Police Association of New South Wales v State of New South Wales

MACFARLAN JA: For the reasons set out below, I agree with the orders that Barrett AJA proposes. I am grateful to his Honour for his thorough examination of possible aids to performing the difficult task of determining the meaning of the undefined expression “non-disciplinary transfer” in Schedule 1 of the Police Act 1990 (NSW). My judgment assumes that the reader is familiar with the terms of his judgment.

The Commissioner of Police’s powers conferred by s 173 of the Act to take action with respect to a police officer are dependent upon findings of the officer’s misconduct or unsatisfactory performance (as to the latter, see s 173(3)). By reason of s 174, any action by the Commissioner that constitutes “reviewable action” can, as the words used suggest, be the subject of an application for review by the Industrial Relations Commission. “Reviewable action” is defined by s 173(1) to mean action by the Commissioner under s 173(2) which is not “non-reviewable action” as referred to in Schedule 1 to the Act.

The actions listed in Schedule 1 are in general terms clearly of a less prejudicial character from the point of view of the officer than others that the Commissioner may order under s 173(2) to be taken. That accords with what was no doubt the general intent of the provisions to provide that where an officer was likely to be seriously prejudiced by an action ordered under s 173, he or she would effectively have a right of appeal against the order.

It also accords with the terms in which the following item of non-reviewable action listed in Schedule 1 is expressed:

The adjective “non-disciplinary” before the word “transfer” in Schedule 1 is suggestive of the same point. In this context the word “discipline” (and its derivatives) in my view refers to “punishment inflicted by way of correction and training” (Macquarie Dictionary, online version, 3rd listed meaning). To my mind therefore, a “non-disciplinary transfer” is one that does not have the purpose and effect of punishing the officer by causing some significant prejudice to the officer in response to the officer’s misconduct or unsatisfactory performance.

In one sense of the word “discipline,” all orders able to be made by the Commissioner under s 173 in response to misconduct or unsatisfactory performance are disciplinary because they will have the purpose of improving the efficiency of the police force, whether by way of punishment of the officers concerned or by non-punitive measures such as transfers within the police force that are not detrimental to the officers’ interests. This is the broad sense in which Brennan J used the word in Police Service Board v Morris (1985) 156 CLR 397 at 412; [1985] HCA 9.

Section 173 of the Police Act, when taken with Schedule 1, however requires the adoption of a narrower meaning of “discipline” because it specifically envisages that an action ordered by the Commissioner under s 173(2) may not be disciplinary. This is so because Schedule 1 refers to a “non-disciplinary transfer” as one of the orders that the Commissioner may make under s 173(2).

The meaning of “discipline” which I have adopted is an accepted meaning of the word. Its adoption conforms with the language of s 173 and Schedule 1 and reflects the statutory intent to which I have referred of conferring a right of review on an officer against whom an action prejudicial to him or her has been ordered.

There remains a question of whether it is necessary for the right of review to arise that both the purpose and the effect of the transfer ordered by the Commissioner be punitive. For the reasons given below, both were the case in respect of the present order. I would therefore leave this question for consideration if and when it arises as a determinative issue in future proceedings.

In the absence of any indication in the legislation that the correct characterisation of a transfer is to be determined by ascertaining the Commissioner’s subjective purpose in making it, its purpose and effect, and hence its characterisation, is in my opinion to be determined objectively, based upon all the circumstances, including as a factor, although not a determinative one, the Commissioner’s characterisation, if any, of the transfer. In this respect, I therefore respectfully disagree with the primary judge’s view that the characterisation is “a matter for evaluative judgment for the Commissioner” (Judgment at [89]). It follows that the question for the Supreme Court on a judicial review application is not, as the primary judge found, whether it was “open to the Commissioner to treat the action as a ‘non-disciplinary’” transfer (Judgment at [92]) but rather whether the transfer was in fact “non-disciplinary” in character.

In characterising the objective purpose and effect of a transfer, the impact on the officer’s remuneration will in my view be of significance, although again not necessarily determinative. Where the impact is adverse and considerable, the prejudicial effect of the transfer may be obvious. A minor, incidental impact on remuneration may lead to a different result.

As to the objective characterisation of the transfer presently under consideration, I agree with Barrett AJA’s conclusions as follows (at [121]):

As I have pointed out, the Commissioner’s characterisation of the transfer as “non-disciplinary” is not conclusive. The reasons that he gave for the transfer, as distinct from the label he gave to it, indicate that it was in fact disciplinary in character, certainly when considered with the fact that the transfer would cause the officer to lose his entitlement to a Special Duties Allowance which was not argued in the proceedings to be insignificant in amount. The transfer was prejudicial to the officer and was therefore not a “non-disciplinary transfer” as referred to in Schedule I to the Act. Accordingly, the officer had a right to have the transfer decision reviewed.

WHITE JA: The circumstances giving rise to this appeal are fully set out in the reasons for judgment of Barrett AJA which I have had the advantage of reading in draft. His Honour’s exposition of those circumstances and the relevant statutory provisions allows me to state my reasons concisely. The issue is whether the order dated 7 August 2018 made by the Commissioner of Police through his delegate transferring the Officer from the State Surveillance Branch to the Chatswood Police Station following a finding of misconduct was “non-reviewable action” within the meaning of s 173(1) of the Police Act 1990 (NSW) by reason of its being a “non-disciplinary transfer” within the meaning of Sch 1 of that Act.

What is meant by a “non-disciplinary transfer” in Sch 1 requires consideration of what would be a “disciplinary transfer” (an expression not used in the Act) which in turn depends upon the meaning to be given to “discipline”.

Discipline is an ambiguous term. Depending upon context, so far as relevant for present purposes, it can mean the imposition of punishment, or it can mean the taking of action to maintain or enhance the good order and functioning of the service, or it can mean both. The distinction is drawn by Brennan and Toohey JJ in Re Tracy; ex parte Ryan (1989) 166 CLR 518; [1989] HCA 12 at 564 in the passage quoted by Barrett AJA at [96].

It is difficult to envisage any circumstance in which a transfer of a police officer, who has been found to have engaged in misconduct, to different duties, where the transfer is a consequence of that finding, would not be a disciplinary transfer in the sense that the transfer was regarded as appropriate for the maintenance or enhancement of the good order and discipline of the service. The examples hypothesised by Barrett AJA (at [120]) are examples where a finding of misconduct was irrelevant to a transfer.

But the fact that non-disciplinary transfer is identified as one item of non-reviewable action in Sch 1, being action that can be taken with respect to a police officer who engages in misconduct, and evidently, from the context of the section, as a response to a finding that the police officer engaged in misconduct, provides a textual indication that a disciplinary transfer should not extend to corrective coercion considered appropriate for the maintenance of good order and discipline of the force, but should have a narrower meaning so as to give the reference to a non-disciplinary transfer work to do.

The obvious narrower meaning of discipline (to be used to construe “non-disciplinary transfer”) is action taken for the purpose of imposing punishment on the police officer found to have engaged in misconduct.

Section 33 of the Interpretation Act 1987 (NSW) requires the adoption of a construction that would promote the purpose or object underlying the relevant statutory provision. Section 34 permits consideration of extrinsic material where the provision to be construed is ambiguous, or to confirm that the meaning of the provision is the ordinary meaning conveyed by the text.

The Royal Commission into the New South Wales Police recommended change to the then system for the management of complaints and discipline within the Service. The Commission recommended that:

The Royal Commission also stated:

The Royal Commission Report did not use the expression “non-disciplinary transfer” but it did state that transfers from a particular area of work, or transfer to uniform, should not be regarded as disciplinary options. It distinguished these from the imposition of “some form of personal detriment … required to act as a deterrent”, i.e. punishment.

As a result of the Royal Commission’s report, Pt 8A in Div 1 and 1A of Pt 9 of the Police Act were inserted by the Police Service Amendment (Complaints and Management Reform) Act 1998 (NSW). This Act enacted s 173 and Sch 1 in materially the same terms as they now appear.

In the Minister’s Second Reading Speech for the Police Service Amendment (Complaints and Management Reform) Bill the Minister stated:

Although the language adopted by Parliament in Schedule 1 (“non-disciplinary transfer”) was different from the language in the Royal Commission report, it is clear from the Minister’s Second Reading Speech that the amendments made by the Police Service Amendment (Complaints and Management Reform) Act 1998 were intended to implement the Royal Commission’s recommendations. Those recommendations were that in the case of less serious conduct, a transfer from a particular area of work, or a transfer to uniform, should be regarded as a managerial action with a primarily remedial focus that was not to be reviewable through the Industrial Relations Commission.

The extrinsic material clearly demonstrates that the purpose and object of s 173 and Sch 1 was not that transfers made as a consequence of a finding or allegation of misconduct made as a managerial response to enhance the good order and discipline of the Service should be regarded as a disciplinary transfer (and therefore not a non-disciplinary transfer). The extrinsic material confirms the meaning of “non-disciplinary transfer” that I would infer from the text and context of s 173 and Sch 1 that it is a transfer not made for the dominant purpose of punishment. This conclusion is substantially in accordance with the conclusion reached by the Full Bench of the Industrial Relations Commission in Commissioner of Police v Skelly (2010) 192 IR 915; [2010] NSWIR Comm 18.

The primary judge said:

Contrary to the primary judge’s observation at [84] I do not understand the Industrial Relations Commission in Commissioner of Police v Skelly to have suggested that if the Commissioner purported to transfer a police officer for remedial purposes, but the transfer was, on any reasonably objective basis punitive, that the Commissioner’s stated purpose would be determinative. Nor is Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 inconsistent with the Commission’s judgment. In Rich v ASIC the majority of the High Court held that directors were entitled to maintain the privilege against self-exposure to a penalty or forfeiture as an answer to an order for discovery of documents irrespective of whether the proceeding for imposition of civil penalties was regarded as essentially “protective” rather than “punitive” (at [31]). It was in that context that the majority said (at [32]) that:

That is not to deny that there is a difference between a remedial purpose of an order for transfer and a punitive purpose for such an order.

But those purposes are not necessarily inconsistent and an order for transfer for a remedial purpose may have a punitive effect (Director-General Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]). For this reason I consider that if it appears to the Court that the dominant purpose of the Commissioner (or his delegate) was remedial and managerial, that is, for the maintenance or enhancement of the good order of the Service, and not to impose punishment, the transfer should be characterised as a non-disciplinary transfer within the meaning of Sch 1. I do not accept that merely because a transfer for a remedial purpose may have a disciplinary effect that the transfer should be regarded as disciplinary rather than non-disciplinary.

The question then is whether the transfer in issue in the present case was made for a dominant remedial purpose of modifying the Officer’s behaviour or for the dominant purpose of punishing him.

The primary judge said:

The wording of para [92] is unfortunate. As both Macfarlan JA and Barrett AJA say, the question is not whether it is open to the Commissioner to regard the transfer the subject of the order as a non-disciplinary transfer, but whether as characterised by the Court, the transfer is in fact non-disciplinary. It may be that the primary judge was merely seeking to emphasise that as the summons sought prerogative relief on the basis of error on law on the face of the record, the Court’s assessment of the Commissioner’s purpose is confined to what appears on the record.

No submissions were made as to the scope of remedies by way of judicial review. Prima facie, if the transfer order were reviewable action, and not non-reviewable action within the meaning of s 173, the Commissioner acted beyond jurisdiction, and prerogative relief would not be confined to relief in the nature of certiorari to quash an error of law on the face of the record.

In any event, in the present case, the only evidence of the purpose of the delegate of the Commissioner is contained in the transfer order, the final section of which is quoted by Barrett AJA (at [56]).

Barrett AJA takes an expansive view of what constitutes a disciplinary transfer, and hence a narrow view as to what constitutes a non-disciplinary transfer (at [116], [118] and [120]). He concludes that the transfer ordered by the Commissioner had very clear elements of coercive correction that involved curtailing the Officer’s independence of action by placing him under increased supervision for the expressed purpose of bringing about modification and adjustment of behaviour that had been found to be misconduct and which was the rationale for the transfer. It is for this reason that Barrett AJA concludes that the transfer was not a non-disciplinary transfer.

Macfarlan JA agrees with Barrett AJA’s description of the order, as do I. Nonetheless, although Macfarlan JA adopts a narrower meaning of “discipline” as referring to punishment inflicted by way of correction and training, and hence regards a non-disciplinary transfer as being one that does not have the purpose and effect of punishing the Officer by causing significant prejudice to the Officer in response to the Officer’s misconduct or unsatisfactory performance (Judgment [5]), his Honour characterises the transfer as being disciplinary in character.

The fact that the order is coercive, that is, it has to be obeyed for so long as the Officer is a police officer, does not determine whether it is disciplinary or non-disciplinary in character. Adopting Barrett AJA’s characterisation of the order, in my view, the curtailing of the Officer’s independence of action by placing him under increased supervision for the purpose of modifying and adjusting his behaviour shows that the transfer was not for the dominant purpose of punishing the Officer, but rather for correcting his behaviour so as to manage his anger and encourage him to deal with his colleagues respectfully. The purpose was remedial and not disciplinary in the narrower sense.

I agree with Barrett AJA and with the primary judge that the principal ground upon which the Officer contended that the transfer was not a non-disciplinary transfer (namely, that any involuntary transfer pursuant to s 173(2) to a position attracting lower remuneration is a disciplinary transfer, should be rejected. Section 69(2)(b) expressly contemplates that an Officer may be transferred to a lower level of remuneration, if the transfer is made pursuant to an order under s 173. Section 173 when read with Sch 1 expressly contemplates such a transfer, if it is non-disciplinary.

As the primary judge observed, one of the items of non-reviewable action provided for in Sch 1 is the Officer being placed upon restricted duties. Such a placement would be likely to affect adversely the officer’s remuneration. Moreover, recording of adverse findings is also non-reviewable action within Sch 1 which could be expected to have medium or long-term adverse financial consequences. The facts of a particular case might show that a transfer to a substantially lower level of remuneration was made for the dominant purpose of punishing the officer found guilty of misconduct, but that is not this case.

For these reasons I would grant leave to appeal, but order that the appeal be dismissed with costs.

BARRETT AJA: These proceedings raise an important question of statutory construction concerning the conditions of service of non-executive members of the New South Wales Police Force. The proceedings concern the involuntary transfer of Senior Constable Nicholas Gardner (referred to below as “the Officer”) from his position as a surveillance operative within the State Surveillance Branch to a general duties position at Chatswood police station by order of the Commissioner of Police (“Commissioner”).

It will be necessary to consider a number of provisions of the Police Act 1990 (NSW). The provision most directly relevant is s 173 which is the first section in Division 1 (headed “Misconduct and unsatisfactory performance”) of Part 9 (headed “Management of conduct within NSW Police Force”). The full text of s 173 is set out in the Appendix. Also included in the Appendix is the content of Schedule 1 to the Act, referred to in the definition of “non-reviewable action” in s 173(1).

Another provision of the Police Act to which particular reference was made in submissions is s 69 which appears in Division 2 (headed “Appointment of non-executive police officers”) of Part 6 (headed “Non-executive police officers”). Section 69 concerns the transfer of police officers and is also set out in the Appendix.

The issue for determination, briefly stated, arises from the following aspects of the Police Act:

It is not in dispute in this case that the Officer had engaged in misconduct and was transferred involuntarily by a s 173(2) order to another non-executive position. There is an issue whether that new position attracted a level of remuneration lower than that which the Officer had enjoyed before the transfer. That turns on the meaning of “remuneration” and the status of a “general service allowance” that was payable in respect of the former position but not in respect of the position to which the Officer was transferred. It is appropriate to proceed initially on an assumption that the new position attracted lower remuneration. On that footing, the Commissioner maintains that the transfer was, as referred to in s 173(1), “non-reviewable action”, while the position taken by the Officer’s representative is that the case was one of “reviewable action”.

In proceedings determined in the Common Law Division on 20 May 2019, [5] Adamson J (“the primary judge”) dismissed a summons seeking judicial review of the decision of the Commissioner making an order for the transfer of the Officer to the position at Chatswood police station.

In this Court, a summons seeking leave to appeal and the appeal itself were heard concurrently. [6]

The facts were not in dispute before the primary judge. On 7 August 2018, a senior officer of the News South Wales Police Force, acting under delegation from the Commissioner, made an order for transfer of the Officer from his position within the State Surveillance Branch to the position at Chatswood police station.

The order of the Commissioner’s delegate was communicated by a document of thirteen closely typed pages addressed to the Officer and headed “NON-DISCIPLINARY TRANSFER ORDER”. In an opening section headed “Background”, the document set out facts (or alleged facts) concerning several distinct events or courses of conduct. That section occupied a little over nine pages. Then followed sections headed respectively “Allegation 1”, “Allegation 2” and “Allegation 3”.

The section headed “Allegation 1” commenced:

That section then set out s 7 of the Police Act and referred to parts of the NSW Police Force Code of Conduct and Ethics.

The section headed “Allegation 2” was in these terms:

The section headed “Allegation 3” was as follows:

The final section of the order was headed “Consideration” and was in these terms:

The last page of the document set out s 7 of the Police Act (headed “Statement of values of members of NSW Police Force”):

Several aspects of the document may be noted. First and as already mentioned, the heading identified the order as one for “non-disciplinary transfer”. Second, the stated conclusion in relation to each allegation was that the officer had engaged in conduct “contrary to” both the Police Act and the NSW Police Force Code of Conduct and Ethics. Third, the Commissioner’s delegate expressed, in several places, “concern” about the officer’s conduct, describing it as inappropriate and unprofessional. Fourth, the delegate identified matters to which he had had regard in considering “the managerial action available to him” and said that he had “decided to impose a remedial measure” to “assist” the officer “in modifying and adjusting [his] behaviour”. Fifth, there followed a description of what the delegate had decided was “in your best interests, and in the interests of the NSW Police Force”, namely, transfer to a new command. Sixth, the reasons why that course was considered appropriate were stated: it provided an opportunity for the officer to have greater supervision and support from a new senior management team, an opportunity to build relationships with new colleagues and to work in a less insulated environment with support from a greater number of supervisors and an opportunity for the officer to address his behaviour (particularly anger issues and his attitude towards other police officers) thereby enabling him to reach the high standards of conduct expected of him. Seventh, the operative words of the order included “non-reviewable action under s 173(2), Schedule 1, of the Police Act 1990, being a non-disciplinary transfer”.

The heading and the operative words thus showed an intention of the Commissioner’s delegate that the order should be understood as directing “non-reviewable action” in the form of “non-disciplinary transfer”. The remainder of the content had two essential purposes: first, to point out that the officer’s conduct was “contrary to” both the Police Act and the NSW Police Force Code of Conduct and Ethics and therefore a source of concern; and, second, to represent the transfer as a “remedial measure” to “assist” the officer, imposed as a “managerial action” and in order to provide the officer with the several identified opportunities for self-improvement.

The principal issue before the primary judge was whether it was open to the Commissioner, as a matter of law, to treat the order for the Officer’s transfer as “non-reviewable action” within the meaning of s 173(1) – a question that turned on whether the order effected a “non-disciplinary transfer”. [7]

After setting out the facts, her Honour considered the relevant legislative history and statutory framework, noting that, before the Royal Commission into the New South Wales Police Service (the Final Report of which was submitted to the Government in 1997), s 6 of the Police Regulation (Appeals) Act 1923 (NSW) gave a right of appeal to any member of the police force who was “dissatisfied” with any “punishment” administered by the Inspector-General that resulted in a fine, suspension, or reduction in rank or pay, dismissal or discharge, or transfer. [8] Section 182 of the Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 (NSW) which succeeded that Police Regulation (Appeals) Act was in similar terms.

The primary judge noted that the legislative reaction to the Final Report of the Royal Commission had substantially reformed the police disciplinary system by replacing a “formal adversarial model” with a “more managerial or remedial model”, with first recourse being to “remedial rather than punitive action”; but, in addition, “the managerial process needs to include a disciplinary component, although resort to the latter should occur only when the Local Commander is satisfied that simple remedial intervention is insufficient”. It was also recommended that cases of “bad performance” should be approached by reference to categories of “reviewable” and “non-reviewable” consequences, with “transfer from a particular area of work” and “transfer to uniform” placed within the “non-reviewable” category. The Report recommended that “reviewable” options not be used unless “there was no option within the non-reviewable category appropriate for the circumstances of the particular case”. [9]

The primary judge next considered the Second Reading Speech for the Police Service (Complaints and Management Reform) Bill (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 October 1998) and the statement of the Minister for Police that the amendments to Part 9 of the Police Service Act (as the Police Act was then known) were “based on the recommendations in chapter 4” of the Royal Commission Report. Her Honour quoted part of the Minister’s speech in which it was said that reduction in an officer’s rank, grade, seniority or deferment of an increment would be reviewable by the Industrial Relations Commission and that a right of review to the Commission would be available if a sanction imposed a financial impact on the officer concerned. [10]

Her Honour noted [11] that the legislation of 1998 which was designed to implement the recommendations of the Royal Commission Report did not precisely replicate those recommendations and, in particular, the words “transfer from a particular area of work” and “transfer to uniform” described as “non-reviewable” options in the Report, were replaced by “non-disciplinary transfer” in Schedule 1. Her Honour also noted that neither s 173 nor Schedule 1 reflected the Minister’s statement that a sanction that had a financial impact on an officer broadly speaking would be reviewable. Instead, the three matters to which the Minister referred, namely a reduction in rank or grade, reduction in seniority or deferment of increment, were expressly provided for in s 173(2)(a), (b) and (c) as reviewable actions.

Having recited that background and noted the relevant statutory provisions, the primary judge turned to the expression “non-disciplinary transfer” and said that it was necessary to identify what made a transfer “disciplinary”. [12] Her Honour said that the word “non-disciplinary” in the Schedule 1 could not bear its usual meaning since it was contemplated that a “non-disciplinary transfer” could be made pursuant to s 173(2) after a finding that an officer had engaged in “misconduct” and the consequences of such a finding would generally be regarded as “disciplinary”. Her Honour rejected the argument that a “non-disciplinary transfer” was one that fell within s 69(2)(a), (b)(i) or the first part of (b)(ii), since s 173 and Schedule 1 contemplate that a “non-disciplinary transfer” may be made under s 173. Accordingly, it was said, a finding of misconduct cannot be used to distinguish a “non-disciplinary transfer” from any other.

The primary judge then gave attention to the several items in Schedule 1 and the features that distinguish them from matters not there listed. In doing so, her Honour posed this question: “what do the actions in Schedule 1 have in common that is lacking in the actions which are specified in s 173(1)(a), (b) and (c) and other reviewable actions under s 173(1)(d)?”. In answering that question, [13] her Honour grouped the actions in Schedule 1 into three categories: (1) generally remedial actions, such as coaching, mentoring, training and development, (2) actions classically punitive but with a corrective purposes such as reprimand, warning and recording of adverse findings and (3) actions altering work arrangements such as a “non-disciplinary transfer”, a change of shift without financial loss and restricted duties.

On the view the primary judge took, [14] the purpose of all actions at the disposal of the Commissioner under s 173(2), whether reviewable or non-reviewable, could be assumed to be remedial, even though, from the officer’s point of view, there might be, in every case, an element of “penalty”. For example, increased supervision might be regarded by an officer as punitive as it removes an element of autonomy and independence notwithstanding the fact that it could be characterised as being generally remedial in nature.

Her Honour was of the opinion that neither the purpose nor the effect of an order was a reliable arbiter of the matters listed in Schedule 1. An argument that financial loss to the officer determined the difference between non-disciplinary and disciplinary transfers was rejected. A qualification regarding financial impact included in Schedule 1 in relation to “change of shift” had no counterpart in the “non-disciplinary transfer” item.

The primary judge also rejected [15] the test for “non-disciplinary transfer” adopted by the Full Bench of the Industrial Commission in Commissioner of Police v Skelly (2010) 192 IR 195; [2010] NSWIRComm 18 discussed below.

The ultimate decision of the primary judge was that the character of a transfer as “non-disciplinary” or otherwise was “a matter for the evaluative judgment of the Commissioner”. [16] Her Honour therefore dismissed the proceedings.

The grounds of appeal advanced on the Officer’s behalf are that

The Commissioner, by notice of contention, says that the decision below should be upheld because:

The argument put on behalf of the Officer is that a “non-disciplinary transfer” is one that, although made pursuant to a s 173(2) order, could have been made under s 69 and without reference to the officer’s misconduct. In other words, if, in the case of an officer who has engaged in misconduct, a transfer is ordered under s 173(2) that could be made under s 69 without a s 173(2) order, it is a “non-disciplinary transfer” and, as a corollary, if a transfer made pursuant to a s 173(2) order could not be made in exercise of the s 69 power, it is not a “non-disciplinary transfer”.

This argument focuses on the point that the power to make a transfer under s 69 (which is not dependent on any finding of misconduct) is subject to a constraint that does not apply to the power to make an order for transfer under s 173(2). The effect of s 69(2)(b) is that a s 69 transfer cannot be made against an officer’s will (that is, in the absence of the officer’s consent or request) unless it is a transfer to a position that entitles the officer to at least the same level of remuneration as the officer’s present remuneration. In the case of transfer pursuant to an order under s 173(2), no such limitation applies.

It follows, according to the submission made on the Officer’s behalf, that if a transfer pursuant to a s 173(2) order (being an involuntary transfer in respect of an officer who has engaged in misconduct) is to a position carrying reduced remuneration, the circumstances that the reduction in remuneration represents an element of financial penalty and that the transfer is made under a provision expressly concerned with misconduct, mean that the transfer is, of its nature, disciplinary and therefore not a “non-disciplinary transfer”.

Put more shortly, the submission is that, in the absence of the officer’s request or consent, the only species of transfer that can be made to a position attracting lower remuneration is a transfer effected under a provision concerned with an officer who has engaged in misconduct and that the financial disadvantage to which the officer is subjected through the transfer represents a penalty or punishment that causes the transfer to be disciplinary.

The respondent Commissioner submits that this understanding of the expression “non-disciplinary transfer” has no basis in the legislation and that the construction of the statutory provisions contended for on behalf of the Officer is unsupportable.

Section 173 and its accompanying Schedule 1 were inserted into the Police Act in 1998. [17] They formed part of a new Part 9, Divisions 1 and 1A, which replaced the then existing Part 9 the heading of which was “Discipline of Members of the Police Service”. The superseded Part 9 permitted the making of regulations for the imposition by the Commissioner of one or more of several “penalties” on a non-commissioned police officer, being dismissal, demotion, reduction in seniority, suspension from office, reduction in salary and the imposition of a fine and caution or reprimand. The Police Service Regulation 1990 (NSW) created procedures for the investigation of complaints about police officers and the preferring of departmental charges against them. These matters were dealt with in Part 3 Division 4 headed “Discipline of police officers”. No provision of the former Part 9 or of the regulation appears to have identified, in any explicit way, transfer of an officer to another position as a form of “penalty” that might by imposed in a disciplinary context.

Section 173 and Schedule 1 (including its reference to “non-disciplinary transfer”), as adopted in 1998, signalled a move away from an adversarial system of disciplinary control within the police service. Section 173(2) is concerned with an officer who “engages in misconduct”. It empowers the Commissioner to make an “order” as to any of several specified matters or, as the section calls them, “actions”. The matters with respect to which an “order” may be made, as described in s 173(2), do not include, in explicit terms, transfer of a non-executive police officer to some other non-executive position. It may be accepted, however that s 173(2) , by including among the matters as to which an order might be made “any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate”, extends to the making of an order for such a transfer. This is because s 173(8) makes it clear that action ordered under s 173(2) may be either “reviewable action” or “non-reviewable action” and, having regard to the content of Schedule 1, one species of “non-reviewable action” is “non-disciplinary transfer”. This shows that transfer, whether or not “non-disciplinary transfer”, is an action that the Commissioner may order under s 173(2).

The distinction between “reviewable action” and “non-reviewable action” plays a central part in the operation of s 173(5), (6) and (7) which prescribe procedures ensuring certain natural justice protections for the affected police officer when action that the Commissioner proposes to order under s 173(2) is “reviewable action”. Those protective provisions do not apply where the action proposed to be ordered is “non-reviewable action”. The distinction is also relevant to the operation of s 173(8) which fixes the time at which an order for action under s 173(2) takes effect.

It is the fact of the officer’s “misconduct” that enlivens the Commissioner’s power under s 173(2) and makes the officer amenable to an order under the section. An order for transfer of the officer to some other non-executive position will be an order for “reviewable action” for the purposes of s 173 unless the transfer is, as described in the eleventh item in Schedule 1, “non-disciplinary transfer”. The character of a transfer as a “non-disciplinary transfer” or as a transfer that is not “non-disciplinary transfer” is the determinant of whether the natural justice protections prescribed by s 173(5), (6) and (7) apply. The answer to the question whether a transfer imposed by a s 173 order on an officer who has engaged in “misconduct” is a “non-disciplinary transfer” or one that is not “non-disciplinary” is not determined (or even indicated) by the fact of the officer’s “misconduct”.

Where the Commissioner proposes to act under s 173(2)(d) by ordering action that is not reduction of rank or grade, reduction of seniority, deferral of salary increment, dismissal or the imposition of a fine, that provision requires that the Commissioner form a particular opinion regarding the action that is proposed. The Commissioner must consider that action “appropriate”. What is or is not “appropriate” will necessarily be determined by reference to the purpose the power put at the Commissioner’s disposal, that is, a power to make an order (otherwise than as to certain actions) “with respect to a police officer who engages in misconduct”. It follows that the order the Commissioner makes must be responsive, in some rational way, to the status of the officer as one who has engaged in misconduct.

Nothing in s 173 empowers the Commissioner to decide whether a particular order or the action it requires is (or is to be) “non-disciplinary” or, for that matter, “disciplinary”. In a case of transfer pursuant to an order under s 173(2), the effect of the section is that the Commissioner must be satisfied that the officer has engaged in misconduct and that the particular transfer is appropriate (in the sense of being responsive in a rational way) to the status of the officer as one who has engaged in misconduct. Having formed those opinions as elements of a composite decision, the Commissioner’ has done everything necessary to support a decision to transfer.

Part 6 of the Police Act, which includes s 69, was introduced by the Police Amendment (Police Promotions) Act 2006 (NSW). By referring in s 69(2)(b)(ii) to a transfer made pursuant to an order under s 173, the legislature picked up and applied as part of the new enactment a concept that had already existed for some eight years.

This matter involves a narrow question of statutory construction. The task is to discover the meaning of the expression “non-disciplinary transfer” appearing in Schedule 1 as it is imported by s 173(1) into the definition of “non-reviewable action” and plays a part in the meaning of s 173 as a whole.

The way in which that task must be undertaken is not in doubt. The relevant principles derived from cases such as CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28 and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 were recently restated by Kiefel CJ and Keane J in The Queen v A2 [2019] HCA 35. Four basic principles must be observed:

The Police Act contains few references to “discipline” and matters of a “disciplinary” nature. A convenient starting point for a short exploration of the Act’s treatment of such matters is Part 8A, which is concerned with complaints against police officers, including with respect to “police misconduct”. Part 8A links to the Law Enforcement Conduct Commission Act 2016 (NSW) (“LECC Act”). For the purposes of Part 8A, “police misconduct” has the same meaning as in the LECC Act, s 9 of which defines that expression in inclusive terms which invoke the ordinary meaning of “misconduct”. Among examples given in the definition in s 9(4) are conduct that constitutes a “disciplinary infringement” – an expression which, according to a definition in s 4(1), itself includes “any misconduct, irregularity, neglect of duty, breach of discipline or substantial breach of a code of conduct or other matter that constitutes or may constitute grounds for disciplinary action under any law”.

The Commissioner and the Law Enforcement Conduct Commission have a shared power to determine whether to conduct an investigation into a complaint of misconduct under Part 8A. Among the responsibilities of the Law Enforcement Conduct Commission is exposing conduct that is or could be “serious misconduct” (as defined in s 10 of the LECC Act), including conduct of a police officer that could result in prosecution of the officer for “serious disciplinary action” against the officer for a disciplinary infringement.

In conducting an investigation into a complaint of misconduct, the Commissioner has broad powers to cause any action to be taken to resolve the misconduct matter in the manner that the Commissioner thinks fit, including taking disciplinary action against the police officer. Section 4 of the LECC Act defines “disciplinary proceedings” to mean “proceedings or action taken in relation to a disciplinary infringement”. A finding of misconduct can lead to a range of consequences under the Police Act. Section 173 provides for one set of such consequences.

The content of the Act itself thus throws little light on the “disciplinary” concept that it chooses to employ by use of the words “non-disciplinary transfer” in Schedule 1. It is therefore necessary to look to extraneous indicators of the general meaning of “discipline” and “disciplinary” in like contexts.

The Royal Commission Report of 1997 described the then existing police discipline regime as “not well related to supervision, or to managerial improvement of the performance of staff about whom complaints are made”. The complaints resolution process was seen as “rigid”. Concentration on single instances of misconduct caused loss of opportunity to discover more broadly based misconduct. There was also loss of opportunity to reach managerial solutions. The approach recommended by the Royal Commission was:

In advocating that approach, the Royal Commission took into account that “the purpose of a disciplinary system within a professional organisation” is as described in in Hardcastle v Commissioner of the Australian Federal Police (1984) 53 ALR 593 (at 597), that is, “to protect the public, to maintain proper standards of conduct . . . and to protect the reputation of [the organisation]”; and the object of the disciplinary system is “not to punish.”

After advocating the managerial model, the Royal Commission said that the “ability to take managerial action should . . . be as broad as the initiative of a fair and capable commander.” In case of bad performance, available options should, it was said, fall into two categories, one of which one of is reviewable and the other is not. The following descriptions were given:

As the primary judge noted, s 173, as formulated in 1998 and still in force, did not, in terms, implement the envisaged scheme, at least in matters of detail. As recommended by the Royal Commission, the non-reviewable category included “transfer to uniform”. As enacted by Parliament, the non-reviewable category includes “non-disciplinary transfer”, an apparently quite different concept. The Royal Commission Report therefore does not assist directly in the resolution of the present issue. It does, however, serve to explain, in a general way, the philosophy behind the scheme of regulation of which s 173 is part.

The nature of police discipline, at least as it was perceived more than thirty years ago, was described by Brennan J in Police Service Board v Morris (1985) 156 CLR 397; [1985] HCA 9 at CLR 412 in this way:

The same thinking is evident in the observation of the Full Federal Court (Bowen CJ, Gallop and Lockhart JJ) in Hardcastle v Commissioner of the Australian Federal Police, noted by the Royal Commission (above), that the “object” of police disciplinary proceedings is protective and “not to punish . . . or to exact retribution”. On the allied subject of military discipline, Brennan and Toohey JJ said in Re Tracey; Ex parte Ryan (1989) 166 CLR 518; [1989] HCA 12 at CLR 564 that the “traditional jurisdiction” to discipline military personnel has two aspects: first, “an authority to compel military personnel to conduct themselves in a manner which is conducive to efficiency and morale of the service”; and, second, “an authority to punish military personnel who transgress the ordinary law of the land while acting or purporting to act as military personnel”.

In Ferdinands v Commissioner for Public Employment [2004] SASC 30; (2004) 233 LSJS 110 at [51], Bleby J said:

More recently, it was said by Morrison JA in Nugent v Stewart (Commissioner of Police) [2016] QCA 223; (2016) 261 A Crim R 383 at [78], referring to the Police Service Administration Act 1990 (Qld):

It has been said in academic literature [18] that police discipline

The reference here to training, education, moulding and correction, with “chastisement” as a “last alternative”, is consistent with the approach taken by the Royal Commission.

A distinction was drawn In the course of submissions between transfers that might be regarded as “disciplinary” and those which are “administrative”. A “non-disciplinary transfer” was equated with the latter.

A distinction of this kind was recognised by the Supreme Court of Canada in Potter v. New Brunswick Legal Aid Services Commission [2015] 1 SCR 500 (at [70]), a case concerning suspension of a civil servant, rather than transfer:

The implication here is that action against an officer or employee may be “disciplinary” and “for cause” or “administrative” and not “for cause”.

The same distinction was noticed by the Chief Justice of New Zealand in Tyers v Commissioner of Police (unreported, High Court of New Zealand, Wellington, A130/84, 23 May 1984) in which an “intolerable situation” of “mutual distrust” had arisen among officers at a small rural police station, and one officer was ordered to transfer to Auckland. The question was whether the power to transfer had been abused because the basis for the action lay in matters that should have been dealt with as disciplinary offences. After noting contentions of the police officer and the Commissioner (respectively, that “the reason for transfer was disciplinary” and that “the transfer was administrative”), Davison CJ said:

The Chief Justice also said:

The course ultimately taken by the court was “to look at the totality of the evidence, weigh it up, and decide what was the substantial purpose of the transfer.”

Similar reasoning was employed by the New Zealand Court of Appeal in Poanga v State Services Commission [1985] 2 NZLR 385 which concerned the involuntary transfer of an employee of the Ministry of Foreign Affairs. The employee challenged the transfer decision on the basis that the relevant government decision-maker “was substantially influenced by complaints made about her by the head of her department which complaints, she said, should have been the subject of departmental charges under statutory provisions”. Cooke J referred to the “disciplinary transfer” – “administrative transfer” distinction and said (at 392):

Submissions made on behalf of the Officer identify the imposition of penalty as a key indicator of what is “disciplinary”. A perceived element of “penalty” in a transfer to a position attracting lower remuneration is central to the case sought to be made for the Officer.

A reduction in remuneration may, in some circumstances, be penal in character. [19] But it need not be. An employer who is beset by slackness of trade and, on that account and to avoid laying off staff, reduces employees’ wages does not thereby punish them. [20] In the same way, detention against a person’s will is in most cases penal but need not be. Laws authorising detention of persons suffering from contagious diseases or mental infirmity or predatory sexual offenders whose sentences have expired are protective in nature and serve the interests of public safety. [21]

As the High Court recognised in Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 at [32], the distinction between “punitive” measures and “protective” measures is elusive. It is also pertinent to quote what was said by Basten JA in Director-General, Dept of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]:

The scope and effect of s 173(2) were considered by the Full Bench of the Industrial Relations Commission in Commissioner of Police v Skelly (above). Noting that s 173(2) operates only where an officer has engaged in misconduct, the Commission took the view that a “non-disciplinary transfer” is “an action taken because of the officer’s misconduct which is remedial in nature and not an act of punishment per se”. [22] Dealing with a submission similar to that made by the Officer in this case, the Commission rejected the notion that “the dividing line between reviewable and non-reviewable action is the financial consequences of any action”. [23] The absence from the eleventh item in Schedule 1 of the qualifying words found in the twelfth item (which refers to “change of shift (but only if the change results in no financial loss and is imposed for a limited period and is subject to review”)) was not seen as giving rise to any relevant implication. No basis was seen for a conclusion that “the legislation had intended to distinguish between available actions based on purely financial criteria”.

The essence of the Commission’s decision was that “reviewable action” is “to be regarded as a sanction directed to more serious forms of misconduct” and “non-reviewable action” being “directed to rehabilitating the officer or to the taking of remedial action rather than have [sic] the objective of punishment”. [24] On that basis, “non-disciplinary transfer” was equated with “non-punitive transfer”. [25]

The compound adjective “non-disciplinary” in the expression “non-disciplinary transfer” indicates a transfer which is not “disciplinary”. Absence of any “disciplinary” quality – that is, a quality of administering “discipline” – is therefore the feature that distinguishes a “non-disciplinary transfer” from a transfer that is not a “non-disciplinary transfer”.

In the police context, “discipline” is a process through which coercive correction is exerted for the purpose of promoting efficiency, morale and attention to duty so that public confidence in the ability of the police force to protect the public may be maintained. Disciplinary measures are corrective in nature. They may, but need not, involve punishment or chastisement of the individual officer.

The “disciplinary” – “administrative” dichotomy has no basis in the statutory language and is, for present purposes, of analogical utility only. Some of the case law to which reference has been made [26] suggests a test of substantial or predominant purpose to identify that which is “disciplinary”. But any such test is problematic where, as here, the provision in question is concerned specifically with an officer “who engages in misconduct”, [27] particularly where the wider statutory scheme adopts a concept of “disciplinary infringement” that includes “any misconduct, irregularity, neglect of duty, breach of discipline or substantial breach of a code of conduct or other matter that constitutes or may constitute grounds for disciplinary action under any law”. [28] With “misconduct” recognised as one type of “disciplinary infringement”, there is conceptual difficulty in conceiving of any response to “misconduct” by way of s 173(2) order that is not in some way “disciplinary”. [29] The primary judge recognised this when she said that a finding of misconduct cannot be used to distinguish a “non-disciplinary transfer” from any other.

But because “non-disciplinary transfer” is identified as something that may be ordered in case of “misconduct”, this conceptual difficulty must be confronted and resolved. There is express recognition in the statute itself that circumstances of misconduct may ground an order for action (transfer) that is “non-disciplinary”. Because s 173(2) can be deployed only if misconduct has occurred, that express recognition leaves no scope for a “non-disciplinary” criterion based on absence of a principal or predominant purpose of discipline. Every action ordered under s 173(2) is, of its nature, a response to misconduct and must therefore be seen as “disciplinary”, unless it lacks the central characteristic of discipline, being coercive correction for the purpose of promoting efficiency, morale and attention to duty within the police force in order to maintain public confidence in the force’s ability to protect the public. Only if such coercive correction has played no part in the decision to order transfer is the transfer truly “non-disciplinary”. If any element of coercive correction is present, the transfer cannot be regarded as “non-disciplinary”. [30]

On this basis, it is not possible to accept the submission put on behalf of the Officer that transfer pursuant to a s 173(2) order to a position attracting lower remuneration is, of its nature, “disciplinary” because the resultant financial disadvantage represents a penalty or punishment. That adopts an altogether too narrow notion of “disciplinary”. Financial (or other) penalty or punishment is not a necessary aspect of the relevant notion of discipline.

Nor is it possible to accept the distinction drawn in Commissioner of Police v Skelly between a transfer “directed towards more serious forms of misconduct” and one “directed to rehabilitating the officer or to the taking of remedial action”. This is a version of the “disciplinary” – “administrative” dichotomy based on a distinction that has no foundation in the legislation. To the extent that Commissioner of Police v Skelly adopts a punitive – non-punitive distinction, it affords considerations of penalty and punishment a role which they are not given by the legislation.

A third basis of distinction that must be rejected is that which was adopted by the primary judge and turns upon the evaluative judgment of the Commissioner. The question whether a particular transfer is “non-disciplinary”, like the question whether any action other than transfer ordered under s 173(2) is “reviewable action” or “non-reviewable action”, is to be answered by reference to the statutory specifications in Schedule 1 in which discretionary or evaluative decisions of the Commissioner play no part. It is, in every case, a matter of assessing the particular action objectively against the statutory criteria.

I have said that if there exists any element of the coercive correction that is of the essence of “discipline”, a transfer pursuant to s 173(2) order is not a “non-disciplinary transfer”. It follows that cases of “non-disciplinary transfer” of officers who have engaged in misconduct are likely to be rare. But examples can be hypothesised. If such an officer is transferred, despite the finding of misconduct and simply because it is judged that he or she is unable to perform necessary duties in the present position, the transfer might be judged a “non-disciplinary transfer”. [31] The same conclusion might be reached if the reason for the transfer is to de-fuse personality clashes at a particular location without reference to the officer’s misconduct and without inquiring into or attributing responsibility. [32] A third possibility is where there is an excess of staff at the existing location and the transfer is solely to redress staff imbalance. In each of those hypothetical cases, it might be found that, although the officer is one who has engaged in misconduct, the transfer involves no element of relevantly coercive correction and is accordingly “non-disciplinary”.

In the present case, the transfer ordered by the Commissioner under s 173(2) on 7 August 2018 had very clear elements of coercive correction. The order identified the particular transfer as “a remedial measure” to “assist” the officer “in modifying and adjusting [his] behaviour”. Curtailing of the Officer’s independence of action by placing him under increased supervision for the express purpose of bringing about modification and adjustment of behaviour that had been found to be misconduct was the rationale for the transfer. That was made plain on the face of the order. The transfer was accordingly not a “non-disciplinary transfer”.

The Officer’s appeal against the decision of the primary judge emphasised the view that the determinant of “non-disciplinary transfer” is absence of reduction in remuneration. For the reasons I have stated, I do not consider that view to be correct. But the appeal was also advanced on the wider ground that the primary judge erred in finding that the determinant of whether a transfer is a “non-disciplinary transfer” is the evaluative decision of the Commissioner and that it was “open” to the Commissioner to treat the particular transfer as a “non-disciplinary transfer”. That wider ground has been made out. The matters raised by the notice of contention [33] are directed mainly to the matters of reduction in remuneration and the “disciplinary” – “management” dichotomy with which I have dealt. Those matters do not need to be addressed further.

I have not to this point mentioned the fact that the Officer ceased to be a police officer shortly before the matter was heard in this Court. He was medically retired with effect from 3 October 2019. That, however, does not render the proceedings moot. The amount of the Officer’s remuneration after the transfer and the amount of entitlements flowing from his retirement were calculated on the basis that the transfer was validly made as a “non-disciplinary transfer”. The conclusion that it was not of that character may cause emoluments to be recalculated.

In relation to the application for leave to appeal, it is sufficient to say that the issue raised is one of public importance going to the due administration of the New South Wales Police Force and that leave should, for that reason, be granted.

I propose orders as follows: