Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2 (18 January 2010)

Last Updated: 14 July 2010

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2
This decision has been amended. Please see the end of the judgment for a list of the amendments.


FILE NUMBER(S):
IRC 582 and 1058

HEARING DATE(S):
28/08/09, 08/10/09

DATE OF JUDGMENT:
18/01/2010

PARTIES:
Commissioner of Police (Appellant)

Alyson Reid-Frost (Respondent)

CORAM:
Walton J Vice-President Kavanagh J Haylen J


CATCHWORDS: APPEAL - removal of police officer - application for review under s181E of Police Act - whether merits consideration of application undertaken - necessary to conduct merit review of parties cases - failure to address despite lengthy judgment - procedural fairness - applicability to applications for review under Police Act - relevant principles regarding procedural fairness issues - determination at first instance based on procedural failures - procedural failures not sufficient to warrant determination removal harsh, unreasonable and unjust - whether decision involved judicial review of administrative decision - finding that decision of that nature - determination made as to validity and whether decision had effect - appealable error - leave to appeal be granted - appeal upheld - remitter appropriate option subject to issue raised as to stay - application for two or three stage process to consider appropriate orders refused - application to call fresh evidence in that context or as such, if made, refused - stay not establish basis for not remitting - decision and orders at first instance quashed - not appropriate to have a simple remitter - directions issued with remitter - expedition granted.

HAYLEN J (dissenting) - process and merit considered at first instance - findings open on evidence - no error - significant failures in process adopted by Commissioner in removing police officer - importance of complying with process laid down by statute - requirement for Commissioner to take into consideration response from officer - discussion of extent of obligation to consider Response.

LEGAL REPRESENTATIVES
APPELLANT
Mr M J Kimber SC with Mr A Searle of counsel
Bartier Perry
RESPONDENT
Mr A A Hatcher with Mr D Nagle of counsel
W.G. McNally Jones Staff, Lawyers

CASES CITED:
Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337
Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385
Bigg v New South Wales Police Service (1998) 80 IR 434
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Clutha Development Pty Ltd v Barry (1989) 18 NSWLR 86
Commissioner for Police v The Industrial Relations Commission of New South Wales and Raymond Sewell [2009] NSWIRComm 198
Commissioner of Police v Hollingsworth (1997) 77 IR 339
Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282
Hosemans v Commissioner of Police [2004] NSWIRComm 253; (2004) 138 IR 159
Hosemans v NSW Police (No 3) [2005] NSWIRComm 161
Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd [2003] NSWIRComm 211; (2003) 128 IR 37
Incitec Ltd and anor v Industrial Court of New South Wales & ors (1992) 45 IR 158
Khan v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23
Little v Commissioner of Police (No 2) (2002) 112 IR 212
Lynch v G C Schmids Pty Ltd (1955) 59 IR 205
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 1986) 162 CLR 24
Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia and ors (1996) 67 FCR 40
Minister for Immigration and Citizenship v Szizo [2009] HCA 37
National Hire Pty Ltd v Howard (2003) 126 IR 240
Newton v Commissioner of Police (1998) 85 IR 119
Newton v New South Wales Police Service (1999) 87 IR 66
Nutshack Franchise Pty Ltd v Smith (1999) 90 IR 355 at 360
Owens v NSW Police Service (1998) 87 IR 1
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1996-1997) 189 CLR 146
R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177
Reid-Frost and Commissioner of Police [2009] NSWIRComm 43
Resources Pty Ltd v Federal Commissioner of Taxation [2003] FCA 35; (2003) 126 FCR 304
Starr v Commissioner of Police [2001] NSWIRComm 226
State of Western Australia & Ors v Minister for Aboriginal and Torres Strait Island Affairs & Ors (1985) 37 ALD 633
Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106
Van Huisstede v Commissioner of Police [2000] NSWIRComm 97; (2000) 98 IR 57
Weal v Bathurst City Council [2000] NSWCA 88

LEGISLATION CITED:
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
Evidence Act 2005
Industrial Relations Act 1996
Local Government Act 1919
Migration Act 1958 (Cth)
Police Act 1990


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: WALTON J, Vice-President
KAVANAGH J
HAYLEN J

Monday 18 January 2010

Matter No IRC 582 of 2009

COMMISSIONER OF POLICE AND ALYSON REID-FROST

Application by Commissioner of Police for leave to appeal and appeal against a decision of Justice Marks given on 3.4.2009 in Matter No IRC 814 of 2008

Matter No IRC 1058 of 2009

COMMISSIONER OF POLICE AND ALYSON REID-FROST

Application by Alyson Reid-Frost for leave to appeal and appeal against a decision of Justice Marks given on 25.5.2009 in Matter No IRC 814 of 2008

DECISION OF VICE-PRESIDENT AND KAVANAGH J

[2010] NSWIRComm 2

1 We have had the opportunity of considering the draft judgment of Haylen J in this matter, and we are grateful to his Honour for the detailed exposition of the factual background and first instance decision as well as a recitation of the issues raised therein. This has enabled us to state much more shortly our views, although, unfortunately, we are in disagreement with the conclusions reached by his Honour and the orders proposed in his draft decision.

2 The appellant, Commissioner of Police ('the Commissioner'), challenged the decision at first instance on essentially three grounds (which are the primary issues for this appeal) as follows:

1. The trial judge erred in not determining the merits of the case brought by the Commissioner directed to sustaining the grounds (and reasons) for removal concerning competence, performance and conduct. This contention was coupled with a proposition that his Honour erroneously determined the matter solely on procedural grounds, the most significant of which was a failure by the Commissioner to adhere to the requirements of s 181D(3) and (4) or the Police Act 1990 ('the Act');

2. The trial judge erred in finding that there were serious failures in the process of reaching a decision to remove the respondent, Alyson Reid-Frost, and, in particular, the trial judge erred in finding that the Commissioner had failed to comply with the notice requirements of s 181D(3)(a), the requirement to consider a submission under s 181D(3)(c) and the requirement to give reasons in s 181D(4). Alternatively, if there were such failures, the procedural deficiencies, such as they were, did not constitute a proper basis, when taken individually or together, to find that the removal of the respondent was harsh, unreasonable or unjust;

3. As a correlate of those propositions, it was contended that his Honour ultimately and inappropriately confined his consideration of the application to the question of whether the decision reached by the Commissioner to remove the appellant was invalid by virtue of those procedural failures. It was contended his Honour had conducted what was, essentially, a judicial review of an administrative decision of the kind contemplated as being undertaken by the Supreme Court under s 181D(7)A.

3 We consider that his Honour erred by not dealing with a significant merit issue which had arisen in the application before him. His Honour had before him a contest as to merits of those grounds (and reasons) for removal which concerned the police officer's competence, integrity, performance and conduct. Whilst it is clear that his Honour resolved the issue relating to integrity in favour of the respondent, he failed to properly consider the balance of the merit issues arising from the case put before him by the Commissioner, namely, that the failures of the respondent (expressed in terms of competence, performance and conduct) warranted and sustained her removal. This error arose, in our view, because of the trial judge's impermissible reliance in this case upon procedural matters themselves as wholly sustaining a finding that the removal was harsh, unreasonable and unjust. That approach was not open in the case before his Honour, first, because the Commissioner had raised a merit case under s 181F(1)(c) as to the aforementioned grounds and reasons for the removal which required assessment and adjudication and, secondly, because there was nothing in the procedural failures identified by his Honour which, when properly analysed, warranted the determination of the ultimate question as to whether the removal was harsh, unreasonable or unjust on that basis alone.

4 We are further inclined to the view that his Honour erroneously determined the matter upon a finding as to the validity of the order made by the Commissioner having regard to a failure by the Commissioner to adhere to the requirements of s 181D(3) and (4) of the Act, rather than treating those failures, as he may have done, as part of the fabric of the merit review where such questions would bear upon the fairness of the Commissioner's approach.

5 These conclusions require some explanation and elaboration.


RELEVANT PRINCIPLES


6 The steps taken or not taken by the Commissioner prior to the removal of a police officer under s 181D (including the procedural steps required under s 181D(3) and (4)) are matters which are relevant to and significant in the assessment of an application made under s 181E of the Act and, in particular, as to whether a finding should be made that the removal was harsh, unjust or unreasonable pursuant to Div 1C of Pt 9 of the Act.

7 So much is clear from a consistent line of Full Bench authorities as to the provisions of Pt 9 of the Act (and predecessor provisions): Bigg v New South Wales Police Service (1998) 80 IR 434 at 451 ('Bigg'); Newton v New South Wales Police Service (1999) 87 IR 66 at 76-77 ('Newton (No 2)'); Little v Commissioner of Police (No 2) (2002) 112 IR 212 at 74-75 ('Little (No 2)'); Hosemans v Commissioner of Police [2004] NSWIRComm 253; (2004) 138 IR 159 at 106 ('Hosemans (No 2)'). Further, the Commission may examine the Commissioner's reasons, as Peterson J stated in Newton v Commissioner of Police (1998) 85 IR 119 at 133 ('Newton'): "both on the basis of the means by which they were achieved and, if necessary, their substance".

8 Thus, the process undertaken by the Commissioner may result in a finding that the removal of a police officer was harsh, unjust or unreasonable for the purposes of Div 1C of Pt 9.

9 In Little (No 2) (at [74] - [75]) (including the adoption of the decision in Van Huisstede v Commissioner of Police [2000] NSWIRComm 97; (2000) 98 IR 57 at [193] - [196]) ('Van Huisstede')), the Full Bench found that the adoption of an unfair procedure by the Commissioner, and particularly one deriving from a failure to adhere to the procedural requirements of Div 1B of Pt 9 of the Act, was both a relevant consideration and of significant importance (and a "vital consideration") in determining whether the removal of a police officer was harsh, unreasonable or unjust. Those passages of the decision in Little (No 2) are important in the present context and, hence, substantial portions of them have been extracted below:

[74] The provisions of the Act do not so confine the Commission in considering an application under s 181E. It is true that the Commission is required to consider, under s 181F(1)(a), the reasons given by the Commissioner. In that respect, the Commission may deal with the substance and basis for the allegations brought against an officer, including whether there is a basis in fact of the allegations levelled against a police officer. However, the Commission will consider other matters and bring into account such matters as to whether the dismissal was harsh, unjust or unreasonable, which go to the merits of the application, including a consideration of the procedures adopted by the Commissioner. These matters may transcend the particular reasons stated by the Commissioner for his loss of confidence, as the statutory directive is for the Commission to consider whether the removal was harsh, unreasonable or unjust on any relevant or reasonably available basis and not simply whether the Commissioner’s conclusion was sustainable or not, although the reasons for the

Commissioner’s loss of confidence will be plainly a matter of particular

significance in such proceedings...

[75] These latter considerations then lead to a consideration of the second major aspect of the appellant’s case, namely, whether his Honour was in error in concluding that, where the substance of the allegations made against a police officer were satisfied, it was unnecessary to embark on any examination of process. In substance, his Honour suggested that, in such circumstances, a procedural failure could not suffice to justify any interference with the ultimate sanction. Thus stated, we cannot agree with the conclusion reached by his Honour. The legislature has, no doubt cognisant of the significant powers conferred on the Police Commissioner under Pt 9 of the Police Service Act, laid down various procedural stipulations associated with the removal of a police officer which, in our view, require, if not strict compliance then at least ‘‘a careful and punctilious regard to correct procedure’’, and are of significant importance to the review of a decision made under s 181D of the Police Service Act. In this respect, we consider that the correct approach to issues of this kind is synthesised in Van Huisstede as follows (at pars 193 to 200):

‘‘193 In my view, the concept of a ‘review’ must at least have the effect of directing the Commission’s attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No 2) and Oswald (No 2). This conclusion flows from statements of the Full Bench in Newton (No 2) (at 79-80) with which I respectfully agree:

‘. . . it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s 181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s 181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex p Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as

follows:

‘‘. . . a discretion allowed by statute to the holder of an office is

intended to be exercised according to the rules of reason and

justice, not according to private opinion; according to law, and

not humour, and within those limits within which an honest

man, competent to discharge the duties of his office, ought to

confine himself . . .’’

That approach applies to the whole of the exercise of the discretion given by s 181D, including the obligation under s 181D(4) in relation to the giving of reasons.’

194 What may be further deduced from the decisions in Bigg (No 2) and Oswald (No 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion. Following the principles stated by Kitto J in R v Anderson; Ex p Ipec-Air Pty Ltd, the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No 2) and Oswald (No 2), also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was ‘uninformed’ (Oswald (No 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner.

195 As was said by the Full Bench in Bigg (No 2), the Commission should consider, to the extent relevant in a matter, both the procedure employed by the Commissioner in seeking to remove the police officer as well as the merits or substance of the decision.

196 In the first place, the fairness of the process adopted by the Commissioner, and particularly whether the Commissioner adhered to the procedural requirements of s 181D, are vital considerations in determining whether the removal of an officer was harsh, unreasonable or unjust. In Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 389, the Full Bench stated:

‘We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of ‘‘an essential prerequisite to, or inviolable limitation on, the exercise of the employer’s right to dismiss’’ or a failure to afford procedural fairness which causes a ‘‘substantial and irrevocable prejudice to the employee’’ will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further,

a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.’

Further, the Full Bench stated (at 390):

‘While the findings of the Commission in Buckman focus on the

issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s 88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s 84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust.’


10 In this sense, and upon these principles, the Commission has emphasised that procedural failures, particularly those relating to the statutory requirements of s 181D(3) and (4), may play a marked role in the resolution of the questions requiring determination with respect to applications brought under s 181E.

11 It needs to be steadily borne in mind, however, the particular statutory context in which such observations as to procedural matters have been made by the Commission in considering the application for review under s 181E. These are as follows:

(a) The challenge to the removal of a police officer based upon procedural grounds will not be finally resolved by a preliminary adjudication based upon those factors. For example, the Commission is not entitled to hear and determine "to finality the challenge to the removal based only on the matters referred to in s 181F(1)(a)": Newton (No 2) at 75. Rather, the role of the Commission is to "conduct a review of the merits of the decision of the Commissioner, to consider the whole of the circumstances of the matter in the way determined by s 181F and apply the statutory criteria in that situation": Newton (No 2) at 79. We agree with the Full Bench in Hosemans (No 2) (at [134]) that the review of a decision to remove under s 181D is to be a "fresh and independent review";

(b) The determination of an application made under s 181E requires a finding as to whether the removal itself was harsh, unreasonable or unjust not whether a particular procedure may be described as such, even though the adoption of an unfair procedure, as we may have observed, significantly contributed to that ultimate determination (see, for example, Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ);

(c) The provisions of Pt 6 of Ch 2 of the Industrial Relations Act (1996) ('IR Act') have application, albeit modified, to reviews under Pt 9 Div 1C of the Act: Hosemans (No 2) at [101]. As was described by the Full Bench in Little (No 2) at [65], s 181G has "the effect of applying to proceedings brought under s 181E of the Police Service Act the provisions of Pt 6 of Ch 2 of the Industrial Relations Act in such a manner as to import the provisions of Pt 6 to the review proceedings...";

(d) The review proceeding will, thereby, be undertaken procedurally in a manner consistent with unfair dismissal proceedings (Hosemans (No 2) at [104]) and adopt the jurisprudence of the Commission with respect to unfair dismissal proceedings (Little (No 2) at [65]), except where the procedure and principles are expressly excluded by the Act;

(e) These considerations need to be married with our earlier observation regarding the significance of procedural failures in review proceedings. First, the procedural issues will be one element of the resolution of the merits of the review, which may take on a greater or lesser significance depending upon the gravity of the failure and its affect on the opportunity for the police officer to receive a fair hearing. This is consistent with the approach in unfair dismissal matters. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 388 ('Antonakopoulos'), the Full Bench imported natural justice requirements (to the extent applicable) in to unfair dismissal matters;

(f) In a little quoted passage from the decision of the Full Bench in Bigg (at [45]), it was made clear that questions of procedure including a consideration of the 'statutory mechanism' (then s 181B of the Police Service Act) would be open for review (in proceedings brought under then s 246 of the Industrial Relations Act 1991) as an "exemplar of the industrial merit of the decision, as well as the general industrial merits of the decision" of the Commissioner. Similarly, as was stated in Starr v Commissioner of Police [2001] NSWIRComm 226 at 140 ('Starr'), "each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case";

(g) There may be cases where the assessment of the merits of an application may result in a procedural failure, per se, rendering the removal harsh, unreasonable or unjust but, as we will later discuss, proceedings under Div 1C of Part 9 of the Act have, thus far, resulted in only limited examples of such matters, that is procedural factors alone resulting in a determination that the removal is harsh, unreasonable and unjust. Those cases have revealed very serious procedural failures (see our later discussion of Bigg and Van Huisstede following);

(h) A similar position applies in unfair dismissal matters. In Antonakopoulos (at 388), the Full Bench accepted that a finding of unfairness may sometimes result from procedural failures alone, but those cases were of such character as to involve failures of some real gravity such as where the procedural unfairness caused a "substantial and irrevocable prejudice to the employee" or where a dismissal is based upon unfair procedures which have caused the employer to ignore or fail to receive an innocent explanation (Antonakopoulos at 389);

(i) Two previous cases have resolved (or potentially resolved) applications for review of the removal of a police officer on procedural grounds alone (we note that a similar approach was also taken with respect to an application brought by a probationary constable under s 84 of the IR Act: Owens v NSW Police Service (1998) 87 IR 1);

(j) In Bigg, the Full Bench resolved the matter upon the basis of procedural defects of a very significant character: the Acting Commissioner of Police had failed to have regard to relevant material, namely, the evidence of the applicant before the Police Royal Commission. This was particularly significant given that the Commissioner was required, under the statutory regime applying at that time, to direct his attention to material before that Royal Commission, and, hence, the evidence omitted from consideration was critical to the applicant making out his case;

(k) In Van Huisstede, the Commission found (at [234]) that there was "a sufficient basis to determine that the applicant's removal was harsh, unreasonable and unjust" based upon "procedural deficiencies" but that having regard to, inter alia, "the Full Bench decision in Newton (No 2) (at 79)", it was "appropriate to also consider the substance of the decision to remove the applicant". (The reference to Newton (No 2) in this context was a reference to that part of that Full Bench decision which stressed that s 181F(1) dedicated that the Commission was to conduct a merit review of a s 181E application and consider the whole of the circumstances of that matter.) Further, the Commission was concerned that the Commissioner had made "explicit findings as to the veracity of the allegations against the applicant without having before him details of the allegations made and without regard of other evidence which would have thrown light upon the nature of the allegations" (at [233]). The Commissioner reached his decision in circumstances where "the evidence before him would have caused considerable disquiet in the mind of a reasonable observer". It might also be noted that the Commissioner did not present a merit case, as such, in the proceedings;

(l) It follows that procedural failures will not of themselves necessarily (or often) result in an affirmative finding for an applicant under s 181E of the application: Bigg at 460, Starr at 140, even though procedural failures may attract significant attention in review proceedings (of the kind earlier described), particularly by reference to the decision in Little (No 2);

(m) Our final observation, in this respect, is that the review process is not in the nature of an administrative law review. The significance of procedural failures is to be weighed as part of the overall assessment of the application brought under s 181E(1): Hosemans (No 2) at 107. Principles of administrative law may well inform, however, considerations as to whether the removal was harsh, unreasonable or unjust, as they direct attention to whether a step taken or omitted by the Commissioner has resulted in an unfairness which attracts one of those epithets. For example, the adoption of the principles from the judgment of Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 in Bigg was for the purposes of guiding the resolution of the merit review including the procedural issues involved therein.

REVIEW OF FIRST INSTANCE DECISION


Did the trial judge properly consider the merits of the application made under s 181E?

12 The respondent submitted that, when viewed in the context of the whole of the first instance decision, and, in particular, having regard to the substantial discussion by his Honour of merit type issues, the decision at first instance should be viewed as one resolving all relevant merit issues.

13 We do not accept this submission. It stands in the face of clear statements by the trial judge that he had resolved the question as to whether the removal was harsh, unreasonable or unjust on procedural grounds alone. Further, his Honour refrained from making findings as to a number of disputed merit issues concerning the competence, conduct and performance of the respondent.

14 Furthermore, his Honour indicated that he had refrained "from making any findings as to [the respondent's] suitability to continue as a police officer having regard to her competence, performance or conduct". Whilst this passage of the decision is somewhat unclear, it is, in essence, a conflation of considerations concerning the 'fairness' of the removal and subsequent question concerning the practicability of reinstating or reemploying the respondent. The first such consideration also demonstrates that his Honour declined to reach a conclusion as to merit issues concerning competence, conduct and performance, and, rather, determined the question of whether the removal was harsh, unreasonable or unjust on procedural grounds alone.

15 As to the substantial discussion appearing in the decision at first instance of issues which touched upon the competence, conduct and performance of the respondent, it may be reasonably concluded that those observations were ultimately directed to questions of the suitability of the police officer for reinstatement (or constituted background to the consideration of that question), and not the resolution of merit issues relating to those questions. As earlier mentioned, there was ultimately no determination, as such, at first instance as to whether the removal of the respondent was harsh, unreasonable or unjust when consideration was given to the conduct, performance or competence grounds relied upon by the Commissioner. In short, there was no resolution of the merits of the parties' cases in that respect.

16 Indeed, on one view of the decision at first instance, the issues of competence, conduct and performance were left to the Commissioner to further review after the reinstatement of the respondent. (This raises another ground of the appeal which is unnecessary to be dealt with given the resolution of the appeal on other grounds.)

17 We consider that in the proceedings at first instance, the Commissioner did present a case upon the merits of the removal based upon questions of competence, performance and conduct, and that the trial judge did not resolve those merit issues by making any findings about the substance of the Commissioner's Reasons for Decision or the case presented to the Commission in that respect.

18 We do not consider that it was open to his Honour to effectively omit consideration of the Commissioner's case, in that respect, for two reasons. First, his Honour was required to consider the Commissioner's case under s 181F(1)(c), even if, in the final analysis, he found the procedural failures were such as to make a finding in favour of the respondent under s 181E on that basis alone. He did not do so. This obligation is not excused by the 'vagueness' of the allegations raised by the Commissioner in the Notice or his Reasons for Decision. That may have been a factor weighing in favour of the respondent on either procedural or substantive grounds in the review, but it did not permit the exclusion of consideration of the merits of that part of the Commissioner's case. If the merits of the case presented by the Commissioner were inadequate by reason of its lack of clarity or absence of a rational explanation then a finding may have been made in those terms, or in an appropriate case (and this is not one) lead to a finding on procedural grounds. However, what was required was an assessment of, and to the extent required, an adjudication on the merits of the Commissioner's merit case.

Procedural Failures

19 We do not consider that any deficiencies in the steps taken by (or arising from steps omitted to be taken by) the Commissioner before the removal were such as would warrant a finding that the removal was harsh, unjust or unreasonable on that basis alone, although, some of them were plainly relevant to the ultimate disposition of the matter.

20 The basis for that conclusion is best revealed by an analysis of the trial judge's findings with respect to each of the principal procedures adopted by the Commissioner, namely the Commissioner's approach to notice requirements (s 181D(3)(a)), the requirement to "take into consideration any written submission received from the police officer" (under s 181D(3)(c)) and the requirement to give reasons "for which the Commissioner has decided to remove the police officer" (under s 181D(4)). We shall discuss each such issue seriatim.

Notice

21 Both parties to the proceedings accepted the formulation by Boland J, President, in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 ('Hosemans (No 3)') as to the nature of the obligation reposing in the Commissioner to give reasons under s 181D(4). We also agree with that formulation and consider that, essentially, the similar obligations repose in the Police Commissioner to provide "a Notice setting out the grounds on which the Commissioner does not have confidence" under s 181D(3)(a). That is, the grounds contained in a notice issued under s 181D(3)(a) must set out the essential bases for the Commissioner not having confidence in the officer's suitability in such a manner that they are sufficiently comprehensible to the police officer on whom they are served as to enable that person to understand those grounds and respond to them in a written submission as contemplated by s 181D(3)(b).

22 The statutory purpose with respect to the giving of notice is to ensure that the police officer has clear information as to why the Commissioner is considering the removal of the officer for lack of confidence, so that the officer may be given a reasonable opportunity to respond by a written submission (pursuant to s 181D3(b)) setting out, inter alia, any defence, explanation or excuse. The procedure is, therefore, intended to facilitate a fair hearing. The statutory requirement for the Commissioner to provide 'grounds' in s 181D(3)(a) merely underlines the gravity of the matters under consideration and the need to specify the allegations made with precision and with sufficient particularity. However, and drawing on the principles stated by the High Court in Minister for Immigration and Citizenship v Szizo [2009] HCA 37 ('Szizo') at [34], the "manner of providing the notice" is not "an end in itself".

23 In Szizo, the High Court was dealing with the question of whether a decision of the Refugee Review Tribunal was invalid because of a failure by the Tribunal to give notice under Div 7A of the Migration Act 1958 (Cth). It was found that, as a matter of statutory construction, a departure from the steps required would not necessarily invalidate the decision, and the determination of that question would depend upon "the extent and consequences of the departure" (at [35]). Here the question is not, in our view, one of validity, per se. However, the authority in Szizo does give guidance as to the proper approach to resolving whether an inadequate notice may, under the present statutory scheme, constitutes a basis for finding that a removal was harsh, unreasonable or unjust. That is, the significance of any procedural failure in this area will depend upon the extent and consequence of any departure.

24 In this matter, the written submission provided by the respondent to the Commissioner on 21 April 2008 demonstrated that the Notice was sufficiently comprehensible to the respondent and enabled her to, adapting the words of Boland J in Hosemans (No 3), "mount a coherent and comprehensive challenge".

25 This is not to suggest that the Notice was not, in some parts, vague, particularly where reliance was placed upon an attached Commissioner's confidence submission as a means of conveying the bases relied upon by the Commissioner for issuing the Notice. However, the content of the Notice was sufficient to serve the purpose of providing the requisite information and, more significantly, any inadequacy did not affect the capacity of the respondent to provide a comprehensive written submission in response.

26 It follows from this conclusion that the trial judge was in error in finding that the terms of the Notice should result in a finding that the removal was 'unjust'. That error must result in appellate intervention, particularly because his Honour found that the contents of the Notice would, of itself, form the basis for such a finding.

27 That consideration brings us to a further issue with respect to the Notice. The Commissioner was correct to submit that his Honour conducted something akin to an administrative law review in making the findings he did in relation to the Notice. We are mindful of the fact that his Honour approached the matter on the (erroneous) basis that the failings of the Notice significantly undermined the capacity of the respondent to receive a fair hearing as to the allegations made against her. However, we do not consider that his Honour approached that question as part of a consideration as to whether there was a procedural failure which may be weighed in the balance with all other relevant considerations in the (merit) review but, rather, as a form of judicial review (in which his Honour made, as has been found, an erroneous finding that there was a breach of the provisions of s 181D(3)(a) of the Act). This conclusion must follow from the use of the words "taints the totality of the process surrounding the issue of the notice and the consideration of the matter by the Commissioner" by his Honour.

28 More significantly, his Honour found that the "order made by the respondent was fundamentally flawed", and that "in [those] circumstances" it was harsh, unjust and unreasonable that the order "which the respondent purported to make should be considered as having an effect [of] removing [the respondent] from the police force" (our emphasis). This conclusion by the trial judge must be taken as going to the question of the validity of the order made and, consequentially, whether the order had legal effect.

29 We note that there was a disclaimer in the first instance decision to the effect that the above observation did not go to the question of whether the order was a 'nullity'. However described, there can be no doubt his Honour pronounced upon whether there were valid orders made and, therefore, whether they were effective. In this context, the trial judge found that the orders were harsh, unjust or unreasonable because they had continued having operation when they were, in truth, invalid and ineffective.

30 It represents appealable error, as a review of that character is not open under Div 1C of Part 9 of the Act, although, as earlier observed, the failure associated with the issuing of the Notice may ground a challenge to the removal on procedural grounds.


Consideration of the Respondent's Submission


31 As to the requirements of s 181D(1)(c), we would again adopt the formulation of Boland J in Hosemans (No 3) wherein his Honour stated (at [161]):

In that consideration he must obtain an understanding of the facts and circumstances set out in the submissions, and of the contentions they urge based on those facts and circumstances (Tickner v Chapman at 476-477 per Burchett J). The Commissioner's duty under s 181D(3)(c) is a personal one unless there is a delegation of the function under s 31 of the Police Act.

32 However, we would also adopt, as being relevant to a consideration as to whether or not the Commissioner has adhered to the requirements of s181D(1)(c), the discussion by the New South Wales Court of Appeal in Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337 at [58] ('Anderson') as to the proper approach to statutory requirements imposed on a decision maker to 'consider'. Anderson concerned a judicial review, but the following observations of Tobias JA, (with whom Spigelman CJ & Macfarlan JA agreed) are applicable to the consideration of the question raised in this matter:

Of course, the relevant matter must be more than adverted to or given mere lip service. Nor would it be sufficient to advert to the matter and then discard it as irrelevant: Elias v Federal Commissioner of Taxation [2002] FCA 845; (2002) 50 ATR 253 at 265 [62] per Hely J. But whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written. That process is not, we believe, assisted to any significant degree by resorting to formulations which purport to qualify what is an ordinary English word, namely, ‘consider’ and which, as the Full Federal Court observed in Anthonypillai, invoke “language of indefinite and subjective application”.

33 When referring to 'formulations', Tobias JA was referring to the "proper, genuine and realistic consideration" formulation that had been judicially expounded with respect to the requirement in administrative law for a decision maker to 'consider' a relevant matter. Here, we consider that, for the most part, the question of whether or not the Commissioner considered the submission of the respondent in accordance with the requirements of s 181D(3)(c) depended on what the Commissioner had written in his reasons for deciding to remove the officer on confidence grounds. This is a matter about which an objective evaluation may be undertaken by the Commission in a review brought with respect to an application made under s 181E.

34 We do not exclude the possibility that there may, from time to time, be other documents or statements which bear upon the question of whether there was a procedural failure in relation to the consideration of the written submissions provided by an applicant under s 181E to the Commissioner of Police. However, that question is not answered appropriately, in our view, by the somewhat arid examination of whether the Commissioner had allocated a particular period of time for the relevant assessment. The legislature should not be taken as contemplating, by the provisions of s 181D(3)(c), that the Commissioner would be subjected to, essentially, a time study in order to ensure, as the sub-section contemplates, that the police officer was given a fair opportunity to be heard in his or her defence.

35 We note, in this respect, that we do not consider that the decision of the Full Court of the Federal Court of Australia in Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia and ors (1996) 67 FCR 40 ('Minister for Aboriginal and Torres Strait Islander Affairs') assists the respondent. In that matter, the Full Court upheld the judgment of Carr J in State of Western Australia & Ors v Minister for Aboriginal and Torres Strait Island Affairs & Ors (1985) 37 ALD 633. The Full Court found, inter alia, that his Honour was correct in concluding that a declaration made by the Minister was invalid due to a failure to consider representations made under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('the Commonwealth Act') (at 63). Carr J had based this finding, in part, upon there being an absence of sufficient time available for the Minister to consider that matter. However, Carr J's findings, in this respect (given in a judicial review of the Minister's decision), were also based upon a conclusion that the Minister's Statement of Reasons (under s 13 of the Commonwealth Act) indicated, by their own terms (or by the omission of appropriate content), the absence of proper consideration of the representations. (The Full Court seemed to place less reliance upon that consideration but, nonetheless, had regard to that factor.)

36 We are not here engaged in judicial review or findings as to the validity of an Act, per se, but, as we have noted, the ultimate question concerns whether the procedure adopted contributed to the removal being unfair. More significantly, as we will soon develop, the statutory scheme for reviews under the Act makes the Commissioner's Reasons for Decision the centrepiece of any assessment as to whether there occurred any procedural unfairness relevant to a review. Questions about whether the Commissioner adequately considered a submission need to be essentially addressed in that light.

37 We would finally observe under this heading that the Commissioner may be taken as reaching his decision along a continuum extending to those assessments giving rise to and found in the Notice. This points to the danger of applying a test based on time in assessing whether the Commissioner had adequately considered a submission received from a police officer.

Reasons for Decision


38 We do not consider that the Commissioner is correct, however, in submitting that the trial judge was not entitled to make an assessment as to the adequacy of the reasons given by the Commissioner.

39 The reliance by the appellant on Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, in this respect, is misplaced. In Twist, the High Court was concerned with the construction of the Local Government Act 1919 and whether a municipal council was required to hear the owner of a building (said to be dilapidated) before the council ordered its demolition. The central issue was whether the intention of the legislature was such that the common law rules of natural justice were excluded. However, as the Court made clear, that question was to be determined as a matter of statutory construction with no rule operating "which can provide in every case an answer by its mechanical application" (per Barwick CJ at 111). Thus, the appeal to the District Court available under the subject legislation was sufficient to demonstrate that the owner did not have a right to be heard by the council before it made an order for demolition. Barwick CJ (at 110 - 111) considered that the right was excluded because the legislature had decided that the opportunity to be afforded was before the court (however limited that opportunity may be). Mason J (at 116) held, inter alia, that the hearing in that court may (under particular conditions) 'cure' the defect in fairness. The appellant relied upon that passage from the judgment of Mason J to argue that a merits review under the Act would 'cure' any procedural defect arising from steps taken by the Commissioner.

40 No such legislative intention is, however, discernable under Div 1C of Pt 9 of the Act. The question required to be answered by a review considered under that Division is whether the removal of a police officer was harsh, unreasonable or unjust. A step taken or omitted by the Commissioner before the removal may invoke any one or a combination of those epithets. That was the conclusion reached in Byrne and the approach adopted in each of the leading Full Bench decisions dealing with the operation of Div 1C of Pt 9 - Bigg , Newton (No 2), Little (No 2) and Hosemans (No 2).

41 A procedural failure will not be 'cured' by merit review, as such a failure may be material to or condition any finding as to whether the removal was harsh, unreasonable or unjust, per se. Thus, the opportunity to be heard in the review does not render impotent a procedural failure in the assessment of whether a removal was harsh, unreasonable or unjust. This is because the procedural failure might be instrumental in bringing about the decision to remove (or, in the case of unfair dismissal, the decision to dismiss an employee) and warrant a conclusion that the removal was consequently harsh, unreasonable or unjust. For example, an officer may be deprived of an opportunity to provide an innocent explanation which may well indicate the injustice in a decision to remove.

42 In this respect, we refer to the observations of the Full Bench of the Commission in Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd [2003] NSWIRComm 211; (2003) 128 IR 37 at [118]:

This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious.

43 That the decision in Twistoperates in a different statutory context is ultimately confirmed by the provisions of s 181F(1)(a) of the Act which requires the Commission to consider in the review the Reasons for Decision reached by the Commissioner to remove an officer. In our view, this provision is plainly directed to the adequacy of the reasons given by the Commissioner, not just in terms of their substance, but also whether they demonstrate a deficiency in the opportunity given to the police officer to be heard or a failure by the Commissioner to give proper regard to what was put by the officer in his or her written submission in response to the Notice.

44 We should add, in this respect, that the foregoing analysis reveals that the lynchpin of any inquiry as to procedural fairness in a review under Div 1C of Pt 9 of the Act is the content of the Reasons for Decision of the Commissioner. Procedural issues associated with the issuing of a Notice or taking into consideration a submission advanced by a police officer (per s 181D(3)(c)) are secondary to that consideration and, ultimately, only really serve to complement an assessment as to whether the Reasons for Decision given by the Commissioner demonstrate procedural failure.

45 Thus, as in this case, if the Commissioner had failed to take into account explanations provided by the respondent in her written submissions as to the TOIL incident or secondary employment, as may have been the case, these are matters which will become relevant for the assessment of whether the removal was harsh, unreasonable or unjust. It was appropriate for his Honour to have regard to those considerations, but his Honour was not correct in treating those failures (or other failures such as the vagueness of the reasons) as sufficient, in themselves, or when taken with other (erroneous) findings of procedural failure to conclude that the removal was harsh, unjust or unreasonable under Div 1C of Pt 9 of the Act.

46 The failings which have been identified by the respondent in this case in relation to the Reasons for Decision (including some other matters relating to competence, conduct and performance) were not such as would, of themselves, ground a sufficient basis to conclude that the removal was harsh, unjust or unreasonable. This is not to suggest that the procedural failures might not have resulted, when taken with the merits of the matter, in such a finding, but this, as we have earlier observed, did not occur in this matter. That constitutes appealable error.


CONCLUSION: LEAVE TO APPEAL AND MERITS OF APPEAL


47 The culmination of these factors requires that leave to appeal be granted and the appeal upheld. Leave to appeal should be granted because it is in the public interest that clarification be given as to when and to what extent procedural failures maybe taken into account in determining applications for a review brought under Div 1B and Div 1C of Part 9 of the Act. This is particularly so in relation to the duties imposed upon the Commissioner as to the issuing of a Notice under s 181D(3)(a) being required to consider a submission from a police officer under s 181D(3)(c). This is necessary for the proper administration of justice in this important area and to establish the limits of review proceedings. The errors we have earlier identified in the first instance decision require that the appeal be upheld.

48 We would wish to emphasise that our conclusions as to procedural fairness and, more particularly, the conclusion that the matter could not be resolved on procedural grounds alone, in no way indicates a view, as is sometimes found in review proceedings, that the nature of the conduct engaged in by the respondent would be such as to render any procedural defects as inoperative in the final conclusion reached by the Commission. Without venturing into an assessment or otherwise of that principle, we would wish to emphasise that we do not consider that this is such a case. We have simply formed a view that the procedural deficiencies, such as they are, do not consist, of themselves, of a proper foundation upon which a determination may be made as to whether the removal was harsh, unjust or unreasonable.


ORDERS


49 In most cases arising from applications made under s 181E(1) of the Act, where leave to appeal is granted and the appeal upheld, the Full Bench will endeavour to reconsider the matter for itself so as to avoid the consequences of a new trial. However, given the history of this matter, we do not consider that this step is available in this case. There are significant areas of contest which have not been the subject of findings by the trial judge in relation to merit. The case was argued before the Full Bench, effectively on technical grounds, only peripherally canvassing the merits of the case when it was necessary to pursue the challenges to the decision at first instance based on errors of law.

50 In the ordinary course, that conclusion should result in a remitter of the matter for hearing by a Member of the Commission allocated by the President for that purpose. However, at the conclusion of the oral submissions the respondent contended (for the first time) that an alternative course should be adopted in resolution of the appeal (if the appeal was upheld) based upon the fact that a stay was refused in this matter. It should be noted, in this respect, that as a result of the refusal of the stay the respondent resumed her duties as a police officer and was paid her salary effectively since the determination of the matter by Marks J.

51 In what must be described as a highly unusual submission, Mr A Hatcher, of counsel for the respondent, submitted that the Commission should trifurcate the hearing and determination of the appeal (assuming leave to appeal was to be granted) by dividing the hearing and determination of the appeal into three parts, dealt with sequentially, as follows:

1. The Commission should first determine whether there occurred error at first instance which would have, presumably (as the proposition was not made entirely clear), warranted the orders at first instance being quashed and some remedial action being taken in the nature of a remitter, but for the staged approach proposed by the respondent;

2. If error was found, the Full Bench should, before pronouncing upon whether the orders at first instance should be quashed, entertain an application by the parties (and, more particularly, the respondent) to call fresh evidence pursuant to s 191(2) of the IR Act as to what had occurred in the respondent's employment with the Commissioner after the refusal of the stay. If leave was given to admit that evidence, then the final disposition of the appeal, including the question of whether first instance orders should be quashed, would be made after that evidence was adduced (and, presumably, further submissions made in that respect). The application for fresh evidence was not made during the course of Mr Hatcher's submissions, but was a foreshadowed application which may be made after any decision was delivered finding 'error' in the first instance decision;

3. If the application to call fresh evidence was refused, then the Full Bench would decide whether there should be a rehearing or remittal. Mr Hatcher hinted that a further legal issue might arise as to whether the respondent's reinstatement under the orders of Marks J might result in a situation where the quashing of the orders at first instance might not, of itself, remove the respondent from employment (without a further decision by the Commissioner). This submission was not developed.

52 As mentioned above, the justification for adopting this unusual approach was what Mr Hatcher described as a 'practical difficulty'. It was submitted there was a real issue about the employment of the respondent from May 2009 when the respondent resumed her duties as a police officer after a stay was refused. It was further contended, the staged approach proposed by the respondent was necessary to avoid a substantial unfairness to the respondent and to overcome an outcome which would be "simply contrary to the reality of the matter".

53 In response, Mr M Kimber, senior counsel for the appellant, made a short oral submission which was supplemented in writing. The following is the written submission of the Commissioner in this respect;

46. The Respondent in its oral submissions to the Full Bench suggested, inter alia, that the Full Bench could draw certain inferences from the fact that Haylen J refused the Commissioner’s application for a stay: see AB Vol 7 at 1017, p 1992-1997, and that the Commissioner has not sought to lead any further evidence on appeal to discredit the Respondent by reference to her conduct, integrity etc since returning to the Police Force. As to this surprising submission, the Commissioner says as follows:

[a] It is at once notable that the Respondent cited no authority in support of this submission.

[b] There is no authority to suggest that a decision made on a stay application (whether it be favourable or unfavourable) can be, in itself, relied upon in any appeal from the decision that was sought to have been stayed. This is not surprising given that, by definition, a Judge hearing the stay application is not in a position to make anything other than a preliminary assessment about the correctness of the challenged decision on or about the Appellant’s prospects on appeal.

[c] There is also certainly no authority to suggest that if an application for stay of a reinstatement order is refused (as was the case here) and the worker returns to work, that this results in the reinstatement order being somehow “perfected”/fully executed such that it cannot then be disturbed on appeal (T8.10.09 p 91.29-32). If this is a proper characterisation of what the Respondent has advanced to the Full Bench, then it should be rejected out of hand, as it is obvious that a reinstatement order made by the trial Judge will not bring the litigation to finality at least until the time for appeal has expired. Until that time (and even beyond that time if an application for an extension of time to appeal is permitted), any such reinstatement order is capable of being overturned, without the need for any further decision to dismiss or remove the worker by the employer.

[d] Similarly so, the mere fact that successful resistance of stay application (as was the case here) will necessarily mean further disruption for the police officer (and also for the Police Force) in the event that the Commissioner’s appeal is upheld, (T 8.10.09, p. 91.1-6) this is an entirely irrelevant consideration. The position is a fortiori given that, by definition, the police officer ([w]ho has successfully opposed a stay) goes back to work with his/her eyes open knowing full well that the “return to work” may well be short lived.

[e] Furthermore, while the police officer (or the Commissioner) could make an application to call further evidence on appeal, it is difficult if not impossible to accept that a Full Bench would, for instance, permit the police officer to call evidence as to her good or satisfactory performance, conduct, or integrity during the period back at work following the reinstatement order made on review at first instance. This is because, inter alia:

(i) How much time would be a sufficient time to enable any useful or safe conclusion to be drawn about restored “suitability to continue”? and

(ii) How could the Full Bench be satisfied that the police officer’s behaviour during that return to work was indicative of his/her “true colours” as opposed to being entirely reflective of a deliberate self-interested intention/plan to keep his/her “head down” and “behave” at least until the appeal was finalised?

[f] If such evidence was permitted to be led by the police officer then undoubtedly it would be then be necessary and appropriate for the Commission to be able to cross-examine the police officer and any other persons called on appeal and otherwise to lead his own evidence bearing on her “performance” etc during the “Court ordered” return to work period.

[g] Whilst the potential relevance and admissibility of “after acquired” information is well established the Commissioner submits that such information must not be information generated as a consequence of the ordinary operation of a challenged reinstatement order.

[h] In any event, even if the Full Bench did not accept the Commissioner’s abovementioned submissions on this point, there can be little doubt that if the Respondent in this case had desired to make an application to call any further evidence on this appeal, then such an application needed to have been made (and determined) before the parties addressed on the appeal. This is because of the trite proposition that the evidence said to be relevant to the disposition of the appeal “needs to be in” before the parties are called upon to address with respect to that evidence.

[i] The public interest, and most notably the interests in fairness in and finality of litigation, supports such a view as otherwise (as has occurred here), a Respondent officer can wait virtually until the end of the submissions on the appeal before raising the prospect of further evidence being called on this appeal. One of the inferences open in this matter, is that this idea was kept in reserve pending an assessment of how the Respondent’s case was going on appeal (ie. “will only play this card if we feel we need to”). The vice associated with the Full Bench countenancing any such applications made at a late stage is so obvious that it need not be further articulated.

[j] As it turns out, the position is even worse in this particular case, as the Respondent has not even made any belated application to call further evidence on appeal but, quite astonishingly, has suggested that the Full Bench should (in effect) split its decision into parts: first ruling on whether his Honour “harsh, unjust or unreasonable” finding is to be overturned with the Respondent then (seemingly) having the opportunity to consider and decide whether to make an application to call further evidence on the appeal prior to the Full Bench ruling on the Commissioner’s challenge to the reinstatement order made by the trial Judge (T 8.10.09, p. 94.28-35). Again, the proposition only needs to be stated to be rejected as entirely without merit.

54 Whilst there is considerable merit in all of the foregoing submissions of the Commissioner, it is, in our view, sufficient to deal with the application of the respondent based on only some of these contentions.

55 No proper basis has been established, in our view, to bifurcate or trifurcate the hearing and determination of the appeal in the manner proposed by the respondent. No authority in support of the approach was identified by the respondent.

56 The public interest lies in the finality of proceedings. The late application by the respondent is the antithesis of such an approach and has the very real prospect of not only considerably lengthening the proceedings, but opening up a new set of issues relating to the employment of the respondent after her removal and the review of that decision. The respondent's approach had all the hallmarks of a forensic decision taken in light of the diminishing prospects for success after the oral arguments in the appeal were tested before the Full Bench.

57 We would also add that, as a matter of fairness, the application for the new evidence should have been made (and determined) before the hearing of the appeal commenced so that the entirety of the appeal proceedings may have been conditioned by that outcome.

58 Further, the procedure proposed by the respondent proceeds, in some respects, upon a misconception of the operation of the stay facility in s 190 of the IR Act and should also be rejected for the following reasons:

1. Whilst a failure to obtain a stay of the challenged decision will result in the orders made therein having full force and effect to the benefit of the successful party, the statutory scheme for appeals in Pt 7 of Ch 4 of the IR Act provides that the finality of first instance decisions is subject to the exercise of a right of appeal: Nutshack Franchise Pty Ltd v Smith (1999) 90 IR 355 at 360. A party successfully resisting a stay application is vested rights which are ultimately subject to that statutory scheme and, hence, the 'fruits of victory' may be lost following the unsuccessful resistance of an appeal, irrespective of how long a party has enjoyed those 'fruits' since orders made in the first instance proceedings or how well those benefits have been entrenched.

2. Whilst it is conceivable that stay orders or conditions imposed in relation to the same may have some bearing upon the fashioning of orders in a successful appeal, this could not be such a case. The determination of a stay order may, at best, constitute a preliminary view of the prospects of an appeal and be based on other factors such as the balance of convenience. After now fully hearing the parties on the appeal, and having regard to the errors found, it would be inappropriate, in our view, to maintain the orders at first instance in the absence of a rehearing before the Full Bench which, as we have noted, is not available on the cases put before the Full Bench on appeal. In any event, even if the further evidence as to the conduct of the respondent in service (after the stay was refused) was admitted, it could not be properly assessed in the absence of a review of the prior conduct of the respondent which gave rise to the removal and review. This analysis, in our view, would only be properly available on a remitter and not here on the cases presented on appeal (given the absence of submissions as to the merits, per se).

3. The true effect of the approach proposed by the respondent would be to transform these appeal proceedings into a de novo hearing of the application for review. This is because it is implicit in the respondent's application to call new evidence as to the later engagement of the respondent with the Police Force after the stay was refused that the issues before the Full Bench would extend to merit issues lying at the heart of the review, such as the practicability of the grant of a remedy of reinstatement and even the fairness of the removal. This is contrary to the statutory scheme for appeals and, in any event, a misuse of these appeal proceedings. In the absence of a rehearing, the proper course is to remit the matter.

59 The application by the respondent for a staged approach to the determination of the appeal is, therefore, refused. It follows that leave to adduce fresh evidence would not be allowed to the extent that the application was predicated upon the bifurcation of the proceedings in the manner proposed by the respondent. In other words, the application to call fresh evidence is rejected, to the extent made, upon the basis that the staged approach is rejected. It is noted, in this respect, that the application for fresh evidence was, essentially, only advanced on the basis of the staged approach being acceptable to the Commission. In so far as an application to call fresh evidence has been otherwise made, it should be rejected for the same discretionary reasons as we have given in rejecting the application for a staged approach. In any event, it would be wholly inappropriate to allow into the appeal, at its close, evidence which goes entirely beyond the subject matter of the appeal, namely, the challenge to the decision of Marks J on the review of the respondent's application under s 181E.

60 Hence, the matter should be remitted for hearing.

61 Given the history of this matter, however, we do not propose to simply remit the matter for a retrial. The retrial should proceed upon the basis of the record of the proceedings before Marks J and, by leave, with any further evidence admitted by the trial judge.

62 By this approach we have in mind that the proceedings would be essentially resolved upon the basis of the evidence before Marks J and any fresh evidence (with leave only being granted sparingly).

63 We note, in this respect, that Marks J refused an application by the Commissioner at first instance to adduce evidence for which no notice had been given under s 181G(1)(f)(i). This refusal constituted a ground of appeal. It has been unnecessary for us to deal with that matter given the basis upon which we have determined the appeal, but we agree with the conclusion reached by Haylen J that there was no error in the exercise of his Honour's discretion in that regard. (Marks J did not deal with the question of leave under s 181G(1)(f)(ii), but this may have also represented a proper basis to refuse the admission of the subject evidence.)

64 We should not be taken (by the aforementioned provision for the receipt of fresh evidence by leave) as suggesting that that rejected evidence (formerly sought to be adduced by the Commissioner) should now be admitted. There may well be ample grounds, given his Honour's decision, to refuse leave in the remitter proceedings. Similarly, we should not be taken, by our approach, to have accepted that there has been a proper basis demonstrated for the respondent to adduce evidence regarding her engagement with the Police Force after the refusal of the stay application. Leave may well, however, be appropriate to be granted in other circumstances, such as fresh medical or psychiatric evidence regarding the respondent (and any evidence in reply).

65 We consider that the remitter proceedings should be given expedition and, for these reasons, we do not consider that the matter should be reallocated to Marks J for hearing.


POSTSCRIPT


66 After the distribution of the above draft, we received a further draft decision from Haylen J. We comment only on those amendments in reply or in a rejoinder to our reasons.

67 Our further observations are as follows:

1. Whilst it is correct to say that the High Court in Szizo distinguished the giving of notice from other components of the "statutory statement of the hearing rule" such as the obligation to give particulars of adverse information that is not to the point. The issue of the inadequacy of the Notice in this case did not concern whether the Commissioner had failed to issue that instrument or his failure to give grounds for removal simpliciter. The question which arose during the trial and on appeal concerned whether the Commissioner's confidence submission accompanying the Notice, when taken with the Notice, could be found to be so deficient or inadequate as to determine the application for the review on that basis alone. That raised a question as to the extent of any deficiencies and whether they deprived the applicant of sufficient information to meet the statutory purpose in having the Notice issued. Mere questions of form such as to the use of an accompanying confidence submission or the appropriate ordering or distillation of grounds and particulars were not enough, in our view, to disclose if the statutory purpose had been fulfilled. Thus, the principles stated in Szizo are directly applicable to directing attention away from the manner of issuing the Notice to the extent and consequence of any deficit. This is, a fortiori, the case when it is remembered that the question here is not one of validity, per se, but whether any inadequacy in the terms of the Notice should contribute to a finding that the removal was harsh, unjust or unreasonable. In this context, it is not appropriate to treat the requirement to 'consider' as an 'imperative statutory obligation' such that a failure in that respect should be treated, per se¸ as vitiating a decision to remove under the Act, irrespective of the extent and consequences of any departure from the statutory requirements.

2. Reliance on the judgment of the Court of Appeal in Anderson is appropriate because the judgment under appeal focussed upon procedural failures in the course of the determination of the s 181E application in contrast to the conduct of a merit review. If concentration is to be given to a procedure said to be inconsistent with a statutory requirement or one said to result in an invalidity because of that error or omission, then it is appropriate to have regard to principles of administrative law to guide the assessment made in that more limited context. The ultimate question remains whether the removal was harsh, unjust or unreasonable (and that question involves a merit review). Anderson directs attention to the proper means of assessing whether the Commissioner had, under s 181D(3)(c), 'considered' a submission by a police officer by directing attention to the ordinary grammatical meaning of the word 'consider' and then requiring an objective assessment. Thus, whether the Commissioner had failed to consider an aspect of a submission must be addressed in the context of the reasons given by the Commissioner as identified in the reasoning in Anderson and in accordance with the requirements of s 181F(1)(a).

3. As to the merit issue, referring to the number of pages (or paragraphs) devoted to a discussion of matters associated with the conduct, competence or performance of the respondent (the grounds which the appellant contends were not subject to a merit review), raises a question as to whether his Honour resolved the merit issues (arising from the cases presented by the parties) but does not answer it. An examination of the whole of the decision is necessary to ascertain the substance of the findings and the approach taken by the trial judge. In our view, his Honour made a determination to eschew or leave substantially unattended the resolution of that part of the merit case presented by the parties which concerned competence, conduct and performance. His Honour, thereby, erroneously, decided to ground his decision on procedural considerations. He adopted this approach for two reasons. First, because of his findings of invalidity. Secondly, because he was of the view that the procedural failures created such a lack of clarity he could not conduct an effective merit review. The reasoning of his Honour was clear, and, notwithstanding the attention he gave to some of the merit issues, he did not make an ultimate determination as to the central merit issues.

4. We find no support for the procedural approach adopted by Marks J from the reasoning of Hill J in Antonokapoulos. Antonokapoulos is not authority for a proposition that the assessment of whether a dismissal was unfair in a statutory sense may be determined by an assessment of the validity of a decision to dismiss or remove based upon a failure to comply with a statutory provision as found in this matter. Notions such as a "substantial and irrevocable prejudice" found in Antonakopoulos were adopted by Hill J to identify (as we discuss in para [11]) the limited circumstances under which a procedural failure may itself constitute a basis to find that a dismissal was unfair.

FINAL ORDERS

68 We make the following orders:

1. Leave to appeal is granted.

2. The appeal is upheld.

3. The orders of Marks J made on 3 April and 25 May 2009 are quashed.

4. The matter is remitted for hearing before a Member of the Commission allocated by the President to be dealt with in accordance with this decision and upon a direction made pursuant to s 191 of the IR Act, that the record of the proceedings before Marks J in Matter No IRC 814 of 2008 shall form the record of the review proceedings conducted under s 181E subject to, upon leave, additional evidence being admitted and/or adduced in the proceedings and the proceedings be heard with expedition.

DECISION OF HAYLEN J

REMOVAL OF A POLICE OFFICER
69 On 15 May 2008, the Commissioner of Police removed Detective Senior Constable Alyson Reid-Frost ("DSC Reid-Frost") from the Police Service, acting in accordance with the Commissioner's Confidence provisions contained in Div 1B, Pt 9 of the Police Act 1990. Detective Senior Constable Reid-Frost had been a member of the Police Service for over 11 years and had progressed to her present rank.

70 The statutory Notice forwarded to DSC Reid-Frost stated the matters that raised for consideration the Commissioner's continued confidence in her remaining as a police officer and appeared to nominate two allegations. The first ground alleged a failure to demonstrate the standards of performance, conduct, integrity and competence expected of a police officer and a failure to meet the requirements of a Remedial Performance Plan ("RPP") and a Commander's Warning Notice. The detail of the matters raised in this Warning Notice were not provided with the material served on the DSC. The second allegation dealt with unauthorised secondary employment.

71 The Notice, issued under s 181E(3)(a) of the Police Act, had a submission annexed. The Commissioner referred to that submission saying he had read and taken it into account in issuing the Notice and that the submission "augmented" the matters raised in the Notice. Any Response to the Notice should take into account the submission. The submission (being the Commissioner's Confidence Submission) was lengthy and as reproduced in the Appeal Books occupies some 300 pages. Solicitors acting for DSC Reid-Frost sought and were granted several extensions of time in which to file her Response. A further extension of time until 18 April 2008 was granted but no submission in response was filed by that date. On that day the Commissioner considered both the Notice and the attached submission and determined that he had lost confidence in DSC Reid-Frost and directed that an Order be prepared removing her from the Police Service.

72 After that Order was settled and signed by the Commissioner, a Response was filed by solicitors acting for DSC Reid-Frost and was in the hands of the Commissioner after 21 April 2008. That Response covered numerous matters and in the Appeal Book occupied approximately 40 pages together with another 28 pages of annexures (being mainly medical reports and references). The Commissioner then received a further document dated 1 May 2008 entitled "Commissioner's Confidence Submission". In that document an Officer of the Professional Standards Command recommended that the Commissioner consider the submission filed by solicitors acting for DSC Reid-Frost and determine if he wished to revoke the Removal Order dated 24 April 2008. If the Commissioner was prepared to revoke the April Removal Order it was recommended that he should consider the attached material and determine whether a further s 181D Order should be issued, a Commissioner's Warning Notice should be issued or whether other management action should be taken and to provide advice as to his determination on these matters. That document appears to have a hand-written notation from the Commissioner dated 1 May 2008 which states:

I have taken into consideration the attached Response from this officer. 'Order to stand'.

From this notation it is understood that, by 1 May 2008, the Commissioner stated that he had given consideration to the extensive Response filed on behalf of DSC Reid-Frost but had declined to revoke the previous Order made to remove her from the Police Service.

73 Pursuant to the provisions of s 181E of the Police Act, DSC Reid-Frost applied to the Industrial Relations Commission for a review of the Commissioner's Order of Removal on the grounds that the removal was harsh, unreasonable or unjust. That review was heard over 10 days by Marks J and in April 2009 in a reserved judgment, (see Reid-Frost and Commissioner of Police [2009] NSWIRComm 43), his Honour found that the removal of the officer from the Police Service was harsh, unreasonable or unjust and ordered her reinstatement with payment for lost remuneration. From that decision the Commissioner of Police has filed an application for leave to appeal and if granted, seeks to appeal the decision to reinstate DSC Reid-Frost. The application for leave to appeal asserts that the original decision raises important questions relating to the proper procedure to be adopted by the Commission in hearing applications under Div 1C, Pt 9 of the Police Act and that the decision contained errors of such significance that the decision to reinstate should be set aside. The Commissioner, in a separate application, also sought to appeal against a costs order made in favour of DSC Reid-Frost by his Honour in May 2009.

74 In November 2004 DSC Reid-Frost had been served with a Commander's Warning Notice regarding her performance in record keeping, case management, teamwork and criminal investigation. This Notice was not reviewable but the DSC was put on notice that continued unsatisfactory conduct would result in a number of disciplinary options being considered. The respondent refused to sign the Warning which raised two issues: the circumstances in which she adopted an interview for another police officer said to constitute a breach of procedure; and, allegedly false information given to an investigating officer arising from an infringement notice issued in respect of a police vehicle.

75 In January 2005 DSC Reid-Frost was placed on a RPP. The Commissioner alleged that, between February 2005 and February 2007, she engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct "as documented" in the attached Commissioner's Confidence Submission.

76 Issues raised in the Commissioner's Confidence Submission included: a failure to display the highest standards of integrity in completing a time in lieu work record; failure to co-operate and accept the authority of her mentor under the RPP; failure to properly undertake and participate in the RPP; failure to properly undertake work being supervised by her mentor and misleading her mentor; her emotional instability while undertaking the RPP; shopping during working hours; disputing facts provided by senior officers, including the Police Medical Officer; continual challenges to authority and emotional responses to directions given by her LAC Superintendent; conduct disruptive of work colleagues; the manner in which the officer dealt with a young person and his mother in relation to an infringement notice; and, the necessity to place her on restricted duties. The Police Medical Officer had provided advice that there was no evidence that the officer suffered from a psychological or psychiatric disorder but that her behaviour could only be explained on the basis of "personality type".

DECISION OF MARKS J
77 As reproduced in the appeal book, his Honour's judgment occupied some 90 pages running to 210 paragraphs. In the course of the judgment his Honour set out the relevant review provisions of the Police Act; considered the authorities on the nature of review proceedings; considered the nature and terms of the Notice provided by the Commissioner under s 181D(3) setting out the allegations against the officer; considered whether there was compliance with s 181D(3)(c), ie whether the Commissioner considered the officer's reply to the Notice; dealt with the factual background to determine whether the officer was entitled to relief and the nature of that relief; considered the reasons for removal provided by the Commissioner and the extent to which any of those matters were established on the evidence; having found that the failure to comply with s 181D(3)(a) rendered the decision to remove the officer "unjust" his Honour then dealt with "merit considerations"; considered the public and the applicant's interest pursuant to the provisions of s 181F(3); considered the appropriate relief and whether it was impracticable to reinstate; and, finally made Orders reinstating the officer. These matters are discussed in greater detail below.

78 After setting out the relevant provisions of the Act, his Honour turned to the nature of the proceedings and what was involved in a review of the Commissioner's Confidence decision, referring to authority for the proposition that, on review, he was to "make a fresh and independent review", citing Hosemans v Commissioner of Police (No 2) [2004] NSWIRComm 253; (2004) 138 IR 159. The officer had asked that the process undertaken by the Commissioner be examined in accordance with the approach set out in Little v The Commissioner of Police (No 2) (2002) 112 IR 212. In dealing with this matter his Honour quoted extensively from Little (No 2) and in particular from para [75], including the following:

... The legislature has, no doubt cognisant of the significant powers conferred on the Police Commissioner under Pt 9 of the Police Service Act, laid down various procedural stipulations associated with the removal of a police officer, which, in our view, require, if not strict compliance then at least 'a careful and punctilious regard to correct procedure', and are of significant importance to the review of a decision made under s 181D of the Police Service Act. In this respect, we consider that the correct approach to issues of this kind is synthesised in Van Huisstede as follows at [193] to [200]:

193 In my view, the concept of a “review” must at least have the effect of directing the Commission’s attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2). This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree:

... it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows:

... a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself ...

That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons.

194 What may be further deduced from the decisions in Bigg (No. 2) and Oswald (No. 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion. Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd, the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. ... The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2), also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was “uninformed” (Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner.

195 As was said by the Full Bench in Bigg (No. 2), the Commission should consider, to the extent relevant in a matter, both the procedure employed by the Commissioner in seeking to remove the police officer as well as the merits or substance of the decision.

196 In the first place, the fairness of the process adopted by the Commissioner, and particularly whether the Commissioner adhered to the procedural requirements of s181D, are vital considerations in determining whether the removal of an officer was harsh, unreasonable or unjust. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389, the Full Bench stated:

We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of "an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss" or a failure to afford procedural fairness which causes a "substantial and irrevocable prejudice to the employee" will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). ...

...

199 Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission’s intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. ...

200 I consider that these observations are equally applicable to the exercise of the Commissioner's discretion under s181D of the Act.

79 His Honour then turned his attention to the Notice provided by the Commissioner stating that a Notice provided under s 181D(3) of the Act was a pre-condition to the making of an Order for Removal. The Notice provided to DSC Reid-Frost contained the general allegations against her, specifying the grounds for removal and giving her time to respond. The Notice itself, however, was in general terms requiring the allegations to be understood in light of the material set out in the attached Commissioner's Submission. His Honour noted that the Commissioner "must take into consideration any written submissions received from the officer". His Honour referred to the generalised allegations and their lack of specificity and noted that there were two allegations. The first allegation dealt with a group of incidents concerning a variety of alleged conduct over a two-year period between 2005 and 2007. These incidents were said to raise issues of conduct, performance and competence and a failure by DSC Reid-Frost to meet standards and codes thus raising issues of integrity. The second allegation related to unauthorised secondary employment. His Honour found the Notice was "defective" as not complying with s 181D(3)(c). His Honour conducted an analysis of the grounds concluding that the grounds were not specifically related to the alleged incidents, leaving the officer (and ultimately the Commission) in the position of not knowing which incidents related to which alleged breaches of conduct. The structure of the Notice made it very difficult, at least, for an officer to fully respond, an essential element in the scheme of removal due to the loss of the Commissioner's confidence.

80 His Honour then considered whether the Commissioner had complied with the provisions of s 181D(3)(c) requiring the Commissioner "take into consideration" any written submissions received from the police officer in Response to the statutory Notice. The officer's written Response was lengthy and was described as consisting of 254 paras of closely typed material dealing in great detail with a large number of incidents referred to in the Commissioner's Confidence submission documents. In determining the scope and content of the Commissioner's duty to "consider", the officer's Response pursuant to s 181D(3), his Honour adopted the approach of Boland J in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161. In that case Boland J considered a variety of authority, including High Court and Federal Court authority for the proposition that to consider material required, inter alia, the Commissioner to evaluate the submissions and to obtain an understanding of the facts and circumstances set out in them. Marks J then looked at dictionary meanings of the word "consider", adding that the task was to look closely, to examine, to contemplate. His Honour then concluded that, in order to comply with the statutory requirement imposed by s 181D(3), the Commissioner was required not only to have regard to the Response made by the officer but also had to look at the material closely to examine it and to reflect on what was said by the officer. The parties had agreed that, for the purposes of this consideration, the Commissioner had personally looked at the officer's Response in a period of one hour during which time the Commissioner also considered and dealt with the Response submissions of three other police officers in relation to their own separate disciplinary proceedings. The Responses in the other three cases were tendered in evidence: those documents consisted in total of 41 pages with 100 pages of attachments. DSC Reid-Frost's submission consisted of 41 pages with 28 pages of attachments. His Honour concluded that, in order to understand the Response, required reference to the extensive documents relied upon by the Commissioner in framing the statutory Notice. Having regard to the other matters that the Commissioner was dealing with in the period of one hour, his Honour concluded that the Commissioner could not have considered the officer's submission in any meaningful manner, let alone in a way which could be described as "carefully". For that reason his Honour concluded that the Order made by the Commissioner was "fundamentally flawed" and in those circumstances, it was harsh, unjust and unreasonable that the Order made should be considered as having the effect of removing the applicant from the Police Force. He deliberately refrained from making any finding about whether, at law, the Order was a "nullity".

81 His Honour then proceeded to examine the facts of the matter stating that it was necessary to have regard to the evidentiary material adduced in the proceedings as it was relevant to whether the officer was entitled to relief and the nature of the relief. For approximately 25 pages and in excess of 120 paras, his Honour recorded and analysed the facts raised in the incidents relied upon by the Commissioner, finding some trivial, others exaggerated, some not made out and others placed in a context which lessened the seriousness of the incidents but did find that the officer had difficult inter-personal relationships with a number of other officers, including senior officers.

82 The Statement of Reasons for Removal provided by the Commissioner was then closely examined by his Honour over approximately seven pages of the judgment. For reasons associated with his analysis of the statutory Notice he again referred to the generalised nature of the allegations and their lack of specificity and attachment to nominated allegations of conduct, performance or integrity. In analysing the reasons, his Honour expressed his view as to why certain allegations were not made out or were exaggerated or not as serious as portrayed and how the allegations of secondary employment was a low level matter and was not of its own, such as to justify removal. His Honour concluded that it would be unjust for the officer to be removed on the basis of that document and he so concluded.

83 Under the heading "Merit considerations" his Honour noted that he had already determined that there had been a failure to comply with s 181D(3)(a) of the Act and that had rendered unjust the decision to remove the officer from the Police Force. His Honour recorded that he had also concluded that the Commissioner had failed to consider, in an appropriate manner, the applicant's response and that had rendered the decision to remove her as harsh, unjust and unreasonable and he also concluded that the Statement of Reasons were defective such as to render the decision to remove the applicant as unjust. It was then noted that the parties had entirely differing views on the merit of the applicant's removal and his Honour then explained over a number of pages how the findings he had earlier made about the factual matters were to be treated in dealing with the merit of the case and the orders sought by DSC Reid-Frost. His Honour then considered the public and the applicant's interests as required by s 181F(3) and then considered the appropriate relief and the test of impracticability as applied to re-instatement and as referred to in Little (No 2) and other cases cited. His Honour then considered the appropriate forms of relief pursuant to s 89 of the Industrial Relations Act 1996 and concluded that DSC Reid-Frost should be reinstated in employment.

ISSUES RAISED ON APPEAL
Ground 1
84 Ground 1 of the appeal asserted that Marks J erred on the first hearing day and subsequently in rejecting an application on behalf of the Commissioner of Police to tender into evidence a number of documents. It was conceded that these documents were not part of the Commissioner's Confidence Submission but counsel for the Commissioner submitted that they were "necessary" in order to advance the Commissioner's case on review.

85 Under s 181G certain provisions of the Industrial Relations Act 1996 apply to a review. Under sub-section (1) the provisions of the Industrial Relations Act apply to an application for a review under Div 1C of the Police Act in the same way as they apply to an application under Pt 6, unfair dismissals, of Ch 2 of the Industrial Relations Act subject to a number of specified modifications. Section 163 of the Industrial Relations Act is modified for the purposes of a review under Div 1D, Pt 9 of the Police Act. In the Industrial Relations Act s 163 provides that the Commission is not bound to act in a formal manner and is not bound by the rules of evidence and may inform itself on any matter in any way it considers to be just and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form. Section 163(2) provides that the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session. Section 181G(1) modifies s 163 of the Industrial Relations Act in the following way:

(f) Section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless:

(i) notice of intention to do so, and the substance of the new evidence, has been given in accordance with the regulations under this Act, or

(ii) the Commission gives leave.

Although the Police Act requires judicial members of the Commission to constitute the Commission for a review under Pt 9 of the Police Act, the Commission does not sit as the Commission in Court Session (now the Industrial Court) and so the rules of evidence are not applicable.

86 Section 181G(2) sets out the circumstances in which leave to adduce new evidence may be granted under s 181G(f)(ii), providing as follows:

The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances:

(a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information;

(b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously;

(c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision.

87 The circumstances in which counsel for the Commissioner sought to tender new evidence requires some explanation. The hearing was listed for 4 December 2008 for two weeks. Shortly before the hearing, counsel originally briefed became indisposed and the Commissioner engaged new counsel. On 3 December 2008 the matter was listed to hear an application on behalf of the Commissioner to vacate the hearing dates. Briefly stated, new counsel was considering 18 volumes of material said to be relevant to the case in order to be in a position to cross-examine the applicant and to deal with matters raised in her response. It was accepted that there was only one volume of material accompanying the Statutory Notice and filed in the Commission for the purposes of the review. This was the material that the Commissioner had regard to in determining he had lost confidence in DSC Reid-Frost. For the Commissioner it was emphasised that this material was not necessarily sought to be tendered and certainly had not been the subject of a notice indicating the substance of additional evidence to be called for the Commissioner but was confined to considering material for use in the applicant's cross-examination.
88 Counsel for the applicant pointed out that, immediately after conciliation, it was thought that the Commissioner would be calling 30 witnesses but that assessment had since been reduced to 7 and the applicant's case had been prepared on the basis that the issue had been somewhat narrowed, with the Commissioner relying upon the one volume of documents accompanying the Statutory Notice together with the statements of seven witnesses. The applicant's legal representatives were unaware of any notice indicating that the Commissioner would be relying upon the 18 volumes of material. It was noted that, on 8 July 2008, directions had been given to both sides for the filing of any further material but the Commissioner had not added to the one volume accompanying the Statutory Notice and had given no notice of filing further material, let alone 18 volumes of further material. His Honour determined that the matter would commence on Monday, 8 December 2008 and if counsel for the Commissioner was still experiencing difficulties then the matter could be considered at that time.

89 On Friday, 5 December 2008 the matter was again relisted on the Commissioner's application. Newly briefed counsel appeared on that occasion and informed the Commission of his inability to read all the necessary material in order to properly cross-examine the applicant on the present timetable commencing on 8 December 2008. He accepted that not all the material in the 18 volumes may be relevant but he had to consider the material and had not yet had the opportunity of speaking to witnesses to be called on behalf of the Commissioner. Again, reference was made to using this material for the purposes of cross-examination. After hearing argument and directing counsel to confer , Marks J ultimately ruled that the matter would commence on Wednesday, 10 December 2008.

90 On 10 December 2008 when the case commenced, counsel for the Commissioner indicated that he had only been able to consider five volumes of the material and that he was not in a position, that day, to cross-examine the applicant. Counsel asked to be permitted to begin cross-examination the following day. Some new material, not already filed in the Commission, had been extracted from those five volumes and was to be used for cross-examination. The Commission acceded to that application and asked the applicant's counsel to deal with any matters in chief that could be dealt with and allowing the cross-examination to begin the following day. A number of documents were tendered and the applicant gave brief oral evidence in chief.

91 On 11 December 2008, prior to commencing cross-examination, counsel for the Commissioner proposed to tender a bundle of documents representing the matters culled from his perusal of a number of the18 additional volumes provided to him by the Commissioner. It against this background that the first ground of appeal is to be considered.

92 In relation to this first ground of appeal, the Commissioner relied heavily upon what was said to be a statement of principle laid down by a Full Bench of the Commission in Commissioner of Police v Hollingsworth (1997) 77 IR 339. One of the matters being dealt with by the Full Bench in that case was the refusal by the Commissioner at first instance to accept evidence about Ms Hollingsworth's background not known at the time of the termination of her engagement as a student police officer. Considering the judgment of the High Court in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the Full Bench held that the Commissioner had fallen into error in not accepting into evidence material that had not been known at the time of the termination but was relevant to the applicant's character. It was in that context the Full Bench stated that, in those circumstances, the Commissioner "may not, except in rare and exceptional circumstances, refuse an employer the opportunity to bring evidence about those circumstances".

93 On further appeal, a Full Bench of the Commission in Court Session (Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 at 325) referred to this passage stating that the question of law raised before the Full Court was the ability to rely on existing but later discovered facts in order to determine whether a dismissal was harsh, unreasonable or unjust. That discussion did not take place in the context of having to seek leave under s 181G(1)(f)(ii) of the Police Act in order to adduce new evidence on a review. The documents in the bundle proposed to be tendered on the second day of the hearing by counsel for the Commissioner came from the files within the control and possession of the Commissioner but they had not formed part of the Commissioner's Confidence Submission which accompanied the Statutory Notice. That is not the same class of documents dealt with in Byrne's case and in the two Hollingsworth decisions: those were documents unknown to the employer until after the decision to terminate was made. This line of authority does not support the Commissioner's case on appeal.

94 Having regard to the legislative scheme it is not open, when considering the operation of s 181G(i)(f)(ii) and (2), to conclude that there is a right to call new evidence and that the only consideration that might be entertained by the Commission in admitting the new evidence is ensuring sufficient notice is given to the other side to enable it to be in a position to meet the new evidence: such a proposition renders nugatory the need for "leave" to be granted. Where the evidence is to be admitted by leave of the Court, the usual considerations attaching to an exercise of judicial discretion will apply. Those considerations will include: whether or not the new evidence is relevant having regard to the statutory scheme: whether the prejudicial nature of the evidence outweighs the benefit of admitting it; whether the evidence was available to the Commissioner at the time he made his investigation and/or decision and the reason why it was not considered; weighing the additional hearing time that may be required to deal with the new evidence and to give time to the opposing party to respond to that evidence, having regard to the nature of the evidence and its significance in the overall determination of the case; whether the timing of the call for new evidence is just too late in all the circumstances; and, whether the admission of the new evidence requires the opposing side to become involved in a new evidence gathering exercise and/or whether the costs of such an exercise are justified by the significance of the new material. There is no warrant, therefore, to apply s 181G(i)(f)(ii) such that it will only be in rare and exceptional circumstances that new evidence would not be received.

95 In the present case no prior notice had been served by the Commissioner of Police identifying the substance of the new evidence to be relied upon. There was no suggestion that the evidence was required to be received by operation of s 181G(2)(c), that is, where the evidence might have materially affected the Commissioner's decision although, in context, that provision arguably is to operate as a protection for the officer. It was only on the second day of the hearing that counsel, recently briefed, indicated that a consideration of a number of documents had led him to conclude that additional material, not previously part of the Commissioner's confidence submission, should be before the Commission and was necessary for the proper presentation of the Commissioner's case. The application to adduce this new evidence was contrary to the position taken by the Commission on the previous three days - that the new material was being considered only for the purpose of cross-examination.

96 Some of the proposed new documents dealt with details of events in relation to which DSC Reid-Frost was eventually given a Commander's Warning Notice. That Notice was mentioned in the Commissioner's Confidence Submissions. Much of the documentation not before the Commissioner was said to go directly to DSC Reid-Frost's conduct and behaviour in the workplace and her suitability to continue as a police officer and was therefore said to be directed to the heart of the proceedings, including the issue of the practicability/ impracticability of reinstatement. It was asserted that the failure to allow the tender of the documents probably affected the determination of the proceedings and because of their nature, should have done so.

97 In his ruling rejecting the tender of the additional material, Marks J noted that directions had been given in July for the filing of material but that at the commencement of proceedings, the Commissioner had sought to adduce further evidence by way of a bundle of documents, containing 189 pages. Those documents had been briefly considered by his Honour and seemed to refer to incidents which arose during the course of DSC Reid-Frost's engagement at the Burwood Local Area Command and dated back to at least March 2002. There were a number of observations made by a variety of police officers that were now sought to be relied upon by the Commissioner. Not necessarily everything in the documents would be relied upon in cross-examination. There were already a large number of documents which the Commissioner had relied upon and there were two additional events that were outside the existing incidents which were sought to be canvassed by the Commissioner in the present proceedings.

98 His Honour acknowledged the right of the applicant and the respondent to have all matters relevant to their case considered and determined by the Commission but stated that there had to be some limit placed on the litigation of the issues in the proceedings. His Honour then stated:

There has to be some finite boundary erected within which the proceedings are to be litigated. I understand Mr Searle's position. Perhaps as counsel coming into the matter afresh he brings a new appraisal to the matter as often happens when matters are reviewed in these circumstances.

However, for my part, having regard to the directions given for the preparation of the matter and the compliance with those directions up until this day, and having regard also to the nature of the proceedings, I am not prepared to allow the Commissioner to rely upon the material which is contained within pages 109 to 299 inclusive of the bundle, save for, as I understand it, some few pages which may be the subject of agreement and about which I can be informed at some stage during the proceedings. In coming to this decision I have regard, in particular, to the necessity to allow the applicant to have her reinstatement application dealt with at the earliest possible opportunity without any further undue delay. Indeed, as I understand it, the relevant legislation is directed to ensuring that proceedings of this nature are dealt with as quickly as possible.

99 In the Decision published by Marks J, his Honour returned to this issue and his earlier ruling.

[161] Although the Warning Notice itself was part of the Commissioner’s Confidence Submission documents, there are no other materials contained within those documents that refer to the background against, and the circumstances in which, the Warning Notice was issued. Furthermore, the Commissioner’s Statement of Reasons only refers to “a number of issues” being identified “during 2004” with no hint of what they might be. If the Commissioner, in his Statement of Reasons, intended to rely upon what occurred during 2004 as representing grounds for dismissal, then in my view the broad generality by which these issues were described, and the lack of specificity, would render such grounds as meaningless, particularly in the context of the applicant being required to respond to them in some way. My reading of the Statement of Reasons is that the reference to these unspecified issues during 2004 merely attempts to set the scene for what follows and is there by way of background only. I apprehend the applicant to have proceeded on the same basis.

[162] Notwithstanding this, the Commissioner sought to have tendered into evidence a number of documents that related to matters which had occurred during 2004 and two matters which appear to have occurred in October and November 2003. I rejected the tender of this documentation because the issues which occurred in 2004 were not specifically referred to in any way in the Commissioner’s Statement of Reasons, could not therefore have been relevantly relied upon by him, were not included within the Commissioner’s Confidence Submission and, in all the circumstances, it would have been unfair and inappropriate to allow these proceedings to have been conducted by reference to these matters.

100 In submissions on appeal, the Commissioner argued that, to the extent that Marks J relied upon case management considerations, the decision of the High Court in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1996-1997) 189 CLR 146 applied such that case management considerations should not have been allowed to prevail over the injustice of shutting out a party from raising an arguable defence. Although it is clear that the decision in J L Holdings concentrated on the ultimate aim of courts being the attainment of justice, in that case for purely case management reasons, a potentially complete answer by way of defence had not been allowed to be pleaded by way of amendment. That was hardly the situation in the present proceedings and further, his Honour did not simply adopt a case management approach.

101 Even if the provisions of s 181G(1)(f) were to be liberally applied, the Commissioner of Police had to show some reason why its application should be granted when objection was taken by the other side. His Honour was confronted with the following facts: the structure the Commissioner's Confidence provisions in the Police Act required the officer to be notified of the grounds upon which his or her removal was being considered and the officer was then to be given a time in which to reply and state their case; where an officer was removed from the Police Service and sought a review in this Commission, the obligation of the Commissioner was to provide the officer with all the documents upon which he had relied in deciding to remove the officer from the Police Service; the Commissioner had referred in general terms to the 2004 non-reviewable Warning Notice and while that Warning was amongst the materials provided to DSC Reid-Frost, none of the background to that Warning was provided; it was open on the way in which the statutory notice was structured, as found by Marks J, that the reference to the 2004 Warning Notice was by way of background leading into the more detailed occurrences arising during the period 2005 - 2007; no explanation was proffered as to why new evidence, which was available, had not been attached to the Commissioner's Confidence Submission; in proposing the tender of the evidence counsel was unable to say which part of the evidence would be relied upon until after the cross-examination was completed; the Commissioner was only able to give an undertaking that, should the new material be sought to be tested by the opponent, every effort would be made to have current serving officers made available for cross-examination but no undertaking was given in relation to those who were no longer serving officers. The proposed new evidence did not fall into that category of evidence which was unknown to the employer at the time of termination but which provided relevant information as to the employee's conduct and therefore able to be used in reinstatement proceedings. Importantly, the Commissioner had laid down a timetable for the filing of further evidence and the parties had complied with that ruling. Thus, on at least two occasions the Commissioner had elected not to rely on this material, firstly, when compiling the Commissioner's Confidence Submission and secondly, when complying with the Commission's directions to file further evidence, a direction given in June 2008, more than five months before the hearing date.

102 It can be concluded that, at all relevant times, the Commissioner elected what evidence he would rely upon both for the purposes of the Commissioner's Confidence processes and also in relation to the review proceedings in the Commission. From its description the proposed new evidence could best be described as tangential, giving some general support to the more numerous events relied upon by the Commissioner. The timing of the tender clearly placed the applicant at a disadvantage and had the propensity to unjustifiably prolong the review proceedings.

103 His Honour was not persuaded that it was appropriate or fair to allow the Commissioner to now rely upon this additional material. I am unable to find any error in that approach. The first ground of appeal therefore fails.

Ground 2
104 The second ground of appeal was expressed in the following way: his Honour erred in failing or refusing to exercise his jurisdiction, as required by law, by "refraining from making findings as to [the applicant's] suitability to continue as a police officer having regard to her competence, performance or conduct" despite having identified this as the core of the case, when he stated, "Essentially, [the case] is about the ability of a police officer to perform her duties principally by reference to her personality and her ability to inter-relate with others in the New South Wales Police Service".

105 The Commissioner for Police had nominated competence, integrity, performance and conduct as the grounds for removing DSC Reid-Frost from the Police Force. It was argued on appeal that these were the matters that were required to be considered by the Commission in conducting the review under Div 1C, Pt 9 of the Police Act. The relationship between DSC Reid-Frost and others in the Police Service encompassed not only superiors but also other officers who, from time-to-time, were charged with providing the respondent with guidance and directions.

106 On review the Commission was to undertake a "fresh and independent review" of the removal order based on the material before the Commissioner and any new evidence admitted under s 181G(1)(f) in considering the merits of the application and determining whether the removal was harsh, unreasonable or unjust (citing Hosemans v Commissioner of Police [No 2] [2004] NSWIRComm 253; (2004) 138 IR 159). On appeal it was submitted that the process before the Commission was governed by the provisions of s 181F: the Commission was to consider the Commissioner's reasons for the Decision; was then to consider the case presented by the applicant as to why the removal was harsh, unreasonable or unjust and then had to consider the case presented by the Commissioner in answer to the applicant's case. At all times the burden of establishing that the removal of the respondent from the Police Service was harsh, unreasonable or unjust rested with the applicant. Without limiting the matters to which the Commission was required or permitted to have regard to in making its decision, the Commission was required to have regard to the interests of the applicant and the public interest including the interests of maintaining the integrity of the New South Wales Police Service and the fact that the Commissioner had made an order pursuant to s 181D(1). The Commission was not free to depart from these statutory requirements. Nevertheless, despite there being a fully contested hearing on all the issues and while making a number of significant findings going to the heart of the matters that fell to be determined, his Honour stated at par [206] as follows:

I am not satisfied that taking into account the three matters referred to in s 181F(1) that the applicant is unsuitable to continue as a police officer having regard to her integrity. I refrain from making any findings as to her suitability to continue as a police officer having regard to her competence, performance and conduct..

In adopting this approach it was submitted that Marks J refused to decide several of the matters that the Commission was required to decide under the review provisions of the Police Act. In short, his Honour had erred in law in adopting such a course.

107 In stating the proposition in these terms, the appellant's submission ignores the total context in which his Honour decided the case. It also ignores the substance of his Honour's Decision. His Honour was entitled to consider the unfairness of procedure and the unfairness of the removal having regard to matters of merit (see the Full Bench in Newton v NSW Police Service (1999) 87 IR 66). In accordance with the Full Bench decision in Newton issues of process were not necessarily, by themselves, determinative of the application. In compliance with this approach his Honour appears to have dealt with what he found to be unfairness in the process as well as the unfairness arising on a consideration of merit issues: while these findings, of necessity, occurred sequentially, his Honour, in substance, did not segregate those findings but rather all of the findings were considered in determining whether the removal of DSC Reid-Frost was harsh, unreasonable or unjust.

108 When the entirety of his Honour's judgment is considered, it becomes clear that he was critical of the way in which the allegations were framed within the s 181D(3) Notice. The first allegation was a broad complaint about the failure of DSC Reid-Frost to demonstrate the standards of performance, conduct, integrity and competency expected of a police officer and a failure to met the requirements of the RPP and the Commander's Warning Notice. The Notice then referred to issues being identified in 2004 regarding performance, especially in the areas of record keeping, case management, teamwork and criminal investigation resulting in a Commander's Warning Notice being issued in November 2004. That non-reviewable action warned the officer that continued unsatisfactory conduct could result in further management action and could also entail consideration of reviewable action under s 173(2) of the Police Act or removal under s 181D. It was then recorded that, in January 2005, the officer was placed on a RPP. It was alleged that, between February 2005 and February 2007, DSC Reid-Frost engaged in a continued pattern of inappropriate and unprofessional behaviour and conduct as documented in the attached Commissioner's Confidence Submission. Reference was then made to policies and procedures and codes, including Codes of Conduct and Ethics. The second allegation was a specific allegation of unauthorised secondary employment.

109 In summary, his Honour found that the reference to matters during 2004 appeared to be provided as background to the remedial performance programme and alleged failures by the officer between 2005 - 2007. There were a considerable number of documents attached to the submission referring to issues arising in relation to the officer during the 2005 - 2007 period but his Honour found that those documents lacked specificity and content as to precisely what was the relevant breach and there was also an absence of an assessment, for the purposes of s 181D action and ultimate removal, as to the seriousness of each incident. A fair reading of his Honour's judgment shows that he regarded the first allegation as being poorly or vaguely framed and providing no indication of the relative seriousness of each event or occurrence that was mentioned in the multitude of documents. In forming this view his Honour was following the Full Bench decision in Little (No 2) at [194] and was ascertaining the process adopted by the Commissioner to the extent that he was ascribing weight to particular facts and material. His Honour was also following the judgment of Boland J in Hosemans (No 3), namely, to consider the Response the Commissioner had to obtain an understanding of the facts and circumstances and had to evaluate them, a task he could only perform when he actually knew what were those facts and materials. For instance, his Honour pointed out that, in relation to one matter, namely, "customer service", there was no specific factual matter contained in the Notice that referred to customer service. His Honour's analysis of the documents in relation to the first allegation paints a picture of a grab bag of incidents and events over a period of time that were not sufficiently focused so as to enable an adequate assessment of the seriousness of the matters raised. They did not indicate whether the incident recorded went to performance or conduct, integrity or competence or any combination thereof. There was no direct specification of how the recorded incidents were in breach of the nominated codes of conduct.

110 That material then had to be considered in the light of the officer's response, including her assertion that, for a number of years from her appointment to 2004, she had not come to significant notice or had been the subject of complaint and that it was only after she had made a complaint about the corrupt conduct of a fellow officer that she became subject to close scrutiny and continuous complaint about her conduct. It is against this background that his Honour was able to find in relation to allegation 2 and certain aspects of the officer's conduct covered in allegation 1 that DSC Reid-Frost was not unsuitable to continue as a police officer having regard to her integrity. This is an important finding and one which is largely ignored in the appellant's analysis. When his Honour went on to refrain from making any finding as to her suitability to continue as a police officer having regard to her competence, performance or conduct, he was simply reflecting upon the inadequacy of the material supporting the broad and sweeping allegation contained in allegation 1 as specified in the statutory Notice. Because of the way the case was presented, it is apparent that his Honour felt unable to decide whether the officer's competence, performance and conduct was of such significance as to warrant removal and so he specifically reinstated her to restricted duties in recognition of the fact that there had been a RPP and because there was medical evidence supporting restricted duties.

111 Importantly, his Honour then made the following statement at par [204]:

Reinstatement to such a position will allow the applicant to be reassessed by the Commissioner with respect to her suitability to remain on or be relieved of those restricted duties. Such reinstatement will also allow the Commissioner an opportunity to assess and consider the suitability of the applicant to remain as a police officer having regard to the matters of concern raised by Detective Inspector Jubelin about her personality and temperament to which I have earlier referred.

In making that statement his Honour was indicating that, to the extent that there were grounds for a continuing assessment of the officer's performance and conduct, the Commissioner of Police was at liberty to take whatever steps were deemed appropriate to address any perceived under-performance. These unresolved matters were not identified by the appellant in his broad brush approach but, having regard to the numerous incidents dealt with by his Honour, they appear to be primarily the issue of the DSC's "personality" and relationship with other officers. In short his Honour found that there was no basis to challenge the officer's integrity, that a number of the performance/conduct allegations could not be sustained, and, together with the unfairness of the process adopted under the Commissioner's Confidence procedures, that the removal of the police officer was unfair and that she should be reinstated to her former position. The issues of competence, performance and conduct linked to personality may well warrant continued consideration but those issues were not sufficiently articulated to allow final determination on review and therefore did not justify the officer's removal from the Police Service: the respondent had challenged the Commissioner's allegations, at least on the basis that they could not be made out and, at the highest, that they were wrong as to the categorisation of her conduct. Thus DSC Reid-Frost discharged her onus by showing that her removal was unfair, unreasonable and unjust.

112 On the above analysis, it is not open to the appellant to allege that his Honour failed to decide several of the matters that the Commission was required to decide under the review provisions of the Police Act. It is to be remembered that, pursuant to s 181F, after firstly considering the Commissioner's Reasons for Decision and then the case presented by the applicant in any case in Reply to the Commissioner, the Commissioner was required to find that either the removal was or was not harsh, unjust or unreasonable. That is precisely the question that his Honour answered. It is also to be remembered that, subject to the specific legislative scheme dealing with the Commissioner's Confidence matters, pursuant to s 163 of the Industrial Relations Act, the Commission was to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. This provision highlights that it is the substance of the matter which is to be considered. While his Honour was able to make a number of findings that allegations against DSC Reid-Frost did not warrant removal from the Police Force and therefore a removal based upon them was unfair, the only area of significance left outstanding was her "personality". His Honour accepted that there was evidence for and against the officer in relation to this matter but in substance formed the view that, on the evidence, he could not form a final view as to her competence, performance and conduct. It must follow that, in substance, his Honour was unable to find evidence of sufficient gravity in these areas that would warrant her removal from the Police Force. In essence, DSC Reid-Frost's case was that these findings were unfair to her: in substance, his Honour agreed. In determining an issue as to the fairness of a removal from employment, the Commission is not required by either the Industrial Relations Act or the Commissioner's Confidence provisions of the Police Act to make a finding on each and every allegation proffered for consideration by the parties: if the Commission on review is able to reach a conclusion regarding the substance of the matter and about unfairness, either for or against an officer who has been removed from the Police Service, then notwithstanding that some factual matters have been left unresolved, the Commission on review has exercised the power conferred upon it and has made a determination as to unfairness.

113 It may be thought that his Honour took an unusual approach in addressing these matters but there is nothing irregular about making a determination on the merits of the case and finding that the evidence, while raising issues, does not support removal. Implicitly, this is the course taken by his Honour - if he had formed the view that the allegations as to competence, performance or conduct had been made out then it is difficult to see how he could have come to other than the view that the removal was justified or alternatively, that the matters raised were so insignificant that removal was not justified. His Honour specifically refrained from making those findings because he was not satisfied that the evidence enabled those findings to be made. That was the effect of his Honour's finding at par [206]. Importantly, in this context, his Honour found that it could not be detected from the evidence any matter that would reflect adversely on DSC Reid-Frost's ability to deal with the public and otherwise discharge her duties. While this might be portrayed as an unusual result, it was the considered view of his Honour having regard to the inadequacies of the evidentiary case for the Commissioner as challenged by DSC Reid-Frost and is one that was open to him on the evidence.

114 The appellant's case tests the bounds of technicality in arguing that his Honour remitted the case to the Commissioner, an impermissible act under the review provision. There was no remitter or purported remitter. It was entirely up to the Commissioner whether or not he continued to monitor DSC Reid-Frost - a course open to him even if his Honour had made findings on all issues and had reinstated the officer. Having concluded that there was no error in his Honour's approach after considering the context of the findings complained of on appeal, it follows that the second ground of appeal is not established.

Ground 3
115 The third ground of appeal alleged that his Honour was in error and failed to apply well-established principles regarding the operation of the Commissioner's Confidence provisions of the Police Act requiring the Commission to consider both the procedure employed by the Commissioner to remove the police officer as well as the merits or substance of the case. It was alleged that his Honour had erred in determining the matter on procedural grounds only in circumstances where there had been a full hearing on all contested merit issues.

116 It was submitted in support of this ground of appeal that his Honour had determined the matter by reference by legal defects and deficiencies found in relation to the grounds in the statutory Notice, the manner of the Commissioner's consideration of the respondent's written submissions filed in accordance with s 181D(3)(c) and on a consideration of the Statement of Reasons. In taking that approach his Honour, it was submitted, was not engaged in a merit review as required by the Police Act but conducted a judicial review of an administrative decision, a function of the Supreme Court and not of the Commission. It was submitted that, although there was denial of any deficiencies or procedural deficiencies, if such existed, his Honour still failed to determine the matter by considering all the issues and the matters required to be determined by s 181F(1). His Honour was not free to depart from the provisions of s 181F(1). The proper approach was said to be that the Commission was required to determine, whether in the light of the Commissioner's Reasons and based on the merits of the case, the removal was harsh, unreasonable or unjust.

117 In support of this submission on appeal, reference was made to parts of the transcript where his Honour discussed certain propositions in the course of argument. On appeal, the Full Bench has been invited to use those exchanges to understand his Honour's Decision. I regard that course as involving an unacceptable risk of substituting discussion occurring during argument for the Reasons for Decision. Matters raised by the Bench in the hearing of a matter, even if they do represent a tentative view, are of necessity propositions usually put to test a line of argument and sometimes the authorities said to support it. The surer guide as to how his Honour came to decide the matter is his published reasons. Where there is some ambiguity or uncertainty about those reasons, there may be occasion to look to exchanges in argument in order to be able to trace the decision-maker's thought process but even then, such an approach would rarely be warranted and remains an approach attended by unacceptable risk.

118 The appellant's contention that his Honour by and large disposed of the matter by finding legal defects and deficiencies and did not consider the merits of the case it difficult to sustain. As indicated earlier in this judgment, the fact that his Honour first considered deficiencies in the process and then went on to consider issues of merit does not lead inevitably to the result that his Honour only dealt with process and did not deal with merit and indeed, acted on an administrative law basis. In Newton the Full Bench dismissed an appeal that sought to establish that it was open to the Commission in a review proceeding to determine the application for reinstatement on the issue of the invalidity of the process and to do so on a threshold challenge without proceeding to deal with merits. At first instance, Peterson J rejected that approach ((1998) 85 IR 119). After an extensive consideration of previous appeal regimes and the report of the Royal Commission into the New South Wales Police leading to the introduction of the Commissioner's Confidence Provisions in the Police Act, his Honour determined that it was open to an applicant for review to challenge the validity of the process by which the applicant had been removed from the Police Service and to attempt to demonstrate thereby that the removal was harsh, unjust or unreasonable. However, such an applicant could not confine the Commission to a consideration of the validity issue and the provisions of Div 1B and 1C, Pt 9 of the Police Act permitted the Commissioner to raise and rely on merit issues and those same provisions required the Commission on review to deal with all of the issues, including validity and merit issues. In coming to this conclusion, Peterson J stated that the Commission was to examine the dismissal with a view to determining whether or not it was harsh, unreasonable or unjust but the matter was not confined to an examination, from the perspective of administrative law, of the reasons to ascertain their accuracy or validity but from the perspective of the substance of the matter (at 127).

119 After considering the detailed legislative history concerning the means by which police officers could challenge their removal from the Police Service, Peterson J stated at pp 132-133:

In my opinion the intention and effect of the 1997 amendments is not to create an opportunity for a dismissed police officer to confine the issues in a proceeding by which reinstatement is sought to what I might loosely call the validity of the process. While there are, I think, overlaps between the usual approach of the Commission in private sector reinstatement matters (and indeed with the circumstances prevailing even in Bigg's Case) I consider that the reformation of the approach manifested in the 1997 amendments creates a procedure which is tailored peculiarly to meet the special needs of the Police Service as they are perceived in the light of the final report of the Police Royal Commission.

In Bigg's Case the Full Commission was able to determine that the failure of the Commissioner to consider all of the material before the Police Royal Commission concerning Mr. Bigg had a consequence that the opinion formed by the Commissioner was not the result of a proper exercise of discretion and accordingly, since there was no further material going to the question, amounted to a harsh, unreasonable or unjust dismissal. The Full Commission relied upon what was said by Kitto J. in Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. ((1965) [1965] HCA 27; 113 CLR 177 at 189 and adopted by Mason J in FAI Insurances Limited v. Winnike ((1981-82) [1982] HCA 26; 151 CLR 342 at 368):

... a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself . ...

However, the 1995 amendment provided for no more than the formation by the Commissioner of an opinion based on material in the Royal Commission. There was no statutory provision analogous to those which now reside in s.181E, Review generally and s.181F, Proceedings on a review. The latter section imposes on the applicant "at all times the burden of establishing that the removal ... is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary". Section 181F also requires the Commission to proceed in a particular manner by firstly considering the Commissioner's reasons for the decision to remove the applicant from the Police Service; secondly the case presented by the applicant as to why the removal is harsh, unreasonable or unjust; and thirdly, the case presented by the Commissioner in answer to the applicant's case.

In seeking to argue that the Commission is free to examine the validity of the process undertaken in an administrative law sense, Mr. Docking submitted that the legislation makes the Industrial Relations Commission, in effect, a "one-stop shop". In other words, it was not intended that the Supreme Court be the sole repository of jurisdiction with respect to administrative law matters and the Commission may deal with such matters as well in the context of the review provisions applicable here. I am inclined to the view that the legislation does intend the Commission to be a "one-stop shop" but perhaps not limited to the sense advanced by Mr. Docking. The structure of s.181F suggests, I think unavoidably, that the Commission is free to examine the Commissioner's reasons both on the basis of the means by which they were achieved and, if necessary, their substance.

Division 1C of Part 9 of the Police Service Act as amended by the 1997 amendment Act concerns a review of the Commissioner's decision to remove an officer made under Division 1B. Division 1C contains the review provisions applicable to proceedings in this Commission. There is no express reference to be found in Division 1C to notions of administrative law review. Section 181E emphasises that a police officer who is removed from the Service by an order under s.181D may apply to this Commission for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (My emphasis).

...

The obligation imposed on the Commission to proceed in a review by considering firstly the Commissioner's reasons for decision and then the applicant's case as to why the removal is harsh, unreasonable or unjust seem to me to be quite wide enough to encompass the idea that the process undertaken was such that it resulted in an unfair termination.

... The requirement for the Commission to consider the Commissioner's case in answer to the applicant's case ... presents an opportunity for the Commissioner to traverse the substance of the reasons for dismissal rather than solely the process undertaken for their acceptance.

If an applicant wishes to rely only on process and not the merit of the reasons and seeks to confine his case accordingly, it seems to me that s.181F would not prevent that occurrence. The issue would remain as whether the order terminating service was harsh, unreasonable or unjust. That approach by the applicant would not, however, prevent the Commissioner from making out his case on merit as well as process. Further, a failure by the applicant on the issue of process would, were that the only issue advanced by the applicant, and the only matter dealt with, leave the applicant without further redress in this Commission.

120 On appeal, the Full Bench [(1999) 87 IR 66] determined that Peterson J had not fallen into error in construing the legislation. The Full Bench expressed concern that an applicant who raised such a threshold question would effectively split the case requiring a ruling on the threshold question and if failing on that issue, being then able to be heard on the question of merit. Section 181F could not be read as easily accommodating such an approach. The Full Bench then went on to say at 76 et seq:

The approach adopted by the Commission is no different to the approach taken by the High Court in Byrne (Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410) in relation to the provisions of an award which provided that dismissal was not to be harsh, unjust or unreasonable. McHugh and Gummow JJ considered the relationship between matters of procedure and merits by observing (at 465-466 ...):

The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation. ... In our view, it is unhelpful and contrary to the tenor of the award to introduce it into cl 11(a).

That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 357). But the question under cl 11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second.

121 In the context of a dismissal under s 181D, it is relevant also to refer to the observations of the Full Bench in Bigg (No 2) in relation to the statutory predecessor to s 181D, namely, s 181B of the Police Service Act. It was said (at 460) that:

... it will not be every failure in following procedure such as that established by s 181B which will lead to the conclusion that the dismissal was harsh, unreasonable or unjust.

Section 181F picks up those notions and in reviewing a dismissal under s 181D, imposes a statutory obligation on the Commission to consider the three matters specified in s 181F(1) before finally determining the matter. In our view, it is an obligation which the Commission is not free to depart from in the way proposed by the appellant.

122 The Full Bench in Newton went on to refer to the Second Reading Speech introducing the 1997 Amendments to the Police Service Act. At p 78 this extract from the Second Reading Speech was recorded:

The Bill provides police officers with the right to go to the Industrial Relations Commission to seek review of a dismissal decision. Again, similar to the protection provided to other workers under the unfair dismissal provisions of the Industrial Relations Act, it is not identical as there are some important differences which I will discuss shortly. The key aspect of the review to be conducted by the Industrial Relations Commission will be a review of the merits of the decision of the Commissioner. It will allow both the fairness of the process by which the decision was arrived at, the facts on which the decision was based, and whether dismissal was harsh, unjust or unreasonable.

123 As earlier indicated, Marks J considered his task on review to be in accord with the course laid down by the Full Bench in Little (No 2). His Honour quoted extensively from that Full Bench judgment. Without repeating those passages, in summary the Full Bench had the following to say about the role of process in a determination as to whether removal from the Police Service was harsh, unfair or unreasonable:

(a) the legislature has, no doubt cognisant of the significant powers conferred on the Police Commissioner under Pt 9 of the Police Service Act, laid down various procedural stipulations associated with the removal of a police officer which required if not strict compliance then at least "a careful and punctilious regard to correct procedure", and are of significant importance to the review of a decision made under s181D;

(b) the correct approach was laid down in Van Huisstede, namely, that the concept of review must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process adopted by the Commissioner. The Commissioner's decision must be exercised in accordance with the principles discussed in both Bigg (No 2) and Oswald (No 2), namely, that the statutory scheme did not leave open the possibility that the Commissioner of Police would be free to act ill advisedly, or capriciously, in relation to the exercise of the obligations imposed on him by s 181D(4)) by failing to give a dismissed police officer proper reasons for the decision to dismiss. The discretion to remove an officer must be exercised in the way discussed by the Full Bench in Bigg (No 2) and in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, namely, a discretion allowed by statute to the holder and offices intended to be exercises according to the rules of reason and justice, not according to private opinion; according to law and not humour and within those limits within which an honest man, competent to discharge the duties of his office or to confine himself;

(c) from Bigg (No 2) and Oswald (No 2) it may be deduced in determining whether the decision to remove an officer was harsh, unreasonable or unjust the Commission on review is entitled to have regard to the process adopted by the Commissioner and in particular whether the Commissioner adhered to the procedural requirements laid down by the Act. The Commission was not at large in the exercise of his discretion. The Commission had to assess whether the Commissioner had assessed all the information and materials available both in favour and against the officer as well as the process adopted by the Commissioner in ascribing weight to particular facts or material. It was open to the Commission to consider whether the decision of the Commissioner was "uninformed" in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner;

(d) the Full Bench in Bigg (No 2) said that the Commission should consider, to the extent relevant, both the procedure employed by the Commissioner in seeking to remove the officer as well as the merits or substance of the decision. The process adopted by the Commissioner and particularly whether the Commissioner had adhered to the procedures required by s 181D, were "vital considerations in determining whether the removal of an officer was harsh, unreasonable or unjust". Adopting the Full Bench in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389, namely, that a failure to deal with a matter in a procedurally fair way may, in certain cases, of themselves, constitute a basis for a determination that the dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of "an essential pre-requisite to or inviolable limitation on the exercise of the employer's right to dismiss" or failure to afford procedural fairness which causes a "substantial and irrevocable prejudice to the employee" will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust and hence establish a basis for remedy under the Act. Where procedures were specified in an industrial instrument or by administrative action, a failure by an employer to apply or properly apply those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust;

(e) while the Commission is required to consider the entire circumstances of each case it will not be every failure to adhere to the procedures specified by the Act that will require the Commission's intervention, a failure by the Commissioner to exercise his power in a manner consistent with that described in Bigg (No 2) and Oswald (No 2) or with the requirements of s 181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust.

124 It is clear that Marks J was guided by these statements. In citing these passages his Honour understood that both process and merit had to be considered but there could be cases where the failure to follow process, such as set down in s 181D(3) of the Police Act, was of such significance that such a breach, alone, would warrant a finding that the removal was harsh, unreasonable or unjust. DSC Reid-Frost challenged the process and his Honour considered her case as to process. He did not err in looking at the process and then finding that the process was so irregular as to be unjust. His Honour did not stop after deciding that the process was unjust. Consistent with the authorities he cited, he then considered, at length, the facts of the matter over approximately 25 pages and 120 paras and then assessed that material under a separate heading of "Merit considerations". In examining factual matters, his Honour stated that it was necessary to have regard to the evidentiary material adduced in the proceedings as it was relevant to whether the officer was entitled to relief and the nature of the relief. In expressing himself in that way his Honour was firstly, considering whether the factual matters entitled DSC Reid-Frost to relief - that is, whether the termination was harsh, unreasonable or unjust - and if such a case was made out, what relief was appropriate, namely, reinstatement, reinstatement on conditions specified, re-employment or the payment of compensation and whether there should be remuneration paid for the period when the officer was out of employment and whether there should be continuity of employment not broken by the dismissal. Those passages of the judgment make it abundantly clear that:

(a) firstly, his Honour not only considered procedural issues but also merit issues in accordance with the authorities he cited;

(b) he considered at length the factual issues raised and gave consideration to the merits, recognising that they were necessary for determining whether any relief should be available and what form of relief was appropriate;

(c) that considering all matters, both matters of process and merit, the termination was unjust and reinstatement was warranted.

125 In relation to the appellant's submission that his Honour did not consider the merits of the case, it has to be asked: what was his Honour doing when he analysed the facts over 30 pages of the decision under the headings "The factual background" and "Merit considerations" if he was not dealing with merit? The answer somewhat tentatively put was that his Honour was considering the relief available. If his Honour had decided the case solely on validity of process, there was no call to consider the merits of the case. Further, this analysis of merit occurred immediately before his Honour dealt with the requirements of s181F(3) obliging consideration of the public interest and the interest of the officer and then further consideration under the heading "The appropriate relief". The scheme of the judgment leads inexorably to the conclusion that his Honour conducted a detailed review of the merits - he was not spending 30 odd pages of merit analysis simply to decide if reinstatement was "practicable" (a subject he specifically dealt with in the closing paras of the decision).

126 The discussion in the preceding paras demonstrates that, while his Honour was entitled to look at process as a ground of such seriousness that the removal was harsh, unreasonable or unjust, his Honour in fact formed that view on both matters of procedure and merit. Nevertheless, the appellant argued that, impermissibly, his Honour took an administrative law approach to the matter and decided the entirety of the case on findings of invalidity in the process adopted by the Commissioner. Reference to various paras of the judgment, however, make it clear that such a proposition is without foundation. Those matters are as follows:

(a) in dealing with the statutory Notice required to be provided to an officer in accordance with s 181D(3)(a), his Honour noted that it was "mandatory" to provide such a Notice setting out the grounds upon which the Commissioner did not have confidence in the officer. Having concluded that the statutory Notice did not meet that requirement, his Honour stated that a failure to comply with the provision "taints the totality of the process surrounding the issue of the Notice and the consideration of the matter by the Commissioner when he decided to remove the applicant from the Police Force". Immediately after that sentence, his Honour then stated: "This must, of itself, render the decision unjust". In so expressing himself, his Honour was clearly linking failure of process with the statutory test in finding that the removal was harsh, unjust or unreasonable. By referring to the tainting of the process his Honour was not, and could not be taken to be, confining himself to a consideration of administrative law issues and issues of validity alone. By squarely placing this process failure in the category of an "unjust" act, his Honour was doing no more than what Full Bench authority required him to do. His words, in their context and in their totality, cannot be ignored;

(b) in considering whether there was compliance with s 181D(3)(c) where the Commissioner must take into consideration any written submissions in response provided by the officer, his Honour noted the statute used "mandatory" language. His Honour stated that the Commissioner "must take into consideration" any written submissions received by the officer in the period allowed and cited the passages already referred to from the judgement of Boland J in Hosemans (No 3). His Honour concluded that, on the material before him, the Commissioner could not have, in any meaningful way, considered the officer's response. His Honour concluded that the order of dismissal was "fundamentally flawed" and in such circumstances the order for removal was "harsh, unjust and unreasonable". His Honour "deliberately" refrained from making any finding about whether or not at law this failure rendered the removal a "nullity". In these passages although his Honour specifically states that he is not making a ruling as to "nullity", it is still submitted that he was conducting a purely administrative law approach focused upon validity. That submission is untenable when not only, considering the entirely of the passage, his Honour made it clear that he was deliberately not dealing with issues of nullity but again, placed this issue in the context of the fundamental failure of the process as leading to the conclusion that the order for removal was "harsh, unjust and unreasonable", a reference to the statutory test laid down in the Commissioner's Confidence provisions of the Police Act. It is difficult to contemplate how his Honour could be any clearer in expressing himself and as indicating that he was dealing with issues of flawed process in the context of the statutory tests of whether or not the removal was "harsh, unreasonable or unjust";

(c) his Honour then considered the provisions of s 181D(4) requiring an order made by the Commissioner to remove an officer to set out the reasons for that order. Again, it was noted that mandatory language was used. His Honour said that the statement of reasons was necessary to enable an officer to understand why they were removed and would be "essential" to the grounds of any application for review being a review the officer was entitled to make under s 181E. The grounds so expressed were also essential for the Commission in exercising its powers on review. For reasons that his Honour then stated (which have been referred to earlier in this judgment) his Honour concluded that the Statement of Reasons did not constitute a document which was capable of being considered either by the officer or the Commission as determining the proceedings. His Honour then stated: "It would be unjust for the applicant to be removed on the basis of such a document". Again, in quite clear terms, his Honour placed the failure of process squarely within the statutory test of being harsh, unreasonable or unjust".

(d) In dealing with merit consideration, his Honour referred to earlier findings that there was a failure to comply with s 181D(3)(a) which rendered the decision to remove the officer "unjust". His Honour also considered the Commissioner's failure to consider, in an appropriate manner, the officer's response and that such a failure rendered the decision to remove the officer "harsh, unjust and unreasonable". His Honour therefore concluded that the Statement of Reasons were "defective" and that rendered the decision to remove "unjust". Again, in returning to these matters his Honour squarely placed the procedural failures within the statutory test and found the resultant removal to be "unjust" - not invalid or a nullity nor did he find it was a decision that had no standing in law. The appellant's submissions demonstrate the error of focusing upon single words such as "mandatory", "taints", "nullity", "defective" or the phrase "fundamentally flawed" when the context demonstrates that those descriptions were being considered within the application of the statutory test whether or not the decision was harsh, unreasonable or unjust. On the appellant's approach, when Hill J in Antonakopoulos referred to the failure to afford procedural fairness causing a substantial and irrevocable prejudice to the employee that would often "vitiate" the decision of the employer and when his Honour referred to a breach of an essential "pre-requisite to", "or inviolable limitation" on the exercise of the employer's right to dismiss, then his Honour was no longer dealing with the statutory test of "harsh, unreasonable or unjust" but was, by use of this language, fixing himself firmly in the field of administrative law and judicial review and hence considering only issues of validity. The Full Bench in Little (No 2) as well as the Full Bench in Antonakopoulos, did not see it that way, and understandably so.

For all these reasons, Ground 3 fails.

Grounds 4 and 5
127 Grounds 4 and 5 were dealt with together in the Police Commissioner's submissions on appeal. These grounds of appeal asserted that his Honour erred in finding that the Notice issued to the applicant below was defective/deficient and was in breach of s 181D(3)(a) of the Act such that it rendered the removal unjust and further, that his Honour was in error in finding that the Statement of Reasons issued pursuant to s 181D(4) was defective and thus rendered unjust the decision to remove the respondent.

128 It is suggested that consideration of this ground of appeal is assisted by the judgment of the High Court in The Minister for Immigration and Citizenship v Szizo [2009] HCA 37. That decision demonstrates that the manner of providing Notice is not an end in itself and where no injustice results, the mandatory statutory requirement for Notice will not invalidate the decision. In that case, a Notice of Hearing had to be given to the family seeking refugee status and under the legislative scheme that Notice was required to be served upon the person specified in the Notice for receipt of any notifications. The clear purpose was to make sure that, especially when language problems were likely to arise, a person who understood English would be nominated as the recipient of the Notice and would be obliged to advise the applicants of the hearing and when and where it would take place. The Notice provision served a very important function but on the evidence in Szizo, although the Notice was not served in accordance with the statutory provision, in fact, all interested parties were made aware of the date, time and place of the hearing, duly appeared and made submissions in support of their case. The High Court held that, in those circumstances, the mandatory provision regarding notice should not lead to a declaration of invalidity.

129 While under the Migration Act 1958 there was a scheme to ensure that an applicant had adequate time in which to prepare their case and that they were given timely and effective notice of the hearing, those provisions were distinguished from other components of the statutory statement of the hearing rule, including the obligation to provide particulars of adverse information and to invite the applicant to appear and give evidence and to present arguments relating to the issues arising from the decision under review. There is no suggestion in the judgments that a failure to comply with those types of provisions could be ignored or rendered nugatory. The Notice required under s 181D(3)(a) of the Police Act requires the Commissioner to give a police officer a Notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer. That Notice is of the same nature as the particulars Notice referred to in Szizo and is a vital part of the decision-making process - it is no mere notification of a time and place for hearing or for the receiving of submissions. The s 181D(3)(a) Notice sets out the case that the police officer has to meet. The judgment of the High Court in Szizo is therefore of no assistance in the present matter.

130 The appellant complains that in both cases his Honour equated a failure by the Commissioner to comply with the legislation as rendering the removal decision as being unjust without considering the merits of the case and whether, absent those defects, a different decision would have been made. In accordance with the Decision of Boland J in Hosemans v NSW Police [No3] [2005] NSWIRComm 161, even if the Statement of Reasons lacked structure and precision that Statement of Reasons nevertheless captured the essential reasons underpinning the Commissioner's decision to remove DSC Reid-Frost and was sufficiently comprehensible for the officer to understand the nature of the case against her and to frame her response to it. It was also asserted that there was no evidence that DSC Reid-Frost, on receipt of the Notice, had ever complained that she did not understand the reasons why the Commissioner had lost confidence in her or that it was impossible or very difficult to know how to respond. Further, during argument, it was said that counsel for the officer expressly disavowed any such difficulty. There had been no request for particulars of the statutory Notice although at all relevant time the officer was legally represented.

131 As to the adequacy of the reasons, it was argued for the Commissioner that this requirement to give reasons under s 181D(4) did not impose a duty such as to provide reasons as in a judgment and the adequacy of the reasons was not to be judged with a legalistic eye. Where the proceedings were akin to unfair dismissal proceedings the reasons would be adequate where the officer was able to discern from the Statement of Reasons why the Commissioner had lost confidence in the officer and why removal was seen as appropriate. The Commissioner was not legally qualified and was not required to have a hearing before removing an officer from the Police Service. The Commissioner was not required to apply any legal standard or criteria when deciding whether he had lost confidence in the officer such that removal was warranted.

132 The concentration of the appellant's submissions on legal formality and the giving of reasons meeting the standards of judicial decision-making are misconceived. The Full Bench in Little v Commissioner of Police (No 2) made it abundantly clear that, the Commissioner in operating under the Commissioner's Confidence provisions, was not exercising some broad based unstructured discretion but was required to set out the case against the officer with such specificity as to allow the officer to know what case was to be met and to enable the response to address that case. Properly understood, the approach of Marks J was to analyse, in particular, the way in which allegation 1 was structured with a view to understanding what were the allegations against the officer in order that the Commission on review was able to properly deal with the matter. His Honour found great difficulty in establishing what particular incidents contained in the numerous documents comprising the Commissioner's Confidence submission went to which particular aspect of the Commissioner's complaint - that is, whether it went to the officer's competence, integrity, performance or conduct. The first allegation was framed in a composite, generalised fashion. The document referred to a number of incidents occurring over a period of time but did not characterise what occurred in those incidents as constituting behaviour and conduct which was "inappropriate" or "unprofessional". The further difficulty arose when the grounds stated that the officer had an unwillingness or inability to improve her performance, conduct and competence to required levels but those levels were not identified with any precision and some of the matters were expressed in the alternative, further confusing the issue. There was a complaint as to "customer service" but there was no specific factual matter contained within the Notice that referred to customer service. The difficulties identified in the statutory Notice led his Honour to conclude that failure to comply with s 181D(3)(a) tainted the totality of the process surrounding the issuing of the Notice and then the consideration of the matter by the Commissioner when he decided to remove the applicant from the Police Service.

133 In relation to the Commissioner's obligation to take into consideration the written submissions received from the officer in accordance with the requirements of s 181D(3)(c), his Honour adopted the approach of Boland J (as his Honour then was) in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161. From the observations of Boland J and the authorities referred to, Marks J found the dictionary meaning of the word "considered" as being reflected in that discussion, namely, to look at closely, examine and contemplate. Under this section the Commissioner was required not only to have regard to the Response, but also to look closely at that material, to examine it and reflect upon what was said by the officer.

134 In this context it was agreed before Marks J that the Commission was to assume for the purpose of these proceedings that the consideration of the Response of DSC Reid-Frost was personally untaken by the Commissioner during a period of one hour during which he also considered and dealt with the Response submissions of three other police officers relating to their separate matters. His Honour had before him the written submissions in the other three cases and noted that the submissions totalled 41 pages together with 100 pages of attachments. DSC Reid-Frost's submission consisted of 41 pages with 28 pages of attachments. All those documents did not include any of the Commissioner's Confidence Submission documents that were relevant for the purposes of those proceedings. His Honour was content to proceed on the basis that the Commissioner had previously read the Commissioner's Confidence Submission document in relation to each of the four officers for the purpose of determining whether to issue the statutory Notice under s 181D(3). His Honour formed the opinion, having regard to the material in the response submissions made by the four officers, that it would be necessary in carefully considering them to refer back to the original material in the Commissioner's Confidence Submission documents. In the case of DSC Reid-Frost that document was said to consist of 223 pages although his Honour was unaware of the extent of the documentation in the Commissioner's Confidence Submissions in the other three matters. His Honour accepted, by way of inference, that some of the detail concerning each of the four officers had been retained by the Commissioner in his memory but, nevertheless, a careful evaluation of the response submission required some recourse to the original documentation which formed the basis for the reasons set out in each of the statutory Notices.

135 In assessing this particular challenge, his Honour ignored the material contained in the Commissioner's Confidence Submission documents but nevertheless formed the opinion that, having regard to the totality of material contained in the four bundles of response documents made by each of the officers, it would be impossible for any person to have read, absorbed and considered that material within a period of one hour. Importantly, his Honour also found that it was impossible to read the written response by DSC Reid-Frost without referring back to much of the material contained within the Commissioner's Confidence Submission. His Honour noted that in the document embodied in the Order of Removal under s 181D(1), the Commissioner stated that, in reaching his decision, he had carefully considered the matters raised in the submission in relation to the officer and the Notice served upon the officer and had also "taken into account your written response provided by your legal representatives". His Honour then expressed the view that, having regard to the volume, nature and content of the material and having regard to the other matters considered by the Commissioner within the period of one hour which had been allocated for this purpose, the Commissioner could not have considered the matters contained within DSC Reid-Frost's submissions in conjunction with the Commissioner's Confidence Submission in any "meaningful manner" let alone such as could be described as having been attended to "carefully". For these reasons he concluded that the Order made by the appellant was fundamentally flawed. Specifically, his Honour stated that he was not concerned in finding there was a nullity in the process and was, therefore, clearly directing his attention to wider aspects of the matter, namely, the statutory test of whether removal was harsh, unreasonable or unjust.

136 His Honour then conducted a close analysis of the variety of issues raised in relation to both allegations and in relation to a number of them found that, when considered in the light of the officer's written response, there was an insufficient basis for complaint. His Honour then returned to the Commissioner's Statements of Reasons, noting that some early parts of that document appeared to be introductory before there was a reference to a number of grounds said to raise issues of conduct, integrity, performance and competence. His Honour proceeded on the assumption that the remainder of the material represented the reasons for the Commissioner's removal of the officer. His Honour noted that, while the material referred in places to "conduct", there was no other attempt to explain which of the matters referred to related to "conduct", "integrity", "performance" and "competence". There was no indication given in the remainder of the material whether it was intended to refer to each of these matters "differentially" or to some or all of the matters as constituting conduct, integrity, performance and competence. His Honour specifically noted that this approach by the Commissioner "created difficulty" not only for the officer preparing her case but also for the Commission in determining the proceedings. The document, in general terms referred, to "a number of issues" being identified during 2004 in relation to record-keeping, case management, team work and criminal investigation but there was no reference in the Statement of Reasons as to what were those issues and they were not identified in the statutory Notice and there was no reference to them in the Commissioner's Confidence Submission documents. His Honour assumed that these matters were intended to constitute grounds and as forming the basis for the reasons for removal but in his view failed to comply with what was intended by s 181D(4). His Honour expressed the view that when the Commissioner considered these matters they would prima facie constitute a denial of natural justice because there was insufficient specificity to allow the officer to know what were the matters of complaint and what matters were not being raised. Initially, his Honour thought that material had to be background information only but it then appeared from the Reasons that they were part of the allegations and formed grounds for the Commissioner's decision to terminate the officer. His Honour further noted that the Commissioner did not carry out "any weighing exercise" in relation to these grounds so that the Commission on review could not be informed as to the relative seriousness of each of these matters as adjudged by the Commissioner. In referring to other matters, his Honour drew attention to the constant reliance on generalities and generally expressed concerns without any quantitative or qualitative description of the officer's actual conduct or behaviour.
137 The importance of this detailed analysis conducted by his Honour was that he found the Reasons for Decision were so deficient that not only was the officer compromised in her ability to understand the nature of the case against her but, significantly, the Commission on review was left in the position of not knowing what case was being pursued in relation to the nominated heads of complaint by reference to what specific conduct and having regard to the fact that there were a large number of documents dealing with a variety of conduct over a period of time. Contrary to the appellant's submission, there is evidence that this complaint was made on the Review on behalf of DSC Reid-Frost and was raised in the written Response, during the presentation of the case and in the written submissions. These complaints were not expunged in some manner merely because the officer made a detailed response - the response submission dealt with the facts of each incident and not the characterisation of each incident as a complaint going to conduct, competence or performance or to particular Codes of Conduct. Once his Honour had reached the position, on grounds which appear to be justified, that the deficiencies were of such significance that the review process in the Commission was compromised then it followed that these matters of process went fundamentally to the decision-making process and the fairness of the decision-making process having regard to the merit issues raised.

138 In a number of matters relied upon by the Commissioner, his Honour was unable to discern the nature of the complaint and whether it raised issues of performance, conduct, integrity and competency. In those cases the deficiencies in the processes adopted by the Commissioner frustrated the review in the Commission to the extent, understandably, that his Honour could not determine in relation to these important matters, what was the nature of the officer's failure thus resulting in an inability to conclude whether there were sufficient grounds or reasons for the removal of the officer. This was one of those unusual cases where the process was so intermingled with the allegations of fact and where the deficiencies in the process so fundamentally affected the review that his Honour was left in the position of concluding that the removal was unfair. It is important to understand that, in relation to a number of issues, his Honour did not absolve the officer. He specifically found that there was evidence of her defiance and exhibiting a poor attitude to not only senior officers but also to other police officers with whom she worked. His Honour quite clearly left those matters to be pursued by the Commissioner in the future (if so advised) and took pains to ensure that the officer was reinstated only to her previous position being a position on restricted duties and under supervision. By taking that course his Honour left it open to the Commissioner to again review the conduct and performance of the officer and in a more clearly defined way, to determine what aspects of her conduct might either require medical examination, remedial action or, ultimately, removal. His Honour did not close off any of those avenues in relation to past conduct because he was simply not in a position to make a determination about much of it because of the deficiencies in the process adopted by the Commissioner and the failure to clearly identify the content and nature of the alleged conduct.

139 While the Commissioner strongly defends the processes adopted in this matter and raises a number of issues about the manner in which his Honour dealt with the review, there is, in terms, no ground of appeal that attacks the appropriateness of testing the nature of the consideration given to a matter by reference to the time made available by the Commissioner to consider the officer's Response and to conclude whether or not removal was warranted(as will be seen shortly, this subject was, nevertheless, addressed in the appellant's written submissions. This case, however, was an unusual case in that the Commissioner had already determined to remove the officer from the Police Service in circumstances where her legal advisers had failed to meet a timetable (frequently amended) for them to file the response submission. The Commissioner directed that an order be drafted and appears to have signed an order and later did consider (along with three other matters over a period one hour) the written submission in response for the officer and simply confirmed his previous view. That course, unfortunately, clouds the fairness of the process.

140 These unusual circumstances led the Commission on review to receive the responses in the other three cases that were considered at the same time as the response submitted on behalf of DSC Reid-Frost. In most cases such a course should not be necessary and the Commission should not be called upon to wade through the detailed records of other officers in order to make some assessment of whether or not a particular officer's written response had been properly considered in accordance with the provisions of the Police Act. To the extent that this is an issue in other cases it should be sufficient for the Commission to be informed of the time taken for the overall consideration of the matters dealt with on a particular day, the total number of documents comprising the officer's submissions as well as the documents comprising the Commissioner's Confidence Submissions and perhaps a brief outline of the nature of the matter as indicative of its factual complexity. It should also be understood that such an exercise, if it warrants being undertaken, should not descend into a form of detailed time and motion study but should be conducted on the general understanding that the Commissioner has had the opportunity to consider the documentation supporting the Commissioner's Confidence Submission when issuing the statutory Notice and is therefore likely to have a degree of familiarity with the matter, especially where there is a specific incident under consideration. It will also be relevant to consider the context of the Commissioner's Reasons for removal and the extent to which it addresses the substance of the officer's Response. Having made those observations it should, nevertheless, be understood that the proper consideration of the officer's written response is a statutory requirement and the process to be adopted by the Commissioner before removal of an officer has been carefully considered by the legislature resulting in the Commissioner, unlike private employers, being required to put an officer on notice of the allegations against them and to consider their response before taking any action in relation to the termination of their employment. This is a significant departure from what might otherwise occur in many of the cases dealt with under the unfair dismissal provisions of the Industrial Relations Act.

141 It should be observed that a challenge to the adequacy of the Commissioner's consideration of the officer's Response is likely to face difficulties if it is based on no more than an indication of the time spent by the Commissioner in a formal meeting to consider the Response. The issue has particular significance in the present case because the parties agreed that, in the circumstances already set out, the Commissioner set aside a period of one hour to consider the Response of DSC Reid-Frost and during the same hour considered the Response of three other officers. Those matters, however, should not have been the end of the factual circumstances in which this challenge was to be considered. There should have been evidence as to the prior occasions on which the Commissioner looked at the materials and the extent to which he had dealt with the allegations and the framing of the statutory Notice. That evidence then needed to be considered in the light of an analysis of the content of the Commissioner's Reasons for Decision. This did not occur in the proceedings before Marks J, That result appears to flow directly from the agreement of the parties as to the basis on which this challenge would be dealt with by his Honour. More significantly for these appeal proceedings the Commissioner, having allowed the matter to proceed that way before Marks J, now wishes to argue on appeal that it was not open for the Commission to conduct this type of merit review. For reasons already canvassed, that submission cannot be sustained.

142 In the course of submissions on this issue (and also related to Ground 3), senior counsel for the Commissioner of Police raised decisions of the Commission dealing with what was required of the Commissioner under s 181D(3), namely, that making an order under the section, the Commissioner must take into consideration any written submissions received from the police officer during the time allowed. It was submitted that earlier decisions drawing upon administrative law principles on the review of an administrative act by a Minister or statutory officer were inappropriate when considering the requirement of the Commissioner to consider a response from an officer to a statutory Notice. The reliance on cases such as R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 133 CLR 177 at 189 per Kitto J; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 1986) 162 CLR 24 at 30-31 were said to be directed to issues of validity of decision-making and were therefore of little or no relevance to a review under Pt 9, Div 1C of the Police Act. It was submitted that it had to be borne steadily in mind that this was an employment situation and not a Minister making a ruling affecting the whole community: reliance on Full Court decisions about compliance with Federal Statutes and adequacy of reasons were matters that arose in a different context and the Commission on review had to be mindful of that fact.

143 Further, the obligation (and it was accepted that there was a mandatory obligation) on the Police Commissioner to consider the officer's response, however, did not require the Commissioner to read every word: the Police Commissioner was not compellable as a witness in review proceedings and the review provisions did not countenance that the Commissioner's thought processes with respect to his consideration of matters would be open to scrutiny. Contrary to the growing practice, the Commissioner should not be required to produce documents relevant to his consideration of the Response and the matter generally because that was no part of the Commission's role on review. As an employer the Commissioner was not conducting an administrative or judicial review when deciding whether or not he had lost confidence in an officer. The Commissioner's obligation "to take into consideration" the response did not mean "read" the response and the Commissioner was entitled to receive advice and assistance in taking into consideration the response. That assistance may be provided by the Commissioner's Advisory Panel (see s 181H of the Police Act). It was submitted that the Commissioner did not fail to take into account the merits of the case even though he did not read all of the underlying material and that the Commissioner, like decision-makers who make a large number of decisions, would not act unlawfully by acting on the basis of facts found by his advisors (per Emmett J in Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation [2003] FCA 35; (2003) 126 FCR 304 at 388). Having regard to the significant role the Commissioner of Police and his responsibilities for making a large number of decisions, it was unlikely that the legislature contemplated that the head of the New South Wales Police Service would be expected to read each word of the officer's response and it was unreasonable to expect a Commissioner, as a single decision-maker, to spend time reading all of the officer's submissions - it was sufficient that the Commissioner took into account the substance of the submissions.

144 Marks J had relied on an aspect of a decision of Boland J (as he then was) in Hosemans (No 3) and also had regard to differing definitions of the word to "consider". In dealing with various arguments concerning procedural fairness, Boland J stated, at [139] as follows:

[139] In Little v Commissioner of Police (No 2) (2002) 112 IR 212 at

[76] the Full Bench cited with approval the approach enunciated by Walton J, Vice-President in Van Huisstede v Commissioner of Police [2000] NSWIRComm 97; (2000) 98 IR 57 at [193]- [200] regarding procedural fairness: At [194] Walton J stated:

In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion. Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd, the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2), also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" (Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner.

[140] At [199]-[200] his Honour stated:

Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s 181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. As was observed by the Full Bench in Bigg (No. 2) (in relation to the former legislative scheme) (at 458):

However, it seems to us that where extraordinary powers and authorities such as those given by s 181B are being exercised, a careful and punctilious regard to correct procedure should supervise the exercise of discretion.

I consider that these observations are equally applicable to the exercise of the Commissioner's discretion under s181D of the Act.

(emphasis added)

The contention by counsel for Mr Hosemans was that not only did the Commissioner fail to give personal consideration to the information presented to him but he failed to inform himself of all available information, including the NSW Police’s own source documents, relevant parts of the police brief and Local Court transcript. Further, having being directed to certain matters in Mr Hosemans' written submissions and asked to give consideration to those matters, the Commissioner did not in fact do so, contrary to s 181D(3)(c).

[141] Dealing with the last matter first, s 181D(3)(c) requires that the Commissioner must take into consideration the police officer’s written submissions. Mr Docking referred to the judgment in Tickner v Chapman (1995) 57 FCR 451 where the Full Court (Black CJ, Burchett and Kiefel JJ) considered a provision in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) that required the Minister to consider a report and any attached representations. Of this requirement, Burchett J stated at 476-477:

What is it to "consider" material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf. Jeffs v. New Zealand Dairy Production and Marketing Board (1967) 1 AC 551 at 568-569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to "consider" a report, Laskin J, speaking for the Supreme Court of Canada, said: "Certainly, the board must have the report before it": Walters v Essex County Board of Education (1973) 38 DLR (3d) 693 at 697. When Gibbs CJ in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 30-31 conceded that the Minister, in the circumstances of that case, was not obliged "to read for himself all the relevant papers", and that it "would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department", he also made it plain that the summary must "bring to his attention" all material facts "which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial". That was in the context of legislation expressly empowering the Minister, as Mason J pointed out at 46, to delegate his powers and to refer matters to another authority.

In Minister for Aboriginal Affairs v Peko-Wallsend Limited, Mason J (at 44-45) reasoned from an obligation, implicit in the subject-matter scope and purpose of an Act, to take account of detriment to individuals, that the Minister's "consideration of that factor must be based on the most recent and accurate information that the Minister has at hand". He then said that this conclusion was "all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to new hazard or new jeopardy." And he went on to refer to specific provision made by the statute to ensure that the views of affected persons should be brought to the Minister's attention. Similarly here, the Act provides a mechanism by which the representations must go before the Minister himself. Not by implication, but expressly, it requires the Minister to consider those representations. As in the case Mason J was considering, the decision in question is one which may adversely affect interests and legitimate expectations - indeed it may do so even more directly - and the inference that the representations cannot be left out of account, to be replaced by an assistant's vague evaluation of the extent to which appropriate conclusions about them are contained in a report, is at least equally compelling.

If what I have written seems to impose a heavy burden on the Minister, it is necessary to emphasise that Parliament imposed this burden. Doubtless it did so because of the very great power to override the major interests and rights of citizens, and also governmental agencies, which is involved. Such an authority was not to be conferred on a public servant or ministerial assistant. It is a vast power, which Parliament plainly intended to be exercised at the highest level, with the restraint that great responsibility imposes. That indeed restraint was very much part of the legislative intention is made clear by ss. 7 and 13. The special nature of the power, and the severe consequences of its application, also suggest that its exercise would not have been seen as a common or ordinary task ...

[142] Burchett J noted that the Minister could not delegate his function and duty to consider certain reports and representations under the relevant provisions of the statute in question. Here, of course, the Commissioner may delegate to another member of NSW Police any of the functions conferred or imposed on the Commissioner by or under the Police Act or any other Act, other than the power of delegation: see s 31 of the Police Act. I note there was no evidence of the Commissioner having delegated his function under s 181D(3)(c) to consider the applicant's written submissions and, accordingly, I consider there was an obligation on the Commissioner to have personally undertaken that function. If such delegation had taken place it would require clear evidence that such was the case. Because the Commissioner may have requested an officer or officers to carry out an investigation of the allegations against an officer who is the subject of a Notice, it does not follow that it can, therefore, be inferred that the Commissioner delegated the function of considering any written submission. The language in s 181D(3)(c) is clear; the responsibility lies with the Commissioner personally to consider the officer's written submission and in the absence of that personal consideration there would need to be clear proof of delegation otherwise it is open to the Commission to find procedural unfairness.

[143] Further, the obligation on the Commissioner is to consider all the most recent and accurate information and materials available both in favour of and against the officer and he must "obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances." It would not be unreasonable for the Commissioner to rely on a summary of the relevant facts furnished by those to whom he has directed to undertake such a task, but the summary must bring to the Commissioner's attention all material facts "which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial". It would also not be unreasonable for the Commissioner to place a strong reliance on the findings of fact and law of the relevant court in coming to any decision to remove a police officer.

145 No contention has been filed by the appellant seeking leave to have the Full Bench reconsider these issues laid down by previous Full Benches in Bigg, Newton and Little (see Lynch v G C Schmids Pty Ltd (1955) 59 IR 205 at 208-9; Clutha Development Pty Ltd v Barry (1989) 18 NSWLR 86 (at 99-100); National Hire Pty Ltd v Howard (2003) 126 IR 240). Those decisions insofar as they deal with the issue of the Commissioner's obligation to consider the officer's response and his duties in that regard are accepted as laying down the proper approach to the requirements set out in s 181D(3)(c). The history of the Commissioner's Confidence provisions indicates that the legislature, with some particularity, laid down the process to be adopted by the Commissioner and the process to be adopted on a review in the Commission, because of the importance of the issue of the Commissioner's Confidence on the one hand and the removal of the police officer on the other. These provisions were to replace a myriad of other avenues of reconsideration, appeal and review and following the Royal Commission into the Police Service, there was a need to lay down with clarity the powers of the Commissioner and the rights of the officer and the course to be followed on a review in the Commission. The removal of an officer was elevated to a consideration of the Commissioner's confidence and thus the role of the Commissioner and his obligations in exercising the power of removal are at the centre of the entire process, including the review. In those circumstances it is not surprising that the legislature required considerable input from the Commissioner before exercising this unusual power of removal. That is why the Full Bench in Little (No2) referred to the need for a careful and punctilious regard to correct procedures by the Commissioner and that it was open to investigate whether the decision to remove was "uninformed". Even in the wider context of s 88 of the Industrial Relations Act, the Full Bench in Humphries v Cootamundra Ex-Services and Citizens' Memorial Club Ltd [2003] NSWIRComm 211; [2003] 128 IR 37 stated (at ]118]) that the obligation upon parties to ensure procedural fairness was not a hollow obligation and was not to be construed as having only technical significance. The position is "a fortiori" in relation to the Commissioner's Confidence provisions. The adoption of the Commissioner's submission in relation to process would indeed render hollow the protection afforded officers cited for removal. Those submissions should be rejected.

146 For the foregoing reasons, I am unable to accept that the obligation to "take into consideration" any response of the officer could be discharged by a cursory glance at the response or a flick through the pages to obtain some idea of the thrust of the submission. The administrative law approach found in cases such as Ipec and Peko-Wallsend has no less utility as a guide to the meaning of the obligation to consider the submission as required by s 181D merely because it arises in that context: to "consider" is a normal English word and Marks J referred to Oxford Dictionary definitions of it so as to require the Commissioner to look closely at, examine and contemplate and reflect upon the material in the submission. The Macquarie Dictionary (3rd ed) defines the word "consider" to include the following: to contemplate mentally; meditate or reflect on .... to think; suppose; to pay attention to; regard ... to view attentively, or scrutinise ... to think deliberately or carefully; reflect. Taking the normal English meaning of the word "consider" leads to the very same requirements of consideration referred to in the administrative law cases even though the context is different.

147 In Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, Gummow J referred to the statutory requirement that the Minister consider the findings and recommendations of a Commission of Inquiry as involving the Minister giving "proper, genuine and realistic consideration" to those matters. There are, therefore, a variety of circumstances where the duty to "consider" a particular matter will arise yet that requirement will be judged for its adequacy by the application of similar tests. In the context of the Commissioner's Confidence provisions and the review of his decisions under those provisions, the Commission is to consider the matter afresh to determine whether the removal was harsh, unreasonable or unjust. Adverse findings against the Commissioner as to the process adopted in the removal, including the extent to which any consideration was given to the officer's response to the statutory Notice, go directly to whether or not the decision may be found to be "unreasonable". The fact that in another context such an inquiry may go to validity is not to the point. The same approach is directly relevant to the task assigned to the Commission by the review provisions of the Police Act. There is nothing unusual about the same facts giving rise to one or more causes of action (Incitec Ltd and anor v Industrial Court of New South Wales & ors (1992) 45 IR 158): the failure of the Commissioner to properly consider or to consider at all an officer's response to the statutory notice may give rise to proceedings in the Supreme Court challenging the validity of the decision or in seeking a declaration in the Industrial Court pursuant to s 154 or on the other hand, may be properly considered in determining whether the removal of an officer was unreasonable.

148 Given that the process adopted by the Commissioner in the removal of a police officer is a proper ground for inquiry by the Commission on a review, being relevant at least to the issue of unreasonableness, it should be immediately stated that, in pursuing such a course, careful consideration has to be given to how such a challenge is dealt with in the Commission absent separate proceedings in the Supreme Court or in the Industrial Court pursuant to s 154.

149 In dealing with the duty to "consider" in a statutory provision, some attention has been directed to the judgment of the Court of Appeal in Anderson v Director General of the Department of Environmental and Climate Change and Anor [2008] NSWCA 337. That case involved judicial review of a first instance decision by Lloyd J of the Land and Environment Court. One challenge before the court alleged that the first respondent had failed to consider a relevant consideration by failing to give "proper genuine and realistic consideration" to a particular subject of significance to the case. That term had originated in the decision of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 and had been adopted by Mason P in Weal v Bathurst City Council [2000] NSWCA 88. In Weal, Giles JA (with whom Priestley JA agreed) discussed the issue in the following terms:

Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration.

150 Tobias JJ (with whom Spigelman CJ, Macfarlan JA concurred) noted that the formulation was vague and imprecise and had the potential to "invite impermissible merits review" (at [53]). In Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, Basten JA had observed that the expression should not be turned into an assessment of the adequacy of the consideration accorded in a particular matter. Tobias JA supported the observations of Basten JA that "epithets such as 'proper', 'genuine' and 'realistic'" consideration could be understood to qualify the statutory terminology in a matter inconsistent with accepted principles in relation to judicial review and risked an assessment of the nature of the consideration that would encourage a slide into impermissible merit review. The further discussion of this matter centered upon the need to avoid, on judicial review, a formulation of words or the provision of a test that led the court to consider merits rather than to conduct judicial review.

151 The review process committed to this Commission under the Commissioner's Confidence provisions of the Police Act is not a process involving the Commission in judicial review - that position has been recognised in a number of Full Bench cases to which reference has already been made. When the Commission undertakes a review of a Commissioner's decision to remove an officer from the Police Force, it is conducting a merit review and one that involves a consideration of both the process as well as the facts and merits of the case and all those matters are to be considered in deciding whether or not the decision challenged was harsh, unreasonable or unjust. That task is, therefore, a different task to that undertaken by the Court of Appeal in Anderson when that court was conducting judicial review of an administrative decision and it was in that context that the court stated that a course should not be followed on judicial review that permitted an impermissible slide into merit consideration: but when a Tribunal, such as the Commission on review of an order for the removal of an officer from the Police force, is faced with a challenge as to the adequacy of the consideration given by the Commissioner pursuant to s 181D(3)(c), the Commission then embarks upon a merit consideration and one that is entirely appropriate to undertake having regard to the legislative scheme of review. For those reasons, the decision of the Court of Appeal in Anderson provides no guidance to this Commission in determining the nature and content of its role when determining a challenge to the process adopted by the Commissioner and the extent to which the Commissioner gave consideration to the officer's response under s 181D(3)(a).

Ground 5A
152 Appeal ground 5A argues that his Honour incorrectly approached his duty by determining the matter on the basis of whether there was compliance with mandatory legislative requirements when, and notwithstanding his Honour's decision, issues of validity were reserved to the Supreme Court, a superior court of the record and not the Commission, being a tribunal. The submissions for the appellant on this matter suggest that the substance of what was done by his Honour was to deal with the legal validity of the Decision for Removal made by the Commissioner when he had no power to do so. This is a variation of grounds previously considered.

153 This ground can be briefly disposed of. On the analysis of his Honour's approach already conducted, it can be seen that his Honour informed himself of the authorities on process in the course of a review conducted in accordance with the Commissioner's Confidence provision laid down by the Police Act and what was involved in taking into consideration the officer's response. His Honour specifically disavowed dealing with questions of nullity and as explained above, looked at questions of process for the purposes of deciding whether or not the removal of the officer was unfair. His Honour's approach, when properly understood, is in accord with the course laid down by the Full Benches in Little (No 2) in Newton and by Boland J in Hosemans (No 2): he cited both cases as guiding his consideration of the case To the extent that it is put for the appellant that it is no part of a Review under the Commissioner's Confidence provisions of the Police Act to investigate the quality of the Commissioner's consideration of the applicant's written submission, that submission cannot be accepted. For the reasons already set out by the Full Benches and at first instance in Newton and in Hosemans (No2), so long as that matter is able to be dealt with as part of an analysis of whether the removal was harsh, unreasonable or unjust, then the Commission is clearly empowered to undertake such an investigation.

154 Such an approach does not encroach upon the protection provided by s 181H of the Police Act whereby the Commissioner and any member of the Commissioner's Advisory Panel is not compellable to give evidence in relation to the Commissioner's functions under s 181D in proceedings before the Commission. The exercise that is undertaken is no more than a consideration of whether or not it was possible for the Commissioner to consider the detailed written response of the officer and whether or not the Commission acted unreasonably.
155 These provisions have to be understood against their history, set out in length in Peterson J's judgment in Newton, and how the avenues for removing a police officer had been considerably refined and narrowed following the Royal Commission into the Police Service. The purpose of the Commissioner's Confidence provisions was to allow the Commissioner to move relatively quickly to remove an officer in whom he no longer had confidence without being hamstrung by the myriad of appeals that would effectively leave the officer in the Service for a very long time before the entire process had run its course. There is, unlike some other administrative decision-making processes, statutory guidance given as to how the decision for removal is to be made. The legislature has determined that there be a specific mechanism for the removal of a police officer under the Commissioner's Confidence provisions of the Police Act and they stand in stark contrast to the obligations of general employers in relation to the dismissal of their employees. It may be accepted that the operation of s 181H is designed to avoid Commission proceedings on review becoming entangled in an analysis of the actual thought process of the Commissioner in making the decision to remove an officer from the Service but that same provision does serve to indicate the central role played by the Commissioner, albeit with the assistance of the Advisory Panel. There is nothing in his Honour's approach to suggest he tried to understand the thought processes of the Commissioner in having the statutory Notice framed nor in the giving of his reasons for the removal of the officer. The analysis of those documents was conducted objectively to ascertain whether the removal could ultimately be said to be harsh, unreasonable or unjust. In any event the decision-making process only becomes a focal point to any extent on review where it is able to be determined that the process or the process and the means of identifying the case to be met are shown to be unfair such as to warrant reinstatement.

156 The appellant's argument over-reaches itself when it suggests that the protection found in s 181H is materially the same as the protection provided to judges and jurors by s 16(2) of the Evidence Act 2005. There is no indication in this provision that the Commissioner is to be treated as a judicial officer or a juror and this submission of course must extend to the Commissioner's Advisory Panel. The matter is succinctly put to rest, (as suggested in the respondent's submissions)by reference to the Minister's Second Reading Speech of June 1997. In one paragraph the Minister acknowledges concern that being the decision-maker, the Commissioner would be routinely required to attend the Commission to give evidence in every review hearing. That was not the experience in matters before the Commission under previous legislation but it was considered of sufficient weight to warrant legislative guidance. That appears to be the only purpose for s 181H but even then the Court may grant leave to have the Commissioner or members of the Advisory Panel called to give evidence, although it is readily accepted that would be an unusual course and a case of substance would need to be established for leave to be granted.

Ground 6
157 Under this ground of appeal it is pleaded in the alternative that any non-compliance by the Commissioner with s 181E(3)(c) did not make the order harsh, unjust or unreasonable when proper consideration was given to the material that was before the Commission in a fully contested hearing on all issues, being a fresh and independent review. This ground of appeal has been dealt with in other grounds of appeal.

Ground 7
158 Ground 7 of the appeal alleged that his Honour was in error in holding that there was no evidence that it would be impractical to reinstate the officer and that his Honour was also in error in stating that he could not detect from the evidence any matter which adversely affected the officer's ability to deal with the public and otherwise discharge her duties. It was suggested that this was inconsistent with his Honour's other findings in relation to her personality and temperament and the finding that the officer had acted inappropriately in the manner in which she dealt with a number of her superior officers and other colleagues. Nevertheless, his Honour reinstated DSC Reid-Frost to her former position performing restricted duties, allowing the Commissioner an opportunity to further assess and consider her suitability to remain a police officer having regard to the concerns raised about her.

159 It is clear from the judgment that his Honour, while finding aspects of the allegations raised against DSC Reid Frost as not being made out, nevertheless was left with a concern about her attitude to senior officers and other colleagues, including her approach to the authority of senior officers. Ultimately, these concerns came down to a consideration of her "personality type". Notwithstanding those concerns his Honour was unable to determine those issues because of the vagueness and imprecision with which the supporting evidence was linked to the allegations expressed to be failures in competence, integrity, performance or conduct. While his Honour could see how some of those matters were supported by evidence, he was concerned at the exaggeration of certain incidents, the triviality of other incidents, the lack of material to indicate how seriously the conduct impacted upon the Police Service and whether or not the collation of the dossier on her behaviour was directed more at relieving Detective Inspector Jubelin of the stress he said he was suffering in having to deal with her and how he was seeking support to remove her from his area rather than from the Police Service. In essence, after analysis, his Honour accepted the thrust of the applicant's case and was not convinced of the substance of the Commissioner's allegations and having reached that position DSC Reid-Frost had discharged her onus and had demonstrated that the removal order was unfair. Importantly, as earlier noted, in considering the public interest and the officer's interests his Honour stated: "I cannot detect from the evidence any matter that would reflect adversely on the applicant's ability to deal with the public and otherwise discharge her duties". His Honour was entitled to take into account her prior good record and the fact that there were others, on the evidence, with whom she was clearly able to work. The appellant's submissions on this matter made no mention of this wider context and do not adequately reflect the approach taken by his Honour.

160 This was not a case where his Honour misunderstood or misapplied the evidence. He specifically drew attention to defects in the Commissioner's case and aspects of the evidence that supported that case. In light of the conclusions his Honour had made about the defects in the Commissioner's case and the unfairness to the applicant, those matters about which he had concern did not persuade him that there was an issue as to the practicability of reinstatement and his concerns were addressed by reinstatement of the officer on restricted duties and drawing attention to the fact that the Commissioner could continue to monitor her conduct as to her future suitability. In the exercise of the discretion to reinstate, his Honour was entitled to take those matters into account and it was open to him on that material to make the reinstatement order in the terms and context in which the case arose. His Honour did not therefore fall into appealable error.

Ground 8
161 This ground alleges that his Honour failed to pay any regard to the numerous authorities bearing on the meaning of impracticability and the correct approach to be adopted when considering that matter in the context of claims for reinstatement of police officers in loss of confidence review proceedings. In submissions this ground of appeal was developed by referring to the special relationship between the Commissioner and the police officer, the alleged principle that reinstatement should be exercised only with caution and the failure to carry out a risk assessment of the officer in assessing the likelihood of continued difficulties if reinstatement was ordered.

162 This submission carries variations of earlier themes taken up by the appellant but taken separately or together, they lack merit. Firstly, the line of authority relied upon for the proposition that reinstatement should be approached with caution dates back to an era when the remedy of reinstatement and re-establishing a contract of employment was regarded as a rare and unusual remedy. The world of industrial relations and workplace regulation has moved substantially since that time, with statute based relief providing remedies of reinstatement, re-employment or the payment of a monetary sum in compensation for the loss of employment. There is nothing in the statutory provisions that specifically requires reinstatement to be considered as a "special" or "limited" remedy but the prudent exercise of such a broad discretion would undoubtedly lead to a consideration of the appropriateness of reinstatement. Reinstatement to a small workforce where there is a close working relationship with those who have been involved in a difficult and acrimonious termination may loom so large as an issue that reinstatement is impracticable. In circumstances where employment is in a larger organisation, including public sector employment, those issues may not feature prominently or at all. For instance, in the present case there was evidence that, in the past and during the review period, the officer had worked well and co-operatively although there was evidence that in other places there appeared to be different workplace stresses for the officer.

163 As to the oft repeated submission about the "special relationship" between the Commissioner and a police officer and the special nature of an Order of Removal because of lack of confidence of the Commissioner, there remains for consideration Full Bench authority for the proposition that those matters, while they are to be considered, are given no special weight in the legislation governing the review process (see Van Huisstede v Commissioner of Police (2001) 106 IR 56 and Hosemans). Some of these matters appear to have been recently aired in the Court of Appeal in relation to the reinstatement of Sergeant Sewell - (Commissioner for Police v The Industrial Relations Commission of New South Wales and Raymond Sewell ([2009] NSWIRComm 198 and [2009] NSWCA 198) but no contention has been filed in this appeal requesting a reconsideration of the principles laid down in Full Bench cases. Importantly, those decisions were binding upon his Honour in the conduct of the review.

164 As to the alleged failure of his Honour to undertake "a risk assessment" in relation to the likely conduct and performance upon reinstatement of the officer, there appears to be no evidence solely directed at this point by the Commissioner in the proceedings below but rather a general reliance on a number of incidents to persuade the Commission that the removal was fair and therefore any reinstatement would not arise. There is force in the respondent's argument that the notion of a "risk assessment" exercise is unhelpful and constitutes an unjustified gloss on the statute and distracts from what is actually laid down in the statute. In substance, his Honour: considered the deficiencies in the Commissioner's case and noted certain aspects of the evidence which demonstrated difficulties regarding personalities and relationships with other officers; considered the fact that the Commissioner had made an order that he had lost confidence in the officer; considered the interests of the officer and the public interest; and, made a reinstatement order that permitted monitoring of the officer. In proceeding in this way, his Honour undertook the task on review as laid down by the statute. The requirement for a so-called risk assessment was not, in terms, argued below and the appellant should not be allowed to raise the issue on appeal for the first time. The appellant has been unable to establish any relevant error.

165 There is another issues relevant to this ground of appeal. The respondent, on appeal, has filed a notice of contention seeking to have taken into account the report of Dr Julian Short, psychiatrist. Dr Short addressed the officer's ability to return to work having regard to her mental state and physical ability and concluded that the prognosis was excellent and that she would be capable of discharging her duties as a police officer at a level significantly superior to the average. Dr Short was not required for cross-examination and the Commissioner did not tender or rely on any expert material to rebut this report. Marks J did not mention Dr Short's report in his judgment. Having regard to the way in which the appellant has framed his arguments on appeal, Dr Short's report is a significant piece of evidence that places those submissions in a very different light. In not cross-examining Dr Short and failing to call any medical evidence to the contrary, there are strong grounds for rejecting the submissions of the appellant regarding the practicability of reinstatement. To the extent necessary, I would grant leave to allow the report to be considered on the appeal and as supporting, on other grounds, his Honour's order for reinstatement.

ORDERS
166 Having regard to the issues of construction raised concerning the operation of the Commissioner's Confidence provisions in the Police Act, it is appropriate that leave to appeal be granted but for the foregoing reasons, in my view, the appeal should be dismissed. The formal Orders of the Commission I would propose are:

(a) leave to appeal granted;

(b) the appeal is dismissed;

(c) costs are reserved.

__________________

AMENDMENTS:


14/07/2010 - Reference to file No IRC 582 of 2009 was incorrect. Should have been No IRC 814 of 2008 - Paragraph(s) 68(4)


LAST UPDATED:
14/07/2010