became the 1998 Amendment: "Under the amendments to part 9 of the Act, the outdated discipline system, based on proving discipline charges in an adversarial manner and imposing punishment, is replaced. The Police Tribunal is abolished, as are appeals to GREAT Government and Related Employees Appeal Tribunal in relation to part 9 matters. The bill establishes a framework which places primary responsibility on frontline managers for the conduct and performance of their staff. Managers will determine the appropriate response to each case of misconduct or poor performance, whether it comes to their attention through the complaints system or through day to day management. ... Emphasis will be placed on using appropriate modern management tools to improve performance and correct instances of minor misconduct. These tools include coaching, mentoring, training and development, counselling, increased professional, administrative or educational supervision, and performance enhancement agreements. Other approaches will also be available for use where necessary. These can include issuing a reprimand, imposing restricted duties, the recording of adverse findings and a change of shift for a limited period."

Part 8A of the Police Act: complaints about the conduct of police officers

1. Section 122 provides that Pt 8A applies "to and in respect of a complaint that alleges or indicates one or more of the following" (emphasis added). What follows is a list of categories which begin with the words: "conduct of a police officer that". The categories extend beyond corrupt and unlawful conduct to conduct which is not unlawful but may be unreasonable, unjust or improperly discriminatory. A complaint may be anonymous: s 124. Anyone can make a complaint: s 126. It is not necessary for a complainant to be identified in a complaint: s 127(6). The only formal requirement is that a complaint must be "made in writing to an investigating authority" (s 127(1)). Section 127(2) provides that it can be made to the defendant if it is merely delivered to a police officer personally, or received by a police officer by post, facsimile or electronic mail. Thus any written document delivered to any police officer indicating matters which concern the conduct of a police officer which could fall within any one of the categories in s 122(1) is a complaint within the meaning of s 122(1).
2. Part 8A requires certain people to be notified in respect of complaints. For example, the defendant is required to notify the Ombudsman and the complainant of the decision, to investigate or not to investigate: s 139(3) and (4). If the defendant decides not to investigate a complaint then the defendant, if the defendant considers it appropriate to do so, may notify the police officer concerned: s 139(4). If the Ombudsman disagrees with the defendant's decision not to investigate the complaint, the Ombudsman must notify the defendant, who is obliged to investigate the complaint: s 139(5).
3. In deciding whether or not to investigate the complaint the Commissioner and the Ombudsman are entitled to seek additional information from the person making the complaint: s 141(1A). The Ombudsman may require verification of a complaint by statutory declaration and seek further information from the complainant, including requesting further written particulars and: s 142(1). The Ombudsman does not have power to interview a police officer the subject of a complaint: s 143(2)(b). It is common ground that a police officer can be interviewed by the defendant as part of the investigation. The police officers who carry out the investigation must do so in a manner that is both effective and timely: s 145(1)(a).
4. After the investigation has concluded and a report of the investigation finalised, the defendant must consult with the complainant, if practicable, before making a decision concerning any action to be taken as a result of the complaint and must inform the complainant of the decision: s 150. A copy of the report and advice as to action already taken and a decision to take action must be provided to the Ombudsman: s 150(c). The Ombudsman has a right to information from the defendant concerning the investigation of a complaint: s 152.
5. Section 169A provides: "Identity of complainant not to be disclosed A member of the NSW Police Force must not disclose to any person the identity of a complainant unless the disclosure is made: (a) in accordance with guidelines established by the Commissioner, or (b) with the consent of the complainant, or (c) in accordance with a requirement of or made under this or any other Act, or (d) for the purposes of any legal proceedings before a court or tribunal."
6. It is common ground that there are no guidelines that require the disclosure of the identity of the complainant in the present case. There is no evidence of any consent having been given by the anonymous person who made the complaint or by those who answered the directive memoranda in respect of the plaintiff. There is no suggestion that the exception in s 169A(d) applied before the commencement of these proceedings. It was accepted that the remaining exception, in s 169A(c), would include the disclosure required by s 174(5) for reviewable action (see below).

Part 9 of the Police Act: Management of conduct within the Force

Division 1 of Pt 9: Misconduct and unsatisfactory performance

1. The Act distinguishes between non-reviewable action, which is referred to in Sch 1, and reviewable action, which is the balance of action taken in respect of a police officer's misconduct: s 173. The defendant may order reviewable or non-reviewable action with respect to a police officer who has engaged in misconduct: s 173(2).
2. Schedule 1 provides that the following action is "non-reviewable": coaching, mentoring, training and development, increased professional, administrative or educational supervision, counselling, reprimand, warning, retraining, personal development, performance enhancement agreements, non-disciplinary transfer, change of shift (but only if the change results in no financial loss and is imposed for a limited period and is subject to review), restricted duties, and recording of adverse findings.
3. Reviewable action includes a reduction of the police officer's rank or grade; a reduction in seniority; the deferral of a pay increase; or any other action (other than dismissal or the imposition of a fine) that the defendant considers appropriate, apart from non-reviewable action: s 173(2). An order for reviewable or non-reviewable action can be made whether or not there has been a complaint under Pt 8A: s 173(4).
4. Before making an order for reviewable action the defendant is required to comply with the notice requirements in s 173(5). Relevantly, the defendant must cause to be served on the police officer "a notice" that identifies the misconduct or unsatisfactory performance "including all relevant facts and circumstances": s 173(5)(a). The police officer has an opportunity to provide written submissions, which the defendant must consider before deciding whether to make an order: s 173(5)(b)-(c). The defendant is required to provide written reasons for the order: s 173(6) and (7).
5. The Act does not make express provision for procedural fairness in respect of non-reviewable action.
6. There is a privative clause which confines the power to review a decision under s 173 to the provisions of Div 1A: s 173(9). This Court's jurisdiction "to review administrative action" is expressly preserved: s 173(10). Section 173(11) provides that nothing in Div 1A limits or otherwise affects the defendant's power to vary or revoke an order in force under s 173.

Div 1A of Pt 9: Review of defendant's order under Div 1

1. Div 1A of Pt 9 provides for review of an order for reviewable action by the Commission on the grounds that the order under s 173 was harsh, unjust or unreasonable or beyond power: s 174(1). When such an application is made, the defendant is obliged to make available to the applicant, for inspection and copying, all of the documents and other materials upon which the defendant relied or had regard, in deciding to make the order: s 174(5).
2. No express provision is made for merits review or provision of relevant documents with respect to an order for non-reviewable action.
3. I note for completeness that Div 1C of Pt 9 contains a similar regime to that in Div 1A in relation to the summary removal of police officers.

Part 10: Offences relating to the Force

1. Section 201 provides that a police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence.
2. Section 206(2) provides that a police officer who takes detrimental action against another police officer or former police officer (being action that is substantially in reprisal for the other police officer or former police officer making a protected allegation) is guilty of an offence.
3. Section 219 confers a general regulation-making power, including a power to make regulations on "any other matter relating to the management or control of the NSW Police Force or students of policing." Clause 53 of the Police Regulation 2008 (NSW) (the 2008 Regulation), which applied until 31 August 2015, provided: "53 Secrecy as to complaints about conduct (1) This clause applies if: (a) any person (including a police officer) makes an allegation, not being an allegation which constitutes a complaint under Part 8A of the Act, to a police officer (in this clause called the senior officer) concerning the conduct of a police officer, and (b) the senior officer has reasonable grounds for believing that, if the allegation were true: (i) the police officer against whom the allegation was made would have committed a criminal offence, or (ii) section 80 dismissal action could be taken, or a section 173 order or section 181D order could be made, with respect to that officer. (2) In the circumstances referred to in subclause (1), the senior officer must not disclose to the officer against whom the allegation was made or any other person the identity of the person who made the allegation, except: (a) to or with the authority of the Commissioner, or (b) in connection with the institution of or otherwise for the purposes of any proceedings before a Royal Commission, a Special Commission of Inquiry, the Industrial Relations Commission or a court. (3) In the course of an investigation into the allegation, a police officer must not, without the consent of the Commissioner, disclose to any person (other than the Commissioner) the identity of the person who made the allegation. (4) The Commissioner must not grant a consent under subclause (3) unless the Commissioner considers that the disclosure of the identity of the person who made the allegation is necessary for the effective conduct of the investigation into the allegation."
4. Clause 54 of Police Regulation 2015 (NSW) which superseded cl 53 is in similar terms.

Factual background to the decisions

1. On 13 March 2015 Inspector Cadden, who was based at Fairfield LAC, received an anonymous complaint alleging that the plaintiff had engaged in acts of sexual harassment of fellow police officers through the use of sexually charged or obscene language, inappropriate touching of other officers, and that the plaintiff obscenely exposed part of his genitals (the Complaint). The complainant identified 25 potential witnesses. Inspector Cadden decided that the Complaint should be investigated pursuant to Pt 8A. On 23 March 2015 he prepared a directive memorandum to the witnesses identified in the Complaint, requiring them to provide information and answer questions.
2. A directive memorandum is a report generated by the senior officer which can be given to any police officer. The recipient is obliged to answer the questions truthfully and to the best of his or her knowledge (on the basis that it is an order, failure to comply with which constitutes an offence: s 201). The defendant's Complaint Handling Guidelines (the Guidelines) address the giving of directive memoranda, referring to it as a "common practice for non-criminal investigations". The Guidelines direct readers to a template for such a memorandum.
3. The recipients were asked to restrict their responses to matters that may have taken place during the preceding two years. Of the officers directed to respond, many provided brief statements that they had observed nothing of relevance. Others provided statements describing instances of improper conduct by the plaintiff. Inspector Cadden did not provide copies of those responses (whether exculpatory or incriminating) to the plaintiff before the interview, or at any relevant time thereafter.
4. On 31 March 2015 Inspector Cadden told the plaintiff of the Complaint.
5. On 20 July 2015 Inspector Cadden conducted a directed interview with the plaintiff during which a number of allegations were put to him in general terms. Inspector Cadden put to the plaintiff that he had: "on a number of occasions, on dates unknown" made a number of inappropriate and offensive remarks towards office colleagues relating to their wives, and other topics, and had touched other male Police Officers by flicking the groin or touching the buttocks. The plaintiff denied the allegations.
6. On 24 August 2015 Inspector Cadden completed a report on his investigation in which he determined that, on the balance of probabilities, two of the allegations had been made out, the plaintiff's conduct amounted to sexual harassment and that the language he had used breached the New South Wales Police Force Code of Conduct and Ethics (the Code). Inspector Cadden considered that, while the Complaint may have been made because of another officer's feelings about the plaintiff, he had received enough information to substantiate his findings. Inspector Cadden provided a copy of his report to the First Delegate, who was the Local Area Commander at Fairfield.
7. On 24 August 2015 the First Delegate told the plaintiff that he had made a provisional determination that, subject to the plaintiff's response, he would issue a Commander's warning notice to the plaintiff and place him on a conduct management plan. At this meeting the plaintiff said, "people in the office have it out [sic, in] for me". When the First Delegate asked the plaintiff to identify those to whom he was referring, he refused to do so.
8. On 26 August 2015 the plaintiff asked Inspector Cadden for a copy of his statement from the record of interview. An unsigned copy of the record of interview was provided. No changes were sought. On 26 August 2015 the plaintiff applied pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA) for a copy of the investigator's report and the signed record of interview. His request was declined on 1 October 2015.
9. On 1 October 2015 the First Delegate met again with the plaintiff. He read out to the plaintiff the names of the officers who had provided responses to the directive memoranda. The plaintiff did not inform the First Delegate that he had any "issues" with any of those persons. As a result of matters raised, the First Delegate agreed to the plaintiff's request that the matter be further investigated.
10. On 2 October 2015 Inspector Cadden issued a further 19 directive memoranda to all past and present staff and not merely to those identified in the Complaint (to whom the original directive memoranda had been sent).
11. On 26 October 2015 Inspector Cadden again interviewed the plaintiff. He put to the plaintiff allegations which he had extracted from the responses to the directive memoranda but did not identify any of the officers who had either made allegations or denied knowledge of any such behaviour. The plaintiff was invited to provide further information or name other witnesses who would help his case. He declined to do so. The plaintiff complained that he did not know who the witnesses were and said that if he had known he could have told Inspector Cadden whether they had it in for him and whether their statements were likely to amount to reprisals. He was asked to identify any particular witness with whom he had "issues" or any matter that could affect the credibility of the persons who had responded to the directed memorandum but declined to do so.
12. On 29 October 2015 Inspector Cadden completed a further investigation report which he provided to the First Delegate.
13. On 2 November 2015 the First Delegate again met with the plaintiff. The First Delegate told the plaintiff that two allegations had been sustained. The plaintiff was given a written order by the First Delegate which was said to be "taken in consequence of [his] misconduct" (the Order). This is the First Decision referred to above. It imposed on the plaintiff, a Commander's warning notice (the Warning Notice) and the 3-month CMP, both of which had been foreshadowed on 1 October 2015. The Order was said to be based on two sustained "issues" of "Sexual harassment" and a "Breach of the Code of Conduct." In relation to the first issue, the First Delegate found that the plaintiff had breached the NSW Police Force Harassment Discrimination and Bullying Policy; points 1, 3, 4 and 6 the Code, and s 22A of the Anti-Discrimination Act 1977 (NSW). In relation to the second issue, the First Delegate found the plaintiff had breached points 1, 3 and 4 of the Code, and s 7(a) and(c) of the Act. The plaintiff signed the Warning Notice and the CMP.
14. The Warning Notice set out the findings referred to above and concluded as follows: "WARNING I want you to clearly understand your demonstrated misconduct has fallen well short of the acceptable level of behaviour required of a Senior Constable of the NSW Police Force by the Commissioner of Police. All police officers are expected to conduct themselves in a manner that is consistent with the highest standards of behaviour. Your behaviour on these occasions falls well below these expectations. The NSW Police Force expects integrity, diligence and professionalism from its officers. I am concerned that your misconduct as outlined in this Notice demonstrates a complete lack of respect for others and a complete disregard for the NSW Police Force Code of Conduct and Ethics and the NSW Police Force Harassment, Discrimination and Bullying Policy which are in place to guide you in your decision making, role and responsibilities and your duties. I expect you to act appropriately towards all your colleagues, regardless of rank or position, and to treat them with courtesy and respect. I consider that you have demonstrated a serious lack of judgement believing that your actions would be in good humor. Your conduct was inappropriate and will not be condoned. You have failed to behave in a way that upholds the values of NSW Police Force. I expect that in the future you will act in a professional manner and treat everyone with respect, courtesy and fairness. You should be left in no doubt that any further misconduct of this nature will not be tolerated. Pursuant to section 173(2) and Schedule 1 of the Police Act 1990, I hereby order that non-reviewable action, being the issuing of this Notice, be taken in consequence of your misconduct. In issuing this Warning Notice, I reinforce in the strongest terms the need for you to act at all times in accordance with the obligations and requirements of the Police Act 1990, the NSW Police Force Code of Conduct and Ethics and all relevant policies and procedures. You should very clearly understand that any further misconduct may result in further management action, which may entail consideration of reviewable action under section 173(2) of the Police Act 1990, or removal under section 181D of the Police Act 1990."
15. On 16 November 2015 the plaintiff made a further application to the defendant under GIPA for a copy of the investigator's report and a copy of the record of interview from 26 October 2015. On 8 December 2015 the plaintiff received a copy of a redacted version of the investigator's report from which all record of the responses that had been received by Inspector Cadden following his issuing of the directive memoranda had been removed.
16. In February 2016 the plaintiff began suffering from depression and anxiety, and had commenced a period of stress related sick leave. He sought legal assistance in the first half of 2016, and instructed his lawyers in August 2016 to apply for an internal review of the First Decision, which resulted in the Second Decision. These matters are relied on by the plaintiff in support of his application for an extension of time to challenge the First Decision.
17. On 15 August 2016 the plaintiff's lawyers wrote to the Second Delegate seeking to have the findings of the First Delegate set aside and removed from his service record. On 6 September 2016 the Second Delegate wrote to the plaintiff's lawyers declining the plaintiff's request, advising that he was satisfied the matter had been correctly investigated and sustained, and the Order would not be revoked. This is the Second Decision.
18. Following the Second Decision the defendant, for the first time, provided a copy of the unredacted investigator's report to the plaintiff. The unredacted investigator's report contained considerable detail, including the identities of the officers towards whom the plaintiff had been alleged to have misconducted himself. The unredacted report also revealed that a number of officers had responded to the directive memorandum which indicated that they had not seen the plaintiff engaging in the conduct that was the subject of the Complaint. It did not, however, reproduce the whole of the statements provided in answer to the directive memoranda.

Whether procedural fairness was required for the First Decision

1. Mr Seck, who appeared on behalf of the defendant, contended that no obligation to accord procedural fairness arose in respect of non-reviewable action. He pointed to the circumstance that the Act had made detailed provision for the procedural fairness that was required with respect to reviewable action and submitted that the absence of corresponding provisions for non-reviewable action evinced a legislative intention to displace the common law principles of procedural fairness for non-reviewable action. He contended that this was consistent with the recommendations of the Wood Royal Commission to make the process more stream-lined and managerial and to remove matters of legal and formal technicality which had dogged the defendant's response to misconduct in the Force in the past.
2. I am not persuaded by the defendant's submissions. Where a statute confers power to destroy or prejudice a person's rights or interests, it will be inferred that principles of natural justice are intended to regulate the exercise of that power. As Brennan J said, in Kioa v West (1985) 159 CLR 550 at 616-617 and 619; [1985] HCA 81: "There are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice. It is hardly to be thought that a modern legislature when it creates regimes for the regulation of social interests - licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials - intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights. . . . The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation."
3. Parliament may exclude such principles expressly or by necessary implication: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [11] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). However the threshold for exclusion is high. In Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15, Mason CJ, Brennan, Gaudron and McHugh JJ said at 437: "The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights." (Footnotes omitted.)
4. While the Act, as Mr Seck submitted, contains detailed provisions for procedural fairness with respect to reviewable action and none with respect to non-reviewable action, I do not infer from that circumstance that parliament intended that the rights to procedural fairness of those affected by non-reviewable action were intended to be excluded. More is required to exclude a fundamental common law right. Nor do I infer from the relative effect of the list of matters in Sch 1 (which comprise non-reviewable action) that the exercise of the power conferred by s 173(2) is not such as to prejudice an officer's rights or interests. The present case is such an example. The non-reviewable action which was taken in respect of the plaintiff included "retraining" (the 3-month CMP); "recording adverse findings" (in the Warning Notice set out above) as well as "warning" (by the issue of the Warning Notice). As these matters would be included in the plaintiff's service record, they would have a tendency to prejudice his rights (such as to further promotion) and interests.
5. Moreover, it can be no objection to procedural fairness that it is unduly technical and would tend to be at odds with the evident parliamentary intention to implement the recommendations for a more stream-lined approach to police misconduct and dealing with complaints. The application of the principles of procedural fairness is flexible. What is required depends on the circumstances of the particular case.
6. In these circumstances it is not necessary to address the argument put by Dr Birch SC who appeared with Mr Madden on behalf of the plaintiff, that it should be inferred from the content of the Guidelines that an order for non-reviewable action attracted procedural fairness or that it had not been shown to be impractical to accord procedural fairness. I reject Dr Birch's argument that the Guidelines have some statutory force by reason of s 8(2) since I do not regard the Guidelines as falling within the defendant's power to issue "instructions" to members of the Force conferred by s 8(2). They amount to no more than non-binding "soft law".

What procedural fairness required in the present case

The plaintiff's submissions

1. Dr Birch contended that the course adopted by the defendant was inadequate to accord procedural fairness in the following respects: "i. Prior to the first decision, the allegations were put to the plaintiff only in the most general terms, as allegations of using obscene language, of touching people inappropriately or of exposing himself. ii. The allegations put to the plaintiff were on the basis of sometime in the last two years. If this was a consequence of the vagueness with which officers had responded to the directive memorandum, that is no answer. There was nothing to prevent Inspector Cadden seeking more particularity from the witnesses. If they had been unable to provide it, that would be a further matter that might count against giving weight to the allegations. iii. There was no identification of the witnesses who had given the evidence, and the individuals said to be involved in the conduct. This deprived the allegations of all context and background. iv. The lack of identification of the individuals involved deprived the plaintiff of any opportunity to point to matters which might cast doubt on their disinterestness [sic], or the desire of those individuals to attack the plaintiff's character. v. The failure to identify the individuals related to the complaints deprived the plaintiff of an opportunity of identifying further matter that might have borne upon the weight or significance of the allegations, or explained them. vi. The material in the hands of Inspector Cadden involved significant exculpatory material. He dealt with that in a formulaic and inadequate manner (un-redacted report p. 13). Had the exculpatory material been available to the plaintiff, he may have persuaded the decision maker to adopt a different approach to the use of that material. That exculpatory evidence cast doubt upon the reliability of the evidence relied upon. vii. There is no suggestion that there was any form of public interest immunity or any other reason why the whole of the statements obtained by Inspector Cadden could not have been made available prior to the first decision. No reason is pleaded in the Defence, and the fact that all of the statement makers were identified in the un-redacted version of the report made available after the second decision, strongly suggests that they could have been made available at an earlier time. viii. The content of the first and second interviews together with the affidavit evidence of the plaintiff, clearly indicates that he experienced substantial difficulty in properly responding to the allegations in the absence of proper particularity, and having available the statements of the witnesses."
2. In summary, Dr Birch submitted that the plaintiff's central complaint was that the defendant had failed to give adequate notice of, or disclose, the nature of the allegations against him; the statements; or a sufficiently detailed summary of their content, such as would have enabled the plaintiff to respond adequately to the allegations prior to the taking of the non-reviewable action.
3. In particular, Dr Birch submitted that procedural fairness required that the plaintiff be given the statements prepared by the officers who had received the directive memorandum. He submitted that the use of the word "complainant" in s 169A was apt to include only the person who had actually made a "complaint", which, in the present case, was the person who made the anonymous complaint which triggered the investigation. He contended that if the word "complainant" in s 169A was construed to include anyone who had provided anything in writing to a police officer against another police officer, the Act would be unworkable. He argued that the provisions requiring that notice be given to "the complainant" did not envisage that everyone in the broader category would have to be notified.
4. Dr Birch further submitted that the regulations relied on by the defendant could not affect the construction of the Act. He relied on Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477 (Spigelman at [9]-[10]; Fitzgerald JA at [143], Beazley JA agreeing) in support of the proposition that where the implied right to procedural fairness has not been excluded by the parent Act, a regulation that purports to abrogate that entitlement to procedural fairness will be ultra vires unless the parent Act contained a sufficiently broad regulation making power as to make clear that the regulations could abrogate the right to procedural fairness.
5. Dr Birch submitted in the alternative that, even if the plaintiff was not entitled to know the names of the persons who commented adversely on his conduct, he was entitled to know the names of the persons who did not since this material was exculpatory and could have assisted in his response to the Complaint.

The defendant's submissions

1. Mr Seck submitted that it is sufficient in most circumstances, because of the dynamic managerial approach to be taken, to identify the gist or the substance of the matter to be raised with the police officer; and that the method by which that gist or substance is raised can differ depending on the circumstances. He contended that procedural fairness may require no more than a short discussion or a letter setting out in more detail a summary of the allegations which are made against the individual. While he accepted that in some circumstances a more formal process could be undertaken by providing the police officer concerned with the statements, he submitted that this would only be required "in extreme circumstances". Mr Seck contended that what is not contemplated is that in every circumstance a verbatim copy of the report or any underlying source material would be provided to those officers.
2. The defendant submitted that in the present case, the right to procedural fairness had been modified to an extent by s 169A and that, by reason of the prohibition in s 169A, the plaintiff was not entitled to know the names of the officers who had commented adversely on his conduct. It was also submitted that the plaintiff was not entitled to know the names of the officers who had not commented adversely on his conduct, since this would reveal the names of the former group, which were to be kept confidential pursuant to s 169A. Mr Seck submitted, in the alternative, that even if s 169A was not broad enough to encompass the names of the persons who had responded to the directive memoranda, cl 53 of the Police Regulation 2008 or cl 54 of the Police Regulation 2015 plainly included those who had commented adversely on the plaintiff's conduct, and operated to prevent disclosure of the others since disclosure of their names would, by process of elimination, reveal the identity of the former group.
3. In addition, Mr Seck argued that the detailed provisions relating to disclosure where reviewable action was taken tended to suggest that, if procedural fairness was not excluded entirely when non-reviewable action was taken (and I have found that it was not), the obligation could not be more demanding for non-reviewable action than that for which the Act provided in respect of reviewable action.

The meaning of the word "complainant" in s 169A

1. As the parties' submissions turned, at least in part, on the construction of s 169A, it is necessary to address that provision to ascertain whether it affects the content of the right to procedural fairness with respect to non-reviewable action, which I have found not to have been abrogated.
2. The word "complainant" is not defined in the Act. However its meaning in Pt 8A can be discerned from its application to certain "complaints". As referred to above, s 122(1) uses the words "alleges" and "indicates" with reference to complaints. The word "alleges" suggests that there must be some active suggestion that conduct is in breach of a particular standard, whether that be legal or otherwise. By contrast, the word "indicates", is much broader, and does not involve an individual consciously making a decision to allege a breach of a legal standard. It is sufficient that material objectively "indicates" conduct of that variety, whatever the intention of its author. On this basis I consider that a "complainant" is a person who provides something in writing to another police officer which either alleges or indicates that there is something untoward about the conduct of a third police officer, whether or not the person thought the conduct was untoward, at the time or thereafter.
3. I am satisfied that the word "complainant" in s 169A also has this meaning. Courts are obliged to prefer a construction that would advance the purpose of the Act when construing its provisions: s 33 of the Interpretation Act 1987 (NSW). It is evident from the provisions referred to above and the consideration of the extrinsic material (which is relevant and can be taken into account under s 34 of the Interpretation Act) that the protection of people who make complaints about police officers (through the maintenance of confidentiality and the criminalisation of conduct taken in reprisal against such persons) was regarded as a substantial reform to ensure that the Force conducted itself with integrity. To confine the protection afforded by s 169A to those who actually lodge a complaint which initiates an investigation and exclude from its protection anyone who makes an adverse comment in response to a directive memorandum would not, in my view, advance the evident purpose of the Act. Indeed, such a construction would introduce elements of technicality and formalism which it was the intention of the Wood Royal Commission and the Parliament to eradicate. It would also tend to discourage disclosures that might otherwise be made in answer to a directive memorandum, which would be at odds with the purpose of the reforms enacted in the 1998 Amendment. As the task of determining what procedural fairness requires in any given circumstance includes an exercise in statutory construction, it is necessary for due weight to be given to the express terms of the statute which affect the common law principles.

The effect of s 169A on the procedural fairness required

1. The common law principles have always accepted that sometimes information which is given to a decision-maker will be of a variety that there is a public interest in its non-disclosure: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [21]-[29] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). In such circumstances, the content of procedural fairness will be modified accordingly. In the present case the position is a fortiori as the relevant prohibition against disclosure, s 169A, is contained in the statute which confers the power under s 173 to take non-reviewable action: for analogous cases see Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448; [2009] HCA 10 at [31]-[34] (French CJ, Gummow, Hayne, Kiefel and Bell JJ); and Chief Commissioner of Police v Nikolic [2016] VSCA 248; (2016) 338 ALR 683. The content of procedural fairness is affected by the prohibition in s 169A as well as the public interest which it manifests of encouraging informers to come forward with complaints about an individual police officer in any particular case and encouraging colleagues to respond as fully as possible to directive memoranda which invite their responses to allegations against a police officer.
2. For the reasons given above, I consider that Inspector Cadden and the First and Second Delegates were prohibited by s 169A from disclosing to the plaintiff the names of the authors of statements made in answer to the directive memoranda. Section 169A also had the effect of prohibiting disclosure of those whose statements did not support the Complaint since such disclosure would necessarily reveal the identity of those who were covered by the protection of s 169A.
3. In reaching this conclusion I confirm that I do not consider it to be relevant that the investigation report was furnished to the plaintiff in an unredacted form after the Second Decision. Such an act cannot affect the meaning of the statutory provision which is not influenced, much less determined, by whatever construction was placed on it by those affected by it, even assuming that they addressed their minds to the question.
4. By reason of the view to which I have come about s 169A, I consider that there is an express limitation on the content of the procedural fairness which is implied by the common law on the exercise of the defendant's power under s 173(2) to order non-reviewable action. Its effect in the present case was to disentitle the plaintiff to knowledge of the identity of those who responded to the directive memoranda issued by Inspector Cadden. This is sufficient to deal with the matters raised by Dr Birch in iii, iv, v and vii above.
5. As referred to above, I consider that disclosure of the identity of the so-called "exculpatory" witnesses would inevitably disclose the identity of the "incriminating" group and, accordingly, the obligation to accord procedural fairness did not require such disclosure, having regard to the prohibition in s 169A.

Whether the putting of general allegations was sufficient

1. As referred to above, Dr Birch submitted that what was done was insufficient. He contended that, although the plaintiff had been given notice of allegations, the way in which this had occurred was so vague, imprecise and lacking in specificity that it amounted to a denial of procedural fairness: Kelson v Forward (1995) 60 FCR 39. He also contended that the obligation to disclose attached not only to the material upon which the decision maker may rely adverse to the party, but to all material that has substantive relevance, including in particular exculpatory material, whether or not the decision maker proposes to rely upon it: Shields v Overland (2009) 26 VR 303 at 332 (Kyrou J).
2. I am not persuaded that the content of the common law obligation to accord procedural fairness for non-reviewable action must be less than (or at least not more than) that which the Act provides for reviewable action. I would infer that Parliament intended to leave the common law principles undisturbed for non-reviewable action, except for the prohibition on disclosure in s 169A.
3. The common law obligation requires only the disclosure of adverse material which, objectively determined, is "credible, relevant and significant": Kioa v West at 629 (Brennan J); Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs at [14]-[17] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). It does not require the disclosure of all material within the defendant's possession or of exculpatory or irrelevant material. To the extent to which Shields v Overland suggests a wider obligation, I do not consider the suggestion to be applicable in the circumstances of the present case. I respectfully adopt the reasoning of Kenny J in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2014) 220 FCR 202; [2014] FCA 25 at [148]-[149], which was cited with approval by Hammerschlag J in Obeid v Ipp [2016] NSWSC 1376; (2016) 338 ALR 234 at [175].
4. Further, in any event, the line between the two groups is not necessarily easily drawn in the present case. Some respondents to the directive memoranda indicated that the plaintiff had engaged in the conduct alleged but that they had regarded it as a joke at the time and had not taken exception to it. Dr Birch's submissions indicated that this evidence ought be regarded as being "in favour" of the plaintiff. I do not accept this submission. It is plain from the terms of the Warning Notice set out above, that the defendant regarded the plaintiff's conduct, including that which was seen by the plaintiff and some others as humorous, as unacceptable and warranting non-reviewable action. Even those respondents who did not corroborate the occurrence of the conduct complained of could not be described as "exculpatory" witnesses since their statements did not go as far as to say that they were present when an alleged event occurred and deny the alleged misconduct. At its highest, all that they could say was that they were not present when such conduct occurred.
5. Moreover, to require all material, including investigation reports, to be disclosed could tend to cut across the principle that there is, in the absence of express provision, no obligation on the decision-maker to disclose the deliberative processes or proposed conclusions: Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [30]-[31] (Gleeson CJ and Hayne J). In the present case the investigation reports would seem to fall within a category that is not required to be disclosed on the basis of that principle.
6. The alleged conduct included flicking the groins of colleagues; making offensive comments about colleagues' wives; and making disparaging remarks about colleagues using offensive and sexually charged language. The allegations related to conduct that would not occur in the ordinary course (or if it did, this, too, would be grounds for action to be taken by the defendant). In the course of the investigation, the defendant communicated the substance of the allegations to the plaintiff on more than one occasion. During the directive interview between Inspector Cadden and the plaintiff on 20 July 2015 Inspector Cadden put the allegations to the plaintiff squarely. He emphatically denied each of them. During the interview, the plaintiff did not complain that the allegations were vague, imprecise and lacking in specificity. Nor is there an indication that he was confused. In the second interview conducted between Inspector Cadden and the plaintiff on 26 October 2015 Inspector Cadden again put the allegations to the plaintiff. On this occasion the plaintiff answered more expansively. The allegations that were put corresponded with the allegations that were made. To the extent to which they lacked specificity, this reflected the same lack in the source material. This deals with the matters raised by Dr Birch in ii and vii above.
7. In my view, this was sufficient to put the plaintiff on notice of the substance of the allegations that were made against him. There was nothing more that was required to be disclosed. For the reasons given above, the defendant was precluded from disclosing the names of the persons who had made allegations, as well as those who had not seen the alleged conduct taking place. This deals with the matters raised by Dr Birch in i, vi and viii above.
8. For the reasons set out above, I am not persuaded that there has been any denial of procedural fairness with respect to the First Decision.

The challenge to the Second Decision

1. The plaintiff also claims that the Second Decision by the Second Delegate involved a denial of procedural fairness on the basis of failure to disclose the material relied upon. Dr Birch submitted that it followed from the terms of s 173(11) that the defendant had a continuing statutory power to vary or revoke any decision under s 173(2) and that, accordingly, the determination of any further application for variation or revocation was the exercise of a statutory power which attracted the principles of procedural fairness.
2. Mr Seck submitted that the power to revoke or vary the First Decision derived from s 43 of the Interpretation Act, which provides that if an Act confers a power on a person to make an order, the power includes power to amend or repeal any order made in the exercise of that power. The defendant contended that the Second Delegate reviewed the decision as a commanding officer under the Guidelines dated 21 October 2015 and not pursuant to a specific statutory obligation. The Guidelines had no statutory force. Mr Seck argued that the obligation to observe the rules of procedural fairness is a limitation on the statutory power of a decision-maker to make a decision and a condition attached to the exercise of statutory power and that, absent the exercise of statutory power, there is no legal obligation to afford procedural fairness.
3. Although there are differences between the Minister's power to dispense with certain requirements of the Migration Act 1958 (Cth) which was considered by the High Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 and the defendant's power to vary or revoke an order, including an order under s 173(2), there are similarities which make the analysis in that case of assistance in the present.
4. The defendant has a power to vary or revoke an order (implied into s 173(2) by s 43 of the Interpretation Act), but no duty to do so and no duty to respond to a request that he do so. The decision to vary or revoke the First Decision was not one that adversely affected or prejudiced the plaintiff's rights or interests. It was the First Decision that had that effect. In these circumstances, there is no requirement to accord procedural fairness generally: Plaintiff S10/2011 v Minister for Immigration and Citizenship at [50]-[51] (Gummow, Hayne, Crennan and Bell JJ). It was, in my view, not necessary for the defendant (or the Second Delegate) to consider other than the material put before him by the plaintiff in support of the application for review and the material that was before the original decision-maker (the First Delegate). I do not consider the principles of procedural fairness to be attracted to an application to revoke or vary an earlier order except in the following limited respect which I mention for completeness.
5. I do not consider that the Second Delegate would be entitled to have regard to further material adverse to the plaintiff in deciding whether to vary or revoke the decision without providing the plaintiff with an opportunity to respond to that material. This step would be necessary in order to avoid "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ). There is no suggestion that there was any such further material in the present case. Thus no obligation to accord procedural fairness to the plaintiff in respect of the Second Decision arose. Accordingly, the plaintiff's challenge to this decision also fails.

Application for extension of time

1. The plaintiff sought an extension of time pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in respect of the First Decision since the summons was filed more than 3 months after the date of the decision. Notwithstanding the defendant's written submissions which opposed the application for extension, Mr Seck confirmed at the hearing that the defendant neither consented to nor opposed an extension. The plaintiff has, in my view, sufficiently explained the delay in challenging the First Decision. The eventual challenge he has made to the First and Second Decisions required legal advice, which was sought after the plaintiff had been suffering from stress for a period. When he ultimately obtained pertinent legal advice about his rights, the summons was filed. The defendant has not pointed to any prejudice that would flow from an extension being granted. I am persuaded that it is appropriate to grant an extension of time to the plaintiff in respect of the First Decision pursuant to UCPR r 59.10(2).

Orders

1. For the reasons set out above, I make the following orders: 1. Extend the time pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 59.10(2) within which the plaintiff is to file the summons to 17 November 2016. 2. Dismiss the summons. 3. Order the plaintiff to pay the defendant's costs of the proceedings.

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: 08 October 2018