Western Australian Industrial Relations Commission

Appeal by Police Officers

Appeal By A Police Officer Against Their Removal

A member of the WA Police who has been removed from office by, or as a result of, removal action taken by the Commissioner of Police in accordance with section 33L of the Police Act, 1892 (WA) may appeal to the WA IR Commission (WAIRC) under section 33P on the ground that the decision of the Commissioner of Police to take removal action relating to the member was harsh, oppressive or unfair.

Set out below is some information regarding the appeal process and some issues which may arise in the course of dealing with an appeal. It is intended as a guide only.

Lodging an appeal

The appeal is commenced by filing in the WAIRC 3 copies of Form 31 - Notice of appeal against a decision of the Commissioner of Police to take removal action. The Form may be downloaded here. The Form may completed online here.  It must be filed within 28 days of the removal from office. Note that the WAIRC cannot accept an appeal that is outside that time because as 33P(3) states that the appeal shall not be instituted later than 28 days after the day on which the member was removed from office.

Once it is filed

A copy of the filed Form with the appeal number and the stamp of the WAIRC will be returned to the appellant. The appellant must serve a stamped copy of the Form on the Commissioner of Police (by personal delivery or by post) within 7 days after the Form has been filed. The appellant must then complete and file in the WAIRC a Form 4 – Statutory Declaration of Service which certifies that the appellant has served it.

What happens next

The Commissioner of Police is to file and serve on the appellant a Notice of Answer within 28 days of receiving the Notice of Appeal, stating:

      (i)       the Commissioner of Police’s reasons for deciding to take removal action;

      (ii)       a list of all documents that the Commissioner of Police considered before
                 making the decision;

      (iii)       a summary of facts or issues of law relied upon by the Commissioner of Police
                  including any relevant matters set out in section 33Q(4) of the Police Act 1892;

                  and

     (iv)       a reply containing any matters the Commissioner of Police wishes to raise in
                 relation to the appellant’s case.

The WAIRC may then list the appeal for a brief hearing (called ‘For mention’) so that some preliminary matters can be decided. These will include the following:

      (a)       whether either the appellant or the Commissioner of Police requests the
                 appeal to go to conciliation. Conciliation will be before a member of the
                 WAIRC who will not hear the appeal. It may take 2 – 4 weeks for
                 conciliation to occur. Further programming of the hearing of the appeal will
                 cease until it is known whether or not conciliation resulted in an agreed
                 settlement of the appeal;

      (b)       what is the date by which both the appellant and the Commissioner of
                 Police are to file in the WAIRC 3 copies of all the documents they will be
                 relying on in the appeal;

      (c)       how long the appellant and the Commissioner of Police think they will need
                 to present their respective cases (eg is it likely to take more than one day of
                 hearing for both their cases? One day of hearing is usually between 10.30 am to
                 1.00 pm and 2.15 pm to 4.00pm); and


     (d)       the date the appeal itself is likely to be heard. This date will usually take
                 into account the availability of the appellant or their representative, the
                 availability of the Commissioner of Police’s representative, and the dates the
                 WAIRC itself has available.

'New Evidence'

Appellants should note that, generally, the appeal is heard and determined on the basis of the material that was examined and taken into account by the Commissioner of Police at the time he decided to remove the police officer. These will be identified in the Commissioner of Police’s Notice of Answer.

If an appellant wants the WAIRC to take into account any document or evidence which was not examined and taken into account by the Commissioner of Police they will need to ask the WAIRC for permission (called ‘seeking leave’) to tender new evidence. The Police Act in s 33R imposes a number of restrictions limiting the ability of the WAIRC to accept new evidence in an appeal and an appellant will need to know them – s 33R can be seen here.

The appellant can seek leave to tender new evidence by completing a Form 1 – Notice of application (general) (available here) and attaching to it a copy of the new evidence which the appellant is seeking leave to tender. In a previous appeal Laurent v Commissioner of Police [2009] WAIRC 00839; (2009) 89 WAIG 2177, Mr Laurent sought leave to call a witness or witnesses. The WAIRC stated at [14]:

14        It is apparent from the wording of section 33R(3) and (4) that the WAIRC is only able to
           assess whether leave should be granted if it is aware of the nature of the new evidence to
           assess its substance. If it is unable to see the new evidence and assess its substance, it
           is not able to grant leave to tender new evidence.

15       Where the new evidence which is sought to be tendered is contained in a document, the
           WAIRC will be able to assess its substance. Where the evidence sought to be tendered
           is the oral evidence of a witness, the WAIRC will need to be made aware of the substance
           of the witness’s evidence in order to determine whether or not to admit it. This can be
           done by the witness preparing a statement or affidavit (see Allan Raymond Carlyon v
           Commissioner of Police (2004) 84 WAIG 1397)

After the application has been filed the appellant must serve a stamped copy of the application and the new evidence on the Commissioner of Police (by personal delivery or by post). The appellant must then complete and file in the WAIRC a Form 4 – Statutory Declaration of Service which certifies that the appellant has served it.

 

Then: 1. The Commissioner of Police is given time to reply to the application. The copy of the reply on the appellant.
     
  2. The application will then be listed for hearing and the WAIRC will hear the application and decide whether it will be granted
     
  3. If it is granted, the WAIRC is obliged to then give the Commissioner of Police a reasonable opportunity to consider the new evidence and respond to it. The Commissioner of Police may decide to revoke the removal action, or reformulate his reasons for not having confidence in the appellant, and tender new evidence without leave of the WAIRC.
     

Note that the appeal itself will not be able to be heard until after the application for leave to tender new evidence is decided by the Commission and after the Commissioner of Police has been a reasonable opportunity to consider the new evidence and respond to it. If the Commissioner of Police reformulates his reasons for not having confidence in the appellant, no response from the appellant is necessary prior to the hearing. This is because the appellant will be able to include any response in the appellant’s presentation in the hearing why the decision to take removal action was harsh, oppressive or unfair.

The Hearing of the Appeal

The Police Act in s 33Q(1) requires the WAIRC to hear the appeal by proceeding as follows-

            (a)       first, the WAIRC is to hear the Commissioner of Police’s reasons for deciding to take removal action;

            (b)       secondly, the WAIRC is to hear the case presented by the appellant as to why that
                        decision was harsh, oppressive or unfair;

            (c)       thirdly, the WAIRC is to consider the case presented by the Commissioner of
                       Police in answer to the appellant’s case.

The Police Act in s 33Q(4) requires the WAIRC to have regard at least to the following –

            (a)       the interests of the appellant; and,

            (b)       the public interest which is taken to include —

(i)        the importance of maintaining public confidence in the integrity, honesty,
           conduct and standard of performance of members of the Police Force; and
 
(ii)        the special nature of the relationship between the Commissioner of Police
            and members of the Force.

Note that the appellant has at all times the burden of establishing that the decision to take removal action was harsh, oppressive or unfair. The Commissioner of Police does not need to establish that the decision to take removal action was not harsh, oppressive or unfair.

At the conclusion of the hearing the WAIRC is likely to reserve its decision which means that it will take the time to consider all of the evidence and submissions and give its decision in writing at a later date.

Can the decision of the WAIRC be appealed?

 If the WAIRC dismisses the appeal, the Police Act does not provide a right to appeal the decision. This was discussed in Gordon v Commissioner of Police [2011] WASCA 168, (2011) 91 WAIG 1825. An application to the WA Supreme Court in 2006 for a writ of certiorari to quash a decision by the WAIRC to dismiss a police officer’s appeal was dismissed: McKay v Commissioner of Police [2006] WASC 189, (2006) 155 IR 336.

Only if the WAIRC decides that the decision to take removal action was harsh, oppressive or unfair does the Police Act provide that the decision may be appealed to the Industrial Appeal Court. The appeal can be against the WAIRC’s order that the appellant’s removal from office is to be taken to have always been of no effect or that the Commissioner of Police is to pay the appellant an amount of compensation for loss or injury caused by the removal.

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