Commissioner of Police, New South Wales Police Force v Zisopoulos

1. [1]

   BELL P: The Commissioner of Police (the Police Commissioner) seeks judicial review of a decision of the Full Bench of the NSW Industrial Relations Commission (IRC) (Commissioner of Police (NSW) v Zisopoulos (2019) 291 IR 150; [2019] NSWIRComm 1073 (the Full Bench Decision)) and an extension of time in which to seek judicial review of an earlier decision of Murphy C in Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011 (the First Instance Decision) relating to the removal of Mr George Zisopoulos (Mr Zisopoulos) from the NSW Police Force.

2. [2]

   The Full Bench Decision was an unsuccessful appeal by the Police Commissioner from the First Instance Decision in which Mr Zisopoulos successfully reviewed, pursuant to s 181E of the Police Act 1990 (NSW) (the Act), the Police Commissioner’s decision pursuant to s 181D(1) of the Act, to remove him from the NSW Police Force. The basis of the Police Commissioner’s underlying decision to remove Mr Zisopoulos was the Police Commissioner’s satisfaction that Mr Zisopoulos “consumed a prohibited drug, resulting in [him] testing positive for MDMA and methylamphetamine.” The Commissioner considered there to be:

3. [3]

   The applications for judicial review were removed to the Court of Appeal on the motion of the Police Commissioner: Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWSC 622.

4. [4]

   Both Murphy C and the Full Bench held, following an earlier decision of the Full Bench in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 (Tredinnick), that, if the applicant for review under s 181E of the Act produced sufficient evidence to “cast doubt” upon the reasons of the Police Commissioner which led to the removal of the applicant from the NSW Police Force, the Commissioner would then bear the evidential burden of establishing that the applicant had engaged in the relevant misconduct that led to the police officer’s removal.

5. [5]

   The essence of the applications for judicial review is that this approach was wrong and contravened s 181F(2) of the Act, which places the burden of establishing that the police officer’s removal from the NSW Police Force is harsh, unreasonable or unjust “at all times” on the police officer who seeks to review the Police Commissioner’s decision.

Statutory framework, legislative history and case law

1. [6]

   It is convenient at this point to set out the relevant sections of the Act and to note their legislative history and relevant case law.

2. [7]

   Part 9 of the Act, comprising ss 173-187, is entitled “Management of conduct within NSW Police Force”. Part 9 comprises 8 divisions. It has been the subject of consideration by the High Court in Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 (Eaton) and, most recently, by this Court in Cottle v NSW Commissioner of Police; Police Association of New South Wales v Commissioner of Police (NSW Police Force) [2020] NSWCA 159 (Cottle).

3. [8]

   Mr Kirk SC, who appeared with Mr Shariff for the Police Commissioner, emphasised that Divs 1B and 1C of Pt 9 were introduced respectively by the Police Legislation Further Amendment Act 1996 (NSW) (the 1996 Act) and the Police Service Amendment Act 1997 (NSW) (the 1997 Act).

4. [9]

   The 1996 Act followed the “Interim report: immediate measures for the reform of the Police Service of New South Wales” of the Wood Royal Commission into the New South Wales Police Service, but predated the Royal Commission’s final report. The 1996 Act introduced s 181D into the Act, providing for the Police Commissioner summarily to remove police officers in whom the Police Commissioner did not have confidence. The 1996 Act also introduced Pt 10A into the Act, which was entitled “Integrity testing of police officers” and provided for the conducting by the Police Commissioner of integrity testing programs and provision for the testing of police officers for alcohol and prohibited drugs.

5. [10]

   The 1997 Act provided for the review by the IRC of decisions of the Police Commissioner removing a police officer by order under s 181D of the Act. In the Second Reading Speech, the then Police Minister said (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 June 1997 at 10562-10563):

6. [11]

   Section 181D, falling within Div 1B of Pt 9, empowers the Police Commissioner to remove a police officer in whom he or she has lost confidence, having regard to the officer’s competence, integrity, performance or conduct. Sub-sections (1)-(4) are in the following terms:

7. [12]

   Except as provided by Div 1C, “no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section”, noting “tribunal” is defined to mean “a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission”: s 181D(7) of the Act.

8. [13]

   Division 1C of Pt 9, comprising ss 181E-181J, is entitled “Review of Commissioner’s decision under Division 1B”. Section 181E provides:

9. [14]

   Section 181F makes specific provision for the proceedings on a review, with sub-section (1) providing that:

10. [15]

    This sub-section structures the conduct of any review by the IRC. It will be seen that, in his reasons, Murphy C followed this sequential structure and reliance was placed on it by Mr Hutley SC, who appeared with Mr Eurell for Mr Zisopoulos, to explain and defend the attack made on the decisions of both Murphy C and the Full Bench.

11. [16]

    Sections 181F(2) of the Act, which is of central significance to the current proceedings, provides:

12. [17]

    Particular emphasis was placed by the Police Commissioner on the phrase “at all times”. The Police Commissioner also submitted that the reference to any “practice to the contrary” may well have been intended to be a reference to the practice reflected in Wang v Crestell Industries Pty Ltd (1997) 71 IR 454 at 463-4 and more generally in unfair dismissal cases dealt with by the IRC whereby the employer is required, in such cases, to establish and justify the basis for dismissal, even though the application for relief is brought by the dismissed former employee.

13. [18]

    Returning to the Act, s 181F(3) provides that:

14. [19]

    Mr Kirk submitted that these mandatory considerations emphasise the importance and significance of the Police Commissioner’s power summarily to remove an officer pursuant to s 181D of the Act.

15. [20]

    In the context of a consideration of the statutory provisions, Mr Kirk also placed reliance upon certain passages from Eaton. That case was concerned with whether or not a probationary constable had any right of review of a decision to dismiss him or her pursuant to s 80(3) of the Act and, in particular, whether or not a dismissed probationary constable could seek review pursuant of s 84(1) of the Industrial Relations Act 1996 (NSW) on the basis that the dismissal was harsh, unreasonable or unjust. The Police Commissioner successfully submitted in that case that the existence of such a right would be anomalous in light of the more bespoke provisions relating to the removal of police officers pursuant to s 181D of the Act.

16. [21]

    Reliance was placed on the judgment of Heydon J and the joint judgment of Crennan, Kiefel and Bell JJ which together comprised the majority (Gageler J dissented). In particular, reliance was placed on [26] of Heydon J’s decision, in which his Honour said:

17. [22]

    Reliance was also placed on [69] and [76] of the plurality decision:

18. [23]

    It is not absolutely clear what provision of the Act the plurality decision was referring to in the last sentence of [76], but it may have been to s 181G(1)(f) which permits the admission of “new evidence” but only on notice and with the leave of the IRC.

Background to and history of the proceedings

1. [24]

   Mr Zisopoulos was a member of the NSW Police Force from 1999 to 2015.

2. [25]

   On 16 April 2015, he was subjected to a random urine drug test at Newtown Local Area Command. The initial screening of his urine returned a “non-negative” result for amphetamines, opiates and benzodiazepines. Mr Zisopoulos was advised at the time that his urine sample would be sent for further laboratory analysis to confirm that the medications which he had been taking caused the non-negative results.

3. [26]

   Later on the same day, Mr Zisopoulos was required to provide a hair sample for further testing, which returned positive results for MDMA and methylamphetamine.

4. [27]

   On 30 March 2016, Mr Zisopoulos was served with a notice pursuant to s 181D(3)(a) of the Act (Section 181D Notice) which, as noted at [2] above, included the following:

5. [28]

   On 6 June 2016, Mr Zisopoulos submitted a response to the Section 181D Notice in which he denied the allegation of voluntary consumption of the drugs.

6. [29]

   On 19 December 2016, by an order made under s 181D(1) of the Act, Mr Zisopoulos was removed from the NSW Police Force. The terms of that order were as follows:

7. [30]

   The Police Commissioner’s Statement of Reasons (the Reasons) were lengthy, running to some ten pages. After setting out the background facts, the Reasons then contain a section headed “Allegation”, which was in these terms, mirroring the Section 181D Notice:

8. [31]

   Interpolating here, it should be noted that in both the Section 181D(1) Notice and the Reasons, the Police Commissioner identified a standard of proof (balance of probabilities) coupled with a Briginshaw rider (“having regard to the seriousness of the allegation”): see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. There was no direct statutory reason for the Police Commissioner to choose this standard of proof or to require satisfaction in the Briginshaw sense, namely by reference to the seriousness of the allegations. There may have been sound reasons for the Police Commissioner to do so, but the important point for present purposes is that he was not obliged to do so.

9. [32]

   It may, for example, be open to the Police Commissioner to remove an officer in circumstances where he had reasonable suspicion that the officer had engaged in serious criminal conduct but could not be satisfied of the commission of that conduct either to the civil or criminal standard, cf. Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62; [1980] FCA 85. Depending on the context, however, the very existence of such reasonable suspicion may be sufficient for the Police Commissioner to exercise the s 181D removal power, if the existence of that suspicion has caused the Police Commissioner not to have confidence in the police officer’s suitability to continue as a police officer, having regard to the police officer’s competence, integrity, performance or conduct. It is perhaps useful, in this context, to set out the following exchange in the course of argument in this Court:

10. [33]

    The Police Commissioner is invested with a significant measure of discretion under s 181D(1), subject to satisfaction of the statutory procedural fairness requirements in s 181D(3) and the obligation to provide reasons by virtue of s 181D(4). The mandatory requirement imposed by s 181F(3)(b) to take into account, as part of the consideration of the public interest, “the fact that the Commissioner made the order pursuant to section 181D (1)” highlights the deference to be given to the Police Commissioner’s decision, a point also emphasised in the Second Reading Speech. But any such decision is also subject to the right of review pursuant to s 181E of the Act.

11. [34]

    Returning to the Reasons, the Police Commissioner noted that:

12. [35]

    On 22 December 2016, Mr Zisopoulos filed an application for relief in relation to unfair dismissal in the IRC. Before the IRC, Mr Zisopoulos claimed that his removal was harsh, unreasonable or unjust on the basis that (a) he denied voluntarily ingesting either MDMA or methylamphetamine, and (b) the positive hair test results were capable of being interpreted as being caused by environmental contamination of the hair by those substances, or that such external contamination could not be ruled out.

13. [36]

    Before the IRC, it was accepted by Mr Zisopoulos that his removal would not have been harsh, unreasonable or unjust had he in fact voluntarily consumed prohibited drugs but he denied this and, as shall be seen, led expert evidence seeking to establish and made a submission recorded by Murphy C at [131] of the First Instance Decision that “the overwhelming consensus of the experts was that the test results are consistent with external contamination.”

14. [37]

    Equally, both before the IRC and in this Court, it was not suggested that Mr Zisopoulos’ removal by the Commissioner would not have met the statutory criteria of harsh, unreasonable or unjust if it were established that the positive hair test results manifesting drugs were in fact caused by “environmental contamination”, that is to say, by exposure to the drugs in the course of his duty, as opposed to voluntary ingestion. Indeed, in argument before this Court, Mr Kirk both positively put and accepted that this was a binary issue upon which the ultimate issue for determination under s 181E(1) of the Act turned.

Decision of Commissioner Murphy

1. [38]

   On 7 March 2018, Murphy C upheld the application for review, and ordered that Mr Zisopoulos be reinstated to the NSW Police Force at the rank and incremental level he held at the date of his removal.

2. [39]

   In a section of his reasons entitled “Onus of proof”, Murphy C noted that “[s]ection 181F(2) of the Police Act makes it clear that [Mr Zisopoulos] bears the burden of establishing that his removal from the NSWPF was harsh, unreasonable or unjust”: at [140].

3. [40]

   After referring at length to the decision of the Full Bench in Tredinnick, Murphy C outlined (at [142]) that he was “satisfied that the applicant has produced sufficient evidence to cast doubt upon the finding by the [Police Commissioner] that [Mr Zisopoulos] consumed prohibited drugs so that the evidentiary burden of establishing that fact has shifted to the [Police Commissioner]”. This conclusion was advanced at the end of the section of Murphy C’s decision entitled “Onus of proof”.

4. [41]

   Murphy C structured his analysis of the ultimate issue before him under the general heading “Was the removal of the applicant harsh, unreasonable or unjust?” with the following sub-headings:

5. [42]

   Under the sub-heading “The positive test results – voluntary use or external contamination?”, Murphy C recorded at [165]-[167] that:

6. [43]

   At [180], within the section sub-headed “The case presented by the respondent” and following a consideration of the Police Commissioner’s submissions in light of the expert evidence before him, Murphy C concluded that:

7. [44]

   Under the final sub-heading of this section of his reasons – “The evidentiary burden” – Murphy C first made reference to the facts of Tredinnick and then to the first instance and Full Bench decisions in that matter, having already referred extensively to the Full Bench decision earlier in his reasons under the heading “Onus of proof”. He evidently returned to Tredinnick for the purposes of drawing a comparison and contrast with the present case. Tredinnick also concerned a review under s 181E of a s 181D(1) removal, on the basis of Mr Tredinnick having returned a positive drug test some 6 days after he had participated in a drug raid, during which he handled a significant quantity of what was termed “sticky cannabis”. He had proposed, in the alternative to voluntary ingestion on his part, two possible explanations for the positive test result, namely dermal absorption or inhalation of the drug during the seizure and subsequent processing of the cannabis or, secondly, involuntary ingestion, in the days after the raid, of cannabis resin or particles of leaf or flower which had adhered to Mr Tredinnick’s load bearing vest during the seizure and subsequent processing of the drug.

8. [45]

   At [185]-[190] of his reasons, Murphy C concluded:

The Full Bench decision

1. [46]

   The Police Commissioner sought leave to appeal to the Full Bench of the IRC. Leave was granted in respect of three grounds of appeal, namely that Murphy C erred in properly applying the onus arising under s 181F of the Act, that Murphy C erred by failing to adhere to s 181F(2) of the Act by concluding that the evidentiary burden moved from Mr Zisopoulos, and that Murphy C failed to properly consider, or consider at all, s 181F(3) of the Act, requiring that the IRC “must” have regard to the public interest when making its decision. That final issue has fallen away in the present proceedings.

2. [47]

   On 4 October 2019, the Full Bench of the IRC dismissed the appeal. The Full Bench held, with respect to the first two of the grounds, that there was “nothing in Commissioner Murphy’s reasons to support the proposition that he has misunderstood or misapplied either s 181F(2) or the principles which were established in Tredinnick”, and that Murphy C had held that Mr Zisopoulos had “established flaws” in some of the reasons of the Police Commissioner: at [30].

3. [48]

   Like Murphy C, the Full Bench made extensive reference to Tredinnick for the purposes of considering the attack on Murphy C’s reasons. At [23], the Full Bench observed that:

4. [49]

   At [24], the Full Bench made the point that:

5. [50]

   At [26]-[27], the Full Bench observed that an applicant for review was “required to prove that the decision to remove him is harsh, unreasonable or unjust”, and that that burden “can be satisfied by casting sufficient doubt on the Commissioner’s reasoning process as to justify the Commission’s intervention.” The Full Bench then cited extensively from the decision of Walton J VP (as his Honour then was) in Starr v Commissioner of Police [2001] NSWIRComm 226 at [171]-[176] and [179] (Starr), concluding at [28] that:

6. [51]

   In two important paragraphs ([29]-[30]), the Full Bench then said that:

7. [52]

   At [39], the Full Bench also held that:

8. [53]

   In a later section of its reasons, the Full Bench considered an attack on the adequacy of Mr Zisopoulos’ evidence before Murphy C: at [41]-[59]. In this section of the judgment, the Full Bench shifted from its earlier reference to evidence which raised or cast a “sufficient doubt” (see the passage cited at [52] above) to the expression “sufficient evidence to cast doubt”: see at [44] and [46]. Viewed in context, and in light of the judgment as a whole, I do not consider these two references to be inconsistent with the earlier thrust of the Full Bench’s analysis which, properly understood, was concerned with shifting tactical evidentiary burdens.

9. [54]

   Important to note in view of the Police Commissioner’s challenge is [46] of the Full Bench’s judgment, as follows:

The application for judicial review

1. [55]

   In its Summons, the Police Commissioner seeks judicial review both of the decision of Murphy C and of the Full Bench on the following grounds:

2. [56]

   The relief sought in the Summons was relevantly as follows:

Submissions on appeal

1. [57]

   In written submissions, the Police Commissioner contended that Murphy C and the Full Bench of the IRC misconstrued s 181F(2) of the Act, misdirected themselves and asked themselves the wrong question in undertaking the statutory task of review under s 181E of the Act. The Police Commissioner submitted that both Murphy C and the Full Bench thus erred in law and failed to exercise their respective jurisdictions.

2. [58]

   The Police Commissioner submitted that it is:

3. [59]

   The Police Commissioner submitted that the reasoning of both Murphy C and the Full Bench of the IRC misconceived the onus under s 181F(2), and that they conflated the legal onus with a shifting evidentiary onus. The Police Commissioner noted that, either directly or indirectly, the Full Bench in Tredinnick (which was drawn on heavily both by Murphy C and the Full Bench in the current matter) relied upon a line of authority concerned with a different statutory scheme, namely s 181B of the then Police Service Act 1990 (NSW), and where the question of the shifting evidentiary onus was raised in the context of a failure to comply with the necessary procedural requirements (see Bigg v New South Wales Police Service (1998) 80 IR 434 (Bigg); and Oswald v New South Wales Police Service (1999) 90 IR 42 (Oswald)).

4. [60]

   The Police Commissioner submitted that at no stage did the earlier decisions in Bigg and Oswald suggest that the “evidentiary” onus could shift to the Police Commissioner to establish the misconduct and, if they did, they would have the effect of shifting the “legal” onus. The Police Commissioner thus submitted that the suggestion that the “evidentiary burden” can shift to establish the police officer’s misconduct conflates legal and evidentiary burdens, and is contrary to s 181F(2) of the Act, which places the burden “at all times” on the police officer to establish that the removal was harsh, unreasonable or unjust.

5. [61]

   In oral submissions, Mr Kirk reminded the Court of the basal distinction between legal onus and evidential or evidentiary onus, and drew extensively on an article by C R Williams, “Burdens and Standards in Civil Litigation” (2003) 25 Syd Law Review 165, in which the author highlighted the scope for confusion which sometimes arises from this distinction, and preferred to describe what is frequently described as an evidential onus as a “tactical onus”. In this context, Mr Kirk embraced the following observations of Sir Nicolas Browne-Wilkinson VC (as his Honour then was) in Brady (Inspector of Taxes) v Group Lotus Car Cos plc [1987] 2 All ER 674 at 686-687 (Brady) that:

6. [62]

   Mr Kirk accepted, on behalf of the Police Commissioner, that in a s 181E review, notwithstanding the language of s 181F(2), the Police Commissioner could come under a “tactical onus”: see, for example, Henderson v State of Queensland (2014) 255 CLR 1 at [90]; [2014] HCA 52 (Henderson). However, in embracing the observations in Brady, Mr Kirk urged the Court to eschew the language of “evidential burden” and to make it plain, in its reasons for judgment, that its use is not apposite and is apt to generate error when deployed in the context of a s 181E review, especially in circumstances where s 181F(2) emphatically states that the onus rests on the applicant for review “at all times”.

7. [63]

   Mr Kirk’s fundamental submission was that the effect of the reasoning of Murphy C and the Full Bench was to shift and impose the legal burden on the Police Commissioner to establish that Mr Zisopoulos had in fact ingested drugs, the traces of which were found in his hair sample. He particularly fastened upon Murphy C’s statement at [189] that the Police Commissioner had:

8. [64]

   These passages, of course, have to be read in their full context. This is a matter that was emphasised by Mr Hutley on behalf of Mr Zisopoulos and to which it will be necessary to return. On the other hand, Mr Kirk noted that the references to Briginshaw and to the need for “convincing proof” were not appropriate to a discussion of shifting evidentiary or tactical burdens, but was language that was more appropriately used in the context of discharge of a legal burden of proof to a particular standard.

9. [65]

   Mr Hutley pointed to [59] of the Full Bench Decision, where it was recorded that the “findings of [Murphy C] were open to him on the evidence”. Murphy C’s key factual findings were contained in [180] and [187]-[188] of the First Instance Decision, in which he found that the expert evidence demonstrated that external contamination of Mr Zisopoulos’ hair, as a result of handling MDMA and methylamphetamine as part of his duties as a police officer, was at least “as likely” or “more likely” an explanation for the test results of his hair sample, than was ingestion of the drugs by him: see at [43] and [45] above. Murphy C also found, in aspects of his reasons emphasised by the Full Bench in its decision at [30], that:

10. [66]

    Mr Hutley submitted that the Police Commissioner’s argument constituted a de facto challenge to the merits of the decision, and that Murphy C’s statement at [187] that the evidentiary burden may shift to the Police Commissioner did not amount to a reversal of burden that rested on Mr Zisopoulos to establish that his removal was “harsh, unreasonable or unjust”. He submitted that this was simply an observation concerning the practicalities involved in the resolution of competing and shifting evidentiary cases that arise in the course of a contested factual dispute and, in any event, was superfluous and not determinative of the success or failure of Mr Zisopoulos’ application because it was Murphy C’s factual findings which were the basis upon which Mr Zisopoulos ultimately succeeded.

11. [67]

    In oral submissions, Mr Hutley made it clear that there was no argument that the legal burden remained at all times on his client to establish that the Police Commissioner’s decision to remove him from the Police Force was harsh, unreasonable or unjust. Moreover, he said, this was also clearly understood both by Murphy C and the Full Bench in their respective decisions. In this context, he submitted that there was no point or utility in making the declaration sought in prayer 1(a) of the Summons: see [56] above.

12. [68]

    Secondly, he submitted that there was nothing novel or wrong about Murphy C, the Full Bench or the Tredinnick Bench referring to an evidentiary burden, especially when these references were juxtaposed with clear and distinct references to the legal burden remaining on the applicant for relief under s 181E(1) at all times. This distinction was a familiar one regularly drawn by courts and tribunals, including most recently by the High Court in Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715; [2020] HCA 27 at [29], [39], [42] and [66]; see also Henderson at [90]. Reference was also made to Momcilovic v R (2011) 245 CLR 1; [2011] HCA 34 at [665]; Purkess v Crittenden (1965) 114 CLR 164 at 168; [1965] HCA 34; and Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75 at [7]

13. [69]

    The distinction was also referred to by Lord Donaldson of Lymington MR in Amoco Oil Co. v Parpada Shipping Co. Ltd (The “George S.”) [1989] 1 Lloyd’s Law Reports 369 at 370 (Amoco), in a passage cited both in Tredinnick (and in turn picked up by the Full Bench (at [25]) in the present case):

14. [70]

    Picking up the language of Amoco in written submissions, Mr Hutley submitted that there was no error of law on the face of the record, and that the references to evidentiary burden were:

15. [71]

    Thirdly, Mr Hutley submitted that it was hardly surprising or remarkable that the IRC should engage in a discussion of shifting evidential or evidentiary burdens in circumstances where s 181F(1) very deliberately mandated an iterative approach to be followed when conducting a review under s 181E of a removal decision of the Police Commissioner pursuant to s 181D. This was most clearly seen in [28] of the Full Bench Decision, extracted at [50] above.

16. [72]

    Fourthly, he submitted that references to “raising a doubt” were properly to be understood, in context, as raising a sufficient doubt to cast the evidentiary burden on to the Police Commissioner to sustain the basis for his decision to remove Mr Zisopoulos from the Police Force.

17. [73]

    In relation to the passages relied upon by the Police Commissioner in Eaton, Mr Hutley submitted that the observations of Heydon J did not attract the support of the other members of the majority insofar as his Honour had held that “in proceedings under s 181E … the applicant bears the burden of proving that the crime was not committed”, that this observation did not form part of the ratio of the decision, and that to read his Honour’s observation as requiring a removed police officer to disprove the occurrence of the event is “simply unsustainable”.

Consideration: substance or semantics?

1. [74]

   Mr Kirk accepted that if, on a proper reading, the references in the decisions of Murphy C and the Full Bench to evidentiary onus were to nothing more than what Professor Williams had described as the shifting or “tactical” onus (see [61] above), the basis of the appeal largely fell away. Of course, he did not accept that this was the proper reading of the decisions.

2. [75]

   In my view, it is a proper reading, although there are sentences and phrases in both the decision of Murphy C and the Full Bench, as well as Tredinnick which, taken out of context or when read in isolation, might be thought to suggest otherwise. The reasons under challenge must, however, be read as a whole and must be considered fairly: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 29; [1996] HCA 6; Victoria v Commonwealth ("Payroll Tax case") (1971) 122 CLR 353 at 402; [1971] HCA 16; Anchor Products Ltd v Hedges (1966) 115 CLR 493 at 501; [1966] HCA 70; Polyaire Pty Ltd v K-Aire Pty Ltd (2005) 221 CLR 287; [2005] HCA 32 at [50]; Batterham v QSR Limited (2006) 225 CLR 237; [2006] HCA 23 at [20]; R v LK (2010) 241 CLR 177; [2010] HCA 17 at [85].

3. [76]

   Critical to this reading is an appreciation that the Police Commissioner predicated his removal decision on his own satisfaction, to the Briginshaw standard, that Mr Zisopoulos had voluntarily ingested the drugs. He set out his reasoning process and the material and matters upon which he relied in the Reasons. In Briginshaw, Dixon J famously explored the relationship between a standard of satisfaction and the seriousness of the question calling for that satisfaction. In that case, one of adultery in a matrimonial cause, his Honour said (at 368) that:

4. [77]

   As explained at [31]-[32] above, the Police Commissioner was not obliged by statute to satisfy himself to the standard he prescribed but, having done so, he exposed himself to an attack on his decision by reference to the very standard of satisfaction he set himself.

5. [78]

   The point is thus not that the Police Commissioner had a Briginshaw standard to meet either under s 181D or on a review of a s 181D decision under s 181E. Rather it is that, having predicated his removal decision on satisfaction to that standard, if the IRC, on review, reached the conclusion that the Police Commissioner could not have been so satisfied in light of the material in evidence before it, it is not difficult to understand how a conclusion that the removal decision was harsh, unreasonable or unjust could be warranted or justified.

6. [79]

   Such a conclusion could be arrived at, moreover, without the removed officer necessarily needing to establish “not X”, where the Police Commissioner predicated his decision on the existence of “X”. If, for example, as in the present case, the Police Commissioner not only predicated his decision on X being the case on the balance of probabilities but also on being “comfortably satisfied that X was the case” given the seriousness of X, and the IRC concluded that he could not have been comfortably satisfied that X was the case, a finding that the removal was harsh, unreasonable or unjust would, at the very least, be open. Questions of degree may be involved.

7. [80]

   Plainly, if the removed officer in fact convinced the IRC, on the balance of probabilities or even beyond reasonable doubt, that X was not the case, the more likely the conclusion could be reached that a removal based on X was harsh, unreasonable or unjust. The Full Bench made the same point at [46]: see [54] above.

8. [81]

   Equally if, in his Reasons, the Police Commissioner had expressed the opinion that the strong possibility (falling short of “on the balance of probabilities”) that a police officer had done or been involved in X caused him to lose confidence in the officer, then demonstrating that the Police Commissioner could not have been comfortably satisfied of X would not, for that reason, result in a conclusion that the removal was harsh, unreasonable or unjust because the predicate of the Police Commissioner’s decision would not necessarily have been undermined. (Whether the existence of a strong possibility or a reasonable or strong suspicion would be sufficient to warrant removal so as to survive a s 181E review may depend on the context, as the example given in [32] above illustrates).

9. [82]

   The central issue will always be whether or not the decision to remove the officer was “harsh, unreasonable or unjust”. These concepts overlap but are not synonymous. The three criteria may be established in various ways or by different means. And they are alternatives. So much is illustrated in the following well known passage taken from the joint judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; [1995] HCA 24:

10. [83]

    The nuanced nature of a s 181E review based upon the statutory criteria of harsh, unreasonable or unjust is one that the legislature has entrusted to a specialist tribunal in the form of the IRC. The IRC’s review is not “de novo” but, on the other hand, as Mr Kirk accepted in oral argument, is closer to a merits review than judicial review. Assessment as to whether a particular decision of the Police Commissioner engages the statutory criteria necessarily must have regard to the basis and reasoning employed by the Police Commissioner in any given case.

11. [84]

    Depending upon the basis of the Police Commissioner’s decision, as the Full Bench said at [27] citing Starr, the burden of establishing that a decision to remove a police officer is harsh, unreasonable or unjust may be satisfied in a given case by casting sufficient doubt on the Police Commissioner’s reasoning process so as to justify the IRC’s intervention. But it is important always to remember that “sufficient doubt” is not “any doubt”, and the raising of a doubt, sufficient or otherwise, does not in any way alter or affect the legal burden which lies on the removed police officer to demonstrate that his or her removal was harsh, unreasonable or unjust. So also, the mere “going into evidence” by, or the raising of an alternative hypothesis on behalf of, a removed police officer will not per se establish that a removal was harsh, unreasonable or unjust nor will it place an evidentiary or tactical burden on the Police Commissioner to justify his original decision to remove the officer. Whether or not it does will be a function of the basis of the Police Commissioner’s original decision and of the strength of the evidence led by the removed officer and or the credibility of the alternative hypothesis.

12. [85]

    If what the Full Bench in the present case referred to as “sufficient doubt” is raised by the removed officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of evidence before the IRC, namely that the impugned removal decision was harsh, unreasonable or unjust.

13. [86]

    In Starr, it was said (at [176]) in a passage to which the Full Bench lent emphasis at [27] of its reasons:

14. [87]

    The decisions in Starr, Tredinnick and of Murphy C and the Full Bench all distinguish very clearly between legal burden and evidentiary burden. In none of those decisions was s 181F(2) ignored or overlooked. Rather, a familiar distinction was drawn between legal and evidentiary onus: see the cases referred to at [68]-[69] above.

15. [88]

    It may very well be, as Mr Kirk submitted and as Wright J suggests, echoing the observations in Brady, that the use of phrases such as “evidentiary onus” is best avoided to minimise the scope for confusion of analysis (and applications for judicial review in this area). In its endorsement of Starr as to the process by which a s 181E review is to be considered (see [50] above), it is notable that the Full Bench “stripped [the passages cited from Starr] of the technical expressions of legal and evidentiary burdens” in giving its explanation: see at [28] of the Full Bench Decision.

16. [89]

    Neither Murphy C nor the Full Bench either said or expressed the view that the Police Commissioner had any legal burden, whether at the outset of the s 181E review or during its course. Their reasons disclose that they were well aware of the fundamental distinction between legal and evidentiary burdens. Their reference to the Briginshaw standard is to be understood not by reason of the fact that there was some conflation of legal and evidentiary onus, as Mr Kirk submitted, but by reason of the fact that that was the standard that the Police Commissioner had himself set for his own decision making. It was a standard which both Murphy C and the Full Bench held was not satisfied on the material before Murphy C. What this meant was fundamental, namely that an important underlying basis for the removal decision was rendered insecure in a material way. That fact then informed Murphy C’s conclusion as to the nature of the decision to remove Mr Zisopoulos, namely that it was harsh, unreasonable or unjust.

17. [90]

    Murphy C held that the Police Commissioner’s conclusion that the Briginshaw standard had been met was unsound, both because the Police Commissioner had been mistaken as to the frequency and recency of Mr Zisopoulos’ environmental exposure to the drugs, and by reason of what Murphy C described at [188] as “expert evidence” that “weighs heavily in favour of the applicant’s explanation of environmental contamination as the cause of the positive test result of his hair sample” (noting that there was additional factual and expert evidence admitted in the proceedings before Murphy C than had been before the Police Commissioner at the time of his removal decision, order and Reasons.) The Full Bench also noted (at [43]) that “[a] significant body” of the evidence before Murphy C “cast doubt on the reliability of the [Police Commissioner’s] conclusion.” This was not speculative, as the Police Commissioner had submitted before Murphy C, but was the subject of his findings which were in turn picked up and explained by the Full Bench.

18. [91]

    Murphy C’s finding at [180] to the effect that it was “at least as likely, or more likely” that Mr Zisopoulos’ hair test results were explicable by external contamination has been noted at [43] above. In relation to this, the following written submission accurately captures the essence of the approach taken by Murphy C which did not, in my opinion, amount to a conflation of legal and evidentiary onus. Mr Zisopoulos’ submission was that:

19. [92]

    The Full Bench, likewise, did not speak in terms of the Police Commissioner having failed to establish a matter but, rather (at [30]), to the evidence before the Police Commissioner, including the expert evidence, not reaching the standard that the Police Commissioner had set for himself. As the Full Bench said at [46], extracted at [54] above, Mr Zisopoulos led “sufficient evidence to cast doubt on the factual findings on which the [Police Commissioner’s] decision was based”. The “requisite standard” to which the Full Bench then referred at [46] was the standard the Police Commissioner had set himself, both in the Section 181D Notice and in the Reasons.

20. [93]

    For these reasons, as well as the arguments set out at [65]-[73] above which I accept, the Full Bench was correct not to interfere with Murphy C’s decision and its own decision does not disclose error.

Conclusion

1. [94]

   For these reasons, I do not consider that the decisions of either Murphy C or the Full Bench are affected by jurisdictional error, and I would dismiss the Summons with costs.

2. [95]

   MACFARLAN JA: I agree that, for the reasons given by Bell P, the summons should be dismissed with costs. I add the following observations.

3. [96]

   I agree with Bell P that the better view of the judgments under review is that in referring to an evidential onus passing to the Police Commissioner as a result of the evidence called in Mr Zisopoulos’ case being adduced, Murphy C and the Full Bench were referring to the “tactical onus” described by Sir Nicolas Browne-Wilkinson VC in Brady (Inspector of Taxes) v Group Lotus Car Cos plc [1987] 2 All ER 674 at 686-7 (see the passage quoted in [61] above), that is, a practical burden to adduce further evidence because the other party has produced enough evidence to win if that does not occur.

4. [97]

   As stated in J D Heydon, Cross on Evidence (online ed, March 2020, LexisNexis Australia) at [7210] this type of burden is “devoid of legal significance because there is no means of telling when it has been brought into existence or when it has been discharged”. This is because those conducting a case will not know whilst the case is in progress what the judicial officer is thinking about who will win if no further evidence is adduced. There is good reason therefore to avoid reference to the concept during a hearing. If reference is to be made to it in a judgment describing, in retrospect, the course that the hearing took, a name, such as “tactical onus”, should be used to preclude ambiguity.

5. [98]

   It can be confusing to describe the concept as the “evidential onus” as that term refers instead to the distinct concept of an onus of introducing evidence. That onus arises when a case will be decided without consideration of a particular issue unless the party upon whom the evidential onus rests adduces some evidence to require the party bearing the legal burden of proof to address it (see for example Purkess v Crittenden (1965) 114 CLR 164 at 168; [1965] HCA 34 and Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [52]). An example given in Purkess v Crittenden is that:

6. [99]

   An evidential onus in this sense might arise in situations such as that dealt with in the judgments under review if the Police Commissioner dismissed an officer on the basis of reason A. There would not, without more, be any need for the officer to address possible reason B in discharging his or her legal onus of demonstrating that the dismissal was harsh, unreasonable or unjust. If the Police Commissioner wanted to rely on reason B (assuming, without deciding, that a new ground could be relied on) he or she would have to adduce some evidence sufficient to require the officer to address it.

7. [100]

   WRIGHT J: For the purposes of what follows I gratefully adopt the definitions and procedural, factual and legislative background as well as the summary of the parties’ submissions set out in the President’s reasons and do not repeat them here.

Ground of review

1. [101]

   The Police Commissioner’s summons for judicial review identified the ground relied upon to establish jurisdictional error by the IRC essentially as follows:

   1. (1)

      the effect of the reasoning of Murphy C, at first instance, and of the Full Bench, on appeal, was:

   2. (2)

      this is contrary to the terms of s 181F(2) of the Police Act and to a proper understanding of the notion of a legal burden of proof and persuasion and an “evidential burden”; and,

2. [102]

   Given the nature of this ground of review, it is appropriate first to consider the reasons of Murphy C to determine whether or not the effect of those reasons was to place a relevant burden of proof and persuasion on the Police Commissioner. If so, it will be necessary then to consider whether this effect was contrary to s 181F(2). If Murphy C’s approach was affected by such an error, it will be necessary to determine whether the error, if any, amounted to jurisdictional error. Since the Full Bench held that Murphy C’s reasons were not relevantly erroneous, the Full Bench’s reasons may be able to be dealt with more shortly.

The reasoning of Murphy C

1. [103]

   Murphy C commenced his reasons, Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011, by referring to the Police Commissioner’s removal order and Mr Zisopoulos’s review proceedings under s 181E of the Police Act, at [1]. At [2], he quoted the following passage from the Police Commissioner’s reasons for the order:

2. [104]

   After giving some background to Mr Zisopoulos’s drug testing, identifying the expert drug evidence before the Police Commissioner and quoting relevant portions of the Police Commissioner’s reasons concerning the test results, at [3] to [9], Murphy C noted again (at [10]) the Police Commissioner’s finding that Mr Zisopoulos consumed a prohibited drug. Then, he observed the following as to Mr Zisopoulos’s case before the IRC, at [11]:

3. [105]

   These paragraphs indicate that Mr Zisopoulos’s case on review depended, at least in part, on the factual propositions that:

   1. (1)

      Mr Zisopoulos had not “consciously consumed illicit drugs”; and

   2. (2)

      the positive hair test results “could only be explained by environmental contamination”.

4. [106]

   Murphy C then went on to quote various legislative provisions and gave non-contentious background, at [12] to [19], and noted the requirements of s 181F(1) of the Police Act as to how the IRC was required to proceed on the application before him, at [20].

5. [107]

   Reflecting the sequential process specified in s 181F(1) to be adopted in a review under s 181E, Murphy C then considered the Police Commissioner’s reasons for the decision to remove Mr Zisopoulos, as provided in s 181F(1)(a), under the heading “Respondent’s Statement of Reasons”. To this end, Murphy C (at [21]) quoted portions of the Police Commissioner’s reasons for the removal order.

6. [108]

   Next, under s 181F(1)(b), the IRC was required to consider the case presented by Mr Zisopoulos as to why his removal was harsh, unreasonable or unjust. Murphy C outlined that case at [22] to [58] under the heading “Case presented by the applicant”.

7. [109]

   At [23], it was noted that Mr Zisopoulos relied upon his earlier response to the Police Commissioner’s notice under s 181D(3)(a). That response had included matters such as: his exemplary career up to the time of the positive drug test; how his medication accounted for the non-negative urine test result which had led to his being required to provide a hair sample; his being suspended with pay due to “a positive drug test”; and, his declining to be interviewed on legal advice and because he had not been provided with a report explaining what the drug test results meant. None of those matters were apparently in dispute.

8. [110]

   In addition at [23], Murphy C noted that the earlier response had raised the following matters:

9. [111]

   At [24], Murphy C noted that Mr Zisopoulos:

10. [112]

    The statement of Mr Zisopoulos’s case referred to by Murphy C in these paragraphs did not include propositions: that the positive hair test results were capable of being interpreted as being caused by environmental contamination of the hair by those substances; or that such external contamination could not be ruled out.

11. [113]

    The matters in par [11], subpars [23](6) to (11) and par [24] of Murphy C’s reasons, set out above, indicate that Mr Zisopoulos’s case depended upon:

    1. (1)

       the proposition that the testing or the test results were invalid because of a failure to comply with the relevant requirements of the Police Regulation; and

    2. (2)

       the factual propositions that Mr Zisopoulos had not “consciously consumed illicit drugs” and the positive result “could only be explained by environmental contamination”.

12. [114]

    That these factual propositions encapsulated the essence of Mr Zisopoulos’s case is confirmed by his contention, recorded at [25], that “had he knowingly taken illicit substances, he would have resigned from his position long before being issued with a section 181D(3)(a) Notice”.

13. [115]

    At [26] to [28], Murphy C referred in general terms to some of the evidence relied upon by Mr Zisopoulos. At [29] to [51], he recorded in more detail some evidence of a number of witnesses. It can be summarised as follows:

    1. (1)

       Sgt Allison’s evidence, at [29] to [32]: This was a description of “the typical operational arrangements for handling of prohibited drugs at Newtown LAC” where Mr Zisopoulos was posted from 2001 to 2015 and his general evidence of police officers coming into contact with drugs especially in inner city locations such as Newtown. It was noted that Sgt Allison was not cross examined but no findings were made by Murphy C at this point based on that evidence.

    2. (2)

       Dr Robertson’s evidence, at [33] to [42]: He was a consulting pharmacologist, forensic toxicologist and chemist who provided three reports which were in evidence before Murphy C. At [39] it was said:

    3. (3)

       Dr Fu’s evidence at [43] to [51]: He was an Associate Professor at the School of Mathematical and Physical Science, University of Technology, Sydney with experience in drug testing for therapeutic and illicit drugs in biological fluids, including drug testing of hair. Murphy C quoted portions of Dr Fu’s reports including his concluding comments of his last report:

    4. (4)

       Mr Farrar’s evidence at [52] to [58]: He was a consultant forensic pharmacologist who was a private consultant and was then currently engaged under contract by the Clinical Forensic Medicine Unit of the NSW Police. Murphy C noted that Mr Farrar’s first two reports had been provided to the Police Commissioner before the removal order was made and his third report was prepared for the purposes of the IRC proceedings. The following conclusions in Mr Farrar’s third report were quoted by Murphy C:

14. [116]

    From Murphy C’s summary of the evidence led in support of Mr Zisopoulos’s case, it can be seen to be focused on the issue that Mr Zisopoulos had not ingested the drugs and the positive result could only be explained by contamination.

15. [117]

    Reflecting the third step referred to in s 181F(1)(c), Murphy C then summarised (at [59] to [119]) the case presented by the Police Commissioner in answer to Mr Zisopoulos’s case, under the heading “Case presented by the respondent”.

16. [118]

    After some introductory comments, Murphy C recorded at [61] to [65] evidence from Ms Donovan and Ms Abadir concerning random drug testing at Newtown LAC which included the relevant testing of Mr Zisopoulos. It was noted that these witnesses were not required for cross-examination.

17. [119]

    Next Murphy C recorded in more detail at [66] to [98] the evidence of experts called by the Police Commissioner in relation to the drug testing and results as follows:

    1. (1)

       Mr Grabowski’s evidence at [66] to [75]: He was a senior forensic scientist at Forensic Sciences SA (FSSA) with experience in analytical chemistry. It was noted that Mr Grabowski gave evidence concerning FSSA and related matters including that FSSA was NATA accredited to conduct, among other things, hair testing and how he conducted the testing of the hair in this case. Murphy C quoted a portion of Mr Grabowski’s original toxicology report, which was said to be relevantly the same as a subsequent replacement report, that:

    2. (2)

       The evidence of Ms Lindsay at [76] to [84]: She was a senior forensic scientist at FSSA and gave evidence as to accreditation and the absence of specific Australian and New Zealand standards for hair testing. Murphy C recorded that Ms Lindsay conducted further testing on Mr Zisopoulos’s hair that had been received by FSSA. He quoted from her report of 18 August 2016 including her conclusion which said, inter alia:

    3. (3)

       The evidence of Ms Kenneally at [85] to [88]: Ms Kenneally was a senior forensic scientist at FSSA and gave evidence as to accreditation and hair testing training and peer reviewing. It was noted that she had peer reviewed Mr Grabowski’s and Ms Lindsay’s testing and analysis of the hair samples and did not identify any relevant issues with either analysis. Murphy C also noted that she was not required for cross examination but made no findings based on her evidence at this stage.

    4. (4)

       The evidence of Mr Kostakis at [89] to [94]: He was the Manager – Toxicology at FSSA and he also gave evidence of accreditation and procedures at FSSA. Murphy C recorded that Mr Kostakis peer reviewed Mr Grabowski’s replacement report and Ms Lindsay’s draft toxicology report and was satisfied with the contents. It was also noted that Mr Kostakis provided a scientific paper and gave evidence as to hair sample washing techniques as well as agreeing in cross examination with a proposition from a different scientific paper that “hair samples are highly susceptible to external contamination”. No findings based on this evidence were made at this stage.

    5. (5)

       The evidence of Mr Stockham at [95] to [98]: He was the Principal Scientist at FSSA and gave evidence as to accreditation and management of samples at FSSA. It was recorded that he had no issues with compliance with FSSA policies in this case. He was not required for cross examination. No findings based on this evidence were made at this stage.

18. [120]

    Murphy C then summarised at [99] to [104] the evidence of a number of witnesses from the NSW Police Force, Mr Dawes, Mr Leechburgh Auwers and DSC Kiernan, concerning the exposure or possible exposure of Mr Zisopoulos to MDMA or methylamphetamine/amphetamine while carrying out his duties at Newtown LAC between October 2014 and April 2015. In addition, DSC Kiernan conducted the initial investigation into the allegations against Mr Zisopoulos and prepared an investigation report which found that illicit drugs had been used by Mr Zisopoulos. It was recorded that, in cross examination, DSC Kiernan accepted that Mr Zisopoulos was on duty on 12 days between October 2014 and April 2015 when MDMA or methylamphetamine/amphetamine were accepted at Newtown LAC. No findings based on this evidence were made at this stage.

19. [121]

    The reasons of Murphy C next referred to the evidence of Mr De Filippis, a project officer of the NSW Police Force Drug and Alcohol Unit who had co-authored a number of articles concerning, inter alia, the presence of illicit drugs in police stations and the implications for drug testing. A paper co-authored with Mr Doran was quoted by Murphy C but once again no findings were made.

20. [122]

    Finally, in reviewing the Police Commissioner’s case, Murphy C referred, at [116] to [119], to the evidence of Dr Lewis, a consultant toxicologist, who had provided a report for DSC Kiernan’s investigation on 8 March 2016. Portions of that report were quoted. In addition, a portion of Dr Lewis’s later report prepared for the purposes of the IRC proceedings was quoted as follows:

21. [123]

    Murphy C also set out passages from Dr Lewis’s cross examination which included acceptance by him of the fact that he did not say in either of his reports that it was “absolutely impossible that the result was explicable on the basis of environmental exposure” and said that “while not impossible, in this particular matter it [contamination] would have been unlikely”. In addition to cross examination concerning the washing of hair samples, the following passage was also quoted:

22. [124]

    Murphy C did not make any findings based on his review of the expert and other evidence at this point.

23. [125]

    Under the heading “Submissions of the applicant”, Murphy C summarised Mr Zisopoulos’s submissions. At [120], he quoted pars 18 to 26 of Mr Zisopoulos’s written submissions. These contended, inter alia, that his removal was harsh, unreasonable or unjust for the following reasons:

24. [126]

    The submissions elaborating on those contentions were then summarised at [121] to [130].

25. [127]

    Murphy C recorded at [131] the following submissions concerning the cause of the drug test results:

26. [128]

    At [133], Murphy C quoted what Mr Zisopoulos submitted were “conclusions available on the evidence” but appear also to include argument and submission:

27. [129]

    On a review of Murphy C’s summary of Mr Zisopoulos’s submissions, it is apparent that he did not understand that Mr Zisopoulos was putting his case that his removal was harsh, unreasonable or unjust on the basis that: (a) it was not open for the Police Commissioner to be comfortably satisfied on the balance of probabilities, either on the evidence before him or on the evidence before the IRC, that Mr Zisopoulos had voluntarily consumed the prohibited drugs; or (b) that the evidence before the Police Commissioner, including the expert evidence, did not reach the standard that the Police Commissioner had set for himself in his reasons. These were not the “errors in reasoning” relied upon by Mr Zisopoulos.

28. [130]

    When outlining the Police Commissioner’s submissions under the heading “Submissions of the respondent”, Murphy C, at [134] limited himself to quoting passages from the Police Commissioner’s written submissions, including:

29. [131]

    At [135], Murphy C noted that the Police Commission’s submissions “then proceeded to rebut much of what was put on behalf of [Mr Zisopoulos]” and quoted the concluding paragraphs 195 to 197 of the Police Commissioner’s written submissions.

30. [132]

    After referring at [136] to [138] to some submissions in reply which covered much the same ground as the original submissions, Murphy C recorded the following, under the heading “Applicant’s submissions in reply”:

31. [133]

    This submission was difficult to reconcile with what Murphy C had recorded at [11] namely that:

32. [134]

    Perhaps in light of the submission recorded at [139], Murphy C’s reasons then contained a section under the heading “Onus of proof”.

33. [135]

    The section under the heading “Onus of proof” consisted of [140] to [142]. At [140], Murphy C stated that s 181F(2) of the Police Act “makes it clear that [Mr Zisopoulos] bears the burden of establishing that his removal from the NSWPF was harsh, unreasonable or unjust”.

34. [136]

    He then quoted at [141] a lengthy passage from the decision of the Full Bench of the IRC in Tredinnick v Commissioner of Police [2016] NSWIRComm 14.

35. [137]

    Murphy C’s conclusion on the topic of onus of proof was at [142] as follows:

36. [138]

    From this passage, it is clear that on Murphy C’s understanding of the review before him it involved, at least, the Police Commissioner having a burden of establishing “that fact”, namely that Mr Zisopoulos consumed prohibited drugs. This observation in [142] sheds light on Murphy C’s later reasoning at [187] to [190].

37. [139]

    The next sections in the reasons contain Murphy C’s consideration and findings concerning the bases upon which Mr Zisopoulos put his case, under two sections headed:

    1. (1)

       “Legislative requirements regarding the taking of hair samples” – [143] to [149]; and

    2. (2)

       “Was the removal of the applicant harsh, unreasonable or unjust?” – [150] to [190].

38. [140]

    In this section of his reasons, Murphy C made findings concerning the certificate of appointment of Ms Abadir to take the hair sample, at [143], and the timing and effect of the sample being divided into two approximately equal portions, at [145] and [148]. Based on those findings and the application of the relevant statutory provisions, Murphy C expressly rejected Mr Zisopoulos’s submissions that:

    1. (1)

       Ms Abadir was not authorised to conduct hair sampling of police officers: at [143];

    2. (2)

       the testing of Mr Zisopoulos’s hair sample was rendered invalid due to Ms Abadir’s apparent failure to follow strictly the collection process set out in cl 92 of the Police Regulation 2008: at [145]; and

    3. (3)

       the test results were invalid as a consequence of non-compliance with cl 92: at [149].

39. [141]

    These conclusions have not been challenged by Mr Zisopoulos in any subsequent proceedings.

40. [142]

    Murphy C commenced this part of his analysis by considering the Police Commissioner’s reasons.

41. [143]

    It was noted at [150] that, in essence, the reason for the removal was that the Police Commissioner concluded that, despite denials, Mr Zisopoulos had voluntarily consumed prohibited drugs, namely, MDMA and methylamphetamine.

42. [144]

    At [151], it was recorded that the review by the IRC was conducted on the undisputed basis that the Police Commissioner “has the absolute right to remove from the NSWPF any officer who voluntarily consumes prohibited drugs”. This confirms that Mr Zisopoulos was not contending that, even if he had voluntarily consumed the drugs, his removal was otherwise harsh, unreasonable or unjust.

43. [145]

    Murphy C went on to observe, however, that the Police Commissioner “also has the responsibility to ensure that the evidence upon which such a removal is based is sufficiently probative to support such decision”. This proposition is no doubt correct, to the extent that it reflects the observation in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (Byrne) at 465; [1995] HCA 24 that:

44. [146]

    In other words, Murphy C could have found that the removal was unreasonable if the Police Commissioner’s conclusion that Mr Zisopoulos had voluntarily consumed illicit drugs was not reasonably open on the material before the Police Commissioner, if that had been the case put forward by Mr Zisopoulos in the s 181E(1) review.

45. [147]

    At [152] to [155], Murphy C referred to some of the material before the Police Commissioner but, at [156], simply noted that “despite the expert agreement regarding external contamination, [the Police Commissioner] preferred the evidence of Dr Lewis and Ms Lindsay that the applicant’s test results were ascribable to one-off or occasional use of the two prohibited drugs”.

46. [148]

    Significantly, Murphy C did not find, explicitly or implicitly, that the Police Commissioner’s conclusion was not open on the material before the Police Commissioner. This is not surprising since:

    1. (1)

       there was expert evidence supporting that conclusion from Dr Lewis, inter alios, and the “expert agreement regarding external contamination” referred to by Murphy C was only, for example, that recent external contamination “cannot be completely excluded” (in Ms Lindsay’s words quoted by Murphy C at [153]); and

    2. (2)

       Mr Zisopoulos did not put his case on the basis that the removal was harsh, unreasonable or unjust because the Police Commissioner’s conclusion was not open on the material before the Police Commissioner or even on the material before the IRC.

47. [149]

    Next, Murphy C considered Mr Zisopoulos’s exposure to drugs at work, at [157] to [162], in light of the material before the IRC.

48. [150]

    Murphy C rejected the Police Commissioner’s submission that the IRC would need to be satisfied that Mr Zisopoulos came into actual contact rather than possible contact with the two prohibited drugs. In this regard, Murphy C made the positive finding that he was:

49. [151]

    It can be noted that Murphy C was apparently not prepared to find, on the material before him, that Mr Zisopoulos had actually come into contact with the illicit drugs, only that it was “likely” that he had. The relevance of this latter finding was not explained by Murphy C nor did he explain how contamination could occur without actual, as opposed to likely, contact.

50. [152]

    Murphy C’s finding in relation to the “strongly disputed issue” before him as to the effectiveness or otherwise of the washing of the hair sample in the present case is, at [163], as follows:

51. [153]

    In this context, the opinion of Ms Lindsay that “recent external contamination cannot be excluded” was once again quoted at [164].

52. [154]

    At [165] to [167], Murphy C provided another summary of expert scientific evidence before him from some, but not all, of the expert witnesses. In doing so, he did not make any findings based on that evidence nor did he give any explanation as to why he preferred some of the expert’s opinions over other experts’ opinions.

53. [155]

    Murphy C then said at [168] that he would deal with each of the matters set out in the summary of the Police Commissioner’s case, as contained in the written submissions.

54. [156]

    In doing so, Murphy C made the following findings or expressly stated that he accepted certain evidence. At [169], he explicitly said that he accepted:

55. [157]

    At [170] (and similarly at [178] and [180]), Murphy C stated, without explaining why, that he accepted the following expert opinions:

56. [158]

    Murphy C’s stated acceptance of all of these opinions presents a difficulty. The opinions which are said to be accepted are in some cases manifestly inconsistent with one another and, in other cases, the opinions that environmental contamination “cannot be ruled out” or “cannot be excluded” are implicitly inconsistent with environmental contamination being “the most likely cause”. Consequently, purporting to accept all of them involves illogicality and might be characterised as unreasonable, in the sense of being inconsistent with rational processes. In Murphy C’s reasons, there was no express or implied attempt to explain why some expert opinions were rejected and others accepted, or to reconcile the opinions or to explain how all of the opinions he said he accepted could be accepted at the same time without illogicality.

57. [159]

    At [173], Murphy C:

    1. (1)

       noted that it was not in issue that Mr Zisopoulos’s hair sample tested positive for MDMA and methylamphetamine but the “issue is whether those test results were due to voluntary ingestion of the drugs by the applicant or environmental contamination of his hair”;

    2. (2)

       made a finding that “external contamination cannot be excluded as a cause of the positive results in this case”; but

    3. (3)

       did not make any finding on the issue identified, namely whether the test results were due to voluntary ingestion of the drugs by the applicant or environmental contamination of his hair.

58. [160]

    At [176], Murphy C found as follows:

59. [161]

    It can be noted that Murphy C did not find that there was any specific occasion where Mr Zisopoulos actually handled the drugs so as to come into contact with them.

60. [162]

    At [180], Murphy C said that the evidence of the expert witnesses, that he accepted, “demonstrated” that external contamination was:

    1. (1)

       “more than a theoretical possibility”;

    2. (2)

       “at least as likely … an explanation for the test results”; or

    3. (3)

       “more likely, an explanation for the test results”.

61. [163]

    If the evidence which was quoted and said to have been accepted at [169] and [170] is the basis for the assertion in [180], this appears not to be an entirely accurate summary of the quite nuanced opinions expressed by some of the experts. Further and in any event, at [180], Murphy C was only rejecting the Police Commissioner’s submission that Mr Zisopoulos’s case “invites an admixture of theoretical possibility, speculation and surmise”. Murphy C was not making any factual findings as to the whether the test results were due to voluntary ingestion of the drugs by the applicant or environmental contamination of his hair. If he had been, he would have explained why he rejected the expert evidence which was not consistent with such a finding. This he did not do, at this point or anywhere else in his reasons.

62. [164]

    Without making further findings, Murphy C then turned to what he called the “evidentiary burden”. The section headed “The evidentiary burden” comprised [181] to [190]. In this section, Murphy C reasoned to his ultimate conclusion that the removal of Mr Zisopoulos was harsh, unreasonable or unjust.

63. [165]

    After quoting passages from both the Full Bench’s decision and the first instance decision in Tredinnick, at [181] to [185], and pointing out how that case was different from the present case at [185], Murphy C turned to the circumstances of Mr Zisopoulos’s case at [186].

64. [166]

    At [186], Murphy C once again summarised some of the expert opinions, which, as has been noted, were far from consistent with one another, concerning what he described as Mr Zisopoulos’s “innocent explanation for his positive test result” in the following way:

65. [167]

    Murphy C then reasoned as follows, in relation to the parties’ respective cases and evidence presented to the IRC:

    1. (1)

       Mr Zisopoulos had led “sufficient evidence to cast doubt on the [Police Commissioner’s] finding of misconduct”: [187];

    2. (2)

       “the expert evidence weighs heavily in favour of [Mr Zisopoulos’s] explanation of environmental contamination as the cause of the positive test result of his hair sample”: [188];

    3. (3)

       the Police Commissioner “has not satisfied the evidentiary burden of proving, on the balance of probabilities, but adopting the approach to the assessment of the evidence espoused by Dixon J in Briginshaw v Briginshaw ([1938] 60 CLR 336), that the applicant used prohibited drugs, namely, MDMA and methylamphetamine”: [189]; and

    4. (4)

       “It follows that I find that the removal was harsh, unreasonable and unjust”: [190].

66. [168]

    As a consequence, Murphy C ordered that Mr Zisopoulos be reinstated.

67. [169]

    The reasoning in [187] to [190], when considered in the context of the reasons as a whole, causes me substantial concern. Up to this point in the reasons, Murphy C had not made a finding that the positive test results were due to contamination not ingestion, which was a relevant and important issue in the case presented by Mr Zisopoulos, as Murphy C identified at [173]. Further, the expert opinions referred to at [186] that contamination was a “feasible”, or an “’unlikely’ but not ‘impossible’” explanation for the positive drug test results, or was an explanation that “cannot be excluded”, or was “equally as likely as occasional use of the drugs”, do not provide a sufficient foundation upon which Mr Zisopoulos could establish “his strenuous denial that he consciously consumed illicit drugs and … a case that the positive results from the testing of his hair could only be explained by environmental contamination” referred to at [11]. Moreover, Murphy C did not make any explicit finding at [186] or [188] in this regard based on the evidence of Dr Fu and Mr Farrar. Nor did he explain, even at this point, whether or why he rejected the other expert opinions which were to the contrary or were not entirely consistent with the opinions of Dr Fu and Mr Farrar. On a fair reading of the reasons, it cannot be concluded that he made an implicit finding in that regard.

68. [170]

    At [187], Murphy C accepted that Mr Zisopoulos bore “the burden of establishing that his removal was harsh, unreasonable or unjust” but then referred to “the evidential burden” shifting to the Police Commissioner. An “evidential” or “tactical” burden may have shifted during the hearing when evidence was being adduced. However, after all of the evidence was adduced and the respective cases were closed, such a burden to lead evidence was no longer relevant. At this point in his reasons, Murphy C’s task included, most importantly, making findings, based on all the evidence before the IRC, as to whether Mr Zisopoulos’s removal was harsh, unreasonable or unjust because his positive drug test results were caused by external contamination not misconduct, which was a significant part of Mr Zisopoulos’s case.

69. [171]

    Unfortunately, no findings as to that issue were made. The statement at [188] that “the expert evidence in the present matter weighs heavily in favour of the applicant’s explanation of environmental contamination as the cause of the positive test result of his hair sample” falls short of a finding on that issue. Such a finding would, at least, have required an analysis of which of the experts’ various, inconsistent opinions should be rejected and why and which should be accepted and why. That was not done. No finding was made, on the balance of probabilities, at [188] or elsewhere that Mr Zisopoulos’s positive test results were due to contamination not ingestion.

70. [172]

    In this portion of his reasons, Murphy C’s only actual “finding” was in [189] where it was said:

71. [173]

    That “finding”, such as it was, was not directly relevant to Mr Zisopoulos’s case that the positive drug test results were due to contamination.

72. [174]

    In order to reach a properly informed view as to the Murphy C’s reasoning process, it is important to identify what paragraphs [187] to [190] did not concern.

73. [175]

    The language and expression of the reasoning at [187] to [190], in the context of the reasons as a whole, demonstrate that this reasoning does not relate to the Police Commissioner’s state of satisfaction on the balance of probabilities referred to in his statement of reasons in support of the removal order. In fact, the effect of the evidence before the Police Commissioner had been considered by Murphy C earlier in his reasons at [150] to [155], where it was noted that the Police Commissioner had preferred the evidence of Dr Lewis and Ms Lindsay that the applicant’s test results were ascribable to one-off or occasional use of the two prohibited drugs. In those paragraphs of Murphy C’s reasons, the removal was not found to be harsh, unreasonable or unjust on that basis, no doubt because the Police Commissioner’s finding was clearly open. In these circumstances, at [187] to [190], Murphy C, was not addressing whether the Police Commissioner’s conclusion was reasonably open on the material before the Police Commissioner. Furthermore, the terms of [187] to [190] do not support the contention that Murphy C reached the conclusion that the Police Commissioner could not have been satisfied, to the standard referred to in the Police Commissioner’s reasons, on the basis of the material before Murphy C. No such case was presented by Mr Zisopoulos. The Police Commissioner was not required to respond to such a case. As a result, it is not surprising that no such finding on that issue was made by Murphy C, at [187] to [190] or elsewhere in his reasons.

74. [176]

    Murphy C was not, at [187] to [190], considering whether the removal was harsh, unreasonable or unjust because the Police Commissioner had set a standard of proof for himself in his statement of reasons which, on the material before IRC, Murphy C found was not met. This was not part of the case that Mr Zisopoulos had presented, in accordance with s 181F(1)(b). Murphy C’s language at [187] to [190] does not indicate that this is the case he was considering. Further and in any event, it is far from clear that a removal would be harsh, unreasonable or unjust simply on the basis that the IRC reached, having regard to different evidence, a different view on a relevant factual matter from the Police Commissioner, if on the evidence before the IRC it was open to reach the same conclusion that the Police Commissioner had reached in his statement of reasons. Neither the Police Commissioner nor Mr Zisopoulos made, or was required to make, submissions on such an issue before Murphy C since it never arose before him.

75. [177]

    Nor does the reasoning at [187] to [190] relate to Mr Zisopoulos’s contentions that his removal was harsh, unreasonable or unjust because: Ms Abadir was not authorised to conduct hair sampling; the testing of his hair sample was invalid; or, the results were invalid because of failure to comply with relevant legislative requirements. Those parts of Mr Zisopoulos’s case were dealt with and rejected by Murphy C at [143], [145] and [149].

76. [178]

    The remaining basis on which Mr Zisopoulos contended that his removal was harsh, unreasonable or unjust, which was under consideration by Murphy C at [186] to [190], was identified by Murphy C at [173] in the following terms:

77. [179]

    Thus, it is manifest that the issue before Murphy C at [187] to [190] was whether, on the whole of the evidence before the IRC, Mr Zisopoulos had established that his removal was harsh, unreasonable or unjust because he had not, in fact, engaged in misconduct by voluntarily consuming prohibited drugs and the positive test results were the product of contamination. As has already been noted, Murphy C did not make a finding as to that factual issue, which he had identified at [11] and [173] as the foundation of Mr Zisopoulos’s case

78. [180]

    The final step in Murphy C’s reasoning was that the conclusion at [190] that Mr Zisopoulos’s removal was harsh, unreasonable or unjust “follows” from Murphy C’s finding that the Police Commissioner had not satisfied the burden of proving, on the balance of probabilities, bearing in mind the Briginshaw considerations, that Mr Zisopoulos’s positive drug test was the result of consumption of prohibited drugs. Such a conclusion could only follow, however, if the Police Commissioner were under some obligation or burden to establish that fact. No other basis for concluding that Mr Zisopoulos’s removal was harsh, unreasonable or unjust was identified in Murphy C’s reasons as the basis for his ultimate conclusion reached, and the orders made, by him. Murphy C’s explicit foreshadowing of this approach at [142] confirms me in my view.

79. [181]

    In these circumstances, it appears to me that, in this case, Murphy C’s reasoning process leading to his conclusion at [190] that Mr Zisopoulos’s removal was harsh, unreasonable or unjust involved imposing an obligation or burden on the Police Commissioner in the IRC proceedings to establish that Mr Zisopoulos had consumed illicit drugs. Indeed, Murphy C identified, at [187], that such a burden was imposed “when the applicant leads sufficient evidence to cast doubt on the respondent’s finding of misconduct”.

80. [182]

    It was evident from the language in which Murphy C’s reasoning was expressed that, in a case where the removal order was based on a finding by the Police Commissioner of misconduct, if the applicant led “sufficient evidence to cast doubt on” that finding, it would always follow on Murphy C’s approach that the removal was harsh, unreasonable or unjust, unless the Police Commissioner established that the applicant had actually engaged in misconduct.

81. [183]

    On a fair and not overly technical reading of the reasons as a whole including the passage at [187] to [190], Murphy C was not considering the tactical evidentiary burden of proof which shifts during the cases of the parties according to what evidence each party adduces from time to time. Despite using in [189] the words “evidentiary burden”, Murphy C was unequivocally reasoning in [187] to [190] that, once it was accepted that there was some, more than minimal evidence that cast doubt on the Police Commissioner’s conclusion that Mr Zisopoulos had engaged in misconduct by ingesting prohibited drugs, the Police Commissioner was required to prove on the balance of probabilities, bearing in mind the Briginshaw considerations, that the misconduct had occurred, if the removal was not to be found to be harsh, unreasonable or unjust. Such a requirement should not properly be described as a shifting “evidentiary burden” or a “tactical onus”.

82. [184]

    Having regard to the reasons as a whole, I accept the Police Commissioner’s contention that the effect of Murphy C’s reasoning was to place the burden of proof and persuasion on the Police Commissioner in relation to whether Mr Zisopoulos’s positive test results were caused by misconduct by the voluntary ingestion of illicit drugs, after at least some doubt had been cast by Mr Zisopoulos on the Police Commissioner’s original findings to that effect.

Was Murphy C’s approach contrary to s 181F(2)

1. [185]

   Section 181F of the Police Act provides for the procedure to be followed when conducting a review under s 181E. Some of the matters in s 181F(1)(a), (b) and (c) have been referred to already. Subsection (2) provides:

2. [186]

   The use of the words “the burden of establishing” in the context of proceedings indicates that what is being referred to is “the onus of proof”, to use the words of the plurality in Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [76] where it was held:

3. [187]

   Thus, s 181F(2) has the effect that the practice which has been held to apply in relation to the review of the dismissal of an employee on the ground that the dismissal was harsh, unreasonable or unjust under s 84(1) of the Industrial Relations Act does not apply in applications under s 181E of the Police Act. In relation to applications under s 84(1), the Full Bench held in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463-464:

4. [188]

   The burden, which by virtue of s 181F(2) an applicant under s 181E(1) bears at all times, of establishing that the removal 181F(2) was harsh, unreasonable or unjust involves two aspects:

   1. (1)

      the applicant must establish all of the factual elements upon which the applicant relies to the requisite standard of proof; and

   2. (2)

      the applicant must make good the propositions that those factual elements justify the conclusion that the removal was “harsh”, or “unreasonable” or “unjust” on the proper construction of those words in s 181E(1) of the Police Act.

5. [189]

   What that burden actually entailed in Mr Zisopoulos’s case, as in the case of every other applicant under s 181E, depended upon the particular grounds put forward in his case presented in accordance with s 181F(1)(b). As explained above, the part of the case that was before Murphy C in [187] to [190] was Mr Zisopoulos’s contention that he had not engaged in misconduct by ingesting prohibited drugs and that his positive drug test was caused by environmental contamination.

6. [190]

   Examples of the bases upon which an applicant might present a case that removal was harsh, unreasonable or unjust can be drawn from cases such as Byrne. These include:

   1. (1)

      the removal was harsh because of its consequences for the personal and economic situation of the officer or because the removal was disproportionate to the gravity of the misconduct in respect of which the Police Commissioner acted;

   2. (2)

      the removal was unreasonable because it was based upon inferences which could not reasonably have been drawn from the material before the Police Commissioner; and

   3. (3)

      the removal was unjust because the employee was not guilty of the misconduct on which the Police Commissioner acted.

7. [191]

   There are no doubt other bases upon which it could be contended that removal by the Police Commissioner was harsh, unreasonable or unjust. Nonetheless, in all applications under Div 1C of Pt 9 of the Police Act, including those based on the grounds identified in Byrne, the IRC must also have regard to:

8. [192]

   As a result, it is unlikely that the burden of establishing that a decision to remove a police officer is harsh, unreasonable or unjust so as to justify the IRC’s intervention may be satisfied in a given case simply by “casting doubt” on the Police Commissioner’s reasoning process. Indeed, the use of such language, even coupled with the qualification that the doubt be “sufficient”, does not reflect the terms of the statutory test nor is it necessarily consistent with the process and considerations identified in s 181F and elsewhere in Div 1C of Pt 9 of the Police Act.

9. [193]

   In relation to at least part of the case presented by Mr Zisopoulos, the effect of s 181F(2) was to impose on him, at all times, the burden of proving that he did not engage in the relevant misconduct and the test results could be otherwise explained. Merely leading sufficient evidence to “cast doubt” on whether he had engaged in misconduct was not sufficient to discharge the burden of establishing that his removal was harsh, unreasonable or unjust on the basis relied upon. Nor was it correct, as Mr Zisopoulos effectively submitted to Murphy C (as recorded at [139]), that it was not incumbent upon him to prove actual contamination but, rather, all he had to establish was that the risk of contamination was real and not a fanciful or unmeritorious claim.

10. [194]

    It is true that Murphy C referred to the terms of s 181F(2) of the Police Act at [140] and said that this provision made it “clear that the applicant bears the burden of establishing that his removal from the NSWPF was harsh, unreasonable or unjust”. It is also true that the Full Bench in Tredinnick, from which Murphy C quoted at length, referred to s 181F(2) and endorsed a submission at [69] in the following terms:

11. [195]

    Nonetheless, the substance of the reasoning of Murphy C in the passage from [187] to [190] of his reasons, when read in the context of his reasons as a whole and in light of the case Mr Zisopoulos presented, was to adopt the practice applicable in s 84(1) applications set out in Wang, provided only that the applicant under s 181E(1) led “sufficient evidence to cast doubt on” the Police Commissioner’s finding of misconduct. This, however, is the “law or practice” that s 181F(2) rendered inapplicable in a review under Div 1B of Pt 9 of the Police Act.

12. [196]

    Murphy C did not specify, in his reasons, how he determined whether “sufficient evidence to cast doubt on” the Police Commissioner’s finding of misconduct had been led. It may be that Murphy C accepted the submission made by Mr Zisopoulos that “it was not incumbent upon the applicant to prove actual contamination but, rather, the applicant had established that the risk of contamination was real and not a fanciful or unmeritorious claim”. If so, that was inconsistent with the operation of s 181F(2). In addition, a finding that a risk of contamination was real and not fanciful would not support a conclusion that that removal on basis of misconduct by ingestion was necessarily harsh, unreasonable or unjust, especially bearing in mind the mandatory consideration under s 181F(3)(b).

13. [197]

    For the reasons given above, Murphy C’s reference at [187] to an “evidentiary burden” shifting to the Police Commissioner was inapt, given the task before Murphy C at that stage of his reasons for decision. The task, at that stage of his reasons, was to determine whether Mr Zisopoulos had discharged the burden of establishing that his removal was harsh, unreasonable or unjust on the basis of the case presented by him, namely that he had not engaged in misconduct by ingesting illicit drugs but that the positive test results were due to contamination.

14. [198]

    In reaching his conclusion at [190] Murphy C did not proceed on the basis that the burden of establishing that the removal of Mr Zisopoulos from the NSW Police Force was harsh, unreasonable or unjust was, at all times, on Mr Zisopoulos and not on the Police Commissioner. The substance of Murphy C’s reasoning was that once Mr Zisopoulos had led “sufficient evidence to cast doubt on” the Police Commissioner’s finding of misconduct, the burden shifted to the Police Commissioner to establish that the removal was not harsh, unreasonable or unjust because the misconduct had in fact occurred. This, in my view, flows from the natural meaning of [189] and [190] in the context of the reasons as a whole, including [11], [142] and [173]. Such reasoning is contrary to the approach to the IRC’s task required by s 181F(2).

15. [199]

    In the circumstances and in light of his reasons as a whole, Murphy C erred by failing to apply s 181F(2) in the review proceedings before him.

16. [200]

    The use of expressions such as “evidentiary burden”, “an evidentiary burden [that] may shift during the proceedings” and “sufficient evidence to cast doubt on” is particularly unhelpful in applications under s 181E of the Police Act. This is because those expressions, which may be appropriate in application under s 84(1) of the Industrial Relations Act 1996 (NSW) (“IR Act”), do not reflect the approach inherent in, and terminology of, s 181F(2). Perhaps in this regard the maxim verba intentioni, non e contra, debent inservire should be kept in mind. Section 181F(2) specifies that the applicant has, “at all times”, the “burden of establishing that the removal was harsh, unreasonable or unjust”. Referring to a “burden” which “shifts” and evidence being “sufficient to cast doubt” is ill suited to proceedings governed by s 181F(2). The present case is an example of how using those expressions leads into error.

Did Murphy C’s approach involve jurisdictional error?

1. [201]

   In light of s 181F(2) and the case presented by Mr Zisopoulos under s 181F(1)(b), the question was never whether the Police Commissioner had or had not satisfied a burden (however described) of proving, on the balance of probabilities and bearing in mind the Briginshaw considerations, that Mr Zisopoulos had engaged in misconduct by using prohibited drugs, as Murphy C’s reasons assumed in [142] and [189]. Because of his error in the application of s 181F(2), Murphy C identified a wrong issue and asked himself the wrong question. He also failed to exercise the jurisdiction conferred on the IRC by Div 1C of Pt 9 of the Police Act in accordance with those statutory provisions or exceeded the authority or powers given by those provisions. Accordingly, Murphy C’s decision was affected by jurisdictional error: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81].

2. [202]

   On this basis, Murphy C’s decision is liable to be set aside.

The Full Bench’s decision

1. [203]

   The Full Bench granted leave to appeal on a number of grounds but dismissed the appeal from Murphy C’s decision: Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073. The questions concerning whether Murphy C had failed properly to apply s 181F(2) of the Police Act were the subject of the grant of leave. The Full Bench also granted leave on the question whether Murphy C erred in not considering the public interest aspect of the decision to remove Mr Zisopoulos, as required by s 181F(3)(b). The appeal on this ground was rejected. No review has been sought in that regard. Leave was refused on other grounds concerning the adequacy of the evidence before the IRC at first instance.

2. [204]

   The Full Bench, like Murphy C, relied on and explained the earlier decision in Tredinnick. Having regard to that decision, the Full Bench in the present case held at [23]:

3. [205]

   The first sentence of this passage contrasts the position of an employer in a review of a dismissal under s 84(1) of the IR Act with the position of the Police Commissioner in a review of a removal under s 181E(1) of the Police Act. As explained in Wang, which has been referred to above, in a s 84(1) review, if the employee has been dismissed for serious misconduct involving criminal activity, the employer must establish, to the reasonable satisfaction of the IRC, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred on the balance of probabilities bearing in mind the Briginshaw considerations: Wang at 463-464. The Full Bench then said that the Police Commissioner in a s 181E(1) review, was “not required to do so – unless, as will be seen, an applicant succeeds in shifting the evidentiary burden”.

4. [206]

   This latter statement leads irresistibly to the conclusion that the Police Commissioner does bear the burden of establishing on the balance probabilities, bearing in mind the Briginshaw considerations, that a police officer removed on the basis of misconduct, was guilty of misconduct if the applicant officer “succeeds in shifting the evidentiary burden”. This, however, is incorrect. It involves a misunderstanding of the nature of the an “evidential” or “tactical” burden and it is inconsistent with s 181F(2). Merely leading some evidence at one point in a hearing in relation to the issue of whether X occurred so that the tactical, evidentiary burden is shifted to the other party, does not mean that the other party thereupon bears the burden of establishing that X did or did not occur on the balance of probabilities. Section 181F(2) of the Police Act expressly provides that the burden of establishing that the removal is harsh, unreasonable or unjust, in all cases including cases of removal for misconduct, remains “at all times” on the applicant for review. This first sentence of [23] of the Full Bench’s reasons encapsulates the precise error into which Murphy C fell, especially at [142] and [187] to [190] in his reasons.

5. [207]

   The problem with the Full Bench’s statement in [23] is not cured by the statement that the “obligation of the [Police] Commissioner extends no higher than answering the applicant’s case”. If, as in this case, the applicant’s case includes that he did not engage in the misconduct and the positive test results can be explained otherwise, there is never, by virtue of s 181F(2), a burden on the Police Commissioner to answer the applicant’s case by proving on the balance of probabilities, bearing in mind the Briginshaw considerations, that the applicant did engage in misconduct.

6. [208]

   Furthermore, the error inherent in [23] is not corrected by the statement that “the burden on the appellant [sic, applicant] is to demonstrate “the flaw or inadequacy in [the Police Commissioner’s] reasons”. Section 181F(2) describes the burden as being “establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust”. A flaw in the Police Commissioner’s reasoning may lead to the removal being “unreasonable”, as explained in Byrne, which has been referred to above. But, where the applicant’s case is that the removal is “unjust” because the applicant did not engage in the misconduct found by the Police Commissioner, the burden remains “at all times” on the applicant to establish the factual foundation that the applicant did not engage in misconduct.

7. [209]

   The error inherent in the Full Bench’s approach was confirmed by the following statement in [46] of their reasons:

8. [210]

   This comment concerned the evidence led before the IRC and whether, on that evidence, the Police Commissioner had proved on the balance of probabilities, bearing in mind the Briginshaw considerations, that Mr Zisopoulos had engaged in misconduct by ingesting the prohibited drugs. That approach is contrary to s 181F(2) in a case such as the present, where Mr Zisopoulos relevantly contended that the removal was unjust because he did not engage in misconduct and the positive test results were due to contamination.

9. [211]

   This analysis of these passages from the Full Bench’s reasons is sufficient to establish that the Full Bench was wrong to conclude that Murphy C had not failed to comply with s 181F(2) when dealing with the s 181E(1) review.

10. [212]

    One final comment, however, may be made. At [30], the Full Bench stated:

11. [213]

    On my reading of Murphy C’s reasons, he did not make a finding that he was satisfied that the evidence before the Police Commissioner, including the expert evidence, did not reach the requisite standard. Murphy C’s reasoning and consideration manifestly involved all the evidence before him and was not limited to evidence before the Police Commissioner. At least one reason why Murphy C did not make such a finding was that this was not the case that Mr Zisopoulos presented. Further and in any event, a removal may be “unreasonable” because the finding of misconduct by the Commissioner was not open on the material before him, as explained in Byrne. A finding that the IRC was not satisfied to the requisite standard on the material before the Police Commissioner does not establish that the finding was not open to the Police Commissioner on that material.

12. [214]

    The Full Bench’s confusion appears to me to stem from a failure to identify clearly the case presented by the applicant for review as to why it is contended that the removal was harsh, unreasonable or unjust. As observed above, s 181F(2) imposes “at all times” on an applicant the burden of establishing that the removal was harsh, unreasonable or unjust which involves:

    1. (1)

       proving to the requisite standard the factual elements upon which the applicant relies; and,

    2. (2)

       making good the propositions that those factual elements justify the conclusion that the removal was “harsh”, or “unreasonable” or “unjust” on the proper construction of those words.

13. [215]

    The reasoning of the Full Bench provides another example of why the use of expressions such a “shifting” burden, “evidentiary burden” and “casting doubt” should not be used in the context of review proceedings under Div 1C of the Police Act in which s 181F(2) expressly establishes the nature of the burden and the fact that it does not shift at any point from the applicant for review.

14. [216]

    For these reasons, I am of the view that the Full Bench’s decision was wrong and the appeal against Murphy C’s orders should have been allowed. Nonetheless, because Murphy C’s orders are liable to be set aside on the bases set out above, the Full Bench’s decision and orders fall, in effect, with Murphy C’s decision and orders.

Conclusion and orders

1. [217]

   Although the orders of Murphy C are liable to be set aside for jurisdictional error, it was appropriate for the Police Commissioner to exhaust his right of appeal to the Full Bench before seeking judicial review in this Court. Further, Mr Zisopoulos did not oppose an extension being granted. In these circumstances, the time in which the Police Commission may seek review of Murphy C’s orders should be extended to the date of filing of the summons in this matter.

2. [218]

   There do not appear to me to be any discretionary reasons why relief should not be granted in the present case, and I did not understand that Mr Zisopoulos contended that there were any substantial grounds on which relief of the nature sought in the summons should not be ordered.

3. [219]

   Although the Police Commissioner has sought declaratory relief in prayer 1 of the summons, it does not appear to me to be necessary since it in effect merely repeats the terms of s 181F(2) and otherwise it is more appropriately dealt with by way of the reasons for judgment which explain the operation of s 181F(2) of the Police Act in the present case.

4. [220]

   The parties have not made submissions on costs. Consequently, I would not propose to make any order in relation to costs at this stage.

5. [221]

   Accordingly, the orders that the Court should make are:

   1. (1)

      The time for filing the application for judicial review in respect of the orders of Murphy C made on 7 March 2018 in proceedings 2016/00384458 in the Industrial Relations Commission of New South Wales is extended to 22 November 2019.

   2. (2)

      Proceedings 2018/00084006 in the Industrial Relations Commission of New South Wales are removed into this Court and the orders of the Full Bench of the Industrial Relations Commission made on 4 October 2019 in those proceedings are quashed.

   3. (3)

      Proceedings 2016/00384458 in the Industrial Relations Commission of New South Wales are removed into this Court and the orders of Murphy C made on 7 March 2018 in those proceedings are quashed.

   4. (4)

      Proceedings 2016/00384458 are remitted to the Industrial Relations Commission to be heard and determined in accordance with law.