Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30
• Hearing dates: 2 November 2011
• Decision date: 06 March 2012
• Before: Bathurst CJ at 1; Handley AJA at 2; Tobias AJA at 47

Decision

(a) Pursuant to s 69 of the Supreme Court Act 1970 (the Act) the record of the proceedings in the Industrial Commission of New South Wales (the Commission) in matter No. IRC600 of 2010 be brought up to this Court;

(b) Pursuant to s 69 of the Act the whole of the decision of, and the orders made by, the Full Bench of the Commission on 5 May 2011 in matter No IRC 600 of 2010 be quashed;

(c) Pursuant to s 69 of the Act matter No. IRC 600 of 2010 be remitted to the Full Bench of the Commission to be decided according to law in conformity with the decision of this Court;

(d) The second respondent pay the applicant's costs of the proceedings in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: JURISDICTION - Industrial Relations Commission - Probationary police constable - Unfair dismissal - Right to review - Inconsistency or incongruity between the provisions of Police Act and Industrial Relations Act - implied repeal
• Legislation Cited: Industrial Arbitration (Unfair Dismissal) Amendment Act 1991; Industrial Arbitration Act 1940; Industrial Relations Act 1991; Industrial Relations Act 1996; Industrial Relations (General) Regulation 2001; Industrial Relations (General) Amendment (Unfair Dismissal) Regulations; Interpretation Act 1987; Police Act 1990; Police Act 1998; Police Regulation 2001; Police Regulation 2008; Police Legislation Further Amendment Act 1996; Police Service Act 1990; Police Service Amendment Act 1997; Police Service (Complaints, Discipline and Appeals) Amendment Act 1993; Public Service Act 1979; Public Sector Employment and Management Act 2002; Statute Law (Miscellaneous Provisions) Act (No 2) 1996; Supreme Court Act 1970; (SA) Industrial Conciliation and Arbitration Act 1972; (SA) Industrial and Employee Relations Act 1994; (SA) Police Act 1998
• Cases Cited: Anthony Hordern & Sons Limited v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538; BP Australia Limited v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322; Butler v Attorney-General (Vic) (1961) 106 CLR 268; De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207; Eaton v Commissioner of Police [2010] NSWIRComm 1035; Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155; Commissioner of Police v Eaton [2011] NSWIRComm 51; R v Commissioner of Police; ex parte Boe (1987) 2 Qd 76; Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130; Ferraris v Commissioner of Police [2006] NSW IRC Comm 243; Gorry v Mackenzie [2009] WASC 326; Jarrett v Commissioner of Police [2005] HCA 50; (2005) 224 CLR 44; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101; Myers v Police Service of New South Wales (1999) 93 IR 123; Nassar v Public Service Board (1986) 16 IR 394; O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342; Owens v NSW Police Service (1998) 87 IR 1; Public Service Association v The Industrial Commission of New South Wales [1985] 1 NSWLR 627; Ridge v Baldwin [1964] AC 40; Rose v Hvric (1963) 108 CLR 353; R v Wallis; Ex parte Employers Association of Wool Selling Brokers and Ors (1949) 78 CLR 529; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454
• Texts Cited: Pearce and Argument "Delegated Legislation Australia" 3rd Ed LexisNexis Butterworths 2005; Pearce and Geddes "Statutory Interpretation Australia" 7th Ed LexisNexis Butterworths 2011
• Category: Principal judgment
• Parties: Applicant: David Grant EATON; First Respondent: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES; Second Respondent: COMMISSIONER OF POLICE
• Representation: Counsel: Applicant: Mr S Crawshaw SC/Ms P Lowson; Second Respondent: Mr M Kimber SC/Mr M Seck; Solicitors: Applicant: Walter Madden Jenkins; First Respondent: Industrial Relations Commission of New South Wales; Second Respondent: Bartier Perry
• File Number(s): 2011/186755

Decision under appeal

• Citation: Commissioner of Police v Eaton [2011] NSW IR Comm 51
• Date of Decision: 2011-05-05 00:00:00
• Before: Walton VP, Marks J, Kavanagh J
• File Number(s): IRC 1111 of 2009

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant David Eaton was a probationary constable of police in the NSW Police Force. On 22 July 2009 Assistant Commissioner Corboy ordered that he be dismissed from his employment, pursuant to s 80(3) of the Police Act 1990 (the Police Act ).

The applicant commenced proceedings in the Industrial Relations Commission (the Commission), claiming relief from his dismissal on the ground that it was harsh, unreasonable or unjust, pursuant to s 84(1) of the Industrial Relations Act 1996 (the IR Act ). The Commission upheld Eaton's claim on 30 June 2010.

The respondent Commissioner of Police filed an application, seeking leave to appeal and to appeal from the decision. That application was heard by the Full Bench of the Commission. The primary question in the proceedings was whether the Commission had jurisdiction to hear and determine the applicant's application. The issue to be decided was whether there was an inconsistency or incongruity between the provisions of Part 6 of Chapter 2 of the IR Act and the s 80(3) of the Police Act .

On 5 May 2011, The Full Bench granted the respondent leave to appeal, quashed the decision of the Commission and dismissed the applicant's application. The Full Bench found that there was an inconsistency or incongruity between the provisions of Part 6 of Chapter 2 of the IR Act and the s 80(3) of the Police Act . Consequently, the Commission lacked jurisdiction to hear and determine the applicant's application.

Eaton challenged the Full Bench's finding that it lacked jurisdiction by instituting proceedings by summons in the supreme court seeking orders in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970.

Held

That the Commission had jurisdiction to hear and determine the applicant's claim under Pt 6 of Ch 2 of the IR Act and that the relief sought by the applicant should be granted.

per Tobias AJA. Bathurst CJ agreeing :

(a) A survey of the legislative history of the Police Act and the IR Act reveals that the legislature, through the respondent and the Police Minister, was aware at all material times that first, probationary constables who were dismissed pursuant to s 80(3) of the Police Act were entitled to engage and had engaged Pt 6 of Ch 2 of the IR Act ; second, that Divisions 1B and 1C of Pt 9 of the Police Act were enacted in 1997 with that knowledge and, third, that those Divisions were not intended to apply to probationary, as distinct from, confirmed police officers.

(b) The present case was one of implied inconsistency and not explicit inconsistency.

(c) The fact that the applicant was a probationary police officer did not relevantly differentiate his dismissal under s 80(3) of the Police Act from the removal of a confirmed officer from the Police Force pursuant to s 181D(1) of that Act.

(d) To permit a probationary constable to engage Pt 6 of Ch 2 of the IR Act would not relevantly place that officer in a position of advantage over a confirmed officer seeking to engage the provisions of Divisions 1B and 1C of Pt 9 of the Police Act .

(e) The remedies available to the Commission under Pt 6 of Ch 2 were not irreconcilable with the position of a dismissed officer as a probationary constable.

(f) There was no good reason why the power of the respondent to dismiss under s 80(3) could not be read harmoniously with the right of the dismissed officer to engage Pt 6 of Ch 2. The right of that officer to engage those provisions did not detract from or inhibit the respondent's power to dismiss the officer pursuant to s 80(3).

(g) As s 80(3) was the only provision (apart from s 88 which was irrelevant) of the Police Act relied on by the respondent as being incompatible with Pt 6 of the IR Act , as it pre-dated the IR Act , it could not effect an implied repeal of those provisions with regard to the dismissal of a probationary police officer.

(h) The respondent's position was not assisted by Divisions 1B and 1C of Pt 9 of the Police Act which post-dated Pt 6 of Ch 2 of the IR Act as the parties accepted that Pt 9 did not apply to probationary police officers.

(i) The existence of Pt 9 did not lead to the conclusion that on its true construction s 80(3) excluded a dismissed probationary police officer from engaging the unfair dismissal provisions of Pt 6 of Ch 2 of the IR Act .

(j) Irrespective of the validity of the implied inconsistency argument, Pt 6 of Ch 2 of the IR Act (in its application to probationary police officers) was saved by s 218(1) of the Police Act.

per Handley AJA; Bathurst CJ agreeing :

(a) There are a number of provisions of the Police Act which evince an intention not to exclude probationary constables from the unfair dismissal provision of the IR Act .

(b) There were also provisions of the IR Act which assume that a decision of the Commission under its unfair dismissal provisions might be inconsistent with the Police Act .

(c) Both with respect to the Police Act and the IR Act Parliament had given close attention on a number of occasions to the relationship between the two statutes without excluding probationary constables from the unfair dismissal regime in the IR Act.

(d) By virtue of s 83(2)(b) of the IR Act , the unfair dismissal provisions of that Act apply to probationary constables unless specifically excluded by regulation and there was no relevant exclusion in the present case.

(e) Section 80(3) of the Police Act is not intrinsically inconsistent with the unfair dismissal regime of the IR Act and even if there was such an inconsistency, the IR Act , being the later Act, should by virtue of s 218 of the Police Act and s 405(3) of the IR Act , prevail.

(f) Accordingly, the unfair dismissal regime in the IR Act should be characterised as adding an additional layer of legislation to the Police Act so that each may operate within its respective field: Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 at 553-4 per Lord Wilberforce, applied.

(g) The Commission therefore has jurisdiction to hear and determine the applicant's claim under the unfair dismissal regime of the IR Act .

Judgment

1 BATHURST CJ: I agree with Handley AJA and with Tobias AJA.

2 HANDLEY AJA: These proceedings for judicial review seek orders in the nature of certiorari and mandamus to require the Industrial Relations Commission (the Commission) to exercise its jurisdiction in an unfair dismissal case. The proceedings in the Commission were brought by a probationary constable (the applicant) who had been summarily dismissed by the Commissioner under s 80 of the Police Act .

3 The application concerns the relationship between the Police Act 1990 (as amended up to Act No 56 of 2009) (the Police Act) and the Industrial Relations Act 1996 (as amended up to Act No 63 of 2010) (the 1996 Act).

4 On 22 July 2009 the Commission ordered the applicant's reinstatement under the unfair dismissal regime in Pt 6 of the 1996 Act (ss 83-90) (the unfair dismissal regime) ([2010] NSW IR Comm 1035). However on 5 May 2011 the Full Bench held ([2011] NSW IR Comm 51) that the Commission had no jurisdiction because probationary constables were excluded by s 80 of the Police Act.

5 Section 80 (s 73 in the original Act) provides:

"(1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable.

(2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations.

(3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason.

(4) ..."

6 The unfair dismissal regime enables a dismissed employee to challenge his dismissal in the Commission on the ground that it was "harsh, unreasonable or unjust" (s 84(1)). Section 83 (1)(a) applies the regime to the dismissal of any public sector employee, defined as including a member of the Police Force. There is a wide definition of dismissal for public sector employees in s 83(5)(b). If the Commission finds that the dismissal was unfair it can, inter alia, order reinstatement (s 89(1)).

7 The relevant principles were summarised by Lord Wilberforce in Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538, 553-4:

"... the argument raises the issue ... of the interrelation in law of two statutes whose field of application is different, where the later statute does not expressly repeal or override the earlier. The problem is one of ascertaining the legislative intention: Is it to leave the earlier statute intact, with autonomous application to its own subject matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field?

Discussion of such question commonly starts from the use of the maxim ' generalia specialibus non derogant ' and with the citation from the judgment of this Board in Barker v Edger [1898] AC 748, 754:

'When the legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject matter and its own terms.'

The principle ... is ... unexceptionable but cases are rarely so simple as this, for even where the earlier statute deals with a particular subject matter which is included within the general subject matter with which the later statute is concerned, it is still a matter of legislative intention, which the courts endeavour to extract from all available indications, whether the former is left intact, or is superseded."

8 In Ferdinands v Commissioner for Public Employment [2006] HCA 5, 225 CLR 130 the High Court held that the unfair dismissal regime in the Industrial and Employee Relations Act 1994 (SA) could not be invoked by a police officer convicted of assault who had been dismissed by the Commissioner of Police under a special power in the Police Act 1998. Gleeson CJ said at 134:

"The problem is one of statutory interpretation; a problem that arises only because the legislature did not state an intention either that the two statutory regimes should both apply in such a case, or that the second regime should apply to the exclusion of the first. The legislature may, by necessary implication, manifest an intention of the latter kind, although partial repeal of an earlier statute by a later statute will only be inferred on 'very strong grounds'."

9 Gummow and Hayne JJ said at 137-8:

"It has long been recognised that even though one statute does not expressly repeal an earlier statute, the later statute must be read as impliedly repealing the earlier, if the two are inconsistent. Inconsistency lies at the root of this principle. But, as Isaacs J pointed out in 1907, 'It is very hard to formulate a rule which will apply to every case of implied repeal'. There are however two cardinal considerations. First as Gaudron J said in Saraswati v The Queen (1991) 172 CLR 1 at 17, '[t]here must be very strong grounds to support [t]he implication, for there is a general presumption that the legislature intended that both provisions should operate'. Secondly, deciding whether there is such inconsistency (contrariety or repugnancy) that the two cannot stand or live together (or cannot be reconciled) requires the construction of, and close attention to, the particular provisions in question."

10 Later they said at 145-6:

"No conclusion can be reached about whether a later statutory provision contradicts an earlier without first considering both provisions. If, upon their true construction, there is an 'explicit or implicit contradiction' between the two the later Act impliedly repeals the earlier ... The question ... is whether the presumption that two laws made by the one legislature are intended to work together is displaced."

11 The Police Act has been extensively amended since 1990 and it will be convenient to consider the position when it was first enacted.

12 The unfair dismissal regime can be traced back to the Industrial Arbitration (Unfair Dismissal) Amendment Act 1991 which inserted the regime in the Industrial Arbitration Act 1940 (the 1940 Act). Section 97ZM(1) provided:

"Subject to s 91ZL, this Division has effect in relation to the dismissal ... of ... an employee despite:

(a) the provisions of any other Act with the respect to conditions of termination of, or dismissal from employment; and

(b) ...".

13 The Industrial Relations Act 1991 (the 1991 Act) repealed the 1940 Act later that year and re-enacted its unfair dismissal regime. Section 255(1) relevantly provided:

"(1) This Part has effect in relation to the dismissal ... of an employee despite:

(a) The provisions of any other Act with respect to conditions of termination of, or dismissal from, employment; and

(b) ...".

14 Thus the unfair dismissal regime in the 1991 Act applied to probationary constables summarily dismissed under the then equivalent of s 80 of the Police Act, until the 1991 Act was replaced by the 1996 Act.

15 If Parliament intended in 1996 to remove the protection that probationary constables had under the unfair dismissal regime in the 1991 Act, it could be expected to make that intention clear.

16 The 1996 Act did not re-enact s 255(1) of the 1991 Act, but made provision to that effect in s 405(3), considered in [32]-[34].

17 The Police Act provides for the appointment, promotion, discipline and dismissal of members of the Police Force, from the Commissioner down. It deals separately with the appointment and dismissal of probationary police officers (Pt 6, s 80(2)(3)); members of the Senior Executive Service (Pt 5); non-executive police officers (Pt 6); and non-executive administrative officers (Pt 6A). It also deals in considerable detail with the application of the 1996 Act to members of the Force.

18 Section 44(2A) in Pt 5 (inserted by Act No 43 of 2002) specifically excludes members of the Senior Executive Service from the unfair dismissal regime.

19 Part 9 (inserted by Act No 38 of 1993), deals generally with the management of conduct within the Force. Section 173 in Div 1 deals with disciplinary action short of dismissal or removal. Section 174 in Div 1A (inserted by Act No 38 of 1995 amended by Act No 123 of 1998) gives the Commission jurisdiction to review reviewable disciplinary action under Div 1 which is beyond power, harsh, unreasonable or unjust. Sections 174-181 in that Division deal with the Commission's procedure in such cases, and modify the unfair dismissal regime.

20 Section 181D(1) in Div 1B (inserted by Act No 108 of 1996, amended by Act No 23 of 1997) provides that the Commissioner may remove an officer if he does not have confidence in that officer's competence, integrity, performance or conduct. Section 181E(1) in Div 1C (inserted by Act No 23 of 1997) provides that an officer removed under s 181D may apply to the Commission "for a review ... on the ground that the removal is harsh, unreasonable or unjust".

21 Sections 181F and 181G (inserted by Act No 23 of 1997), apply the unfair dismissal regime as modified by ss 181F-181J. Section 181K in Div 1D, (inserted by Act No 23 of 1997), requires a review under Div 1C to be heard by a judicial member of the Commission.

22 Section 80(1), (2) and (3) of the Police Act (inserted by Act No 63 of 2006), re-enacted s 73(1), (2) and (3) in the original 1990 Act.

23 Section 218 of the Police Act provides:

"(1) The Industrial Relations Act 1996 is not affected by anything in this Act.

(2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996 " (emphasis supplied).

24 This section, as s 117 in the original Act, referred to the 1940 Act. It was amended in 1993 to refer to the 1991 Act and renumbered s 218. It was amended again in 1996 to refer to the 1996 Act.

25 Section 44, referred to in s 218(2), originally excluded executive officers from access to the Industrial Commission, the Police Tribunal, the Government and Related Employees Appeal Tribunal, and judicial review in relation to their appointment or non appointment to a vacant position, and their discipline, removal or remuneration. It was amended in 1993, 1996, 1998 and 2002, and currently subs (2A) excludes members of the Senior Executive Service from the 1996 Act.

26 Section 89, referred to in s 218(2), was repealed by Act No 63 of 2006 and replaced by s 88. Section 68 of the Interpretation Act 1987 requires the reference to s 89 to be read as a reference to s 88. This provides that the 1996 Act does not apply to appointments to vacant non-executive positions but preserves the jurisdiction of the Government and Related Employees Appeal Tribunal.

27 The effect of s 218, taken literally, is that s 80(2) and (3) in the Police Act do not affect the unfair dismissal regime in the 1996 Act.

28 Parliament has given attention in the Police Act to its relationship with the 1991 and the 1996 Acts in s 218 in 1990, 1993 and 1996, in Pt 5 in 2002 ([18] above), in Pt 9 Div 1A ([19] above) in 1993, 1995 and 1998, and in Divs 1B, 1C and 1D ([20]-[21] above) in 1996 and 1997. It did all this without excluding probationary constables from the unfair dismissal regime.

29 Parliament has also given attention in the 1996 Act to the relationship between the two Acts ([7] above). Section 83(2) provides, so far as relevant:

"This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes:

(a) ...

(b) employees serving a period of probation or qualifying period

(c) ...".

30 Subsection (3) provides:

"This Part does not apply to the dismissal of ... any such employee who is an executive officer to whom ... Part 5 of the Police ... Act 1990 applies."

31 This made Parliament's intention doubly clear because s 44(2A) of the Police Act ([18] above), mentioned in s 218 (2) of that Act, is to the same effect.

32 Section 405 of the 1996 Act provides:

"(1) Any award or order of the Commission does not have effect to the extent that it is inconsistent with:

(a) a right of appeal under ... the [Police] Act, or

(b) a function under the [Police] Act with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty.

(2) The regulations may provide that an award or order of the Commission has effect despite any right or function referred to in subsection (1).

(3) This section does not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair dismiss a ls)."

33 The Court was not referred to any regulations made under s 405(2). The functions referred to in s 405 (1)(b) do not include those affecting probationary constables. The important provision is subs (3) which provides that a decision under the unfair dismissal regime is not affected by the Police Act. In other words, to the extent of any inconsistency, the decision under the 1996 Act is to prevail.

34 Section 405(3) can only affect probationary constables because all other members of the Police Force are either completely excluded from the unfair dismissal regime or are covered by a modified version.

35 Section 83(2)(b) ([29] above) provides that employees serving a period of probation can be excluded by regulation from the unfair dismissal regime. Prima facie therefore the regime applies to probationary constables unless they are specifically excluded.

36 The Industrial Relations (General) Regulation 2001 cl 5B (relevantly indistinguishable from cl 5B inserted by the Industrial Relations (General) Amendment (Unfair Dismissal) Regulation 1997) (the exemption regulation) provides, so far as relevant:

" (1) For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act::

(a) ...

(b) ...

(c) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either:

(i) the period, or the maximum duration, is 3 months or less, or

(ii) if the period, or the maximum duration, is more than 3 months-the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment,"

37 The Police Regulation 2008 cl 12 provides:

"(1) In accordance with section 80 (2) of the Act, a person when first appointed as a police officer of the rank of constable is to be appointed on probation:

(a) for a period of 1 year, or

(b) for such longer or shorter period (being not less than 6 months) as the Commissioner may direct in the case of that person."

38 Under cll 13 and 14 confirmation of probationary appointments is subject to completion of the period of probation and other conditions.

39 In Ferraris v Commissioner of Police [2006] NSW IRC Comm 243 the Full Bench of the Commission held that the exemption regulation did not apply to probationary constables because [51] under cl 13 of the Police Regulation 2001 (indistinguishable from cl 12 of the 2008 Regulation) the Commissioner could increase the probation period at any time. This meant that the maximum duration of their probation was not determined in advance.

40 The Full Bench said [1], [3]:

"1. Until recently it was assumed that probationary police constables in New South Wales had rights of redress against their dismissal ...

2 ...

3. There have been a number of decisions in this Commission which proceeded on the assumption that there was power to order reinstatement, or to provide other forms of redress for the dismissal of a probationary police constable: See, for example: Owens v New South Wales Police Service (1998) 87 IR 1; Myers v Police Service of New South Wales (1999) 93 IR 123; Police Association of New South Wales (on behalf of Adam Tregonning) and New South Wales Police Service [2000] NSW IRC Comm 14."

41 Mr Kimber SC for the Commissioner did not argue that Ferraris was wrongly decided.

42 Ferdinands [2006] HCA 5, 225 CLR 130 (above [8]-[10] is distinguishable for a number of reasons. In that case the power of dismissal was conferred by the later Act, not the earlier. "[C]lose attention to the particular provisions" in the two Acts, ([9] above) shows that Parliament intended both to work together and this is confirmed by the extensive legislative history. The unfair dismissal regime under the 1991 Act applied to probationary constables, and there was nothing in the 1996 Act which showed that Parliament intended to exclude them from the new regime.

43 Section 80(3) of the Police Act is not intrinsically inconsistent with the unfair dismissal regime. Mr Crawshaw SC for the applicant relied on the general law which allows a private employer to dismiss an employee "at any time" and "without giving reasons": Ridge v Baldwin [1964] AC 40, 65 per Lord Reid. In the case of private employees this attracts rather than excludes the unfair dismissal regime. There seems to be no reason in principle why the position should be different for public employees liable to summary dismissal in the same way.

44 The unfair dismissal regime does not deprive an employer of his power of dismissal or prevent it being exercised. It operates on and after an exercise of the power, which can be reviewed and in appropriate cases reversed.

45 In these circumstances the unfair dismissal regime should be characterised, in the words of Lord Wilberforce ([8] above) as adding "an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field."

46 Parliament has given close attention to the relationship between the two Acts in both. The general sections dealing with that relationship, s 218 of the Police Act and s 405(3) of the 1996 Act, show that, in the absence of an appropriate exemption by regulation, the unfair dismissal regime applies to probationary constables. The orders proposed by Tobias AJA should be made.

47 TOBIAS AJA: On and prior to 22 July 2009 the applicant, David Grant Eaton, was a probationary constable of police in the NSW Police Force. On that date Assistant Commissioner Corboy ordered that he be dismissed from his employment as a probationary police officer pursuant to s 80(3) of the Police Act 1990 (NSW) (the Police Act ).

48 The applicant commenced proceedings in the Industrial Relations Commission (the Commission) pursuant to s 84(1) of the Industrial Relations Act 1996 (the IR Act ) claiming relief from his dismissal on the ground that it was harsh, unreasonable or unjust. That application was determined by Commissioner Bishop who, on 30 June 2010, upheld the applicant's claim: Eaton v Commissioner of Police [2010] NSWIRComm 1035.

49 On 20 July 2010 the respondent Commissioner of Police filed an application with the Commission seeking leave to appeal and to appeal from the decision of Commissioner Bishop pursuant to ss 187(1) and 188 of the IR Act . That application was heard by the Full Bench of the Commission comprising Walton DP, Marks and Kavanagh JJ (the Full Bench). In a decision dated 5 May 2011, the Full Bench granted the respondent leave to appeal, quashed the decision of Commissioner Bishop and dismissed the applicant's application made pursuant to s 84 of the IR Act : Commissioner of Police v Eaton [2011] NSWIRComm 51.

50 The issue before the Full Bench, and re-agitated before this Court, was whether there was such an inconsistency or incongruity between the provisions of Part 6 of Chapter 2 of the IR Act and s 80(3) of the Police Act that they could not stand or live together harmoniously. Part 6 of Chapter 2 deals with unfair dismissals, whereas s 80(3) of the Police Act empowers the respondent to dismiss any probationary police officer from the NSW Police Force " at any time and without giving any reason ". The Full Bench found that there was such an inconsistency or incongruity so that Pt 6 of Ch 2 was impliedly repealed. The result was that the Commission lacked jurisdiction to hear and determine the applicant's application made pursuant to s 84(1) of the IR Act .

51 On 7 June 2011 the applicant filed a summons in this Court challenging the Full Bench's finding of lack of jurisdiction and seeking an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) that its decision be quashed and that the matter be remitted to the Full Bench to be decided according to law.

The relevant statutory provisions of the IR Act

52 Chapter 2 of the IR Act is headed " Employment ". Part 6 of Ch 2 is headed " Unfair dismissals ". The relevant provisions of Pt 6 are as follows:

" 83 Application of Part

(1) This Part applies to the dismissal of:

(a) any public sector employee, or

(b) ...

(1A) ...

(2) This Part does not apply to an employee who is exempted from this Part by the regulations, Any such regulation may only exempt specified classes of employees included in any of the following classes:

(a) ...

(b) employees serving a period of probation or qualifying period,

(3) This Part does not apply to the dismissal of any such employee who is ... an executive officer to whom ... Part 5 of the Police Act 1990 applies.

(4) ...

(5) In this Part: dismissal includes:

(a) ...

(b) in the case of a public sector employee- dispensing with the services of the employee, ...

84 Application for remedy by dismissed employee

(1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part.

88 Matters to be considered in determining a claim

In determining the applicant's claim, the Commission may, if appropriate, take into account:

(a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

(b) if any such reason was given-its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and

(c) whether a warning of unsatisfactory performance was given before the dismissal, and

(d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

(e) whether or not the applicant requested reinstatement or re-employment with the employer, and

(f) such other matters as the Commission considers relevant."

53 Section 89 empowers the Commission to make various orders where it has found that an employee's dismissal is harsh, unreasonable or unjust. In particular, s 89(1) empowers the Commission to order the employer to reinstate the employee in his or her former position on terms not less favourable to the employee than those that would have been applicable if he or she had not been dismissed. Section 89(2) empowers the Commission to order the employer to re-employ the employee in another position where it would be impracticable to reinstate him or her. Other subsections of s 89 provide for the payment to the employee of the remuneration to which he or she would otherwise have been entitled had he or she not been dismissed, for continuity of employment and for compensation where it would be impracticable to make an order for reinstatement or re-employment.

54 It was at all times common ground that, first, Pt 6 of Ch 2 of the IR Act was a discrete part of that Act that created remedies where a public sector employee is dismissed in circumstances which may be characterised as harsh, unreasonable or unjust; secondly, that its provisions prima facie apply to police officers who are public sector employees within the meaning of s 83(1)(a) of the IR Act ; and, thirdly, that a probationary constable was a police officer for the purpose of those provisions. Prima facie , therefore, the provisions of Pt 6 of Ch 2 of the IR Act entitled the applicant to seek redress from the Commission with respect to his dismissal from the Police Force.

The relevant provisions of the Police Act

55 Section 3(1) of the Police Act defines a " police officer " to mean:

"A member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer."

56 Section 5 provides that the NSW Police Force comprises, amongst others, " police officers ... employed under this Act ".

57 Section 10(1) provides, relevantly, that the positions in the NSW Police Force consist of such positions as the respondent may determine in accordance with the Act. Section 10(4) is in the following terms:

"(4) Police officers of the rank of constable (or such of those police officers as the Commissioner determines) are to be appointed to that rank or to a grade within that rank, and hold a position (but not a separate position) in the NSW Police Force."

58 Section 12(1) sets out the ranks of police officers within the NSW Police Force of which the lowest is that of " Constable" .

59 Part 5 of the Police Act deals with the NSW Police Force's Senior Executive Service. Relevantly, s 44(2A) expressly provides that Pt 6 (Unfair dismissals) of the IR Act does not apply to or in respect of the employment of an executive officer. Such a provision is not replicated in any other part of the Police Act . The intention of the legislature to exclude executive officers is reinforced by s 83(3) of the IR Act (see [52] above).

60 Part 6 is headed " Non-executive police officers ". That expression is defined in s 63 to mean a police officer to whom Pt 6 applies.

61 Division 4 of Pt 6 is headed " Appointment and promotion of constables ". Its sole provision is s 80 which is in the following terms:

"(1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable.

(2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations

(3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason .

(4) The promotion of police officers within the rank of constable is subject to the regulations " [emphasis added]

62 As I have already noted, and as the Full Bench observed at [20] of its reasons, the respondent relies specifically on s 80(3) as a provision which is incompatible with any entitlement of a probationary constable to seek reinstatement or other relief under s 84 of the IR Act . No other provision of the Police Act was directly relied on by the respondent to support that contention although s 88 was referred to which relevantly provided:

" 88 Industrial arbitration or legal proceedings excluded in relation to appointments

(1) The appointment of or failure to appoint a person to a vacant non-executive position, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996 (except Part 7 of Chapter 2 of that Act).

(2) Subsection (1) applies whether or not any person has been appointed to a vacant non-executive position.

(3) No proceedings for an order in the nature of prohibition, certiorari or mandamus, or for a declaration or injunction or for any other relief, lie in respect of the appointment of or failure to appoint a person to a vacant non-executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment.

....

(6) In this section:

non-executive position means the position of a member of the NSW Police Force to whom this Part applies

vacant position , in relation to the position of a police officer or an administrative officer, has the same meaning as it has in Parts 6 and 6A, respectively."

63 The expression " vacant position " is relevantly defined in s 63 (in Pt 6) and s 82 (in Pt 6A) to mean:

"(a) a position that is not held by a person, or

(b) a position to which a person is temporarily appointed."

64 Section 218 of the Police Act is also of relevance in resolving the present dispute. It is in the following terms:

" 218 Industrial Relations Act 1996 not affected

(1) The Industrial Relations Act 1996 is not affected by anything in this Act.

(2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996." [emphasis added]

It may be noted that Section 89 was repealed in 2006 and is now re-enacted in s 88. Section 68 of the Interpretation Act 1987 requires the reference to s 89 to be read as a reference to s 88.

65 Section 44 applies only to executive officers and provides that the employment of an executive officer, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the IR Act . As I have noted at [59] above, s 44(2A) excludes Pt 6 of Ch 2 of the IR Act to and in respect of the employment of an executive officer. Accordingly, the effect of s 218(2) is that section 218(1) does not trump the provisions of s 44 in its application to the employment of executive officers. However, we are concerned only with s 218(1) in its application to non-executive officers, a category into which the applicant fell.

66 Part 9 of the Police Act was relied on by the Full Bench. It is convenient to refer to its relevant provisions at this point. It is headed: " Management of conduct within NSW Police Force ". Division 1 is headed " Misconduct and unsatisfactory performance " and contains only s 173.

67 Section 173 is entitled " Commissioner may take action with respect to police officers' misconduct or unsatisfactory performance ". Section 173(2) empowers the respondent to make an order that the following action be taken with respect to a police office who engages in misconduct, namely, that he or she be reduced in rank or grade, reduced in seniority, deferral of salary increment or any other action other than dismissal that the respondent considers appropriate.

68 Division 1A provides for police officers in respect of whom such an order is made under s 173 to apply to the Commission for review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust. Section 175 sets out the procedure with respect to any such review including the provision of some time limits.

69 Section 179 is headed " Application of Industrial Relations Act 1996 ". It is in the following terms:

" 179 Application of Industrial Relations Act 1996

(1) In the application of Part 5 of Chapter 4 of the Industrial Relations Act 1996 to proceedings under this Division, the provisions of sections 163, 167, 169 (4), 172, 181 and 184 of that Act do not have effect.

(2) Proceedings under this Division are to be dealt with by a judicial member of the Commission unless the President of the Commission otherwise directs under section 159 of the Industrial Relations Act 1996.

(3) Despite section 160 of the Industrial Relations Act 1996, the President of the Commission may not delegate the President's functions under section 159 of that Act in respect of proceedings under this Division."

I mention this section as it expressly provides that certain provisions of the IR Act do not have effect and others are modified.

70 Division 1B of Pt 9 is headed " Summary removal of police officers in whom Commissioner does not have confidence ". Section 181D(1) provides as follows:

" 181D Commissioner may remove police officers

(1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not 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"

71 Section 181D(3) requires the respondent before making an order under subs (1) to give the relevant police officer notice setting out the grounds on which the respondent does not have confidence in the officer's suitability to continue as a police officer as well as the right within 21 days to make written submissions which the respondent is then required to take into consideration. By s 181D(4) the respondent's order must set out the reasons for which he has decided to remove the police officer from the NSW Police Force. Section 181D(7) provides as follows:

"(7) Except as provided by Division 1C:

(a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and

(b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section.

In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission."

72 Division 1C is headed " Review of Commissioner's decision under Division 1B ". Section 181E(1) is in the following terms:

" 181E Review generally

(1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust."

73 Section 181F then sets out the procedure which the Commission is to follow in conducting the review under Division 1C. Of relevance to the respondents' submissions to this Court are the following provisions of s 181F(3)(b):

" 181F Proceedings on a review

(1) ...

(2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. ...

(3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to:

(a) ...

(b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1))."

I shall return to those submissions later in these reasons.

74 Section 181G is h eaded " Application of Industrial Relations Act 1996 to reviews ". Section 181G(1) then provides that the provisions of the IR Act are to apply to an application for review under Division 1C in the same way as they apply to an application under Pt 6 of Ch 2 of IR Act subject to the provisions of Division 1C and to a number of modifications which are then set out.

75 Those modifications were relied upon by the Full Bench (at [55] of its reasons (see [113] below)) and the respondent on the present application to support a finding that if Pt 6 of Ch 2 of the IR Act applies to a probationary constable, that officer will be in a more beneficial position in the Commission than a confirmed officer whose right of review by the Commission is subject to those modifications. It is therefore necessary to set them out in full:

" 181G Application of Industrial Relations Act 1996 to reviews

(1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications:

(a) section 83 (Application of Part) is to be read as if subsection (3) were omitted,

(b) section 85 (Time for making applications) is to be read:

(i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and

(ii) as if subsection (3) were omitted,

(c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review,

(d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted,

(e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made,

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

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

(ii) the Commission gives leave.

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

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

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

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

76 I pause to make the following observation. Apart from s 181G(1)(d) and (f), the other modifications effected by s 181G(1) are in my view inconsequential. Although relied on by the respondent, I would make the same comment with respect to s 181G(1)(d) notwithstanding that its effect is to deny a confirmed police officer a right of review under Pt 6 of Ch 2 of the IR Act where he or she is subject to a threat of dismissal or, more accurately given the terms of s 181D(1), removal from the NSW Police Force. However, that is counterbalanced by the provisions of s 181D(8) which provide that removal of a police officer under s 181D(1) has the same effect as if that officer had resigned (or if under the age of 55, retired) from the Police Force.

77 That leaves the provisions of s 181G(1)(f). It refers to s 163 of the IR Act which relevantly provides as follows:

" 163 Rules of evidence and legal formality

(1) The Commission:

(a) is not bound to act in a formal manner, and

(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and

(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session."

78 However, the modification effected by s 181G(1)(f) is ameliorated by s 181G(2). It is true that the benchmarks to be achieved before leave must be granted are at least theoretically higher than under s 163 of the IR Act which empowers the Commission to receive new evidence at its discretion. But that discretion is not entirely unfettered and must, like all such discretions, be exercised judicially. Thus one would imagine that the Commission would not allow new evidence if it did not have any real probative value with respect to the issues under consideration.

79 It follows in my opinion that the modifications to Pt 6 of Ch 2 of the IR Act effected by s 181G of the Police Act are not so significant as to justify the weight given to them by the Full Bench in support of its finding that the legislature could not have intended to give probationary police officers greater rights over confirmed officers when seeking a review of their dismissal or removal, as the case may be, from the Police Force on the ground that such dismissal or removal was harsh, unreasonable or unjust. I shall refer further to this issue below.

The Police Regulation 2008

80 Reliance was placed both by the Full Bench and the respondent on the provision of cls 12 to 14 of the Police Regulation 2008 (the Police Regulation ) which deal with the appointment of constables on probation: see s 80(2). They are relevantly in the following terms:

" 12 Appointment of constables on probation

(1) In accordance with section 80(2) of the Act, a person when first appointed as a police officer of the rank of constable is to be appointed on probation:

(a) for a period of 1 year, or

(b) for such longer or shorter period (being not less than 6 months) as the Commissioner may direct in the case of that person.

(2) Despite subclause (1), the Commissioner may direct that the period of probation be less than 6 months, or may waive the period of probation completely, if the person has previously served as a police officer in the NSW Police Force or in any other police service or police force (however called).

(3) All or any part of such previous service may, with the approval of the Commissioner, be counted towards seniority.

13 Confirmation of appointment as constable

Confirmation of appointment in the rank of constable is subject to:

(a) the successful completion of initial basic training, as determined by the Commissioner, and

(b) the completion of the period of probation, and

(c) a satisfactory fitness report, and

(d) the other requirements of this Division.

14 Fitness report for probationary constables

(1) The appointment of a probationary constable is not to be confirmed unless a police officer designated by the Commissioner has reported that the probationary constable is fit to discharge satisfactorily the duties of constable.

(2) Any such fitness report is to deal with the probationary constable's:

(a) medical fitness, as indicated by a health assessment referred to in clause 10, and

(b) aptitude for the discharge of the duties of constable, and

(c) competence, integrity, performance and conduct.

(3) ....

(4) ... "

81 The relevance of the above provisions is that the respondent submitted that, together with s 80 of the Police Act , they formed an exclusive scheme with respect to the appointment and dismissal of probationary constables which could not stand or live together with a right of such an unconfirmed police officer to engage the provisions of Pt 6 of Ch 2 of the IR Act . I shall return to this submission below.

Industrial Relations (General) Regulation 2001

82 Section 83(2)(b) of the IR Act provides, in effect, that Pt 6 of Ch 2 does not apply to an employee serving a period of probation who is exempted from that Part by the regulations. Clause 6 of the Industrial Relations (General) Regulation 2001 (the IR Regulation ) relevantly provides that for the purposes of s 83(2) the following class of employees is exempted from Pt 6 of Ch 2, namely:

"(c) employees serving a period of probation ... if the duration of the period, or the maximum duration of the period, is determined in advance and either:

(i) the period, or the maximum duration, is 3 months or less, or

(ii) if the period, or the maximum duration, is more than 3 months-the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment,"

83 Of some relevance in this context is cl 6(2) which provides as follows:

"This clause applies only with respect to dismissals under contracts of employment entered into on or after 1 October 1997."

It was common ground that the applicant was employed as a probationary constable under a contract of employment entered into on or after 1 October 1997.

Clause 6 of the IR Regulation - Ferraris v Commissioner of Police

84 I have already referred to cl 12(1) of the Police Regulation which provides, generally, that a person when first appointed as a police officer to the rank of constable is to be appointed on probation for a period of one year. The applicant was so appointed.

85 During the course of argument a question arose as to whether the applicant, as a probationary constable, fell within that class of employees which had been exempted from Pt 6 of Ch 2 of the IR Act by cl 6(1) of the IR Regulation . In this context reference was made to a decision of the Full Bench in Ferraris v Commissioner of Police [2006] NSW IR Comm 243. In that case the Full Bench noted (at [1]) that until recently it had been assumed that probationary police constables in New South Wales had rights of redress against their dismissal from employment pursuant to Pt 6 of Ch 2 of the IR Act . At [3] it was observed that there had been a number of decisions of the Commission which proceeded on the assumption that there was power to order reinstatement or to provide other forms of redress for the dismissal of probationary police constables. However, so far as Constable Ferraris was concerned, at first instance Deputy President Grayson dismissed her application for reinstatement under s 84 of the IR Act on the ground that she fell within the provisions of cl 6(1)(c) of the IR Regulation so that her application was incompetent.

86 Constable Ferraris appealed to the Full Bench which upheld her appeal, holding that the Deputy President did have jurisdiction and that the constable should be reinstated to her former position.

87 Two key issues arose before the Full Bench. The first was whether the effect of cl 6(2) was such that cl 6(1) operated only to exclude employees from Pt 6 if they are dismissed under a contract of employment whereas in the case at hand, Constable Ferraris had been dismissed pursuant to s 73(3) of the Police Act (now s 80(3)). The second was whether the constable's probation period had been determined " in advance " in the manner required by cl 6(1)(c).

88 The Full Bench answered both questions in favour of the police officer. It held (at [40]) that as Constable Ferraris was not dismissed under or pursuant to a contract of employment, she did not fall within the exclusionary provisions of cl 6(1)(c) of the IR Regulation by virtue of the limitation in cl 6(2).

89 The Full Bench further held at [53] that cl 6(1)(c) operated only if the maximum period of probation had been determined in advance of the employment. Where, as in that case, the respondent had reserved to itself a right to extend the probationary period for an unspecified period, the duration of the period of probation was not " determined in advance ".

90 The effect of the decision in Ferraris with respect to the applicant is that the provisions of cl 6 of the IR Regulation do not exempt probationary constables from the application of Pt 6 Ch 2 of the IR Act where they have been dismissed pursuant to s 80(3) of the Police Act . It was not formally contended by the respondent that the decision of the Full Bench in Ferraris was incorrect. Accordingly, the matter ultimately proceeded before the Full Bench in the present case and before this Court upon the basis that as a consequence of the decision in Ferraris , the class of employees constituted by probationary constables of the NSW Police Force were not exempted from the application of the provisions of Pt 6 of Ch 2 by cl 6 of the IR Regulation .

91 Furthermore, in the present case we were informed that at the time of his dismissal, the applicant's period of probation had expired although it was accepted that he was still on probation insofar as his appointment to the rank of constable had not been confirmed pursuant to cl 13 of the Police Regulation . He was therefore not " serving a period of probation " at the time of his dismissal as required by s 83(2)(b) of the IR Act and cl 6(1)(c) of the IR Regulation , the emphasis being on the present tense of the word " serving " in those provisions.

92 However, in oral argument before this Court the respondent did assert, without further elaboration, that Ferraris was possibly wrong at least with respect to the Full Bench's construction of cl 6(2). It was suggested that that provision may only apply to the employees referred to in pars (a) and (b) of cl 6(1) and that the better view was that it was not intended to confine all dismissals of employees in the four categories referred to in the sub-clause to those made pursuant to a contract of employment. It was only if those employees were dismissed under a contract of employment that cl 6(1) to those contracts entered into on or after 1 October 1997.

93 In particular, it was suggested that cl 6(2) did not apply to probationary employees referred to in cl 6(1)(c) who were dismissed pursuant to the exercise of a statutory power.

94 It is unnecessary to express a view on the proper construction of cl 6(2) as it was accepted by the respondent that even if cl 6(1) did apply to employees dismissed whilst serving a period of probation, it did not apply to the applicant for the reasons referred to at [91] above. Its effect was spent once the period of probation had expired without the officer being dismissed.

The reasons of the Full Bench in the present case

The concept of probation

95 At [23] and [24] of its reasons the Full Bench considered the concept of a probationary police officer. Reference was made to a passage in the judgment of Gibbs CJ, with whom Mason and Dawson JJ agreed, in O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342 at 349-350 where his Honour observed that

"'probation' is a time of testing or trial and a probationer whose conduct, character or qualifications failed to meet the test need not be confirmed in the office to which he is provisionally appointed."

So much is reflected in cls 13 and 14 of the Police Regulation .

The test for inconsistency

96 The Full Bench then considered the test for inconsistency between statutory provisions noting that the most recent decision of the High Court on this subject was Ferdinands v Commissioner of Public Employment [2006] HCA 5; (2006) 225 CLR 130. In that case, as the Full Bench noted at [25] of its reasons, the High Court held that the South Australian Police Act established a comprehensive regime dealing, inter alia , with misconduct within the South Australian Police Force and the ability of the Commissioner of Police to deal with it including the power of dismissal and review. The court held that the nature of that Act and its appearance of exhaustiveness on the subject of termination created incompatibility with the provisions of the South Australian Industrial and Employees Relations Act which was in similar terms to Pt 6 of Ch 2 of the IR Act .

97 At [28] the Full Bench referred to the joint judgment of Gummow and Hayne JJ in Ferdinands where their Honours relevantly said (omitting footnote citations):

"It has long been recognised that even though one statute does not expressly repeal an earlier statute, the later statute must be read as impliedly repealing the earlier, if the two are inconsistent. Inconsistency lies at the root of this principle. ... There are, however, two cardinal considerations First, as Gaudron J said in Saraswati v R , '[t]here must be very strong grounds to support [the] implication, for there is a general presumption that the legislature intended that both provisions should operate'. Secondly, deciding whether there is such inconsistency ('contrariety' or 'repugnancy') that the two cannot stand or live together (or cannot be 'reconciled') requires the construction of, and close attention to, the particular provisions in question."

98 Accordingly, at [30] the Full Bench stated that in essence, the question for determination in the proceedings was whether there was such contrariety, repugnancy or inconsistency between the rights given under s 84 of the IR Act and the provisions of s 80(3) of the Police Act as to require the conclusion that both of them " cannot stand or live together or cannot be reconciled ". It was not suggested that the Full Bench posed for itself the wrong question: clearly, it did. The question in issue is whether the Full Bench's answer to it can be sustained.

Was there inconsistency?

99 At [31] the Full Bench noted the power of the respondent pursuant to s 80(3) of the Police Act to dismiss a probationary police officer " at any time without giving any reasons ". This, on one view, was consistent with the concept of such a police officer being on probation.

100 Their Honours then sought to contrast the matters required to be taken into consideration when considering a claim made pursuant to s 84 of the IR Act . Thus, at [34] the Full Bench said:

"In determining whether a dismissal is harsh, unjust or unreasonable, it follows that it is necessary, in appropriate circumstances, to have regard to the conduct of the employee, whether the employer acted reasonably in terms of what was known about the employee's conduct, the personal consequences of dismissal for the employee and whether dismissal was disproportionate in all the circumstances."

101 It was the foregoing considerations that the Full Bench found to be inconsistent with the power of the respondent to peremptorily and without reasons dismiss a probationary police officer pursuant to s 80(3). Their Honours supported this conclusion in the following terms:

"35. All of these matters [referred to at [34]] may require a tribunal undertaking a consideration of whether the dismissal was harsh, unreasonable or unjust to consider matters that may be referrable to the time at which a dismissal occurred and the reason for that dismissal. These are matters that the Commissioner is not required to take into account under s 80(3) of the Police Act .

36 Furthermore, the relief which is available in this Commission under s 89, involving reinstatement, reemployment, the payment of remuneration, the awarding of compensation and the like, are clearly inconsistent with the prima facie right that is vested in the Commissioner by s 80(3) of the Police Act to dismiss a probationary police officer at any time and without giving any reason. The manner in which s 80(3) is framed is clearly indicative of an authority that reposes in the Commissioner to dismiss a probationary police officer without interference of any kind . ..." [emphasis added]

102 The Full Bench then proceeded to consider the provisions of Pt 9 of the Police Act . At [37] of its reasons it noted that Pt 9 contained detailed provisions to deal with action that may be taken by the respondent consequent upon misconduct or unsatisfactory performance of a confirmed police officer. Their Honours observed that these detailed provisions, which were inserted into the Police Act in 1998, were later in point of time to the unfair dismissal regime established by Pt 6 of Ch 2 of the IR Act and were:

"indicative that at that time the legislature considered in some detail the circumstances in which police officers might be removed following misconduct or unsatisfactory performance. In providing such a regime, the legislature left intact s 80(3) of the Police Act ."

103 It was common ground, as the Full Bench noted at [39] of its reasons, that Pt 9 did not apply to probationary constables but only to those police officers who had been confirmed in their positions. However, their Honours did not consider it necessary to determine the correctness of that concession as it considered (at [41]) that the provisions of Pt 9 as a whole served to contrast the position of police officers generally with probationary constables.

104 After reviewing the provisions of Pt 9 to which I have referred, the Full Bench concluded at [43] that with respect to reviewable action there was an intention on the part of the legislature to establish a separate mechanism for the review of and appeal from any decision of the respondent under s 173. The same conclusion was made with respect to the removal of a police officer pursuant to s 181D(1), the Full Bench observing at [49] of its reasons that it may be deduced " from the detailed provisions contained in Division 1C that the legislature intended to establish an exclusive regime to deal with any review or consideration of, or appeal from, a decision of the Commissioner under s 181D ".

105 A consideration of the extensive provisions of Pt 9 of the Police Act bears out the Full Bench's conclusion that it contains a comprehensive regime in respect of action taken against a police officer who has been found guilty of misconduct or unsatisfactory performance and in whom the respondent no longer has confidence in that officer's suitability to continue as a police officer. Such an officer against whom an order is made pursuant to s 173(2) or who is removed from the NSW Police Force pursuant to s 181D(1), is confined to his or her rights under Pt 9 which, on their face, are inconsistent, in the relevant sense, with the provisions of Pt 6 of Ch 2 of the IR Act . The decision of the High Court in Ferdinands supports such a conclusion.

Part 9 of the Police Act

106 Although the Full Bench did not find it necessary to consider whether Pt 9 applied to a probationary constable, it was, as I have noted above, common ground between the parties that it did not. Relevantly, the action taken by the respondent against the applicant did not involve an order made pursuant to s 181D(1) of the Police Act as a consequence whereof the applicant had no rights under the provisions of Pt 9 to seek a review in the Commission of the respondent's dismissal of him from the Police Force. Thus it is correct to say that as probationary constables are dismissed pursuant to s 80(3) of the Police Act , Pt 9 has no application to them. Nevertheless the Full Bench at [51] of its reasons rejected a submission on behalf of the applicant that his dismissal under s 80(3) of the Police Act was one that could accommodate the application of Pt 6 of Ch 2 of the IR Act upon the basis that it failed to take into consideration the words used in s 80(3) in the context in which that subsection operates, namely, given the presence of Pt 9 of the Police Act .

107 Their Honours thus observed:

"52 The right of dismissal under s 80(3) of the Police Act applies to a probationary police officer with all of the notions attaching to someone who is engaged on a probationary basis. The section specifically provides that the dismissal may occur at any time and without giving any reason. This is indicative of a large measure of discretion, in terms of the dismissal of probationary police officers The entitlement to dismiss without notice and, significantly, without giving any reason of any kind, is to be contrasted with the detailed provisions contained within Pt 9 of the Police Act and in particular s 181D which establishes a protocol binding on the Commissioner that must be undertaken before any order is made under that section. The giving of notice, and the requirement to take into consideration any written submissions are in stark contrast to the circumstances in which the power under s 80(3) may be exercised. Likewise, the manner in which s 80(3) of the Police Act is framed is indicative of the intention of the legislature to exclude a dismissal under s 80(3) from the power and jurisdiction of the Commission under Pt 6 of Ch 2 of the Act, for reasons which we have earlier discussed."

108 I interpolate that I am prepared to accept the correctness of these observations except for the last sentence. Although I will deal with this issue in more detail below, I regard the conclusion in that sentence, reliant as it is upon contrasting the provisions of s 80(3) on the one hand with s 181D(1) on the other, as incorrect. Where the legislature has intended in the Police Act to modify or exclude the provisions of the IR Act , it has taken pains to do so expressly on a number of different occasions: see, for example, ss 44(2A), 88(1), and the provisions of Pt 9 of the Police Act and s 83(3) of the IR Act . I return to the narrative.

109 At [53] the Full Bench accepted that there was " some substance " in the submission of the applicant that the exclusion of a probationary police officer from seeking redress with respect to his or her dismissal from the Police Force pursuant to Pt 6 of Ch 2 of the IR Act , had the effect of depriving such an officer of rights that are given to other employees under s 84 of the IR Act and leaves such a person with no remedy in the case of a dismissal which is harsh, unreasonable or unjust save that which may be available at common law by way of judicial review (with all its limitations). Their Honours then articulated two " significant " reasons why that submission should be rejected.

The first reason

110 The first reason articulated by the Full Bench was that

"The construction of the Police Act is, as we have discussed, clear"

As I understand this observation, it is reference back to their Honours' comments at [52] of their reasons.

111 The Full Bench then sought to support its first reason by reference (at [54]) to the decision of the Full Commission of the Industrial Commission of South Australia (the S.A. Commission) in Nassar v Public Service Board (1986) 16 IR 394. In that case the S.A. Commission held that a community welfare worker who had been employed on a twelve month period of probation and whose services had been dispensed with before the expiry of that period had no standing in proceedings under the Industrial Conciliation and Arbitration Act 1972 (SA) to apply for re-employment on the ground that the dismissal was harsh, unjust or unreasonable. The S.A. Commission held that there was a necessary implication by reason of the provision of the Public Service Act " that a person on probation should have no access to s 31 of the Industrial Act in the event of termination of his services during the period of his probation ".

112 Their Honour's reliance on the decision in Nassar can be disposed of at once. In my opinion there are significant differences between that case and the present. It is convenient for me to mention three. The first is that it seemed inconceivable to the S.A. Commission that the legislature would have intended that a public servant should be governed, according to whether or not he is on probation, by two entirely separate or unrelated sets of review procedures and by two entirely separate and unrelated reviewing authorities. In the present case there is only one reviewing authority, namely, the Commission. Secondly, the appointing authority in Nassar was the Governor and it was regarded as inconceivable that the legislature intended that the S.A. Commission should have jurisdiction and power to interfere with a decision by the Governor to dispense with the services of the person on probation during the period of probation. Thirdly, in the present case the applicant's period of probation had expired by the time he was dismissed.

The second reason

113 The second reason advanced by the Full Bench in rejecting the submission that a probationary police officer had no right of review under s 84, was stated in the following terms:

"55. Secondly, the counterpoint to the respondent's submissions is that the construction proposed by the respondent, namely, that the probationer would have rights under s 84 of the Act would result, as the appellant submitted, in the probationary constable effectively having greater rights than the constable in the case of a dismissal or removal (given the limitations imposed by Pt 9 of the Police Act )."

I have commented on this assertion at [ 74 ] - [79] above.

Section 218 of the Police Act

114 Both before the Full Bench and in this Court the applicant relied on the provisions of s 218(1) of the Police Act the terms of which I have set out at [64] above. At [61] of its reasons the Full Bench observed that a superficial review of Pt 9 of the Police Act was sufficient to enable the conclusion that s 218(1) could not be read literally as there were specific provisions of the Police Act which had a direct impact upon the application of various provisions of the IR Act to the circumstances set out in Pt 9. A ready example was s 179(1) of the Police Act which particularised certain provisions of the IR Act which did not have effect. Accordingly, there are provisions of the IR Act which are affected by the Police Act contrary to the literal words of s 218(1).

115 The Full Bench's conclusion on the effect of s 218 was as follows:

"63. We would construe this provision as leaving intact the power of the commission to deal with industrial matters covering police officers unless especially restricted by some provision of the Police Act . This conclusion is consistent with the judgment of the Full Commission of the Industrial Commission of South Australia in Nassar (at 395)."

116 It is sufficient to observe at this point that there are difficulties with this conclusion. It does not necessarily follow that because the general words of s 218(1) must give way to those specific provisions of the Police Act which expressly modify or exclude provisions of the IR Act such as s 44(2A) and Pt 9, that the provisions of Pt 6 of Ch 2 of the IR Act do not apply to those police officers who are dismissed from the NSW Police Force otherwise than pursuant to the scheme in Pt 9.

The submissions of the applicant

117 The essence of the applicant's primary submissions was that the Police Act did not, on its proper construction, evince an intention to deny a probationary constable a right of review under Pt 6 of Ch 2 of the IR Act of his or her dismissal by the respondent pursuant to s 80(3). There is no relevant clash of the statutory provisions of the Police Act with the IR Act to result in an implied repeal of the latter by the former. This primary submission was advanced in a number of different ways which I will now attempt to summarise.

118 The applicant's contentions may thus be summarised as follows:

(a) The Full Bench was in error when it held (at [52] of its reasons) that the manner in which s 80(3) of the Police Act was framed was indicative of an intention on the part of the legislature to exclude a dismissal under that provision from the jurisdiction of the Commission under Pt 6 of Ch 2 of the IR Act ;

(b) There is no contrariety, repugnancy or inconsistency between the rights given to a probationary constable under s 84 of the IR Act and the provisions of s 80(3) of the Police Act . The latter relates to the "first instance" or "initial" power of the respondent to dismiss whereas the former provides for a right of review of that decision;

(c) There is no logical reason why a power to review a dismissal should be limited or excluded by the fact that the initial power to dismiss may be exercised at any time and without giving any reason. Although the respondent when exercising his power under s 80(3) to dismiss is not required to give any reason, it would be unusual if reasons were not given or that the dismissal occurred for no reason. If a probationary constable is dismissed for no reason as distinct from a reason which is not communicated, then a denial of a right of review under Pt 6 of Ch 2 of the IR Act is difficult to explain;

(d) Thus s 80(3) of the Police Act provides no more than a statutory power to the respondent similar to that held by employers at common law to dismiss without notice. It cannot be the case that a power of dismissal, without more, can give rise to an inconsistency or repugnancy with respect to the unfair dismissal scheme contained in Pt 6 of Ch 2 of the IR Act ;

(e) The position may be contrasted with Pt 9 which does contain its own comprehensive unfair dismissal scheme which, on the authority of Ferdinands , is inconsistent with Pt 6 of Ch 2. Section 80(3) contains no such scheme. In particular, there is nothing in that provision or in s 80 as a whole that appears intended to deal comprehensively and exclusively with the question of termination of appointment of a probationary constable and which, either expressly or implicitly, excludes a right of review of the respondent's decision to dismiss by the Commission under Pt 6 of Ch 2.

(f) The Full Bench therefore erred in its reliance upon Pt 9 as evincing an intention to exclude probationary constables from engaging Pt 6 of Ch 2. There is no conflict between the respondent's power under s 80(3) to dismiss a probationary constable and the power of the Commission to review that decision if it be harsh, unreasonable or unjust. If the legislature had intended that probationary police officers should be excluded from the jurisdiction of the Commission under Pt 6 of Ch 2, it could have evinced that intention in the same way as it expressly did with regard to executive officers in s 44(2A) of the Police Act and implicitly, if not expressly, by the scheme contained in Pt 9;

(g) In its context, s 80(3) of the Police Act dates from 1990 when that Act was enacted and should be treated as an earlier statutory provision to the unfair dismissal provisions in the IR Act of 1996. Hence any inconsistency should be resolved in favour of the IR Act ;

(h) In any event, there is no reason why the power of the respondent to dismiss peremptorily pursuant to s 80(3) cannot " stand together " or " live together " with the power of the Commission to review that decision under Pt 6 of Ch 2 of the IR Act . There is therefore no inconsistency.

(i) The Full Bench also erred in its assertion that to permit a probationary constable to engage Pt 6 of Ch 2 of the IR Act would provide such an officer with greater rights than a confirmed officer has under Pt 9 of the Police Act . Although s 181G(1) applies the provisions of Pt 6 of Ch 2 of the IR Act to a review of the respondent's decision under s 181D(1) with the modifications set out in that section, those modifications are generally related to matters of procedure and are not so fundamental as to justify the Full Bench's conclusion that a probationary constable who is entitled to apply to the Commission for relief under Pt 6 of Ch 2 has greater rights than a confirmed officer under Pt 9;

(i) Although the general words of s 218(1) are to be read subject to those specific provisions of the Police Act which expressly or by necessary implication modify or exclude provisions of the IR Act , to the extent to which those specific provisions do not have that effect, the provisions of the IR Act remain unaffected. Hence s 218 has the effect of preserving the jurisdiction of the Commission to entertain unfair dismissal applications under Pt 6 of Ch 2 of the IR Act except in the case of executive officers (s 44(2A)) or where non-executive police officers have been removed pursuant to s 181D(1) of Pt 9. As those provisions do not apply to probationary constables, the effect of the s 218(1) is to leave Pt 6 of Ch 2 of the IR Act intact and applicable to those officers.

The submissions of the respondent

119 The respondent's submissions were no less complicated than those of the applicant - more so in fact. In essence his primary submission was that given the concept of probation as applied to a police officer, it was clear that the Police Act and Police Regulations evinced the intention that probationary officers could be dismissed at pleasure by the respondent at any time before their appointment was confirmed. The legal effect of this clear legislative intention was that those officers were not to have the same rights of review with respect to their dismissal as was expressly provided by the Police Act to confirmed officers. In fact they were to have none. Accordingly, Pt 6 of Ch 2 of the IR Act could not stand or live together with s 80(3) of the Police Act and was, therefore, impliedly repealed.

120 The respondent's contentions in support of his primary submission may be summarised thus:

(a) The question to be determined in the application is whether, in the case of the dismissal of a probationary police officer, the scheme or regime under ss 80 and 88 of the Police Act and cls 12-14 of the Police Regulation is intended to be subject to the potential intervention of the Commission under the unfair dismissal regime established by Pt 6 of Ch 3 of the IR Act ;

(b) The problem is one of statutory interpretation and arises only because the legislature did not state an express intention either that the two statutory regimes should apply in such a case or that the regime established by the Police Act should apply to the exclusion of that established by the IR Act . It is therefore necessary to determine the legislature's implied intention. If the regimes cannot be reconciled, then the conflict must be resolved by applying a legal rule such as implied repeal or that specific provisions exclude general provisions governing the same subject matter;

(c) It is accepted that cl 6(1)(c) of the Industrial Regulation only applies to an employee who is dismissed before the successful completion of a specific probationary period. In the present case, at the time of the applicant's dismissal, his 12 month " period of probation " had expired. Accordingly, the applicant had a prima facie entitlement to commence unfair dismissal proceedings under s 84 of the IR Act and the Commission had jurisdiction to hear and determine that claim;

(d) However, because of a comprehensive regime established by the Police Act in respect of the appointment, internal discipline or removal of all police officers, one can discern an intention on the part of the legislature to provide in the Police Act an exhaustive scheme with respect to the termination of employment of all police officers, whether probationary or otherwise, such as to reveal an " incompatibility " between the unfair dismissal provisions and the IR Act and s 80(3) of the Police Act ;

(e) Whilst the " appointment " of all police officers is governed, inter alia , by Pt 6 of the Police Act , Pt 9 of that Act only deals with the " discipline " of permanent police officers either by way of internal discipline or by way of removal from the Police Force subject in both cases to specific rights of review. By way of contrast, there is no statutory regime for the internal discipline of probationary police officers or for the removal or termination of their employment;

(f) The fact that the respondent's power to dismiss a probationary police officer pursuant to s 80(3) is to be found in Pt 6 of the Police Act dealing with appointment of police officers and not in Pt 9 dealing with discipline confirms a legislative intention that probationary police officers do not have the same rights as confirmed police officers with respect to the termination of their employment by dismissal under s 80(3). This distinction is emphasised by the provisions of s 88 of the Police Act which protects from review the respondent's determination of whether to appoint a police officer to a particular non-executive position within the Police Force;

(g) Use of the expressions " at any time " and " without giving any reason " in s 80(3) confirms that a probationary police officer has no right to, let alone any expectation of, a minimum period of employment with the Police Force. The officer's probationary status continues both during and after completion of a " period of probation " until the respondent confirms the officer's appointment;

(h) There are significant differences between cl 6(1)(c) of the Industrial Regulation and cls 12 - 14 of the Police Regulation dealing with probationers and which demonstrates incompatibility between the two regimes on the issue of dismissal. This is because under the Industrial Regulation a probationer will acquire permanent status at or before the end of a specified or otherwise reasonable period of time whereas under the Police Regulation the completion of a " period of probation " is merely a necessary but not a sufficient condition to be confirmed as a permanent police officer;

(i) The absence of any obligation on the respondent to give reasons when dismissing a probationary police officer emphasises that that decision is a personal judgment about the officer's suitability and involves impressionistic criteria that cannot be second-guessed by, or delegated to, the Commission or any other body for review based on a different set of statutory functions, standards and considerations;

(j) The remedies available to the Commission such as reinstatement or re-employment pursuant to s 89 of the IR Act are inappropriate for a probationary police officer who cannot be " reinstated " to a " former position " as he or she only has a probationary rather than a confirmed status;

(k) The incompatibility between the Police Act and the IR Act regarding the respondent's right to dismiss probationary police officers and the remedies of dismissal is also evident in the conflicting subject-matter, role and functions of the respondent on the one hand and the Commission on the other and the considerations which inform their respective decisions. Notions of industrial fair play inform the Commission's role as an impartial industrial umpire to resolve industrial disputes in industrial matters. The respondent has a different role in upholding the law and ensuring the safety of property and the community, maintaining social order and keeping the peace and detecting crime. Consistent with these fundamental different functions and considerations, the Police Act has created its own independent regime for the appointment, internal discipline and removal of police officers under Pt 9;

(l) Finally, it would be illogical and unintended if probationary police officers could commence unfair dismissal proceedings under s 84 of the IR Act and permanent police officers could not. This would mean that the former would be better off than their " confirmed " colleagues. This is because the requirements of s 181F(2) and s 181F(3)(b) of the Police Act apply to proceedings for review under Pt 9 brought by permanent police officers who are " removed " under s 181D(1) but those provisions do not apply to probationary police officers challenging the respondent's decision to dismiss under s 80(3) of the Police Act in s 84 unfair dismissal proceedings.

The statutory history of Part 9 of the Police Act and its relationship to the IR Act and its predecessors

121 During the course of argument reference was made to the history of the relevant provisions of the legislation as possibly bearing on the issues to be resolved. I think it does. It is therefore appropriate to sketch the historical context of the statutory provisions which bear on the present application.

122 As originally enacted in 1993, Pt 9 of what was then the Police Service Act 1990 was headed " DISCIPLINE OF MEMBERS OF THE POLICE SERVICE ". Section 97 provided for the making of regulations for and with respect to the discipline of police officers including the dismissal of a police officer by the respondent. Section 117 provided as follows:

"(1) The Industrial Arbitration Act 1940 is not affected by anything in this Act.

(2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Arbitration Act 1940."

123 When the Police Service Act commenced on 1 July 1990, s 20A of the Industrial Arbitration Act 1940 (the 1940 IR Act ) expressly authorised the Commission to make awards reinstating dismissed employees which included police officers, whether probationary or confirmed.

124 A new Part 9 was inserted into the Police Service Act by the Police Service (Complaints, Discipline and Appeals) Amendment Act 1993. It was headed " DISCIPLINE OF MEMBERS OF THE POLICE SERVICE " and inserted ss 173 - 187. Pursuant to s 179(2)(g) the respondent was empowered to dismiss a police officer. Although a right of appeal lay to the Government and Related Employees Appeals Tribunal (GREAT) where that police officer had been disciplined by the respondent pursuant to s 179(2), no such appeal was available to an officer who had been dismissed pursuant to s 179(2)(g). However, an officer so dismissed had a right to bring an unfair dismissal claim under the amendments to the 1940 IR Act made by the Industrial Arbitration (Unfair Dismissal) Amendment Act 1991 which inserted ss 91ZA to 91ZN into the 1940 IR Act . It was not suggested that those provisions would not apply to a probationary constable who was dismissed by the respondent pursuant to what was then s 73(3) of the Police Service Act which has remained in the same terms as the present s 80(3) since 1990.

125 These unfair dismissal provisions were then replicated in Pt 8 of the Industrial Relations Act 1991 (ss 245 - 255) (the 1991 IR Act ). Neither set of provisions contained a section equivalent to what is now s 83(2) of the IR Act which enables an employee to be exempted from the unfair dismissal provisions by the Regulations. In 1995 the Police Act (the word "Service' was deleted in 2002) was amended by the Police Service Amendment Act of that year. Those amendments arose out of the Police Royal Commission. That Act inserted a new Division 1A into Pt 9 which was confined to the dismissal and resignation of police officers arising out of the Royal Commission.

126 It was not until the enactment of the Police Legislation Further Amendment Act 1996 that Division 1B was inserted into the Police Act which comprised s 181D essentially in the same form as it is currently. Division 1B commenced on 16 December 1996. In the meantime the IR Act had been enacted and relevantly commenced on 2 September 1996. Divisions 1C and 1D were inserted into the Police Act by the Police Service Amendment Act 1997 which commenced on 27 June 1997. Relevantly, it inserted ss 181E, 181F and 181G. Those provisions have not been amended since that time. The IR Act as originally enacted in 1996 contains s 83(2). Regulations were first made under that provision in 1997 pursuant to the Industrial Relations (General) Amendment (Unfair Dismissal) Regulations of that year. It exempted certain classes of employees including probationary employees from Pt 6 of Ch 2 of the IR Act : see cl 5B(1)(c). That regulation was replaced by the IR Regulation cl 6 which is in substantially the same terms as its predecessor.

127 For completeness I note that s 218 was amended by the Statute Law (Miscellaneous Provisions) Act (No 2) 1996 by omitting the reference to the 1991 IR Act and substituting a reference to the IR Act . The amendment commenced on 3 April 1997.

128 The following conclusions may, I think, be drawn from the above survey:

(a) Since the enactment of the Police Service Act 1990 the respondent has had the power to dismiss a probationary police officer at any time and without giving any reason;

(b) The respondent has also had the power to dismiss confirmed police officers since 1990;

(c) Up until 1997 when the Police Service Act was amended to insert Divisions 1C and 1D into Pt 9, any non-executive police officer who was dismissed by the respondent could engage the unfair dismissal provisions first inserted in 1991 into the 1940 IR Act and then into the 1991 IR Act and in 1996 into the IR Act . The power to exempt probationary employees, including probationary police officers, from those provisions by way of regulation was first inserted into the IR Act in 1996;

(d) Divisions 1C and 1D of Pt 9 were inserted into the Police Service Act in 1997 which was a later Act than the (1996) IR Act . However, those review provisions only applied to a police officer who had been removed from the Police Service by an order under s 181D(1) which was inserted into the Police Service Act in 1996. The legislature did not purport to apply those provisions to a probationary police officer who was dismissed pursuant to s 80(3) as distinct from being removed pursuant to s 181D(1).

129 Two further observations may be made. The first is that it was not until the Public Sector Employment and Management Act 2002 that s 44(2A) was inserted into what is now the Police Act . That provision expressly excluded Pt 6 of Ch 2 of the IR Act to the dismissal of an executive officer. The second is that it was common ground, and so recognised by the Full Bench in Ferraris (at [1] and [2]), that at least until 2006 and presumably until now, it was assumed that probationary police constables had a right of redress against their dismissal by engaging Pt 6 of Ch 2 of the IR Act . The Full Bench there noted that it had also been recognised that a probationary constable had rights of redress against the termination of their employment in the Crown Employees Appeals Board (the predecessor of GREAT) as long ago as 1977. Apparently, probationary police constables who had been dismissed by the respondent pursuant to what is now s 80(3) of the Police Act actually exercised their assumed right to make application under the provisions of Pt 6 of Ch 2 of the IR Act seeking reinstatement upon the ground that their dismissal was harsh, unreasonable or unjust.

130 In the foregoing circumstances it would be reasonable to infer that the respondent (until the present case) accepted that Divisions 1C and 1D which were inserted into the Police Service Act in 1997 applied only to confirmed police officers and that probationary police officers remained entitled to seek relief under what became Pt 6 of Ch 2 of the IR Act . It should be remembered that Ferraris was not a case where the respondent submitted that Pt 6 of Ch 2 did not apply to the dismissal of a probationary constable because those provisions had been impliedly repealed but argued, successfully at first instance, that Pt 6 did not apply because of the combined operation of s 83(2)(b) of the IR Act and cl 6(1)(c) of the Industrial Regulation .

131 It is appropriate to bear those considerations in mind when assessing the validity of the respondent's submissions particularly as to the intent of the legislature.

The correct test in determining inconsistency

132 It was not in contest that the Full Bench identified at [25] to [30] of its reasons the correct test to be applied in determining whether the unfair dismissal provisions in Pt 6 of Ch 2 of the IR Act were inconsistent with or repugnant to, the provisions of the Police Act relating to the dismissal of probationary police officers such that the two sets of provisions cannot be reconciled. I am therefore content to adopt the following statement of principle articulated at [31] of the respondent's written submissions:

"Even though there is a strong presumption that the legislature does not intend to make contradictory legislation and intends that the provisions of different laws operate in harmony, it can be rebutted by express words or an unmistakable implication. In resolving any conflict, two questions arise:

(a) the proper construction of the relevant statutory provisions; and

(b) whether each set of statutory provisions can live together or give rise to an irreconcilable conflict."

133 In further explanation of that principle and as Gleeson CJ observed in Ferdinands at [4], there may be a relevant inconsistency notwithstanding that there is no repugnancy between two statutes in the sense that they create conflicting commands which cannot both be obeyed or produce legal rights and obligations which cannot be reconciled. However, there must be such contrariety in the two legislative schemes that, by necessary implication, one statute wholly or partly excludes the other. The problem is one of statutory interpretation which arises only because the legislature has not stated its intention in express terms. But as the Chief Justice stated:

"The legislature may, by necessary implication, manifest an intention [that one later statutory regime should apply to the exclusion of an earlier regime], although partial repeal of an earlier statute by a later statute will only be inferred on 'very strong grounds'".

134 It follows that in the present case the respondent must demonstrate that the sections of the Police Act upon which he relies (and which were enacted later in time to the provisions of Pt 6 of Ch 2 of the IR Act ) leave " no room " for the application of those provisions to probationary police constables: Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 281. As a matter of construction, the nature and text of the relevant provisions of the Police Act must present an appearance of exhaustiveness on the subject of dismissal of probationary police officers so as to create the necessary degree of incompatibility. In my view the respondent has failed to satisfy these criteria.

The proper construction of the relevant provisions

Construction of the relevant provisions - the relevant principle of statutory construction.

135 The relevant principle of statutory construction relied on by the respondent was stated in the joint judgment of Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Limited v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7 where their Honours said:

"... when the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions from the same instrument which might otherwise have been relied upon for the same power".

136 As noted by Spigelman CJ, with whom Mason P and Handley JA agreed, in BP Australia Limited v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322 at [43], this passage from Anthony Hordern has been applied frequently. At [44] the Chief Justice referred to the similar observations of Dixon J in R v Wallis; Ex parte Employers Association of Wool Selling Brokers and Ors (1949) 78 CLR 529 at 550 where his Honour said that:

"... an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.

This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction."

Again, as noted by the Chief Justice at [45], this passage of Dixon J has been frequently applied.

137 Two points may be noticed. The first is that the principle referred to in Anthony Hordern seems to be confined to particular provisions excluding general provisions in the same instrument. In the present case, the respondent is relying solely upon the specific text of s 80(3) as excluding the operation of the general provisions of a different instrument. Secondly, even if this not be so and one applies the observations of Dixon J in Wallis literally, it is difficult to accept that the affirmative words of s 80(3) empowering the respondent to dismiss a probationary police officer at any time without giving any reason necessarily imports the negative contended for, namely, that there shall be no right of review of the respondent's decision to dismiss.

The construction issue - the relevance of probation

138 The respondent relied heavily upon a number of judicial statements as to the nature of probation with respect to a police officer. It was contended that the nature of probation and the vesting in the respondent of the determination of whether a probationary police officer should have his or her appointment confirmed, implicitly negatived any right of statutory review. Reference was made to the following statement of Gibbs CJ in O'Rourke at 353 - 354:

"It is of great importance to the public that persons whose conduct or character is doubtful should be kept out of the police force and that the system of probationary appointment is one means of achieving that end. The Chief Commissioner, in exercising his power ... to terminate the appointment of a probationary constable has, to use the words of Murphy J in the Full Court of the Supreme Court, 'not only the power but also the responsibility to weed out persons concerning whom he entertains any reasonable doubts'."

139 In support of the submission that given the subjective nature of the respondent's assessment of the merits or otherwise of a probationary police officer, it is unlikely that the legislature intended for the respondent's decision to be second-guessed by a merits review conducted by another body according to a different set of rules or principles, namely, that the dismissal was " harsh, unjust or unreasonable ", reference was made to the following passage from the judgment of Carter J in R v Commissioner of Police; ex parte Boe (1987) 2 Qd 76 at 106:

"It is the Commissioner in whom ultimately rests the sole responsibility for the decision that a particular probationary is suitable for membership of the Police Force. He will no doubt have the advantage of reports concerning the probationary, either written or oral, given to him by others. But the decision will necessarily reflect a subjective assessment of the probationary which is his and his alone. Either he will decide to permit the probationary to advance into the ranks of the Police Force or he will discharge him without assigning any reason. I am of the view that the clear legislative intent is that the Commissioner be the sole and final arbiter of the individual probationary's suitability for appointment to the Police Force. For reasons best known to the Commissioner he may discharge the probationary, without assigning a reason. The basis for the decision to discharge may be none other than that, in his opinion, the probationary is not suitable for appointment. The basis for that opinion may be readily identified. On the other hand that may not be so but nonetheless the Commissioner, in his subjective assessment of the probationary, may conclude that the latter is not suitable or at least he may entertain a serious doubt about his suitability. He may, on that account, discharge him, and in doing so, he is empowered to do no more than convey to the probationary his decision without the need to say what is was that weighed with him in making it."

140 It should be noted that the issue in Boe was whether a probationary police constable was entitled to be afforded procedural fairness before he or she was dismissed. That was also the issue in O'Rourke v Miller . It is not the issue in the present case.

141 That brings me to the respondent's contention that s 80(3) implicitly excluded the operation of Pt 6 of Ch 2 of the IR Act with respect to the dismissal of probationary police officers. In this context the respondent emphasised the subjective nature of his determination of whether or not to confirm the appointment of a probationary police officer. In this respect I accept that pursuant to s 80(1) the power of the respondent to appoint a person as a police officer of the rank of constable is conditioned on that person being of good character. I further accept that pursuant to the Police Regulation confirmation of appointment is subject to not only the completion of the period of probation but also a satisfactory fitness report which is required to deal with the applicant's aptitude to the discharge of the duties of a police constable as well as his competence, integrity performance and conduct. It was submitted that these factors support the conclusion that the respondent's judgment of whether a probationary police officer is suitable for confirmation is personal and discretionary and hence non-reviewable by another body.

142 With respect, it is not self-evident to me that the factors relied upon are " personal " in the sense that only the respondent and not the Commission is capable of assessing them. In fact, as the applicant submitted, in the many cases in which the Commission has exercised jurisdiction under Pt 6 of Ch 3 of the IR Act to review the dismissal by the respondent of a probationary police officer pursuant to s 80(3), those factors have been taken into account: see, for example, Owens v NSW Police Service (1998) 87 IR 1 where Schmidt J, after a lengthy consideration of the conduct of the applicant in that case, noted (at 13) that:

"It cannot be overlooked that Mr Owens was a probationary constable. He was obliged to demonstrate his fitness to the office which he sought."

143 In Myers v Police Service of New South Wales (1999) 93 IR 123, Deputy President Sams of the Commission dealt with a probationary constable who was employed by the NSW Police Service in February 1996 until 17 July 1998 when his employment was terminated. Mr Myers sought relief in the form of reinstatement pursuant to s 84 of the IR Act and it is not without relevance that he had been employed, albeit on a probationary basis, for some two and a half years prior to his dismissal. The Deputy President in a lengthy judgment dealt in detail with a number of allegations relating to Mr Myer's alleged misconduct. In his concluding remarks he accepted that s 73(3) of the Police Act (now s 80(3)) was:

"in wide and general terms and gives the Police Commissioner a unilateral and apparently, absolute, discretionary power to dismiss a probationary officer.

144 After setting out subsection (3) the Deputy President stated that this discretionary power appeared to be consistent with the provisions of s 83(2)(b) of the Police Service Act , exempting " employees serving a period of probation " from the remedies available under Pt 6 of Ch 2 of the IR Act . He then continued:

"While no jurisdictional barrier was raised by [counsel for the Police Service] and, indeed the Commission has considered the fate of dismissed probationary constables in other cases, I am of the opinion that, in considering an alleged unfair dismissal, the Commission must be cognizant of the probationary nature of employment and apply a different weight to the tests ordinarily applicable to employees not on probation. This appears to me to be even more appropriate when the probation has been extended because of poor performance and failure to meet certain standards (such as applies in this case)."

145 After citing some passages from the judgment of Schmidt J in Owens , the learned Deputy President noted that Mr Myers, as a probationary constable, was obliged to demonstrate fitness for the office he sought. Relevantly to the present issue, he concluded that notwithstanding certain procedural deficiencies, he preferred to adopt an inquiry:

"based on what is in the best interests of all concerned. In a case where the standing and integrity of the Police Service is involved, the public interest must be an additional relevant factor: ... In view of contemporary community expectations, there is an even higher standard of efficiency and performance expected by the public of its Police Officers than of its general public service. The public, quite correctly, demands the highest standards of competency, efficiency and diligence. I have applied these standards to my consideration of the matter."

146 The considerations referred to may well have contained some subjective elements and involved the making of value judgments. The fact that they are made " at first instance ", as it were, by the respondent does not seem to me to be a reason why they cannot also be made by the Commission. Courts are required to make subjective assessments and value judgments every day when considering the facts and merits of the particular case.

147 Finally, the respondent's contention sits uncomfortably with Divisions 1B and 1C of Pt 9 of the Police Act . Pursuant to s 181D(1) the respondent may, by order in writing, remove a police officer if he does not have confidence in the officer's suitability to continue as a police officer. In so ordering, the respondent is to have regard to the officer's competence, integrity, performance or conduct. These very same considerations are required to be addressed with respect to a probationary police officer in a fitness report prepared pursuant to cl 14 of the Police Regulation : see cl 14(2)(c).

148 Yet Division 1C contemplates that the Commission will have regard to the same considerations. It is entitled to decide that the respondent's lack of confidence in the removed officer's suitability was harsh, unreasonable or unjust. In my view it would be reasonable to assume that the respondent's exercise of power under s 80(3) would involve similar considerations, namely, that the probationary constable should be dismissed as the respondent does not have confidence in his or her suitability to continue as a police officer. As the respondent acknowledged, any such dismissal would in an appropriate case be subject to judicial review proceedings. It follows that he or she could not be dismissed for no reason whatsoever or for some totally irrelevant, irrational or inappropriate reason without the respondent being accused of Wednesbury unreasonableness or having taken into account an irrelevant consideration.

149 For the foregoing reasons the respondent's argument based on the fact that the applicant was only a probationary constable at the time of his dismissal cannot be sustained.

The construction issue - does a probationary constable have an advantage over a confirmed constable?

150 It is convenient to deal next with the respondent's submission referred to at [31(l)] above to the effect that to permit a probationary constable to engage Pt 6 of Ch 2 of the IR Act would place that officer in a position of advantage over a confirmed police officer whose rights of review are confined by the provisions of s 181F(2), s 181F(3)(b), s 181G and, relevantly, s 181G(1)(f). I have already commented on this last mentioned matter at [78] above which I need not repeat. The respondent's contention was that whereas s 181F(2) places the onus of proof upon the applicant to establish that his or her removal was harsh, unreasonable or unjust under Pt 6 of Ch 2 the onus of proof is placed upon the employer to justify the dismissal. Reliance was placed upon the decision of the Full Bench of the Commission in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454. Wang was a case where it was alleged that the applicant employees had committed the criminal offence of theft. The Full Bench held (at 463) that:

"The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, 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."

151 However, in cases that do not involve misconduct amounting to a criminal offence, it is apparent that the Commission places the onus of proof on the applicant for relief. To take one example: in Myers Deputy President Sams stated the question for his determination to be: " Did former Constable Myers demonstrate fitness to remain a police officer ?" Earlier in his judgment in a passage to which I have already referred (see [142] above), the learned Deputy President stated that the applicant " was obliged to demonstrate fitness for the office he sought ". There is no reason to believe why the foregoing statements did not represent the view of the Commission as to where the onus of proof lay except in cases involving alleged criminal conduct.

152 Given that the onus of proof on those alleging conduct amounting to a criminal offence at common law lies upon the authority alleging such an offence, it is unsurprising that in Wang the Full Bench determined that the onus of establishing serious misconduct involving criminal activity by the employee lay upon the employer. In all other cases, the onus lies upon the applicant to establish his or her fitness for office. It follows in my view that little or no weight can be placed upon the provisions of s 181F(2) in support of the respondent's contention.

The construction issue - does Pt 6 of Ch 2 provide inappropriate remedies for probationary constables?

153 In my view the same comment applies to the respondent's reliance upon s 181F(3)(b) given the statements of Deputy President Sams in Myers to which I have referred at [ 145 ] above. It is self-evident that in dealing with an applicant who is a probationary police constable who has been dismissed, the public interest including maintaining the integrity of the NSW Police Force, will loom large. True it is that there is no reference in Deputy President Sams' judgment in Myers to a requirement that the Commission have regard to the fact that the respondent made the order pursuant to s 181D(1). No doubt that factor is to be taken into account given that pursuant to s 181D(1) the respondent is empowered to make an order for removal where he does not have confidence in the dismissed officer's suitability to continue as a police officer having regard to his or her competence, integrity, performance or conduct. His decision is therefore entitled to some weight. But as Myers illustrates, the issue of the applicant police officer's competence, integrity, performance and conduct is central to the Commission's assessment of the merits of the applicant's claim. I therefore do not regard the requirement that the Commission must have regard to the fact that the respondent has made an order pursuant to s 181D(1) as providing any significant support for the respondent's contention.

154 The respondent then contended that the remedies available under s 89 of the IR Act were inappropriate to a probationary police officer who had been dismissed pursuant to s 80(3). I am unable to accede to this argument. As appears from the many cases in the Commission where a dismissed probationary police officer has sought relief pursuant to s 84 of the IR Act , there is no relevant impediment, where the relevant police officer makes out his or her case that the dismissal was harsh, unreasonable or unjust, to the officers reinstatement to his or her former position as a probationary police constable. Equally there is no reason why that officer should not receive remuneration pursuant to s 89(3). I therefore cannot accept the respondent's submission that it would be anomalous, given the purpose of a probationary appointment for the Commission to order the reinstatement of a probationary police officer to his position as such.

155 I also cannot accept the respondent's contention that any such reinstatement would effectively usurp the respondent's future discretionary judgment to determine the suitability of the reinstated police officer for permanent appointment. The probationary nature of the police officer's status would remain. He or she would still need to establish their competence and integrity for confirmation. As a matter of practicality, if the Commission found that the adverse findings of a fitness report as to a probationary police officer's aptitude for discharge of his or her duties and as to his or her competence, integrity, performance and conduct were unjustified, then one would expect that the respondent would accept the Commission's decision.

156 In this context I am conscious of the remarks of Lord Brightman, with whom the other Law Lords agreed, in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 at 1176 where his Lordship declined to exercise his discretion to grant an order of mandamus reinstating a probationary police constable who had been unlawfully induced to resign rather than to be formally dismissed. The reason for declining such a remedy and making an appropriate declaration in lieu was that his Lordship considered that in practice such an order might border on usurpation of the powers of the Chief Constable which was to be avoided. Of course the granting of the remedies provided by s 89 of the IR Act are subject to the Commission's discretion and there may in particular cases be good and proper reasons why reinstatement of a probationary constable would be inappropriate. However, I do not regard that possibility as supporting the respondent's contention that it would be anomalous for the Commission to have the power to order the reinstatement of a probationary police officer given the power of the respondent under s 80(3). This power, so it was said, was unfettered, could be exercised arbitrarily and, without accountability except to the extent to which the decision was subject to judicial review on the basis that it was Wednesbury unreasonable. I do not detect any indication in the statutory language to support such a contention.

The construction issue - the relevance of the Police Regulation

157 In oral submissions the respondent placed great store upon the provisions of cls 12 to 14 of the Police Regulation as providing a " scheme " with respect to probationary police constables which was irreconcilable with the scheme embodied in Pt 6 of Ch 2 of the IR Act .

158 It is true that it is permissible to have regard to regulations made under a statute for the purpose of determining the scheme which the statute contemplates. Thus in Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 at [19] the High Court (Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ) observed that

"[i]t may be useful to read together regulations and the Act with which they were made, in order to identify the nature of a legislative scheme which they comprise. That is not a warrant for the use of the Code [equivalent to a regulation] to construe, and expand, the terms of s 51AD, in particular by reference to the nature of the language of [a particular clause in the Code]."

159 However, it is difficult to see how it would be constitutionally possible for the legislature to authorise the making of a regulation that would repeal a provision of an earlier statute of the same Parliament. It was noted by Brennan CJ and Dawson J in De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 at 212 that even if it was constitutionally possible, it would require express words to convey an intention that a general power to make regulations for a stated purpose authorised the repository to repeal the Parliament's own enactments.

160 However it is to be noted that in the joint judgment in De L of Toohey, Gaudron, McHugh, Gummow and Kirby JJ at 220, their Honours seemed to assume that a regulation could effect a purported partial repeal of an earlier statutory provision. In that case it was held that the relevant regulation did not have that effect. It is difficult to appreciate how a regulation made pursuant to a later statute could prevail over, and impliedly repeal, a provision of an earlier statute unless the former contained express authorising language such as a provision that the regulations made under it were to be treated as if they were enacted in the empowering statute. Such a provision would elevate the regulations to the status of sections of the statute pursuant to which they were made: see Pearce and Argument " Delegated Legislation Australia " 3 rd Ed LexisNexis Butterworths 2005 par 19.21; Pearce and Geddes " Statutory Interpretation Australia " 7 th Ed LexisNexis Butterworths 2011 par 7.17 where the learned authors state that delegated legislation cannot impliedly repeal an earlier statute except where expressly so authorised: see Gorry v Mackenzie [2009] WASC 326 at [30] where EM Heenan J observed, citing Brennan CJ and Dawson J in De L , that

"[i]t would require express words to convey an intention that a general power to make regulations for a stated purpose authorised the repository to repeal or amend the Parliament's own enactments"

161 I accept that cls 12 to 14 of the Police Regulation set out a scheme with respect to the appointment on probation of a police constable and the process required for the confirmation of the appointment of that officer to the rank of constable. However, I am unable to accept that that scheme, inclusive of the power of dismissal under s 80(3), presents an irreconcilable conflict with the power of the Commission under Pt 6 of Ch 2 of the IR Act to review the dismissal of a police officer prior to that officer's confirmation. Of course, if a dismissal occurs during the period of probation then the effect of s 83(2) and cl 6(1)(c) of the Industrial Regulation is to render Pt 6 of Ch 2 inapplicable to that officer's dismissal. But where those exempting provisions are inapplicable as in the present case, it is difficult to accept that the legislature, when enacting Pt 6 of Ch 2 of the IR Act in 1996 at a time when probationary police constables had a right of review under the equivalent provisions of the 1991 IR Act , intended by the insertion of Divisions 1C and 1D into Pt 9 of the Police Act in 1997 and s 44(2A) in 2002, to exclude Pt 6 of Ch 2 of the IR Act implicitly where it had otherwise done so explicitly.

162 The responsibility for enacting and/or amending the Police Act lay with the Minister for Police. There is no reason to believe that when inserting Divisions 1C and 1D into Pt 9 and amending s 44 by the enactment of subs (2A), the Minister, and therefore the legislature, was not aware that since 1991 probationary police officers who were dismissed pursuant to s 80(3) or its predecessor s 73(3), were seeking relief from that dismissal pursuant to Pt 6 of Ch 2 of the IR Act . It may well be that it was an oversight on the part of the Minister and/or the legislature in not excluding probationary police constables from the provisions of Pt 6 of Ch 2. But this Court cannot correct that oversight simply upon the speculative basis that it must have been the intention of the legislature, although neither express nor implicit in the statutory language as properly construed, to render Pt 6 of Ch 2 inapplicable to the dismissal of a probationary police officer pursuant to s 80(3) of the Police Act . Unless that subsection cannot be reconciled with the provisions of Pt 6, then that oversight must, and can only, be corrected by the legislature.

Is there incompatibility?

163 The respondent contended that both the express words of the provisions of the Police Act and the unmistakable implication derived from the competing statutory schemes suggest that the provisions of the Police Act and the IR Act with respect to the rights and remedies of probationary police officers to be dismissed under s 80(3) of the Police Act cannot be read together harmoniously. It was submitted that there is an irreconcilable contradiction between the respondent's right to dismiss under s 80(3) and the asserted " merit " remedies available to probationary police officers, such as to exclude the Commission's jurisdiction to entertain the applicant's claim for relief for unfair dismissal under s 84 of the IR Act . The contradiction, so it was submitted, is both explicit and implicit in nature.

164 In his written submissions the respondent relied heavily on the nature of his power to dismiss under s 80(3) and, in particular, upon the fact that any such dismissal could be " at any time " and " without giving any reason ". It was submitted, and the Full Bench found, that the respondent's power to dismiss under s 80(3) was, therefore, essentially unfettered subject only to whether the respondent must extend to the relevant police officer procedural fairness: cf Jarrett v Commissioner of Police [2005] HCA 50; (2005) 224 CLR 44; O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342.

165 The respondent submitted that whatever may be the content of the procedural fairness required to be extended to an officer who is to be dismissed pursuant to s 80(3), the reasons for dismissal are not part of that content. However, this begs the question. It may be that the respondent is not required to give any reasons for dismissing a probationary police officer once he has determined to do so. But that is not the same as extending to that police officer procedural fairness before he makes that determination. In doing so, it is at least probable that the officer in question would be entitled to know the grounds on which the respondent intends to act so that an informed response can be made.

Is there an explicit inconsistency?

166 In my view, notwithstanding the text of s 80(3), it is not self-evident that that provision explicitly effects a contradiction between it and the provisions of Pt 6 of Ch 3 of the IR Act . I accept the respondent's categorisation of an explicit contradiction as being one where there is an inability to comply with conflicting commands under different legislation and where it produces inconsistent rights and obligations that cannot be reconciled: see [133] above. I also accept that this can arise where the affirmative words granting a particular right can have a negative effect of forbidding the doing of a thing otherwise. However, the difficulty faced by the respondent is that s 80(3) is directed solely to his power to dismiss a probationary police officer albeit at any time and without giving any reason. I am unable to construe that provision, notwithstanding that it gives an authority of right to the respondent, as explicitly negativing the rights of that police officer to make an application under s 84 of the IR Act . If the respondent is to succeed in the present case, it can only be because of an implicit, as distinct from an explicit, inconsistency.

Is there an implicit inconsistency?

167 During the course of argument senior counsel for the respondent was asked to nominate the provisions of the Police Act which he asserted were incompatible with the unfair dismissal provisions of the IR Act . The only provision nominated was s 80(3). When asked why that provision was implicitly incompatible, his response was that " it is not to be reconciled with the provisions of Pt 6 of Ch 2 ". With all due respect, that assertion does not establish the proposition. When asked why is it that a power to summarily dismiss cannot be subject to review under Pt 6 of Ch 2, senior counsel's response was that there was no question about that as a concept. The unfettered power of the respondent in s 80(3) was, it was asserted, simply not amenable to review by a body such as the Commission. With respect, I cannot accept the validity of this assertion: see [141] - [148] above.

168 It was then contended that as Pt 9 contained its own scheme with respect to confirmed officers, and as Pt 9 did not apply to probationary officers, it followed that the legislature must have intended that Pt 6 of Ch 2 of the IR Act should not apply to the dismissal of a probationary officer pursuant to s 80(3). For this submission to be accepted it would be necessary to demonstrate as a matter of construction of the Police Act as a whole, that Pt 9 was intended to deal comprehensively with the question of the termination of the appointment of all members of the Police Force including probationary constables, thus resulting in an implicit inconsistency between the two dismissal regimes. In my view such an intention cannot be established.

169 It will be appreciated from what I have written that both before the Full Bench and this Court, the case was conducted by both parties on the assumption that Pt 9 has no application to probationary, as distinct from confirmed, police officers. The present application must, therefore, be determined on the basis of that assumption, whether it be right or wrong. It might be inferred that the parties' position on this issue was based on the proposition that s 80(3) exhaustively contained the only power of the respondent to dismiss a probationary police officer whereas s 181D(1) exhaustively dealt with the respondent's "dismissal" (in the form of an order for removal) of a confirmed officer. It is, of course, unnecessary to determine the validity of what was common ground between the parties.

170 However, if Pt 9 did apply to probationary constables, then if he or she was removed by order of the respondent pursuant to s 181D(1) then that officer would have a right of review to the Commission. It would be an odd situation if the respondent could avoid such a result by the simple device of dismissing the officer pursuant to s 80(3) rather than removing him or her pursuant to s 181D(1). One would not lightly infer that the legislature intended to deprive probationary police officers of a right of review of the termination of their employment unless it was at least implicit in the statutory language. In my view it is not.

171 It is thus instructive that the respondent acknowledged in oral argument that one does not find in the Police Act a detailed regime with respect to probationary constables compared to confirmed police officers. It was submitted that this was because the former were not intended by the legislature to have any rights when dismissed. However, the respondent was unable to identify any provisions of the Police Act which so provided or from which such an intention could legitimately be inferred. Although it was accepted that s 80(3) did not a scheme make, that was the only provision (apart from s 88) upon which reliance was placed to support the proposition that that provision was irreconcilable with the existence of a right of review for a dismissed probationary constable under Pt 6 of Ch 2 of the IR Act .

Is there incompatibility - the respondent's reliance on s 88 of the Police Act

172 As I have noted above, some reliance was placed by the respondent on s 88 of the Police Act the terms of which I have recorded at [62] above. That provision has no direct application to the present case as the dismissal of the applicant pursuant to s 80(3) could not be categorised as a failure to appoint him to a vacant non-executive position. However, the section does illustrate that where the legislature intended to exclude a matter rising under the Police Act from the IR Act , it did so expressly. Accordingly, if s 88 can be said to be part of the scheme relating to the appointment of persons as police officers, whether taken alone or in conjunction with s 80, it does not evidence any inconsistency between that scheme and the provisions of Pt 6 of Ch 2 of the IR Act .

173 It was common ground that with respect to confirmed officers, Pt 9 provided an exclusive regime with respect to the rights of such an officer who was the subject of an order for removal under s 181D(1) to seek review of that decision. In this respect it is to be noted that pursuant to s 181G(1) the provisions of Pt 6 of Ch 2 of the IR Act are to apply to any such application for review subject to the modifications set out in that subsection. Importantly, the Commission is entitled to take into account the matters referred to in s 88 of the IR Act . This is made clear by the provisions of s 181F(3) the chapeau of which is in the following terms: " Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision ..." There then follows the two matters to which the Commission must have regard being the interests of the applicant and the public interest.

174 Given the virtual incorporation of Pt 6 of Ch 2 of the IR Act into Pt 9 of the Police Act , one asks: must it therefore follow that the respondent's power to dismiss a probationary police constable pursuant to s 80(3) " at any time and without giving any reason " is irreconcilable with, or repugnant to, that officer having a right of review of his or her dismissal in accordance with the very same provisions of the IR Act , albeit without the modifications provided by s 181G(1)? I am unable to accede to an affirmative answer to the question so posed. I see no disharmony between the modified provisions of Pt 6 of Ch 2 applying to confirmed police officers and the unmodified provisions of that Part applying to probationary officers. Whether or not this was intended by the legislature is really not to the point unless it is necessarily the product of the true construction of the relevant statutory provisions. The fact remains that the two regimes, one applying to probationary police officers and the other applying to confirmed police officers, can, as a matter of construction, harmoniously exist and are not irreconcilable or repugnant to each other.

A summary of the compatibility issue

175 In summary, it may be assumed that the respondent has advanced cogent reasons why it is inherently unlikely that the legislature intended that the respondent's power of dismissal pursuant to s 80(3) of the Police Act should be subject to a right of review by the Commission under Pt 6 of Ch 2 of the IR Act . But unless that unlikelihood translates as a matter of construction into an implicit incompatibility or irreconcilability between s 80(3) of the Police Act on the one hand and Pt 6 of Ch 2 of the IR Act on the other, then the former does not effect an implied repeal of the latter. In any event, as s 80(3) predates Pt 6 of Ch 2, as an earlier statutory provision it cannot repeal a later provision with which it is inconsistent. The later provision prevails.

176 Although the respondent asserted that a decision had been made by the legislature that probationary police officers should not have a right of review with respect to their dismissal by the respondent pursuant to s 80(3), he was only able to point to s 80(3) itself as being the sole statutory repository of that decision. Because of the paucity of this argument, the respondent was forced to concede that the relevant provisions of the Police Regulation were central to his argument based on incompatibility. However, although that regulation provides for a scheme with respect to the appointment of a probationary police officer and his or her confirmation, neither the Police Regulation nor any provision of the Police Act provides for or implicitly excludes the right of review for unfair dismissal under the IR Act . The Police Act and the relevant regulations are simply silent on that topic so far as probationary police officers are concerned.

177 At its highest the respondent's contention must be that as a matter of construction of the Police Act , there is an implied prohibition on the review of a probationary police officer's dismissal pursuant to s 80(3). One of the numerous difficulties faced by the respondent with respect to this proposition is that it falls foul of s 218(1) of the Police Act .

The effect of s 218(1)

178 Section 218 has been in the Police Act since it was first enacted. It was originally s 117 until renumbered in 1993. It was amended in 1996 to delete the reference therein to the 1991 IR Act and to substitute a reference to the IR Act . The amendment came into force some months after the IR Act commenced. However, it should be noted that cl 40 of Pt 8 of Schedule 4 to the IR Act provides that the reference in another Act to the Industrial Arbitration Act 1940 or the Industrial Relations Act 1991 is to be read as a reference to the 1996 Act: see also, Interpretation Act 1987, s 68. Nevertheless the amendment to the Police Act which inserted Divisions 1C and 1D into Pt 9 post-dated the latest amendment to s 218.

179 The Full Bench at [63] of its reasons considered that s 218 only left intact the power of the Commission under the IR Act to deal with industrial matters covering police officers unless especially restricted by some provision of the Police Act . It was accepted by the applicant that s 218(1), being a general provision, was required to give way to the specific provisions of Pt 9 and, in particular, Divisions 1C and 1D.

180 In Public Service Association v The Industrial Commission of New South Wales [1985] 1 NSWLR 627 this Court was concerned with the provisions of s 8 of the Public Service Act 1979 which stated:

"Unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act , 1940".

At 645B-C Kirby P noted, first, that in Rose v Hvric (1963) 108 CLR 353, the High Court suggested that the word " expressly " in provisions analogous to s 8 were satisfied if " the necessary result of the operation of one Act would be to affect the operation of the other ". In particular, his Honour noticed the distinction drawn by the High Court in Rose (at 358) between an explicit or implicit contradiction which is efficacious and an inferential contradiction which is not. At 645E-F his Honour said:

"First, it must be remembered that the reconciliation to be achieved is not simply between the Industrial Arbitration Act and the Public Service Act but between these two statutes, the latter being itself modified by the saving provision in s 8. Some meaning must be given to s 8 and that meaning takes this case beyond the normal function of courts in resolving the field of operation of competing statutes. However, effect can be given to s 8 by limiting the competition of the Public Service Act to explicit and implicit contradiction and excluding inferential contradiction. This was the approach taken by the Commission, and, in my view, it is the correct one."

181 Thus, in the present case there is an implicit contradiction between the review provisions of Pt 9 of the Police Act and the review provisions of Pt 6 of Ch 2 of the IR Act such that the latter must give way to the former and is not saved by s 218. But even if the Police Act taken as a whole (apart from s 218) could be said to evince an intention to the effect that there should be no right of review by the Commission with respect to the dismissal of a probationary police officer pursuant to s 80(3) (a proposition which in any event cannot be sustained); there are no specific provisions in the Police Act dealing with probationary police officers which can be said either explicitly or implicitly, as distinct from inferentially, to contradict the general provisions of Pt 6 of Ch 2 of the IR Act .

182 This being so and contrary to the decision of the Full Bench, in my view s 218(1) has the effect contended for by the applicant, namely, reserving as unaffected the provisions of Pt 6 of Ch 2 of the IR Act with respect to the dismissal of probationary constables pursuant to s 80(3). There is nothing in s 80 or any other provision of the Police Act which puts it into the same category as s 44(2A) or, in particular, ss 181E to 181K of that Act. It follows that s 218(1) is a complete answer to the respondent's contentions and preserves unaffected the application of Pt 6 of Ch 2 of the IR Act to probationary police officers who have been dismissed pursuant to s 80(3).

Conclusion

183 In my opinion the Full Bench ought not to have found that the decision of Commissioner Bishop given on 30 June 2010 should be quashed for lack of jurisdiction. I would therefore propose the following orders:

(a) Pursuant to s 69 of the Supreme Court Act 1970 (the Act) the record of the proceedings in the Industrial Commission of New South Wales (the Commission) in matter No. IRC600 of 2010 be brought up to this Court;

(b) Pursuant to s 69 of the Act the whole of the decision of, and the orders made by, the Full Bench of the Commission on 5 May 2011 in matter No IRC 600 of 2010 be quashed;

(c) Pursuant to s 69 of the Act matter No. IRC 600 of 2010 be remitted to the Full Bench of the Commission to be decided according to law in conformity with the decision of this Court;

(d) The second respondent pay the applicant's costs of the proceedings in this Court.

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Decision last updated: 06 March 2012