Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice

Court of Appeal (NSW)|2018-02-28|Before: McColl JA, Macfarlan JA

Background to the termination

Three incidents gave rise to the action taken by the Secretary to terminate Mr Wattie's employment. The three incidents occurred on 13 September 2014, 19 December 2014 and 29 December 2014. Mr Wattie has had a distinguished career as a correctional officer and has received several commendations, medals and awards for his service. Prior to the incidents that led to his dismissal, Mr Wattie had never been the subject of any disciplinary investigation or action by Corrective Services NSW.
On 7 January 2015, Mr Wattie was suspended pending investigation of the third incident. On 13 January 2015, he was arrested and charged by Police with common assault in respect of the first two incidents and assault occasioning actual bodily harm in relation to the third incident. Mr Wattie entered pleas of guilty to each of the three charges. Ultimately, findings were made that the offences were proved but no convictions were recorded. Mr Wattie was placed on a bond.
On 11 September 2015, following the finalisation of those criminal proceedings, Corrective Services NSW wrote to Mr Wattie setting out the allegations of misconduct by reason of the three incidents. On 2 October 2015, Mr Wattie provided a comprehensive response to the misconduct allegations. On 22 March 2016, Corrective Services NSW wrote to Mr Wattie's solicitors saying that a determination had been made that Mr Wattie had engaged in misconduct and that consideration was being given to disciplinary action in relation to the misconduct. On 5 May 2016, Corrective Services NSW wrote again to Mr Wattie's solicitors saying that a decision had been made that Mr Wattie's employment be terminated with the opportunity to resign. Mr Wattie was required to tender his resignation within seven days, or otherwise his employment would be terminated. He did not do so and his employment was terminated. Mr Wattie then commenced proceedings under s 84 of the IR Act.

The Commissioner's determination

On 11 October 2016, the Commissioner published his reasons for concluding that the termination was harsh and for ordering that Mr Wattie be reinstated to the position of Senior Correctional Officer, on the same terms and conditions as applied to his position at the time of the termination. The Commissioner declined to order that Mr Wattie be paid any back pay for the period from the time of his dismissal until the date of the effective proposed order for reinstatement.
After recounting the background summarised above, the Commissioner observed that Mr Wattie's actions in each of the three incidents could not be condoned or tolerated, even where there was significant provocation. In relation to the first incident, the Commissioner concluded that, whilst Mr Wattie's actions constituted misconduct, given the surrounding circumstances, the seriousness of the misconduct in the incident was not sufficient to justify the dismissal of Mr Wattie. The Commissioner also considered that, taken in isolation, the seriousness of the misconduct involved in the second incident was not such as to justify the dismissal of Mr Wattie. However, the Commissioner concluded that the misconduct involved in the third incident, when considered together with the misconduct involved in the previous two incidents, was such as to render the dismissal of Mr Wattie neither unjust nor unreasonable. The question remained, however, as to whether or not, in all the circumstances of the case, the dismissal was nevertheless harsh.
After considering a number of significant mitigating factors, including reliable medical evidence that Mr Wattie's conduct was caused or contributed to by mental illness, the Commissioner concluded that, after weighing all of the mitigating factors against the seriousness of the misconduct, the dismissal of Mr Wattie was, in all the circumstances, harsh. Nevertheless, given that the dismissal of Mr Wattie was based on misconduct that could not be excused, despite his mental condition at the time, the Commissioner declined to order that Mr Wattie be paid any back pay for the period from the time of his dismissal until the date of the effective proposed order for reinstatement.
The Commissioner said that the proceedings should serve as a very clear warning to Mr Wattie that any future use of force by him outside the relevant Corrective Services NSW policies would almost certainly result in his dismissal. The Commissioner observed that, if that were to occur, it was difficult to imagine any circumstances that would warrant the intervention of the Commission a second time.

The Full Bench

Under s 187 of the IR Act, a party to proceedings in which a decision of the Commission constituted by a single member was made may appeal to the Full Bench of the Commission. However, under s 188, an appeal to a Full Bench may be made only with the leave of the Full Bench.
The Secretary applied to the Full Bench for leave to appeal from the Commissioner's determination. The questions said to be raised by the proposed appeal were:

whether the Commissioner erred in the exercise of statutory powers in finding that the dismissal of Mr Wattie was harsh;
whether, in finding that the dismissal of Mr Wattie was harsh, the Commission erred by failing to have regard to relevant considerations, including failing to have regard to "the statutory and policy context" that governed Mr Wattie's employment and failing to have regard to the submissions by the Secretary relating to the seriousness of the misconduct on which the decision to dismiss was based. It is significant that in the Secretary's amended application for leave to appeal, no mention was made of jurisdictional error on the part of the Commissioner.

On 28 February 2017, for reasons published on that day, the Full Bench of the Commission refused leave to appeal. Section 179(1) of the IR Act provides that a decision of the Commission, however constituted, is final and may not be appealed against, reviewed, quashed or called into question by any Court or Tribunal. Nevertheless, a decision of the Tribunal is amenable to judicial review under s 69 of the Supreme Court Act. [167]

Decision of the Primary Judge

Mr Wattie then commenced proceedings in the Common Law Division seeking judicial review, under s 69, of the decision of the Commissioner and the decision of the Full Bench. By his further amended summons, Mr Wattie stated his grounds of review, relevantly, as follows:

the Commissioner erred in failing to take into consideration the statutory scheme pursuant to which Mr Wattie was employed in the public service constituted by the following:
clause 131 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (the Regulation);
the Using Force on Inmates Policy in the Operations Procedures Manual published by Corrective Services NSW (the Policy);
clause 24 of the Crown Employees (Correctional Officers, Department of Attorney General and Justice - Corrective Services) Award 2012 (the Award); and
the Statement of Purpose and Values of Corrective Services NSW, found in the Guide to Conduct and Ethics published by Corrective Services NSW (the Guide); and
by reason of the matters referred to above, the Commissioner fell into jurisdictional error.

On 30 November 2017, for reasons published on that day, a judge of the Common Law Division (the primary judge) made orders setting aside the decision made by the Commissioner on 11 October 2016 and the decision of the Full Bench made on 28 February 2017. The primary judge remitted Mr Wattie's application under s 84 of the IR Act to be determined according to law.
In her reasons for setting aside the Commissioner's decision and the decision of the Full Bench, the primary judge observed that the State is responsible for every inmate and that correctional officers are centrally engaged in the obligations of the State to safeguard all persons who are in custody. Her Honour observed that, when a correctional officer assaults a prisoner, that officer is doing so in the exercise of the actual or ostensible authority conferred by the State on correctional officers who are its agents.
Her Honour then referred to cl 131 of the Regulation. Her Honour said that that provision is plainly intended to ensure that correctional officers do not use force against inmates except in certain defined circumstances. Her Honour also referred to s 13.7 of the Policy, which her Honour said, is designed to implement cl 131 of the Regulation. Her Honour said that, as a consequence of the relationship between the State and those it detains in custody, the State owes a duty to exercise reasonable care for the safety of inmates during the period of their detention, and that when a prison officer has been found guilty of assault and has therefore breached cl 24 of the Award and the Code of Conduct incorporated into it, the Policy and cl 131 of the Regulation, the State may, by exposing inmates to Mr Wattie, and by permitting him to remain employed as a correctional officer, be putting itself in breach of that duty.
The primary judge rejected Mr Wattie's submission that the "regulatory context" was not sufficiently raised by the Secretary before the Commission. Her Honour observed that, because cl 131 of the Regulation was included in a slim bundle of regulatory material provided to the Commissioner by the Secretary, its importance ought to have been apparent to the Commissioner. The Policy was separately tendered and was specifically referred to in the letter from Corrective Services NSW to Mr Wattie in which the detailed allegations of misconduct were set out.
The primary judge expressed the view that, having regard to the central relevance of the "regulatory context" to the question of whether the dismissal was harsh, it was a condition of the valid exercise of the Commissioner's power that he consider that context. Her Honour said that, although that requirement was not explicitly stated in the IR Act, it was central to the Commissioner's task of deciding, relevantly, whether the dismissal was harsh and, if so, what remedy would be appropriate.
Having been satisfied that the Commissioner was obliged to take into account "the relevant regulatory context", the primary judge then considered whether the Commissioner actually did so. Her Honour observed that the weight to be given to mandatory relevant considerations is a matter for the decision-maker, but, where a decision-maker fails to give any consideration to such a matter, the decision will not be made in accordance with law.
The primary judge observed that, although the Commissioner was not required to address, in terms, each of the statutory provisions or policy material relevant to the obligations of correctional officers, the Commissioner was required to consider the substance of those matters and to demonstrate by his reasons that he had done so. Her Honour said that the Commissioner was obliged, when assessing the seriousness of the misconduct, to address the express prohibitions on the use of force against inmates and the mandatory obligations to report such use of force. Her Honour considered that those prohibitions were expressed, not only in cl 31 of the Regulation but also in the Policy, to which several references were made in the letter of 11 September 2015.
The primary judge concluded that the Commissioner's reasons did not reveal that he addressed the "regulatory context" and that consideration of the substance of the "regulatory context" required consideration of the circumstances that use of force by a correctional officer against an inmate, which amounted to criminal assault on not one but three separate occasions, was antithetical to "that context" and to the integrity of the criminal justice system. Her Honour characterised the conduct as an abuse of the power of the State by Mr Wattie, who was acting as an agent of the State.
The primary judge did not regard the Commissioner's general observation that assaults on inmates in correctional centres by correctional officers could not be condoned or tolerated as sufficient to indicate that he gave any consideration to the "regulatory context". Her Honour considered that the Commissioner's reasons warranted the drawing of an inference that he failed to take into account the "regulatory context", since the scant reference to such matters was almost exclusively confined to quotations from the correspondence referred to above. Her Honour considered that the comments made by the Commissioner were too general for an inference to be drawn that the "regulatory context" was actually considered by the Commissioner.

The appeal

By summons filed on 20 December 2017, Mr Wattie sought leave to appeal to this Court from the orders made by the primary judge. Leave is required under s 101(2)(r) of the Supreme Court Act because the proceedings before the Commission did not involve a simple money claim. A direction has been given that the appeal be heard concurrently with the application for leave if leave be granted. The Secretary originally opposed the grant of leave but that opposition was subsequently withdrawn. In the circumstances, leave to appeal should be granted.
The grounds of appeal may be restated as follows: 1. The primary judge erred in finding that the "regulatory context" of Mr Wattie's employment constituted a mandatory consideration in the unfair dismissal proceedings brought under s 84 of the IR Act, such that it was a condition of a valid exercise of the Commissioner's power that he consider that context. 2. The primary judge erred in finding that the Commissioner failed to take into account "the regulatory context" and thereby fell into jurisdictional error. 3. The primary judge erred in finding that the Commissioner fell into jurisdictional error by failing to take into account "the regulatory context" of Mr Wattie's employment having regard to the manner in which the case was run by the Secretary before the Commissioner. 4. The primary judge erred in finding that the decision of the Full Bench to refuse leave to appeal was affected by jurisdictional error if error was found in the decision of the Commissioner, without considering whether the Full Bench itself fell into jurisdictional error in the exercise of its appellate function.

Formulation of the "regulatory context"

The formulation of "the regulatory context" to which the primary judge held the Commissioner was bound to have regard is by no means clear. In the course of the argument, Senior Counsel for the Secretary emphasised specific provisions of the Regulation, the Policy, the Award and the Guide that were said to constitute the regulatory framework. Those provisions were particularised in the summons commencing proceedings in the Common Law Division. However, they were not the subject of any exhaustive formulation either in writing or orally before the Commissioner or the Full Bench. It is desirable, therefore to identify the relevant provisions.
Clause 131 of the Regulation relevantly provided as follows: "131 Use of Force in Dealing with Inmates (1) In dealing with an inmate, a correctional officer may use no more force than is reasonably necessary in the circumstances, and the infliction of injury on the inmate is to be avoided if at all possible. (2) The nature and extent of the force that may be used in relation to an inmate are to be dictated by circumstances, but must not exceed the force that is necessary for control and protection, having due regard to the personal safety of correctional officers and others. (3) If an inmate is satisfactorily restrained, the only force that may be used against the inmate is the force that is necessary to maintain that restraint." Clause 131(4) sets out the purposes for which a correctional officer may have recourse to force, subject to cll 131(1) to 131(3).
The Policy is contained in the Operations Procedures Manual published by Corrective Services NSW. It appears in s 13.7 dealing with "Using Force on Inmates". Section 13.7.2 relatively states the Policy as follows: "Clause 131 of the [Regulation] sets out the situations when you can use force. You must use alternative methods to resolve problematic behaviour whenever possible. A peaceful, injury-free solution is the first objective. When emerging problematic behaviour is identified early enough and managed according to Corrective Services NSW's case-management policy, the need to use force may be reduced. In managing non-compliant behaviour by inmates, there are strategies to minimise the risk. They include: • persuasion and negotiation • presence of and frequency of patrols • presence of and instructions from senior officers. When it is used, the force you apply must be reasonable and appropriate to the circumstances. Once an inmate has been satisfactorily restrained, you must not apply additional force. If it's no longer necessary to restrain the inmate, you must stop applying force and you must remove restraints. Every time you use force, you must justify its use, as well as the type of force you applied and the duration you applied it. This includes an explanation if restraints were used." Clearly enough, the Policy is intended to assist Correctional Officers in the implementation of cl 131 of the Regulation.
Clause 24 of the Award deals with "Professional Conduct". It relevantly provides as follows: "(i) Officers shall be committed to personal conduct and service delivery in accordance with the principles, mission and corporate objectives as expressed in the [Corrective Services NSW] Corporate Plan. (ii) Officers shall perform their duties diligently, impartially and conscientiously to the best of their ability by complying with the [Corrective Services NSW] Code of Conduct in the performance of their duties. (iii) All officers will be professional in their conduct with the public, other staff and inmates. (iv) Officers shall comply with the requirements of the [Corrective Services NSW] Dress Manual and will ensure their dress and grooming are of the highest standard." Clause 24 does not appear to add any content to the requirements of cl 131 and the Policy.
Part 1 of the Guide contains a "Statement of Purpose and Ethical Principles". Clause 1.1 is a "Statement of Purpose and Values of Corrective Services NSW". It lists the following under the heading "Values": "Justice and Equity Regard for community expectations and public interest Safety, welfare and positive development of offenders Secure and humane management of offenders … Responsibility and Respect Professionalism Safety and well-being of staff Continuous learning and professional development of staff." Clause 1.3 is a "Statement of Ethical and Professional Principles" and includes the following: "The following is a set of principles by which the [Corrective Services NSW] operates: (1) Place public interest and integrity above private interest; (2) Respect and protect the dignity and human rights of all persons; (3) Perform official duties in a professional and responsible manner; (4) Follow the principles of good working relationships; (5) Work with economy and efficiency; (6) Implement the policies and decisions of the Government; (7) Provide a quality service."
Part 2 of the Guide is "Ethical Principles in Practice". Clauses 2.1 and 2.2 relevantly provide as follows: "2.1 THE CORPORATE CONTRACT [Corrective Services NSW] recognises its responsibility to all employees by providing adequate resources to enable them to operate to the best of their ability. In return, [Corrective Services NSW] expects all employees to act conscientiously and with integrity and honesty, to provide appropriate and timely advice fearlessly and frankly and to make full disclosure of all relevant information. 2.2 ETHICAL LEADERSHIP Ethical leadership is a quality strongly encouraged in all public servants and it is essential that managers reinforce this quality by demonstrating ethical behaviour in all aspects of their work. Managers should model the standard of professional and ethical conduct for their employees to adopt. Employees will value their managers' leadership if they act reasonably, fairly and display a high standard of ethical leadership. Managers should: Communicate clearly and show respect when communicating with employees; Ensure the work location is free from discrimination, harassment and bullying; Model desired values and behaviours; Develop a firm, fair and equitable management style; …" It is difficult to understand what bearing the aspirational statements of the Guide have on the issues before the Commissioner.
In addition to the aforementioned provisions, which were relied upon in the further amended summons, counsel for the Secretary submitted at the hearing of the appeal that the Commissioner should also have had regard to s 69 of the Government Sector Employment Act 2013 (NSW) (the GSEA Act). Relevantly for present purposes, s 69(3) provides that government sector employee rules may deal with misconduct by employees of government sector agencies. Section 69(4) provides, relevantly, that if in accordance with those rules there is a finding of misconduct by an employee, the person who exercises employer functions may terminate the employee's employment with or without giving the employee the opportunity to resign.

Disposition

The primary judge concluded that a condition of the valid exercise of the Commission's jurisdiction was that the Commissioner must consider "the regulatory context". To establish jurisdictional error, it must be demonstrated that the Commissioner was bound to take into account specific matters and that he failed to do so. The matters that a decision-maker is required to take into account are determined by the statute conferring the power or discretion to make the decision. [168]
Under s 84 of the IR Act, the Commission is required to make a finding as to whether the dismissal of an employee was harsh, unconscionable or unjust. Such a finding requires a broad evaluation of the circumstances of each particular case. Section 88 specifies matters that the Commission "may, if appropriate, take into account". That language is hardly the language of compulsion. There is certainly no reference to "the regulatory context". A fortiori there is no reference to the Regulation, the Policy, the Award or the Guide. Rather, there is a reference in s 88(f) to "such other matters as the Commission considers relevant". The only matter referred to in s 88 that has any remote connection with the circumstances of Mr Wattie's case is that, by virtue of s 88(d), the Commission may take into account the nature of Mr Wattie's duties immediately before the dismissal.
Section 88 clearly does not dictate the matters or considerations that the Commission is required to take into account. Clearly enough, the IR Act leaves it to the specialist industrial tribunal established under it to hear and determine unfair dismissal claims. Thus, the Commission is left to assess the considerations that the Commission considers to be relevant in determining a particular claim.
Nevertheless, in determining whether Mr Wattie's dismissal was harsh, unreasonable or unjust under s 84, the Commissioner was required to have regard to the seriousness of the misconduct that gave rise to his dismissal. [169] It probably goes without saying that in assessing the seriousness of the misconduct, the Commissioner was required to have regard to the Regulation and the Policy, which were the matters identified by the primary judge as mandatory relevant considerations. [170] It might also be the case that the Commissioner was required to have regard to the Award, the Guide and the relevant provision of the GSEA Act. In that regard, there was no dispute that Mr Wattie had been guilty of misconduct. The only question was whether, having regard to the seriousness of the misconduct, dismissal was harsh, even though it was neither unreasonable nor unjust.
While a decision-maker such as the Commissioner is required to state reasons for the decision being made, such a decision-maker is not required to mention every fact or argument relied on by a losing party. It is also not necessary for a decision-maker to expose every step in the chain of reasoning that leads to the conclusion. [171] The only question is whether the Commissioner entirely overlooked a mandatory consideration.
A fair reading of the reasons of the Commissioner makes clear that he considered the regulatory context of Mr Wattie's employment as a correctional officer and the reasons given by the decision-maker for dismissing him. In particular, the Commissioner clearly had regard to the nature of the responsibilities of correctional officers.
I consider that, having regard to the comments and observations made by the Commissioner, the Commissioner had regard to all of the matters and considerations that were necessary to enable him to make a judgement as to whether the dismissal of Mr Wattie was harsh in the light of the seriousness of the misconduct of which he was found guilty. The Commissioner set out the allegations made against Mr Wattie. It is clear therefore that he had regard to the actual misconduct.
The Commissioner also set out the considerations relied upon by the original decision-maker in deciding to dismiss Mr Wattie. That included assertions that subjecting an inmate to undue force was incompatible with the duties and responsibilities of a correctional officer and had the effect of undermining the integrity and reputation of the government sector and public confidence in the government sector. The Commissioner stated that assaults on inmates in correctional centres by correctional officers could not be condoned nor tolerated, even in cases where there is significant provocation. He considered in detail the nature of Mr Wattie's conduct in relation to each of the three incidents.
Further, the reasons of the Commissioner must be read in the light of the way in which the case against Mr Wattie was presented. The Secretary tendered a bundle of documents containing some of the material in question. Very little of the material was referred to in oral or written submissions. In circumstances where the relevant material that is said to constitute "the regulatory context" was, at best, mentioned in passing, it cannot be said that the Commissioner fell into jurisdictional error by failure to refer in terms expressly to the Regulation or the Policy. The same might also be said of the Commissioner's failure to refer in terms to the Award, the Guide and the relevant provision of the GSEA Act (although the primary judge did not ultimately find that those aspects of the regulatory context were mandatory relevant considerations).
The only basis upon which the Commissioner's decision was impugned was that it was infected by jurisdictional error. The Commissioner was not guilty of jurisdictional error. It is therefore unnecessary to consider the fourth ground of appeal, being the question of the refusal of leave to appeal by the Full Bench.

Conclusion

The appeal should be allowed. I agree with the orders proposed by McColl JA.

Endnotes

Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036 (Commissioner's decision).
Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 (Full Bench decision).
Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [55] (Kirk).
Industrial Relations Secretary v Wattie [2017] NSWSC 1662; (2017) 271 IR 458 at [69].
Ibid at [70].
Ibid at [73].
Wattie v Industrial Relations Secretary [2018] NSWCA 5.
Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd [2017] NSWCA 216; (2017) 323 FLR 447 at [5] per Beazley P (Payne JA agreeing).
IR Act, s 3(a) and (g).
[2014] NSWCA 185 at [8] per Basten JA (Bathurst CJ and Ward JA agreeing).
Primary judgment at [43] - [50].
Before the Commissioner, r 40 was described as setting out the process that was followed to give effect to s 69 of the GSEA.
Before the primary judge, the parties accepted that this was the relevant Code of Conduct referred to in the Award.
Primary judgment at [50].
Ibid at [48].
Ibid at [62].
See Commissioner's reasons at [57].
IR Act, s 148. Notwithstanding this, members of the IRC are judicial officers for the purposes of all but Pt 7A of the Judicial Officers Act 1986 (NSW).
Commissioner's reasons at [2] - [7].
Ibid at [8] - [23].
Ibid at [64].
Ibid at [24] - [41].
Ibid at [42] - [46].
Ibid at [46].
Ibid at [47] - [58].
Primary judgment at [9], see [30] above.
Commissioner's reasons at [54]; see also at [79] - [81].
Ibid at [57].
Ibid at [65] - [68].
Ibid at [69].
Ibid at [72].
Ibid at [74].
Ibid at [76] - [77].
Ibid at [78].
See above at [44].
Commissioner's reasons at [79] - [82].
Ibid at [83].
Ibid at [84].
Ibid at [85].
Ibid at [84] - [88].
At [91]; see above at [39].
[2010] NSWIRComm 65 at [26] - [29] (Kaplan).
Commissioner's reasons at [93].
(2002) 112 IR 212 at [71].
Commissioner's reasons at [94].
Ibid at [93] - [97].
Ibid at [99].
Ibid at [98] - [100]; see also s 89(5) IR Act.
Ibid at [103].
See [129] below.
See primary judgment at [26] - [28].
Full Bench decision at [15] - [17], per Tabbaa C AM, Acting Chief Commissioner; Stanton C and Newall C.
Ibid at [18].
Ibid at [19] - [20], referring to the Commissioner's reasons at [78] and [101].
Ibid at [16].
Ibid at [22].
Ibid at [22] - [26].
Ibid at [28].
Ibid at [29].
Ibid at [33] - [34].
Primary judgment at [5].
The Secretary abandoned reliance on these provisions in this Court.
The Secretary abandoned reliance on the Award before the primary judge, but sought to rely upon it in this Court.
Primary judgment at [29], [33] and [58].
Ibid at [58].
Ibid at [34] - [38].
Ibid at [39].
Ibid at [43] - [50].
(1995) 185 CLR 410 at 465; [1995] HCA 24 (Byrne).
[2014] NSWCA 112; (2014) 242 IR 318 (PSA) at [70] - [71] per Basten JA (Ward JA and Bergin CJ in Eq agreeing); referred to in the primary judgment at [54].
Primary judgment at [55].
Ibid at [60].
Ibid at [61].
Ibid at [62].
Ibid at [64].
At [66] - [68]; accepting the statements to like effect in Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537; [2015] FCAFC 35 at [42], [59] per Buchanan J (Allsop CJ and Siopis J agreeing), albeit referring to the Commonwealth Fair Work Commission, were applicable to the determination whether there had been jurisdictional error by the Commission and the Full Bench.
At [73].
Cf primary judgment at [43] - [44].
Cf ibid at [50].
Commissioner's reasons at [82].
Ibid at [47].
Primary judgment at [13]. The Secretary's written submissions in this Court described these considerations as having been placed before the Commissioner and as arising from the statutory scheme. That is not how they were expressed in the Secretary's written submissions before the Commissioner, as is apparent from the primary judgment at [13]. Rather, there they were placed before the Commissioner as being matters upon which the decision-maker relied. Before the Full Bench, they were advanced as relevant to the "context and seriousness" of Mr Wattie's misconduct which the Secretary asserted ought to have been taken into account when assessing the seriousness of that conduct for the purpose of determining whether his dismissal was "harsh".
Primary judgment at [29].
See primary judgment at [62] - [63].
Cf PSA at [71].
At [63].
Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 - 38; [1990] HCA 21 (Quin) per Brennan J (as his Honour then was) (at 35 - 36); see also Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7; at [80] per Basten JA (Mason P agreeing).
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [66].
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42; [1986] HCA 40 (Peko-Wallsend).
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 (Wu Shan Liang) per Brennan CJ, Toohey, McHugh and Gummow JJ, referring to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.
Quin at 36 - 38; Wu Shan Liang at 271 - 272, Brennan CJ, Toohey, McHugh and Gummow JJ; at 291 per Kirby J.
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [23] per French CJ, Bell, Keane and Gordon JJ (Gageler J agreeing), quoting Craig v South Australia (1995) 184 CLR 163 at 175; [1995] HCA 58.
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [23] (SZJSS) per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ referring to Peko-Wallsend at 48 per Mason J (Gibbs CJ generally agreeing; Dawson J agreeing).
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 per Jordan CJ; applied in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [31] per Gleeson CJ, Gaudron and Hayne JJ.
Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537; [2015] FCAFC 35 (at [42]) per Buchanan J (Allsop CJ and Siopis J agreeing)
Kirk at [93].
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf) at [41] per Gaudron J quoting Hebburn Ltd at 420.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [26] per French CJ.
Yusuf at [74] per McHugh, Gummow and Hayne JJ (Gleeson CJ agreeing).
Peko-Wallsend at 39 - 40 per Mason J.
Ibid at 40.
Li at [63]ff per Hayne, Kiefel and Bell JJ; at [88] - [92] per Gageler J; see also R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 per Kitto J; [1965] HCA 27. To avoid, however, the risk that the invocation of a notion of "reasonableness" may lead to judicial review of the merits of an administrative decision or action, "the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action": Quin at 36 per Brennan J.
Li at [68], [76].
Peko-Wallsend at [40] per Mason J.
Ibid.
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; (2010) 272 ALR 750; [2010] NSWCA 190 at [166] per McDougall J, referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93] per McHugh, Gummow, Kirby and Hayne JJ; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 at [50] (Lo v CCSR) per Macfarlan JA (Beazley P agreeing); see also Basten JA at [9].
Peko-Wallsend at 40 - 41.
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 (Sean Investments) per Deane J; cited with approval in Peko-Wallsend at 41.
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 at [80] per Kiefel and Bennett JJ.
Sean Investments at 375.
Foster v Minister for Customs and Justice (2000) 200 CLR 442; [2000] HCA 38 (Foster) at [23] per Gleeson CJ and McHugh J.
Primary judgment at [51].
Interpretation Act 1987 (NSW), s 9.
Ibid, s 35(2) and (5).
Ibid, s 34(3)(a).
(2013) 252 CLR 1; [2013] HCA 2 at [24] (Eaton).
Foster at [39] per Gaudron and Hayne JJ.
Cachia v Hanes (1994) 179 CLR 403 at 410; [1994] HCA 14 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ; [1994] HCA 14 applying Santos Ltd v Saunders (1988) 49 SASR 556 at 563 per Legoe J; at 571 per von Doussa J.
Primary judgment at [40] ff.
IR Act, s 3(a).
See Eaton at [65] per Crennan, Kiefel and Bell JJ.
At 465; per McHugh and Gummow JJ.
Cf Primary judgment at [57].
Commissioner's reasons at [94(h)], [96].
Yusuf at [73] per McHugh, Gummow and Hayne JJ (Gleeson CJ agreeing).
Lo v CCSR at [9] per Basten JA.
Ibid.
Ibid at [10].
Ibid.
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [47] per French, Sackville and Hely JJ.
Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox, McGregor and Morling JJ.
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [62] per Gleeson CJ, McHugh and Gummow JJ.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341; [1990] HCA 33 (ABT & Bond) per Mason CJ; referred to with approval in Yusuf at [63].
Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Azriel v NSW Land & Housing Corp [2006] NSWCA 372 at [49] per Basten JA (Santow and Ipp JJA agreeing).
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at [80] per Giles JA, Priestley JA agreeing; see also Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1; [2017] NSWCA 54 at [278] per Sackville AJA.
Commissioner of Taxation v Pham (2013) 134 ALD 534; [2013] FCA 579 at [42] per Katzmann J; Re Minister for Immigration and First Respondent Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [147] per Kirby J; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 119 - 120; [1953] HCA 22.
IR Act, s 162(2)(a).
IR Act, s 163(1)(a) and (c).
See above at [147].
PSA at [70].
Primary judgment at [55].
PSA at [70] - [71].
Ibid at [71].
Commissioner's reasons at [47].
At [26] - [29]; Commissioner's reasons at [93].
Commissioner's reasons at [94].
[2013] NSWIRComm 61.
Ibid at [59].
Full Bench decision at [26].
Commissioner's reasons at [78].
Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] per Basten JA (Allsop P agreeing); referred to with approval in SZJSS at [30] per curiam.
Primary judgment at [63].
Smith v Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551 at 554 per Lockhart J (Bowen CJ and Sheppard J agreeing).
[2018] NSWCA 7 at [133] (Leeming JA agreeing).
See Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 (Navazi) at [102] per Sackville JA (Leeming JA and Adamson J agreeing).
See primary judgment at [13] - [16], [29].
Navazi at [102].
At [33].
ABT v Bond at 335 per Mason CJ (Brennan and Deane JJ agreeing); referring to Rajah Tasadduq Rasul Khan v Manik Chand (1902) LR 30 Ind App 35 at 39; Commonwealth v Bank of NSW (1949) 79 CLR 497; [1950] AC 235 at 294.
Ibid at 337.
The Queen v Marks; ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1981) 147 CLR 471 at 476; [1981] HCA 33.
At [108].
See Navazi at [87] per Sackville AJA (Leeming JA and Adamson J agreeing).
(2005) 222 CLR 612; [2005] HCA 48 at [160] referred to in the footnote to Kirk at [108].
PSA at [35].
Primary judgment at [69].
See Kirk v Industrial Relations Commission (2010) 239 CLR 531.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.
Byrne v Australian Airlines (1995) 185 CLR 410 at 465.
Primary judgment at [57]-[59]. 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 June 2018

Industrial Relations Amendment (Industrial Court) Act 2016(NSW)

Crimes Act 1990(NSW)

Commonwealth v Bank of NSW (1949) 79 CLR 497; [1950] AC 235 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Department of Health v Kaplan [2010] NSWIRComm 65 Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Foster v Minister for Customs and Justice (2000) 200 CLR 442; [2000] HCA 38 Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1; [2017] NSWCA 54 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Liverpool City Council v Moorebank Recyclers Pty Ltd [2018] NSWCA 7 Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112; (2014) 242 IR 318 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; [1965] HCA 27 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22 Rajah Tasadduq Rasul Khan v Manik Chand (1902) LR 30 Ind App 35 Re Minister for Immigration and First Respondent Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 Santos Ltd v Saunders (1988) 49 SASR 556 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Singapore Airlines Cargo Pte Ltd v Principle International Pty Ltd [2017] NSWCA 216; (2017) 323 FLR 447 Smith v Minister for Immigration & Ethnic Affairs & Commonwealth (1984) 53 ALR 551 Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 Swift v SAS Trustee Corporation [2010] NSWCA 182 The Queen v Marks; ex parte Australian Building Construction Employees Builders' Labourers' Federation (1981) 147 CLR 471; [1981] HCA 33 Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537; [2015] FCAFC 35 Wattie v Industrial Relations Secretary [2018] NSWCA 5 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 Texts Cited: Corrective Services NSW Guide to Conduct and Ethics Corrective Services NSW Guide to Conduct and Ethics, 2010 Edition Corrective Services NSW Operations Procedures Manual, Using Force on Inmates Policy Crown Employees (Correctional Officers, Department of Attorney General and Justice - Corrective Services) Award 2012 Crown Employees (Correctional Officers, Department of Attorney General and Justice - Corrective Services) Award 2012 Government Sector Employment (General) Rules 2014 (NSW) Category: Principal judgment Parties: Jason Wattie (Appellant) Industrial Relations Secretary on behalf of the Department of Justice (Respondent) Representation: Counsel: A Moses SC and M Gibian (Appellant) P Menzies QC and A Douglas-Baker (Respondent)

Solicitors: McNally Jones Staff Lawyers (Appellant) Crown Solicitor's Office (Respondent) File Number(s): 2017/384914 Publication restriction: No Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2017] NSWSC 1662 Date of Decision: 30 November 2017 Before: Adamson J File Number(s): 2017/148155

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the Judgment] The appellant, Jason Wattie, a Senior Correctional Officer with Corrective Services NSW (CSNSW), was dismissed from his employment on 13 May 2016 as a result of assaults he committed against three prison inmates. Prior to his dismissal Mr Wattie had pleaded guilty to two charges of common assault (s 61, Crimes Act 1990 (NSW)) and one charge of assault occasioning bodily harm (s 59, Crimes Act) in relation to the three incidents. Ultimately no convictions were recorded in respect of any of the charges, but Mr Wattie was required to enter good behaviour bonds. Mr Wattie brought proceedings in the Industrial Relations Commission on 3 June 2016 against his nominal employer, the Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (Secretary), seeking an order pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (IR Act) reinstating him to his employment on the basis that his dismissal, although neither unreasonable or unjust, was harsh. He was successful in that application before Commissioner Murphy, who ordered that he be reinstated to the position he held with CSNSW immediately before his dismissal. Given that his dismissal was based on what the Commissioner described as "inexcusable misconduct", he declined to order that Mr Wattie receive any back pay for the period from the time of his dismissal until the date the reinstatement order took effect. Section 88 of the IR Act provided that in considering an unfair dismissal claim, the Commission may take into account a number of specified matters and "such other matters as the Commission considers relevant". The Secretary was unsuccessful on 28 February 2017 in proceedings taken before the Full Bench of the IRC seeking leave to appeal against the reinstatement order. By summons seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW), the Secretary challenged the Commissioner's decision to reinstate Mr Wattie's employment and, too, the Full Bench's decision refusing to grant leave to appeal. The primary judge held that the Commissioner's decision was vitiated by jurisdictional error in that he had failed to take into account mandatory relevant considerations (described by her Honour as "the regulatory context") and "reached a conclusion which was erroneous because it lacked an essential integer: an assessment of the seriousness of [Mr Wattie's] misconduct which required consideration of the regulatory context." The mandatory relevant considerations were identified as cl 131 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (CASR) and section 13.7 of the CSNSW Operations Procedure Manual (OPM), dealing with Using Force on Inmates. Her Honour also held that the Commissioner's jurisdictional error made out jurisdictional error in the Full Bench's refusal to grant leave to appeal. Mr Wattie sought leave to appeal, and to appeal from that decision. The principal issues on appeal were whether the primary judge erred in: (i) holding that cl 131 of CASR and section 13.7 of the OPM constituted mandatory relevant considerations; (ii) finding that the Commissioner failed to consider that regulatory context having regard to the conduct of the Secretary's case before the Commissioner; (iii) setting aside the decision of the Full Bench of the Commission without separately finding jurisdictional error in its determination of the leave application. Held, per curium, granting leave to appeal and allowing the appeal with costs: As to issue (i), per McColl JA and Emmett AJA (Macfarlan JA agreeing) (1) Where a statute confers an unconfined discretion on a decision-maker, the question whether the decision-maker is required to take specific considerations into account is determined by implication from the subject matter, scope and purpose of the Act: [134] - [135], [223]. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied. (2) The primary judge did not err in holding that cl 131 of the CASR and section 13.7 of the OPM were mandatory relevant considerations: [146] - [148], [226]. As to issue (ii), per McColl JA and Emmett AJA (Macfarlan JA agreeing) (1) Administrative decisions should not be studied "too finely or precisely with an eye keenly attuned to the perception of error"; it has to be apparent that there has been "an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration"; it is also not necessary that a decision-maker mention every fact or argument relied on by a losing party or expose every step in the chain of reasoning that leads to the conclusion: [153] - [154]; [227]. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6; Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 applied. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30; Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1; [2017] NSWCA 54 referred to. (2) It was apparent from the Commissioner's reasons read fairly and as a whole that he had considered the significance of cl 131 of the CASR and the Using Force against Inmates policy: [160] - [167], [228] - [230]. Per Emmett AJA (Macfarlan JA agreeing) (3) In circumstances where the relevant material that is said to constitute "the regulatory context" was, at best, mentioned in passing before the Commissioner, it cannot be said that he fell into jurisdictional error by failure to refer in terms expressly to that context: [231]. As to issue (iii), per McColl JA (Macfarlan JA agreeing) (1) Once the primary judge found the Commissioner's reasons were affected by jurisdictional error, it had to be quashed pursuant to the Court's power pursuant to s 69 of the Supreme Court Act to grant relief in the nature of certiorari quashing that decision. Once the Commissioner's decision was void ab initio, the Full Bench decision had to suffer the same fate: [185]. Kirk v Industrial Relations Court of NSW (2010) 239 CLR 531; [2010] HCA 1 applied.

Primary judgment

The sole ground on which jurisdictional error was alleged by the Secretary before the primary judge was that the Commissioner was obliged, but failed, to take into account the statutory framework and instruments germane to Mr Wattie's employment in his determination that Mr Wattie's dismissal was, though neither unreasonable nor unjust, harsh. [60]
Before the primary judge, the Secretary complained that the Commissioner, and, accordingly the Full Bench of the IRC, erred in failing to take into consideration what was described in the further amended judicial review summons (judicial review summons) as "the statutory scheme" pursuant to which Mr Wattie was employed. That scheme was identified, in short, as being: 1. sections 6(a), 7 and 69 of the GSEA; [61] 2. clause 131 (Use of force in dealing with inmates) of the CASR; 3. section 13.7 of the Using Force on Inmates policy in the OPM; 4. clause 24 of the Award; [62] and 5. the Guide.
There was an issue both before the primary judge, and in this Court, as to whether the Secretary's case concerning mandatory relevant considerations comprised in the "statutory scheme" had been advanced before the Commission and on the leave application to the Full Bench.
It was uncontroversial that before the Commissioner, the Secretary had tendered all the documents said to constitute the "statutory scheme". However, Mr Wattie contended that most of the provisions or policies were not referred to or relied upon by the Secretary in deciding to terminate his employment, nor referred to in submissions before the Commissioner.
The primary judge concluded that the Secretary "sufficiently raised" before the Commissioner and the Full Bench the matters raised before her. [63] Insofar as the conduct of the case before the Commissioner was concerned, this was because the importance of cl 131 of the CASR and the Using Force on Inmates policy ought to have been apparent to the Commissioner, and cl 131 "was included in the tender of a slim bundle of regulatory material", the Using Force on Inmates policy was "separately tendered and was specifically referred to in the correspondence" between the Secretary and Mr Wattie, which was extracted in the Commissioner's reasons at [47]. [64]
The primary judge held that if the Secretary established jurisdictional error in the Commissioner's decision that would also establish jurisdictional error in the Full Bench's refusal of leave, as the Full Bench would have had no jurisdiction to refuse leave to appeal if the Commissioner's decision was affected by jurisdictional error. [65]
The primary judge next held that any mandatory relevant consideration must arise by necessary implication, having regard to the regulatory and policy context, given that the Secretary did not submit that there was any express requirement that the Commissioner consider the relevant statutory context (including applicable legislation, subordinate legislation and policy documents) before deciding whether Mr Wattie's dismissal was harsh, unjust or unreasonable. [66]
The primary judge first set out the details of the documents the Secretary described as the "statutory scheme" in the judicial review summons. [67] In addition, her Honour referred to cl 251 of the CASR. Although not referred to in the judicial review summons, cl 251 was referred to in Assistant Commissioner Wilson's correspondence with Mr Wattie.
The primary judge recognised that although s 88 of the IR Act did not mandate that the Commissioner have regard to any particular consideration, such an obligation could be derived by necessary implication from the legislative context.
The primary judge next referred to Byrne v Australian Airlines Ltd [68] where McHugh and Gummow JJ discussed the concept of a termination of employment which was harsh, unjust or unreasonable, or a combination of the three. The passage to which her Honour referred was applied in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury, in which the Court of Appeal held that the Full Bench of the IRC had committed jurisdictional error by "failing to undertake the 'essential task' of identifying the element of misconduct, assess[ing] its seriousness and weigh[ing] that against the consequences of the proposed dismissal." [69]
In her Honour's view, the Commissioner made an error of the same character as that made by the Full Bench in PSA. [70]
The primary judge then said: "56 While there may be other occupations to which the regulatory context is largely irrelevant, the same cannot be said for the employment of correctional officers. The State is responsible for every inmate, having either, through its enforcement arm (the police force), arrested and taken an accused person into custody, or through its judicial arm, imposed a sentence, or refused bail. Correctional officers are centrally engaged in the obligations of the State to safeguard all persons who are in custody, either on remand following refusal of bail, or not having applied for bail, awaiting a criminal hearing, or who are serving a custodial sentence imposed by a court. When a correctional officer assaults a prisoner, he or she is doing so in the exercise of the actual or ostensible authority conferred by the State on correctional officers who are its agents, even where, as here, the assault falls outside the warranty of authority because it is in breach of the Using Force on Inmates policy. 57 Clause 131 of the Crimes (Administration of Sentences) Regulation is plainly intended to ensure that correctional officers do not use force against inmates except in certain defined circumstances. Section 13.7 of the CSNSW Operations Procedures Manual, Using Force on Inmates Policy, is designed to implement cl 131. As a consequence of the relationship between the State and those it detains in custody, the State owes a duty to exercise reasonable care for the safety of inmates during the period of their detention: Howard v Jarvis (1958) 98 CLR 177 at 183; [1958] HCA 19. Where a prison officer has been found guilty of assault under the general law and has thereby breached cl 24 of the award and the Code of Conduct incorporated in it, and cl 131 of the Crimes (Administration of Sentences) Regulation (and the associated policy), the State may, by exposing inmates to the defendant (by permitting him to remain employed as a correctional officer), be putting itself in breach of that duty. 58 The importance of cl 131 of the Crimes (Administration of Sentences) Regulation and the Using Force on Inmates Policy ought to have been apparent to the Commissioner. Clause 131 was included in the tender of a slim bundle of regulatory material. The Using Force on Inmates policy was separately tendered and was specifically referred to in the correspondence between the plaintiff and the defendant that was in evidence, including the letter of 11 September 2015 from the Assistant Commissioner to the defendant in which detailed allegations of misconduct were set out. This letter was extracted in the IRC Commissioner's reasons at [47]. As referred to above, I reject the defendant's submission that the regulatory context was not sufficiently raised by the plaintiff in the IRC. 59 Having regard to the central relevance of the regulatory context to the question whether the dismissal was harsh, it was, in my view, a condition of the valid exercise of the Commissioner's power that he consider that context. Although that requirement was not explicitly stated in the IR Act, it was central to the Commissioner's task of deciding whether dismissal was relevantly harsh and, if so, what remedy would be appropriate. Any purported exercise by the Commissioner of the powers under s 89 of the IR Act in which he did not have regard to the regulatory context could not, in my view, be a bona fide attempt to exercise the power. In the present case, I am persuaded that the task of assessing the seriousness of the misconduct (which formed part of the 'essential task' which the Commissioner was obliged to undertake in deciding whether the dismissal was unjust) required the regulatory context to be taken into account since it was only within that context that the seriousness of the defendant's misconduct as a correctional officer could be assessed." [Emphasis in original.]
Her Honour then turned to consider whether the Commissioner had taken the regulatory context into account. Her Honour recognised that the weight to be given to mandatory relevant considerations was a matter for the Commissioner, but observed that "where a decision-maker has failed to give any consideration to such a matter, the decision has not been made in accordance with law." [71]
Before her Honour, Mr Wattie submitted the Commissioner had addressed the regulatory context by reproducing the allegations of misconduct made in the letter of 11 September 2015 (at [47] of the reasons); referring to the reasons given by Assistant Commissioner Wilson for dismissing the defendant in his letter of 5 May 2016 (at [57] of his reasons), saying, at [78] of his reasons, that "[a]ssaults on inmates in correctional centres by correctional officers cannot be condoned or tolerated, even in cases where there is significant provocation"; and by referring to the "relevant CSNSW policies" in [101] of the reasons. [72]
Her Honour held that, although the Commissioner was not required to address in terms each of the statutory provisions or policy material relevant to the obligations of correctional officers towards inmates, he was required to consider the substance of the statutory provisions and policy material relevant to those obligations and demonstrate by his reasons that he had done so. In the present context, when addressing the seriousness of the misconduct, that obliged the Commissioner to address the express prohibitions on the use of force against inmates and the mandatory obligations to report such use of force, however minor. [73]
The primary judge accepted that the Commissioner had reproduced extracts of the correspondence in which the Secretary set out the allegations against Mr Wattie (which contained references to the regulatory context and the Using Force on Inmates policy) and the Secretary's reasons for dismissing Mr Wattie. However, in her Honour's view: "63 … [T]he Commissioner's reasons do not reveal that he addressed the regulatory context. Consideration of the substance of the regulatory context required consideration of the circumstance that use of force by a correctional officer against an inmate, which amounted to criminal assault on not one but three separate occasions, was antithetical to that context and to the integrity of the criminal justice system. It constituted an abuse of the power of the State by the defendant who, as one of its correctional officers, was acting as its agent. I do not regard the Commissioner's general observation in [78] that assaults on inmates in correctional centres by correctional officers cannot be condoned or tolerated as sufficient to indicate that he gave any consideration to the regulatory context. Indeed, one could substitute almost any job title for 'correctional officers' (including bouncers) and any workplace for "correctional centres" (including licensed premises) and any class of victims for "inmates" (including clients) and the sentence would remain true. The reference to the 'relevant CSNSW policies' in [101] was insufficient to demonstrate that they had been taken into account." [Emphasis added.]
The primary judge concluded that the Commissioner's reasons warranted an inference that he failed to take into account the regulatory context since the "scant reference to such matters [was] almost exclusively confined to quotations from the [Secretary's] correspondence." Her Honour repeated that she regarded the passages in his reasons (at [78] and [101]) on which Mr Wattie relied as "too general for an inference to be drawn" that he actually considered the "regulatory context". [74]
The primary judge recognised that unfair dismissal cases were "the particular province of" the IRC, and that, accordingly, decisions in such cases by the Commission and the Full Bench were "not readily susceptible to narrow challenges on the grounds of 'jurisdictional error'." Rather, the "[t]he task [was] to examine whether the tribunal misconceived its role or otherwise failed to exercise its jurisdiction so that its decision should not be seen as a true exercise of the power committed to it at all." [75]
Adopting that approach, the primary judge held: "69 In the present case, the Commissioner ignored relevant material (the regulatory context) and reached a conclusion which was erroneous because it lacked an essential integer: an assessment of the seriousness of the misconduct which required consideration of the regulatory context. I am satisfied that this amounted to a jurisdictional error since it centrally affected the task which the Commissioner was required to undertake in determining [Mr Wattie's] application under s 84 of the IR Act. In these circumstances the Commissioner's decision ought not [to] be seen as a true exercise of the power to determine whether the dismissal was, relevantly, harsh, and, if so, what relief ought [to] be granted. I have arrived at my conclusion by the application of the principles to which I have referred. However, it is also significant that jurisdictional error was found by the Court of Appeal in the PSA Case, in circumstances which do not appear to me to be materially different from the present case." [Emphasis added.]
Accordingly, the primary judge set aside the decisions of the Commissioner and the Full Bench and ordered Mr Wattie to pay the Secretary's costs. Her Honour remitted Mr Wattie's application under s 84 of the IR Act to the IRC to be determined according to law. [76]

(2000) 111 LGERA 181

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