Ferdinands v Commissioner for Public Employment [2005] HCATrans 106 (4 March 2005)

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Ferdinands v Commissioner for Public Employment [2005] HCATrans 106 (4 March 2005)

Last Updated: 9 March 2005

[2005] HCATrans 106

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A18 of 2004

B e t w e e n -

TREVOR KINGSLEY FERDINANDS

Applicant

and

COMMISSIONER FOR PUBLIC EMPLOYMENT

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MARCH 2005, AT 9.46 AM

Copyright in the High Court of Australia

MR T.K. FERDINANDS appeared in person.

MR C.J. KOURAKIS, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear for the respondent. (instructed by Crown Solicitor for the State of South Australia)

GUMMOW J: We understand there is to be no oral argument by the applicant, is that correct?

MR KOURAKIS: It was initially, but in his reply he has indicated that he would like to make some submissions orally.

GUMMOW J: In any event, we wish to hear from you first, Mr Solicitor.

MR KOURAKIS: If the Court pleases.

GUMMOW J: What was wrong with Justice Debelle’s dissent?

MR KOURAKIS: The first error, in my respectful submission, appears in paragraph 4 where in effect his Honour reverses the approach to statutory construction whereby the latter statute repeals the former.

GUMMOW J: I am sorry, paragraph 4? Which page in the application book?

MR KOURAKIS: At page 28 of the application book.

GUMMOW J: Thank you.

MR KOURAKIS: Your Honours, the Police Act 1998 was obviously enacted subsequently to the Employee Relations Act 1994.

GUMMOW J: We are losing the sound again, Mr Solicitor.

MR KOURAKIS: Yes. The Police Act 1998 which empowered the Commissioner to terminate the appointment of a police officer convicted of a criminal offence clearly was enacted after the Employee Relations Act. Moreover, it was a special Act dealing with the statutory appointment of police officers. In that case, both canons of statutory construction, that is the canons as to later Acts and special Acts, would have the effect that the Employee Relations Act is impliedly repealed or, more accurately, read down so as to exclude its application to police officers that came within that statutory power.

KIRBY J: Is that the correct way one approaches it? If you have a general statute which has general provisions for employees generally to protect them against unfair dismissal, why would you not read the later legislation, a special Act, as being subject to that general provision?

MR KOURAKIS: Your Honour, there may be something in the later Act that would lead to the result, some provision from which that implication might be taken, but ordinarily the two canons of construction to which I have referred would lead – well-accepted canons, obviously – to exactly the opposite result.

KIRBY J: Was there anything in the Police Act 1998 that provided for some review having regard to particular or special circumstances or not?

MR KOURAKIS: Your Honour, it was the point of his Honour Justice Bleby’s judgment with which Justice Prior agreed that the Police Act, read together with the Disciplinary Act to which it refers, created a very complex system of decision and review, the review applying to particular decisions but not to others, there being no review of a decision of a police commissioner to terminate an officer’s appointment on conviction of a criminal offence.

It was exactly that scheme that the majority found by necessary intendment, quite apart from the principles of statutory construction to which I have referred, led to the result that the Employee Relations Act was read down and did not apply.

KIRBY J: No matter what the particular circumstances of the case. You just have an absolute rule and that, as I read Justice Bleby, is founded in a notion of the hierarchical and disciplined nature of police service. That is the argument.

MR KOURAKIS: Yes.

KIRBY J: I understand that, but on the other side you have a general statute which provides a mechanism for considering particular circumstances of a case and then the question is whether the later special statute has taken away employee rights, which are very important and valuable, without some express statement to that effect.

MR KOURAKIS: Yes. Your Honour, the requirement for a high standard of discipline and high standard of integrity in the police force influenced the decision and is referred to.

KIRBY J: I understand that, yes.

MR KOURAKIS: But it is that requirement, together with the detailed provisions as to those decisions of the Commissioner’s which would be subject to review by a specialist review tribunal and ultimately by the District Court, and the clear line the Act drew between those decisions which were reviewable and decisions such as this which should not be subject to any review which assisted in arriving at the conclusion that the Employee Relations Act was to be read down.

GUMMOW J: What was the situation before the enactment of the Police Act 1998? In other words, what was the earlier regime and what was its relationship to the Industrial and Employee Relations Act?

MR KOURAKIS: Your Honour, in our outline at application book 65 your Honours will find the previous regulation and it was simply again an unreviewable decision, we say, on the basis of that regulation but no earlier decision as to how that interacted with the Industrial Relations Act at the time.

KIRBY J: There must have been cases where police officers went to the Industrial Commission of South Australia. Did that not happen?

MR KOURAKIS: Your Honour, there was one earlier case where the same result as was reached in this case – and the same result was reached. That was the case of Stone which is referred to in the judgment. That was a police cadet but, nonetheless on the same basis that there was a careful Code.

KIRBY J: Mention is made of the case of Jarratt where this Court has granted special leave to appeal to former Deputy Commissioner Jarratt. Now, is there anything in that case that touches on the issues in this?

MR KOURAKIS: It is discussed by his Honour Justice Bleby but, in my submission, not. That question was whether the Crown’s prerogative to terminate it will persist notwithstanding the statutory provisions as to termination New South Wales. That issue does not arise in this case. It is rather an issue of whether the Commissioner’s decision once made is reviewable in an Industrial Court.

The prospect that would arise on his Honour Justice Debelle’s judgment is that an Industrial Commission with special expertise in employment relationships – run-of-the-mill employment relationships – would be second-guessing a decision of the Commissioner of Police as to the standards of integrity and discipline that are required. That, in itself, in my submission, is a significant reason for - - -

CALLINAN J: The Commission does that sort of thing all the time. There is no magic in the fact that the applicant is a police officer. That is the issue in many, many cases.

MR KOURAKIS: Your Honour, the range of employment with which the Commission deals is great and similar difficult problems might arise, but in this case where the question is whether the Police Act by necessary intendment repealed or limited the effect of the earlier Act, it is at least a consideration, together with the canons of construction and the Code to which I have referred.

Your Honours, can I draw attention to the next paragraph of his Honour Justice Debelle’s judgment, paragraph 5 where he refers to the termination of employment under section 40 of the Police Act. Section 40 in fact provides for the termination of the statutory appointment as a police officer. Now, it may well be that there is a contract of employment, in addition to the statutory appointment, under the Act, but under the Industrial and Employee Relations Act the Commission is limited to making an order for reinstatement in employment and, in my submission, it could not be suggested that the power to make an order as to reinstatement in employment extends to requiring the exercise of a statutory power to appoint under the Police Act to the police force.

KIRBY J: You are making this case sound more and more interesting because that goes back to the decision in Enever v The Queen and whether a police constable is an office as distinct from employment and whether that is still good law and whether that, therefore, moves into this territory. There is one other issue which is raised by Justice Bleby, and you do not seem to be relying on it, that there was no right in the Supreme Court to enter into this question because of some privative provision between the Supreme Court and the Commission. Is that something you rely on or not?

MR KOURAKIS: No, ultimately his Honour refused leave to appeal. Notwithstanding that provision, the Supreme Court could by leave give leave to appeal the decision on the question of law made by the Industrial Court in this case. His Honour was content to deal with the applicant’s - - -

KIRBY J: You are not now, and would not on the return of the matter, be raising any point concerning the gateway into this Court?

MR KOURAKIS: No, that is right. If his Honour Justice Bleby was wrong as to his conclusions of law, then the proper order ought to have been “Leave to appeal granted”, so I take no issue with - - -

GUMMOW J: The only question that could come here would be this question of law as to the interaction between these two regimes.

MR KOURAKIS: Yes.

GUMMOW J: The draft notice of appeal ranges all over the place but if leave were granted, it would have to be drastically revised just to reflect that precise issue.

MR KOURAKIS: If the Court pleases. Your Honours, although the intersection between contracts of employment and statutory appointments is generally interesting, in this particular case it is only another point in addition to the points made by his Honour Justice Bleby about the Code in the Act and the point that I wish to make is simply this, that if the Industrial Commission’s power is limited to an order for reinstatement in employment and cannot extend to an order requiring appointment under the Act, that reinforces the conclusion that there is a necessary inconsistency between the Police Act and the Industrial and Employee Relations Act.

Parliament could hardly have intended that there would be an order of the Commission reinstating a police officer in employment but in circumstances where that police officer could never be appointed under the statute, or would never be appointed under the statute, as a police officer. If the Court pleases.

KIRBY J: Are people like the applicant sworn in as police constables? Does the old law, in your submission, apply? It is not so much a contract it is a question of whether it is an office under the Crown.

MR KOURAKIS: Yes, and they are required to take an oath. They are sworn in, they take an oath, they are subject to statutory discipline. That was the point largely of his Honour Justice Bleby’s decision. Their appointment is a statutory one. Reinstatement in employment, even if that was open – we say it was not for the reasons Justice Bleby refers to – would not result in the statutory appointment to the force, a position where he would take the oath, take his duties under the statute.

KIRBY J: I suppose standing against your argument is the fact that the statute did not expressly say that this applies notwithstanding any other Act or expressly exclude the Industrial Act and instead it is left to an inference of the operation of the two statutes.

MR KOURAKIS: In my submission, left to the ordinary operation of two well-accepted longstanding canons of statutory construction as to later and special Acts.

GUMMOW J: Can you assist us in this respect, Mr Solicitor. If the Court were minded to grant special leave, we would have an unrepresented appellant. Do you know if there is any organisation within the South Australian legal profession, and in particular the South Australian Bar, which has any pro bono element to deal with this sort of contingency?

MR KOURAKIS: Your Honour, there is not an established organisation but in the traditions of the Bar one would expect someone to come forward. If the Court pleases.

GUMMOW J: Yes, very well.

CALLINAN J: Which you would be in a position to encourage, Mr Solicitor, really.

MR KOURAKIS: Of course.

CALLINAN J: Yes.

GUMMOW J: Very well. We will take a short adjournment.

AT 10.00 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.09 AM:

GUMMOW J: Mr Ferdinands, you have heard what the Solicitor-General said and what we have been discussing with him. We would be minded to grant leave, if we did so, only upon one ground, namely the question that the provisions of the Police Act 1998 do not have the consequence that a police officer such as yourself may not apply under Part 6 of the Industrial and Employee Relations Act 1994 for relief where the employment as a police officer has been terminated pursuant to section 40 of the Police Act. That is a very narrow and important, perhaps, but technical issue.

Two things would arise. Firstly, your present draft notice of appeal would require complete reformulation so that it reflected just that. You would need legal assistance to have the appeal conducted here. You have heard what we have said to the Solicitor-General about that. The further thing is that there are arguments to the opposite effect which persuaded two members of the Full Court. You should not think that you would necessarily succeed in this Court and if you did not succeed in this Court on
this Court’s mature consideration, there could be a significant costs burden against you. Do you understand that?

MR FERDINANDS: Yes, your Honour.

KIRBY J: You would be minded to seek the assistance of the Bar Association in Adelaide to provide you with counsel so that the Court would be assisted in the hearing and determination of the point that Justice Gummow has just identified.

MR FERDINANDS: I shall, your Honour.

KIRBY J: It is a technical point and we would need to have the assistance of counsel if at all possible.

MR FERDINANDS: Yes, your Honour, I agree.

GUMMOW J: Yes, very well. And you understand what we have said about the potential costs?

MR FERDINANDS: Yes, your Honour.

GUMMOW J: Very well. Sit down, if you would.

MR FERDINANDS: Thank you, your Honour.

GUMMOW J: There will then be a grant of special leave limited to the ground I just indicated, which can be picked up from paragraph 6 of Justice Debelle’s judgment.

Mr Solicitor, this will be a half-day case, will it, or perhaps more?

MR KOURAKIS: I would say so, your Honour.

GUMMOW J: Perhaps a little more. Thank you.

KIRBY J: If you could bring it to the notice of the Bar Association, Mr Solicitor, that would be appreciated because it is not a matter where a lay person could argue the issues with maximum assistance to the Court.

MR KOURAKIS: I will do that.

GUMMOW J: We will adjourn to reconstitute.

AT 10.13 AM THE MATTER WAS CONCLUDED