Cottle v NSW Commissioner of Police; Police Association of New South Wales v Commissioner of Police (NSW Police Force)

1. [1]

   BELL P: This application for leave to appeal is brought from the decision of Simpson AJ (the primary judge) in judicial review proceedings initiated by the NSW Commissioner of Police (the Police Commissioner) in respect of a decision of the Full Bench of the Industrial Relations Commission (IRC): NSW Commissioner of Police v Cottle [2019] NSWSC 1588.

2. [2]

   The primary judge granted the Police Commissioner’s application, declaring that the IRC did not have jurisdiction to hear and determine an application commenced by a former police officer, Mr Trevor Cottle (Mr Cottle) for unfair dismissal pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (the IR Act). The primary judge also made an order quashing orders of the Full Bench of the IRC, an order prohibiting the IRC from further hearing the unfair dismissal application, and an order in the nature of mandamus compelling the IRC to dismiss Mr Cottle’s application.

The history of the proceedings

1. [3]

   Mr Cottle was a member of the NSW Police Force from 20 December 2002 until 15 December 2016.

2. [4]

   On 1 December 2016, Mr Cottle was notified of the Police Commissioner’s decision under s 72A of the Police Act 1990 (NSW), to “cause [him] to be retired”. At that time, s 72A relevantly provided as follows:

3. [5]

   By application filed in the IRC on 14 December 2016, Mr Cottle sought relief under s 84 of the IR Act, claiming that the “cause … to be retired” decision was a “dismissal”, and that the dismissal was “harsh, unreasonable or unjust”. The terms of s 84 of the IR Act are reproduced at [28] below.

4. [6]

   On 3 February 2017, the Police Commissioner filed a notice of motion in the IRC by which he sought a declaration that the IRC had no jurisdiction to deal with Mr Cottle’s claim.

5. [7]

   On 22 August 2017, Murphy C acceded to the motion and held that the IRC lacked jurisdiction to hear and determine Mr Cottle’s unfair dismissal application, which was duly dismissed: Trevor Allan Cottle v Commissioner of Police [2017] NSWIRComm 1055. At [18]-[19] of his reasons, Murphy C said that:

6. [8]

   Pursuant to s 187 of the IR Act, Mr Cottle sought and was granted leave to appeal to the Full Bench of the IRC against the decision. On 19 December 2018, the Full Bench upheld the appeal and set aside Murphy C’s decision, holding that the IRC did have jurisdiction to determine Mr Cottle’s claim: Trevor Allan Cottle v Commissioner of Police [2018] NSWIRComm 1080.

7. [9]

   At [87]-[93] of its judgment, the Full Bench of the IRC held as follows:

8. [10]

   The Police Commissioner sought judicial review in the proceedings below of the orders made by the Full Bench of the IRC pursuant to s 69 of the Supreme Court Act 1970 (NSW). The primary judge noted that, on its face, the “cause … to be retired” decision under s 72A of the Police Act was a “dismissal” within the meaning of s 84 of the IR Act, and the Police Commissioner did not contend either at first instance or in this Court to the contrary. So much was consistent with Robinson v Commissioner of Police [2014] NSWIRComm 35 at [84]-[86]. The primary judge ultimately agreed, however, with the Police Commissioner’s submission, noting (at [5]) that:

9. [11]

   Accordingly, as noted at [2] above, her Honour granted judicial review, quashed the orders of the Full Bench of the IRC and declared that the IRC did not have jurisdiction to hear and determine Mr Cottle’s application for a remedy under s 84 of the IR Act for unfair dismissal.

10. [12]

    Looming large in the background of the decisions of Murphy C, the Full Bench of the IRC and the primary judge was the decision of the High Court in Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 (Eaton), which had involved the question of whether the power to dismiss a probationary constable pursuant to s 80(3) of the Police Act was amenable to an unfair dismissal review by the IRC pursuant to s 84 of the IR Act. The High Court held by majority that the IRC had no jurisdiction. For the majority, Heydon J wrote separately and there was a joint judgment of Crennan, Kiefel and Bell JJ.

11. [13]

    The essence of the primary judge’s reasoning in the present case is set out at [89]-[95] of her Honour’s judgment:

12. [14]

    A close consideration of Eaton and the legislative provisions with which it was concerned is obviously necessary for the purposes of this application for leave to appeal. As shall be seen, the terms and context of s 80(3) of the Police Act relating to probationary constables are very different from those concerned with medical discharge as contained in s 72A of the Police Act at the time of Mr Cottle’s dismissal (and which is now found in s 94B of that Act).

Grounds of appeal

1. [15]

   Mr Cottle seeks leave to appeal on the following grounds:

Intervention

1. [16]

   The Police Association of New South Wales (the Police Association) was not a party to any of the proceedings below, either in the IRC or in this Court. Notwithstanding this, it purported to file an application for leave to appeal from the decision of the primary judge.

2. [17]

   In written submissions, the Police Association submitted that it has an interest in these proceedings, as it is:

3. [18]

   The Police Association submits that it is “appropriate” for this Court to grant the required leave to appeal, as it is “both sufficiently interested in the proceedings and is aggrieved by the Decision”, for the following reasons:

4. [19]

   The Police Commissioner opposed the Police Association’s application for leave to appeal and was, in my view, well justified in doing so; the application should be dismissed. The Court, however, granted the Police Association leave to intervene in the hearing of Mr Cottle’s application for leave to appeal. The Police Association supported Mr Cottle’s arguments.

Leave to appeal

1. [20]

   Whilst the grant of leave to appeal was formally opposed by the Police Commissioner, that opposition was not vigorous.

2. [21]

   In my opinion, this is an appropriate case for the grant of leave to appeal. It raises an issue going to an important question of jurisdiction and, as the differing decisions of the primary judge and the Full Bench of the IRC illustrate, the issue is not free from complexity.

Submissions on appeal

1. [22]

   Broadly speaking, Mr Cottle and the Police Association sought to uphold the reasoning that had been advanced by the Full Bench of the IRC, and to distinguish the present matter from the High Court’s decision in Eaton, emphasising, amongst other matters, that the Police Act contained no provision by which a dismissal pursuant to s 72A could be challenged, unlike the position relating to a police officer who is removed by reason of the Police Commissioner’s loss of confidence in him or her, pursuant to s 181D. Emphasis was also placed upon the contrast between s 72A and the language of s 80(3) of the Police Act that was considered in Eaton and which authorised the Police Commissioner to dismiss a probationary police officer “at any time and without giving any reason”.

2. [23]

   The Police Commissioner, on the other hand, contended that the reasoning of Murphy C and that of the primary judge was correct and should be confirmed. The Police Commissioner submitted, consistent with the primary judge’s decision, that Eaton was not relevantly distinguishable from the circumstances of the current case. Emphasis was placed, in particular, on what was said to be the special nature of the police force, as disclosed by a full understanding of the Police Act, it being submitted that:

3. [24]

   To address these submissions it is necessary first to set out in some detail the statutory framework relevant to Mr Cottle’s case. Points of difference in relation to the statutory provisions considered in Eaton will principally be noted in an analysis of that case which follows the review of the relevant legislative provisions.

Statutory framework

1. [25]

   The statutory framework was set out with clarity in the primary judgment. The exposition of relevant statutory provisions set out below has been largely taken from the primary judgment, with minor modification.

2. [26]

   The IR Act received Royal Assent on 13 June 1996 and commenced on 2 September 1996. It replaced the Industrial Relations Act 1991 (NSW). Section 3(a) of the IR Act provides that an object of this Act, amongst other things, is to establish “a framework for the conduct of industrial relations that is fair and just”.

3. [27]

   Part 6 of Ch 2 of the IR Act sets out a regime for dealing with applications alleging unfair dismissal. Section 83 of the IR Act is headed “Application of Part [6]”. Relevantly, s 83(1)(a) provides that Pt 6 applies to the dismissal of any public sector employee. The Dictionary to the IR Act defines “public sector employee” as including a member of the NSW Police Force. Section 83(5) of the IR Act provides that a “dismissal”, in the case of a “public sector employee”, includes “dispensing with the services of the employee”.

4. [28]

   Sections 84(1) of the IR Act provides that:

5. [29]

   Section 88 of the IR Act sets out matters that the IRC may, “if appropriate”, take into account in determining claims under s 84 of the IR Act. Section 89 outlines five orders that the IRC may make in determining claims, which include, inter alia, orders for reinstatement, re-employment in another position, and payment of compensation.

6. [30]

   Section 405 of the IR Act provides:

7. [31]

   The Police Act has been subject to extensive, but piecemeal, amendment over the years. The references that follow are references to the provisions of the Police Act as applicable at the time relevant to these proceedings.

8. [32]

   Section 5 of the Police Act outlines that the NSW Police Force is comprised of four classes of members: (a) the Commissioner; (b) members of the Police Force Senior Executive Service; (c) all other police officers and administrative officers employed under the Police Act; and (d) temporary employees.

9. [33]

   Part 6 of the Police Act, comprising ss 62-80, is concerned with “[n]on-executive police officers”, and applies to all police officers other than the Police Commissioner and members of the Senior Executive Service. Division 2 of Pt 6 contains a number of provisions pertaining to the appointment of non-executive police officers, transfers and promotions.

10. [34]

    Section 72A of the Police Act, extracted at [4] above, was inserted into the Police Act to commence on 4 February 2008: Police Amendment Act 2007 (NSW). The Act had no equivalent provision prior to this time. As noted at [4] above, s 72A was repealed by the Government Sector Employment Legislation Amendment Act, and substantially re-enacted (in slightly modified terms) as s 94B of the Police Act.

11. [35]

    The terms of Div 4 of Pt 6, containing only one section, s 80, relevantly provided that:

12. [36]

    Part 8A of the Police Act contains detailed provisions for investigating and dealing with complaints about the conduct of police officers. It does not contain any provisions for the termination of employment of police officers about whom complaints have been made and substantiated.

13. [37]

    Part 9 of the Police Act, comprising ss 173-187, is entitled “Management of conduct within NSW Police Force”. It played an important role in the submissions on behalf of the Police Commissioner in particular. Part 9 comprises 8 Divisions.

14. [38]

    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. It is in the following terms:

15. [39]

    Division 1C of Pt 9, comprising ss 181E-181J, provides a mechanism for the “review” of a removal under s 181D. 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 Police Act.

16. [40]

    Division 1C is entitled “Review of Commissioner’s decision under Division 1B”. Section 181E provides:

17. [41]

    Section 181F makes specific provision for the proceedings on review. Inter alia, it specifies the sequence in which the IRC is required to proceed in conducting a review under Div 1C: it “must” first consider the Police Commissioner’s reasons for the decision to remove the applicant; it “must” secondly consider the case presented by the applicant as to why the removal is “harsh, unreasonable or unjust”; and it “must” thirdly consider the case presented by the Police Commissioner in reply. This is in contrast to s 162 of the IR Act, which empowers the IRC (subject to provisions of the IR Act) to determine its own procedure.

18. [42]

    Sections 181F(2) and (3) of the Police Act provide:

19. [43]

    Division 1C of Pt 9 of the Police Act affects the application of the IR Act to an application for review under that Division. Section 181G(1) provides that:

20. [44]

    The modifications effected by s 181G(1) were as follows:

21. [45]

    Section 181G(2) provided that:

22. [46]

    Section 218 of the Police Act provided that:

23. [47]

    Section 44(2) of the Police Act provided that the employment of an executive officer, and any matter relating to such employment, “is not an industrial matter” for the purposes of the IR Act. Section 88(1) of the Police Act made similar provision in relation to the appointment of non-executive officers: see [61] below. The High Court in Eaton held that s 218(1) of the Police Act “is now patently erroneous” (at [87]), and “does not operate in its terms” (at [90]). As explained by the primary judge, the former was because Pt 9 of the Police Act does affect the IR Act; and the latter was a consequence of the “level of inconsistency” between Pt 9 together with s 80(3) of the Police Act, on the one hand, and the unfair dismissal provisions of the IR Act, on the other hand.

24. [48]

    In the proceedings below, the Police Commissioner relied heavily on the decision of Eaton and, as has been noted, ultimately the primary judge found that the reasoning in Eaton bound her Honour to conclude that Pt 6 of Ch 2 of the IR Act did not apply to police officers in respect of whom a decision under s 72A of the Police Act had been made.

25. [49]

    In Eaton, Mr Eaton was a probationary constable appointed to the Police Force. Following disputes between Mr Eaton and his superiors about the former’s conduct, and while he was still on probation, Mr Eaton was dismissed under s 80(3) of the Police Act which, as set out above, provided at the time of Mr Eaton’s dismissal in May 2007 that:

26. [50]

    Mr Eaton sought a remedy under s 84 of the IR Act, claiming that the dismissal was “harsh, unreasonable or unjust”. He was successful, and an order for his reinstatement was made: David Eaton v Commissioner of Police [2010] NSWIR Comm 1035. The Police Commissioner appealed to the Full Bench of the IRC, which allowed the appeal and held that the IRC lacked jurisdiction to make the orders it had made: Commissioner of Police v Eaton (2011) 207 IR 209; [2011] NSWIRComm 51.

27. [51]

    This Court reversed that decision, holding that the IRC did have jurisdiction to make the orders it had made: Eaton v Industrial Relations Commission (NSW) (2012) 218 IR 289; [2012] NSWCA 30.

28. [52]

    On further appeal to the High Court, the two main issues were the interaction between s 80(3) of the Police Act and Ch 2 Pt 6 of the IR Act, and the effect of s 218 of the Police Act.

29. [53]

    In relation to the first of these issues, the High Court held that there was no jurisdiction in the IRC under s 84(1) of the IR Act to hear applications by persons dismissed under s 80(3) of the Police Act.

30. [54]

    The plurality (Crennan, Kiefel and Bell JJ) held that textual indications in the Police Act pointed towards a legislative intention that a decision made under s 80(3) of the Police Act to dismiss a probationary constable was not to be subject to merits review by the IRC under Pt 6 of the IR Act: see at [72].

31. [55]

    It should also be noted that the plurality placed some emphasis upon the nature (probationary) of the police officers to which s 80(3) of the Police Act applied, and what that character implied for the ability to dismiss such officers without merits review. Thus, their Honours said at [52]-[53]:

32. [56]

    Their Honours placed particular emphasis on the terms of s 80(3) of the Police Act which they characterised as "strongly suggestive of an unfettered power to dismiss": see at [74]. At [90], their Honours discerned an inconsistency between both the provisions of Pt 9 of the Police Act and s 80(3), on the one hand, and s 218(1) of that Act, on the other hand, such that, in the circumstances of the case, "s 218(1) does not operate in its terms." The plurality, in holding that s 80(3) was impliedly inconsistent with s 218(1), said (at [90]) that:

33. [57]

    Heydon J, agreeing with the plurality but expressing his reasons differently, identified four steps in reasoning that the Commissioner had no jurisdiction under s 84(1) of the IR Act to hear applications by persons dismissed under s 80(3) of the Police Act, as follows:

    1. (1)

       First, the language of s 80(3) of the Police Act points against the conferral of any jurisdiction on the Commission to deal with claims that a s 80(3) dismissal is “harsh, unreasonable or unjust” within the meaning of s 84(1) of the IR Act. The phrases “at any time”, “without giving reason” and “probationary” were all said to evidence an intention to exclude the jurisdiction of the IRC, as inconsistent with a challenge on the ground that the dismissal decision was harsh, unreasonable or unfair: Eaton at [11]-[18].

    2. (2)

       Secondly, the remedies under s 89 of the IR Act, including an order for reinstatement, for re-employment, for payment for lost remuneration, and for continuity of employment, are “clearly inconsistent” with the Police Commissioner’s power under s 80(3) of the Police Act: Eaton at [19]-[20].

    3. (3)

       Thirdly, the general provisions of the IR Act “must give way” to the particular provisions of s 80(3) of the Police Act: Eaton at [21].

    4. (4)

       Fourthly, the Police Commissioner’s powers under s 80(3) of the Police Act, in relation to probationary constables, stands in contrast with the Police Commissioner’s powers under s 181D of the Police Act, in relation to police officers: Eaton at [22]-[31].

Consideration

1. [58]

   The question that arises for determination is one of statutory construction. It is not a question that was determined in, or is governed by, Eaton, in terms of binding ratio decidendi. This Court’s task is to construe the Police Act and the IR Act by reference to established principles of statutory interpretation; it is not to construe the majority’s decision in Eaton. As McHugh J observed in Marshall v Director General, Department of Transport (2001) 205 CLR 603 at 632-3; [2001] HCA 37 at [62], in a passage cited in the unanimous judgment of the High Court in Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (2007) 233 CLR 259 at 270; [2008] HCA 5 at [31]:

2. [59]

   No disrespect is intended or conveyed in relation to the decision in Eaton by heeding the High Court’s injunction to attend to, and not to stray from, the “precise terms” of the statutory text: Baini v R (2012) 246 CLR 469 at 476; [2012] HCA 59 at [14] and the cases there cited; see also P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters Australia) at [33.120]. Eaton is obviously a decision that must be considered carefully by this Court in its determination of this appeal; it is not, however, the first port of call. The beginning and end of the task of statutory interpretation is the statute or, in this case, statutes, that fall to be construed: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47].

3. [60]

   Although non-executive police officers in New South Wales are not engaged as employees under contracts of employment, but are independent office holders exercising original authority under statute and the common law (see the illuminating and learned discussion by Leeming JA in State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 at [50]-[63]), non-executive members of the police force, such as Mr Cottle, fall within the definition of “public sector employees” in the IR Act, and thus are members of the class of persons to whom the operation of the IR Act is extended: IR Act s 83(1).

4. [61]

   It may also be noted that s 85 of the Police Act deems the Police Commissioner to be the employer for the purposes of any proceedings relating to a non-executive police officer held before a competent tribunal with jurisdiction to deal with “industrial matters”. The Police Act does not define “industrial matters”, although s 88(1) may found an implication that, other than the matter dealt with in that sub-section, “industrial matters’’ picks up the definition of that expression in s 6 of the IR Act which includes, in s 6(2)(e), “the termination of employment of (or the refusal to employ) any person or class of persons in any industry”. Section 88(1) of the Police Act provided that:

5. [62]

   The key point to be made at the outset is that s 85 of the Police Act contemplates proceedings relating to a non-executive police officer being held before a competent tribunal with jurisdiction to deal with industrial matters. In the context of a New South Wales statute, the reference to such a tribunal may reasonably be taken to be a reference to the IRC. So much is also consistent with the plurality’s acceptance in Eaton at [43], that “in many respects, [the IR Act] applies to the conditions of employment of police officers.”

6. [63]

   If this point needed confirmation, it is supplied by the terms of s 218(1) of the Police Act which, it will be recalled, provides that “[t]he Industrial Relations Act 1996 is not affected by anything in this Act.”

7. [64]

   The language of s 218 is not, on its face, ambiguous, but its literal meaning and apparently wide breadth was called into question by the plurality in Eaton, as has been noted at [56] above. At [82], their Honours described s 218 as “troublesome”; cf the dissenting judgment of Gageler J who regarded it as “determinative”: at [104]. It is critical to note, however, that the plurality did not hold that s 218(1) was robbed of all operation, meaning and effect. Rather, the plurality’s conclusion was far narrower, being that “if the general jurisdiction of the IR Act is recognised by s 218, it is withdrawn by s 80(3) in so far as decisions under that provision are concerned” (emphasis added, footnote omitted): see Eaton at [90], and see [56] above for fuller context. Earlier, at [88], the plurality had said that, even if one were to proceed on an expressio unius assumption as to the meaning of s 218(1) derived from s 218(2) – the approach which the Court of Appeal had taken in that case – “the general provision of s 218 would yield to what is implied by s 80(3) of the Police Act.”

8. [65]

   That s 218 of the Police Act was not to be denuded of all operation, meaning or effect was confirmed by the plurality in their conclusion at [92]:

9. [66]

   Much the same observation may be made in respect of the separate reasons of Heydon J, the final member of the majority: see the summary of Heydon J’s reasoning at [57] above.

10. [67]

    Pausing at this stage of the analysis, it may be observed that:

11. [68]

    In addition, the special characterisation or nature of probationary constables to which the plurality gave some attention in Eaton (see at [55] above) has no application in the present case.

12. [69]

    In this context, a question arises as to whether there is any statutory indication in the Police Act, either analogous to s 80(3) or otherwise, which warrants construing s 218 of the Police Act as inconsistent (an internal inconsistency) with other provisions of that Act, and as not meaning what it says. In my opinion, there is none.

13. [70]

    Even if such a provision or provisions could be identified, it must also be asked whether there is any inconsistency with the IR Act (an external inconsistency) which means that the important statutory right conferred on public sector employees by s 84 of that Act should yield to the provisions of the Police Act, especially when, subject only to the limited scope for judicial review, a far-reaching decision made under s 72A of the Police Act is not subject to any other review process under that or any other Act. Again, my answer to this question is also “none”.

14. [71]

    Section 72A of the Police Act (see [4] above) is, in terms, very different from s 80(3). Contrary to what was submitted on behalf of the Police Commissioner and what was stated by the primary judge at [93], s 72A requires far more than a medical assessment to be made. Rather, it requires a number of non-medical assessments to be made, including what level of fitness is required to discharge the duties of the officer’s position, and whether or not the unfitness or incapacity has arisen from causes within the officer’s control. It also involves an ultimate exercise of discretion (“may”) by the Police Commissioner to “cause the officer to be retired.”

15. [72]

    Section 80(3), by contrast, is more peremptory, permitting the Police Commissioner to dismiss a probationary officer “at any time and without giving any reason.” In this context, it may be appreciated how the unfettered nature of s 80(3) (upon which both the plurality and Heydon J placed emphasis in Eaton) could be thought to contra-indicate a legislative intention to permit broad review by a general tribunal such as the IRC of an administrative decision made pursuant to that section. Section 72A lacks the same unfettered character.

16. [73]

    Mr Kirk SC, who appeared with Mr Seck for the Commissioner, submitted, as noted at [23] above, that the special character of the police force meant that decisions concerning removal of police officers should be taken to be exclusively governed by the provisions of the Police Act. He noted that, as regards non-executive police officers, there were three routes by which an officer’s position may be “vacated”, to borrow the euphemistic language of the Police Commissioner’s written submissions. These were by:

17. [74]

    Building on Eaton in respect of s 80(3) and probationary constables, and s 181D in relation to what may broadly be described as dismissal “for cause”, it was submitted that “the remedies available to NSW Police officers have been restricted and attenuated to take into account the unique industrial and operational considerations relevant to police work.”

18. [75]

    The force of this argument is significantly diminished, however, by the fact the Police Act does grant the IRC a role, albeit modified, in the case of dismissal for cause, by reference to the same criteria – “harsh, unreasonable or unjust” – as appears in s 84 of the IR Act: see s 181E(1) of the Police Act, set out at [40] above. It is no doubt the case that the legislature has modified the procedures by which the IRC deals with “harsh, unreasonable or unjust” challenges by dismissed police officers dismissed pursuant to s 181D. That statutory modification may well reflect the special character of the police force to which the Police Commissioner drew attention (see [23] above). But what is perhaps most significant for present purposes, and where the Police Commissioner’s argument falls down, in my opinion, is that the legislature has left some, albeit modified, scope for review by the IRC of dismissal of police officers for cause.

19. [76]

    Whilst the absence of such review for dismissal of probationary constables may be explicable in part by reference to their limited and contingent membership of the police force, it would be anomalous in the extreme for established officers dismissed pursuant to s 72A of the Police Act to be left without any recourse to challenge, on grounds that are open to other public sector employees. The position is a fortiori when it is recalled that a s 72A dismissal may only take place where the police officer has been innocent of any actual misconduct, or has not been responsible for his or her unfitness or incapacity: see Police Act s 72A(b)(ii), extracted at [4] above. If, as the Police Commissioner submitted, this results in a “superior” right of review for such an officer, as opposed to that available to an officer dismissed for cause pursuant to s 181D, that is not a surprising or irrational matter.

20. [77]

    The Police Commissioner’s response to this point was that the Police Act manifested an intention that only certain decisions were to be the subject of review, namely those under s 181D for which review was expressly provided by ss 181E, 181F and 181G. The corollary of this submission was that “absent such provision, review is not permitted.”

21. [78]

    There are at least two problems with this submission, in addition to the anomaly that I have already pointed out at [75] above.

22. [79]

    First, it does not accommodate s 218 of the Police Act, and what was said about that section in Eaton cannot save it in this regard. I have already drawn attention to the fact that the plurality confined their analysis of s 218 to its interaction with s 80(3) which led to a limited reading down, confined to cases of dismissal pursuant to that section. There is no equivalent provision to s 80(3) pointed to by the Police Commissioner in the circumstances of the current case.

23. [80]

    Secondly, the Police Commissioner’s argument is effectively an expressio unius argument but, as Mr Kirk was constrained to concede in oral argument, such an argument cuts both ways and, in combination with the relevantly unqualified operation of s 218(1), the argument breaks against the Police Commissioner rather than in favour of him. In other words, with respect to non-probationary police officers, the legislature only saw the need to confine a “s 84 style” review, that is to say, a review on the basis of “harsh, unreasonable or unjust” grounds, to the less meritorious case of a dismissal of a non-probationary police officer for cause, pursuant to s 181D. A decision to dismiss pursuant to s 72A, moreover, is not quarantined from review, even to a limited extent, by any provision equivalent to s 181D(7) of the Police Act: see [38] above.

24. [81]

    For all of these reasons, and with the greatest of respect to the primary judge, I do not share her Honour’s view that Eaton binds this Court to conclude that Ch 2 Pt 6 of the IR Act (which includes s 84(1)) does not apply to police officers in respect of whom a decision under s 72A of the Police Act has been made.

25. [82]

    In my opinion, the IRC has jurisdiction to entertain Mr Cottle’s claim.

Conclusion

1. [83]

   In my opinion, the following orders should be made:

   1. (1)

      In proceedings 2019/381789 and 2020/63922, grant leave to appeal and allow the appeal with costs.

   2. (2)

      In proceedings 2019/393098, dismiss the application for leave to appeal.

   3. (3)

      Set aside the decision of Simpson AJ and, in lieu thereof, dismiss the Summons for prerogative relief brought by the Commissioner of Police (NSW Police Force) with costs.

   4. (4)

      No order as to the costs of the Police Association of New South Wales.

2. [84]

   BASTEN JA: I agree with Bell P.

3. [85]

   PAYNE JA: I agree with Bell P.