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Carabetta, Joseph --- "Employment Status of the Police in Australia" [2003] MelbULawRw 1; (2003) 27(1) Melbourne University Law Review 1

[*] MLLR (Hons) (Syd); Lecturer, School of Business, Faculty of Economics and Business, The University of Sydney. The idea for this article originated in a thesis submitted in partial fulfilment of the requirements for the degree of Master of Labour Law and Relations in the Faculty of Law at the University of Sydney. I would like to thank the Melbourne University Law Review’s anonymous referees for their helpful comments and Professor Ron McCallum for his feedback on a much earlier version of it. I also wish to thank all the legal and industrial relations practitioners who provided court submissions and background information in the lead up to some of the more recent Federal Court decisions dealt with in the article. Of course, responsibility for any errors and omissions that remain in the article rests with me alone.

[1] [1955] HCA 9; (1955) 92 CLR 113 (‘Perpetual Trustee’).

[2] See, eg, Irvin v Whitrod [No 2] [1978] Qd R 271, 276 (Campbell J); Sellars v Woods [1938] ArgusLawRp 108; (1982) 45 ALR 113, 121–2 (Fisher J); Chapman v Australian Federal Police Commissioner (1983) 50 ACTR 23, 33 (Kelly J).

[3] See, eg, Ferguson v Commissioner of Police (1997) 72 IR 145, 151 (Boon JR) (‘Ferguson’); Konrad v Victoria Police (1998) 152 ALR 132, 144 (Marshall J). See also Re Australian Federal Police Association (1997) 73 IR 155, 158 (Boulton J, Polites SDP and Simonds C) (‘Re AFPA’) and Minister of Police v Western Australian Union of Workers [2000] WAIRComm 226 (Unreported, Sharkey P, Fielding SC, Scott C, 14 November 2000) [122] (Fielding SC),

[128]–[129] (Scott C).

[4] In some of the state and territory police jurisdictions in Australia, certain members of the police force (most notably high-level ‘executive’ officers) are in fact engaged on the basis of a ‘contract of employment’: see, eg, Police Service Administration Act 1990 (Qld) ss 5.3, 5.4, 5.7 (‘Qld Act’); Police Act 1990 (NSW) ss 27, 417 (‘NSW Act’). Also, so far as the Australian Federal Police (‘AFP’) is concerned, there are now special provisions stating that members of that police force, with the exception of certain senior officers and special members, are to be initially engaged as ‘AFP employees’: Australian Federal Police Act 1979 (Cth) ss 24, 40B, 40D (‘AFP Act’); Australian Federal Police Legislation Amendment Act 2000 (Cth) sch 1.

[5] See Cook v Commissioner of Police (1996) 66 IR 361 (‘Cook’); Ferguson (1997) 72 IR 145; Ward v Commissioner of Police [1998] FCA 9; (1998) 151 ALR 604; Konrad v Victoria Police (1998) 152 ALR 132; Orchard v Victoria Police (1998) 79 IR 476; Konrad v Victoria Police [1999] FCA 988; (1999) 91 FCR 95 (‘Konrad’); Commissioner of Police v Ward [1999] FCA 1058; (1999) 165 ALR 57 (‘Ward’).

[6] See, eg, Minister of Police v Western Australian Police Union of Workers [2000] WAIRComm 226 (Unreported, Sharkey P, Fielding SC, Scott C, 14 November 2000); Industrial Relations Amendment Act 2000 (WA) s 5.

[7] See Acts Amendment (Police Immunity) Act 1999 (WA) s 5, inserting s 137 of the Police Act 1892 (WA) (‘WA Act’). See also Police Regulation (Amendment) Act 1999 (Vic) s 16, inserting s 123 of the Police Regulation Act 1958 (Vic) (‘Vic Act’). These provisions provide protection from civil action against police officers in these states.

[8] See Occupational Safety and Health Act 1984 (WA) s 3(4) (commencing 3 January 2004) and Occupational Health and Safety Act 2000 (NSW) s 134, which both deem police officers to be Crown employees for the purposes of the occupational health and safety laws in these jurisdictions.

[9] (1995) 184 CLR 188 (‘Re AEU’).

[10] [1999] FCA 988; (1999) 91 FCR 95.

[11] [1955] HCA 9; (1955) 92 CLR 113.

[12] Ibid 129 (Viscount Simonds).

[13] A-G (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237.

[14] Koehne v Gay [1964] SASR 107, 109 (Hogarth J); Byrne v Hoare (1965) QSR 135, 140–1 (Stable J), 149 (Gibbs J); Firemores Transport Pty Ltd v Cluff (1973) 2 NSWLR 303, 304 (Lord Hailsham LC, Viscount Dilhorne, Lord Wilberforce, Lord Simon and Lord Salmon); Pense v Hemy [1973] WAR 40, 42 (Bunt J); Irvin v Whitrod [No 2] [1978] Qd R 271; Re Police Officers Industrial Agreement [1981] AR (NSW) 272, 273 (Dey J); Sellars v Woods [1938] ArgusLawRp 108; (1982) 45 ALR 113, 121–2 (Fisher J); Re Commissioner of Police (1982) 3 IR 132, 136–7 (Olsson J), 143 (O’Loughlin J); Re Police Officers Award (1982) 2 IR 397; Chapman v Australian Federal Police Commissioner (1983) 50 ACTR 23, 33 (Kelly J); Griffiths v Haines (1984) 3 NSWLR 653, 661–2 (Lee J) (‘Haines’); Lackersteen v Jones (1988) 92 FLR 7, 45 (Asche CJ); R v Commissioner of Police; Ex parte Ross [1992] 1 Qd R 289, 291–2 (Derrington J); Minister for Police v WA Police Union of Workers [1995] AILR 13-012.

[15] Ferguson (1997) 72 IR 145; Re AFPA (1997) 73 IR 155, 158 (Boulton J, Polites SDP and Simonds C); Ward v Commissioner of Police [1998] FCA 9; (1998) 151 ALR 604; Konrad v Victoria Police (1998) 152 ALR 132; Orchard v Victoria Police (1998) 79 IR 476, 478 (Marshall J); Konrad [1999] FCA 988; (1999) 91 FCR 95; Minister of Police v Western Australian Police Union of Workers [2000] WAIRComm 226 (Unreported, Sharkey P, Fielding SC, Scott C, 14 November 2000). These cases confirm that, at common law, a police officer is the employee of no-one, not of the Crown or of the Commissioner of Police. There are also many British cases to the same effect: see Lord Mackay (ed), Halsbury’s Laws of England, vol 36(1) (4th ed, 1999) Police, ‘1 Introduction’ [205].

[16] R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118, 136 (Lord Denning MR).

[17] J F Stephen, A History of the Criminal Law of England (1889) 494, quoted in United Kingdom, Report of the Royal Commission on Police Powers and Procedure, Cmnd 3297 (1929) [15].

[18] [1906] HCA 3; (1906) 3 CLR 969 (‘Enever’).

[19] [1930] 2 KB 364 (‘Fisher’).

[20] See, eg, Zuijs v Wirth Brothers Pty Ltd [1955] HCA 73; (1955) 93 CLR 561; Stevens v Brodribb Sawmilling Co Ltd (1986) 160 CLR 16.

[21] This issue is adverted to generally in Oceanic Crest Shipping Co Pty Ltd v Pilbara Habour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626 (‘Oceanic Crest Shipping’).

[22] AFP Act ss 17(1), 22; NSW Act ss 24(1), 28(1); Vic Act s 4(1); WA Act s 5; Police Act 1998 (SA) ss 12, 17 (‘SA Act’); Police Administration Act 1978 (NT) s 7 (‘NT Act’); Police Regulation Act 1898 (Tas) ss 8, 11, 11A (‘Tas Act’) and Tasmanian State Service Act 1984 (Tas) pt V. In Queensland, the recommendation made by the Minister to the Governor-in-Council of an appropriate person for appointment must also be agreed to by the Criminal Justice Commission, and this also applies in relation to certain dismissals: Qld Act ss 4.2, 4.5.

[23] AFP Act ss 17(1), 22; NSW Act ss 36(1)(a), 51(1)(a), 181D(2); NT Act s 7; Interpretation Act 1978 (NT) s 34(1); Qld Act s 5.3; SA Act ss 14(1), 17(1); Tas Act ss 9, 9A(1); Vic Act s 4(2); WA Act ss 6, 8. In South Australia, Assistant Commissioners are appointed and removed by the Commissioner: SA Act ss 15(1), 17(1).

[24] SA Act ss 20, 40, 45, 46; Tas Act ss 10(1), 11; WA Act ss 6, 8.

[25] NSW Act ss 36(1)(b), 51(1)(b) (superintendents) and ss 64, 181 (inspectors); NT Act s 16(1); Qld Act ss 5.6, 6.1; Vic Act ss 8, 76(1)(g), 80(1)(e). There are sometimes additional provisions governing the removal of members of the police force, including commissioned officers, and these also generally refer to the Commissioner as the relevant disciplinary authority. Also, so far as the AFP is concerned, all remaining senior members of the force are not appointed directly as constables, but are initially engaged as ‘AFP employees’ by the Commissioner, who in turn is also responsible for their removal: AFP Act ss 24, 28, 40B, 40D, 40K.

[26] NSW Act pt 6, div 4 and ss 179, 181D; NT Act ss 16(1)(a), 16(1)(aa); Qld Act ss 5.6, 6.1; SA Act ss 21, 40, 45, 46; Tas Act s 12; Vic Act ss 8, 76(1)(g), 80(1)(e); WA Act ss 7(1), 8. Again, special provisions apply in respect of those members of the AFP who are ‘AFP employees’.

[27] AFP Act s 9(1); NSW Act s 14; Qld Act s 3.1; Summary Offences Act 1953 (SA) s 82; Tas Act s 15; Vic Act s 11; WA Act s 7(1). In the Northern Territory, members of the police force have all the powers and duties conferred or imposed upon them ‘by any law in force in the Territory’: NT Act s 25.

[28] Examples of the general common law powers of a constable include the power to prevent a breach of the peace, the power to restore public order, and the power to apprehend offenders.

[29] See, eg, Criminal Code Act 1924 (Tas) s 27(2), which states that a police officer may arrest without warrant any person whom he or she ‘believes on reasonable grounds’ to have committed certain offences. See also Rudolf Plehwe and Roger Wettenhall, ‘Policing in Australia: An Historical Perspective’ (Paper presented at the National Conference on Keeping the Peace: Police Accountability and Oversight, Sydney, 20–21 May 1993) 5.

[30] Tas Act s 16, sch 2, form 1; and, similarly, AFP Act s 36; Australian Federal Police Regulations 1979 (Cth) sch 1, form 2; NSW Act s 13; Police Service Regulation 2000 (NSW) reg 8; NT Act s 26, sch, forms 1, 2; Qld Act s 3.3; SA Act ss 25, 60; Police Regulations 1999 (SA) reg 72, sch 1; Vic Act s 13(1), sch 2, form A; WA Act s 10. In some jurisdictions, there are also provisions stating that, upon taking the oath of office, police officers shall be deemed ‘to have ... thereby entered into an agreement with, and shall be thereby bound to serve Her Majesty’: Vic Act s 13(3); see also NT Act s 28; SA Act s 26; Tas Act s 18.

[31] Section 5; see also AFP Act s 37(2); NSW Act s 8(1); NT Act s 14(2); Qld Act s 4.6(2); SA Act s 6; Tas Act s 8.

[32] WA Act ss 6–9.

[33] AFP Act s 37(1); NSW Act s 8(1); NT Act s 14(1); Qld Act ss 4.6(2), 4.8; SA Act s 6; Tas Act s 8(2); Vic Act s 5; WA Act s 5.

[34] AFP Act s 38; NSW Act s 8(4); Police Regulations 1974 (Tas) reg 37(a); SA Act s 11; Vic Act s 17(1).

[35] WA Act s 9.

[36] Qld Act s 4.9.

[37] See, eg, Police Service Regulation 2000 (NSW) pt 2, regs 9(1), (4).

[38] NSW Act s 219; Qld Act s 10.28; SA Act s 76.

[39] Vic Act s 130; Tas Act s 29; NT Act s 167.

[40] AFP Act s 70.

[41] [1906] HCA 3; (1906) 3 CLR 969. For a critique on the origins of Enever, see S C Churches, ‘“Bona Fide” Police Torts and Crown Immunity: A Paradigm of the Case for Judge Made Law’ [1980] UTasLawRw 5; (1980) 6 University of Tasmania Law Review 294.

[42] At the time of the decision, the relevant power to arrest was contained in the Police Act 1865 (Tas) s 197. It authorised a police constable to arrest ‘any person who within his view ... disturbs the public peace’.

[43] Enever [1906] HCA 3; (1906) 3 CLR 969, 977.

[44] The judgments in Enever had relied to a large extent on Tobin v The Queen [1864] EngR 21; (1864) 16 CB NS 310; 143 ER 1148.

[45] Enever [1906] HCA 3; (1906) 3 CLR 969, 975.

[46] Ibid 977.

[47] Ibid.

[48] Most notably in Fisher [1930] 2 KB 364 and Perpetual Trustee [1955] HCA 9; (1955) 92 CLR 113.

[49] See especially United Kingdom, Royal Commission on the Police 1962 Final Report, Cmnd 1728 (1962) [62].

[50] Enever [1906] HCA 3; (1906) 3 CLR 969, 990.

[51] Ibid.

[52] See Enever [1906] HCA 3; (1906) 3 CLR 969, 981, where Barton J states that whether ‘the constable was acting as an officer, agent or servant of the Government is not the only question; though the constable might be an officer, agent or servant of the Government, he would still have to be such within the meaning of the [Tasmanian] Crown Redress Act 1891 before the liability could attach.’ Barton J (at 982) also points out that the fact that the police constable was an office-holder was not open to question, but that that did not conclude the matter in the Crown’s favour.

[53] [1930] 2 KB 364. Fisher has been trenchantly criticised, particularly in the police governance literature in Britain: see especially Laurence Lustgarten, The Governance of Police (1986)

55–61, where Lustgarten endorses the earlier criticisms made by Geoffrey Marshall, Police and Government: The Status and Accountability of the English Constable (1965).

[54] Fisher [1930] 2 KB 364, 371, 377–8 (McCardie J).

[55] Mackalley’s Case [1572] EngR 233; (1611) 9 Co Rep 61b; 77 ER 824; Coomber v The Justices of the County of Berks [1883] UKHL TC_2_1; (1883) 9 App Cas 61; Stanbury v Exeter Corporation [1905] UKLawRpKQB 151; [1905] 2 KB 838 (‘Stanbury’).

[56] Buttrick v City of Lowell, 83 Mass 172 (1861).

[57] McCleave v City of Moncton (1902) 32 SCR 106.

[58] Fisher [1930] 2 KB 364, 372.

[59] Ibid.

[60] [1905] UKLawRpKQB 151; [1905] 2 KB 838.

[61] Ibid 842–3 (citations omitted).

[62] Rather, the principle being applied here, which originated in a series of American and Canadian decisions, was one which had also been extended to other public officials: see Dermot Walsh, ‘The Legal Status of an Irish Police Officer: New Clothes for the Ancient Office of Constable’ [1994] Anglo-American Law Review 23, 63, 85–6; Philip Stenning, Legal Status of the Police: A Study Paper Prepared for the Law Reform Commission of Canada (1982) 101–12.

[63] Paul Atiyah, Vicarious Liability in the Law of Torts (1967) 77–8.

[64] [1930] 2 KB 364, 368; see also 368–71 (McCardie J).

[65] Ibid 370–1.

[66] A-G (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237 (High Court of Australia); Perpetual Trustee [1955] HCA 9; (1955) 92 CLR 113 (Privy Council).

[67] [1955] HCA 9; (1955) 92 CLR 113.

[68] This is an action for damages by a person entitled to services from an injured party, against another person whose wrongful act towards the injured party has deprived him or her of those services.

[69] [1944] HCA 1; (1944) 68 CLR 227.

[70] The High Court had earlier reached the same conclusion: A-G (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237.

[71] Perpetual Trustee [1955] HCA 9; (1955) 92 CLR 113, 120–1 (citations omitted).

[72] Ibid 121.

[73] Ibid 129.

[74] A-G (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237, 273 (Webb J), 303–4 (Kitto J),

255–6 (McTiernan J).

[75] A-G (NSW) v Perpetual Trustee Co Ltd (1951) 51 SR (NSW) 109, 112–3 (Maxwell J), 117 (Owen J).

[76] [1906] HCA 61; (1906) 4 CLR 422.

[77] A-G (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237, 303–4 (emphasis added).

[78] Ibid 255 (McTiernan J).

[79] Ibid 254–6.

[80] Ibid 273.

[81] It is submitted that Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422, which had been referred to by Kitto J, does not support the proposition that police constables are not employees.

[82] Zelman Cowen, ‘The Action Per Quod Servitium Amisit and the Police’ (1953) 2 University of Western Australia Annual Law Review 263, 276.

[83] A-G (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237, 283 (Fullagar J), 252 (Dixon J), 265 (Williams J).

[84] See especially Field v Nott [1939] HCA 41; (1939) 62 CLR 660 (legal aid officer) and Oceanic Crest Shipping [1986] HCA 34; (1986) 160 CLR 626 (marine pilot).

[85] See Union Government v Thorne [1930] SALR 47; Sibiya v Swart [1950] 4 SALR 515; Mhlongo v Minister of Police [1978] 2 SALR 551; see also Churches, above n 41, 300.

[86] NSW Act s 8. At the time of Perpetual Trustee and A-G (NSW) v Perpetual Trustee Co Ltd, the relevant provision was s 4(1) of the Police Regulation Act 1899 (NSW).

[87] A-G (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237, 304.

[88] Haines [1984] 3 NSWLR 663, 661 (Lee J).

[89] Marshall, above n 53, 18–20; Walsh, above n 62, 90–7; Plehwe and Wettenhall, above n 29,

5–7.

[90] [1955] HCA 9; (1955) 92 CLR 113, 118.

[91] Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55, 68 (Latham CJ).

[92] Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422; Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55; Kaye v A-G (Tas) [1956] HCA 3; (1956) 94 CLR 193. To similar effect are the decisions of the Supreme Court of Victoria in Power v The Queen (1873) 4 AJR 144, followed in Green v The Queen [1891] VicLawRp 85; (1891) 17 VLR 329, 332 (Higinbotham CJ); Bertrand v The King [1948] VicLawRp 58; [1949] VLR 49, 50–1 (Herring CJ); O’Rourke v Miller [1984] VicRp 20; [1984] VR 277, 298–9 (O’Bryan J). See also Martin v Police Service Board [1983] VicRp 97; [1983] 2 VR 357, 367 (Marks J); Kochne v Gay [1964] SASR 107, 109 (Hogarth J); Re Commissioner of Police (1982) 3 IR 132, 137 (Olsson J); Finemores Transport v Cluff (1973) 2 NSWLR 303, 304 (Lord Hailsham LC, Viscount Dilhorne, Lord Wilberforce, Lord Simon and Lord Salmon); Alley v Minister of Works (1974) 9 SASR 306, 310 (Zelling J).

[93] Louis Waller, ‘The Police, the Premier and Parliament: Governmental Control of the Police’ [1980] MonashULawRw 5; (1980) 6 Monash University Law Review 249, 261, referring to the High Court’s decision.

[94] Perpetual Trustee (1955) 92 CLR 112, 130.

[95] It is clear from the judgments of some members of the High Court that the fact that police constables have always had independent peacekeeping functions to perform was, of itself, conclusive.

[96] [1952] HCA 2; (1952) 85 CLR 237, 252 (Dixon J), 265 (Williams J), 278, 283–4 (Fullagar J).

[97] Ibid 252.

[98] Ibid (citations omitted).

[99] Such as the constable’s powers of arrest.

[100] Haines [1984] 3 NSWLR 653, 658 (Lee J); Konrad v Victoria Police (1998) 152 ALR 132, 144 (Marshall J).

[101] Peter Hogg, Liability of the Crown (1st ed, 1971) 106, 163; Peter Hogg, Liability of the Crown (2nd ed, 1989) ch 5; Michael Bersten, ‘Police and Politics in Australia: The Separation of Powers and the Case for Statutory Codification’ (1990) 14 Criminal Law Journal 302, 312; Enid Campbell and Harry Whitmore, Freedom in Australia (1973) 21–2; Waller, above n 93, 261–2; Greg McCarry, Aspects of Public Sector Employment Law (1988) 214; John Fleming, The Law of Torts (9th ed, 1998) 753.

[102] See Little v Commonwealth [1947] HCA 24; (1947) 75 CLR 94, 114 (Dixon J); Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271, 279–80 (Barwick CJ), 289 (Windeyer J) (discussing governmental liability for a police officer’s negligent driving); Haines [1984] 3 NSWLR 653, 658, 663 (Lee J).

[103] See Ferguson (1997) 72 IR 145, 151 (Boon JR); Re AFPA (1997) 73 IR 155, 158 (Boulton J, Polites SDP, Simmonds C); Konrad v Victoria Police (1998) 152 ALR 132, 144 (Marshall J); Konrad [1999] FCA 988; (1999) 91 FCR 95, 127 (Finkelstein J); Minister of Police v Western Australian Union of Workers [2000] WAIRComm 226 (Unreported, Sharkey P, Fielding SC, Scott C, 14 November 2000) [122] (Fielding SC), [128]–[129] (Scott C).

[104] [1986] HCA 34; (1986) 160 CLR 626.

[105] This is seen most clearly in the judgment of Dawson J, which drew a direct analogy between the position of a marine pilot, as both office-holder and employee, and that of the police constable: ibid 681.

[106] Re Australian Federal Police Association [No 2] (1993) 51 IR 122, 146 (Williams DP) (‘Re AFPA [No 2]’); Re AFPA (1997) 73 IR 155, 158 (Boulton J, Polites SDP, Simmonds C).

[107] Re AFPA (1997) 73 IR 155, 158 (Boulton J, Polites SDP, Simmonds C); Konrad v Victoria Police (1998) 152 ALR 132, 144 (Marshall J).

[108] These issues were discussed in some detail in the submissions of the applicants in Konrad v Victoria Police (1998) 152 ALR 132: Applicant’s Submissions on Crown Employee Point, No 1339, 1340 and 1406 of 1997 (27 October 1997) 21–34.

[109] J R L Milton, ‘The Vicarious Liability of the State for the Delicts of the Police’ (1967) 84 South African Law Journal 25, 27, quoting William Wade, Administrative Law (1961) 24–5.

[110] Cf Sir William Wade, Administrative Law (6th ed, 1988) 148, referring to some of the South African decisions mentioned in above n 85.

[111] Fisher [1930] 2 KB 364, 378 (McCardie J).

[112] [1952] HCA 2; (1952) 85 CLR 237, 252.

[113] (1995) 184 CLR 188.

[114] Section 4(1) (emphasis added).

[115] Police officers in Victoria, however, have access (subject to certain limitations) to the general award-making provisions of the WR Act: Commonwealth Powers (Industrial Relations) Act 1996 (Vic) s 3; WR Act ss 489, 493.

[116] This issue was explicitly raised during argument in Glasgow v Victoria, an unsuccessful application for removal to the High Court under s 40(1) of the Judiciary Act 1903 (Cth): see Transcript of Proceedings, Glasgow v Victoria (High Court of Australia, Gavan Griffith, 11 September 1998). The matter involved was originally tried by Marshall J in Orchard v Victoria Police (1998) 79 IR 476, but subsequently overruled by the Full Federal Court decision in Konrad [1999] FCA 988; (1999) 91 FCR 95.

[117] WR Act s 89A.

[118] See generally D C Thomson, ‘Employment and the Law in the New South Wales Police Force’ [1964] SydLawRw 5; (1963) 4 Sydney Law Review 404; Lawson Savery and Shane Bushe-Jones, ‘The Decline in WA Police Officers’ Salaries 1974–1990’ (1992) 18 Australian Bulletin of Labour 208, 213, 215. Since the late 1980s, the various state police associations have been pursuing strategies seeking nationally consistent ‘benchmarks’ in their salary claims.

[119] See, eg, W J Ford, ‘Reconstructing Australian Labour Law: A Constitutional Perspective’ (1997) 10 Australian Journal of Labour Law 1, 11–12.

[120] It will be argued below that it would not be appropriate to allow state police officers access to the ‘protected action’ provisions in pt VIB, div 8 of the Act.

[121] Section 170LI(1).

[122] Section 170LZ(1).

[123] Section 170LZ(2). That provision also allows for exclusions prescribed by the regulations.

[124] The idea that state and territory police might one day operate in the federal system seems to have been a key long-term goal: see, eg, K D Marshall, ‘Survival within the Arbitration System’ (Paper presented at the Police Industrial Relations Seminar, Airlie Police College, Melbourne, 9 December 1982) 109–10.

[125] See Re AEU (1995) 184 CLR 188, 231 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ); Victoria v Commonwealth (1996) 187 CLR 416, 498 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

[126] (1995) 184 CLR 188.

[127] Ibid 241 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[128] Ibid 233.

[129] An issue initially raised in Re AFPA [No 2] (1993) 51 IR 122.

[130] Re AEU (1995) 184 CLR 188, 241.

[131] Ibid 230.

[132] [1999] FCA 988; (1999) 91 FCR 95 (Ryan, North and Finkelstein JJ).

[133] Submissions of the Respondents, Konrad v Victoria Police, No VG 44 of 1998 (11 February 1999) 8–9.

[134] See Konrad [1999] FCA 988; (1999) 91 FCR 95, 107 (North J), 129–30 (Finkelstein J).

[135] Ibid 130 (Finkelstein J).

[136] Ibid 102 (Ryan J), 104 (North J), 129 (Finkelstein J). In Re AEU (1995) 184 CLR 188, 232 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), the High Court had held that it was critical to a state’s capacity to function as a government ‘to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss ... from its employment on redundancy grounds.’

[137] Konrad [1999] FCA 988; (1999) 91 FCR 95, 129 (Finkelstein J, North J concurring).

[138] This was held to be so even in the case of a probationary constable, who could be terminated summarily: ibid 129–30 (Finkelstein J).

[139] A situation, however, where a federal industrial instrument might be viewed as infringing the implied limitation would arise where it placed restrictions upon senior members’ ‘command powers’, particularly a Commissioner’s powers relating to the control and superintendence of the police force.

[140] See Cook (1996) 66 IR 361; Ferguson (1997) 72 IR 145; Ward v Commissioner of Police [1998] FCA 9; (1998) 151 ALR 604; Konrad v Victoria Police (1998) 152 ALR 132; Orchard v Victoria Police (1998) 79 IR 476, 478 (Marshall J); Konrad [1999] FCA 988; (1999) 91 FCR 95; Ward [1999] FCA 1058; (1999) 165 ALR 57; Pooley v Commissioner of Police of Northern Territory (Unreported, Australian Industrial Relations Commission, Hoffman C, 5 October 1999).

[141] I shall not discuss the various state unfair dismissal laws here, though it should be borne in mind that in some state jurisdictions, members of the police force do have access, in varying degrees, to those laws.

[142] In particular, state police officers will, in many cases, have access to a statutory form of judicial review in respect of disciplinary (and other) decisions taken against them, including dismissal.

[143] NSW Act pt 9, divs 1, 2; NT Act pts V and VI; Qld Act pt IX; Tas Act s 31, pt IVB; Vic Act pt V; WA Act s 23, pt IIA.

[144] Kerr v Commissioner of Police [1977] 2 NSWLR 721, 728 (Moffitt P); McCarry, Aspects of Public Sector Employment Law, above n 101, 147.

[145] Qld Act s 9.5. Similar provisions existed for some time in Victoria prior to the introduction of a new Police Appeals Board by the Bracks Labor government in 1999.

[146] McCarry, Aspects of Public Sector Employment Law, above n 101, 126.

[147] Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422; Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55; Kaye v A-G (Tas) [1956] HCA 3; (1956) 94 CLR 193; Reedman v Hoare [1959] HCA 50; (1959) 102 CLR 177. Again though, police officers may nevertheless be entitled to certain public law remedies which could prevent dismissal in some circumstances, as in O’Rourke v Miller [1984] VicRp 20; [1984] VR 277.

[148] Commissioner of Police v Gordon [1981] 1 NSWLR 675, 680–1 (Moffitt P), referring to Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55.

[149] [1999] FCA 988; (1999) 91 FCR 95.

[150] Opened for signature 22 June 1985, 1412 UNTS 159 (entered into force 23 November 1985) (‘the Convention’).

[151] Ibid 126–7 (Finkelstein J).

[152] Ibid 109–20, 126–7 (Finkelstein J).

[153] WR Act ss 170CB(5)(6), 170CK(1) and 170CA(1)(e).

[154] Of course by virtue of s 170CC of the WR Act, which authorises the making of regulations to exclude certain kinds of employees, some state police officers could be excluded from the rights contained in both sub-div C and sub-div B, even if otherwise included.

[155] See generally M H Codd, Report on the Suspension and Removal of Police Officers in Western Australia (2 February 1998) [86]–[102].

[156] Part IV, div 6 and s 69B(1)(a). The policy behind these provisions is that, because of the special character of police service and the need to maintain the integrity and reputation of the police force, it would not be appropriate that an outside tribunal should be able to remake the Commissioner’s decision to dismiss: Codd, above n 155, [102], referring to the former s 26F provisions.

[157] Re Australian Federal Police Association (Unreported, Australian Industrial Relations Commission, Williams SDP, 19 August 1997).

[158] Police Federation of Australia, Rules of the Police Federation of Australia, r 3. The Rules were assented to by the Deputy Industrial Registrar of the AIRC Registry on 31 December 1997.

[159] Re AFPA [No 2] (1993) 51 IR 122; aff’d Re AFPA (1997) 73 IR 155.

[160] (1997) 73 IR 155 (Boulton J, Polites SDP, Simmonds C).

[161] IR Act ss 188(1)(b)(i), 188(1)(b)(ii).

[162] Re AFPA (1997) 73 IR 155, 156. It seems that the Full Bench proceeded on the assumption that the general requirement that there be at least ‘some’ members of the AFPA who were employees had already been satisfied. Also, it is of interest to note that although Williams DP appeared to adopt the same approach, on the basis of the earlier views of Moore DP in Re Independent Teachers Federation (1989) 30 IR 205, 208–9, he also seemed to entertain the possibility that, even if most police officers were unable to fall within the classes referred to, the reference in the proposed eligibility rule to police officers and police trainees would still be permissible because it would only enable the enrolment of those persons who were employees: Re AFPA [No 2] (1993) 51 IR 122, 133, 134 (Williams DP).

[163] The schedule refers only to ‘deemed’ employees under the New South Wales, Queensland, South Australia and Western Australia Acts.

[164] Police Federation of Australia, Rules of the Police Federation of Australia, r 4(a).

[165] The Rules might also be invalid to the extent that they extend to those state-based police officers who are ‘higher level’ office-holders in accordance with Re AEU (1995) 184 CLR 188.

[166] See Graham Smith, Public Employment Law: The Role of the Contract of Employment in Australia and Britain (1987) 203; and Blizzard v O’Sullivan [1994] 1 Qd R 112, holding that the decision to dismiss an executive police officer employed under contract was not a decision of an administrative character made under an enactment and that judicial review was thus unavailable. On the other hand, it seems that this principle has been applied to police officers even in the absence of a contract: see Sellars v Woods [1938] ArgusLawRp 108; (1982) 45 ALR 113.

[167] See Bliss v South East Thames Regional Health Authority [1987] ICR 700; Malik v Bank of Credit and Commerce International SA [1997] UKHL 23; [1998] AC 20.

[168] Greg McCarry, ‘Industrial Law and Relations: Damages for Breach of the Employer’s Implied Duty of Trust and Confidence’ (1998) 26 Australian Business Law Review 141, 141.

[169] Stephen Piper, ‘Workers’ Rights’ (1997) 105(5412) Police Review 26, 26.

[170] Ibid.

[171] See, eg, Police Regulation Act 1898 (Tas) s 11.

[172] Peter Hogg, Liability of the Crown (2nd ed, 1989) 175.

[173] Chris Arup, ‘Security at Law of Public Employment in Australia’ (1978) 37 Australian Journal of Public Administration 95, 98; Smith, above n 166, 91–3, 196.

[174] Ronald McCallum, ‘Industrial Law and Relations’ (1987) 15 Australian Business Law Review 366, 367.

[175] Sandra Fredman and Gillian Morris, ‘Civil Servants: A Contract of Employment?’ [1988] Public Law 58, 69–70.

[176] Sandra Fredman and Gillian Morris, The State as Employer: Labour Law in the Public Services (1989) 73.

[177] Ibid 72–3.

[178] See Gillian Morris, ‘The Police and Industrial Emergencies’ (1980) 9 Industrial Law Journal 1.

[179] Ibid.

[180] Cf Anderson v Sullivan (1997) 78 FCR 380.

[181] Morris, above n 178, 6.

[182] Thomson, above n 118, 415.

[183] That police officers ought to be considered employees at common law also finds strong support in Britain: see, eg, Fredman and Morris, The State as Employer: Labour Law in the Public Services, above n 176, 73; Lustgarten, above n 53, 31.

[184] It also seems fair to assume that, if police officers gained additional rights as a result of being employees, the courts would view any activities associated with their general peacekeeping and law enforcement duties as taking precedence in the case of conflict.

[185] Although state employment Acts, where they refer to members of the police force, often also make exceptions for them, this is not always the case.

[186] Occupational Health and Safety Act 2000 (NSW) s 137; Occupational Safety and Health Act 1984 (WA) s 3(4) (commencing 3 January 2004).

[187] Cf Breen Creighton and Andrew Stewart, Labour Law: An Introduction (3rd ed, 2000) 203. In Western Australia, for example, legislation has now been introduced which deems police officers to be employees for specified industrial purposes: Industrial Relations Act 1979 (WA) sch 3; Industrial Relations Amendment Act 2000 (WA) s 5.

[188] A case in point is the Industrial Relations Amendment Bill (No 3) 1992 (WA), which had proposed to introduce provisions which deemed members of the Western Australian police force to be employees for the purposes of the general industrial statute in that State. The Bill was apparently withdrawn in the face of what were considered insurmountable bureaucratic and political obstacles.

[189] Richard Clayton and Hugh Tomlinson, Civil Actions against the Police (1992) 37–8.

[190] [1999] FCA 988; (1999) 91 FCR 95.

[191] See, eg, Professor Ron McCallum in Stephen Long, ‘New Protection for Contractors’, The Australian Financial Review (Sydney), 6 September 1999, 3.

[192] Creighton and Stewart, above n 187, 202–3. These authors refer to the decision in Konrad as a ‘rare exception’.

[193] [1952] HCA 2; (1952) 85 CLR 237.

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