Daniel Skelly and Commissioner of Police (No 2) [2009] NSWIRComm 119 (31 July 2009)

Last Updated: 7 August 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Daniel Skelly and Commissioner of Police (No 2) [2009] NSWIRComm 119



FILE NUMBER(S):
IRC 89

HEARING DATE(S):
13 May 2009; 2 June 2009

DATE OF JUDGMENT:
31 July 2009

PARTIES:
APPLICANT (respondent to motion)
Police Association of New South Wales (on behalf of Daniel Skelly)

RESPONDENT (applicant on motion)
Commissioner of Police

CORAM:
Sams DP


CATCHWORDS: NOTICE OF MOTION - s 173 order under the Police Act 1990 - jurisdictional challenge - orders sought dismissing substantive application - power to dismiss substantive application should be carefully exercised - whether proposed transfer of police sergeant a non disciplinary transfer - reviewable or non reviewable action - finding of misconduct - previous conduct issues - Interim Management Plan - investigation - recommendation of reviewable action and s 181D dismissal during investigation - decision maker determines non disciplinary transfer - Police Force policies - previous legislative provisions - previous Police Regulations - Wood Royal Commission - remedial versus punitive purpose.

STATUTORY CONSTRUCTION - principles of statutory construction - legislative scheme - meaning of 'non disciplinary transfer' - ordinary grammatical meaning of words - words must have meaning and be given effect to - avoidance of absurd or irrational result - distinction between non disciplinary and disciplinary transfer - principle of 'presumption of regularity' - whether order made for ulterior purpose or in bad faith - cogent and persuasive evidence required.

Held; no cogent or persuasive evidence of ulterior purpose or bad faith - transfer arising from disciplinary process must be a disciplinary transfer - non disciplinary transfer may arise in interim management action - absurd and irrational result - no conflict with other statutory provisions - ordinary commonsense meaning of words - definition of 'punitive' - transfer must have 'punitive' effect - definition of 'non disciplinary transfer' rejected - proposed transfer is a disciplinary transfer - transfer is 'reviewable action' - substantive application competently before Commission - Commission has jurisdiction to determine application - notice of motion dismissed - further proceedings to be programmed.



LEGAL REPRESENTATIVES
APPLICANT (respondent to motion)
Mr A Howell
Police Association of New South Wales
RESPONDENT (applicant on motion)
Ms N L Sharp of Counsel
Solicitor: Ms S Price
Bartier Perry

CASES CITED:
Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) [2000] NSWIRComm 71; (2000) 99 IR 29
Connolly v Commissioner of Police (27 August 1976; Appeal No 34 of 1976; unreported);
Daniel Skelly and Commissioner of Police [2009] NSWIRComm 70
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; (1997) 170 CLR 649
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Molloy v Commissioner of Police (6,7 & 8 December 1993; Appeal No P364 of 1993; unreported)
Nagle (T/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8
Public Service Association (NSW) v Public Service Board (NSW); Re Cumberland Hospital (1987) 22 IR 422
SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771
Virtue v New South Wales Department of Education and Training (1999) 92 IR 428
WorkCover Authority (NSW) (Inspector Hamilton) v John Holland Pty Ltd (2009) 180 IR 262
PUBLICATIONS
Pearce & Geddes, Statutory Interpretation in Australia, 5th ed, (2001), Butterworths
Royal Commission into the New South Wales Police Service, May 1997, Final Report Volume II: Reform

LEGISLATION CITED:
Industrial Relations Commission Rules 1996
Police Act 1990
Police Regulation Act 1899
Police Service Amendment (Complaints and Management Reform) Act 1998


TEXTS CITED:




JUDGMENT:

- 37 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: SAMS DP


31 July, 2009

Matter No IRC 89 of 2009

Daniel Skelly and Commissioner of Police

Application by Daniel Skelly under section 174 of the Police Act 1990 for review of an order of the Commissioner of Police

DECISION ON NOTICE OF MOTION

[2009] NSWIRComm 119

1 This decision determines a notice of motion, filed by the Commissioner of Police (the applicant on the motion), which seeks orders from the Commission, pursuant to r 82(1)(i) of the Industrial Relations Commission Rules 1996, dismissing an application under s 174 of the Police Act 1990 ('the Act') for want of jurisdiction. The notice of motion filed on 30 March 2009, arises from proceedings ('the substantive proceedings') brought by the New South Wales Police Association (the respondent to the motion) on behalf of its member, Sergeant Daniel Skelly ('Sgt Skelly'). The substantive proceedings commenced by way of an application filed on 22 January 2009, under s 174 of the Act, in which Sgt Skelly seeks a review of a proposed order of the Commissioner of Police, made under s 173 of the Act. That order involves a contention by the applicant that Sgt Skelly's proposed transfer to the Brisbane Waters Local Area Command (LAC) from Lake Macquarie LAC was a non disciplinary transfer (as defined) and, therefore a non reviewable order under s 173 of the Act.

2 There can be little doubt that if the applicant's contention is made good, the Commission would be bound to dismiss Sgt Skelly's substantive application for want of jurisdiction. The Association strenuously rejects the applicant's contention and maintains that Sgt Skelly's transfer must be a disciplinary transfer, (and therefore open to review by the Commission), because it arose directly from a disciplinary investigation. Essentially, this is the nub of the jurisdictional issue requiring determination by the Commission. To do so will involve both a consideration of the facts and circumstances surrounding Sgt Skelly's proposed transfer and the meaning of the expressions 'non disciplinary transfer' and 'reviewable action' as they appear in the Act.

3 At this juncture, it is noted that I have used the expression 'proposed transfer' because Sgt Skelly is currently on sick leave following a work related injury on 24 July 2008, while he was working at Newcastle LAC under an Interim Management Plan. Consequently, the transfer has not been effected in a practical sense. Further, there is no dispute that Sgt Skelly's proposed transfer will not result in him losing any income, seniority or reduction in rank.

4 It is now necessary to outline the precise terms of the s 173 order, made by Superintendent Craig Rae ('Supt Rae') on 7 January 2009:

SECTION 173 - NON-REVIEWABLE ORDER

This order is issued in consequence of investigations referable to Catsi Number PO801255 concerning allegations in relation to your conduct.

Commissioner's Warning Notice

On 30 August 2007, you were served with a Commissioner's Warning Notice resulting from your conduct on the night of 31 December 2004, including the use of improper physical violence against Mr Benjamin Nash while he was under arrest. You were also subject to reviewable action pursuant to section 173(2) of the Police Act 1990, whereby your increment was reduced from Sergeant Year 4 to Sergeant Year 3.

In the Commissioner's Warning Notice, Commissioner Moroney stated that:

I want you to be absolutely clear that I will not tolerate this type of behaviour and expect the highest levels of ethical behaviour from members of the NSW Police Force.

...

Whilst you have been given the benefit of a warning on this occasion, I wish to draw your attention to the 'New South Wales Police Code of Conduct and Ethics' and my 'Statement of Professional Conduct'. You are reminded that it is incumbent on you as a member of the New South Wales Police to adhere to the expectations of ethical and professional conduct. I want you to clearly understand that I will not tolerate any future failures to comply with the required standards of a police officer, and that any future failures may result in further consideration of reviewable action under section 173 of the Police Act 1990 or removal action under the provisions of section 181D of the Police Act 1990.

It is consequently very disappointing that I am now required to order that non-reviewable action be taken against you as a consequence of your conduct, as set out below.

Background

During the evening of 17 March 2008, you were involved in a physical altercation with your son, Daniel Skelly Jr. Mr Skelly Jr was 18 years old at the time and resided with you and your fiancee, Ms Tracey Johns. I am satisfied that:

§ at around 7:00pm on 17 March 2008, Mr Skelly Jr packed a bag of his belongings, told you he was moving out of home and got into his car;

§ you leaned in the passenger side of Mr Skelly Jr's car to speak to him;

§ Mr Skelly Jr asked you to get out of the car;

§ you refused and Mr Skelly Jr attempted to drive away;

§ you tried to knock the car out of gear and Mr Skelly Jr stopped the car; and

§ you then jumped into the passenger seat of Mr Skelly Jr's car.

Mr Skelly Jr states that an argument developed during which you called him a "selfish little cunt" and he called you a "fuck head". Mr Skelly Jr claims that you punched him around the head and that he "then tried to have a go back". During the struggle, Mr Skelly Jr dialled '000'. Mr Skelly Jr says that the struggle lasted about 30 seconds before Ms Johns pulled you from the car. Mr Skelly Jr then drove to his maternal grandmother's house.

Later on 17 March 2008, Sergeant Daren Holmes attended Mr Skelly Jr's maternal grandmother's house. He says he observed a cut inside Mr Skelly Jr's lip. Sergeant Holmes applied for an apprehended domestic violence order against you.

I note that you deny striking Mr Skelly Jr. I note that you say that Mr Skelly Jr grabbed and pushed you to get you out of his car and hit you on the side of your face and swore at you.

Mr Skelly Jr does not wish to pursue criminal charges. Nevertheless, in all the circumstances, I am satisfied that on 17 March 2008, you were involved in an altercation with Mr Skelly Jr during which you used improper physical violence against him.

Consideration

On 30 August 2007, you were issued with a Commissioner's Warning Notice warning you that improper physical violence will not be tolerated by the NSW Police Force. You were clearly warned that any future failure to comply with the required standards of a police officer may have serious consequences. I am extremely disappointed that you have breached the Commissioner's Warning Notice by again using improper physical violence.

Your extensive complaint history is of real concern to me. It appears that you have difficulties in your relationships with others, which, at times, cause you to resort to verbal abuse or physical violence. I reiterate that this kind of behaviour will not be tolerated by the NSW Police Force. In all the circumstances, I have concluded that you require greater supervision than is available to you while stationed at Boolaroo police station. Your conduct, constituting a breach of the Commissioner's Warning Notice, has fallen well below the standard expected of a sworn officer. In the interests of ensuring that the greater supervision I consider you require is provided, I have decided that a non-disciplinary transfer is the most appropriate outcome in the circumstances.

In considering this order, I have taken into consideration the fact that your son also participated in the physical altercation on 17 March 2008, and that he does not wish to take the matter any further. These factors do not alleviate my concerns in regards to your conduct but you should be aware that these matters have influenced the decision to refrain from taking further management action against you, including reviewable action under subsection 173(2) of the Police Act 1990, or removal action under section 181D of the Police Act 1990.

Accordingly, pursuant to subsection 173(1) and Schedule 1 of the Police Act 1990, I hereby order that non-reviewable action, being a non-disciplinary transfer to Brisbane Waters Local Area Command, be taken in consequence of your conduct.

In making this order, I reinforce the need for you to act at all times in accordance with the obligations and requirements of the Police Act 1990, the Police Regulation 2008 and the NSW Police Force Code of Conduct.

Any continued unsatisfactory conduct may result in further management action, which may entail consideration of reviewable action under subsection 173(2) of the Act, or removal under section 181D of the Act.

5 It is also necessary to trace a brief chronology of the applicant's investigation and decision making process which led to the making of the s 173 order. Sgt Skelly had been the subject of a Commissioner's warning notice and s 173 reviewable action in August 2007, which arose from an incident of improper physical violence of a person under arrest.

6 On 17 March 2008, a physical altercation occurred between Sgt Skelly and his 18 year old son at their home. The police were later called. The day after the incident, the matter was recorded as a Category 2 Complaint - PO801255. An Apprehended Violence Order (AVO) application was taken out against Sgt Skelly.

7 On 17 March 2008, Sgt Skelly's son indicated to Sergeant Daren Holmes ('Sgt Holmes') that he did not wish to take any further action against his father. However, the Local Area Commander assessed the complaint as 'notifiable' and Inspector Murray Lundberg ('Insp Lundberg') was appointed to investigate the complaint. Insp Lundberg interviewed Sgt Skelly, his fiancé (now wife) Tracey Ann Johns and his son, Daniel.

8 On 9 April 2008, the Northern Region Professional Standards Command Conduct Management Team (CMT) met to consider the complaint after it was removed from the Lake Macquarie LAC CMT by Assistant Commissioner Lee Shearer ('AC Shearer'). Reviewable action was recommended at this time.

9 On 10 April 2008, the Northern Region Professional Standards Command CMT meeting recorded AC Shearer as raising concerns about Sgt Skelly's complaint history, which involved various assaults and domestic violence matters. AC Shearer reallocated the investigation to Superintendent Geoff McKechnie ('Supt McKechnie'), of the Brisbane Waters LAC. The Brisbane Waters LAC itself met on 16 April 2008.

10 On 2 May 2008, the Northern Region Professional Standards Command CMT met and decided on interim management action and directed Sgt Skelly be transferred to Newcastle LAC as an Education Development Officer (EDO). He was also served with a warning notice in respect to an earlier complaint.

11 On 19 May 2008, Supt McKechnie applied for approval under s 148 of the Act to commence criminal proceedings against Sgt Skelly. That application was refused by AC Shearer.

12 On 3 June 2008, the Northern Region Professional Standards Command CMT met and received a memorandum from Supt McKechnie in the following terms:

"I recommend Sergeant Skelly have his firearm returned and be available for operational duties as Newcastle LAC see fit. I have informed him that as an interim management step he will remain at Newcastle LAC until the matter is resolved at the IRP. He is subject of a Commissioner's Warning Notice from a previous matter and he bears watching in terms of this I will be recommending that further s 173 action be taken against Sgt Skelly particularly in the form of transfer, ultimately it may be up to Lake Macquarie LAC to make the mandatory notification to the Panel..."

13 On 10 June 2008, the Northern Region Professional Standards Command CMT considered Supt McKechnie's investigation report. AC Shearer believed that the matter should be referred to the Internal Review Panel (IRP). The incident involving an assault on Sgt Skelly's son was 'sustained' departmentally. It was recognised that the complaint was of concern and that Sgt Skelly had anger management issues. It was decided to undertake a further risk assessment.

14 On 25 June 2008, the Northern Region Professional Standards Command CMT met again. The Region Commander requested the matter be referred to the Commissioner's Advisory Panel (CAP) for consideration as a s 181D process. This referral was based on:

a) a sustained assault finding;

b) the earlier Commissioner's Warning Notice; and

c) a complaint history of 18 entries with several involving violence - 11 required some form of departmental action.

15 On 1 July 2008, Supt McKechnie presented his amended investigation report and recommended that s 173 reviewable action should be taken in the form of a managerial transfer.

16 On 22 July 2008, Sgt Skelly was advised that the matter had been referred to the IRP, and due to the serious nature of the issues involved, a risk management strategy was to be put in place.

17 On 25 July 2008, the Northern Region Professional Standards Command CMT met to discuss Supt McKechnie's report. AC Shearer did not agree with s 173 reviewable action and believed the matter should proceed to the CAP as a s 181D nomination. This was agreed to by the CMT.

18 On 14 August 2008, the Northern Region Professional Standards Command CMT considered Sgt Skelly's son's affidavit and decided it had no bearing on the s 181D referral. A Panel Notification form was prepared accordingly. Sgt Skelly was advised on 30 September 2008.

19 The IRP/CAP met on 10 December and identified the matter as 'Top end reviewable' but concluded 's 173 Non reviewable transfer'. Supt Rae phoned Sgt Skelly and told him:

"The IRP got legal advice that a matter at the IRC would not be successful for the police and so they went for a non-reviewable."

20 Around 18 December 2008, Supt Rae advised that the Region Commander had decided to 'force transfer' Sgt Skelly to Brisbane Waters LAC. The order was served on Sgt Skelly on 7 January 2009.

THE EVIDENCE

For the Force

21 Ms N L Sharp of Counsel tendered a number of documents in support of the applicant's notice of motion, including the Force's Complaints Handling Guidelines - a 107 page policy document which was referred to extensively in the proceedings and to which I shall refer to from time to time. Reliance was also had on an affidavit of Inspector Philippa Woolf ('Insp Woolf') who described the different levels of supervision at Lake Macquarie LAC (comprising seven stations) with a low level of front line supervision and Brisbane Waters LAC (comprising three stations). The main station at Gosford is the most accessible by all forms of transport and offers the greatest scope for supervision. At Gosford there is an inside supervisor, a custody sergeant and a mobile supervisor on each shift.

Association's Evidence

22 Mr A Howell provided a folder of material which included the following:

1. Modules 1-5 of the NSW Police Force Complaint Management Manual (Published November 2005).

2. Police Service Amendment (Complaints and Management Reform) Act 1998 and surrounding materials (Explanatory Memoranda, Second Reading Speech).

3. Extracts from the Royal Commission into the New South Wales Police Service, May 1997, Final Report Volume II: Reform.

4. Police Service (Complaints, Discipline and Appeals) Amendment Bill 1993, including explanatory memoranda and Second Reading Speech.

4. Police Service Act 1990 No. 47 with Second Reading Speech.

5. Police Service Regulation 1990.

6. Police Regulation Act 1899, Police Rules 1977, Police Regulation (Appeals) Act 1923.

23 Other documents relied upon by the Association included:

a) Police Circular 08/02 - Changes to Mandatory notifications to the IRP or the CAP.

b) The Investigator's Report 1 July 2008, recommending s 173 reviewable action in the form of a managerial transfer.

c) CMT Minutes - 14 August 2008, recommending s 181D proceedings.

d) IRP/CAP Minutes - 10 December 2008, recommending non reviewable action but noting 'Top end reviewable'.

e) s 148 application.

24 Mr Howell also relied on an amended statement of Sgt Skelly. Much of this statement traced the history of the matter. However, for relevant purposes Sgt Skelly stated that he had performed EDO duties, acting at the rank of Sergeant, from June 2003 until July 2008. He claimed that throughout this period he had been praised for his diligence and professionalism. Sgt Skelly said that when Insp Lundberg was investigating the matter he had told him, and his wife (separately), that he (Sgt Skelly) could expect one of three things from the investigation: dismissal, transfer or demotion.

25 Sgt Skelly said that in late May 2008, while working as a Team Leader in Newcastle, he contacted Supt McKechnie to inquire as to the progress of his matter. Supt McKechnie told him that Legal Services had advised of an adverse finding being made against him and that the matter was to be referred to Northern Region IRP. Sgt Skelly said that Supt McKechnie had told him that his recommendation was for a permanent transfer to Newcastle as Team Leader.

26 On or about the second week of August 2008, Inspector Mark Vaughan ('Insp Vaughan') advised Sgt Skelly that he was to be recommended for s 181D dismissal. When he had asked why, Insp Vaughan said the Region Commander had changed her mind. Over Ms Sharp's objection, Sgt Skelly said that when Supt Rae told him of his forced transfer on 10 December 2008, the following exchange occurred:

On 10 December 2008 my complaint matter went before the Internal Review Panel. Superintendent Rae telephoned me that afternoon and informed me that it was decided a forced transfer was recommended and that he would support that. He also said words to the effect of:

"The IRP was considering more serious action. You should be happy they didn't decide more serious action or a 181D."

I said:

"Why didn't they do a 181D or take more serious action?"

Superintendent Rae said words to the following effect:

"The IRP got legal advice that a matter at the IRC would not be successful for the police and so they went for a non-reviewable."

I said words to the effect of:

"Where am I going to be transferred to?"

Superintendent Rae said words to the effect of:

"I think it will be Newcastle but don't hold me to it because its up to the Region Commander. It would be good for you if you just accepted it and didn't offend anyone."

(The Commission ruled that this evidence was admitted on a limited hearsay basis.)

27 On 18 December 2008, when Sgt Skelly was told of his transfer to Brisbane Waters LAC, Supt Rae had said:

"Yeah, it would have made better sense just sending you to Newcastle but she [referring to Region Commander, Assistant Commissioner Lee Shearer] makes the decisions."

28 Around the time of the service of the order, Sgt Skelly spoke again to Supt Rae, who told him:

"The IRP took into account the current matter and your other complaints, and it was determined that you go to Brisbane Waters. In my view Newcastle would have been a better option but it was the Region Commander's decision. You should be happy because you could have got the sack and the IRP were going along those lines."

29 Sgt Skelly responded to Insp Woolf's affidavit as follows: In his role as an EDO, he does not perform general policing duties. He oversees and co-ordinates the delivery of training to probationary constables. Sgt Skelly said that at Boolaroo he worked out of the same office as the Superintendent, the Local Area Manager and all the Duty Officers, one of whom is rostered on day shift. He didn't believe that more supervision would be provided by his transfer.

30 Sgt Skelly believed that his transfer was a punishment. Transfer to Gosford Police Station is the furtherest main station from his home, whereas other stations are much closer, including Newcastle City, Waratah and Maitland. He currently lives five to ten minutes drive from work. Driving to Gosford would take over one hour, with associated costs in running his vehicle or an hour and a half each way on public transport and then a 10 minute walk to the Station. The transfer will also involve moving from fixed 10 hour shifts to a 24/7 rotating general duties roster.


SUBMISSIONS

For the Force

31 Ms Sharp submitted that, as a matter of statutory construction, it cannot be right that a 'non disciplinary transfer' necessarily arises out of a disciplinary process. Rather, she said a non disciplinary transfer was a non punitive response to a finding of misconduct which focuses on rehabilitation.

32 Ms Sharp put that the s 173 order is expressly styled as a non disciplinary order and, therefore, it means what it says it is. Supt Rae, having considered the assault incident and the mitigating circumstances, decided on a less serious form of s 173 action as being appropriate. Ms Sharp said that one must construe the expression as it is used in the statute to determine what is a 'non disciplinary transfer'. The next step is to look at the issues of fact. Firstly, the order is what it holds itself out to be, and for the reasons given. Secondly, the question is looked at as a matter of substance. Ms Sharp submitted that a 'non disciplinary transfer' is a rehabilitative response, rather than a punitive response to an incident of misconduct. There was no punitive intent by the decision makers during the internal deliberative process.

33 Ms Sharp understood that the Association was also submitting that the Force's decision was made for an ulterior purpose and this must also include an allegation of bad faith: See SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771. Ms Sharp put that this was a very serious allegation which must be supported by cogent evidence. There was no such evidence in this case and the onus was on the Association to prove an allegation of bad faith.

34 In dealing with statutory construction, Ms Sharp submitted that because the Act provides for a 'non disciplinary transfer' then such a thing must exist and the words of the statute must be given effect to. Ms Sharp said that it was wrong to suggest that s 173(2)(d) does not allow for the making of non reviewable orders. It was intended that reviewable and non reviewable action could be ordered at the same time. She stressed that s 69 of the Act - Transfer of Non Executive Police Officers - has nothing to do with this case, which concerns a non disciplinary transfer.

35 Ms Sharp submitted that the proposition that if a transfer is in response to a disciplinary process, then it must be a disciplinary transfer is wrong, because the 'trigger' for both a disciplinary and a non disciplinary response can only be a finding that the officer has engaged in misconduct.

36 She said a second reason why the Association's submission cannot be right is that the legislature intended a two tier system of discipline. The first tier is a managerial rehabilitative response with no punitive effect, and the second tier was concerned with imposing a financial penalty. This was evident in the Minister's Second Reading Speech which, as extrinsic material, can assist in the statutory construction context. Ms Sharp put that the Association can draw no comfort from the old disciplinary schemes under repealed statutes. The 1998 Act had replaced the processes which had been criticised by the Wood Royal Commission. The intention was to draw a clear distinction between punitive and remedial action in the 1998 Act. The Royal Commission had said at 4.1 "That old system was counterproductive because of its adversarial nature and concentration on punitive rather than remedial action". Where the extrinsic material assists in construing what is a 'non disciplinary transfer', Ms Sharp said:

What I wanted to do was summarise where the extrinsic material in my submission takes us in this matter when it comes to construing what a non disciplinary transfer is and it is my submission that when regard is had to the extrinsic materials, it is clear that the legislature intended to create a two-tier system of discipline.

In circumstances of more minor misconduct they were to be dealt with using a remedial approach whereas more serious cases were to attract financial penalty. Secondly, it was the intention of the legislature that where orders were made imposing financial penalty there would be a right of review. Thirdly, it was the intention of the legislature that when orders were made which were not in the nature of a financial penalty there would be no right of review and, fourthly, that in the first existence, because the preference was to move to a remedial approach, that consideration was to be given to whether the remedial penalty was appropriate in lieu of a financial penalty.

37 Ms Sharp then dealt with the questions of fact. She said the reasons set out in the order make it clear that it is to provide greater supervision of Sgt Skelly; this is a rehabilitative purpose. This was plain from the uncontested affidavit of Insp Woolf. Ms Sharp said there was no intention to punish Sgt Skelly simply because he may have to drive further to work.

38 Ms Sharp put that there was nothing unusual in the disciplinary process which was conducted strictly according to the Force's Guidelines, and included interim management action under s 171(2) of the Act. Ms Sharp traced all the steps taken in the process which was, she said, a complicated and elaborate one; moving from the investigator to the CMT, the Acting Commander, the IRP and finally, the Local Area Commander. Ms Sharp put that during this process, various people can take different views. Once a criminal allegation had been made, the Force had no discretion as to how the complaint was handled. Supt McKechnie had recommended a managerial transfer (disciplinary transfer). AC Shearer had proposed a s 181D notification. However, the IRP had recommended a non reviewable transfer. From all of this, Ms Sharp said that nothing indicated a punitive intent in the end result. It is irrelevant that other people had a view of more serious action, because in the end it was viewed at the lesser end of seriousness. There is nothing in the materials to suggest that the Force acted with an ulterior purpose or in bad faith. The question is - was the intent of the order to impose a financial penalty? Plainly, it was not - its intent was to have a rehabilitative purpose.

For the Association

39 Mr Howell opened his case by submitting that there were two issues requiring resolution - what is a 'non disciplinary transfer' and how do the facts apply in these circumstances?

40 Before dealing with these questions, Mr Howell said a pre-emptory jurisdictional attack of this kind needs to have regard to the principles discussed in Nagle (T/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8. The Commission would need to be satisfied that there was a sufficient factual foundation to form a concluded view as to jurisdiction. The Commission would need to be positively persuaded that the s 173 order was 'non reviewable action'.

41 Mr Howell submitted that even if the Commission accepts the applicant's construction of the Act, there is a paucity of evidence concerning what lay behind the decision making process. The Superintendent who made the order gave no evidence and could not be tested on what he says in the order; notwithstanding that the Association had asked for the Superintendent to be made available for cross-examination.

42 Mr Howell suggested an alternative proposition. He submitted that determining whether the action is punitive or rehabilitative really asks the wrong question. The Commission should hear the full case and decide the issue of jurisdiction after all of the evidence is admitted.

43 On the construction issue, Mr Howell agreed with Mr Sharp on the principles to be applied by the Commission. However, the Commission needs to have regard to context and that included the relevant legislative history, particularly emanating from the Wood Royal Commission. This demonstrated that both the context and the ordinary English meaning of the words arrive at the same conclusion - a 'non disciplinary transfer' is not a transfer for the purpose of promoting or enforcing discipline, but rather it is a procedural adjunct following receipt of a compliant which is designed to facilitate a management trial, pending final determination of the complaint. It comprehends having an end point. Mr Howell said he had never contended that non reviewable action cannot be taken under s 173 of the Act. The fact is that the two notions sit inconsistently in the same section.

44 In looking at the legislative history, it is clear that the 1998 Act, for the first time, included the capacity to take interim action about a complaint before it is finalised. This is expressed in s 171(2) of the Act as interim action and not a disciplinary outcome or in the words of the Royal Commission 'a management trial'. To make good his point, Mr Howell traced the legislative history of police discipline from the Police Regulation Act 1899 and later Regulations, Police Rules and Acts. As to the Royal Commission Report, Mr Howell submitted it was advocating three things: transfers should never be used as a disciplinary outcome. However, the old system did not allow the Commissioner to deal with a complaint before an investigation had concluded; hence s 171(2) was to be used as a temporary management tool.

45 Mr Howell tendered a detailed chronology of the disciplinary process in this case with cross references to the Force's various policies.

46 Mr Howell returned to the Royal Commission Report and said that it had identified two concerns about the use of transfers. One was that it simply shifted a problem to somewhere else and an external review was limited to transfers intended as punishment. It recommended a model where transfers could be used as a procedural adjunct pending resolution of a complaint. This became s 171(2) of the Act. Disciplinary transfers remained as a tool for addressing misconduct and left them with a right of review. The 'non disciplinary transfer' was interim in nature and not taken for the purpose of promoting or enforcing discipline. The Minister's Second Reading Speech responded to criticism of the old system for the length of time disciplinary matters took and streamlined the complaints system while at the same time ensuring more serious action was reviewable. If the legislature intended as the Force submits, it would have included a punitive transfer in Schedule 1. However, it left the more serious actions subject to review. The Minister had noted that the amendments to the Act had proceeded with the consent of the Association and the Commissioned Police Officers' Association. Consent would never have been given in circumstances where a member engaged in misconduct and who was forcibly transferred, did not retain a right of review. In this case, Sgt Skelly was transferred from his substantive position to Newcastle as an interim 'non disciplinary transfer' pending resolution of the matter. If, as here, a permanent transfer is imposed as a disciplinary outcome, then it is 'reviewable action' and squarely within jurisdiction.

47 Mr Howell added that if the Force's case is that the transfer is not punitive and therefore, not a disciplinary transfer, then it is wrong. Mr Howell said that on one view, the purpose of the transfer is irrelevant; the question is whether or not it is imposed as a disciplinary measure. Mr Howell said the Force's case ignores completely the ordinary meaning of the words 'non disciplinary transfer'. It cannot possibly stretch to mean one which involves no financial penalty. Further, if the Force's construction is correct, then an officer could be forcibly transferred without ever being told of adverse findings or ever being given an opportunity to respond, except in proceedings in the Supreme Court under its supervisory jurisdiction.

48 Mr Howell submitted that even if the Commission was to accept the Force's construction, then the transfer would be seen to be punitive and made for an ulterior purpose. The circumstances here disclose an investigation which considered Sgt Skelly's removal, but then drops the seriousness to a non reviewable transfer based on no more than legal advice that more serious action wouldn't stand up to review. No senior officer was advanced by the Force to explain how this occurred: See Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

49 Mr Howell said that the transfer was punitive and imposed for an ulterior purpose because:

Firstly, the language of the order makes clear it is regarded as serious findings of misconduct.

Secondly, the findings of the investigation that there was an assault and a breach of the Commissioner's Warning Notice simply cannot be characterised as at the lesser end of seriousness.

Thirdly, the history of the decision making process makes clear the matters were of increasing seriousness, even including a recommendation of criminal charges.

Fourthly, the Force's transfer policy makes plain that if a transfer derives from a conduct or performance concern, it is to be treated as reviewable.

Fifthly, the dire effects of the order on the applicant.

Sixthly, no explanation was offered as to why Gosford was selected when Newcastle was said to be more appropriate.

Seventhly, it was illogical to transfer someone alleged to be involved in an assault and with anger management issues from a desk bound job to general duties delivering front line services to the general public.

Eighthly, Sgt Skelly was told by Supt Rae the reason why more serious action wasn't imposed.

50 Mr Howell detailed the evidence in support of each of these propositions. This included the reference to the complaints as a Category 2, being the second most serious nature of complaint against an officer and as being treated as 'notifiable'. Mr Howell tracked the process through the various levels of complaints handling, which included s 181D considerations. It included Sgt Skelly being transferred to Newcastle under a Interim Management Plan, involving six strategies for increased supervision. However, Gosford has now been selected for Sgt Skelly's transfer, leaving open the inference that Newcastle wasn't considered harsh enough punishment. There was no evidence from the Superintendent as to why Gosford was selected. It was about as far south as one could be sent without going outside the regional boundary. The distance from his present residence to Newcastle is 16.6km, but to Gosford it is 79.5km and previously he was only 6.3km from home.

51 Mr Howell noted that the new information said to have changed the Force's attitude was Mr Skelly Jr's affidavit of 4 August 2008, in which he said he had punched his father and he didn't want to take the matter any further. However, the investigator had already been aware of this from Sgt Holmes' notebook entry on 17 March 2008, and Mr Skelly Jr's own record of interview on 31 March 2008.

52 Mr Howell said that, ironically, the proposed transfer of Sgt Skelly will see him put into a supervisor's role and general duties, whereas his current role does not involve interaction with the public as an EDO, which he secured on merit. He would also be required to work on a rotating roster, rather than his current fixed day shifts. Access to public transport was also an issue. All of Sgt Skelly's personal circumstances would have been known to the Superintendent and the IRP and they would have been aware of the detrimental effect the order would have on him.

53 Mr Howell said that Sgt Skelly's complaint history (described as 'moderate') was not a cause for the original concern. It became an issue later on, yet there is nothing to suggest that it warranted him being transferred. Mr Howell submitted that the transfer decision was taken for an ulterior purpose; namely to remove Sgt Skelly: See Public Service Association (NSW) v Public Service Board (NSW); Re Cumberland Hospital (1987) 22 IR 422.

54 Mr Howell said he was not making an allegation of bad faith as the authorities relied on by Ms Sharp identified, but merely that the decision was made for an ulterior purpose. This was demonstrated by Sgt Skelly's account of a conversation with Supt Rae on 10 December 2008, which the Superintendent had not denied; nor was he called to give evidence: See Jones v Dunkel. It remained unclear as to who actually drafted the order.

55 Mr Howell cited the judgments in Connolly v Commissioner of Police (27 August 1976; Appeal No 34 of 1976; unreported) and Molloy v Commissioner of Police (6,7 & 8 December1993; Appeal No P364 of 1993; unreported), which dealt with an earlier provision in the regulations which offered a right of appeal to a transferred officer where the transfer is intended to be punitive.

In reply

56 Ms Sharp submitted that it was not for the Force to prove that this is a non disciplinary order because it has the benefit of the 'presumption of regularity': See Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; (1997) 170 CLR 649 and Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154. In light of these cases, it is the Association which bears the burden to prove that the decision was for an improper purpose and that requires cogent and persuasive evidence. Such evidence does not exist in this case. Ms Sharp reiterated that a 'non disciplinary transfer' is a transfer imposed for a rehabilitative objective, not for a punitive purpose. Mr Howell's definition that a non disciplinary transfer is one that is not for the purpose of promoting discipline, cannot be right. This is so because the trigger for either transfer is a finding of misconduct. Ms Sharp noted that the applicant's case had changed significantly to one in which it is said can only apply as interim action.

57 Ms Sharp said that a rule of statutory construction requires each word in a statute to be given meaning and effect. Mr Howell's incorrect submission means that there is no such thing as a 'non disciplinary transfer' arising from a finding of misconduct. Ms Sharp noted that the Royal Commission proposed two layers of discipline: rehabilitation and punitive. This assists the Force's construction arguments.

58 Ms Sharp also put that there can be no assistance gained by looking at repealed legislation or regulations, and such reliance should be treated with caution: See Pearce & Geddes, Statutory Interpretation in Australia, 5th ed, (2001) Butterworths.

59 Ms Sharp responded to the improper purpose argument by noting the careful objection taken (and upheld) to the hearsay nature of conversation between Sgt Skelly and Supt Rae which was referred to in Sgt Skelly's affidavit.

60 The order makes plain that it is to provide greater supervision to Sgt Skelly. It is also clear that the investigation took some months and various people expressed different views during the process. Ultimately, the decision maker, Supt Rae and not AC Shearer, had accepted advice from the IRP. AC Shearer's view was rejected. Ms Sharp said it was also apparent that Mr Skelly Jr changed his story and this prompted a reconsideration of the matter. However, AC Shearer believed the affidavit didn't change anything.

61 Ms Sharp said that given the 'presumption of regularity' it was not for the Force to call Supt Rae as the final decision maker. Ms Sharp said that the highest Sgt Skelly's case got as to demonstrating a punitive effect was that he had to drive an hour longer. That cannot be cogent evidence of a punitive effect. Punitive must mean a financial penalty.

CONSIDERATION

Preliminary

62 The practical effect of the Commission granting the applicant's jurisdictional notice of motion will result in Sgt Skelly's substantive application being summarily dismissed by an order made under r 82(1) of the Commission's Rules. This power, sought as it is, at a threshold or preliminary stage of the proceedings, is one which should be 'sparingly employed': See General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128 and 129, and used only when the Commission is satisfied that it has the necessary material for reaching a final and definite conclusion that no order could be made which could be within jurisdiction: See Nagle v Tilburg and Virtue v New South Wales Department of Education and Training (1999) 92 IR 428. I acknowledge that there is some force to Mr Howell's submission in this regard, particularly bearing in mind that there was no evidence from the Force's decision makers, most notably the final decision maker Supt Rae, as to what matters he had taken into account or had regard to when making the decision to transfer Sgt Skelly to Brisbane Waters LAC. However, I am comfortably satisfied that there is sufficient evidentiary material before the Commission, at this stage in the proceedings, to determine the jurisdictional issue based on the proper construction of the words 'non disciplinary transfer' in Schedule 1 of the Act.

63 It follows, that I do not believe it is necessary for Mr Howell to demonstrate that the order was made for an 'ulterior purpose' and as Ms Sharp submitted, if such an allegation was made, to find that it must include an allegation of 'bad faith'. In addition, I agree with Ms Sharp, that at this stage, there is insufficient cogent and persuasive evidence before the Commission which would justify the making of such serious and damaging findings against senior officers of the Force. Understandably, the Force has brought no evidence at all from the decision makers in respect to the notice of motion presently before the Commission. Given that the applicant's preliminary case was conducted in this confined way, (and I would add not inappropriately), it reinforces my view that findings of the kind pressed upon me by Mr Howell as to 'ulterior purpose' would not only be unfair, but unavailable on the current state of the evidence.

Principles of Statutory Construction

64 Turning then to the construction of the relevant words in Schedule 1 of the Act, I would firstly identify the relevant principles to be applied to this consideration. To this end, I direct attention to the following passage from Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) [2000] NSWIRComm 71; (2000) 99 IR 29 at [42] and [43], where the Full Bench said:

42 The construction of s 51A is thus to be approached in terms of the usual approaches to construction, although the court should have at the forefront of its consideration the nature of the legislation which is being considered, and the potentially serious consequences of the construction reached. A useful starting point in terms of recent authorities is the judgment of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 – 382, where McHugh, Gummow, Kirby and Hayne JJ said:

69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (See Taylor v Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, "in the context of the legislation read as a whole"). In Commissioner for Railways (NSW) v Agalianos ((1955) [1955] HCA 27; 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed (Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias [1917] HCA 41; (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321 per Deane J).

70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 440, per Gibbs J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161 per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565 at 574, per Gummow J; [1993] FCA 366; 116 ALR 54 at 63). Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" (Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision (The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 12 - 13, per Mason CJ). In The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 Griffith CJ cited R v Berchet [1794] EngR 1653; (1688) 1 Show KB 106 [89 ER 480] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

43 See also the discussion in the recent Full Bench judgment in Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 432 at 445 – 446, where it was said:

... the primary task of the court is to ascertain the intention of parliament by examining the language of the legislation itself. If the terms of the legislation are clear, so is the duty of the court. If, however, the legislation is ambiguous or uncertain the court must decide between contending interpretations. In doing so, the court should prefer the construction which best accords with the evident purpose of parliament in enacting the legislation. Relevant considerations include the need to avoid a construction the consequences of which are manifestly inconvenient, absurd, irrational or capricious or which would result in serious injustice: see, for example, Clarke v Bailey (1993) 30 NSWLR 556 at 566.

For example, in their judgment, in Cooper Brookes (Wollongong) Pty. Limited v. Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297, Mason J (as he then was) and Wilson J observed (at 321):

“Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.”

Gibbs CJ, in the same case (at 304-305), observed that the object in interpreting a statute was "to see what is the intention expressed by the words used", and held:

“However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature", as Lord Moulton said in Vacher & Sons Ltd. v London Society of Compositors ([1913] A.C. 107, at p.130); it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.”

65 In addition, another rule of statutory construction, which I consider particularly apposite to this case, is that courts or tribunals should avoid an interpretation of words which produce an absurd or irrational result. In this respect, I rely on the following passage from WorkCover Authority (NSW) (Inspector Hamilton) v John Holland Pty Ltd (2009) 180 IR 262, where the Full Bench said at par [30] and [31]:

30 The rules of statutory construction allow the courts to avoid an irrational or absurd result of a particular interpretation unless the language of the provision in question is intractable or where, although the language is not intractable, the operation of the provision, read literally, is such as to indicate that it could not have been intended by the draughtsperson: Lennard v Jessica Estates Pty Limited [2008] NSWCA 121; (2008) 159 LGERA 420 per Tobias JA at [52], citing Cooper Brookes (Wollongong) v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320 per Mason and Wilson JJ at 321 where their Honours said:

On the other hand, when the judge labels the operation of the statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.

31 In Lennard, Tobias JA also referred with approval to R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681. In that case, Spigelman CJ observed (at 687 [13]-[15]):

[13] The contemporary approach to construction is well described as ‘literal in total context’ (E Dreidger Construction of Statutes (2nd ed, 1983) p2). See eg CIC Insurances Ltd v Bankstown Football Club Ltd (1995-97) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490; 72 ALJR 841 at [69]. The courts no longer “make a fortress out of the dictionary” (Cabell v Markham 148 F2d 737 (1945) at 739 per Learned Hand J.

[14] Putting to one side obvious typographical errors (see Bennion Statutory Interpretation (3rd ed, 1997) pp675-677), the court supplies words “omitted” by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable form, the true construction of the words actually used. In my opinion, the authorities do not warrant the court supplying words “omitted” by inadvertence per se.

[15] Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. (McAlister [1990] HCA 15; (1990) 169 CLR 324 at 330; R v Di Maria [1996] SASC 5882; (1996) 67 SASR 466 at 472-474). If a court can construe the words actually used by the Parliament to carry into effect the Parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the Court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction.

The Relevant Legislative Scheme

66 Section 173(1) identifies the two forms of action available under the Act:

(1) In this section:

non-reviewable action means action referred to in Schedule 1.

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

67 Section 173(2) identifies what is 'reviewable action' for the purposes of this Division:

(2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct:

(a) a reduction of the police officer’s rank or grade,

(b) a reduction of the police officer’s seniority,

(c) a deferral of the police officer’s salary increment,

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

68 It will be immediately observed that there is no definition of a disciplinary transfer in s 173(2). However, there can be no doubt that there is a power for the Commissioner to impose a 'disciplinary transfer' under s 173(2)(d) - 'any other action that the Commissioner considers appropriate'. Indeed, the power to do so has often been exercised, although usually in conjunction with some other reviewable action, such as a reduction in rank or deferral of a salary increment. This power is also to be found in the Force's own policy document for handling complaints against officers - the Complaints Handling Guidelines. At page 84, s 173 reviewable action is defined as:

§ deferral of an officer's increment

§ reduction in rank

§ disciplinary transfer

§ permanent removal from specialist duty

§ forced payment of compensation to the NSW Police Force where the officer has been negligent

§ any other action (other than dismissal) that the Commissioner considers appropriate.

69 It follows, therefore, that there can be no room to doubt that there exists both disciplinary and non disciplinary transfers as a matter of both policy and practical application and that a disciplinary transfer must be reviewable action for the purposes of the Act. This, of course, does not answer the question as to what is a 'non disciplinary transfer'?

70 'Non reviewable action' is identified at Schedule 1 of the Act and relevantly refers to a non disciplinary transfer:

coaching

mentoring

training and development

increased professional, administrative or educational supervision

counselling

reprimand

warning

retraining

personal development

performance enhancement agreements

non-disciplinary transfer

change of shift (but only if the change results in no financial loss and is imposed for a limited period and is subject to review)

restricted duties

recording of adverse findings

71 A convenient starting point is s 171 of the Act, which is expressed as follows:

171 Part not to affect police officers’ other powers and duties

(1) This Part does not operate to absolve a police officer who receives a complaint from liability to perform any duty imposed on the police officer otherwise than by this Part.

(2) Action on a complaint may be taken otherwise than under this Part (including action involving criminal proceedings and action under Part 9) even if action on the complaint has yet to commence or is in progress under this Part.

(3) This section has effect despite any other provision of this Part.

72 Mr Howell described s 171(2) as the source of power for interim management action to be taken in the form of a transfer pending the conclusion of a more formal process under s 173 or 181D of the Act. This is precisely what occurred in this case when Sgt Skelly was transferred to Newcastle LAC on 5 May 2008, where he would be under close supervision pending what was then a possible s 181D loss of confidence process and later a s 173 process. In agreeing with Ms Sharp that the words of the statute must have some meaning and have some work to do, in my opinion, the taking of interim management action pending final management action is precisely the kind of transfer contemplated by the term 'non disciplinary transfer' in Schedule 1. That it is referrable to the provisions of the Act dealing with an officer's misconduct or poor performance, strengthens the conclusion that a 'non disciplinary transfer', during an Interim Management Plan, is a 'holding' or interim arrangement pending final determination of whether more serious action is to be taken. The corollary of this proposition, it seems to me, is that in the absence of any consequential adverse findings against the officer, he or she would expect to be returned to their previous position as a matter of course. My view as to this aspect of the interpretation of the words, is supported by the Force's Complaint Handling Procedures at page 12:

Taking interim management action is legally provided for through section 171(2) of the Police Act ('...action on a complaint may be taken otherwise than under this Part...').

Interim management action can be taken at any time in relation to a complaint matter until final management action is determined and implemented. It is critical that any action taken is clearly recorded as 'interim management action' to differentiate between this action and final management action. Taking interim management action does not prevent a commander from taking final management action. The interim management action is taken in response to an identified risk while managing the complaint allegation. (my emphasis)

73 Further support for my conclusion can be found in the Force's Transfer and Tenure Policy which defines a management transfer as:

Management Initiated Transfer

A transfer that is initiated by NSW Police to address particular skills, experience and/or staffing needs at an identified location. Management Initiated Transfers are not initiated to address the conduct or work performance concerns of an individual.

Management Transfers - Performance

A transfer arising as a result of concern about the conduct or work performance of an officer. Management Transfers are limited to exceptional circumstances and may be given effect under the provisions of Section 173 of the Police Act 1990.

74 Notwithstanding these observations, when one applies the test of whether the words are clear, unambiguous and are to be given their ordinary, grammatical meaning, I do not see how it is possible to conclude that a transfer which arises from a disciplinary process can be a 'non disciplinary transfer'. Apart from being oxymoronic, the term 'non disciplinary' cannot logically arise in the context of disciplinary outcomes. Having regard for the following facts and circumstances disclosed by the evidence, I consider that Sgt Skelly was the subject of a disciplinary process, the outcome of which must have been a disciplinary transfer.

75 Firstly, there was no satisfactory explanation - let alone a logical one - as to why conduct, which at various points in the process was considered as warranting criminal charges and punishable by a s 181D dismissal process, should end up at the very lower end of the seriousness scale; indeed, on the Force's own case, said to be no punishment at all. The explanation that Mr Skelly Jr's affidavit of 4 August 2008, changed everything is, with respect, 'clutching at straws' and cannot be accepted. I note that AC Shearer and the CMT believed that it changed nothing. Moreover, the fact that the Force knew full well Mr Skelly Jr did not intend to give evidence against his father was known months before when he told Sgt Holmes on 17 March 2008, and also when he was interviewed by Insp Lundberg. His affidavit did no more than confirm his earlier stated intention. It had, in reality, changed nothing.

76 Secondly, the terms of the order itself (expressed almost as if it is a final warning) and the fact that the Force considered the allegation of assault had been sustained departmentally, makes it pellucidly clear how serious the Force regarded the allegation of misconduct. It beggars belief that these conclusions would lead to no more than a non punitive outcome, particularly considering Sgt Skelly had been the subject of a Commander's Warning and reviewable action for similar conduct only a few years earlier.

77 Thirdly, the s 173 order will result in Sgt Skelly's transfer from his current desk duties at Newcastle under an Interim Management Plan, involving strict supervision, to an operational role, involving supervising junior officers dealing with the public. Given the Force's concern with a second sustained finding of assault, and its view that Sgt Skelly had 'anger management issues', it is difficult to understand the rationale for transferring him to a front line policing role with a public interface.

78 Fourthly, as I will later develop, there is no doubt that Sgt Skelly's transfer will have a punitive effect on him. It is difficult to comprehend why, if it wasn't to punish, that the Gosford station was selected, particularly where it would seem unarguable that other closer locations would provide him with the equivalent or similar level of supervision and support. It is about as far as one can go south without crossing the regional boundary.

79 It will be seen that I have not relied on the objected to evidence of Sgt Skelly's conversations with Supt Rae (see paras 26 to 28), although it is open to conclude that the conversations corroborate those aspects of the evidence I have just referred to.

80 Leaving aside the strict statutory construction tests, one only needs to apply the ordinary, common sense, bystander test to demonstrate the illogical and absurd interpretation given to the words by Ms Sharp. How could it possibly be said that a transfer which arises directly from a disciplinary investigation and sustained findings of misconduct, is a non disciplinary transfer? To characterise it as something which it cannot possibly be, is conceptually flawed and wrong in principle and in law. It produces an absurd and irrational result of the kind as discussed in WorkCover Authority (NSW) (Inspector Hamilton) v John Holland Pty Ltd.

81 Ms Sharp submitted that Mr Howell's interpretation cannot be right because the action in Schedule 1 of the Act, can only arise following a finding of an officer's misconduct. Put another way, if a transfer could not be described as non disciplinary arising from the trigger in s 173(1), then there could never be a non disciplinary transfer. In my view, Ms Sharp's submission is misconceived. The fact that 'non reviewable action' is cited in s 173(1) does not mean that it is action which follows the trigger of a finding of misconduct. That this is so, is plainly evident from the express terms of s 173(2) which identifies the type of reviewable actions which may be taken against an officer who is found to have engaged in misconduct. There is no reference, in either the section, or the Schedule to 'non reviewable action' flowing from a finding of misconduct. 'Non reviewable action' sits alone in s 173(1) and is directly referable to the Schedule. I agree with Mr Howell that the two notions sit inconsistently in the same section. Moreover, it is not open to import into the statutory provisions, words which do not exist expressly, or even by implication. Further, it is also obvious that the action available under Schedule 1 does not require the mandatory statutory procedural steps required by s 173(5), (6) and (7). This only reinforces the proposition that s 173 is primarily targeted towards 'reviewable action' under the Act. The fact that the usual requirements of procedural fairness are still required to be observed before an order of non reviewable action, demonstrates no more than the appropriateness, in administrative decision making, of ensuring an officer has an opportunity to respond to any proposed action to be taken against him/her.

82 Ms Sharp submitted that the Force's definition of a non disciplinary transfer was that it is a rehabilitative response, rather than a punitive response to an incident/s of misconduct. While I do not find it strictly necessary to respond to this contention, I would make a few observations to demonstrate the irrationality of that definition in the present context. I would begin by referring to the dictionary definition of 'punitive'. In the Concise Oxford Dictionary it is defined as 'inflicting or intended to inflict punishment'. The Macquarie Dictionary defines it as 'serving for, concerned with or inflicting punishment'.

83 Ms Sharp's definition is predicated on a distinction between a rehabilitative response and a punitive one. In my view, such a distinction is cloudy and unclear and, in a disciplinary context, cannot be differentiated as Ms Sharp would suggest. It seems to me that most, if not all disciplinary action, will be intended to have an element of rehabilitation attached to it. In other words, it would be a curious notion indeed to suggest that whatever disciplinary action is imposed, it would have no bearing at all on whether the officer was likely to engage in similar misconduct in the future, i.e. whether the officer had been rehabilitated. Support for this proposition is available by reference to s 173(3) which permits the Commissioner to order reviewable action where an officer has been required to participate in a remedial performance program, but whose performance is still considered as unsatisfactory. To me this demonstrates the clear link between rehabilitative responses and punitive (reviewable action) ones.

84 Even so, in my opinion, a non disciplinary transfer might well be punitive in its effect, even if it was not the intent of the decision makers. As I earlier said, I do not consider that a case has been made out as to the intent of the decision makers, and, for present purposes, I need not get to that step. I do not accept that a transfer, particularly a forced one, is not punitive simply because the officer suffers no loss of income, rank or seniority. On one view, by its very nature, a forced transfer arising from a finding of misconduct, must have a punitive effect by reason of the officer's obvious loss of status and reputation. Putting this aside, the fact is, (as is the case here), that the additional transport costs in terms of time and actual expense must constitute a punitive effect. Obviously, it will be a matter of degree, and in some cases, might in fact, result in some advantage (eg. if a transfer was effected closer to home). However, the question of degree, is more properly addressed in considering whether a s 173 order is 'harsh, unreasonable or unjust'. At this point in the proceedings, that is not a relevant factor. In my opinion, Sgt Skelly will be impacted upon, in a punitive way, by being transferred from Lake Macquarie to Gosford. In applying the ordinary meaning of the word 'punitive', the order must be seen, at the very least, as being 'concerned with punishment'. Ms Sharp's definition, therefore, cannot be sustained.

85 When viewed in terms of Ms Sharp's definition of a non disciplinary transfer, which I have rejected, I do not consider that the principle of the 'presumption of regularity' for which she further contends, is able to be maintained. I would also rely on what I said in an earlier notice of motion in this matter: Daniel Skelly and Commissioner of Police [2009] NSWIRComm 70 at par [11]:

11 Further, in my opinion, the intent of the order cannot be established by simply looking at the terms of the order itself. That may reveal absolutely nothing about the intent of the order, and, of course, say nothing about its effect. Nevertheless, such inquiry may not mean any such order was made in 'bad faith'. In my view, one must go behind the reasons for the order in order to obtain a full and complete picture of all the relevant facts and circumstances of a particular case.

86 Further and finally, when looking at the context and purpose of s 173 in particular, and from considering the purpose of the statute in globo, there is a clear legislative intent of ensuring that a police officer, subject to a serious finding of misconduct, will have a right to appeal such a finding. Mr Howell's references to the extrinsic material of predecessor legislative provisions dealing with police discipline, the findings of the Wood Royal Commission and their legislative manifestation, make good this proposition. In my view, if the Commission was to dismiss this application for want of jurisdiction, in circumstances where a serious finding of misconduct could not be tested by this Commission, it would constitute a denial of natural justice and be contrary to both the spirit and intent of the present legislation.

87 For all the forgoing reasons, I find that:

1. The proposed transfer of Sgt Daniel Skelly as foreshadowed in the order made by Supt Craig Rae on 7 January 2009, is a disciplinary transfer for the purposes of s 173(1) of the Police Act 1990;

2. Such a transfer constitutes 'reviewable action' for the purposes of s 173(2)(d) of the Police Act 1990;

3. The application, in matter IRC 89 of 2009, brought by Sgt Skelly under s 174 of the Police Act 1990, is competently before the Commission;

4. The Commission has jurisdiction to review the order and determine the application, pursuant to s 177 of the Police Act 1990; and

5. The notice of motion filed on 30 March 2009, by the Commissioner of Police, is dismissed.

88 The matter will be listed on Monday, 31 August 2009 at 9:30am for further programming of the substantive application.

Peter J Sams, AM
Deputy President




LAST UPDATED:
31 July 2009