Trevor Allan Cottle v Commissioner of Police

Respondent's submissions in support of the motion

The scope of the application of Chapter 2, Part 6 of the IR Act is set out in section 83 which relevantly provides as follows: 83 Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or ………………………. (5) In this Part: "dismissal" includes: (a) the threat of dismissal, and (b) in the case of a public sector employee-dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee.
The respondent concedes that, as a sworn police officer, the applicant came within the definition of "public sector employee" as referred to in section 83(1)(a) of the IR Act. The respondent also concedes that the reference to "dismissal" in section 83(5) applies in circumstances where a public sector employee has been dismissed on the basis of medical incapacity. However, the respondent submits that, for sworn police officers, the provisions of Chapter 2, Part 6 of the IR Act are displaced by the provisions of Part 9 of the Police Act. The written submissions of the respondent were as follows: Approach to resolving the apparent conflict between the Industrial Relations Act and the Police Act 34. The Commissioner submits that there is an apparent "contrariety" (also called "contradiction", "inconsistency" or "repugnancy") between the Police Act and the Industrial Relations Act in relation to the rights and remedies of dismissed police officers to conclude that the provisions cannot be reconciled. 35. Even though there is a strong presumption that the legislature does not intend to make contradictory legislation and intends that the provisions in different laws operate in harmony, it can be overturned by express words or an unmistakable implication. In resolving any conflict, two questions arise: (a) the proper construction of the relevant statutory provisions; and (b) whether each set of statutory provisions can live together or give rise to an irreconcilable conflict. 36. Whether two statutes can be read together or are inconsistent is a matter of legislative intention which is gleaned from all the available indicators. 37. Either the conflict between two sets of provisions is merely apparent, and is resolved by giving a non-conflicting meaning to each, or else the conflict is real, and that the superior law prevails. This requires close consideration of the provisions in question. Legislation may indicate expressly which provisions prevail and which are subordinate. Hierarchical words (e.g. subject to) can establish an order of precedence between substantive provisions and to displace or modify presumptive interpretive rules. Both section 218 of the Police Act and section 405 of the Industrial Relations Act are potentially relevant to, but not determinative of, this task. If the express words do not establish a hierarchy, then it is necessary to imply one based on rules of constructions to discern the intention of the legislature. 38. Both the express words of the provisions and the unmistakable implication derived from the competing statutory schemes suggest such a conflict between the Police Act and the Industrial Relations Act on the rights and remedies of police officers in relation to dismissal. There is an irreconcilable contradiction regarding the rights and remedies available to police officers so as to exclude the Commission's jurisdiction to entertain the Applicant's application for relief from unfair dismissal. The contradiction is both explicit and implicit in nature. 39. An implied hierarchy may be derived by giving primacy to the specific provisions over the general provisions. The High Court has said that "[i]t is but common sense that Parliament having before it two apparently conflicting sections at the same time cannot have intended the general provision to have deprived the specific provision of effect". The rationale for the proposition is that: [w]here any conflict arise with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a special character. 40. It is presumed that the Parliament must have intended to deal with the circumstances of the special case and a general enactment is presumed not to contradict or derogate from it. As will be developed in these submissions, the Police Act contains special regulation on the topic of the termination of employment of police officers which excludes the general unfair dismissal provisions in the Industrial Relations Act. The proper construction of the Police Act and the Industrial Relations Act 41. There is a presumption of non-contradiction between statutes. In accordance with the ordinary rules of construction, where two statutes share the same field of operation, the Police Act and the Industrial Relations Act should be construed in a way that best achieves a harmonious result. 42. The Police Act has the appearance of an exhaustive scheme about the appointment, conduct, discipline and removal of police officers including: (a) the making, investigation and the outcome of complaints; (b) dealing with misconduct or unsatisfactory performance of a police officer including taking internal reviewable or non-reviewable action or removal of a police officer from the NSW Police Force based on the Commissioner's loss of confidence; (c) the powers of the Commissioner to terminate those members of the NSW Police Force who are "police officers"; (d) the matters that are to be taken into account in exercising those powers; (e) the kinds of termination decisions that are to be subject to review apart from the general processes of judicial review; (f) prescribing the procedure that must be followed in making a reviewable order imposing disciplinary sanctions or making an order for removal, by requiring the service of "show cause" notices, by providing an opportunity to submit a written response for consideration and mandating written reasons for making the order; and (g) establishing a specific right to review a decision to impose "reviewable" disciplinary action against, or removal of, a police officer and preserving explicitly the right to seek administrative law remedies against the Commissioner's decision in the Supreme Court of New South Wales. 43. The exhaustiveness of the Police Act in dealing with the appointment, conduct, discipline and removal of police officers displays an intention that only certain decisions are to be the subject of review, which has the negative force of forbidding review of other decisions. There are a number of propositions that support this conclusion. 44. First, as Parliament has turned its mind to providing specific remedies under section 174 and section 181E of the Police Act. It implies that no similar remedy is available to police officers under Part 6 of Chapter 2 of the Industrial Relations Act. If the Parliament intended police officers would not be treated any differently to any other employee, then there would be no need to establish a special removal review regime under the Police Act. It indicates that Parliament intended the Police Act to embody special provisions to the exclusion of the general provisions of the Industrial Relations Act regarding the statutory remedies available in relation to discipline and dismissal of police officers. 45. Secondly, the Police Act also sets out, both explicitly and implicitly, that a right of review is not available in relation to certain specified employment related decisions made by the Commissioner. For example, there are express provisions which provide that the Commissioner's appointment decisions cannot be challenged and the Commissioner may impose non-reviewable action in cases of misconduct or unsatisfactory performance. 46. Thirdly, section 84 of the Industrial Relations Act is implicitly excluded because the provision is in terms that are not entirely consistent with section 181E of the Police Act. These differences include that: (a) there is a prescribed sequence for the conduct of the review starting with the Commissioner's statement of reasons; (b) the burden of proof (as to "unfairness") is placed squarely on the applicant (even in serious misconduct cases); (c) the IRC must take into account, inter alia, the public interest in "maintaining the integrity of the NSW Police Force"; (d) the IRC does not have jurisdiction to deal with the threatened dismissal of a confirmed police officer; (e) there are limits on the ability of the parties to adduce new evidence; and (f) the Commissioner and the members of a Commissioner's Advisory Panel are not compellable to give evidence in relation to the exercise of the Commissioner's functions under section 181D, unless the IRC gives leave which can be justifiable only on extraordinary grounds. 47. None of the above limitations in the Police Act regime exist in the unfair dismissal regime under Part 6 of Chapter 2 of the Industrial Relations Act. Indeed, as set out above, section 181G makes clear that the Police Act picks up some of the provisions of the Industrial Relations Act and modifies others. 48. In Commissioner of Police v Eaton [2013] HCA 2 (Eaton), the High Court of Australia found that a probationary police officer dismissed under section 80(3) of the Police Act do not have the right to make an unfair dismissal claim under Part 6 of Chapter 2 of the Industrial Relations Act based, in part, on similar considerations (at [26] - [30] per Heydon JJ; [68] - [71] [76] - [78] per Crennan, Kiefel and Bell JJ). 49. Having regard to its exhaustive nature, the proper construction of the Police Act is that it codifies the rights, powers and remedies available (and not available) regarding termination of appointments of police officers. Put another way, the provisions of the Police Act comprise "affirmative words" that have a "negative force" of forbidding doing anything under the Industrial Relations Act. It follows that the Commission does not have jurisdiction under Part 6 of Chapter 2 of the Industrial Relations Act to hear and determine any claims made by police officers. 50. The statutory history also assists in discerning the intention of Parliament. In inserting Part 9 of the Police Act, critical amendments to the Police Act were made, namely: (a) in November 1996, the Police Legislation Further Amendment Act 1996 (Act No. 108 of 1996) (the 1996 Police Amendment Act) removed, either expressly or by necessary implication, any and all merit review rights that may have previously been available to police officers as a direct response to the interim recommendation of the Wood Royal Commission; and (b) the Police Service Amendment Act 1997 thereafter introduced the current comprehensive merit review regime contained in Part 9 of the Police Act. 51. Section 72A of the Police Act was inserted by the Police Amendment Act 2007 to align the Police Act more closely with the Public Sector Employment and Management Act 2002. In particular, section 72A was inserted to empower the Commissioner to medically retire police officers, consistently with the medical retirement powers granted to other public service entities pursuant to the Public Sector Employment and Management Act 2002. An equivalent provision in the Police Act was also introduced by the Police Amendment Act 2007 to allow the Commissioner to medically retire administrative officers. 52. At the time that section 72A was introduced, Part 9 of the Police Act was in force, containing the exclusive and self-contained regime through which police officers could seek review of any dismissal. It could be expected that, if the legislature intended to provide an express remedy to police officers that had been medically retired under section 72A, amendments would have been made to Part 9 to provide this Commission with jurisdiction to review such medical retirement decisions. These amendments were not made through the Police Amendment Act 2007, or at any time subsequently. 53. In McDonald (No. 2), Commissioner Murphy determined (at [83]) that: Part 9 of the Police Act establishes the only process by which a dismissed a police officer is able to seek a remedy. That process is new (sic unique) to the NSW Police Force and has been specifically designed to provide officers with an avenue to seek redress in relation to their removal from the police force whilst, at the same time, putting in place measures designed to preserve the efficacy of that scheme… (sic designed to preserve the integrity of the police force.) 54. Much like the case in McDonald (No. 2), the conclusion that a medically retired police officer cannot seek redress pursuant to Part 6 of Chapter 2 of the Industrial Relations Act does not allow the Commissioner to act with impunity in exercising the discretion under section 72A. An aggrieved medically retired officer will always be able to seek administrative review or declaratory relief from the Supreme Court, should they contend that the decision of the Commissioner to exercise the discretion under section 72A was capricious or otherwise affected by administrative error. 55. Put simply, the powers of the Commissioner to terminate the employment of police officers are self-contained within the Police Act. Equally self-contained within the statute are the rights granted to police officers to seek review of any decision to dismiss a police officer. To allow a police officer such as the applicant, who has been medically retired under section 72A, an ability to pursue an unfair dismissal claim under Part 6 of Chapter 2 of the Industrial Relations Act would be to grant such medically retired officers "a right of review superior to that of any police officer" who had been removed by section 181D order of the Commissioner. This would produce remarkable anomalies. 56. The rights police officers in relation to dismissal are governed exclusively under Part 9 of the Police Act. The applicant's application for relief must be dismissed. Applicant's submissions in opposition to the motion
In reply to the respondent's submissions on the motion, the following submissions were put on behalf of the applicant: 10. It is the Applicant's case that the facts in this case are entirely distinguishable from Eaton and McDonald. There is authority for the proposition that a medical discharge of a police officer constitutes a "dismissal" (see Robinson v Cmnr of Police [2014] NSWIRComm 35). However, unlike dismissal pursuant to s.181D, the Police Act contains no provisions by which a dismissal from employment pursuant to s.72A can be challenged. Section 181E is not engaged in respect to a dismissal pursuant to s.72A. 11. The High Court by majority upheld the appeal in Eaton. The High Court held that a decision to dismiss a probationary officer under section 80(3) of the Police Act was not subject to a merits review under Chapter 2, Part 6 of the IR Act. The general provisions of the IR Act did not apply in the face of the special, and inconsistent, terms of the Police Act. 12. The present case is readily distinguishable from Eaton. Here there are no special and inconsistent terms in the Police Act. Rather, a Police Officer who is "dismissed" pursuant to Section 72A has no recourse to the review procedures referred to in Section 181E, nor are there any special provisions (such as s.80(3) ss applied in Eaton) which signal a legislative intention that there be an unfettered right in the employer to dismiss. 13. It is clear from the discussion in the majority decision in Eaton (see eg paras [74] & [75]) and see also Heydon J at [17]) that the High Court considered that the wording of s.80(3) of the Police Act strongly suggested an unfettered right to dismiss a probationary constable, such that finding that an unfair dismissal claim was available under s.84 IR Act would be significantly inconsistent. 14. In the instant case there is no such inconsistency or anomaly. Indeed it would arguably be anomalous if an officer dismissed under s.181D had a merits review (S.181E) but an officer dismissed pursuant to the provisions of 72A had no such merits review. 15. Where the Police Act makes no provision for a merit review of a dismissal pursuant to 72A, nor contains any provisions that are inconsistent with such a right existing, it is appropriate to infer that in respect to such dismissals Section 84 claims remain available. 16. It is noted that Section 83(1)(a) of the Industrial Relations Act expressly extends the application of Ch 2 Part 6 Appeals to "any Public Sector Employee" which is defined in the Dictionary to include the NSW Police Force. It is further noted that s.218(1) of the Police Act provides that "The Industrial Relations Act 1996 is not affected by anything in this Act". 17. The gravamen of the High Court's decision in Eaton can be found in the decision of the plurality at [88] to [92]. The majority though (sic thought) the Court of Appeal's interpretation of s 218(2) Police Act wrongly assumed that it operates so that unless expressly provided by the Police Act, the IR Act is to apply. The High Court held that an implication of inconsistency with the general provision will suffice to oust its application. 18. As the High Court said at [90-91]: 90 The provisions of Pt 9 of the Police Act provide an example of inconsistency with provisions of the IR Act relating to unfair dismissal. The level of inconsistency is such that s 218(1) does not operate in its terms. Section 80(3) is impliedly inconsistent with s 218. It conveys more than that the Commissioner may dismiss without giving reasons. It implies an unfettered power and therefore that the decision is not to be subjected to a review on the merits. That implication is supported by other aspects of the construction of the Police Act, to which reference has been made. Thus if the general jurisdiction of the IR Act is recognised by s 218, it is withdrawn by s 80(3) insofar as decisions under that provision are concerned. 91 The conclusion reached by the Full Bench is, with respect, correct. The Full Bench construed s 218 as leaving intact the power of the IR Commission to deal with industrial matters concerning police officers, unless specially restricted by a provision of the Police Act. 19. The High Court majority went on (see eg [92]) to conclude that the Industrial Relations Act may apply generally to the Police Act, but not where the operation of the former produces an internal inconsistency in the latter. The conclusion was to the effect that the general provisions of the IR Act will apply to Police officers, unless they fly in the face of the special, and inconsistent, terms such as those in s 80(3) of the Police Act. 20. The conclusions of the High Court referred to above are consistent with the position maintained by the Applicant. There are no special and inconsistent provisions associated with a removal from office pursuant to section 72A. The Police Act is silent in that regard. In those circumstances, and consistent with the rationale in Eaton, the general provisions (such as Ch 2 Part 6 Unfair dismissal provisions) will still apply. 21. The decision of the Full Bench in McDonald v Commnr of Police (No.3) [2016] NSWIRComm 1049) turns largely upon rejection (of) the proposition that a constructive dismissal can exist in the context of the statutory scheme of the Police Act. To the extent that the Full Bench contemplated that the dismissal might be classified as a s.181D dismissal, it was considered that 181E rights were inconsistent with the availability of a s.84 claim. McDonald does not contradict the High Court's determination in Eaton that absent special and inconsistent terms, the provisions of both the IR Act and the Police Act may apply to the presenting circumstances of a Police Officer. 22. The Applicant submits there is no inconsistency or difficulty in applying the provisions of Ch 2 Part 6 to a dismissal pursuant to Section 72A of the Police Act, and accordingly the Respondent's Motion should be dismissed.
In summary, it was put on behalf of the applicant that, unlike section 80(3) of the Police Act, which dealt specifically with the dismissal of probationary police officers and which was considered by the High Court in Commissioner of Police v Eaton ([2013] 252 CLR 1), there was nothing in the language of section 72A of the Police Act to suggest that it was the intention of the legislation that there be no scope for a "merit review" by this Commission of a decision by the respondent to medically retire a police officer.
It was further put that the decisions in McDonald v Commissioner of Police (No 2) ([2016] NSWIRComm 1032) and McDonald v Commissioner of Police (No 3) ([2016] NSWIRComm 1049) were concerned with the concept of constructive dismissal and had nothing to say about the dismissal of a police officer by way of medical retirement.

The Commission's jurisdiction

In Eaton the High Court considered whether or not a probationary police officer who had been dismissed under section 80(3) of the Police Act could pursue an unfair dismissal remedy under the provisions of Chapter 2, Part 6 of the IR Act. Section 80 of the Police Act is in the following terms: 80 Appointment and promotion of constables (1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable. (2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations. (3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason. (4) The promotion of police officers within the rank of constable is subject to the regulations.
Ultimately, the plurality of the High Court (Crennan, Kiefel and Bell JJ) concluded as follows: 92. The IR Act may apply generally to the Police Act, but not where the operation of the former produces an internal inconsistency in the latter. Such an effect, which would be reached if a decision under s 80(3) of the Police Act were subject to review under Pt 6 of the IR Act, cannot be taken as intended. The conclusion reached concerning the non-application of Pt 6 of the IR Act to a decision made under s 80(3) may further be tested by reference to s 218 of the Police Act and the rule of construction mentioned at the outset of these reasons. In each case, the general provisions of the IR Act do not apply in the face of the special, and inconsistent, terms of s 80(3) of the Police Act.
McDonald v Commissioner of Police (No 2) ([2016] NSWIRComm 1032) was a case in which a former police officer who resigned but claimed to have been constructively dismissed from the force, sought to pursue an unfair dismissal remedy pursuant to the provisions of Chapter 2, Part 6 of the IR Act. In my decision in that matter, I traced the history of the Eaton litigation from the first instance proceedings before Commissioner Bishop through the Full Bench appeal, the judicial review in the Court of Appeal and, ultimately, to the final determination of the litigation in the High Court. I then stated: 71 In essence, the High Court held that the provisions of Part 9 of the Police Act are inconsistent with, and prevail over, those of Chapter 2, Part 6 of the IR Act. 72 However, it must be remembered that the Eaton litigation was concerned with a dismissal under section 80(3) of the Police Act, which gave the Commissioner express power to dismiss a probationary officer at any time and without giving any reason. The question at each stage of this litigation was whether such a dismissal could be reviewed by the Commission under Chapter 2, Part 6 of the IR Act, which establishes the Commission's general unfair dismissal jurisdiction. 73 The present matter concerns the concept of constructive dismissal, for which there is no legislative prescription, and whether an alleged constructive dismissal of a confirmed police officer can be reviewed by the Commission in its general unfair dismissal jurisdiction. And later: 87 Part 9, Division 1C of the Police Act deals comprehensively with the process by which a police officer, who claims to have been unfairly dismissed, is able to seek redress. This process does not comprehend the notion of constructive dismissal. It would create unacceptable anomalies to allow an officer who resigns, and then claims to have been constructively dismissed, to have superior rights in relation to an unfair dismissal claim, than an officer who has been removed by order of the Commissioner. 88 Adopting the approach of the High Court in Ferdinands and in Eaton, I find that the Commission does not have jurisdiction to hear and determine the applicant's application for relief in relation to unfair dismissal.
An appeal against the decision in McDonald (No 2) was dismissed by a Full Bench of the Commission (McDonald v Commissioner of Police (No 3) [2016] NSWIRComm 1049). In its decision, the Full Bench (Tabbaa C AM, Actg. Chief Commissioner; Stanton C; Newall C) stated: 74 It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: Saraswati v R (1991) 172 CLR 1; [1991] HCA 21 at 17 per Gaudron J. The exercise is one of statutory construction, requiring close attention to the particular provisions of the two Acts: Ferdinands at [138] per Gummow and Hayne JJ. 75 In Ferdinands, the Commissioner of Police terminated the appointment of a police officer following a conviction of assault. That officer subsequently made an application to the Industrial Relations Commission of South Australia for a determination that his dismissal was harsh, unreasonable or unjust pursuant to the Industrial and Employee Relations Act (SA), where it was argued that the Commission's jurisdiction extended to all public service employees in the State, except those specifically exempt from the relevant unfair dismissal provisions. No exemption applied to members of the Police Force. 76 The majority in Ferdinands held that the Police Act (SA) implicitly excluded the operation of the Industrial and Employee Relations Act (SA). They considered that s 40 of the Police Act (SA) which provides a range of powers to the Commissioner of Police, extending from counselling to termination of appointment where an officer is found guilty of a State, Territory or Federal offence, was incompatible with the provisions of the Industrial and Employee Relations Act 1994 (SA). 77 The decision in Ferdinands also held that s 40 of the Police Act (SA) should be read as a comprehensive statement of the Commissioner of Police's powers to terminate an officer's appointment, the matters the Commissioner is required to take into account in the exercise of that power and the availability and the processes for review. At [148], Callinan J held: The respondent's submissions…that the Police Act constitutes a self-contained scheme for challenges to decisions of the Police Commissioner. That submission should be accepted. That it is correct follows from the detailed provision that the Police Act makes for all aspects of the engagement and disciplining of members of the force, and by reason of the nature of the duties and obligations of police officers… 78 The decision of the High Court in Eaton held the removal of a probationary police officer under s 80(3) of the Police Act was excluded from the jurisdiction of the Commission. Such officers are precluded from making an unfair dismissal application under s 84 of the Act. The majority also considered the potentially anomalous situation that would result if probationary police officers were afforded a remedy under s 84 of the Act when confirmed officers have no such rights under the Police Act. 79 We consider the Commission is bound by the decisions of the High Court in both Ferdinands and Eaton and those authorities supersede the earlier decisions of the Commission pressed by the appellant to ground jurisdiction. We further consider that the precepts in those two decisions have direct application to this case. 80 As to the appellant's submission concerning s.218 of the Police Act, that section is a savings provision and does not, contrary to the appellant's submission, operate to preserve the provisions of Ch 2 Pt 6 of the Act. Squarely put, the legislative intention of Pt 9 of the Police Act was to displace the operation of Ch 2 Pt 6 of the Act in relation to police officers.
I do not accept the applicant's submission to the effect that the judgement of the High Court in Eaton and the decisions of this Commission in McDonald (No 2) and McDonald (No 3) are confined to the narrow questions of whether or not a dismissed probationary police officer (as in Eaton) or a police officer who claims to have been constructively dismissed (as in McDonald) is excluded from the general unfair dismissal provisions of the IR Act. The language used in both cases strongly suggests that the provisions of the Police Act constitute an exclusive code which sets out the only manner in which police officers, whose employment with the police force has been terminated pursuant to the provisions of that Act, may seek a remedy in this Commission.
This exclusive code does not provide for a "merit review" by this Commission of any such termination, beyond that which is specifically provided for under Divisions 1C and 1D of Part 9 of the Police Act. As a consequence, police officers whose employment with the police force has been terminated otherwise than by way of an order made under section 181D of the Police Act, whether by way of dismissal of a probationary officer; or by way of alleged constructive dismissal; or by way of medical retirement; or by way of any other means, are precluded from seeking a remedy pursuant to the unfair dismissal provisions in Chapter 2, Part 6 of the IR Act.
This does not mean, however, that such officers are precluded from seeking relief in other jurisdictions. As was conceded by the respondent, aggrieved medically retired police officers will be able to seek administrative review or declaratory relief from the Supreme Court, should they contend that the decision of the Commissioner of Police to exercise the discretion under section 72A of the Police Act was capricious or otherwise affected by administrative error.
This decision is only concerned with the power, or, more correctly, the lack of power, of this Commission to grant relief to such officers by way of an unfair dismissal remedy pursuant to the provisions of Chapter 2, Part 6 of the IR Act.
On the face of the Notice of Motion, the respondent seeks a declaration in relation to the Commission's jurisdiction. The Commission has no power to make such a declaration. However, the Commission does have the power, which I propose to exercise, to dismiss the applicant's unfair dismissal application on the basis that the Commission lacks the power to hear and determine it.

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