FEDERAL COURT OF AUSTRALIA Commissioner of Police v Ward [1999] FCA 1058 CONSTITUTIONAL LAW – State as employer – whether immune from Division 3 of Part VIA of the Industrial Relations Act 1988 (Cth) – extent of immunity – implied limitations on powers of Commonwealth Parliament INDUSTRIAL LAW – unfair dismissal – whether an aboriginal police aide is an employee – meaning of employee in Division 3 of Part VIA of the Industrial Relations Act 1988 (Cth) Industrial Relations Act 1988 (Cth) – Part VIA Division 3, ss 170DC, 170DE, 170EA Konrad v Victoria Police [1999] FCA 988 applied COMMISSIONER OF POLICE V JOHN FEDERICK WARD NO. WG 107 of 1998 JUDGES: RYAN, NORTH & FINKELSTEIN JJ PLACE: PERTH DATE: 6 AUGUST 1999 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WG 107 OF 1998 On appeal from a single judge of the Federal Court of Australia BETWEEN: COMMISSIONER OF POLICE Appellant AND: JOHN FREDERICK WARD Respondent JUDGES: RYAN, NORTH AND FINKELSTEIN JJ DATE OF ORDER: 6 AUGUST 1999 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WG 107 OF 1998 On appeal from a single judge of the Federal Court of Australia BETWEEN: COMMISSIONER OF POLICE Appellant AND: JOHN FREDERICK WARD Respondent JUDGES: RYAN, NORTH AND FINKELSTEIN JJ DATE: 6 AUGUST 1999 PLACE: PERTH REASONS FOR JUDGMENT THE COURT: 1 The respondent, John Frederick Ward, was employed by the appellant, the Commissioner of Police (WA), as an Aboriginal Police Aide. In February 1996 another aborigine, Darryl Williams, assaulted his wife, Marielle Williams. Mr Ward knew that Ms Williams had been assaulted by her husband. His appointment as an aboriginal aide was revoked for the reason that Mr Ward had expressed the opinion that "the assault by [Mr] Williams on [Ms] Williams should be treated as an Aboriginal dispute between husband and wife and, at the same time, … Williams was within his rights to force his wife to go with him and whether he assaulted her or not was their concern." 2 Mr Ward lodged an application with the Australian Industrial Relations Commission under the former s 170EA of the Industrial Relations Act 1988 (Cth) alleging that his employment had been unlawfully terminated. His complaint was that contrary to s 170DC of the Industrial Relations Act he was denied the opportunity to respond to the allegations made against him and that, in the circumstances, he had not been dismissed for a valid reason in contravention of s 170DE. 3 The Commission was unable to settle the matter by conciliation and pursuant to s 170ED it was referred to the Industrial Relations Court of Australia for determination. In the meantime, the Industrial Relations Act had been amended by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). One effect of the amendment was to vest the jurisdiction of the Industrial Relations Court in the Federal Court. 4 When the application came on for hearing, the trial judge (Moore J) ordered that two questions be decided separately from all other questions. They were: (a) was the applicant, being an aboriginal aide appointed under s 38A(1)(b) of the Police Act 1892 (WA), a person whose employment had been terminated by the respondent within the meaning of s 170EA(1) of the Industrial Relations Act; and (b) if the applicant was such a person, were s 170DC and s 170DE(1) of the Industrial Relations Act valid laws of the Commonwealth in so far as they purported to preclude the respondent from terminating the applicant's employment other than in conformity with those questions. 5 In due course his Honour answered each of those questions in the affirmative. He then heard the substantive claim for wrongful dismissal, found in favour of Mr Ward and ordered the Commissioner to pay compensation which he fixed in the sum of $9,239. 6 The Commissioner appeals from these orders. There are two grounds of appeal. They are: (1) The learned judge erred in law in finding that the respondent was a person whose employment had been terminated by the appellant within the meaning of s 170EA(1) of the Industrial Relations Act; (2) The learned judge erred in law in finding that s 170DC and s 170DE(1) of the Industrial Relations Act were valid laws of the Commonwealth in so far as they purported to preclude the appellant from terminating the respondent's employment other than in conformity with those sections. In other words, the appeal is limited to the issues raised on the determination of the two preliminary questions and is not concerned with the trial judge's findings in relation to the substantive merits of the claim. 7 The hearing of the appeal was set down in the same week as the appeals in Konrad v Victoria Police [1999] FCA 988 were heard and before a Full Court that was constituted by the same members that heard Konrad. 8 When it became apparent that the resolution of the appeals in Konrad would also resolve the issues raised in the instant appeal, copies of the written submissions and the transcript of the oral argument in Konrad were provided to Mr Ward and the Commissioner. This made full argument on the instant appeal unnecessary. The parties adopted those submissions in Konrad that supported their respective positions and contented themselves with short submissions on matters which they felt required elaboration. 9 The Court has today published its reasons for decision in Konrad. The Court unanimously held that a public employee, such as a member of the police force, was an employee for the purposes of Division 3 of Part VIA of the Industrial Relations Act. The Court also held, by majority, that s 170DE(1) was a valid law of the Commonwealth in so far as it purported to have application to members of the police force. Although the Court did not consider the validity of s 170DC in Konrad, it necessarily follows from its reasons that it too is a valid enactment of the Commonwealth Parliament in so far as it operates in respect of the public service, including those of its members who hold public office such as Mr Ward. 10 It follows, for the reasons given in Konrad, that the appeal must be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 6 August 1999 Counsel for the Appellant: Mr R Cock QC, Solicitor-General for the State of Western Australia Mr M Lundberg Solicitor for the Appellant: Crown Solicitor for the State of Western Australia Counsel for the Respondent: Mr D W McLean Solicitor for the Respondent: Aboriginal Legal Service of Western Australia (Inc) Date of Hearing: 18 February 1999 Date of Judgment: 6 August 1999