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NSW Government Bulletin

27 April 2022

18 min read

#Government, #Workplace Relations & Safety

Published by:

Julia Wyatt

NSW Government Bulletin

High Court decides the Commissioner of Police’s decisions to medically retire police officers are not exempt from unfair dismissal

On 3 November 2021, the High Court determined that a decision made by the Commissioner of Police (NSW) (Commissioner) to medically retire a police officer was not excluded from challenge under the unfair dismissal regime in the Industrial Relations Act 1996 (NSW) (Industrial Relations Act).

In the unanimous decision of NSW Commissioner of Police v Cottle [2022] HCA 7, the High Court dismissed the Commissioner’s appeal and upheld the NSW Court of Appeal’s finding that nothing in the drafting of section 72A of the Police Act 1990 (NSW) (Police Act) indicated that the unfair dismissal provisions of the Industrial Relations Act were to be excluded. In other words, the NSW Industrial Relations Commission (IRC) did have jurisdiction to hear and determine Mr Cottle’s application for unfair dismissal.

The case

Mr Cottle was a police officer who was found to be medically unfit for service and consequently retired by the Commissioner under section 72A of the Police Act (since repealed and replaced by section 94B). Mr Cottle then made an application under section 84 of the Industrial Relations Act, claiming he was unfairly dismissed.

The key question for the High Court to determine was whether or not section 72A of the Police Act warranted a reading down of section 218 of the Police Act to exclude the operation of the Industrial Relations Act’s unfair dismissal regime in cases of medical retirement. Read our previous article here for further background and detail on the earlier decisions in this case.

Importantly, this case raises interesting questions about statutory interpretation and the interaction between the Industrial Relations Act and other public sector legislation. The High Court’s decision ultimately suggests, unless expressly or impliedly excluded, that the IRC’s jurisdictional powers, including in relation to unfair dismissals, can extend to public servants who are covered by their own unique statutory regime, such as, in this case, the NSW Police Force.

Parties’ submissions to the High Court

The Commissioner submitted that the NSW Parliament did not intend for the Industrial Relations Act’s unfair dismissal regime to cover medical retirement decisions made by the Commissioner. The power in section 72A was said to be analogous to the power in section 80 of the Police Act, which was found to be inconsistent with the Industrial Relations Act in the previous High Court decision of Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1 (Eaton). The Commissioner also emphasised the unique nature of the NSW Police Force sector and the need to be able to manage and control the peculiarities of the NSW Police Force in that context.

Conversely, Mr Cottle submitted in reply that section 72A of the Police Act is distinguishable from Eaton (see below) and therefore does not avoid the operation of the Industrial Relations Act.

High Court’s findings

Distinguishable from Eaton

In support of Mr Cottle, the High Court found that section 72A of the Police Act was distinguishable from section 80 of the Police Act, as considered in Eaton, because section 80:

  1. concerns probationary police officers, who were distinguished from regular full-time police officers in Eaton
  2. suggests that the Commissioner has unfettered power to dismiss, which the High Court interpreted to mean that the Commissioner has the power under section 80 to dismiss without providing reasons. There is no equivalent wording in section 72A, which instead requires objective criteria to be met in order to first enliven the Commissioner’s discretion.

Statutory Interpretation of Section 72A of the Police Act

Though there is no obligation under section 72A to provide reasons for the decision to medically retire a police officer, the High Court said the IRC should be able to determine whether the absence of such reasons, amongst other considerations, amounts to unfair dismissal. The objective criteria laid out in section 72A also pointed to stable grounds for determining whether an officer’s dismissal was “harsh, unreasonable or unjust”.

As part of its decision, the plurality compared section 72A with sections 50 and 181D of the Police Act. The provisions surrounding dismissal under sections 50 and 181D either explicitly or impliedly exclude the operation of the Industrial Relations Act. The High Court found that the absence of an equivalent provision under section 72A was a “powerful indication against the conclusion that the power to cause the retirement of non-executive police officers under s 72A shares the same immunity”.

Other public sectors

The High Court also noted that substantially identical powers to section 72A, that is, powers to cause the retirement of public sector employees, exist in other legislation, including section 56 of the Government Sector Employment Act 2013 (NSW), and those powers have been held to be subject to the unfair dismissal regime.

On this basis, the plurality found that it would be “anomalous in the extreme” not to allow police officers the same remedy afforded generally to public sector employees. Further, the distinctive functions of the NSW Police Force and the Commissioner’s responsibilities in that context were not enough for the court to find section 72A unique in this respect.

Contradictions with the Industrial Relations Act

The High Court also rejected the Commissioner’s contention that because “reinstatement” was not an available remedy for those terminated under section 72A, the unfair dismissal provisions were not intended to apply to medically retired police officers. Instead, the High Court said it was perfectly open for the IRC to apply an alternative or suitable remedy in that circumstance.

Finally, Section 218 of the Police Act, which recognised the general jurisdiction of the Industrial Relations Act, was also found to be a persuasive indicator of parliamentary intent that, in fact, the Police Act did not “cover the field” of industrial matters.

Observations and key takeaways

  1. Without an express (or implied) exclusion, the Industrial Relations Act will likely apply to most NSW public sector employees.
  2. The High Court’s decision makes clear that each provision of an Act will be construed with regard to its particular meaning and the context of its enactment. In other words, not all provisions of the Industrial Relations Act will apply to the public sector as a matter of course.

Authors: Ashleigh Mills & Julia Wyatt

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Practice and courts


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The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. Read more here.


Supreme Court of NSW Court of Appeal
Supreme Court of NSW Court of Appeal Decisions Reserved as at 22 April 2022. Read more here.

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Lichi v Industrial Relations Secretary on behalf of Department of Communities and Justice (No. 2) [2022] NSWIRComm 1030
NFAIR DISMISSAL – respondent unreasonably failed to agree to a settlement of the claim – costs awarded.

Woods v Murray River Council [2022] NSWDC 120
TORT – personal injury - work injury damages claim by council worker against his employer.

Griffin and others v Health Secretary; Thorncraft and others v Secretary of the Department of Education [2022] NSWIRComm 1027
UNFAIR DISMISSALS – threshold issues – Public Health Orders – Employer Determinations – unvaccinated workers prohibited from working in public health and public education sectors – impracticability of reinstatement or re-employment orders.

Tom v Commissioner of Fair Trading [2022] NSWCATAD 130
ADMINISTRATIVE LAW – REVIEW OF DECISION BY EXTERNAL DECISION-MAKER – decision to cancel contractor licence and disqualify a licence holder pursuant to section 62 of the Home Building Act 1989 (NSW).
PRACTICE AND PROCEDURE – INTERLOCUTORY ORDER – interim decision – factors relevant to exercise of the power to make the interim decision under section 60 of the Administrative Decisions Review Act 1997 (NSW) – interlocutory decision to take effect retrospectively.

EPQ v Children’s Guardian [2022] NSWCATAD 129
ADMISTRATIVE LAW – refusal of a working with children check clearance – disqualified person seeking an enabling order – 2001 disqualifying offence aggravated with an act of indecency – s 61M(1) of the Crimes Act 1900 NSW.

EIG v North Sydney Council [2022] NSWCATAD 127
ADMINISTRATIVE LAW – administrative review – personal information – health information – disclosure of health information – contravention of Health Privacy Principle 4 and Health Privacy Principle 11 – appropriate relief.

Diaz v Secretary, Ministry of Health in respect of Pathology No. 3 [2022] NSWIRComm 1028
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles.

Eminem Kids Academy Pty Ltd v Secretary, Department of Education [2022] NSWCATAD 126
REVIEW OF DECISION BY EXTERNAL DECISION-MAKER – decision to cancel provider approval by the regulatory authority under section 33 of the Children (Education and Care Services) National Law (NSW).
PRACTICE AND PROCEDURE – stay of the decision under appeal – factors relevant to exercise of the power to stay decision under section 43 of the Civil and Administrative Tribunal Act 2013 (NSW).

Environment Protection Authority v University of Sydney [2022] NSWLEC 41
SENTENCING – offence under Radiation Control Act of failing to ensure regulated material not in possession of person with appropriate license – accidental disposal of PET scanner with radiation source – late plea of guilty.
SENTENCING – offence under Radiation Control Regulation of disposing of regulated material without consent of Environment Protection Authority – accidental disposal of PET scanner with radiation source at tip – late plea of guilty.

SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury.
CRIMINAL PROCEDURE – whether proceedings brought outside limitation period – whether particulars of offence are adequate.

Environment Protection Authority v Cleanaway Equipment Services Pty Ltd [2022] NSWLEC 40
SENTENCING – plea of guilty to charge of water pollution resulting from spill of industrial solvent into stormwater system and Molonglo River due to valve failure – no aggravating factors – actual environmental harm caused – medium level of objective seriousness – mitigating factors – early guilty plea – contrition.
SENTENCING – plea of guilty to charge of water pollution from spill of industrial solvent into stormwater and Molonglo River – second spill occurred after attempted clean-up of original spill – no aggravating factors – actual environmental harm caused – medium level of objective seriousness – mitigating factors – early guilty plea – contrition.
SENTENCING – plea of guilty to charge of failing to immediately notify water pollution incident – notification of EPA within four hours of becoming aware that spill of industrial solvent had entered stormwater system – low level of objective seriousness – no aggravating factors – early plea of guilty.

CFJ v Children’s Guardian (No 3) [2022] NSWCATAD 124

ADMINISTRATIVE LAW – Application for review under s 27 of Child Protection (Working with Children) Act 2012 – risk assessment by respondent due to notification of concern from the NSW Ombudsman – whether the applicant poses a risk to the safety of children – the correct and preferable decision.

O’Grady v Sutherland Shire Council (No 2) [2022] NSWCATAD 125
ADMINISTRATIVE LAW – Government Information (Public Access) – Grounds for refusing access – Balancing competing public interest factors for and against disclosure.

Fraser v Commissioner of Fire and Rescue NSW [2022] NSWIRComm 1026
APPEAL – public sector disciplinary appeal – demotion from Deputy Manager, ComSafe Training Services, Operational Support Level 3 to Senior Firefighter – settlement reached – Deed of Release – demotion altered to Assistant Equipment Management Officer role, Operational Support Level 2 – appellant initially placed in Technical Officer role, Operational Support Level 2 – whether the Deed constitutes a bar to the appellant pursuing his disciplinary appeal – whether respondent had repudiated the Deed – appellant did not accept the repudiation through his conduct.

Parker v Warrumbungle Shire Council [2022] NSWPIC 160
WORKERS COMPENSATION – Application for declaration that applicant was not required to attend earning capacity assessment pursuant to section 44A of the Workers Compensation Act 1987, where liability for the claim has been disputed; Held – there is no dispute before the Commission; and it has no jurisdiction to make the declaration sought; consideration of Chatto v Transfield Services (Australia) Pty Ltd; Widdup v Hamilton; University of New South Wales v Lee; De Vries v Bega Valley Shire Council; the order sought is declined and the Application is dismissed. 

Environment Protection Authority v Afram [2022] NSWLEC 38
SENTENCING – pleas of guilty to three offences of supply of misleading information in a material respect about waste in the course of dealing with waste – defendant already sentenced for overlapping fraud offence under Crimes Act – potential for significant environmental harm as asbestos waste delivered to rural property – early plea of guilty – limited other mitigating circumstances.
SENTENCING – plea of guilty to land pollution offence – deposition of asbestos and other waste on rural property unbeknownst to land holder who expected clean fill to be supplied – actual harm to the environment caused – potential for significant environmental harm – early guilty plea – limited other mitigating circumstances.

Bonner v Chief Commissioner of State Revenue [2022] NSWSC 441
TAXES AND DUTIES – payroll tax – liability – employment agency contracts – agency contracts with clients to provide services of models – whether agency’s contracts with models are “employment agency contracts” – did models work “in and for the conduct of the business” of the agency’s clients – fact-sensitive inquiry – UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852; 104 ATR 577 discussed.
STATUTORY INTERPRETATION – principles – whether literal meaning produced absurd results – reading down employment agency contract provisions by implied limitations – importing concepts from repealed provisions – purposive construction – use of extrinsic materials to divine purpose – Payroll Tax Act 2007 (NSW), Pt 3 Div 8.
STATUTORY INTERPRETATION – extrinsic materials – legislative history – Pay-roll Tax Act 1971 (NSW).

Godolphin Australia Pty Ltd v Chief Commissioner of State Revenue [2022] NSWSC 430
TAXES AND DUTIES – Land tax – Assessments – Exemption for land used for primary production – Where plaintiff used land for the maintenance of horses both for the purpose of training those horses for racing and for the purpose of selling those horses or their bodily produce, namely their semen – Distinction between dominant use of land and dominant purpose of land.

NSW Education Standards Authority v Thomas [2022] NSWCATAP 110
APPEAL – administrative review – meaning of ‘misconduct’ in s 24(1)(e) of the Teacher Accreditation Act 2004 (NSW) – whether the Tribunal misconstrued the meaning of ‘misconduct’ – whether the Tribunal erred in determining that conduct alleged to be in breach of NSW Department of Education Code of Conduct could not constitute ‘misconduct’ – whether the Tribunal erred by determining that non-compliance with the Australian Professional Standards for Teachers approved under s 19(1) of the Education Standards Authority Act 2013 (NSW) could not constitute misconduct – whether the Tribunal erred in its discretion to find in the alternative that the respondent’s suspension was disproportionate and not sufficiently serious to warrant such suspension.

Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112
ADMINISTRATIVE LAW – whether in reviewing administratively reviewable decision under Administrative Decisions Review Act 1997 (NSW) Tribunal is to apply version of enabling legislation in effect at time of Tribunal’s decision.



Regulations and other miscellaneous instruments

Legal Profession Uniform Law Australian Solicitors’ Conduct Amendment (No 2) Rules 2022 LW 22 April 2022

Environmental Planning Instruments

Ballina Local Environmental Plan 2012 (Map Amendment No 4) LW 22 April 2022

Bankstown Local Environmental Plan 2015 (Amendment No 14) LW 22 April 2022

Campbelltown Local Environmental Plan 2015 (Amendment No 29) LW 22 April 2022

Clarence Valley Local Environmental Plan 2011 (Amendment No 50) LW 22 April 2022

Parramatta Local Environmental Plan 2011 (Amendment No 65) LW 22 April 2022

Sydney Local Environmental Plan 2012 (Amendment No 74) LW 22 April 2022

The Hills Local Environmental Plan Further Amendment (North Kellyville Precinct) 2022 LW 22 April 2022

Willoughby Local Environmental Plan 2012 (Amendment No 21) LW 22 April 2022

Woollahra Local Environmental Plan 2014 (Map Amendment No 1) LW 22 April 2022

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Julia Wyatt

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