APPEAL AGAINST A DECISION OF THE COMMISSIONER OF POLICE TO TAKE REMOVAL ACTION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES AM

APPELLANT

-v-

Commissioner of Police

RESPONDENT

CORAM Chief Commissioner A R Beech

 Commissioner J L Harrison

 Commissioner S M Mayman

HEARD BY WRITTEN SUBMISSIONS 8, 22 JANUARY 2010

DELIVERED Thursday, 11 February 2010

FILE NO. APPL 8 OF 2008

CITATION NO. 2010 WAIRC 00061

Catchwords Removal of Police Officer - Loss of confidence by Commissioner of Police - Whether it is impracticable for it to be taken that removal from office is, and had always been, of no effect - Police Act 1892 (WA) s 33Q(4), s 33S, s 33U, s 33U(2)

Result Order to issue that removal of police officer is and is to be taken to have always been of no effect

Representation 

Appellant Ms D Scaddan (of counsel) by written submission

Respondent Ms KA Vernon (of counsel) by written submission

Further Reasons for Decision

1         This is our unanimous decision.  We published our reasons for decision in this matter on 4 December 2009.  Paragraph 57 of the Chief Commissioner’s reasons, which was agreed to by Harrison and Mayman CC, stated as follows:

57. Section 33U of the Police Act applies if the WAIRC decides on an appeal that the decision to take removal action relating to an appellant was harsh, oppressive or unfair.  Neither party addressed the issues which arise for consideration out of that section.  There is no submission before us that it is impracticable for it to be taken that AM’s removal from office is, and had always been, of no effect (s 33U(2)).  I would declare the removal of AM to be harsh, oppressive or unfair and make the order envisaged under s 33U(2).  However, it would not be my intention to thereby include the period during which AM was imprisoned, that being a period when he was unavailable to discharge the duties of office.  I would request the parties to confer on the order to issue and provide the WAIRC with a draft order within 14 days of the issuance of this decision.

2         On 10 December 2009, the Commissioner of Police wrote stating that he had not been invited to make submissions as to whether it was appropriate to invoke s 33U(3) of the Police Act 1892 (“the Police Act”) and he remained unaware that there was a need to address the WAIRC  on the issue until the WAIRC’s decision was known.  The Commissioner noted the form of words used in [57] and asked for some indication as to whether or not the WAIRC was prepared to entertain submissions with respect to s 33U(3) or whether the WAIRC had made its final decision in that regard. 

3         In response, on 10 December 2009, AM opposed what was seen by him as a re-opening of the matter and submitted that it was no longer open to the Commissioner of Police to seek such an opportunity.  AM’s notice of appeal always sought an order under s 33U(2) and a respondent (that is, the Commissioner of Police) must respond to all aspects of the appeal including the appropriateness of the relief sought.  It is not for a respondent to wait to find out the outcome of the principal finding and then seek to address the WAIRC on the relief, nor wait to be invited to make submissions on the relief.  Further, AM submitted that the scheme in s 33 of the Police Act does not contemplate that there will be a separate enquiry after the decision is delivered.  In the view of AM, the issue should have been raised by the Commissioner of Police at the hearing of the appeal, and as the respondent did not submit that the relief sought would be inappropriate, AM did not deal with it in his submissions.  AM provided a minute of proposed order on 11 December 2009.

4         On 17 December 2009, the Chief Commissioner’s Associate was instructed to advise the parties that we had considered the correspondence and were prepared to agree to receive submissions with respect to s 33U(3) as requested by the Commissioner of Police.  Our reasons for doing so now follow.

5         The conclusions in [57] show the intention of the WAIRC.  That intention had not yet been given effect by the issuing of an order.  Indeed, both AM and the Commissioner of Police are to return to the WAIRC with a draft order.  We consider we have the power to receive submissions with respect to s 33U(3) and that it is a matter for our discretion whether to do so.

6         In the exercise of that discretion we gave weight to the fact that s 33U was not the subject of any evidence or submissions in the appeal.  This may have been because in proceeding on an appeal under s 33Q(1), the WAIRC is first to consider the Commissioner of Police’s reasons for deciding to take removal action; this may not include the Commissioner of Police’s submissions why the relief sought is opposed because no issue of relief will arise until after the removal has occurred and an appeal is lodged under s 33P. 

7         Further, the second requirement is to consider the case presented by AM as to why the decision was harsh, oppressive or unfair; the case presented did not specifically address AM’s current circumstances for the purposes of any order to issue under s 33U.  It is therefore understandable that the third requirement in s 33Q(1)(c), that of considering the case presented by the Commissioner of Police in answer to AM’s case, may not have addressed the matter.  

8         To the extent that our preparedness to receive submissions on the operation of s 33U in this matter is effectively re-opening the matter, we proceeded on the assumption that the parties did not wish to specifically address the relief sought.  That was not the case and therefore the parties have not been heard on that matter.  That is a proper basis for re-opening (Wentworth v. Woollahra Municipal Council and Others (1981) 149 CLR 672 at 684).  We note the Commissioner of Police is not seeking to re-argue his case and seeks to address only the issue of the operation of s 33U(3).  In the circumstances we would not wish to deny the opportunity of either party to put submissions regarding s 33U.  Only one previous decision of the WAIRC has given consideration to s 33U and, in the distinguishable circumstances of that case, that consideration did not extend to s 33U(3) (Maria Letizia Jones v. Commissioner of Police ((2007) 87 WAIG 1101; [2007] WAIRC 00440)

9         Accordingly, we indicated our preparedness to receive submissions.  On 8 January 2010 the Commissioner of Police provided a further written submission to which AM responded on 22 January 2010 in a further written submission.  We thank both parties for the assistance this has provided to us. 

10      The Commissioner of Police referred to s 33U(3) and (4).  They provide as follows:

(3)  If, and only if, the WAIRC considers that it is impracticable for it to be taken that the appellant’s removal from office is and has always been of no effect, the Commission may instead of making an order under subsection (2), subject to subsections (5) and (6), order the Commissioner of Police to pay the appellant an amount of compensation for loss or injury caused by the removal.

 (4) In considering whether or not it is impracticable for it to be taken that the appellant’s removal from office is and has always been of no effect it is relevant to consider —

 (a) whether the position occupied by the appellant at the time of his or her removal is vacant; and

 (b) whether there is another suitable vacant position in the Police Force.

11       In relation to s 33U(4)(a) and (b), the Commissioner of Police advised that the position occupied by AM at the time of his removal is not vacant, however another position commensurate with AM’s rank, experience and training is available.  This advice is not disputed by AM and we accept it and find accordingly.

The Further Submissions of the Commissioner of Police

12       In summary, the significant point made by the Commissioner of Police is that s 33U(3) obliges the WAIRC to consider whether or not it is impracticable for it to be taken that AM’s removal from office is and has always been of no effect.  The fact that s 33U(4) requires the WAIRC to have regard to the matters in sub-paragraphs (a) and (b) does not preclude the WAIRC from also considering other matters.  In other words, the matters in sub-paragraphs (a) and (b) are not exhaustive.  To interpret s 33U(4) as requiring the Commissioner of Police to reinstate a police officer subject only to the limited matters referred in sub-paragraph (a) and (b) creates a situation that is more restrictive than the general law pertaining to the reinstatement of employees.  The Commissioner of Police referred to Bienke v. Minister for Primary Industries and Energy (1994) 125 ALR 151 and to Murphyores Inc Pty Ltd v. Commonwealth of Australia (1976) 136 CLR 1 to support the submissions.

13       The Commissioner of Police further submits that, given the special relationship between the Commissioner of Police and police officers, any loss of trust is more significant than a breakdown of trust in an ordinary employment relationship.  In this case, the Commissioner of Police has lost trust in AM.  If the reason for the loss of trust was because of performance-related issues, the relationship between the Commissioner of Police and the police officer may not be irretrievably destroyed in the event the WAIRC found that the Commissioner of Police had not done all that he was required to do to remedy the officer’s performance prior to taking removal action.  However in a case such as this, the loss of confidence by the Commissioner of Police does not allow any prospect of any remedial activity by which the officer can regain that trust.  The Commissioner of Police is now in the difficult position of having to assign duties to the appellant that requires the exercise of extensive police powers when interacting with the community where the Commissioner of Police believes that AM represents a risk to the community.

14       Furthermore, as the Commissioner of Police has lost confidence in AM, and continues not to trust him in the performance of his duties as a police officer, this may permit his credibility to be questioned if ever AM himself was to give evidence in court proceedings.  The Commissioner of Police points out that the Court of Appeal did not acquit AM; it ordered a re-trial.

The Further Submission of AM

15       In summary, AM points out that the availability of another suitable vacant position in the police force favours a finding that it is not impracticable to make the order contemplated by s 33U(2) of the Police Act.  AM states that the authorities relied upon by the Commissioner of Police in support of the submission that the WAIRC is not restricted to the consideration in s 33U(4) are distinguishable from the facts of this matter.  He submits that s 33U(4) does not provide the WAIRC with the same wide powers as the general industrial relations legislation and there is no reason for inferring that the expressed considerations are not exhaustive.  If the considerations expressed in s 33U(4) are not exhaustive such that other considerations may be taken into account, AM submits that the practicability of reinstatement does not depend on notions of loss of confidence in the employee.  Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is practicable, provided that such loss of trust and confidence is soundly and rationally based. 

16       AM considers the fact that the Commissioner of Police is said to “harbour a suspicion” about him suggests that AM’s successful appeal, the dropping of the charge by the Director of Public Prosecutions without re-trial, and the WAIRC’s decision, is apparently irrelevant to the Commissioner of Police.  AM submits that the Commissioner of Police’s suspicion is not a sound and rational basis for the Commissioner of Police to conclude that reinstatement is impracticable.  AM submits that trust and confidence are the hallmarks of every employer-employee relationship and are not unique to the Commissioner of Police and police officers.  AM may be assigned any number of positions within the WA Police which may not require him to exercise the extensive powers of a police officer. 

17       In any event, the Commissioner of Police’s decision to remove AM is not taken on the basis that there was any doubt about AM’s performance or operational abilities.  There is no evidence to support the Commissioner of Police’s belief that AM represents a risk to the community.  AM rejects any suggestion that his credibility is likely to be questioned if he was called upon to give evidence as part of his duties.  The fact that the Court of Appeal ordered a re-trial in preference to an acquittal is irrelevant to whether it is impracticable to re-instate AM.  Concluding that re-instatement is impracticable would effectively operate to punish AM for a crime of which he has not been convicted.  It would deprive AM of the benefit of the WAIRC’s decision that his removal was harsh, oppressive or unfair and give AM the same outcome as the removal which had been found to be unfair.

Consideration

18       The first issue is whether, when the WAIRC is considering whether or not it is impracticable for it to be taken that the appellant’s removal from office is and has always been of no effect, we are restricted only to the matters set out in s 33U(4).  In Commissioner of Police for New South Wales v. Industrial Relations Commission of New South Wales and Raymond Sewell [2009] NSWCA 198 at [73], (2009) 185 IR 458 at 469 Spigelman CJ, with whom Macfarlan and Young JJA agreed, stated:

A statutory requirement to “have regard to” a specific matter, requires the Court to give the matter weight as a fundamental element in the decision-making process (R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329; R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333, 337-338; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at [71]- [73]).  An equivalent formulation is that the matter so identified must be the focal point of the decision-making process (see Evans v Marmont (1997) 42 NSWLR 70 at 79-80; Zhang supra at [73]). 

19       In this case, the language of s 33U(4) states that when considering whether or not it is impracticable for it to be taken that the appellant’s removal from office is and has always been of no effect “it is relevant to consider” the matters set out in s 33U(4)(a) and (b).  We consider there is little practical difference between a statutory requirement to “have regard to” matters and a statutory requirement making them a relevant consideration: in both cases, those matters are elevated into matters which are obliged to be considered.  We consider the matters set out in s 33U(4)(a) and (b) are fundamental elements in the decision-making process when considering whether or not it is impracticable for it to be taken that the appellant’s removal from office is and has always been of no effect.  The fact that another position commensurate with AM’s rank, experience and training is available means to that extent it is not impracticable for it to be taken that AM’s removal from office is and always has been of no effect.

20       We agree with the submission of the Commissioner of Police that s 33(4) does not preclude the WAIRC from also taking other matters into consideration.  This is because firstly, the language of s 33U(4) does not itself restrict the WAIRC’s consideration to the matters set out in sub-paragraphs (a) and (b): it makes them relevant considerations; it does not state that they are the only considerations.

21       Secondly, s 33Q(4) provides that the WAIRC is to have regard to the interests of the appellant and to the public interest “in determining the appeal” (underlining added).  The language does not restrict those matters only to determining whether the removal of a police officer was harsh, oppressive or unfair.  In other words, we consider the words “in determining the appeal” embrace both whether the removal of a police officer was harsh, oppressive or unfair and the relief to be ordered, if applicable. 

22       Thirdly, s 33S applies s 26(1)(a) of the Industrial Relations Act 1979 (“the IR Act”) (subject to Part II of the Police Act with any necessary modifications) to and in relation to an appeal and a determination of an appeal instituted under Part II B of the Police Act.  Section 26(1)(a) is as follows:

Commission to act according to equity and good conscience

 (1) In the exercise of its jurisdiction under this Act the Commission — 

 (a) shall act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms;

23       We conclude that the requirement on the WAIRC to act in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms is a requirement which argues against a narrow interpretation of s 33U(4).  Those three reasons, taken together, lead us to conclude that the Commissioner of Police is correct in his submission that in considering whether or not it is impracticable for it to be taken that AM’s removal from office is and always has been of no effect, the WAIRC is not restricted to the matters set out in 33U(4)(a) and (b).

24       We also now take into account the submission that notwithstanding our conclusion that AM’s removal was harsh, it remains the case that the Commissioner of Police continues to harbour a suspicion about AM and, therefore, has lost trust in him, that the Commissioner of Police believes AM represents a risk to the community and that notwithstanding that AM’s conviction was quashed, it remains the case that the Court of Appeal ordered a re-trial in preference to acquitting AM.

25       In our earlier reasons at [55], we noted that we accorded considerable respect to the perceptions of the Commissioner of Police regarding the special nature of the relationship between the Commissioner of Police and members of the police force.  The fact that the Commissioner of Police continues to harbour a suspicion about AM, and therefore has lost trust in him, is not to be treated lightly by the WAIRC.  However, with respect, the fact that the Commissioner of Police continues to harbour a suspicion about AM and therefore, has lost trust in him cannot be determinative of AM’s appeal.  By providing an appeal to the WAIRC in Part IIB of the Police Act, Parliament has given the power to the WAIRC to find that the removal of a police officer is harsh, oppressive or unfair and, pursuant to s 33U(2) the power to order that the removal from office is and is to be taken to have always been of no effect notwithstanding that the Commissioner of Police has lost confidence in that police officer.

26       Section 33L of the Police Act provides that the Commissioner of Police may lose confidence in a member’s suitability to continue as a member, having regard to the member’s integrity, honesty, competence, performance or conduct.  The process of appeal to the WAIRC, and the relief which the WAIRC may order does not depend upon which of those five reasons forms the reason for the loss of confidence.  In the Commissioner of Police’s submission, he places emphasis upon the doubt he has regarding AM’s integrity.  In Commissioner of Police for New South Wales v. Industrial Relations Commission of New South Wales (cited above at [18]) the New South Wales Court of Appeal considered whether there had been jurisdictional error on the part of the Full Bench of the Industrial Relations Commission of NSW refusing leave to appeal against a decision of that Commission that the removal of a police officer on the basis of the Police Commissioner’s loss of confidence in him was harsh in all of the circumstances, and ordered reinstatement.  In considering that matter, Spigelman CJ, with whom Macfarlan and Young JJA agreed, stated at paragraphs [75] and [76] (IR 458 at 470):

The central significance for the decision-making process in the Industrial Relations Commission of any issue of integrity that has been raised and of the Commissioner’s role in the legislative scheme can be accepted.  Nevertheless, the entire point of the provision for review in Div 1C of the Police Act is precisely to enable the Industrial Relations Commission to overturn the Commissioner’s decision on the basis of a finding, to be made by the Industrial Relations Commission, “that the removal is harsh, unreasonable or unjust”.

It cannot be, and it is not directly, suggested that the Police Commissioner’s decision on matters of this kind can be regarded as determinative.  Without saying so, as a matter of substance, that is what the applicant sought to achieve in this Court.  Of course, that is inconsistent with the conferral of a power of review on the Industrial Relations Commission. 

27       We consider those comments to be applicable in the circumstances of this case.

28       The power given to the WAIRC in s 33U(2) to order that AM’s removal from office is to be taken to have always been of no effect is analogous to the power given to the WAIRC in the general jurisdiction of the IR Act to order the reinstatement of an employee who has been harshly, oppressively or unfairly dismissed.  In such cases, the WAIRC has recognised that reinstatement should not be ordered where it is impracticable, nor where management has a genuine distrust or lack of confidence in the employee, nor if reinstatement would adversely affect staff morale or general discipline.  This was stated by the Full Bench of the Commission in Max Winkless Pty Ltd v Graham Lindsay Bell (1986) 66 WAIG 847 at 848 and the Full Bench continued:

“In other words reinstatement should not be contemplated without full regard for the consequences and that we take to be the import of the views expressed in Slonim v. Fellows (1984) 8 IR 175 by Wilson J at 181 that the power to order re-employment “will always be a power to be exercised with caution having regard to the circumstances of the case”. 

29       A similar approach has been adopted by the Industrial Relations Commission of NSW in dealing with reviews by that Commission when reviewing an order removing a police officer from the police service in that State: Van Huisstede v. Commissioner of Police [2000] NSWIRComm 97; (2000) 98 IR 57.  In that matter, Walton J concluded at [249] (IR 57 at 120):

“The proposed reinstatement of a police officer whose integrity has been impugned is a matter of some gravity having regard to the position of trust and responsibility occupied by the members of the police force in our society.  However, the remedy of reinstatement is clearly provided by the Act.  The capacity of an officer to seek the review by the Commission of his or her removal under s 181E is itself evidence that the legislature did not intend either the making of an order removing the officer or the fact of allegations being raised against the officer to of itself preclude reinstatement.”

30       A similar view was also expressed in Oswald v. New South Wales Police Service (1999) 90 IR 42 at 67.

31       In this case, we acknowledge that the Commissioner of Police continues to harbour a suspicion about AM and therefore has lost trust in him.  Given our conclusion that this cannot be determinative of whether it is impracticable for it to be taken that AM’s removal from office is and has always been of no effect, it is necessary to objectively consider the reasons given why the Commissioner of Police holds that view.  To the extent that it is for the same reasons given in the Commissioner of Police’s reformulated reasons, we have considered those in our earlier Reasons for Decision and given our conclusions why we consider the reformulated reasons do not rest upon a strong foundation. 

32       The Commissioner of Police also refers to a likelihood that AM’s credibility might be questioned if he was called upon to give evidence.  In the absence of any precedent or supporting authority for this submission, we regard the likelihood as remote and do not accord it great weight.  The Commissioner of Police again points to the fact that the Court of Appeal ordered a re-trial in preference to acquitting AM.  We are not entirely sure of the point being made.  We observe that the Commissioner of Police’s decision in July 2006 was not to take removal action pending the outcome of the criminal trial (Tab 2 of Commissioner of Police’s documents).  This was based upon the advice that while there is a separation between criminal prosecution and the loss of confidence process, the loss of confidence nomination was based upon the result of a criminal investigation (Tab 3).  The criminal trial did not finally determine the matter.

33       In relation to the public interest, it is vital to the integrity of the police force that its members be, and be seen to be, above reproach (Minister of Police and Commissioner of Police v. Desmond John Smith (1993) 73 WAIG 2311 at 2323 and per Fielding C at 2327; Police Service Board and Another v. Morris (1984) 156 CLR 397 at [412]).  However, we consider here that an order that AM’s removal is and is to be taken to have always been of no effect given the quashing of the conviction and the discontinuance of the proceedings by the Director of Public Prosecutions, thus leaving AM presumed innocent until proven otherwise, will not have an adverse effect upon the public perception of the integrity of the members of the police force. 

34       We consider that the harbouring by the Commissioner of Police of a suspicion about AM with his resulting loss of confidence in him, viewed objectively, in circumstances where the conviction against AM has been quashed and a retrial was ordered and did not take place means that AM is entitled to the presumption of innocence.  Given that another position commensurate with AM’s rank, experience and training is available, the fact that AM is not convicted of any offence and that there is no basis to doubt AM’s integrity, honesty, competence, performance or conduct from his past service as a police officer, leads to the conclusion that it is not impracticable to order that AM’s removal from office is to be taken to have always been of no effect.  We propose to make an order to that effect and we again request the parties to confer on the order to issue and provide the WAIRC with a draft order within 14 days of the issuance of this decision.