(2004) 220 CLR 1
Commissioner of Police (NSW) v Cottle [2022] HCA 7
Source
Original judgment source is linked above.
Catchwords
(1932) 47 CLR 1
Attorney-General (Cth) v Oates [1999] HCA 35(2012) 248 CLR 1
Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22(2005) 221 CLR 539
Coleman v Power [2004] HCA 39(2004) 220 CLR 1
Commissioner of Police (NSW) v Cottle [2022] HCA 7(2022) 96 ALJR 304
Commissioner of Police (NSW) v Eaton [2013] HCA 2(2013) 253 CLR 1
Commissioner of Police v Industrial Relations Commission of New South Wales [2012] NSWCA 439(2012) 84 NSWLR 501
CSR Limited v Eddy [2005] HCA 64(2005) 226 CLR 1
Elazac Pty Ltd v Commissioner of Patents (1994) 53 FCR 86
Great Fingall Consolidated Ltd v Sheehan [1905] HCA 43(1985) 157 CLR 290
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50(2006) 228 CLR 566
Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCAFC 91(2023) 298 FCR 57
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29(2020) 271 CLR 495
NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35(2012) 251 CLR 1
R v Australian Broadcasting TribunalEx parte 2HD Pty Ltd [1979] HCA 62
(1979) 144 CLR 45
SAS Trustee Corporation v Miles [2018] HCA 55
(2018) 265 CLR 137
Searle v Commonwealth of Australia [2019] NSWCA 127
Judgment (15 paragraphs)
[1]
72
Mercantile Mutual Life Insurance Co v Australian Securities Commission (1993) 40 FCR 409
Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566
Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCAFC 91; (2023) 298 FCR 57
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 271 CLR 495
NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277
PIPE Networks Pty Ltd v Commonwealth Superannuation Corporation (2013) 212 FCR 542
Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45
SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137
Searle v Commonwealth of Australia [2019] NSWCA 127; (2019) 100 NSWLR 55
Texts Cited: DC Pearce, Statutory Interpretation in Australia (LexisNexis, 10th edn, 2024)
Minister Pickering, NSW Legislative Council, 2 May 1990, Hansard
P Herzfeld and T Prince, Interpretation (Lawbook, 2nd edn, 2020)
Category: Principal judgment
Parties: Donna White (Plaintiff)
[2]
Commissioner of Police, NSW Police Force (Defendant)
Representation: Counsel:
[3]
M Gibian SC (Plaintiff)
J Darams SC with M Watts (Defendant)
[4]
Police Association of New South Wales (Plaintiff)
Makinson d'Apice Lawyers (Defendant)
File Number(s): 2023/327721
Publication restriction: Nil
[5]
Judgment
This case raises somewhat complex questions about the powers of the Commissioner of Police to reinstate a worker who had earlier been medically retired. Ms White, the plaintiff, was a Detective Senior Constable of the New South Wales Police Force before she was medically discharged with effect from 15 April 2019. Following treatment for her injury she sought to be reinstated under Pt 8 of the Workers Compensation Act 1987 (NSW) (WC Act). In February 2022 Ms White and the Commissioner, who is the defendant, agreed by deed that Ms White would be "reinstated" as a Detective Senior Constable (Deed). The Deed contains terms stating that if Ms White failed to complete certain training within 12 months of her reinstatement then she could be dismissed under s 80 of the Police Act 1990 (NSW). After her reinstatement Ms White suffered a further workplace injury and was unable to work. A delegate of the Commissioner then came to the view that Ms White had not completed the mandatory training in time and, on 19 July 2023, made an order purporting to dismiss Ms White pursuant to s 80(3) of the Police Act (Dismissal Order).
Ms White seeks judicial review of the Dismissal Order, which she says was invalidly made. It was not in dispute that any decision of the Commissioner in relation to the appointment, dismissal and reinstatement of police officers must be founded on a statutory source of power. Section 80 of the Police Act authorises the Commissioner to appoint persons as police officers of the rank of constable, who when "first appointed" as such are to be appointed on probation in accordance with the regulations. It also authorises the Commissioner to dismiss any "such probationary police officer" at any time and without giving any reason. The Commissioner submitted that s 80 supplied the legal foundation for the Dismissal Order. Ms White argued that it did not. The Commissioner did not submit that the Dismissal Order could be supported by any other provision.
The following issues arise:
1. When dismissed, was Ms White a probationary police officer to whom s 80 applied, or was she not such a person because she had been reinstated under s 64 of the Police Act, or pursuant to a power implied by ss 241-243 of the WC Act, rather than appointed under s 80 of the Police Act?
2. If Ms White was reinstated under s 80(1) of the Police Act, was she a "probationary police officer", given her history of employment with the Police Force and the circumstances of her reinstatement? Two sub-issues arise in this respect:
1. whether Ms White was "first appointed as such a police officer" within the meaning of s 80(2) when she was reinstated; and
2. if so, whether the period of probation had implicitly been waived pursuant to cl 13(2) of the Police Regulation 2015 (NSW) (Regulation).
[6]
Facts
There was no dispute about the facts. One affidavit, of Ms White, was read. She was not cross-examined.
Ms White was appointed as a Constable of Police on probation in the Police Force in 2003. Upon passing her probation she was confirmed as a police officer in April 2004. She was promoted to the grade of Senior Constable in 2009, and around July 2009 she was designated a Detective and appointed to the position of Forensic Investigator within the Forensic Evidence and Technical Services area (FETS).
In 2015 Ms White went off work due to a work-related psychological injury. The Commissioner accepted the injury to be compensable under the WC Act. As a result of her ongoing incapacity arising from that injury to carry out her responsibilities, a decision was made in November 2018 on behalf of the Commissioner to medically retire Ms White pursuant to s 94B of the Police Act. Her final day of service was 15 April 2019. Section 94B authorises such decisions where "the person is found on medical grounds to be unfit to perform or incapable of discharging the duties of the person's position", and the person's unfitness or incapacity appears likely to be of a permanent nature and has not arisen from actual misconduct on the part of the person or from causes within the person's control.
Ms White continued to obtain treatment for her injury and was ultimately assessed by her treating practitioners to be fit to return to her pre-injury employment. On 30 October 2020 she applied under s 241 of the WC Act seeking "reinstatement" to "a Highway Patrol Constable position around the Goulburn area" (ss 241-243 of the WC Act are set out below at [55]). There were some interactions between Ms White and the Police Force but she was not reinstated as she requested.
On 8 October 2021 Ms White filed an application in the Industrial Relations Commission of New South Wales (IRC) seeking an order for her reinstatement under s 242 of the WC Act.
Before her application proceeded to hearing in the IRC the parties entered the Deed in February 2022. The Deed noted that: the Police Association had filed an application in the IRC seeking, on Ms White's behalf, her reinstatement under s 242 of the WC Act (recital H); the parties "had settlement discussions both during and outside of conciliations conducted by the NSW IRC" (recital I); and Ms White and the Commissioner "agreed to settle, on a without admissions basis, and the terms set out in this Deed, the Application and any other claims Ms White may have in respect of the Application" (recital J). Clause 1 of the Deed provided that Ms White was to attend an independent medical assessment, and if the medical report concluded that she was fit to be reinstated then cl 2 of the Deed came into operation. Ms White did attend that assessment, was found to be fit, and cl 2 did then come into operation.
[7]
Statutory basis for Ms White's reinstatement
The Commissioner has three powers available to dismiss a non-executive police officer: note Cottle at [11]. The first is the power in s 80(3) to dismiss any probationary police officer. The second is the power to order a medical retirement pursuant to s 94B of the Police Act (previously found in s 72A, as discussed in Cottle). The third is in s 181D of the Police Act, being a power to remove an officer if "the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct". The only legal foundation that the Commissioner relied upon as the basis for the Dismissal Order here was the first, under s 80(3). The Commissioner did not suggest that the Dismissal Order could be supported by one of the other powers.
The majority of the High Court held in Eaton that officers dismissed under s 80(3) do not have a right of merits review in the IRC under Pt 6 of Ch 2 of the Industrial Relations Act 1996 (NSW) (IR Act). In contrast, non-executive police officers dismissed under one of the other two powers do have review rights in the IRC: see Cottle. Section 80(3) is "an unfettered power": Eaton at [90]. The joint judgment in Eaton explained part of the context for that conclusion as follows:
[73] … A probationary constable is seeking to achieve confirmation. During this period, the probationary constable's conduct is monitored and subject to report, so that the Commissioner may determine whether the person is suitable for the role of a police officer within the NSW Police Force. The position of a probationary constable may be contrasted with that of a police officer who has achieved confirmation and whose history in the Police Force may need to be taken into account by way of review of a dismissal.
Section 80 of the Police Act provided as follows at all material times:
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.
[8]
Section 64 of the Police Act
Section 64 was not raised by either party in their written submissions. It was raised for the first time by me, by way of an email sent to the parties by my associate on the afternoon before the hearing which asked the parties to address on it. At the hearing the legal representatives of the Commissioner made some submissions, on instructions, which sought to give a very limited construction to s 64. The surprising submission put on her behalf was that the only power she had to appoint any new police officer below the rank of NSW Police Force senior executives was to appoint them as a constable pursuant to s 80, and that she was incapable of appointing someone not currently employed in the Force as a sergeant, inspector or superintendent. As I doubted whether that position was a considered one, I granted the Commissioner leave to file and serve a further short written submission within 7 days addressing issues connected to the construction of s 64, with Ms White having an opportunity to file a submission in reply. Both parties provided supplementary submissions.
The Commissioner's position on s 64 then shifted. She withdrew her submission that s 64(1) cannot be a source of power to appoint persons external to the NSW Police Force to police officer positions at the rank of sergeant or above. She maintained that the power could not have supported Ms White's reinstatement because it did not apply to appointment of persons external to the NSW Police Force as constables. It is useful to address both variants of the Commissioner's argument, because addressing the first argument throws light upon the second.
By way of context, the statutory scheme distinguishes three key concepts relating to the status of police officers: rank, grade and position. Pursuant to s 12(1) of the Police Act there are six identified ranks being, in descending order: Commissioner; NSW Police Force senior executive (for which the Commissioner may specify different ranks - s 12(2)); superintendent; inspector; sergeant; constable.
Within the latter four ranks, the regulations may specify grades: s 12(3). The following additional grades have been specified in cl 5(1) of the Regulation: chief superintendent, chief inspector, senior sergeant, and senior constable. Clause 5(2) of the Regulation states that a police officer of any rank may, on satisfying specified requirements, be "designated" as a "detective".
[9]
Sections 241-243 of the WC Act
Lest I am wrong about whether or not s 64 was an available source of power to appoint Ms White, it is appropriate to consider another asserted source of power, being an implicit grant of power manifest in ss 241-243 of the WC Act. Those provisions are within Pt 8 of the WC Act, which is entitled "Protection of injured workers from dismissal". The Commissioner accepted that the provisions in this Part apply to police officers. Section 6(1) of the WC Act provides that it binds the Crown. Section 3(5) provides that the Crown "shall, for the purposes of this Act, be treated as the employer of members of the Police Force". That provision may be directed to addressing the fact that at common law police officers are not employees but independent office holders: note Cottle at [9]; and see similarly s 85 of the Police Act. Section 3(5) of the WC Act does not state that the Crown is the employer of police officers, just that it is to be treated as such.
At all material times ss 241-243 relevantly provided as follows:
241 Application to employer for reinstatement of dismissed injured worker (cf IR Act, s 92)
(1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application.
(2) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury.
(3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement.
242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (cf IR Act, s 93)
(1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order.
(2) An industrial organisation of employees may make the application on behalf of the worker.
(3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed.
243 Order by Industrial Relations Commission for reinstatement (cf IR Act, s 94)
(1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order.
(2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment.
(3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being -
(a) employment of a kind that is available but that is less advantageous to the worker, or
(b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation).
(4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.
[10]
Can the decision to reinstate Ms White be characterised as made under s 80(1)?
There were, thus, powers other than that under s 80(1) of the Police Act available to support the reinstatement of Ms White, being s 64(1) of the Police Act and/or a power implied in ss 241-243 of the WC Act. The availability of one power to make a decision does not, of itself, exclude the availability of another. It may have been open to the Commissioner to appoint Ms White as a probationary constable pursuant to s 80(1) of the Police Act. The question is whether there is reason to conclude that s 80(1) was not the source of the power that was exercised when the Commissioner agreed to reinstate Ms White in the Deed.
In Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1, four members of the High Court said the following (at [34], citation omitted):
A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v Director of Public Prosecutions (ACT):
"If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power."
As is implicit in this quotation, the issue tends to arise where a decision-maker has relied on one power to make a decision which turns out not to have been available but where an alternative source of power was available. It follows from this line of authority that the intent of the decision-maker to rely on one power or another is not determinative. Here, in any event, it is not apparent what power the Commissioner's representative considered she was acting under when agreeing to reinstate Ms White. Section 80 was obviously one possible source given that it is referred to in the Deed. The issue here is whether the decision to reinstate should be characterised as having been taken pursuant to s 80(1) in circumstances where an important consequence of exercising that power - the potential for subsequent dismissal without cause pursuant to s 80(3) - depends upon whether or not it was that power which was employed.
[11]
Was Ms White a probationary police officer?
For abundance of caution I will now consider the position in case that, despite the above conclusions, the Commissioner was not able to exercise powers to reinstate Ms White under either or both s 64(1) of the Police Act or the reinstatement power implied by ss 241-243 of the WC Act, and was exercising her power under s 80(1) of the Police Act in reinstating Ms White.
As explained above at [20]-[21], under s 80(2) if a police officer appointed under s 80(1) is "first appointed" as a police constable then they are to be appointed on probation in accordance with the regulations. Section 80(3) empowers the Commissioner to dismiss "any such probationary police officer" at any time and without giving any reason. Ms White relevantly submitted that s 80(3) of the Police Act did not apply to her because first, she was not "first appointed" as a police constable and therefore could not have been appointed on probation and, secondly, in any event the Commissioner had waived any period of probation in accordance with the regulations.
[12]
First appointed
It is not disputed that Ms White was appointed as a police constable for the first time in 2003 on probation, when she took an oath as obliged by s 13 of the Police Act. She was not asked to and did not take a further oath upon her reinstatement in March 2022. The parties differ in their construction of the phrase "first appointed" under s 80(2).
Ms White argued for the suggested "literal meaning" that a person is first appointed as a police officer of the rank of constable if they have never before been appointed as such a police officer. On this construction, Ms White, having been appointed as a constable before, could not have been "first appointed" upon reinstatement. In the alternative, she argued that, reading s 80(2) together with ss 241-243 of the WC Act, at the very least a person who is "reinstated" in the context of an application or order under ss 241-3 of the WC Act is not being "first appointed" under s 80(2), given being reinstated means being put back in place.
In contrast, the Commissioner argued that "the reference to 'first appointed' is to be understood as a reference to the appointment at the rank of Constable within a separate identifiable period of appointment as a police officer". It was said that each time a person is appointed to the NSW Police Force as a constable they are "first appointed", regardless of whether or not they have previously served in the Force. Thus someone such as Ms White who had previously been appointed to the rank of constable, left the Force and then returned was "first appointed" for the purposes of s 80 from the re-commencement of their service.
Both sides sought to rely on the rationale of requiring probation, being to set a period during which a new starter may be assessed prior to confirmation: note Eaton at [16] and [73].
Both preferred positions have the virtues of simplicity and certainty: "first appointed" would either mean never appointed before, or function to set the start time of each particular appointment. Achieving simplicity and certainty of operation is something to which statutory drafters may be taken to aspire: note Lee v R [2023] NSWCCA 203 at [77]-[80]. But those values do little to favour one or the other of the two primary constructions here.
Moreover, the virtues of simplicity and certainty come here at the cost of flexibility. Neither construction sits entirely comfortably with the purpose of the requirement. Realistic examples can be given which illustrate the point. Take the instance of a person who is appointed on probation under s 80(1) but leaves the Force prior to confirmation for personal reasons, then seeks to rejoin, perhaps many years down the track. On Ms White's literal construction such a person could not be appointed on probation, even though they had not finished their probation period when earlier employed. Conversely, it does not seem reasonable that an experienced senior constable (say) should, upon return after a short break, necessarily be required to go on probation, unless the requirement was waived under cl 13 of the Regulation. That point would be even stronger if, contrary to the view I have reached above, such officers could only be appointed pursuant to s 80 of the Police Act and not under s 64.
[13]
Waiver of probation
Ms White submitted in the further alternative that even if she was reinstated under s 80(1), and even if she could be regarded as "first appointed" under s 80(2), she was not a "probationary police officer" within the meaning of s 80(3) because any period of probation had been waived in accordance with cl 13(2) of the Regulation. It was argued that this waiver occurred by implication from the terms of the Deed.
Clause 13(1) of the Regulation provides that when a person is first appointed as a constable they are to be appointed on probation for a period of one year, or for such longer or shorter period (being not less than six months) as the Commissioner may direct. Clause 13(2) than provides that despite sub-cl (1), "the Commissioner may direct that the period of probation be less than 6 months, or may waive the period of probation completely, if the person has previously served as a police officer in the NSW Police Force or in any other police service or police force (however called)" (emphasis added). This power could apply because Ms White had previously served as a police officer in the NSW Police Force. If the period of probation is waived completely on appointment then, by implication, the person is not appointed as a probationary police officer. There is no need then for a further decision confirming their appointment in the rank of constable pursuant to cl 14 of the Regulation.
There is no reason to think that the power of waiver could not be exercised by way of a decision which was evident even if not stated in terms. Here, by agreeing that Ms White be "reinstated" to her former position as Detective Senior Constable at FETS without restriction, the Commissioner could only be regarded as having impliedly waived any period of probation under cl 13(2). That is so for essentially the same reasons as are set out above at [80]-[83]. Again, I consider the case for that conclusion to be overwhelming. If I am incorrect in thinking that no confirmation was needed pursuant to cl 14, then I would also reach the conclusion that there was a simultaneous implied decision to confirm her appointment for the same reasons.
That being so, Ms White was not a probationary police officer at the time that the Dismissal Order was made. The power in s 80(3) would thus not have been available to support the order.
[14]
Conclusion
I have reached the following conclusions on the various issues of construction raised:
1. The unfettered power of dismissal in s 80(3) only applies in relation to probationary police officers, being persons "first appointed" as a constable (within the meaning of s 80(2)) under s 80(1) on a probationary basis in accordance with the regulations.
2. Section 64(1) empowers the Commissioner to appoint non-executive police officers to particular positions, whether by internal transfer or promotion or otherwise, including by appointment of a person from outside the NSW Police Force. Such an appointment can be to any available position within the Force and may occur at any of the four relevant ranks, including constable (extending also to probationary constables), save only that the power is not available when constables are "first appointed" within the meaning of s 80(2). The only power to "first appoint" a constable is that found in s 80.
3. Sections 241-243 of the WC Act impliedly grant a power to State public sector employers to comply with an order by the IRC for reinstatement and, prior to any such order being made, to reinstate a worker who has applied for reinstatement pursuant to s 241 in the same kind of way as the IRC could order pursuant to s 243.
4. Whether an officer is "first appointed" for the purposes of s 80(2) is a matter of characterisation in all the circumstances. That term does not refer simply to the starting point of an appointment as a constable (as put by the Commissioner) nor to whenever the person had first been appointed as a constable at some stage (being the primary submission of Ms White).
Applying that understanding of the relevant provisions, Ms White has established that the Dismissal Order was not authorised by s 80(3) of the Police Act, being the only power that the Commissioner sought to rely upon. That power could not apply for three reasons. First, Ms White was not reinstated pursuant to s 80(1). There were other powers available, and relevant factors point overwhelmingly to the conclusion that that power cannot be characterised as the source of the decision. Secondly, she was not "first appointed" as a constable within the meaning of s 80(2). That conclusion necessarily follows from my conclusion that s 64(1) was available as a source of power to appoint her. But even if that power was not available, the power implied in ss 241-243 of the WC Act would still have been available and her appointment could not be characterised as a first appointment. Thirdly, even if she had been appointed pursuant to s 80(1), and should be regarded as having been "first appointed", any probation period was waived by implication by the terms of the Deed. For these reasons the Dismissal Order is invalid.
[15]
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 March 2024
I will address the identified issues in turn, after first setting out the context in which they arise. My conclusions are summarised below at [115]-[116]. As will appear, in my view Ms White was not reinstated under s 80(1) of the Police Act; she was not in any event "first appointed" as such for the purposes of s 80(2); and even if she had been, the requirement for probation was waived by implication in her case. For each of those reasons the Dismissal Order was invalid and should be quashed.
It is appropriate to note at the outset that the Police Act is a relatively longstanding Act which has been amended many times. In some respects its drafting is neither pellucid nor entirely consistent. The issues are further complicated by the interaction between that Act and the provisions of the WC Act. This fact brings into play the principle that two statutes of a jurisdiction which share a field of operation should be construed in a way that best achieves a harmonious result: Commissioner of Police (NSW) v Eaton [2013] HCA 2; (2013) 253 CLR 1 at [78]; Commissioner of Police (NSW) v Cottle [2022] HCA 7; (2022) 96 ALJR 304 at [23]. More generally, where "the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies": SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137 at [20] per Kiefel CJ, Bell and Nettle JJ, see also Gageler J at [41]. That guidance is important when seeking to construe the various provisions at stake here in a way which is coherent and which reflects the presumptive intent of the Parliament that the scheme operate in a practical, sensible and efficacious way.
That clause relevantly provided as follows:
(a) Ms White will be reinstated to a position as Detective Senior Constable at FETS based out of Queanbeyan (Reinstatement) at the earliest available opportunity following the NSWPF's receipt of a Medical Assessment Report clearing Ms White to do so without any restrictions.
(b) Upon her Reinstatement to the NSWPF, the NSWPF will not require Ms White to complete the three-year tenure period ordinarily required of re-joinees. However, Ms White will be required to complete the Mandatory Training required of a General Duties police officer before she is eligible for a transfer from her position at FETS, subject to the provisions of clause 2(f) of this Deed. …
(d) Upon her Reinstatement (or upon paying Ms White in accordance with clause 2(c)(ii) of this Deed), the NSWPF will pay Ms White:
(i) at the grade and incremental level she was on at the time of her Medical Retirement; …
(e) Should Ms White be reinstated to the NSWPF, she must:
(i) file and serve a Notice of Discontinuance in the NSW IRC, discontinuing her Application, on the basis that each party bear their own costs, within three days of the date of her Reinstatement and return to work; and
(ii) undertake whatever training is mandatory for the performance of her role (Mandatory Training), which is indicated by (but will not necessarily be limited to) the Mandatory Training list contained at Annexure A to this Deed, whilst also noting that the Mandatory Training required of Ms White upon her Reinstatement may change from time to time, subject to the operational needs of the NSWPF and directions given by the Commissioner of the NSWPF.
(f) In the event the NSWPF has made available appropriate opportunities for Ms White to complete the Mandatory Training within 12 months of her Reinstatement, and Ms White fails to complete the Mandatory Training within 12 months of her Reinstatement for reasons other than reasons that are beyond her control, the NSWPF may dismiss Ms White under s 80 of the Police Act 1990 (Police Act). To be clear, Ms White will not be dismissed under s 80 of the Police Act for her failure to complete Mandatory Training if that failure is for reasons outside of her control …
(g) Should Ms White be the subject of any adverse findings within the 12-month period following her Reinstatement which do not arise from her failure to complete the Mandatory Training, she will otherwise enjoy the same rights as other police officers under Part 9 of the Police Act.
Ms White was reinstated in accordance with cl 2, commencing work in March 2022. She gave evidence that at no time following her reinstatement did anyone suggest to her that she was reinstated as a constable on probation. She was paid and worked in her previous position as a Detective Senior Constable within FETS, based in Queanbeyan. She was not required to swear another oath of office, having done so when first appointed as a Constable in 2003.
In May 2023 she suffered an injury to her neck and back whilst at work. She was certified as having no current work capacity for any employment. The Police Force has accepted that the injury was incurred on duty and she has been receiving worker's compensation payments.
In these circumstances it may have been open to the Commissioner to consider once again retiring Ms White on medical grounds pursuant to s 94B of the Police Act. That was not the course adopted. On 19 July 2023 Acting Assistant Commissioner (People & Capability Command) Greg Moore, acting as a delegate of the Commissioner, made the Dismissal Order purporting to dismiss Ms White from the NSW Police Force. The document was headed "Order under section 80(3) of the Police Act 1990". It stated as follows:
By way of background in March 2022, following your Industrial Relations Commission of NSW application, you were reinstated as a Senior Constable at FETS. Your reinstatement was subject to the terms and conditions of a Deed of Release dated 7 February 2022, including Mandatory Training requirements. These requirements have not been met.
In reaching my decision, I have carefully reviewed all the available evidence and in my capacity as delegate of the NSW Commissioner of Police, I have determined to dismiss you from the New South Wales Police Force pursuant to section 80(3) of the Police Act 1990.
Your dismissal takes effect from the date of this Order.
Ms White disputes the suggestion that she had not completed the mandatory training requirements specified in the Deed to the extent that it was reasonably possible to do so, and thus she did not accept that cl 2(f) of the Deed applied. It is not necessary to resolve that controversy here. Section 80 of the Police Act authorises dismissal without cause, as explained in Eaton. For that reason, as Ms White came to accept in submissions, even if she had not breached the Deed it would have been open to the Commissioner to dismiss her if s 80 applied. Whether or not it did apply is the matter in dispute. Ms White says s 80 could not apply in her case, despite the terms of the Deed. The Commissioner contends that it could.
The power granted by s 80(3) only applies to "any such probationary police officer". The word "such" indicates a reference back to s 80(2), which refers to a "person when first appointed as such a police officer" as having been "appointed on probation in accordance with the regulations". The language in s 80(2) of "first appointed as such a police officer" refers back in turn to s 80(1), as is evident from the words "such a police officer" and the echoing of the notion of appointment.
Thus the power in s 80(3) only applies in relation to probationary police officers, being persons first appointed as a constable under s 80(1) on a probationary basis in accordance with the regulations. It follows that if the operative power which authorised the reinstatement of Ms White was not s 80(1) but some other power then the power of dismissal in s 80(3) would not be available. Consistently with that understanding, the Commissioner contended that "the only source" of power available here was s 80. Her position was that Ms White, when reinstated, "was re-appointed to the NSW Police Force as a police officer on probation, and had not yet been confirmed".
The Deed does not identify in terms what power was sought to be invoked in reinstating Ms White. If the Commissioner was correct that the only available source of power to reinstate Ms White was s 80(1), then that would significantly advance the Commissioner's argument that s 80(3) was available to dismiss Ms White. However, if there was another source of power available, and if the better characterisation was that it was that source which had been exercised when Ms White was reinstated rather than s 80(1), then s 80(3) would not have been available. The issue of the source of power to reinstate Ms White is thus a matter of importance.
Two other possible sources of power were identified in the course of the hearing and relied upon by Ms White: s 64 of the Police Act, and a power implied by ss 241-243 of the WC Act.
The notion of "position" is not defined in the Police Act as regards police officers (an inclusive definition in s 3(1) concerns NSW Police Force senior executives or non-executive administrative employees). The term is not used with consistency in the Police Act but for the most part - with one notable exception - it means a particular role, that is, one comprised of "the particular duties the officer is allocated or instructed to perform at a particular time": Commissioner of Police v Industrial Relations Commission of New South Wales [2012] NSWCA 439; (2012) 84 NSWLR 501 (CoP v IRC) at [93] per Beazley JA; see also Tobias AJA at [111]-[115]. For example, positions may be designated for a sergeant stationed at the Kings Cross station, or for a senior constable in the Goulburn Highway Patrol, or the like.
The Commissioner is empowered to determine what positions exist under s 10:
10 Positions in NSW Police Force
(1) In addition to the position of Commissioner, the positions in the NSW Police Force consist of such positions as the Commissioner may determine in accordance with this Act.
(2) The Commissioner -
(a) may create, abolish or otherwise deal with any position in the NSW Police Force, and
(b) must classify and grade each such position.
(4) Police officers of the rank of constable (or such of those police officers as the Commissioner determines) are to be appointed to that rank or to a grade within that rank, and hold a position (but not a separate position) in the NSW Police Force. …
Under s 11 the Commissioner is required to "designate the positions in the NSW Police Force which are to be held by police officers", and a position is to be so designated if the holder will be required to carry out or will be concerned in operational police duties or if otherwise appropriate.
The notable exception about the meaning of "position" relates to constables. The Court of Appeal indicated in CoP v IRC that the effect of s 10(4) is "to declare that a person appointed to the rank of constable holds an unallocated 'position' in the NSW Police Force, albeit one which is not determined or designated by the Commissioner pursuant to s 10 and s 11 of the Police Act" (quoting Tobias AJA at [114]; see similarly Beazley JA at [94]-[95] and [99]).
Section 64 has provided as follows at all materials times:
64 Appointments to non-executive police officer positions
(1) An appointment (whether by way of transfer or promotion or otherwise) as a non-executive police officer is to be made by the Commissioner.
(2) It does not matter whether the person appointed is or is not already a member of the NSW Police Force.
(3) In particular, it does not matter whether the person appointed is or is not a police officer at the time of appointment.
(4) As soon as practicable after a person is appointed (whether by way of transfer or promotion or otherwise) as a non-executive police officer, the Commissioner is required to notify the [Law Enforcement Conduct Commission] of the identity of the person so appointed.
The section is within Pt 6 of the Police Act, which applies to all police officers other than the Commissioner and NSW Police Force senior executives: s 62. The term "non-executive police officer" is defined in s 63 to mean "a police officer to whom this Part applies". Section 64 thus applies, in terms, to constables.
There was no dispute that s 64(1) grants the Commissioner a power to make appointments, even though it does not quite state this expressly. The Commissioner's initial submission was that, first, the section addressed the power to appoint police officers to particular positions - in the sense of particular roles - but, secondly, it did not extend to appointing persons who were not already NSW police officers. In her supplementary written submission the Commissioner did not alter her submission on the first contention, although she did not expressly address whether the power in s 64(1) extended to appointing constables to particular positions.
I accept the Commissioner's submission on the first contention. The Commissioner sought to support it by reference to the fact that the heading to s 64 refers to appointments to "positions". That word is not used in the section itself. The heading is not part of the Act but can be taken into account as a matter of context: Interpretation Act 1987 (NSW), ss 34 and 35; Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 271 CLR 495 at [17]. Further, s 64(1) speaks of an "appointment … as a non-executive police officer". The term "police officer" is defined in s 3(1) to mean "a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer" (emphasis added). As noted, the Commissioner is required to "designate the positions in the NSW Police Force which are to be held by police officers": s 11. As explained, the term "position" encompasses both particular roles and the position of constables generally. There is thus a link between being a police officer and holding a position. In any event, neither side pointed to any other power in the Police Act to appoint police officers to particular positions. The Commissioner is thus correct insofar as she submitted that s 64(1) grants power to appoint persons to positions as police officers. On the face of the provision there is no reason why that power does not extend to appointment of constables to particular positions, but I will return to that issue.
As for the Commissioner's (initial) contention that the power only extended to appointing existing members of the NSW Police Force, that contention is unsupported by any text, contrary to clear text, antithetical to the good administration of the NSW Police Force, and most unlikely to have been intended by the Parliament.
The foundation of the Commissioner's original argument was that the fact that s 64(1) refers to appointment "as a non-executive police officer", where police officer is defined in s 3(1) in terms which mean they hold a position within the NSW Police Force, means that the appointee must come from within the Force. Yet it is obvious that the very thing that s 64(1) is addressing is appointing someone to be a non-executive police officer (in a position). The absurdity of the argument is illustrated by consideration of s 80(1). It similarly authorises the Commissioner to "appoint any person of [relevant characteristics] as a police officer of the rank of constable". On the Commissioner's initial argument, s 80 also would only enable appointment of persons from within the NSW Police Force. No new person could ever be appointed.
Moreover, the argument was directly in the face of the clear words in s 64(2) and s 64(3). Lest there be any conceivable doubt about their meaning - and it is hard to see that there could be - the Parliament made its intent even plainer by referring in s 64(1) to "appointment (whether by way of transfer or promotion or otherwise)" (emphasis added), where "otherwise" must encompass appointment of persons outside the Force. The drafter apparently considered that yet a third piece of crystal clarity was required, thus defining the word "appointment" to mean "appointment by way of promotion or transfer or otherwise" in s 63.
As was pointed out in the course of argument, it would seem decidedly contrary to the ongoing interests of the Commissioner to find herself unable to, say, appoint as a Superintendent a person who wished to move here from interstate or overseas for family reasons having served with distinction in an equivalent role in a similar police service, or to re-appoint an exemplary Inspector who had taken early retirement then promptly come to regret it. The NSW Police Force is a large workforce. Such examples cannot be regarded as so unusual as to be beyond the foresight of the drafter. In the second reading speech for the Police Services Bill 1990 (reflecting the original title of the Act) the Minister for Police and Emergency Services said that "[a]mong the pool of talent waiting to be tapped are those police who for one reason or another have left the service and who now want to return": Minister Pickering, NSW Legislative Council, 2 May 1990, Hansard at 2128. The plausibility of the examples is illustrated by the fact that cl 13(2) of the Regulation authorises the Commissioner to waive a period of probation under s 80(2) entirely if "the person has previously served as a police officer in the NSW Police Force or in any other police service or police force".
In the absence of clear words restricting the Commissioner's powers to appoint persons from outside the Force, there would be every reason to presume that the Parliament intended to enable such appointments to be made. Not only are there are no such clear words of restriction, there are clear words that point in the other direction.
It remains then to consider the argument put by the Commissioner in her supplementary submissions that s 64(1) should be construed as not extending to the appointment of outsiders as constables, on the basis that that type of appointment was addressed by s 80(1). She sought to invoke the principle that "[w]hen the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power": Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7. In such cases the Parliament is taken to have intended that there is "only one power" to take the relevant action: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [55] and [59]. The question is whether "there is any implied restriction upon the general power to be derived from" the terms of the specific power: Leon Fink Holdings Proprietary Limited v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672 at 678-679.
Two main points were made in support of the Commissioner's argument. First, it was said that s 80(1) authorised the appointment of persons as constables only if they are "of good character and with satisfactory educational qualifications". This point has limited force. The power of appointment in s 64(1) is not subject to express limits. In general, "a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute": R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 50. The Commissioner could still take good character and satisfactory educational qualifications into account in exercising the power under s 64. Indeed, it is to be expected (and may well be mandatory) that she would take character into account in light of provisions such as ss 7, 68 and 71. As to educational qualifications, the word "satisfactory" in s 80(1) indicates that it is up to the Commissioner to determine what qualifications are necessary or desirable. This aspect of s 80 reflects a statement in the Minister's second reading speech that "conditions for entry will be determined by the commissioner as a matter of policy": Minister Pickering, NSW Legislative Council, 2 May 1990, Hansard at 2127. The Commissioner is equally capable of doing that for the purposes of s 64(1) as she is for s 80(1). In sum, the words relating to good character and educational qualifications in s 80 make limited practical difference as compared to how the appointment power under s 64(1) would operate.
The Commissioner's second point is more substantial. Under s 80(2), when "first appointed" the person "is to be appointed on probation in accordance with the regulations". There is good reason why fresh recruits to the Police Force should be subject to a period of probation, involving testing and assessment on the job, prior to their appointment being confirmed: see Eaton at [16] and [73]. On the other hand, a person appointed as a constable might not be a fresh recruit, because they have previously served in the NSW Police Force or the police force of some other jurisdiction. It is significant that the Act provides that there may be different grades of constable, thus envisaging that there may be more senior types of constable than base grade recruits (such as senior constables, as provided for in the Regulation). For such persons it may be both unnecessary and inappropriate to require that they be placed on probation.
That being said, as addressed below, in my view a person could be appointed a constable under s 80(1) without necessarily being appointed on probation pursuant to s 80(2), because the reference to "first appointed" in s 80(2) arguably does not mean that every person newly appointed is first appointed. On that understanding, a recruit with police experience could conceivably be appointed under s 80(1) without being a probationer under s 80(2). Further, the probationary requirement is "in accordance with the regulations". As it happens, and as noted, the current Regulation authorises the Commissioner to waive the period of probation entirely: cl 13(2).
The force of the Commissioner's point is that, subject to the regulations, s 80(2) mandates that first-appointed constables are to be on probation. No such requirement applies under s 64(1). It can thus be argued that Parliament's direction that all first-appointed constables are to be on probation cannot be subverted by the use of s 64. In my view this does mean that s 80 implies there is some restriction on the general grant of power in s 64(1). The difficult issue then is delineating that restriction.
The Commissioner submitted that the appropriate line was that s 64(1) simply did not extend to the appointment of constables, at least from persons external to the NSW Police Force. That line has the virtue of clarity. There is one key difficulty with it. What power would the Commissioner then have to appoint constables to particular positions in the sense of roles? The Commissioner did not address this point. True it is that s 10(4) provides that police officers of the rank of constable are, in effect, taken to "hold a position (but not a separate position) in the NSW Police Force". But for many constables - especially as they rise in experience and seniority - the Commissioner would want to appoint them to particular roles. Ms White is a useful example. She had the rank of constable, the grade of senior constable, had been designated a detective, and held a particular role at FETS based out of Queanbeyan. Moreover, s 10(4) refers to officers "of the rank of constable (or such of those police officers as the Commissioner determines)". The emphasised words indicate that it is not necessarily all constables who are deemed to hold a non-separate position; some constables will hold particular positions. The Commissioner might well wish to appoint even constables still on probation to some particular role.
No general source of power to make such appointments of constables was identified other than s 64. Sections 66, 66AA, 66AB, 66AC and 66A address various specific matters relating to promotion or appointment to positions. As Ms White submitted, at least ss 66 and 66AA assume that there is a power of appointment to be found elsewhere. Section 66 - which is headed "Appointments and promotion appointments to be made on merit" - indicates that it does not apply to constables: s 66(1). That might be argued to suggest that the power of appointment in s 64(1) was not intended to apply to constables at all. In my view, however, the fact that the drafter set out a specific exclusion in s 66(1) tends to suggest that otherwise the relevant power does extend to constables.
Attempts could be made to find an implied power to appoint constables to positions in other provisions (although I note neither side made such an argument). Section 80(4) provides that "[t]he promotion of police officers within the rank of constable is subject to the regulations". That does not grant a power to appoint constables to particular positions. It does not do so expressly. Nor does it do so by implication, as the only topic it addresses is promotions, not transfers, where the latter term would encompass appointing an officer to a particular position without altering their rank or grade. Another argument could be made that there is some implied grant of power in ss 10 and/or 11 of the Police Act. But, leaving aside s 10(4) which has already been addressed, those sections are not specific to constables. And it appears odd to go searching for an implied power of appointment where there is a provision which addresses appointments that, on its face, encompasses constables.
Thus in my view the s 64(1) power of appointment does extend to appointing constables to particular positions, subject only to resolving the tension with s 80 in a way which allows reasonably coherent and practical operation of these provisions. The main tension between s 64 and s 80 lies in relation to constables who are "first appointed". It is only those constables appointed under s 80(1) and who are "first appointed" who are subject to the mandatory requirement of appointment on probation in accordance with the regulations.
There appear to be two ways of reading the power down in order to resolve the tension: by focusing on the notion of "first appointed" in s 80(2) or by treating s 64(1) as not extending to external appointments of constables. There would be no difference between these two possibilities if the category of persons "first appointed" in s 80(2) encompassed any person appointed from outside the NSW Police Force, even if they had previously served in that Force. That was the construction supported by the Commissioner. However, for reasons outlined below at [90]-[109], I do not accept that construction, but treat it rather as a matter of characterisation.
In that context, in my view the appropriate reading down of s 64(1) is one that gives direct effect to the imperative of not intruding on the requirement that constables "first appointed" in the sense identified in s 80(2) are to be appointed on probation in accordance with the regulations. That requirement only applies when and insofar as they are first appointed. That notion serves as a proper textual and contextual basis to delimit the implied restriction. It is consistent with a purposive understanding where the imperative to have a period of testing and assessment for constables who are not "first appointed" is, at the least, reduced. For "first appointed" constables there is only one power to appoint them, being the power in s 80(1).
Thus in my view s 64(1) empowers the Commissioner to appoint non-executive police officers, whether by internal transfer or promotion or by appointment of a person from outside the NSW Police Force. Such an appointment can be to any available position within the Force and may occur at any of the four relevant ranks, including constable, save only that the power is not available when constables are "first appointed" within the meaning of s 80(2). Other than in that respect, constables, including those still on probation, can be appointed to particular positions pursuant to s 64(1).
As noted, I address the question of what "first appointed" means below at [90]-[109]. I conclude there that when Ms White was reinstated she did not fall into that category. As a result, s 64(1) was available as a source of power to authorise her reinstatement.
Section 243 empowers the IRC to order the reinstatement of a worker in various ways. It is clearly implicit that such an order is meant to be complied with: note IR Act, ss 180 and 355D. It is possible that in some rare cases there could be some overriding legal impediment to the employer reinstating the worker, which the IRC would no doubt be bound to take into account in exercising its discretionary power of reinstatement. Generally, however, that grant of power assumes that the employer is itself able to reinstate the worker so that it can give effect to the order if made.
Similarly, ss 241-242 assume that the employer is itself able to reinstate the worker of its own accord without the need for an IRC order. It is only if the employer does not reinstate the worker immediately to employment of the kind for which the worker applied, or to any other kind of employment that is no less advantageous to the worker, that the worker is entitled to apply to the IRC: s 242(1).
The provisions do not expressly empower the employer to reinstate the worker. That there is no such express grant is understandable. These provisions apply to both private sector and public sector employers. Private sector employers will have the ability to do so, the capacity to contract in such a way being an ordinary incident of being a legal person. But bodies or persons exercising statutory powers do not necessarily have such a generic power: note analogously NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at [53]-[54]. That being said, where the public sector employer had the statutory power to employ the worker in the position they held prior to a medical retirement, in general it would be expected to follow that it had the power to reinstate them to that position. A difficulty may arise where the statutory regime applying to the employer is such that particular processes are required to appoint a person to the type of position in issue. It is not uncommon for government employers to have set processes which must be followed before employees are appointed to more senior positions. For example, there may be requirements for a merits selection system and for internal or external advertising of the position: eg Government Sector Employment Act 2013 (NSW), ss 46 and 48, together with the Government Sector Employment (General) Rules 2014 (NSW), Pt 3; Teaching Service Act 1980 (NSW), s 47A.
It is relevant at this point to consider what the notion of reinstatement involves. It is not defined in the WC Act, other than to say that it "includes re-employment": s 240(1). The word "re-employment" is not defined but it can be taken to refer to employment in another suitable position other than the employee's former position. That understanding reflects the distinction drawn in ss 89(1)-(2) of the IR Act. The notion of reinstatement was addressed by the High Court in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539, considering the use of that word in a federal unfair dismissal provision. McHugh J said at [14]:
To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination.
Other members of the High Court took a similar view: see Kirby J at [28]-[34], Callinan and Heydon JJ at [75]. Although those discussions were influenced to some extent by the particular statutory context, they drew significantly on what was conveyed by the very notion of having a power to reinstate an employee to their previous position. Reflecting that fact, Blackadder was referred to in CoP v IRC when considering the power of reinstatement in s 89 of the IR Act, as applied to police in relation to IRC reviews of s 181D removals pursuant to s 181G(1) of the Police Act (at [92], [100], [104]).
The provisions of the WC Act do not refer to the worker's former "position", in contrast to s 89 of the IR Act and the provisions considered in Blackadder. They speak of the worker applying for "reinstatement to employment of a kind specified in the application" (s 241(1)); of the employer reinstating the worker to employment of that kind or "to any other kind of employment that is no less advantageous to the worker" (s 242(1)); and of the IRC similarly reinstating the worker to employment of one of those two kinds (s 243(2)), or potentially to employment "of any other kind for which the worker is fit" if certain conditions are met (s 243(3)). These provisions go further than authorising restoration to the worker's former position - although no doubt they encompass doing that - as they authorise an order of reinstatement to other positions of one of the identified kinds.
The ability of the employer or the IRC to reinstate the worker to their former position, or to some other such position, would be undermined to a significant extent were it to depend upon the employer having the power to make such an appointment afresh, in circumstances where there may be some limit on the power and/or some process to be followed which would not guarantee that the particular worker would obtain such a position. It would cast doubt on a public sector employer's ability to reinstate a worker to a position which was required generally to be subject to a merits selection process.
The point is illustrated by the submissions made by the Commissioner here. Her legal representatives said that the only power to reinstate Ms White was under s 80 of the Police Act, and on terms where she was subject to probation unless that requirement was waived by choice of the Commissioner. That was so even though she had performed some 12 years of active service prior to going off work the first time due to her work-induced psychological injury.
The radical nature of the Commissioner's initial argument is illustrated by considering the position of a more senior officer, say an inspector. On the Commissioner's initial submission the officer would be appointed as a constable (prima facie on probation) under s 80. They could then be appointed to a position as an inspector on an acting basis, albeit only for 12 months at a time, pursuant to s 66A. They could then apply for promotion, where the promotion process is subject to a merits-based system pursuant to cll 19-32 of the Regulation. One of the requirements for promotion to sergeant, inspector or superintendent is that the officer has completed two years for the rank below the promotion rank: cll 19-21. On the face of it, thus, the officer would take a number of years to be able to return to the rank of inspector, where there was no guarantee they would get through the required processes in any event. In no sense can this be said to be reinstatement of the kind provided for in ss 241-243 of the WC Act.
The Commissioner modified her position in her supplementary submission. That submission was somewhat contradictory on this issue, but I think the better understanding of it was that on the construction of s 64(1) of the Police Act belatedly advocated by the Commissioner it would be possible to reinstate such a person straight to inspector. It was said that this would fall within the notion of "or otherwise" within the power to appoint "whether by way of transfer or promotion or otherwise". There is merit in that submission. That specific identification of a power in the Commissioner does not, however, answer the broader point about overcoming the sorts of restrictions that might apply to appointing other public sector workers.
A statutory provision which presupposes the existence of a power in a government decision-maker may be taken impliedly to grant the decision-maker that power if no other source of power is apparent and if the presupposition may otherwise be rendered ineffective: Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290 at 302-3; Attorney-General (Cth) v Oates [1999] HCA 35; (1999) 198 CLR 162 at [16]; Independent Liquor and Gaming Authority v Whitebull HTL Pty Ltd [2023] NSWCA 224 at [74]. In a sense, s 64(1) itself is an illustration of that principle. As noted above, it does not in terms grant a power of appointment to the Commissioner, but both parties appropriately accepted that such a power was implicitly granted by the provision.
Here, there is no doubt that s 243 grants the IRC power to make an order of one of the identified kinds. But the Commissioner's submission is that the efficacy of that power depends upon the employer having its own independent power founded elsewhere to reinstate the worker in the relevant sense to that position. That submission would substantially undermine the IRC's power in a way that is unlikely to have been intended. At least insofar as the employer is a State public sector employer, and insofar as any additional grant of power is needed to give effect to an IRC order of reinstatement, then s 243 should be taken impliedly to grant such a power.
Here there was no order of the IRC. But the Deed was entered, after conciliation in the IRC, so as to settle a dispute arising from the application for reinstatement that had been made by Ms White to the IRC. As noted, ss 241-242 do not expressly grant any power to an employer to reinstate a relevant worker. However, similar arguments apply. The statutory scheme implicitly requires the employer to consider any application made under s 241. Moreover, s 243(4) authorises the IRC to order backpay to the date of the application for reinstatement. That provision itself presupposes that the employer could have reinstated the worker when they applied for such. It seems unlikely that the Parliament would have intended that an employer should be hamstrung to say, for example, that whilst it might be delighted to re-employ the worker it cannot do so consistently with its own limited powers until ordered to do so by the IRC. That would be an exercise in formalism.
In my view the two sections, with their implication of a duty on the employer to consider an application for reinstatement and with the ability to reinstate and commence paying the worker from that time, also impliedly confer a power on any State public sector employer, to the extent necessary, to reinstate the worker in the same kind of way as the IRC could order pursuant to s 243. Thus the power of the employer implied by ss 241-242 and by s 243 is of a similar nature.
There is some force in the submission that this is a somewhat lopsided implied power insofar as it only applies to State public sector employers and not to private sector employers. However, the force of that submission is outweighed by the apparent intent of the provisions, which are part of a statutory scheme to facilitate and promote the rehabilitation and return to work of employees who have suffered work-related injuries. An objective of the workers compensation scheme as a whole is to "assist injured workers and to promote their return to work as soon as possible": Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 3(b); see also ss 49 and 52. The WC Act and State statutes creating and empowering public sector employers share a field of operation in relation to employment of workers injured at work. They can, in general, be interpreted harmoniously by construing the identified provisions of the WC Act so as impliedly to grant the power identified: note Eaton at [78]; Cottle at [23].
That is not to rule out the possibility that in some instances difficult questions may arise in seeking to reconcile some specific limitations applying to employment in particular State agencies with the WC Act provisions. The purpose and effect of those specific limitations may be of such a nature as to override the general implied grant of power in ss 241-243. But it was not suggested that there was anything in the Police Act of that kind. Rather, the Commissioner simply argued that there was no implied grant of power under ss 241-243 to reinstate an injured worker such as Ms White. I reject that submission.
One of the authorities cited in the joint judgment in Australian Education Union was Mercantile Mutual Life Insurance Co v Australian Securities Commission (1993) 40 FCR 409 at 412, where Black CJ discussed the principle and cases in which it may not apply. His Honour said of one such instance that "where the effect of the exercise of the power upon third parties may differ according to the source of the power, the exercise of the power may not be supportable as a valid exercise of power derived from another source". Statements to similar effect were made in a decision referred to by Black CJ, Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1. Bowen CJ there said that "it would generally be wrong for a court to uphold the [exercise of power] as if it had been made under the unstated head of power, particularly where the consequences for the citizen of each exercise of power are different" (at 10). Fox J said that "[w]hat is critical, is the way a recipient of the documents … would have seen the matter" (at 17). Wilcox J, albeit in dissent, similarly said as follows (at 23):
People who have conducted their affairs upon the basis that a particular power, with particular consequences, has been invoked by a statutory authority should not be confronted with a finding that the action of the statutory authority was valid for a different reason, involving different consequences.
The issue that arises is one of characterisation: see eg Kershaw v R [2024] NSWCCA 27 at [78]-[79]. Here the question is whether the Commissioner's decision to reinstate Ms White, giving effect to the Deed, can be characterised in all the circumstances as having been taken pursuant to s 80(1) of the Police Act in circumstances where there were other sources of power available. In my view, taking account of the authorities just cited, it cannot.
As the Commissioner submitted, cl 2(f) of the Deed (which is quoted above at [12]) does refer to, and assumes the applicability of, the power to dismiss under s 80. However, cl 2(g) of the Deed then provides that if Ms White was "the subject of any adverse findings within the 12-month period following her Reinstatement which do not arise from her failure to complete the Mandatory Training, she will otherwise enjoy the same rights as other police officers under Part 9 of the Police Act". It seems that the parties sought to agree that the Commissioner's right of summary dismissal under s 80(3) would be available only if Ms White failed, other than for reasons beyond her control, to complete the "Mandatory Training" identified in cl 2(e)(ii). That agreement was inconsistent with the unfettered discretion granted by s 80(3). The drafter of the agreement misunderstood the power.
In Eaton Heydon J drew a sharp distinction between the powers of removal under s 80(3) and s 181D:
[6] It was common ground that the power to dismiss probationary constables under s 80(3) of the Police Act and the power to remove non-probationary officers under s 181D are distinct. The former power cannot be employed in relation to non-probationary officers, and the latter power cannot be employed in relation to probationary constables. It was also common ground that the capacity of a removed non-probationary officer to obtain a review of the removal under s 181E did not apply to a dismissed probationary officer.
This statement is not binding, not only because it was not a statement of a majority of the High Court, but because if "a point is not in dispute in a case, the decision lays down no legal rule concerning that issue": Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [79]; see further eg CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [13]-[14]. It is conceivable that the process relating to summary removal provided for by Pt 9 of the Police Act would also be available to the Commissioner for probationary constables if she chose to proceed by that route rather than by summary dismissal under s 80(3). However, although the Commissioner seemed to embrace the suggestion that what Heydon J said was not binding upon me - and in apparent departure from what the Commissioner had argued before the High Court in Eaton - no argument was developed as to why what was apparently common ground in Eaton was incorrect. Moreover, it is arguable that even if it is assumed that such a course would be open of proceeding under Pt 9 with respect to probationary constables, the Commissioner could not bind herself not to exercise the power under s 80 other than in certain circumstances as that would be a fetter on her wide discretionary power. That issue is complex: see Searle v Commonwealth of Australia [2019] NSWCA 127; (2019) 100 NSWLR 55.
It is not necessary for me to seek to resolve these issues. What I consider to be significant for current purposes is that the parties agreed in cl 2(g) that, subject to the provision in cl 2(f), "she will otherwise enjoy the same rights as other police officers under Part 9 of the Police Act" (emphasis added). At the least, this simple assertion does not reflect the fact that if Ms White had been appointed under s 80(1) and was being "first appointed" then on the face of the statute she did not have the same rights as non-probationary police officers. To characterise the decision as having been made under s 80(1) would affect the consequences of the decision in a manner inconsistent with the parties' agreement. In light of the authorities discussed, this conclusion militates against characterising the decision in that way.
True, to make the converse point, if the reinstatement decision was not taken under s 80(1) then that undercuts the parties' agreement in cl 2(f), which would be ineffective on its terms. Yet the Commissioner would not be left without any rights if Ms White failed to complete her required training. Depending on the circumstances, such a failure might enliven the Commissioner's power to remove her under s 181D of the Police Act as a matter affecting her competence, performance or conduct. In this context, in my view the detrimental consequence of undercutting cl 2(g) is of greater significance in characterising the exercise of power than that with respect to cl 2(f).
In any event, there are other factors which militate overwhelmingly against characterising the reinstatement decision as having been made pursuant to s 80(1):
1. The whole context of what the Deed was doing was to reinstate Ms White to her former position. The Deed was entered into following Ms White's request and application for reinstatement under ss 241-242 of the WC Act, as the Deed itself records in the "Introduction" section. The term "reinstatement" is consistently used throughout the Deed to describe the re-engagement of Ms White. As explained in Blackadder, the ordinary meaning of that word is to put back in place. And Ms White was, indeed, put back in her former position as a Detective Senior Constable at FETS based out of Queanbeyan. Upon reinstatement she was also to be paid "at the grade and incremental level she was on at the time of her Medical Retirement": cl 2(d). These matters suggest that the implied power found in ss 241-243 of the WC Act was the source of power being drawn upon, and not s 80(1). She was not being appointed anew as a fresh recruit.
2. Pursuant to cl 2(b) of the Deed, Ms White was not required to complete the "three-year tenure period ordinarily required of re-joinees". This suggests her re-engagement is better characterised as "re-joining" than a fresh appointment, albeit without some requirement normally applied to re-joining officers (what that requirement is was not explained).
3. The only power to appoint an officer on probation identified by the Commissioner in submissions was s 80. On the understanding that was the only available source of power, if the Deed stated that Ms White was being appointed on probation that would have been an indicator that s 80 was the relevant source of power. Yet the Deed does not refer to Ms White being on probation. The word is not used. In the context of being "reinstated", if she was to be put on probation then it would be expected that that would clearly have been stated. The fact this was not done strongly suggests that she was not being appointed on probation and, thus, that the power under s 80(3) was not available.
4. Clause 14(a) of the Regulation provides that confirmation of appointment of a constable - ie rendering them no longer probationary - is subject to the successful completion of "initial basic training". The training which Ms White was required to undertake under cl 2(e)(ii) of the Deed was "whatever training is mandatory for the performance of her role … which is indicated by (but will not necessarily be limited to) the Mandatory Training list contained at Annexure A to this Deed". Most of the courses listed in Annexure A were under the heading "FETS related training". It can be inferred that the training that was mandatory for the performance of her role as a Detective Senior Constable at FETS was not the same as the initial basic training required of a probationary constable.
5. Confirmation of the appointment of any probationary constable is also subject to a satisfactory "fitness report" being prepared by a designated police officer: Regulation, cll 14(c) and 15. Such a report includes, but goes well beyond, consideration of medical fitness. Yet the only fitness report required in relation to Ms White was a medical assessment that she was "fit to be reinstated to a position as Detective Senior Constable at FETS": cl 1(a)-(b) of the Deed. And that report was required prior to her reinstatement.
6. Ms White was reinstated as a (Detective) Senior Constable. Pursuant to cl 16 of the Regulation, promotion to the grade of senior constable is subject to: (a) the successful completion of internal or external qualifications as determined by the Commissioner; (b) the completion of 4 years' service from the date on which the constable's appointment was confirmed, or if the constable's seniority runs from an earlier day, from that earlier day; and (c) a satisfactory fitness report. The following points about this are relevant here:
1. It is implicit in cl 16, read in context (including the use of the term "promotion"), that the grade of senior constable is not open to a probationary police officer. This point of itself means Ms White either was not appointed on probation or, at the least, any probation period was immediately waived. Either way, s 80(3) could not thereafter apply.
2. Unless cl 18 applies, the grade of senior constable is only available to police officers who have completed four years of service running from their date of confirmation or from an earlier day from when the constable's seniority is taken to have run. Clause 18 gives the Commissioner a power to confirm a probationary constable, or promote a constable to senior constable, on the basis of "exceptional bravery or specially meritorious service". There is no suggestion that clause applied here. The Commissioner made a convoluted argument that it was conceivable that there had been a deemed acceptance of four years seniority. Yet there was no such specification in the Deed. Occam's Razor applies: the appropriate characterisation is the simpler one, namely that Ms White was being reinstated directly to her former position without jumping through entirely notional hoops about deemed decisions on seniority and the like.
3. There had been no "satisfactory fitness report" of the kind referred to in cl 16(c) of the Regulation. Again, the medical clearance of Ms White required under cl 1 of the Deed was not a fitness report within the meaning of cl 16(c), and Ms White was not otherwise required to produce any fitness report.
Put shortly, there is nothing to suggest Ms White was appointed as a probationary constable pursuant to s 80(1), other than the reference in cl 2(f), and there were many other factors pointing the other way. In her former position she was long past probation, and reinstatement placed her back in that position.
The Commissioner sought to rely on the following explanation of the notion of "probation" by Heydon J in Eaton (at [16], citation omitted; see also the joint judgment at [73]):
Probation involves a process of putting to proof. It is a process of investigation and examination. A probationary period is a "period of testing or trial for the purpose of ascertaining whether [a person] has the necessary qualifications for a permanent appointment, and the word 'probation' itself involves the idea of something in the nature of trial and experiment with a view to determining whether an applicant is to be appointed." A probationary constable is one whose qualifications for non-probationary status are put to proof, investigated, examined, tested or tried. Those qualifications include aptitude, competence, integrity, performance and conduct.
In my view this discussion does not support the Commissioner's position; it undermines it. The only "putting to proof" required of Ms White was the specified medical assessment prior to her being reinstated, and then her undertaking the identified mandatory training, which was mainly directed to her particular role at FETS rather than to being apposite to being confirmed as a constable generally. No issue was raised as to her aptitude, competence, integrity, performance or conduct. Once she passed the medical assessment there was no suggestion she was on trial or subject to a further process of confirmation.
Clause 2(f) of the Deed does not say that she was put on probation. Rather, it purports to reserve a right to dismiss her under s 80. Whilst it can be argued that doing so presupposes and implies that she was being appointed on probation pursuant to s 80, any such implication is overwhelmed by consideration of the Deed as a whole, manifest in the points just identified. Further, as noted, it is apparent that the drafter of the Deed misunderstood the effect of s 80(3). In all the circumstances, the decision to reinstate Ms White cannot reasonably be characterised as having been taken pursuant to s 80(1) of the Police Act.
Given the conclusion that she was not appointed as a probationary police officer pursuant to s 80(1) of the Police Act, the unfettered power of dismissal in s 80(3) was not available to the Commissioner. As noted, the Commissioner accepted that it was necessary to rely on statutory powers to dismiss Ms White, and that the Deed could not rise higher than the statute. The dismissal of Ms White was therefore beyond power.
One virtue of either construction put by Ms White is that they give work to do to the word "first" in s 80(2). The effect of the Commissioner's construction is that the provision could read: "A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations".
The Commissioner sought to answer this point with a riposte that if the Commissioner ordered a reduction in rank of a police officer back to constable as a disciplinary measure, as authorised by s 173(2)(a) of the Police Act, then they would have been again appointed a constable but in circumstances where they were not first appointed as such, as it would be still within the same period of service which had commenced when they were first appointed. The argument is unconvincing. A reduction in rank involves an action of demoting the officer from a higher rank. Doing so need involve no extra step of appointment; the relevant action is the reduction. The Commissioner sought to support this argument by reference to s 10, but nothing in that section means that a decision to reduce an officer's rank to constable under s 173 is not effective of itself to bring about that result without some further separate appointment decision needing to be made. Section 80 simply has no role to play in such a case.
The Commissioner also submitted that s 80(2) should be construed harmoniously with the predecessor of the Regulation. Section 73 of the Police Service Act 1990 (NSW) is the predecessor of and materially identical to s 80 of the Police Act. The Police Service Act commenced on 1 July 1990, having been introduced into the Legislative Council on 2 May 1990. The Minister's second reading speech foreshadowed detailed regulations being made but it is apparent they had not been drafted at that stage: Minister Pickering, NSW Legislative Council, 2 May 1990, Hansard at 2122. The Police Service Regulation 1990 (NSW) commenced on the same day as the Act, having been published in the Gazette on 29 June 1990.
Clause 17 of the original regulation provided as follows, in terms similar but not identical to those in cl 13(2) of the current Regulation:
17 Appointment of constables on probation
(1) In accordance with section 73(2) of the Act, a person when first appointed as a police officer of the rank of constable is to be appointed on probation:
(a) for a period of 1 year, or
(b) for such longer or shorter period (being not less than 6 months) as the Commissioner directs in respect of the person.
(2) Despite subclause (1), the Commissioner may direct that the period of probation of any such constable be a period of less than 6 months (but more than 1 month) if the person has previously served as a police officer in the Police Service (or as a member of the Police Force before the commencement of this Regulation).
(3) All or any part of such previous service may, with the approval of the Commissioner, be counted towards seniority.
The argument was that the meaning of "first appointed" under s 80 of the Police Act (being s 73 of the Act as originally enacted) should be informed by this clause of the original regulation. It was suggested that the contemplation in cl 17 that an officer who had previously served in this State might be appointed under s 73, and such an appointment could be on probation, illustrated that such appointments were governed by the section. That was said to support the conclusion that a previously appointed officer could still be "first appointed" and required to serve probation under the section.
It is generally impermissible to construe an Act using delegated legislation made under that Act: eg Great Fingall Consolidated Ltd v Sheehan [1905] HCA 43; (1905) 3 CLR 176 at 184. The Commissioner relied on a statement by Heerey J in Elazac Pty Ltd v Commissioner of Patents (1994) 53 FCR 86 at 90, where his Honour quoted and applied a statement by Lord Lowry that regulations can be used as an aid in construction of the parent Act where the Act "provides a framework built on contemporaneously prepared regulations". Similarly, it has been suggested that subordinate legislation can "assist in properly construing any ambiguity in an Act when the subordinate legislation has been promulgated at the same time as the Act and forms part of a statutory scheme": PIPE Networks Pty Ltd v Commonwealth Superannuation Corporation (2013) 212 FCR 542 at [93] per Tracey J. However, there is some ambiguity on what contemporaneous means in this context, and more generally there are conflicting views on the issue generally: note DC Pearce, Statutory Interpretation in Australia (LexisNexis, 10th edn, 2024) at [3.57]; cf P Herzfeld and T Prince, Interpretation (Lawbook, 2nd edn, 2020) at [8.380].
In Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1, at [56], French CJ said (citation omitted):
Generally speaking an Act, which does not provide for its own modification by operation of regulations made under it, is not to be construed by reference to those regulations. That would be a case of the tail wagging the dog. That general principle does not exclude the possibility that a regulatory scheme proposed and explained at the time that Parliament enacted the Act under which the scheme was to be made could constitute material relevant to determination of the statutory purpose.
Thus his Honour suggested that the draft regulations would need to have been in the contemplation of the Parliament when the Act was passed to be a relevant aid. In the same case Heydon J arguably took a broader view (at [324]). Perram J, speaking for a Full Court of the Federal Court, recently has said that "I would reserve for an occasion when it arises whether this principle requires for its enlivenment the fact that the regulation was tabled before the relevant parliament at the time that the legislation was passed": Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCAFC 91; (2023) 298 FCR 57 at [54].
Employing regulations to construe the Act is in effect to use them as an extrinsic source. It is notable that all of the extrinsic material identified in s 34(2) of the Interpretation Act 1987 (NSW) as permissible aids to interpretation must, in one way or another, have been available to at least one of the Houses of Parliament when the legislation in question was being enacted. I do not see how delegated legislation which was not in existence when the statute was being enacted, and the relevant content of which was not otherwise foreshadowed to the Parliament, can properly be regarded as throwing light on Parliament's intentions. In the circumstances, I decline the invitation to rely on cl 17 of the original regulation to resolve ambiguities in the Act.
In any event, even if cl 17 was to be taken into account it would throw only limited light on the issue in question. It would tend to undermine Ms White's literal argument. But it is not inconsistent with her secondary argument, which accepts that in some cases officers with previous experience can be treated as "first appointed" as constables and subject to probation.
There is a further important factor at play here. I have concluded above at [49]-[52] that the power of appointment in s 64(1) is not available when constables are "first appointed" as such within the meaning of s 80(2), but that this general power is otherwise available to appoint constables (amongst others) to particular positions, including constables still on probation. That construction serves to emphasise the significance of the notion of being "first appointed". It means that the Commissioner's only power to "first appoint" a constable is found in s 80(1). The core reason for adopting that construction of s 64(1) was to give effect to the Parliament's direction in s 80(2) that a person first appointed under s 80(1) is to be appointed on probation in accordance with the regulations.
The Commissioner argued that there may be good reason to be able to appoint even a person with some experience on probation to assess and confirm that they can meet the standards of conduct, performance and competence expected. The point has some force. But, at least on the face of the Police Act, the only power expressly authorising the appointment of a police officer on probation is s 80, which mandates that this must be done when the person is first appointed. It is not necessary to consider here whether there could be others power that could be exercised under the Act, or which could be set out in regulations, to allow other persons to be appointed on probation. The conceivable availability of such powers would address the Commissioner's argument. Regardless of that, this argument leads back to the Commissioner's construction which gives no work to do to the word "first".
Weighing up the relevant factors, I consider that the appropriate construction of "first appointed" is a version of Ms White's secondary argument. Whether an officer is "first appointed" for the purposes of s 80(2) is a matter of characterisation in all the circumstances. It is neither necessary nor desirable to seek here to chart the metes and bounds of the notion, but the following can be said:
1. A person being reinstated to the Police Force pursuant to ss 241-243 of the WC Act, or s 89 of the IR Act together with s 181G(1)(d) of the Police Act, will not be "first appointed". By definition such a person is not new to the Police Force.
2. Further, at least in general, when an outsider is appointed to a particular position - as opposed to being unallocated in the sense addressed in s 10(4) of the Police Act - they will not be "first appointed". That they are appointed straight to a particular position is indicative of having been sufficiently assessed already that they have been recruited for, and allocated to, that role. This understanding is already implicit in the Commissioner's submitted position in relation to the three ranks above constables, for she suggested that the only power to put a person on probation was found in s 80, which only deals with appointment of constables. She argued (in the end) that outsiders could be appointed as sergeants, inspectors or superintendents under s 64(1), which does not (expressly) provide for appointment on probation.
3. As for the example postulated above where someone had previously served in the Force but did not complete their probation, if they are not immediately appointed to a particular position on their return then it is likely they would properly be characterised as having been first appointed.
This construction gives work to do to the word "first" in the provision. It accommodates the purposive considerations identified above at [95]. It sits coherently with s 64(1) as I have construed it. The construction is not quite as simple or certain as the other two proffered possibilities. But I think it is unlikely to cause real difficulties in practice. No doubt the great majority of police officers recruited at the level of constable are fresh recruits for whom no characterisation difficulty would arise.
Here, reinstatement of Ms White to a particular position, being her previous position as a Detective Senior Constable at FETS, could not be characterised as her having been "first appointed" as a constable. If she was not "first appointed" within the meaning of s 80(2) then, on the construction I have adopted, she could have been appointed to her position under s 64(1). But even if s 64(1) was not available as a source of power to appoint her for some reason, the power implied in ss 241-243 of the WC Act would still have been available, and her appointment could not be characterised as a first appointment.
In her summons Ms White sought declaratory relief pursuant to s 355C of the IR Act, an order that the Dismissal Order be quashed, and an order for reinstatement "with full continuity of service". The Commissioner submitted that there was reason to doubt that s 355C confers jurisdiction on the Court to grant declaratory relief in this matter, but did not dispute that the Court could grant relief in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW). She accepted that if I concluded that Ms White's dismissal was contrary to law then the challenged decision was affected by jurisdictional error. She also submitted, correctly, that if such an order was made then the order for reinstatement with continuity "would be inutile" because of the effect of a quashing order. The only order required to give effect to these reasons is an order in the nature of certiorari. That order will mean that Ms White has not been dismissed as a police officer. It is not necessary to address the scope of the jurisdiction and power granted by s 355C.
It was not suggested that costs should not follow the event. Ms White's summons also sought "interest", but she did not articulate what interest was claimed. As senior counsel for the Commissioner submitted, this public law challenge does not raise issues as to what right Ms White might have to back pay. Any claim for interest is wrapped up with that point.
The orders of the Court will be as follows:
1. The order to dismiss the plaintiff made by Acting Assistant Commissioner Greg Moore on 19 July 2023 on behalf of the defendant is quashed.
2. Defendant to pay the plaintiff's costs.