NSW Commissioner of Police v Cottle & Anor [2021] HCATrans 181 (3 November 2021)

Last Updated: 4 November 2021

[2021] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S56 of 2021

B e t w e e n -

NSW COMMISSIONER OF POLICE

Appellant

and

TREVOR COTTLE

First Respondent

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Second Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON WEDNESDAY, 3 NOVEMBER 2021, AT 10.01 AM

Copyright in the High Court of Australia

____________________

KIEFEL CJ: In accordance with the protocol for remote hearings I will announce the appearances for the parties.

MR J.K. KIRK, SC appears with MR M.C.L. SECK for the appellant. (instructed by Kingston Reid)

MR R.J. DE MEYRICK appears for the first respondent. (instructed by Brazel Moore Lawyers)

KIEFEL CJ: There is a submitting appearance for the second respondent and the intervener, the Police Association of New South Wales, has been permitted to file written submissions. Yes, Mr Kirk.

MR KIRK: May it please the Court. Can I start just by outlining the structure of my oral submissions. I propose first briefly to identify for your Honours’ the issue in the case; secondly, to briefly seek to summarise what we say are the relevant principles of construction; thirdly, to go through the two key Acts at issue here, the Industrial Relations Act and the Police Act; then to address Eaton and come to the core set of arguments as to what we say is the appropriate reconciliation of the provisions in the two Acts.

Starting by brief identification of the issue, as your Honours would appreciate, and as notified, the primary judge, without going to it, at paragraph 64 of her judgment, the Commissioner relevantly has three powers to remove non‑executive police officers, that being the.....at issue here. First, he, as he currently is, can dismiss probationary constables under section 80(3) of the Police Act. Secondly, he can medically retire non‑executive police officers under section 72A of the Police Act. Third, there is the possibility of removal pursuant to section 181D in Part 9, Division 1B of the Police Act on the basis of the Commissioner’s loss of confidence in the suitability of the officer. The broad issue at play is whether or not the New South Wales Industrial Relations Commission has jurisdiction to review such a decision on the basis of unfair dismissal – that is to say that the removal was harsh, unreasonable or unjust.

This Court of course considered the first of those three possibilities I have outlined, namely probationary constable, under section 80(3) in Eaton. The third was for competence under 181D. It is dealt with expressly and carefully in the Police Act, which I will come to. This case concerns the second, namely what might be called medical retirement.

The Commissioner’s position obviously is that the Industrial Relations Commission – the IRC – does not have jurisdiction for review for unfair dismissal. This was raised when Mr Cottle commenced proceedings in the IRC. We succeeded at first instance before Commissioner Murphy. That was overturned by the Full Bench of the IRC on appeal. We then succeeded on judicial review before her Honour Justice Simpson in the New South Wales Supreme Court and that was overturned by the Court of Appeal on appeal. So, self‑evidently, your Honours, the issues are fairly finely balanced.

Can I turn then to the construction principles and briefly outline how we say they apply here. Self‑evidently, the issue is one of statutory construction, but in a context where one has two statutes which deliberately have some degree of overlapping operation, the manner and effect of that interaction is not pellucidly clear.

In Plaintiff S297 – we have given a reference in our outline - at paragraph 25 the plurality, drawing on what Chief Justice Mason said in the Commissioner of Stamps v Telegraph case, said of a much‑amended Act, there the Migration Act, that amendments are:

to be read together as a combined statement of the will of the legislature.

That principle applies, even though amendments may have been made at different times by different Parliaments at the instigation of different governments.

In our submission, the same applies as regards statutes of the same polity. As a general rule, Parliament want the polity to be taken to mean that they will all work together in a coherent and in a rational way. Now, of course the plurality in Project Blue Sky, paragraph 70, said:

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.

In general, we submit, that principle should also be taken to apply as regards to statutes which are taken to with some.....degree of overlapping areas of operation. Recognition of that type of application of the Project Blue Sky principle, if I can call it that, underlies the plurality judgment in the Eaton case to which I will come in due course.

Here, aspects of the relationship between New South Wales police officers and the Commissioner and the State are governed by both the Police Act and the Industrial Relations Act. That overlap is neither incidental nor unintentional because the Police Act refers, as I will seek to show, to Industrial Relations Act and modifies it in some particular express ways. So, with that degree of intentional overlap, they should be sought to be construed harmoniously.

Further significant elements in terms of how one approaches this, in our respectful submission, is that in general primacy should be given to the more specific provisions over the more general. That is a fairly obvious proposition. I just simply refer to the cases we have cited in our primary submissions at paragraph 33 without going to it. l do note there we quote Chief Justice Spigelman in a particular case saying:

the legislature is taken not to have intended to impinge upon its own comprehensive regime of a special character.

We would call that in aid here.

Now, a further issue potentially at play here, in our respectful submission, is that where there is a grant of jurisdiction to a tribunal such as the IRC, there should be no presumption that that grant of jurisdiction and power is to be read broadly. As your Honours very well appreciate, this Court said in the Shin Kobe case, and we have given the reference at paragraph 5 of our outline, 181 CLR 404 at 423, that:

It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

Now, in Shin Kobe, this Court did not explain that at all really, but it did refer to what his Honour Justice Wilson had said in the FAI General Insurance case, and again, the reference is in our outline. Drawing out from what his Honour Justice Wilson said, one can discern as underlying that principle notions that first courts are understood to be granted powers to address and remedy injustice, and so one would not incline to a narrow construction. Secondly, of course, any grant of powers to a court are presumptively to be exercised judicially.

Taking account of those principles, the Shin Kobe articulation of not limiting grants of power or jurisdiction is, with respect, perfectly understandable, and perfectly consistent with the policy of the law. Statutory tribunals, however, myriad and diverse in nature, they are the recipients of whatever specific grants of jurisdiction, powers and functions are given to them by statute. There should be no presumption that, in giving them some grant of power, jurisdiction and functions, that should be read broadly or narrowly. It is a matter of construing the particular statute, and insofar as there is overlap, as there is here, construing the two statutes so far as possible together.

Now, I acknowledge that the Court of Appeal did not expressly say to the contrary. They did not expressly say that we are applying a Shin Kobe‑type approach to the jurisdiction of the IRC, but in our respectful submission, a presumptively broad approach to the grant of jurisdiction to the IRC does underlie the Court of Appeal’s decision, to which I will come.

Before I do so, can I now turn to the two main Acts, and take your Honours through the legislative scheme. So, if I could take your Honours first to the Industrial Relations Act, which is in volume A of the joint book of authorities at tab 5. This is an Act passed in 1996. As your Honours would appreciate, and it is referred to in both judgments below, this Act, like the Police Act, has been amended regularly from time to time. These are much-needed statutes.

Can I start with section 3, which is at page 192 of the book of authorities. That sets out the objects of the Act. The objects are obviously broad. We would note:

(a) to provide a framework for the conduct of industrial relations that is fair and just;

(b) to promote efficiency and productivity in the economy of the State –

and then there are various other objects, all of which are broad, but which illustrate that this is very much about the establishment of a general industrial relations system, encompassing a wide range of employees.

To give your Honours a rough guide as to what jurisdiction the IRC still has, post‑Fair Work Act, to put it at its heart, in essence it is public sector employees, that is to say, employees of the State and also local government employees, and the rest, as your Honours would know, through.....of the Fair Work Act on various constitutional powers, secondly there has been a referral of power, the rest of the industrial relations framework is now dealt with under the federal system.

Turning then, over the page, to section 6, there is the definition of “industrial matters”, there is a general definition in subsection (1), and then particular examples are given in subsection (2). Your Honours would see, again, there is a broad and encompassing range of industrial matters, and I would draw to attention (e). It includes:

the termination of employment of . . . any person or class of persons in any industry –

In practical terms, as I said, that is really applied to public sector employees, if one reads the whole Act. So, obviously enough, starting out, “industrial matters” includes termination. That then brings us to unfair dismissals. If your Honours jump – actually, sorry, before I do that, I apologise, I should note a couple of other things. If your Honours could turn to page 196 just to seek to fill out a little the nature of the IRC powers and functions, you will see Chapter 2 is headed “Employment”, Part 1 is headed “Awards”. Section 10 enables the Commission to:

make an award in accordance with this Act –

so as is very familiar, the IRC has full power to make awards, governing arrangements between employers and employees. If your Honours jump briefly to page 202, that is Part 2, section 28A is the first section, just to note the heading “Enterprise agreements”. So, again, as is familiar in this sort of context, the IRC has jurisdiction to make enterprise agreements, see section 29, in particular.

Whilst I am dealing with filling out some of the powers beyond unfair dismissal of the IRC, I might ask your Honours to jump to section 210 which is page 286 of the joint book. So, this is within Chapter 5 “Industrial organisations”. Section 210 is headed “Freedom from victimisation” and again there is a fairly familiar sort of provision protecting employees from victimisation in various different ways encompassing amongst other things, notions of freedom of association or.....freedom to join in and freedom not to join in.

So, then, your Honours, if I can go back to “Unfair dismissals” - so that is Part 6, it is page 223 of the joint book. The first section is section 83. So, it is headed – so this is still within Chapter 2 - “Unfair dismissals”. Section 83, “Application of Part” says:

This Part applies to the dismissal of:

(a) any public sector employee –

We do not need to worry about (b) for the moment. If your Honours keep your finger on that page and then jump to the dictionary at the back, it is page 424 of the joint book, your Honours will see the definition of “public sector employee”:

includes an employee of a public authority and a member of the Public Service, the NSW Police Force, the NSW Health Service or the Teaching Service.

So, we acknowledge immediately that going back to section 83 that it applies to the dismissal of any public sector employee and in terms it picks up members of the NSW police force amongst other things. So, to be clear, we accept, and this will be a theme in a sense, we accept that on the face of the provisions of Part 6 it would encompass review of the sort of dismissal that has occurred here. As to the notion by the way in section 83(5) your Honours will see an inclusive definition of “dismissal” and you would note (b):

in the case of a public sector employee–dispensing with the services of the employee –

and there has been no dispute in this case, medical retirement brought forward within that notion. So, again, we accept on the face of these provisions there is jurisdiction to review. The start of the key sections, then section 84 which is headed “Application for remedy by dismissed employee”, so if your Honours note subsection (1), this is a kind of double function provision. It is both making clear that the Commission has jurisdiction and power and also establishing the criterion, namely:

that the dismissal is harsh, unreasonable or unjust –

as your Honours would know again, that is very familiar language in the territory of unfair dismissal. Just noting briefly, section 85 deals with “Time for making applications”. Nothing turns on that, I do not think. Section 86, there is a mandatory conciliation process, and section 87, if it does not settle through conciliation, then the process to be arbitrated by the Commission. Section 88 then sets out the:

Matters to be considered in determining a claim

In determining the applicant’s claim, the Commission may, if appropriate, take into account:

(a) whether a reason for the dismissal was given . . . whether a reason was given for the refusal to reinstate or re‑employ –

if that had been requested:

(b) if any such reason was given–its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement –

As your Honours would have picked up from the written submissions, obviously there is no duty in the section 72A medical retirement context to give any kind of reasons. I will come back to that:

(c) whether a warning of unsatisfactory performance was given before the dismissal –

That is not apposite to the medical retirement context:

(d) the nature of the duties of the applicant immediately before the dismissal –

an echo of that about reinstatement or re‑employment, but we will come back to that in talking about importance of the judgment of the Commissioner in relation to issues of continued employment; (e) is about whether they:

requested reinstatement or re‑employment . . .

(f) such other matters as the Commission considers relevant.

So that in itself was.....so it is a very broad discretion that the Commission has to take into account any matter that it considers relevant, coming back to the criterion in 84(1) of “harsh, unreasonable or unjust”

Section 89 sets out the remedies. I think it is fair to say that the primary remedies are intended to be reinstatement or re‑employment. The difference between those is reinstatement is going back to the position the applicant held, re‑employment in subsection (2) is, if it is impractical to put them in that position, then another position:

that, in the Commission’s opinion, is suitable.

So I draw that to attention, your Honours, that it is a judgment to be made by the Commission if reinstatement is not practicable, as to what position is suitable for the applicant that they should be directed back into. Subsection (3), remuneration, in essence is about back‑pay. Subsection (4), continuity, as your Honours would appreciate, in various contexts, including for police, how long you have served can matter for issues of promotion and ratcheting up pay scales and so forth, so that deals with that. Subsection (5), compensation, this illustrates why I said reinstatement and re‑employment are the primary remedies, because it is only:

If the Commission considers that it would be impracticable to make an order for reinstatement or re‑employment, the Commission may order –

payment of a certain amount. So, accepting that they cannot go back to their job, they are effectively paid some compensatory amount, and the chapter is closed. I think that is all I wanted to draw attention to in Part 6.

A couple of other matters I will briefly draw attention to in this Act, if your Honours turn to page 251, which is Chapter 3 of the Act, beginning at section 130, your Honours will see that Chapter 3 is headed “Industrial disputes”, and so the IRC has.....fairly familiar kind of jurisdiction in this context to deal with conciliation and arbitration of industrial disputes, and it has provided for in Chapter 3.

If your Honours can then turn to Chapter 4 on page 257, section 145. Chapter 4 establishes the IRC, sets out who constitutes it.....very familiar sorts of functions. I wanted to take your Honours through that save to note if your Honours could turn please to page 263, section 162. There, within this Chapter 4 - this is in Part 5 “Procedure and powers of Commission”, your Honours would note, 162(1):

The Commission may, subject to this Act, determine its own procedure.

Then I come to Eaton, which I will shortly – note what his Honour Justice Heydon said at paragraph 24 of that case that the role of the IRC is “very free flowing” – it has a great deal of freedom as to how it manages its processes and procedures. .....specific provisions – I do not deal to dwell on the detail of any of them – I will note when I come to disciplinary removals that many of these are modified by the provisions in the Police Act, but again we do not need to be involved in the detail as to that.

That is all I wanted to say about the Industrial Relations Act. If I can then turn to the other.....Act, which is the Police Act which is behind tab 3, volume A of the joint book, in starting at the beginning – so I should start at section 4, page 31 of volume A. The first section is under the heading “Part 2 NSW Police Force”. Section 4:

The NSW Police Force is established -

Section 5 denominates the various members – so you have:

the Commissioner –

and you have got an SES level – encompasses Deputy and Assistant Commissioners and the like – and then you have:

all other police officers and administrative officers employed under this Act -

and:

temporary employees

Section 6 sets out the mission and the functions of the police force, so subsection (1) identifies what is called the “mission”, subsection (2) identifies the “functions” of which the most pertinent and important is:

(a) to provide police services for New South Wales -

and that is then expanded in subsection (3):

police services includes:

and your Honours would see what is included there, which has.....related to crime, protection of people and the provision of essential services in emergencies. Then in section 7 on the next page, there is a statement of values of members of the NSW police force. I will just briefly draw attention to:

(a) places integrity above all;

(b) upholds the rule of law;

(c) preserves the rights and freedoms of individuals;

(d) seeks to improve the quality of life by community involvement in policing –

and, at the end:

(h) ensures that authority is exercised responsibly.

Section 8, in brief, the Commissioner is responsible for the management and control of the police force:

subject to the direction of the Minister -

Subsection (3):

The Commissioner may classify the various duties –

Pretty standard sort of provision. If your Honours then jump to section 10:

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.

That is not for ranks – ranks, I will get to in a second – that is in essence the particular jobs that need to be done so allocation of someone to a station, to a squad, to a forensic investigation team or the like. If your Honours turn over the page, consistently with that in section 11(1):

The Commissioner is required to designate the positions in the NSW Police Force which are to be held by police officers.

That is in distinction to administrative officers. The key criterion for that is in (2), it depends on whether:

the holder will be required to carry out, or will be concerned in, operational police duties –

So that is the key discrimen between what positions needs to be held by police officers and what is to be held by others.

Section 12 deals, as I foreshadowed, with ranks, the Commissioner down to Constable. Within ranks there can also be grades. So your Honours will not see there, for example, Senior Constable, but within the rank of Constable there can be a grade of Senior Constable or, indeed, Leading Senior Constable, Constable and so forth.

Section 13 requires an oath or affirmation of office to be taken. Without going to it, in regulation 7 of the Police Regulation 2015 that oath is set out and it uses historical language about, in broad, keeping the peace and preventing offences.

The reason I have just been through those provisions is to illustrate, unsurprisingly, that the police force is highly structured, it is hierarchical and implicitly disciplined. It has a distinctive and critically important role in society, namely upholding the rule of law and keeping the peace. I will come back to what significance I seek to attribute to that shortly.

If your Honours could then please jump to Part 6 on page 51 of the book, so the first section, section 62. This is headed “Non-executive police officers”. So as we will see in section 62:

This Part applies to all police officers (other than the Commissioner and –

the SES. Jumping to section 64, it deals with “Appointments to non‑executive police officer positions”, so that is consistent with the language of sections 10 and 11. Appointment “is to be made by the Commissioner”. Without going back to it, I would note that section 31 is a power of delegation of the Commissioner so the Commissioner obviously can delegate these functions. Subsection (4) I have briefly drawn to attention:

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-

what was then:

the Police Integrity Commission of the identity of the person –

It is now called the Law Enforcement Conduct Commission. That illustrates the particular role of police officers on the rule of law with integrity and so forth.

Without getting involved in detail, section 66 deals with “Appointments to be made on merit” to positions, see subsection (2). Section 66AA deals with specialist positions and has a slightly different approach. It adds things like forensic squads and so forth where a particular criteria.....might be relevant. If your Honours could then please jump to page 57 of the book, section 71, the enjoyably double meaning heading of “Integrity matters” says:

It is the duty of the Commissioner:

(a) before selecting a person –

or before promoting them:

to make inquiries . . . as to the integrity of the person ‑

and subsection (2):

It is the duty of the Commissioner to have regard to any information that comes to the Commissioner’s attention . . . as to the integrity –

So again it is reinforcing the particular role that they play. Jumping then to section 72:

A non-executive police officer’s position becomes vacant if the officer –

and what is relevant here is (c):

is removed from office, or retires or is retired from office –

and so, as I enunciated at the beginning, there are three relevant possibilities here: dismissal of probationary constables, medical retirement or disciplinary removal in terms of involuntary removal.

Section 72A is the key section here. It is the power on which my client relied in removing or retiring Mr Cottle, so just going through it, there are obviously express criteria for requirements which must be met before the discretionary power can be exercised. So, let me just step through those and I will come back shortly to the significance of this. First, (a), the:

officer is found on medical grounds –

Pausing there, without going to it, in our primary submissions paragraph 50, we give a reference to a power in the Commissioner to direct a police officer to attend a medical assessment, so this is very much driven by medical assessments. Generally, in most cases an exercise of the 72A power is thus going to be founded on presumptively a fairly recent medical assessment.

The reason I do not say “all cases” is that as it happens, as this particular case illustrates, sometimes an officer might decline to attend a direction to go to a medical assessment. The context is outlined in the book of further materials which we have provided. I will not go to it but by way of broad overview, obviously this is just by way of background.....issues of statutory construction cover then in a broad sense, Mr Cottle had been off on sick leave, in essence, for a long time – the report say and not able to report to duty. That went on for some time. He was then directed to attend a medical assessment and declined to do so. It was in that context that the 72A decision was made.

Then, going back to the criteria, founded on medical grounds fundamentally, presumptively usually by reference to a recent medical report, it may be unusual circumstances but that is not so. The medical grounds are looking to whether the person is:

unfit to discharge or incapable of discharging the duties of the officer’s position –

a fitness assessment broadly. That might be as to physical or mental health or both. Then going to (b):

the officer’s unfitness or incapacity:

(i) appears likely to be of a permanent nature –

So if it is transient that is not a basis for removal and:

(ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer’s control –

that would tend to send you off to the Part 9 disciplinary group, to which I will come shortly. Now, if those criteria are satisfied then, if your Honours see over the page:

the Commissioner may cause the officer to be retired.

So, that is obviously a grant of discretion. He does not have to retire the officer. He may think he can use the officer in some other way or may take a compassionate approach, but he has that broad discretion.

Now, we do not say the criteria in 72A are going to be incapable of any dispute. Doctors sometimes disagree – great secret - but these are not the sort of assessments in the express criteria which are really described as involving a judgment which is harsh, unreasonable or unjust, and once these criteria are met, as I have sought to state, the power is then discretionary in a way which is unconfined expressly - no doubt there are implied limits from the Act - that is not expressly confined as to what discretionary matters mean - the Commissioner or his delegate may take into account.

It is also noteworthy that there is nothing in the section requiring the Commissioner or his delegate to consider re‑employment elsewhere. He may choose to do so, but there is nothing requiring him to do so.

KIEFEL CJ: Mr Kirk, the requirement in 72A in relation to the finding, I take it that the finding would be made on an objective assessment?

MR KIRK: Yes, your Honour, it would be – because it uses the language, in our submission, of “found on medical grounds” it also would need to be directed to that topic, so it cannot be, you know, we do not like him, or the officer is not popular in the station or bad for morale, or whatever. It needs to be based on something objective, of a medical character.

KIEFEL CJ: There might be elements of special knowledge within the Commission relating to whether or not that evidence suggests that the officer is incapable of discharging her duties, but we are not talking about assessment such as a loss of confidence, we are talking about, again, more objectively, whether someone can fulfil - can carry out their particular duties in the position that the officer is in.

MR KIRK: That is true, to an extent, in our respectful submission, save that as I will seek to develop, in terms of making a judgment as to fitness to discharge, or capability of discharge, a practical understanding of what is involved in the position, in the job, in the realities of policing, may be critical. So those are things to be assessed by the Commissioner. So, although the Commission may receive medical reports saying, all right, Constable Smith has these physical problems and has this prognosis of recovery and so forth, that is the statement of a kind of objective medical facts.

It is then for the Commissioner and his delegate to make an assessment, all right, well, Constable Smith was assigned to a forensic position, perhaps she can do a whole lot of computer analysis, she does not need to be out in the field, so that is fine. Perhaps, on the other hand, she is assigned to Kings Cross police station and regularly has to deal with people with mental illness and drunk young people, and so forth, and is not going to be able to discharge the duties of that position, and that is very much, in our respectful submission, a practical judgment to be made by the person who understands the nature of the duties.

KIEFEL CJ: But in real terms this is something that the – in relation to matters of employment, something that the Industrial Relations Commission must have to deal with all the time, and they would deal with it by taking evidence from others as to what is involved in the position and the duties. You would not say that it is beyond the ability of the Commission to answer this question.

MR KIRK: No, I would not go that far, your Honour, no, I do not. But we – and I will seek to come back to this – we are making some purposive arguments. We do seek to say that these are judgments taking account of the very particular difficulties, stresses and challenges of being a police officer, taking account of the important role of that process in society in terms of upholding the law and so forth, that these are judgments that are best made, and should be understood to have been intended to have been made, by the Commissioner. But I do not say it would be impossible to have evidence about the nature of the duties and so forth.

GAGELER J: Mr Kirk, is the discretion conferred by section 72A conditioned by a requirement of procedural fairness? The next question, is it by requirement of reasonableness?

MR KIRK: Of reasonableness?

GAGELER J: Yes.

MR KIRK: I do not know if there is any case law specifically dealing with it in the IRC, so let me deal with it as a matter of principle. Presumptively, yes, on both fronts, for reasons which are very familiar to your Honours from basic principles of statutory construction in the 21st century.

So presumptively, yes, and that indeed – and your Honours would appreciate too in relation to procedural fairness this Court in Jarratt v Commissioner of Police, I think it was in 2005 or so, held that - I think it was as regard to the Deputy Commissioner – there was a duty of procedural fairness, so the argument in that case - ironically I cannot help but noting upholding a judgment of Justice Simpson overturning a judgment of the Court of Appeal - the judgment in that case was although police officers are not ordinary employees and have a particular heritage in terms of the offices they hold at general law, nevertheless the particular power being exercised to sack the Deputy Commissioner was a statutory power and, being a statutory power, the sort of principles I referred to come into play and so a duty of procedural fairness applies, and the same must be true in relation to 72A as regards procedural fairness and legal reasonableness.

That leads to the further point I wanted to make actually. Judicial review is going to be available, so it is not as though a person in the position of Mr Cottle is going to be left with no remedy. They have the standard set of remedies in administrative law for unreasonableness or lack of procedural fairness or otherwise acting.....power.

For example, whether through unreasonable or through irrelevant considerations, if the evidence established the delegate had acted in a discriminatory way by reference to some personal characteristic not related in any meaningful way to medical grounds, it would almost certainly be beyond.....

Just in moving on in the sections, if your Honours jump to section 80 just to note the power which was at play in Eaton. That is on page 60 of the book:

The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason.

As to reasons, your Honours would note just going back to 72A, there is no obligation expressed there to give reasons.

GAGELER J: Mr Kirk, can I ask a question about a probationary constable. You have taken us to provisions that are concerned with the establishment of positions, sections 10 and 11, and then the appointment to positions, I think section 64 or thereabouts. Does a probationary constable hold a position within the meaning of those sections and is a probationary constable appointed to a position, or do probationary constables stand outside that general scheme?

MR KIRK: I am not sure, is the answer to your Honour’s question, and I might take that question on notice and see if I can give your Honour a more specific answer.

GAGELER J: Mr Kirk, it also feeds into the definition of a “police officer”, I think. A police officer is a member of the New South Wales police force who holds a position, so it may well be that probationary constables are just outside the entire scheme you have taken us to.

MR KIRK: Rather than seek to do that on the run, I might come back to that, your Honour, take it on notice. If I could then jump to Part 6B on page 66, the first section is section 84, so the heading here is “Industrial matters relating to non‑executive officers”. Section 84:

This Part applies to all members of the NSW Police Force (other than the Commissioner –

and the SES, and section 85 is a matter that the Court of Appeal gave some real emphasis to. Your Honours will see it says:

The Commissioner is to be the employer of non‑executive officers for the purposes of any proceedings . . . held before a competent tribunal having jurisdiction to deal with industrial matters.

It does not name the IRC, but plainly it is referring to the IRC. Now, the point we seek to make about that, made in our written submissions, is that, as I alluded to a minute or so ago, at general law and still, police officers are independent office‑holders. They are not employees under a contract of employment. There is a discussion of that, without going to it, which we have noted, by Justice Leeming in State of New South Wales v Briggs, again we have given the reference at paragraph 6(c) of our outline, where his Honour discusses the issue.

So, interestingly, for example, at general law - as this Court held in a case called Enever in 1906, I think, at general law, neither the Commissioner nor the State is vicariously liable for the actions of police officers. That, of course, has been modified by statute. On we go.

The reason I mention all that is that the significance of section 85 is to make clear that, insofar as industrial matters do arise, as to whether it is about industrial disputes or an award or an enterprise agreement or victimisation or so forth, involving a police officer, it is the Commissioner who is to be the respondent, and it is to be treated as though there were a, by plain indication, as though there were an employment relationship.

That is the significance of the section. The Court of Appeal rather gave more significance to it, as I will seek to come. Then, if I can jump to Part 9, so that is on page 94 of the book, this is headed – so the first section is section 173. It is headed “Management of conduct within NSW Police Force”. Going back to it, Part 8A deals with the making of and investigation of complaints relating to police, and there is quite a complicated overlap between this Act and what is now the LEC Act, it used to be the PIC Act, with the Integrity Commission - we do not need to worry about that.

Part 9 sets out what, following an investigation, may occur. Can I start with “Division 1 Misconduct and unsatisfactory performance”. This involves taking an action by the Commissioner less than removal. Subsection (1) delineates within that two subcategories, “non‑reviewable action” - that is set out in Schedule 1, without going to it. That is things like counselling, warning, reprimands, and sort of the lower level responses:

reviewable action means action referred to in subsection (2), other than non‑reviewable action.

Subsection (2) then spells out what, in practice, reviewable action is, the discretion of the Commissioner, he can reduce rank or grade, reduce seniority, defer a salary increment or take:

any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate.

Can I then jump to section 173(5), without getting bogged in detail, there is a show cause procedure. Notice needs to be given, a chance – an articulation of the:

misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner –

or his delegate intends to act; give seven days to make submissions and then must take into account those submissions in response and.....show cause and procedure. Then, going to section 174, assuming the Commissioner has then taken one of those reviewable actions, the officer can apply to the IRC and in 174(1):

for a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust.

That phrase again. So, this is an illustration to - I seek to show how it fits into our argument - of the very careful provision that Parliament has made where reviewability is tendered. There is then a set of particular provisions as to how the Commission is to approach it. I will not get into the detail of that in the interests of time. I would note section 179(1) which disapplies particular provisions of the Industrial Relations Act for that procedure. So, that is where there is a disciplinary response taken less than removal.

Division 1B is dealing then with removal. The power of removal is in 181D(1). The criterion is the Commissioner does not have confidence in the officer’s suitability to continue as a police officer:

having regard to the police officer’s competence, integrity, performance or conduct.

So, this is the what I will call the third type of removal power after probationary constable’s medical retirement..... We have noted in our written submissions that it is possible that there could be a degree of overlap between health concerns and this insofar as some limitation of physical and mental health could affect the officer’s competence and potentially conduct but it is a distinct procedure and a distinct way of dealing with it and a distinct criterion of loss of confidence in the police officer’s suitability.

Then, turning the page, there is again a show cause procedure set out in subsection (3), similar kinds, took a bit longer to respond this time, 21 days. Subsection (7) and (7A) are a kind of privative clause albeit without an enormous amount of effect because it is just saying no other tribunal can do it but, of course, by the way, the Supreme Court still has its administrative law jurisdiction.

Then Division 1C delineates aspects of the review, function and powers of the IRC on such a review. So, starting with 181E(1) - and it is one of these double function provisions that the officer can apply to the IRC for a review and the criterion is stated “harsh, unreasonable or unjust” being the same language as section 84 of the IR Act.

Section 181F deals with the “Proceedings on a review” and it is not an unusual provision. Subsection (1) spells out in a step‑by‑step way the manner in which the Commission is to proceed on hearing an application. Subsection (2) makes clear that:

The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust.

Just to put that in a little context, without going to it, in the plurality’s judgment in Eaton at paragraph 69 it was noted that in terms of the general approach of the IRC the onus is on an applicant to make out their case, save that as regards misconduct. The IRC in general puts an onus on the employer to establish the misconduct, so 181F is riposte to that general approach of the IRC.

Now, subsection (3) which again was noted and emphasised in Eaton is, in some ways, a very unusual provision on what might firstly be called a merits review type process, because your Honours will see that it creates two mandatory relevant considerations of obviously the interests of the applicant, but then the public interest, but the words in parentheses are then significant:

(which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1)).

So the first of those we emphasise is the sort of point I wanted to make about the particular role of police officers, but the second is particularly interesting, and I am not aware of any other sort of similar provision ‑ there may be some but I have not come across them – where on a merits‑type review the person doing the review, the Commissioner here, has to take into account the very fact that the original decision‑maker made the decision.

In other words, it is not as though you sort of just set aside the decision and set it at nought. The very fact that the Commissioner has made a judgment on the criterion of suitability in 181D is to be given significance, illustrating the significance that Parliament has given to the Commissioner’s judgment about these matters.

GORDON J: Is that right, Mr Kirk? Is it not that those provisions you have taken us to, both in the non‑removal case and the removal case, so in non‑removal you took us to 173(2)(d) and now in the removal cases you have taken us to 181F(3)(b), which indicates, as the Chief Justice put to you, that you have got the Industrial Relations Commission doing the very task which you say it is not in effect capable of doing. In each of these instances it is looking and taking into account the things which are referable both to the integrity of the police force, the ability to differentiate between different types of jobs and what they do and how they do it.

MR KIRK: Can I just make a couple of submissions in response. So first, broadly I accept that, your Honour, in the sense that, yes, there is a review of suitability going on, albeit through the lens of “harsh, unreasonable or unjust” obviously enough, but I accept that is quite an encompassing type of review.

Secondly, I do not think that undermines the force of the point I was seeking to make that you do have this unusual provision in (3)(b) of 181F, that although the IRC is making its own judgment it must attribute significance to the fact that the Commissioner has made an adverse judgment, which is very unusual.

The third point I would make is that if your Honours go back to 181D(1), the judgment there is actually about:

suitability to continue as a police officer –

per se. So whereas 72A is directed to the position that the police officer has been allocated to, this is a broader judgment. In effect, it is saying, look, we are in the position this person is not suitable to stay in the police force. Your Honours will appreciate of course the historical context of this was the Wood Royal Commission which raised serious concerns about the.....

Then moving on, if your Honours jump to page 102 of the book, Division 1D, section 181K – without getting bogged in detail again – this provision is about the way the Commission is to be constituted. Your Honours would note 181K(1) is to be:

by a single member who is an Australian lawyer.

By way of context, under the IR Act, the Chief Commissioner needs to be a lawyer, other Commissioners do not need to be. I do not think I need to focus on any other aspects of..... Can I jump to section 218 on page 129 – and come back to the significance of this. Your Honours will see, 218 says:

(1) The Industrial Relations Act 1996 is not affected by anything in this Act.

(2) Subsection (1) does not limit section 44 or 88 or any provision of the Industrial Relations Act 1996.

As the Court noted – or the plurality and Justice Heydon – I should say – noted in Eaton, subsection (1) is just plainly incorrect in its terms. The Industrial Relations Act is affected directly and expressly and therefore by things in this Act.

GAGELER J: Does that mean it has no operation, Mr Kirk?

MR KIRK: No. I do not go that far, your Honour. I will come back to that section, if I can – because I am going.....course of my argument. I should just note - I passed over and I apologise – one section that I should have noted. If I could go back to 181G on page 100 – without going through the detail – that is a provision similar to the one in 179 which modifies in fairly significant ways the procedures that the IRC is to apply on review. I draw that to attention – again, I will not get bogged in the detail.

Can I then turn to – sorry, one more key thing I wanted to do before then developing the key parts of the argument and that is to go the Court’s decision in Eaton. That is in ‑ ‑ ‑

STEWARD J: Just before you do that, Mr Kirk, to complete the statutory circle - and I appreciate you may not have the following provisions before you, so if you cannot respond now, perhaps later. At the time, in relation to senior executive officers, section 50 conferred a power of retirement on medical grounds in I think precisely the same language, and then section 44 was the provision that excluded the jurisdictional power of the Commission. Section 44(1) says:

In this section, a reference to the employment –

includes (b) “retirement” and then subsections (2) and (2A) make it quite clear that there is an express exclusion then, particularly of Part 6 of the Industrial Relations Act – the application of that Act to the retirement of said executive officers. So, the question to think about is, given that context, is it significant that there is no equivalent exclusion – express exclusion – when we deal with non‑executive officers? Perhaps take that on board.

MR KIRK: Thanks, your Honour. I will take that on notice when I will come back to deal with Justice Gageler’s question – I will deal with that too, thank you.

GAGELER J: Mr Kirk, can I just add another question to take on notice?

MR KIRK: Yes, your Honour.

GAGELER J: It may not matter, but you have taken us to provisions that refer – that use the language of “a position” and then later, in your submissions, you refer to a police person as holding an office. It seems like the legislation has deliberately moved away from the traditional language. There may be nothing at all in it, but is there a difference between a position and an office, and if so, what is it?

MR KIRK: I think the difference, your Honour, is that the – any police officer who has taken the oath or affirmation of office holds the office. They may not be allocated to a position. So, leaving aside the issue of the probationary constable, if I have just got my constable stripe, I have passed my probation, I may have to hang around for a little while until I am allocated to a position, but I still hold the office of police officer. I have taken the oath. I think that is the way I would reconcile it. So, the position is more, are you allocated to Kings Cross or the drug squad or the forensic squad or so forth. That is the way I would seek to answer your Honour’s question.

Now, if I could then take your Honours to Eaton, so that is in volume C of the joint book at tab 37. For the transcript that is [2013] HCA 2; (2013) 252 CLR 1. Can I start with the plurality’s judgment, which commences at page 16, but I will actually jump to page 18 and paragraph 43, the Chief Justice and Justices Crennan and Bell, and a heading “Approach to construction” and I will just seek to draw out a few key points, if I may, without, hopefully, being too tedious. Paragraph 43, third line, the plurality noted:

The IR Act is, as previously mentioned, a general statute applying to industrial relations between employers and employees. It may be accepted that, in many respects, it applies to the conditions of employment of police officers.

I have accepted the same here. To jump to paragraph 46, that quotation from Lord Wilberforce at paragraph 45, in the last four lines the plurality say:

Even so, the question as to the operation of the statutes remains a matter to be gleaned by reference to legislative intention. That intention is to be extracted “from all available indications”.

That is my excuse, having tested the patience of your Honour by going through the Acts, in a slightly tedious manner. If your Honours then jump to paragraph 48, in the fourth line, after referring to Justices Gummow and Hayne in Ferdinands:

However, as their Honours observed, the law presumes that statutes do not contradict one another. The question is not whether one law prevails, but whether that presumption is displaced.

Over the page, more by way of background, in a sense, paragraph 49, the plurality noted, I think in the context of that case, that there had actually been some supplementary written submissions about the history of the enactments and so forth. As the intervener’s submissions show in this case, there has been a long history of changes to the two types of statutes, the policing side and the IR side. The plurality noted that:

their histories and any interrelationship between them does not appear to offer any real guidance on the matters in question.

We would say the same applies here. If your Honours then jump to page 24 of the CLR which is page 783 of the book, paragraph 63 of the plurality’s judgment. In that paragraph by reference to section 84 of the IR Act, about halfway through the paragraph, their Honours noted:

A general provision for an inquiry into the reasonableness of the conduct of an employer might not be thought suitable to a decision of the Commissioner to dismiss a police officer on the basis of misconduct. Further, as the Full Bench observed in this case, the relief . . . is at odds with the prima facie right of the Commissioner under s 80(3) to dismiss.

There is then reference in paragraph 64 to the factors that the IRC is to take into account under section 88 of the Industrial Relations Act and I would just pull out there that, about halfway through the paragraph, their Honours noted it be recalled that section 80(3):

does not oblige the Commissioner to give reasons.

Section 88 - I think it is (1)(a) and (b) that referred to reasons:

The IR Commission may also take into account whether a warning of unsatisfactory performance was given . . . A warning may not be practicable –

Here we would say again, warning is inapposite. Paragraph 65 is then important, in our respectful submission. The second sentence we note:

But they serve to highlight the fact that the unfair dismissal regime of the IR Act was not framed with something like the Police Force in mind. It is a general statute.

We seek to draw that in aid and can I note that her Honour Justice Simpson thought that was a significant point too in resolving the issue. Her Honour referred to that statement twice, in fact, without going to it, at paragraph 72 and paragraph 94. Then, on the next page, page 25 there is a heading “Unfair dismissal claims – the Police Act”. Just pulling out some key points - in the third line of paragraph 66, their Honours say:

It was evidently not considered appropriate to apply the processes provided in the IR Act which apply to claims of unfair dismissal under that Act.

Sorry, that was talking about the Part 9 disciplinary process. In other words, specific provision was made. Paragraph 68 following articulates the key differences between the regime that would apply under the IR Act and the modified regime that applies under Part 9 of the Police Act. Then, jumping to paragraph 70, top of the paragraph:

There are two provisions . . . of the Police Act which are significant for the focus which they bring to bear upon the IR Commission’s decision, a focus which is not possible under the IR Act regime.

The first relates to the 181F(1) order. That is slightly odd provision about the way the IRC must approach it. The second is the reference to 181F(3)(b). That is the provision I said was very unusual in that it requires account be taken of the very fact of the Commissioner’s decision along with the public interest generally. Their Honours note in the last five lines:

The matters of public interest to which the Police Act directs attention are different.

That is different to reference to that under the IR Act:

The Police Act requires . . . that the public interest be taken to include maintaining the integrity of the NSW Police Force –

that was part of what is in the parentheses at 181E(3)(b). Then, on the next page, there is a heading “Presumption of non‑contradiction displaced?”. Paragraph 72 their Honours note:

The indications in the Police Act point towards a legislative intention that a decision made under s 80(3) . . . is not to be subject to merits review –

There is then an articulation of the reasons for that..... – so, paragraph 74:

The terms of s 80(3) –

the power is unfettered. I will come back to discuss how we draw that in aid as regards 72A. Paragraph 75, the lack of requirement for reasons. Paragraph 76, the particular focus of Part 9, including, your Honours..... Part 9 maintains a focus on the Commissioner’s decision, a focus which is not provided by the general provisions of the IR Act. That is consistent with the submissions I have already made. Over the page, paragraph 78, going back to the constructional approach, their Honours note that:

In accordance with ordinary rules of construction concerning the internal operation of a statute, the Police Act should be construed in a way which best achieves a harmonious result. The same principle of consistency informs the construction of two statutes which may share a field of operation.

So I alluded to that at the beginning of my submissions when I was seeking to articulate the approach we submit should be taken to construing two steps with an intendedly overlapping area of operation. Then if one goes to paragraph 83, section 218 is quoted. Over the next two pages their Honours then address 218. If I could take your Honours to paragraph 87 on page 30, the plurality says:

More significantly, sub‑s (1) of s 218 is now patently erroneous.

We have already made that point, taking account of the provisions in Part 9. At paragraph 88, the first sentence:

The Court of Appeal’s interpretation of s 218(2) assumes that it operates so that unless expressly provided by the Police Act, the IR Act is to apply.

We would there is an echo of that in the current case. The point the plurality is making, as explained on through 89, is that it does not need to be expressed. There can be an “implication of inconsistency”, see the fifth line, although a distinction is then drawn by reference to the Court’s judgments in Rose v Hrvic that what the Court in Rose discussed as an inferential type of inconsistency would not be enough. That is a kind of a.....type of inconsistency. But nevertheless an implication of inconsistency will suffice. That is then made clear in paragraph 90, for example, fourth line:

Section 80(3) is impliedly inconsistent with s 218.

We would say the same applies for reasons I will develop after morning tea vis-à-vis section 72A. We would also seek to note that it is not suggested in the plurality’s judgment, nor in Justice.....which I will deal with briefly in a moment, that there is a very high threshold to establishing that kind of implication. I am sure it cannot be sort of the indirect......discussed in Rose v Hrvic.

But its approach does not.....fairly ordinary statutory construction consistent with the Project Blue Sky articulation of the need for the harmonious construction as was spelt out in paragraph 78. We would respectfully adopt that.....here.

If I can.....and then I will stay with your Honour Justice Gageler’s.....go back to Justice Heydon’s judgment at page 7 of the CLR, his Honour notes he has four reasons for concluding “The Commissioner’s appeal should be allowed”. First, the terms of section 80(3) – and his Honour emphasised the language of “At any time”, see paragraph 12, “Without giving any reason” paragraph 13, and “Probationary” paragraph 15. Can I draw to attention paragraph 16, fourth line, end of the fourth line, his Honour says – and I am sure he is not speaking of probationary constables, but this.....more broadly, in our submission:

Police officers have heavy responsibilities. They sometimes work under grave pressures. How satisfactorily particular individuals bear those responsibilities and stand up to those pressures can only be learned by experience.

That is true of probationary constables, but it is true throughout a working life, and the fact that someone may cope well in their first 12 months does not mean they are coping well 10 years down the track, perhaps with a degree of PTSD or the like. It does not mean that they are suitable to remain up at Kings Cross Station or in the drug squad and so forth.

Going back to Justice Heydon’s reasons, on page 10, paragraph 19 his Honour dealt with an issue of “Remedies under s 89 of the IR Act”. Just noting the last four lines of paragraph 19:

As the Full Bench said, these remedies –

so that is reinstatement of employment:

are “clearly inconsistent” with the Commissioner’s powers under s 80(3).

His Honour’s third reason was the generality of section 84 of the IR Act and the particularity of section 80(3), so that really alluded at the beginning of my submissions to specific.....general. His Honour’s fourth reason above paragraph 22.....taking account of Part 9 and section 181D. I had noted earlier so just to show your Honours the reference, paragraph 24, last two lines about the validity of the Commission’s approach under the IR Act as opposed to.....Part 9.

Then if I can jump briefly to your Honour Justice Gageler’s judgment in dissent at page 33, paragraph 98. Your Honour also articulated principles of construction which, in our respectful submission, are entirely consistent with those stated by the plurality. So, with great respect to your Honour, we literally would seek to disagree.

The key point of difference that your Honour had compared to the other members of the Court, as we understand it, is captured in paragraph 104 where your Honour took particular account of section 218. So your Honours will see.....quotation from section 218. Your Honour goes on to say:

The Court of Appeal was right to treat that statement as determinative of the conclusion –

Your Honour did accept, about halfway through the paragraph, as we understand it, that there could be an implied inconsistency with section 218, so we do not take that as a point of difference between your Honour and the majority. It is just your Honour was not persuaded that there was any such implied inconsistency.

Paragraph 106, again, there is an – sorry, there is discussion there of Part 9, and your Honour did not see that as significant to the delineation in regard to section 80(3). That is all I wanted to say about Eaton. Is that a convenient time, your Honours?

KIEFEL CJ: Yes, it is. Thank you, Mr Kirk. The Court will now adjourn.

AT 11.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.33 AM:

KIEFEL CJ: Yes, Mr Kirk.

MR KIRK: May it please the Court. I should just let your Honours know that there have been a few hearing issues. I have pulled out the computer a little.....if I am indistinct, please just let me know and I will repeat what I have said.

I have taken your Honours through Eaton. I might just take your Honours through the earlier decision of Ferdinands in the interests of time - we have referred in our written submissions to relevant parts of that and we have given references at paragraph 7 of our outline – briefly to note that a similar conclusion was reached by the majority in the Ferdinands case. We would draw in aid the recognition in the majority judgments of the distinctive position of police officers, dealt with carefully in the.....Police Act, and the reasons why the Commissioner should have authority.....as regards the holding of their position. That is Ferdinands.

Can I come back, before I move on to the core parts of the argument, to the two questions asked of me? First, your Honour Justice Gageler asked questions about probationary constables and positions. Now, it is not in the book, but in clause 13 of the regulation, the Police Regulation, it says that:

In accordance with section 80(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 –

potentially for a longer period, so they are appointed as a police officer of the rank of constable, so probationary police officers are a subgroup within the rank of constable, falling thus, in terms of the Act - I will just go to page 33 of volume A - within section 12(1)(f) as the rank of constable. Now, there is then a further provision, which I need to draw to attention, which means I have to slightly modify what I said before the break, actually.

Section 10(4) deals with the positions in the New South Wales police force - I apologise, I had not appreciated the significance of this earlier:

Police officers of the rank of constable . . . 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.

So a little differently from the other ranks. To be a constable is itself to hold the position. So, as someone has put it to me, they are kind of the general labourers of the New South Wales police force and to an extent they are interchangeable, so they may in fact be allocated to Kings Cross or to Paddington or Blacktown or Wagga, but your position is constable, not a “constable at Wagga”, or a “constable at Blacktown”, and that is in contradistinction to the higher ranks. I just wanted to clarify that. But that being said, there is no doubt that probationary constables do hold a position.

Then if I can come to your Honour Justice Steward’s question about sections 44 and 50 dealing with executive police officers. Your Honour, may I say that that is not..... I would not be so bold as to say it is in my favour, but I would also add that it is ‑ ‑ ‑

STEWARD J: Mr Kirk, could you just repeat what you said at the start? There was an issue with the sound, I am sorry about that.

MR KIRK: Not at all. I apologise for the sound issues. I cannot say it is not relevant. Furthermore, I find it hard – with all the ingenuity in the world – to seek to say it counts in my favour. It is one of the legislative indications which, consistently with Eaton, all legislative indications have to be brought to bear.

That being said, first I would note it is not something which was given any particular significance in the Eaton case. I know that was a different – one of the three powers of removal but nevertheless it could have been brought to bear there but was not as being something counting against the construction adopted in Eaton.

Secondly, it is dealing expressly, as your Honour noted, with one particular group, namely the executive officers. It is ultimately – it is an in expressio unius‑type of point in that the Parliament spelt out something expressly - there need to be executive officers. That does not necessarily mean the fact that they felt it desirable to spell it out – these are the executive officers – does not necessarily imply that the same is not intended vis-à-vis non-executive officers. That being said, I cannot say it is irrelevant.

I then seek to develop our argument – and now in the outline I have really moved to paragraph 8. Can I start by taking your Honours to part of the primary judge’s judgment in the core appeal book at page 77, paragraph 64 of her Honour’s judgment. At paragraph 64, her Honour made the point about the three types of removal in issue. In paragraph 65, she said – if I can paraphrase – if review is available for one of the three, why not all, and if a review is not available for one of the three, why not all.

The significance of that is what her Honour then expanded on in paragraph 66 and the core sentence of that – the core idea that we seek to draw in aid is in the fifth line:

But the route to the IRC for review of s 173 and s 181D decisions is not s 84 of the IR Act –

the general grant of unfair dismissal jurisdiction but the particular provisions of the Police Act. In paragraph 67 her Honour drives that home in the first sentence:

The enactment of Pt 9 Div 1C –

and also, indeed, Division 1A dealing with disciplinary actions for low removal:

is a strong indication that the legislature considered that s 84 of the IR Act did not provide entrée to the IRC for police officers -

In other words, the point her Honour is making, which we, with very great respect, seek to adopt, is that the route to review for disciplinary matters is expressly dealt with then through the Police Act. It is not through an assumption of general jurisdiction under the Industrial Relations Act. That tends to suggest that it is done – it is done expressly in the full Act rather than simply relying on the general provisions.

In our respectful submission, that is.....and technical reasoning. The Court of Appeal rather took a different approach.....decision and casting.....round the other way. Can I take your Honours to the Court of Appeal’s reasoning at the start of page 128 of the core appeal book, paragraph 58. I am going to jump around a little bit, but I will seek to address all of their Honours’ reasons. First at paragraph 59 in the fifth line – sorry, this is President Bell speaking for the Court of Appeal. His Honour said:

Eaton is obviously a decision that must be considered carefully by this Court in its determination of this appeal; it is not, however, the first port of call -

and a reference to Consolidated Media Holdings. Now, we obviously do not disagree, with great respect, that text and context of the statute are critical. But I will also go on to suggest that his Honour may have underestimated the significance of Eaton. Then, jumping to paragraph 61, his Honour notes section 85 of the Police Act deeming “the Police Commissioner to be the employer”. Then, if your Honours jump over the page to paragraph 62, his Honour obviously thought there was great significance in section 85, so his Honour said:

The key point to be made at the outset is that s 85 of the Police Act contemplates proceedings relating to a non‑executive police officer being held before a competent tribunal –

The point we seek to make as I have already foreshadowed is that that, with respect, overemphasises, or indeed, mischaracterises the significance of section 85 which has a particular role to play in the unusual historical position for police officers. It should not be seen, in our respectful submission, as throwing much, if any, light on this issue at all other than to say that when there is an industrial matter in the IRC it is the Commissioner who is to be the respondent and to be treated as the employer even though strictly he is not the employer of police officers.

Relatedly, his Honour then also gave great significance to section 218. His Honour referred to that at paragraph 64, for example, the last two lines on the page:

It is critical to note, however, that the plurality [in Eaton] did not hold that s 218(1) was robbed of all operation . . . the plurality’s conclusion was far narrower

Without going through all the references to 218, his Honour came back to that at paragraphs 65, 67, 69 and also 79 and 80 of his Honour’s reasons. So it is fair to say that section 218 in combination with section 85 of the Police Act are really critical to his Honour’s judgment. But as I have sought to show, there are many industrial matters covered by the Industrial Relations Act which will fall within the jurisdiction of the IRC. These are the police officers. So the making of awards or enterprise agreements, resolving industrial disputes or dealing with victimisation claims..... There is plenty of work for 218 and, indeed, 85 to do without applying here.

Now, as I said to your Honour Justice Gageler earlier, we are not saying by any means that 218 is irrelevant as one of the legislative indications, indicators of intent. But as the plurality noted in Eaton, it is incorrect in its terms, it is anachronistic, should not be given, in our respectful submission, great significance – not no significance, but not great significance – in seeking to resolve the issue before the Court. I would also seek to note that – I will come back to that.

Then if I can go back to the Court of Appeal’s reasons at – I am going to jump over page 132 and come back to it, and go to page 133 at the bottom. At paragraph 74 his Honour noted submissions the Commissioner had made about the significance of remedies for the police force. But at paragraph 75 his Honour said:

The force of this argument is significantly diminished, however, by the fact the Police Act does grant the IRC a role, albeit modified, in the case of dismissal for cause -

and that is the Part 9 process. Then, jumping to the end of the paragraph, last sentence, his Honour said that:

But what is perhaps most significant for present purposes, and where the Police Commissioner’s argument falls down, in my opinion, is that the legislature has left some, albeit modified, scope for review by the IRC –

That argument is then developed in 76 saying – before I go to 76 actually, can I note about paragraph 75. So his Honour in effect is saying, as his Honour says in terms at paragraph 80, that the indication, or the express dealing, I should say, within Part 9 of the way the IRC is to deal with that issue cuts against the Commissioner. That is the language his Honour used – or breaks against, I should say. That is the only language his Honour used in paragraph 80, first sentence, the same point really being made there as made in paragraph 75.

Our respectful response to that is that it does not really grapple with the force of the point made by Justice Simpson at paragraphs 64 to 67, namely that what Part 9 does show is that where review is provided the route is through the Police Act rather than through the presumption of a general grant of jurisdiction in the IRC.

GAGELER J: Mr Kirk, this is probably just spelling out your submission in other words, but I think what you are saying is that section 84(1) of the Industrial Relations Act has no application at all to a police officer.

MR KIRK: Except where express provision is made, and ‑ ‑ ‑

GAGELER J: But you said that there are these other routes.

MR KIRK: Sorry, your Honour?

GAGELER J: There are other routes, you say.

MR KIRK: The route being through the Police Act, and ‑ ‑ ‑

GAGELER J: Through Part 9.

MR KIRK: Correct, exactly so and, indeed, I did not want to take your Honours through all four of the decisions below, but that is spelled out, for example, in Commissioner Murphy’s judgment in the IRC in this matter by reference, indeed, to some previous decisions of himself and then upheld on the Full Bench in a case called McDonald, accepting that type of reasoning.

So coming back to Justice Bell’s reasoning, in our respectful submission, it is true, as with any of these textual arguments, you can seek to characterise them one way or another, but the way that her Honour Justice Simpson put it, in our respectful submission, has flaws. It does show that, where it is done, it is done expressly and carefully, and the route is through the Police Act and not through the IR Act.

Then to come back to paragraph 76, this is the argument about anomaly, and so – and it is put by my learned friend, again, in his submissions, so it is suggested to be anomalous that someone who is sacked with cause has a right of review in the IRC, but someone who is retired through no fault of their own, but because of medical reasons, does not.

First, our response to that is that it rather assumes what it seeks to prove, i.e. that the Parliament would have intended to grant general unfair dismissal rights. But secondly, to grapple with the argument, through one eye, yes, you could say it is anomalous, but through another eye you could say it is not actually anomalous that someone who is removed for cause because of, broadly speaking, misconduct, being a finding which plainly leaves a real stain on their employment record and their character, might have a right of – an attenuated right, but a right nevertheless, of review. So to say it is anomalous that they have such a right of review does not ultimately have full force, in our respectful submission.

Paragraph 78, his Honour then said there are two problems with the submission we have made, namely, the one I have already just made, that absent an express provision, review is not permitted. Paragraph 79, his Honour says:

First, it does not accommodate s 218 –

So that illustrates again the great significance, and in our respectful submission, overly great significance the Court gave to 218, and then secondly, the notion that the expressio unius argument breaks against the Commissioner rather than in favour of him, which is really a reiteration of what is said in paragraphs 75 and 76 about the anomaly and the fact that review is available, so I have sought to answer that.

Can I then come back to what I skipped over at page 132 to 133, paragraph 71. At paragraph 71 his Honour said:

Section 72A . . . is, in terms, very different from s 80(3) . . . requires far more than a medical assessment . . . a number of non‑medical assessments to be made . . . involves an ultimate exercise of discretion –

and then his Honour noted at the top of page 133, paragraph 72:

Section 80(3), by contrast, is more peremptory . . . “at any time and without giving any reason.”

Now, in terms of section 72A, I have in essence foreshadowed these points. Yes, as I have sought to articulate, there are obviously a set of criteria to be met before the power comes into – before the discretion comes into availability and I have discussed already the nature of those. As I have already sought to put, they are, first, about medical issues, including, you know: are there issues, and are they likely to be permanent, not arisen from his or her own misconduct.

But then, secondly, as I was putting in answer to some questions from your Honour the Chief Justice, not only as to the discretion itself but as to the assessment of the ability to discharge the duties of the officer’s position. That does bring into play broader considerations beyond just medical and involving degrees of expertise or experience, which brings into play purposive arguments.

As I have sought to show what is perhaps obvious, police officers have an important and distinct role in the community ‑ structure, discipline, hierarchical, upholding the rule of law, acting with integrity, keeping the peace. They have special powers. I do not need to cite authority for this, I think, but powers of arrest – see what is referred to in New South Wales as LEPRA, the Law Enforcement (Powers and Responsibilities) Act. They may use reasonable force. They are entrusted with the use of deadly weapons not otherwise available to members of the public. We have given specific references to that in our primary submissions at paragraph 18 and in our reply submissions at paragraph 17.

Can I take your Honours to just one brief discussion in a case that we have cited. So in volume C of the joint book at tab 42 your Honours will find this Court’s judgment in Police Service Board v Morris which is broadly about self‑incrimination.

KIEFEL CJ: Which tab is that, Mr Kirk?

MR KIRK: Sorry, your Honour, tab 42 of volume C. I apologise. It is [1985] HCA 9; 156 CLR 397. I just wanted to go to a portion of Justice Brennan’s judgment on the second‑last page, 412, recognising it is a different context but it is still relevant, we submit. Could I draw to attention after the quote at the top of the page the first two‑thirds of that paragraph beginning “The effectiveness of the police”.

GAGELER J: Mr Kirk, is this case about discipline?

MR KIRK: Yes, I suppose it is about discipline and ultimately to do with issues of self‑incrimination and so forth.

GAGELER J: No, I do not mean that case – I mean this case – our case.

MR KIRK: Sorry, the case here, no, no, no. My response this case is not, but the point I am seeking to make is, as I was about to go on to say, yes that is a discussion of disciplinary issues, but talk of the judicious exercise of powers, of ensuring that police do not jeopardise public confidence by their conduct, nor neglect the performance of their duties, nor abuse their powers, all of those are also relevant potentially to what happens every time a sergeant or a senior constable or a constable is sent out on the streets – so whether it is to deal with a domestic violence issue, or drunkenness, or people with mental health issues – every time they are sent out, they are exercising important roles and they are doing so with special powers and abilities and it is critical that the Commissioner and his delegates have confidence that that person – not only is a person of integrity but is a person who physically and mentally is in a position to deal with the enormous challenges that he or she may face in fulfilling their duties. That is critical in terms of the duties to the public, in terms of the duties to the other officers with whom they go out, and to themselves.

The judgment as to whether or not a police officer is able to fulfil the requirements of their particular position – whether it is investigating criminal activity, or going to terrible traffic accidents, or dealing with intoxicated young people, or whatever – is a judgment best made, in our respectful submission, and best understood to have been tended to have been made by the people who really understand the demands and nature of the job. Your Honours will recall what Justice Heydon said at paragraph 16 about the “grave pressures” police officers face.

To that end, in our respectful submission, in terms of our purposive arguments, there is good reason to think that the Parliament intended that these judgments – the ultimate discretion – and the judgment as to the ability to fulfil the requirements of the position be made by someone who really understands it.

Now, to come back to some of your Honours’ questions earlier, is it impossible the IRC could do that? No, I accept it is not impossible. But is there reason to think it was entrusted not to them but otherwise within the.....that is the argument I am seeking to make.

STEWARD J: Mr Kirk, can I ask you this? Why do you say there is a necessary inconsistency between, on the one hand, a statutory regime whereby the Commissioner decides who is unfit to discharge their duties as police officers and, on the other hand, a separate regime to deal with whether that dismissal is unfair, unjust or unreasonable and have that reposed in the Commission?

MR KIRK: One comes back to, ultimately, of course, the section 72A judgment, the criteria and the discretion. As I have sought to accept, I do not say it is impossible, your Honour. I do not say that it is a logical inconsistency, but the sort of inconsistency that was spoken about in Eaton was not requiring the threshold of logical inconsistency, because it was, logically, quite open to say that dismissal of probationary constables should be reviewable in IRC.

Rather, it is one seeking to gather from all the legislative indications the likely intent, and so whilst it is not impossible, the purposive argument we seek to emphasise is that there is good reason to think it was not intended, for the sorts of reasons I have articulated, taking account of the nature of the power and the nature of the job. I would note, by the way, these purposive arguments were put to the Court of Appeal, but not grappled with by the court in reaching their conclusion.

Now, my learned friend says, without going to it, at paragraph 35 of his submissions, that, in effect he says we are imputing a purpose to the Parliament with scant support in the text, to which we would respond that the sort of argument I have just sought to make does have a foundation in the text in terms of the delineation in the early sections of the Act, of the particular role that the police force plays in society.

It also draws support from the general law contexts that we have referred to about the ancient position – “ancient” is not the right word – long‑established position of police officers, back into the 19th century, of the office that they hold and the duties that they have. So it is not as though we are just making up a purpose and saying, well, make up a purpose that supports us. I have sought to found that in the very nature of the police force and the role that they play in providing police services.

Can I then turn briefly to remedies? As I sought to note, going through the IR Act, the primary remedy, I think it is section 89, for unfair dismissal, the primary remedies, I should say, are reinstatement or re‑employment in another position. Without going to it, Justice Simpson noted at paragraph 91 that reinstatement is not an available or appropriate remedy for a police officer who fulfils the preconditions of 72A and can no longer perform the inherent requirements of the position on the grounds of medical unfitness or incapacity. I have sought to articulate that is a judgment best made by the Commissioner.

GORDON J: Mr Kirk, though, is that not met – that argument met by the fact that compensation then is payable as one of the remedies?

MR KIRK: I accept that is relevant, your Honour, but as I have sought to articulate, that is very much a secondary remedy, not a primary one. I recognise that is my language, but it is supported by the nature of you can only get compensation if you cannot get re‑employment or reinstatement. So, even though I am not saying it is logically impossible this can be dealt with, the point I am seeking to draw rather is that it is an indicator that it is unlikely that these remedies were meant to be available.

As for re‑employment, as I sought to emphasise as I went through section 89 of the IR Act, that is about allocation to a position and it would undermine the ability of the Commissioner to determine which position, leave aside constables who are a floating position, but otherwise the ability of the Commissioner to determine which position people are allocated to.

That would be quite a significant intrusion, in our respectful submission, into the powers and functions of the Commissioner at the IRC coming on top and saying, “All right, well, Sergeant Bloggs may not be suitable any longer at Wagga or at Kings Cross but we think you can squeeze him in at Blacktown so you should employ him or her there”.

So, the remedies, in our respectful submission, as to obviously draw a parallel from Eaton, are also inapposite here in our respectful submission. My learned friend makes a point, without going to it, paragraph 37, that under section 242 of the Workers Compensation Act 1987 and Part 8 generally, there is the possibility of reinstatement under that Act and we do not dispute that, by the way.

The point of those provisions – there is a range of provisions in Part 8 of the Workers Compensation Act, is that they are dealing with people who have compensable injuries under the workers’ compensation regime, in other words, it is a work‑related injury and it is dealing with a particular circumstance where somewhere has been dismissed because of or
in circumstances where they can no longer perform their job taking account of that injury.

Section 242 is a way that the person can apply to say, “Well, hang on, I am fixed, I am better, I can do it”. They have been rehabilitated. In those circumstances it is possible for the IRC to order reinstatement of a worker. The assessment to be made is a prospective one not reviewing whether the original decision was harsh, unreasonable or unjust but rather after their current rehabilitative ability to perform their position.

So, in summary, your Honours, there are tensions obviously between the two Acts. There is no simple answer, I accepted that at the beginning but, in our respectful submission, the contextual, harmonious and purposive construction calls for the more specific legislation to take precedence over the general - the route through IRC review is through the Police Act not the Industrial Relations Act and there is no provision dealing with providing for such a route. Unless your Honours have any further questions, they are the submissions for the Commissioner.

KIEFEL CJ: Yes, thank you, Mr Kirk. Yes, Mr de Meyrick.

MR DE MEYRICK: Thank you, your Honours. I will just pause to inquire whether you can hear me properly because there have been some audio problems.

KIEFEL CJ: Yes, we can hear you, thank you.

MR DE MEYRICK: Thank you. I am grateful to my friend to have taken the task of walking you through the relevant legislative provisions. That will save me having to do likewise. There are just a few provisions that I want to dwell on or point something out which perhaps was not pointed out by my learned friend.

One of the matters I wanted to point to which touches upon an issue that Justice Gageler raised with my learned friend before the break was whether a probationary constable holds a position. I note my friend has responded to that and I do not take great issue with what he has told you about that but I would take you back to section 80 which exercised the Court’s mind in Eaton and point out that it is in a different division to Part 6, Division 2 which relates to the appointment of non‑executive police officers where section 72A can be found, which is the subject of this appeal.

Section 80 is in Part 6, Division 4, which is entitled “Appointment and promotion of constables”, and you will find that at page 60 of the joint bundle of materials. Just bringing that up, it says there, in section 80, that:

(1) The Commissioner may . . . 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 –

and then comes the subsection which particularly exercised the Court’s mind in Eaton, which is subsection (3). I also draw attention to that section, which is section 12 of the Police Act, at page 33, which again my friend took you to, which lists the various ranks. So constable is a rank, but probationary constable seems to be a special category of conditional constable, which is subject to its own division, and may help to explain why there is nothing that offends the decision in Eaton to come to a different conclusion in this case. By no means, is that determinative of the matter, but it certainly demonstrates that probationary officers hold a special rank that is on the special category of conditional constable.

Another aspect of the legislation that I wanted to take your Honours to, which was not particularly mentioned in my friend’s submissions, or only in passing, was section 130 of the IR Act. This is discussed in the intervener’s submissions, which I commend to your Honours, but section 130 can be found at page 253 of the collective bundle of materials, and it relates to the longstanding arbitral powers of the Industrial Commission to hear and resolve industrial disputes.

Now, it is perhaps worthy to note that such disputes cannot be commenced by an individual dismissed employee, or disgruntled employee. They can only be commenced under the terms of section 130 by certain parties, including, in effect, industrial representative bodies.

A point that comes out in the intervener’s submissions, which I commend to your Honours, is if you go then to look at section 137, which lists some of the powers that the.....Commission has when arbitrating disputes, so there is that longstanding history of a process of conciliation and, if not, arbitration, and some of the orders available include section 137(1)(b), an order to:

reinstate or re‑employ –

So I pause there to note that a body such as the intervener, the police association, could, on behalf of one of its members, even a member that had been medically retired pursuant to section 72A, advise of an industrial dispute in relation thereto, and under section 130 and the remedies and arbitral powers available under section 137, make an order in the nature of reinstatement of that employee.

I point to that as a further indicator, other than those that have already been discussed and perhaps were discussed in the decision below, that the Police Act intends to leave intact, as it were, industrial powers under the Industrial Relations Commission to deal with police officers.

Another section that I wanted to bring your Honours’ attention to which I do not know if my friend specifically drew your Honour’s attention to but is certainly discussed below, is section 405 of the Industrial Relations Act which can be found at pages 380 to 381 of the collective bundle of materials. That section, and in particular subsection (3), is worthy of consideration because it starts by indicating that:

Any award or order of the Commission does not have effect to the extent that it is inconsistent with:

(a) a right of appeal under . . . the Police Act 1990; or

(b) a function under the Police Act 1990 with respect to the discipline, promotion –

But then, as it were, it carves out unfair dismissals and says that:

This section does not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair dismissals).

So again there is a recognition there by the legislature or an expectation that there will be some unfair dismissals in relation to police officers that are properly before the Commission, again not determinative, but another indicator of the fact that the two Acts do sit in harmony such that in accordance with the conclusion of the Court of Appeal, section 72A is not here impliedly removed.

So, going back then to some of the points that have been made in support of the appeal, one issue my friend took, both in his oral submissions and at or about section 36 of the written submissions on behalf of the appellant, was the reference to the Shin Kobe Maru case and the principle there, and the suggestion was that the Court of Appeal had perhaps considered this case through the prism of the quote being that:

It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

That is a quote from paragraph 29 of that case. We say in our submissions, as do the intervener at about 12 of their submissions, that this is not what the Court of Appeal did and we would also echo what the intervener says at paragraph 12 of their submissions and that is that, even if the Court of Appeal did that, no error arises, but we say they did not. One of the things that the intervener points out is that section 84 and that part of the IR Act is obviously designed to grant a benefit and rights to individuals which did not exist at common law.

There are a couple of authorities quoted there, including Buck v Comcare, which talk about the proposition that legislation should not be construed as withdrawing a statutory right to seek review with respect to the termination of an individual’s career as a police officer, in the absence of express words or clear inconsistency. The authorities are on a broader principle, but essentially cautioning against taking away statutory rights or benefits without clear indication.

So yes, it may be a section which grants jurisdiction to a tribunal but it is also a section which grants rights to an individual, and it is through both prisms that the Court needs to consider whether it is impliedly repealed.

That paragraph of Shin Kobe Maru, paragraph 29, that is partially quoted in section 36 of the appellant’s submissions, also contains a quote that a statutory definition should be approached on the basis that Parliament said what it meant and meant what it said, being a relatively well‑known statement of some of the general principles of statutory interpretation, which my friend took you to, which we take no issue with and we say the Court of Appeal’s decision does not offend.

What we say is that the Court of Appeal approached the question of statutory construction before it in an entirely orthodox way. If you look at paragraph 58 of the Court of Appeal’s judgment, which my friend took you to, you will see that they embark on the process in an orthodox manner and the Court of Appeal did not, in my respectful submission, give the IR Act presumptive......as they are accused of in the appellant’s written submissions.

Rather, it conducted the orthodox analysis that it did between paragraphs 58 and then pausing at paragraph 67, which is on page 131 of the primary bundle of court documents, the conclusion or preliminary or tentative conclusion at that stage of the reasoning, at 67, was to note that the IR Act, in its terms, applied to non‑executive officers.

The Police Act stated in apparently broad and unqualified language, expressed continuously in the present, that nothing in it affects the operation of the IR Act and that section of the Police Act which resulted in section 218 of the Police Act being read down and out in Eaton, namely section 80(3), has no application to non‑probationary officers or to a dismissal to section 72 of the Police Act.

That is not the conclusion of the analysis but that is a pause to note that on its face the starting point was and remains here, in my respectful submission, that on its face the IR Act and its unfair dismissal provisions in Part 6, Chapter 2 clearly apply to police officers dismissed pursuant to section 72A.

So, the ultimate question was whether, either by analogy to Eaton or otherwise, there was an implied repeal or inconsistency to such an extent as to displace the presumption of harmony, which my friend took you to – and which we take no issue with - Project Blue Sky.

My learned friend effectively conceded this point as I understood in Socratic dialogue with your Honours before the morning tea break – or in his submissions – that clearly on its face, there is no express inconsistency – there is no express disharmony in applying the section 84 unfair dismissal provisions and, more broadly, that part of the IR Act to a dismissed police officer – even one who is medically retired, I should say- under section 72A. Thus, we are really in the same territory that exercised this Court’s mind in Eaton of seeing whether there is any implied repeal.

Now, I pause then to perhaps augment the point I want to make by noting something that is in the intervener’s submissions, at paragraph 11. Without reading all the footnotes, in paragraph 11 of the intervener’s submissions on behalf of the police association, it is noted – correctly – that:

where Parliament enacts two pieces of legislation, it intended both to operate.

Then there are some quotes from a few cases to the effect that it is:

“a comparatively rare phenomenon” –

to have an “implied repeal”, and it:

will not be held to have been effected “unless actual contrariety is clearly apparent” –

and that particular quote came from Butler v Attorney-General referred to in Dossett v TKJ Nominees in footnote 2.

I will not read that whole section to you, but it is that territory which this case operates, and the Court of Appeal quite properly arrived at the point of coming to the same conclusion. They did not ignore Eaton but, following the tentative conclusions, then turned to address the submissions that had been made to them on behalf of the Commissioner in the court below, and that part of the judgment of the Court of Appeal following the tentative conclusion in section.....turns to address the question of implied repeal and, at 69, the Court notes that when asking itself:

whether there is any statutory indication in the Police Act, either analogous to s 80(3) or otherwise, which warrants construing s 218 of the Police Act as inconsistent (an internal inconsistency) –

and they found none. Again, looking at any “external inconsistency” in paragraph 70, they found none.

They move then to address some of the arguments that were put to them in the court below, which are similar arguments that have been put to the High Court today. One of them related to the fact that there was a relatively unfettered discretion in section 72A, similar or analogous to that in section 80(3), and the Court of Appeal disagreed, as do we.

As we point out in our oral submissions, any discretion vested in somebody of a statutory nature which had conditions attached to it is not an unfettered discretion and it is always going to appear unfettered if you presume that the conditions are already met before the discretion is exercised. But, in truth, whether the conditions of section 72A are met is part of the discretion.

This again ties into some of the points that my friend makes about the broader nature of the legislation and what fell from my friend a short time ago, which is supported by various passages in his written submissions, was a short dissertation on why the Commissioner is best placed to understand the job of a police officer and therefore best placed to make the decision under section 72A such that one should infer that the intention was, despite no express terms preventing an officer so dismissed to have recourse to section 84 of the IR Act, that it must fall to be found – to be impliedly inconsistent in the same manner that section 80(3) was in Eaton.

There are innumerable problems with that submission which mean it should not find favour, in my respectful submission. One is the obvious, and that is if the Commissioner is so best placed to make these decisions because police carry firearms or police do dangerous things, why do sections 181D and 181E exist, which provide an ordered regime of police officers who have lost the confidence of the Commissioner to bring a merits review very similar to or being a modified version of the section 84 application in the Commission.

Those sorts of dismissals include dismissals for misconduct, they include dismissals for committing a crime, they include dismissals for dishonesty, they may even include ‑ as is discussed in the written submissions ‑ dismissals for medical unfitness, especially when that medical unfitness has been caused by the officer’s own misconduct, misdeed or self‑harm.

So it does not make a lot of sense and it does not ring true as an argument in favour of implying that a particular legislative intention to deny an officer removed pursuant to section 72A a remedy in the nature of a merits review to say that the Commissioner is best placed.

I observe further, as my friend very fairly pointed out a point that we made in our submissions which was that section 242 of the Workers Compensation Act ‑ which if your Honours want to have a look at it is at 613 to 615 of the joint book ‑ provides a limited remedy to workers which there is no dispute includes a police officer to seek reinstatement within two years after being terminated on medical grounds.

The catch is, of course, that it only relates to those terminated for work injuries. In other words – and that is defined as being injuries that attract compensation under the Workers Compensation Act. So, again, a police officer who has PTSD because of the horrors of police work who was terminated under section 72A would have a right – which my learned friend does not take issue with – to go to the Industrial Commission and ask them to review their circumstances, review medical evidence and decide whether it is appropriate to reinstate them or re‑employ them. However, a police officer who had PTSD or any other injury which was not related to their work but related to something that happened in their personal life or their constitution would not have such a remedy.

Again, the thesis about the Commissioner being best placed and those purposive arguments that supported that analysis really do not bear scrutiny when the breadth of other avenues for officers to challenge their terminations and have a merits review are discussed and I mentioned before section 130 of the IR Act and industrial disputes I mentioned also or rather the intervener mentions anti‑discrimination legislation.

So, touching upon a matter which Justice Steward asked a question about, again, before I completely leave behind the legislation, Justice Steward asked a question of my friend before the break about section 50 and how one ought to view the differences between, say, section 44 and section 88, remembering that section 218 of the Police Act, which can be found at 129 of the collective bundle, contains a broad statement which – sorry, your Honours, section 218 of the Police Act which has received much attention today and, indeed, received much attention in the Eaton matter has a broad statement in subsection (1) and then an exception or a carve‑out, if I can put it that slightly crude way, in subsection (2) relating to sections 44 and 48.

Both those sections are, as it were, a form of privative clause, the first in relation to senior executive officers and the latter in relation to non‑commissioned or administrative officers and it is worthy to note, as Justice Steward picked up on this point, which is not discussed below or in any of the other decisions on this particular topic, but the carve‑out, if I can put it that way, in section 44 in relation to senior executives is far broader than that which is found in section 88 in relation to others.

It is specifically in, for instance - section 44(2)(a) carves out unfair dismissals and again, at the risk of getting into expressio unius territory, it is worthy to observe that the attempt to restrict access to the industrial commission on certain industrial decisions is far narrower and pointedly narrower in section 88.

Turning then back to the material that your Honours have before you in terms of submissions, et cetera, there are a couple more points I wanted to make which I think are important. In fairness to my friend, he did not make too much of the Ferdinands case today other than to reference it broadly, but I do wish to emphasise that Ferdinands related to South Australian legislation which was very different to the New South Wales legislation.

None of the variety of indicators that the two Acts were meant to operate harmoniously together and both operate in the field of police officers existed there and the ultimate conclusion to the broad effect that the South Australian Police Act was a code, exhaustive code for dismissal of or termination of employment matters does not translate to the New South Wales situation and it did not so translate when this Court considered it in Eaton.

It is certainly relevant as background and as discussion of some of the special roles of police officers and statutory interpretation principles. Unlike Ferdinands, importantly, in Eaton the plurality concluded that the New South Wales Act may apply generally to New South Wales police but not where the operation of the former produces an internal inconsistency in the latter.

Again, the critical passages of Eaton, at least the plurality decision therein, are 90 and 91 and I will just turn those up - or in any case your Honours would be well familiar with them. I will not pause to read them out but the conclusions in those two paragraphs of the plurality specifically adopt what the Full Bench of the IRC had said that the two Acts do operate together, that the IR Act does apply generally to police officers including potentially, one may infer, section 84 but not when there is such a stark internal inconsistency such as there was with 80(3).

Now, the key features of that, which the Court of Appeal readily distinguished, we distinguish in our submissions, as does the intervener, is that section 80(3) is, in its terms, applying to probationary officers, and it talks about dispensing with their services without giving reasons and at any time, and it strongly implies a right to make a decision which will not be the subject of any review.

That sits comfortably with, in a lot of ways, the Industrial Relations Act, where if you go back to section 84, for instance, in the Industrial Relations Act, or, should I say more broadly, Part 6 of Chapter 2, which starts at 223 of the Court bundle and continues, you will see that, in section 83(2), it is contemplated that the unfair dismissal provisions may not extend to, inter alia, subsection (b):

employees serving a period of probation or qualifying period –

Now, I do not think there is anything, your Honours, in the bundle of materials, but certainly as it presently stands in the regulations, there is a regulation that says that the remedy is not available if you have been - you are serving a reasonable period of probation, and I think it mentions a period of three months, or such other length as may seem reasonable in the circumstances.

I regret, I am not – that thought bubble popped up to me in the heel of the hunt, so to speak. I am not in a position to confirm, on a point of time basis, that it read the same back in 2016. The regulations have recently been re‑issued with a 2020 date, but I believe it did have a similar provision five years ago. Again, that is another reason why one would say that it is appropriate to differentiate between the section 80(3) dismissal and the section 72A dismissal.

One of the points that my friend took issue with, and, as it were, complained of in the Court of Appeal’s analysis, was their discussion of the apparent anomaly that would occur if a blameless medical retiree, under section 72A, had no recourse when officers who, being guilty of misconduct or, indeed, officers who were responsible for their own unfitness, would have an entitlement to a merits review.

There is nothing wrong, in my respectful submission, with the Court of Appeal considering that when they clearly had purposive submissions made to them and they are looking at it broadly, including, as the appellant says they should do, taking into account all indicators.

What the Court of Appeal does in paragraph 76, for instance, where they talk about that anomaly I just identified, is no different to some of what fell from the High Court in Eaton. By way of illustrative example, can I take your Honours to the decision in Eaton and to what fell from, for instance, Justice Heydon at about paragraph 26 on page 771 of the joint bundle of materials.

You will see there Justice Heydon’s decision, which separately formed part of the majority decision in the matter, discusses, when endeavouring to find legislative purpose, at paragraph 26, the anomaly that would occur in the context of what was before this Court in Eaton if a probationary constable who had not been there long and had not found favour, for whatever reason, had a full merits review, which was arguably a little superior because of some of the procedural sections to that which was available to a confirmed officer.

So again, that is nothing different to what the Court of Appeal are doing here. They are just testing the submissions as to how this section ought to be inferred from its context as operating from some of the consequences and there is nothing improper about that. That is what the High Court did in Eaton. As the Court of Appeal said here, and we agree, it breaks against the Commissioner in this case.

There are a couple of other aspects of the matters that we have addressed in our submissions or which the intervener has put in their submissions that were not in our submissions that I would like to bring to your Honours’ attention. First of all – and I am not going to through it all – but there is a very good summary of the legislative history of the industrial arbitration legislation developing into the Industrial Relations Act in New South Wales going right back to the 1940s which gives ‑ ‑ ‑

KIEFEL CJ: Mr de Meyrick, that might be a convenient time for us to adjourn for lunch.

MR DE MEYRICK: If your Honour pleases.

KIEFEL CJ: Thank you. The Court adjourns until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr de Meyrick.

MR DE MEYRICK: Thank you, your Honours. Before the lunch break, I wanted to briefly draw your Honours’ attention to the useful summary of legislative history that is contained in the intervener’s submissions from about paragraph 15 onwards and right through to about paragraph 33. I will not endeavour to read that out or to plough through it other than to bring it to your Honours’ attention, but there are some ‑ ‑ ‑

KIEFEL CJ: Mr de Meyrick, I think you can take it that we have read the submissions.

MR DE MEYRICK: Thank you. I simply wanted to highlight those second reading speeches and other secondary sources that are referred to, particularly for instance in paragraph 32. I also wanted to highlight a point which is not mentioned in the first respondent’s submissions but again goes to assist in importing statutory meaning, which is a historical legislative matter, and that appears in paragraph 42 of the intervener’s submissions.

Again, there is reference to an explanatory note, which tends to suggest that, far from indicating that Parliament intended police as a special case warranting different treatment that section 72A was designed to provide consistency between statutory schemes for police and other public servants generally.

Just briefly before I finish, there are a couple of other points I wanted to make. One of the questions that your Honour the Chief Justice asked my learned friend in his submissions was: is the test found on medical grounds an objective decision, as it reads in section 72? We would say there is objective criteria that can be scrutinised but the decision itself is a little more opaque.

One of the matters I wanted to remind the Court of which was traversed when my friend took you through the legislation is that section 31 of the Police Act provides that the Commissioner can delegate his power and, on my understanding, does. If we are not having the Police Commissioner exercise her or his discretion on each one of these decisions when a police officer is being considered, rather it is delegated, and to whom it is delegated is a little opaque.

On my understanding – this is not particularly in the material – but once upon a time there was a thing called the Police Medical Board, but it no longer exists. What I understand is that one’s local area commander has a role to play in the decision‑making process as the Commissioner’s delegate and that could be the particular police officer’s effective boss, as it were.

In order to perhaps illustrate that there are aspects of the way the decision‑making process might play out that would make it appropriate if one is looking for legislative intention, that the general provisions of the Industrial Relations Act, including the unfair dismissal provisions, would extend to a police officer who was caused to be retired under section 72A would be the applicant’s – sorry, the first respondent’s own application for unfair dismissal.

Now, appreciating as I do that we are looking at the problem here at a high level of generality and principle and we are not here to decide or even investigate what is behind that application, nonetheless, as my learned friend fairly pointed out, if you look at the documents in the book of further materials, including the pithy grounds that the applicant set out at page 11 and the two‑page letter that appears at page 12 and 13 that he received as a precursor to the letter he received at page 14 telling him he was being medical discharged, you can see that first of all it is not clear who has made the final decision.

It is not clear what or whether satisfactory medical evidence was available to them, and it can be inferred that perhaps it was not, but that he was accused or blamed for that. Again, it only serves to illustrate if we are looking at a purposive approach here and investigating all indicators of legislative intention to find a harmonious scheme that there is nothing troubling about extending the unfair dismissal provisions to an officer who is caused to be retired under section 72A.

I think the final point I wanted to make in relation to that particular argument was that my friend fleshed out in his oral submissions, perhaps in reply to something we put, the idea that if we are imputing legislative purpose and considering whether Parliament properly or thought considered that the unfair dismissal provisions should not apply or would fairly not apply to an officer removed under section 72A as compared to those removed under section 181D, he referred to the prospect that perhaps there was a stain on one’s character if they were removed under 181D whereas someone removed under section 72A would not have that stain and, therefore, that might be one indicator of why the legislation intended section 72A cases not to attract a merits review.

What I would say in reply to that is that unfair dismissal laws are not addressed at reputational damage, they are addressed at security of employment and they are addressed – the wrong or the ill they seek to address is harsh, unjust or unreasonable removal or loss of career or a loss of job. So, an argument based on some perception of reputational damage I do not think would properly be a source of informing oneself what Parliament intended.

The last point I wanted to make was in relation to section 218, and I accept that the plurality and Justice Heydon in Eaton found this section problematic. One of the points made ‑ and I do not, in any way, suggest that it was determinative ‑ but one of the things that was pointed out about section 218 of the Police Act was that the reference, in the version of that section current at the time of Mr Eaton’s case, referred, in section 218(2), to section 44 and section 89, and it was observed that the reference to section 89 was presumably in error and meant to read section 88. I have no trouble with that observation whatsoever and I accept it.

What I do note is that by the time this case came before the court below here, section 218(2) had been amended to correct that anomaly, so the erroneous reference to section 89 was amended at some stage to read “88”. What I can also indicate is that, since that time, and I believe some time after this case commenced, and so it is not reflected in the version that your Honours have before you now, but I believe in or about 2017 section 218(2) was further amended because section 44 no longer exists and it has been moved to section 42. And so it now reads, if you look it up on Austlii, a reference to sections 42 and 88.

Now, the only reason I mention that is because Parliament has amended this section twice and has not chosen to clarify or change its apparent breadth or meaning. One would be tempted, in light of that, to revisit what fell from Justice Gageler at paragraph 104 of Eaton, which you will find at 794 of the bundle. I accept that Justice Gageler’s broader view of the operation of section 218 did not find favour with the majority, but part of what troubled the majority about section 218 was that it had an internal error in it, which perhaps bespoke of legislative oversight and that the section had been allowed to drift without its operation being clarified.

It is a little harder to come to that conclusion when it has been amended twice since without making any change to its apparent breadth of meaning. I cannot put it any higher than that. I am not making a submission that Eaton was wrongly decided but I am saying that this Court could do anything it wants with this case and come to any conclusion it finds fair on the material.

But circumstances may have changed since then that makes the conclusion that Justice Gageler came to at, for instance, paragraph 104 a little more attractive than it appeared to the majority at that time. Unless I can be of any further assistance to your Honours or if there is anything you require clarification on, those are my submissions.

KIEFEL CJ: Yes, thank you, Mr de Meyrick. Anything in reply, Mr Kirk?

MR KIRK: Yes, thank you, your Honour. I have eight points, no more than five minutes. First, in relation to industrial disputes, my learned friend mentioned Chapter 3. It should be noted that applications to resolve industrial disputes by the Commission are made at the instigation of a different person, the Commission will bring to bear different principles relating to the resolution of an industrial dispute. It has then distinct powers to make orders resolving dispute in section 137 and those powers do not include authorising compensation. So it offers little assistance to the resolution of this case.

Secondly, my learned friend referred to section 405 of the Industrial Relations Act. That section, in our respectful submission, offers little assistance to this case. It is true, it might be said that subsection (3) of section 405 could assume that there is some jurisdiction of the Commission for review for unfair dismissal, but that of course can encompass review under Part 9, there is no reason to think anything more than that was meant, and without going to it, in Eaton, at paragraph 81, the plurality indicated that section 405, quote:

is not helpful in answering the question –

unquote, at issue there, and see similarly, Justice Heydon at paragraph 36. Thirdly, my learned friend referred to some issues of principles of construction, and my friend spoke about taking away statutory rights. That, of course, assumes what my friend seeks to prove, namely, that there is a right to go to the IRC for review for this type of application.

My learned friend may also have hinted at an argument that a benevolent construction should be given to the provisions on a basis that these are benevolent provisions. To give one citation of what may be many, your Honour Justice Gageler in Berrima Gaol, New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at paragraph 92 noted that the notion about construing the statute, a benevolent statute benevolently, is ultimately an aspect of purposive construction, so one comes back to the purposive.....

Fourth, my learned friend referred to Eaton and said that it depended on notions of implied repeal. That was not the language employed actually in the judgments in Eaton. It was in Ferdinands’ case but not in Eaton. Rather, it was approached more in what I have called the Project Blue Sky sort of way. The differences between them may be subtle, but implied repeal, logically at least, depends in part, in significant part, on the temporal order of what was enacted first and later. Here, the two Acts have been chopped and changed from time to time, so focus on temporal order is not going to assist greatly. I note for completeness that section 72A was introduced on 4 February 2008. That is referred to in both judgments.

Fifthly, my learned friend sought to answer our purposive arguments by saying: why then does the IRC have jurisdiction under Part 9 in relation to the disciplinary matters? With respect, that does not answer our arguments. There is the specific limited provision made for serious findings. It does not imply general power to review.

That leads to the sixth point. My learned friend said: why should one construe unfair dismissal as having anything to do with reputation, as opposed to security of employment? There is no need to adopt a solid characterisation approach here and unfair dismissal is in part of course about security of employment for the individual. There is no reason to think that it may not also encompass issues of reputation and the ongoing ability to seek employment in other fields. A dismissal without reasonable basis under Part 9 might well raise issues of harshness, for example.

Seventhly, my learned friend referred to section 218 and the carve‑outs in subsection (2) with regard to sections 44 and 88. That point equally could have been made in Eaton, save for the fact that the reference to 88 leads to 89, which leads to the final point.

My learned friend sought to make something at the end there of the fact that.....has twice, I think he said twice, amended section 218. I do not know if those amendments were made after Commissioner Murphy’s decision, the Full Bench decision, Justice Simpson’s decision or the Court of Appeal’s decision, but it cannot be said here that the law is sufficiently stable such that a presumption of re‑enactment might apply. They are the submissions in reply, your Honours.

KIEFEL CJ: Thank you, Mr Kirk. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise until 10.00 am.

AT 2.32 PM THE MATTER WAS ADJOURNED