Industrial Relations Commission New South Wales Medium Neutral Citation: Commissioner of Police v Robbs (No 2) [2022] NSWIRComm 1039 Hearing dates: 15 June 2021 Date of orders: 6 June 2022 Decision date: 06 June 2022 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster Decision: 2020/323978 - Leave to appeal granted & appeal upheld in part – The Commission's Disciplinary Orders made on 30 October 2020 are upheld except that Order 4 is varied such that Orders 1, 2 and 3 take effect 28 days from the date of this decision. 2020/336473 – Leave to appeal refused. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – powers of Commission to order disciplinary transfer under Pt 9 Div 1A of the Police Act 1990 – whether evidence of vacancy required – whether decision at first instance had the effect of creating a position – whether disciplinary outcome imposed by decision at first instance proportionate to misconduct – whether Commissioner at first instance considered "public interest" – whether Commissioner erred in failing to make non-publication order under s 164A of the Industrial Relations Act 1996 Legislation Cited: Court Suppression and Non-publication Orders Act 2010, s 8 Industrial Relations Act 1996, Pt 6 of Chap 2, ss 89, 154, 164A, 187, 188, 191 Police Act 1990, Pt 6, Pt 9, ss 8, 10, 63, 65, 66, 66A, 69, 173, 174, 175, 177 and Sch 1 Cases Cited: A (a pseudonym) v Commissioner of Police [2019] NSWIRComm 1091 Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 Big W Discount Stores v Donato [1995] 58 IR 239 Blatch v Archer (1774) 98 ER 969 BMW Australia Ltd v Brewster [2019] HCA 45; 94 ALJR 51 Commissioner of Police v Evans [2006] NSWIRComm 170 Commissioner of Police v Eaton (2013) 252 CLR 1 Commissioner of Police v Robbs [2021] NSWIRComm 1017 Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales (2010) 77 NSWLR 159 Godkin v Commissioner of Police [2007] NSWIRComm 202 Harry Day v John Smidmore and others (No.2) [2005] NSWIRComm 406 Hosemans v Commissioner of Police (No.4) [2005] NSWIRComm 409 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380 Mitchell v The Queen (1996) 184 CLR 333 Osland v Secretary, Department of Justice (2008) 234 CLR 275 O'Sullivan v Farrer (1989) 168 CLR 210 Parramatta City Council v Pestell (1972) 128 CLR 305 Patty v Commonwealth Bank of Australia [2002] FCA 111 Police Association of New South Wales v State of New South Wales [2020] NSWCA 3 Robbs v Commissioner of Police [2020] NSWIRComm 1074 Russo v Aiello (2003) 215 CLR 643 Singh v Minister for Immigration and Border Protection [2018] FCAFC 184; 266 FCR 459 Vella v Commissioner of Police (NSW) [2019] HCA 38; 93 ALJR 1236 X v Department of Justice and Attorney General [2011] NSWIRComm 1010 X v NSW Department of Education and Training [1999] NSWIRComm 34 Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 Category: Principal judgment Parties: Commissioner of Police (appellant) Troy Robbs (respondent) Representation: Counsel: Y Shariff SC with M Seck (appellant) P Tierney (respondent) Solicitors: Sparke Helmore Lawyers (appellant) Carroll & O'Dea Lawyers (respondent) File Number(s): 2020/323978 2020/336473 Publication restriction: Nil Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: Decision 1: [2020] NSWIRComm 1074 Decision 2: ex tempore / unreported Date of Decision: Decision 1: 30 October 2020 Decision 2: 5 November 2020 Before: Commissioner Murphy File Number(s): 2019/298137 Decision 1. On 13 November 2020, the Commissioner of Police [1] ("Police Commissioner") filed an Application for Leave to Appeal and Appeal pursuant to s 187 of the Industrial Relations Act 1996 (NSW) ("IR Act") ("Substantive Appeal") from a decision of Commissioner Murphy dated 30 October 2020, Robbs v Commissioner of Police [2020] NSWIRComm 1074 ("Substantive Decision"). 2. The Substantive Decision was a review, pursuant to s 174 of the Police Act 1990 (NSW) ("Police Act"), of an order made pursuant to subs 173(2) of the Police Act served on Troy Robbs ("Mr Robbs") on 4 September 2018 ("Original Disciplinary Order"). The substance of the Original Disciplinary Order was that Mr Robbs was to be reduced in rank from Sergeant 9th Year to Senior Constable Level 6 and be subject to a disciplinary transfer from his role as supervisor in the radio studio at the Newcastle Radio Operations Centre ("Newcastle ROC") to the Brisbane Waters Police District. 3. Commissioner Murphy determined that the Original Disciplinary Order was disproportionate to the misconduct established and made the following orders in the Substantive Decision: (1) The orders made by Acting Assistant Commissioner Whyte pursuant to section 173(2) of the Police Act 1990 (NSW) and served on Sergeant Troy Robbs on 4 September 2019 whereby Sergeant Robbs' rank was to be reduced to a Senior Constable Level 6 and he was to be subject to a disciplinary transfer are revoked. (2) Sergeant Robbs is to be reduced in increment to Sergeant 3rd Year on the basis that he will progress by increments to Sergeant 9th Year over the period of six years from the date on which these orders take effect. (3) Sergeant Robbs is to be subject to a disciplinary transfer to the Brisbane Waters Police District or, at the discretion of the Commissioner of Police or his delegate, to another location within a commutable distance of 60 minutes or less from his current address ("Disciplinary Transfer Order"). (4) These orders take effect on and from Monday 16 November 2020. 1. We refer to the four orders made by Commissioner Murphy on 30 October 2020 as "the Commission's Disciplinary Orders" and Order 3 of the Commission's Disciplinary Orders as "the Commission's Disciplinary Transfer Order". 2. On 5 November 2020, Commissioner Murphy declined an application by the Police Commissioner, which was not opposed by Mr Robbs, to grant an order pursuant to s 164A of the IR Act in respect of the anonymity of complainants about Mr Robbs's behaviour ("Non-disclosure Decision"). 3. On 26 November 2020, the Police Commissioner filed a further Application for Leave to Appeal and Appeal pursuant to s 187 of the IR Act from the Non-disclosure Decision ("Non-disclosure Appeal"). 4. On 9 March 2021, the Full Bench dismissed the Police Commissioner's motion in the Substantive Appeal seeking "leave to introduce fresh evidence" contained in two statements of Inspector Lisa Jones dated 23 December 2020 and 2 March 2021. The Full Bench set out its reasons for refusing leave to allow the Police Commissioner to introduce fresh evidence in its decision of 10 March 2021: Commissioner of Police v Robbs [2021] NSWIRComm 1017. Grounds of the Appeals, Questions raised by the Appeals and Contentions asserted by the Appellant Substantive Appeal 1. The Police Commissioner relied upon an Application for Leave to Appeal and Appeal filed on 13 November 2020 ("Notice of Substantive Appeal"), a narrative on leave to appeal filed 6 May 2021, written submissions filed 6 May 2021 ("Appellant's Substantive Submissions") and further written submissions filed 1 June 2021. 2. Mr Robbs relied upon written submissions filed 20 May 2021 ("Respondent's Substantive Submissions") and a narrative on leave filed 20 May 2021 ("Respondent's Substantive Narrative"). 3. The parties' written material was supplemented in oral submissions taken by the Full Bench at the hearing of the Substantive Appeal on 15 June 2021. 4. The Notice of Substantive Appeal sets out five questions the Police Commissioner contends are raised by the Substantive Appeal: 1. The correct interpretation of the Commission's powers to make alternative orders under section 177(1)(b) of the Police Act 1990 (NSW). 2. Whether the Commission has the power under section 177(1)(b) of the Police Act 1990 (NSW) to make an alternative order that has the effect of creating a position within the NSW Police Force. 3. If the answer to question 2 is in the affirmative, what evidence is required before the Commission can make an alternative order under section 177(1)(b) of the Police Act 1990 (NSW) that has the effect of creating a position within the NSW Police Force. 4. Whether the Commissioner correctly examined the proportionality of the respondent's misconduct against the proposed disciplinary action. 5. Whether the Commissioner had regard to the public interest as required under section 175(4) of the Police Act 1990 (NSW) in making his decision. 1. The Grounds of Appeal asserted by the Police Commissioner in the Substantive Appeal are: "1. The Commissioner erred (at [82]) in rejecting the appellant's submission that the alternative order proposed by the Applicant could not be made in the absence of evidence that the order could be complied with and given effect to by the Respondent. 2. The Commissioner erred (at [89](2), (3)) in making an alternative order: a. having the effect of creating a position within the NSW Police Force; or b. in the absence of any evidence that such a position was available and the order could be given effect to. 3. The Commissioner erred in his assessment of the proportionality of the respondent's misconduct against the proposed disciplinary action. 4. The Commissioner erred in failing to have regard to the public interest in making the decision as required by section 175(4) of the Police Act 1990 (NSW)." 1. In support of Grounds 1 and 2 the Police Commissioner contends: 1. subs 177(1) of the Police Act, when read with other relevant provisions of that Act, does not empower the Commission to make an order that requires a police officer to be transferred to a position in circumstances where it would require the Police Commissioner to create such a position; 2. the Commission does not have the power to make an order requiring a police officer to be transferred to a position where the Commission has no evidence whether such a position exists or would require the Police Commissioner to create the position; 3. an applicant for review under subs 174(1) of the Police Act bears the onus at all times, including the onus of establishing the appropriateness of an order pressed by the applicant and, where the applicant seeks an alternative order seeking a transfer to a different or new position, the applicant bears the onus of establishing that such a position is available and that it would be appropriate that such an order be made, having regard to the functions, resources, budgets and other limitations confronting the Police Commissioner; and 4. the relevant mandatory considerations that the Commission must take into account in making an alternative order for a disciplinary transfer having regard to the statutory scheme and in light of the NSW Court of Appeal's decision in Police Association of New South Wales v State of New South Wales [2020] NSWCA 3; 101 NSWLR 626. 1. In support of Ground 3, the Police Commissioner contends that if the Commission is empowered to order her to transfer an applicant to a position in the absence of evidence as to whether such a position exists or has to be created, then the Commission's discretion in relation to the assessment of harshness is not absolute. The Police Commissioner asserts that Commissioner Murphy erred in determining that the Original Disciplinary Order was harsh because Commissioner Murphy did not have regard to the remedial and protective purposes of the Original Disciplinary Order and the need for the Police Commissioner to ensure proper supervision of Mr Robbs in order for her to comply with her obligations under anti-discrimination and work health and safety legislation. 2. In support of Ground 4, the Police Commissioner contends that the Commission is required to have regard to the public interest in conducting the review and in Commissioner Murphy failed to refer to, or to have regard to, and failed to communicate a view in relation to, the public interest. In failing to do so, the Commissioner erred. Non-disclosure Appeal 1. The Application for Leave to Appeal and Appeal in the Non-disclosure Appeal sets out the questions the Police Commissioner purports are raised by the Non-disclosure Appeal as: "(1) Whether the Commission should in proceedings commenced under Part 9 of the Police Act 1990 (NSW) for review of the actions of the Respondent exercise its discretion to grant a non-disclosure order in accordance with section 164A(l )(a)(i) of the Industrial Relations Act 1996 (NSW) to prohibit the disclosure of the names of persons whose complaints form a basis for the Appellant taking action under Part 9 of the Police Act 1990. (2) Whether the granting of a non-disclosure order is necessary in the interests of justice pursuant to section 164A(3) of the Industrial Relations Act 1996 (NSW)." 1. The Grounds of Appeal asserted by the Police Commissioner in the Non-disclosure Appeal are: "1. The Commissioner failed to consider a number of relevant factors in making the decision, including: a. The broad powers of the Commission to make orders under section 164A of the Industrial Relations Act 1996 (NSW), including the power to make such orders after a decision has been published b. The non-opposition of the other party to the application. c. The persons for whom anonymity was sought: i. were complainants against the respondent's misconduct ii. were not parties to the proceedings iii. were not called to give evidence in the proceedings iv. remain employed by the appellant, and v. are not public figures and there can be no public interest in the public knowing their identity. d. No prejudice will be caused to the Respondent by the making of the orders. e. The common law has a long tradition of protecting persons' rights to privacy. f. The interests of justice would not be served as the complainants may suffer reputational damage as a result of the inappropriate conduct of the perpetrator." Leave to appeal required for the Substantive Appeal and the Non-disclosure Appeal 1. An appeal to the Full Bench may only be made with the leave of the Full Bench: subs 188(1) of the IR Act. The Full Bench is only to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: subs 188(2) of the IR Act. 2. The legal principles governing the grant of leave to appeal are well-settled. The Full Bench will grant leave to appeal where the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application": Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380 ("Knowles") at 382; Hosemans v Commissioner of Police (No.4) [2005] NSWIRComm 409; (2005) 150 IR 263 at [5]. 3. It is useful also to consider what the Full Bench said in King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 ("King (No 2)"), when referring to Knowles: "52 Appeals to a Full Bench of the Commission are subject to the grant of leave: s 188(2). As identified in the respondent's submissions, leave will not lightly be granted. The most frequently cited contemporary authority on the grant of leave to appeal is the judgment of the Full Bench in Knowles v Anglican Church Property Trust (No.2) at 381 - 382, where it was stated: We have determined that the Commission should not grant leave to appeal pursuant to s188 of the Act. In doing so we do not propose to depart from the general policy and practice of the Commission not to give reasons for the refusal of leave. However, we do propose to make some observations as to the conduct of appeals where the grant of leave is required which are apposite in the present matter. Firstly, as a Full Bench of this Commission noted in Perrott v Xcellenet Australia Limited (1998) 84 IR 255 at 265, leave will not lightly or automatically be granted. The statutory scheme makes clear that the legislature intended to restrict access to appeals to appropriate cases meeting the public interest test stated in s 188(2). These principles are also applicable to cases involving questions of jurisdiction. The raising of a jurisdictional issue by an appellant does not, of itself, establish a basis for the grant of leave; each case having to be judged against the statutory criterion. The Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. Clearly, this consideration will involve a question as to whether the decision appealed from was inconsistent with established law and principle. Secondly, it will be relevant to the grant of leave to consider, amongst other factors, whether the appellant has brought, as in this matter, a substantially different case in the appeal. This is not to say that the admission of new evidence per se would have this result, but that the bringing of, in substance, a new or materially different case on appeal may constitute a basis for the refusal of an application for leave to appeal. In Caltex Petroleum Pty Ltd v Harmer [(1999) 92 IR 264] the Full Bench stated: As to the second matter averted to above, we consider that leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues on the appeal which were not squarely raised at first instance; irrespective of whether the relief sought or the outcome contended for by the appellant remains the same or substantially the same... We agree with the principle so stated. Thirdly, it will be relevant to consider whether an appeal raises substantial and important considerations. The issues raised by an appellant as to the public interest considerations under s188(2) need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application. 53 That passage has been relied upon in a number of Full Bench judgments. See, for example, Sykes v Alan East Pty Ltd (Formerly National Meat Supplies Pty Ltd) [2000] NSWIRComm 1130, Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at 144, Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons) (2001) 104 IR 204 at 206, Mitchforce v Starkey [2002] NSWIRComm 85 and Abdullah Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150. 54 Having regard to the submissions of the appellant on the question of leave in his appeal, it is plain that in large measure, the appeal seeks to challenge the findings of fact made by his Honour. As was made clear by the Full Bench in Knowles an appeal which seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, will face a significant hurdle in obtaining leave to appeal. In this regard we would reiterate what was stated by the Full Bench in Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4]: In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave. 55 This passage has recently been referred to with approval by Full Benches of the Commission in Abdullah Al-Shennag v Bankstown City Council Civic Services Group, Nguyen v Swan Services Pty Limited [2002] NSWIRComm 322 and Ward v Mobile Innovations Limited [2002] NSWIRComm 287 in appeal proceedings from decisions under s 84 of the statute. As was observed in the last of those cases, "primacy must be given to first instance judgments in this respect". We consider that these observations are equally applicable to significant aspects of the current proceedings." Police Commissioner's case for leave in the Substantive Appeal 1. The Police Commissioner says each appeal ground raises a substantial issue or principle and law that will have widespread application in relation to disciplinary transfers. 2. The Police Commissioner submits that the important points of law and principle raised by Grounds 1 and 2 of the Substantive Appeal which are reflected in the contentions set out at [13] support the granting of leave. Further, there are significant practical implications for the NSW Police Force if the Commission can make an order to transfer an applicant to a position which does not exist or is not vacant. 3. The Police Commissioner submits that leave should be granted in respect of Ground 3 of the Substantive Appeal as it raises important points of law and principle regarding the assessment of harshness under s 174(1) of the Police Act where the order for reviewable action has a remedial purpose. The Police Commissioner says that the authorities on the approach to the assessment of harshness arise in the context of the dismissal of employees where dismissal has been imposed as a penalty for the misconduct, and that none of the authorities have considered the question of harshness where the order for reviewable action has also been imposed for a remedial purpose. 4. The Police Commissioner says that leave should also be granted because Ground 3 raises an important question of principle as to whether the Commission should interfere with her discretion to make an order for a disciplinary transfer, directed at ensuring greater supervision of the applicant who has been found to have engaged in sexual harassment and ensuring compliance with the Police Commissioner's obligations under anti-discrimination and work health and safety legislation. This is contended to have widespread practical implications for the actions available to the Police Commissioner in addressing the risk of sexual harassment in the workplace. 5. The Police Commissioner submits that Ground 4 of the appeal raises an important jurisdictional question about subs 175(4)(b) of the Police Act and the application of Commissioner of Police v Eaton (2013) 252 CLR 1 ("Eaton"). In Eaton, the High Court held that the equivalent provision under Div 1A of Pt 9 of the Police Act, subs 181F(3)(b), is a mandatory provision. The Police Commissioner says that absent Commissioner Murphy stating that he had regard to the public interest in the reasons for decision, there is a real question as to whether he complied with this jurisdictional requirement in conducting the review. Mr Robbs's case against leave in the Substantive Appeal 1. Mr Robbs submits that the Police Commissioner's case in the appeal against the Substantive Decision does not rise to the level of importance that, in the public interest, leave to appeal should be granted. Mr Robbs says that he has admitted his misconduct and accepted the Commission's Disciplinary Orders, including the Commission's Disciplinary Transfer Order, and so too should the Police Commissioner. 2. Mr Robbs submits that the Police Commissioner's contentions set out at [13] to [15] in support of Grounds 1 and 2(b) "are referenced to a transfer to a position, despite the fact that the plain terms of the order demonstrate that no such order in such restrictive and limited terms was made" [2] . 3. Mr Robbs contends that the propositions relating to: lack of statutory power to require a position to be created, lack of evidence that such a position exists, onus of proof that such a position exists and the asserted requirement of the Commission to consider mandatory and discretionary factors in relation to a transfer to a position have no relevance to the actual terms of the Commission's Disciplinary Transfer Order and thus are not properly raised by the Substantive Appeal. Full Bench's consideration of leave and the Grounds of the Substantive Appeal 1. In order to determine whether to grant leave in the Substantive Appeal, it is necessary to consider the terms of each of the Grounds of Appeal, the Original Disciplinary Order and the Commission's Disciplinary Orders and at the other facts and circumstances before Commissioner Murphy. Accordingly, we consider the question of leave together with the substantive matters in relation to each of the Grounds of the Substantive Appeal below. Grounds 1 and 2 1. Grounds 1 and 2 assert that the effect of the Commission's Disciplinary Orders is that the Police Commissioner must transfer Mr Robbs to a position which does not exist, is not vacant or must be created (Ground 2(a)) and/or that the Commission cannot make an order without evidence that the order can be complied with (Grounds 1 and 2(b)). The Police Commissioner also asserts that the onus to lead such evidence sits with the applicant for relief, Mr Robbs. Construction of the Police Act in respect of the Commission's powers and the Police Commissioner's powers 1. In support of Grounds 1 and 2, the Police Commissioner submits that subs 177(1)(b) of the Police Act does not empower the Commission to usurp her responsibility for the overall management and control of the NSW Police Force, including determining the composition of positions within the NSW Police Force, and cannot circumvent the constraints placed on the transfer of police officers under Pt 6 of the Police Act. 2. In particular, the Police Commissioner asserts that s 177 of the Police Act does not empower the Commission to transfer a police officer to a position which does not exist or is not vacant. According to the Police Commissioner, this is because the power to create a new position, which she says is the effect of the Commission's Disciplinary Orders, is exclusively reposed in her under subs 10(1) of the Police Act. 3. There was no evidence before Commissioner Murphy that establishes that the Commission's Disciplinary Transfer Order "requires a police officer to be transferred to a position which is not vacant or would otherwise require the creation of a new position". [3] As set out at [7], the Full Bench rejected an application from the Police Commissioner to admit fresh evidence in this appeal the purpose of which was to remedy this failure to adduce evidence before Commissioner Murphy. Consequently, in order for the Full Bench to grant leave to appeal in respect of Ground 2(a), it must be satisfied that the factual assertions underpinning the ground are otherwise made out, that is, that the Commission's Disciplinary Orders have the effect of requiring the Police Commissioner to create a new position for Mr Robbs. This requires a consideration of the statutory regime as applied to the facts and circumstances led in the proceedings before Commissioner Murphy. 4. The starting point for this consideration is s 177 of the Police Act which is in the following terms: 177 Arbitration where conciliation unsuccessful (1) When, in the opinion of the Commission, all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful, the Commission is to determine the application— (a) by revoking the order, or (b) by revoking the order and making such other order as it considers appropriate, whether or not an order that the Commissioner is empowered to make under section 173, or (c) by upholding the order, or (d) by dismissing the application. (2) If the Commission revokes the order, it may also direct the payment of compensation for any loss suffered by the applicant as a consequence of the making of the order. (3) An order made by the Commission under subsection (1) (b) is to be given effect to in accordance with its terms. (4) Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes an order or direction under this section. 1. Fundamental to the construction of the Commission's power to make an alternate order pursuant to s 177 and the limitations on this power, is the recognition that the Commission's discretion and powers under subss 177(1) (a) and (b) are enlivened only as a consequence of a finding by the Commission that an order sought to be imposed by the Police Commissioner pursuant to s 173 is beyond power or harsh, unreasonable or unjust. In other words, this power is remedial, in the sense that the legislation enables the Commission to intervene to provide redress where the exercise by the Police Commissioner of her powers under s 173 miscarries. The Commissioner may do so by revoking the order to allow the officer to maintain their rank and position or by revoking the order and making an alternative order which is not affected by the deficiencies identified by the Commission. Recognising this foundation, we turn to consider the various arguments raised by the Police Commissioner as to the limitations on the Commission's power pursuant to s 177 of the Police Act as a consequence of other sections of the Police Act. The Police Commissioner's transfer powers pursuant to subs 69(1) of the Police Act 1. The Police Commissioner says her transfer powers pursuant to subs 69(1) are subject to two limitations which are relevant to the interpretation of the Commission's powers pursuant to s 177 of the Police Act, in that the limitations on her powers are also limitations on the Commission's powers. 2. Sub-section 69(1) of the Police Act provides: (1) If the Commissioner considers it to be in the interests of the NSW Police Force to do so, the Commissioner may transfer a non-executive police officer from one non-executive police officer position to another non­executive police officer position or non-executive administrative employee position. 1. The first constraint, according to the Police Commissioner, is that she may transfer a non-executive police officer from one non-executive police officer position to another non-executive police officer position or non-executive administrative employee position only if she considers it to be in the interests of the NSW Police Force to do so. 2. The Police Commissioner submits that the kind of considerations relevant to her discretionary judgement to transfer a police officer include the organisational structure and operational effectiveness of the command, and the need for proper supervision of the police officer concerned. Thus, if the Commission wishes to make an alternative order for a disciplinary transfer under s 177(1)(b), subs 69(1) indicates the Commission must also have regard to whether the Police Commissioner considers such an order to be in the interests of the NSW Police Force. 3. The Police Commissioner contends that this submission is reinforced by authorities which in her view stand for the proposition that the Commission would not lightly interfere with her discretionary decisions about the best interests of the Police Force and her exercise of power under the Police Act, including Godkin v Commissioner of Police [2007] NSWIRComm 202 ("Godkin") at [67]-[68]. 4. Godkin does not stand for a general proposition that in a matter commenced pursuant to s 174 of the Police Act, the Commission would not lightly interfere with an operational decision of the Police Commissioner. Godkin involved a challenge to the validity of a transfer decision [4] and declaratory relief under s 154 of the IR Act, not a review under Pt 9 Division 1A of the Police Act. The paragraphs relied upon by the Police Commissioner were directed to a different question to that which is the subject of the Substantive Appeal, namely the question of justiciability. The question of justiciability did not arise in the case of the review undertaken by Commissioner Murphy nor does it arise in the Substantive Appeal. 5. The Police Commissioner also drew to the Full Bench's attention the comments of Commissioner Constant (as she then was) in A (a pseudonym) v Commissioner of Police [2019] NSWIRComm 1091 ("A (a pseudonym)") at [190]-[191], that the Commission is "bound to exercise significant caution, before interfering" with the Police Commissioner's decisions in managing and controlling the NSW Police Force under s 8(1) of the Police Act. The Full Bench notes the context in which the Commissioner's observation was made, as follows: "190 Section 8 of the Police Act makes the respondent responsible for the management and control of the NSWPF, subject to the direction of the Minister. Whether the Commission has power, pursuant to subs 177(1)(b) of the Police Act, to order that the respondent place the applicant in a Constable position, but at the remuneration and other conditions of Detective Sergeant was not dealt with in any substantive way by the parties, although the applicant did concede, and the respondent agreed, that I do not have the power to create a new Detective Sergeant's position. The respondent submitted that the Commission's orders must be consistent with the Police Act and referred to the powers of the respondent pursuant to s 173. 191 On its face, subs 177(1)(b) of the Police Act does not limit the Commission to the actions available to the respondent pursuant to s 173. However, in the circumstances, where I have not had the benefit of the parties' considered submissions on this matter, and where this review is undertaken pursuant to the legislative scheme which requires that the Commission, in exercising its powers of review of the Disciplinary Order, consider that the respondent made the Disciplinary Order, and that the parties agree that I cannot create a Detective Sergeant position, even if I did have the power to make such an order, I consider I am bound to exercise significant caution, before interfering with the respondent's decisions as to how the NSWPF is managed and controlled pursuant to s 8 of the Police Act." 1. A (a pseudonym) does not stand for a general proposition that limits the Commission's statutory powers under s 174 of the Police Act to those considered appropriate by the Police Commissioner. Rather, it reflects a correct view that where matters are not properly explored by the parties, the Commission should exercise caution. 2. Importantly, the authorities considered above do not require the Commission, when determining the appropriate order pursuant to subs 177(1)(b), to take into consideration all of the matters that the Police Commissioner must take into consideration when creating a new position. Although the provisions of the legislation in relation to the two powers must be read harmoniously, they operate in different spheres; review by this Commission in a remedial and beneficial jurisdiction, and operational decisions by the Police Commissioner. The plain words of s 177(1)(b) - "such order as it considers appropriate" - are of a broad formulation and make clear, the power of the Commission is to make an order that the Commission considers is appropriate and this extends beyond the power of the Police Commissioner in s 173 of the Police Act. 3. We acknowledge that subs 175(4)(b) of the Police Act requires the Commission, in considering the public interest, to take into account that the Police Commissioner made the order pursuant to s 173 and this is considered under Ground 4. However, on the Police Commissioner's case in relation to the interaction of subs 177(1)(b) and subs 69(1), it is difficult to see how and in what circumstances the Commission could ever interfere with an order such as the one imposed on Mr Robbs. Despite having found that the order was beyond power or was harsh, unreasonable or unjust, the Commission would have limited ability to correct that, if it considered that an order other than the one the Police Commissioner had made, was warranted. On a plain reading of the text of the Police Act, that could not have been the intention of the legislature. 4. The second limitation according to the Police Commissioner is that the exercise of her transfer power under subs 69(1) of the Police Act assumes that there is a vacant position into which the non-executive police officer can be appointed by way of transfer. 5. The Police Commissioner submits that under Pt 6, in particular s 66, of the Police Act, the appointment or promotion appointment of non­executive police officers is based on the premise that the position to which they are appointed is a vacant position. [5] An appointment to a position is defined as "an appointment by way of promotion or transfer or otherwise": s 63 of the Police Act. 6. The Police Commissioner asserts that, pursuant to subs 65(2) of the Police Act, a non-executive position must be vacant before it can be filled and that the same premise applies to merit-based appointments, promotions and acting appointments: see Police Act, subss 65(2), 66(1), 66(2), 66(3), 66(4), 66AA(1), 66AA(2), 66AA(3), 66AB(1), 66A(1), 72(1) and 75(2). The Police Commissioner submits that under subs 69(1), consistent with these other modes of appointment under Pt 6, the transfer of a police officer must be from one position to another vacant non-executive police officer position or vacant non-executive administrative employee position. We are not persuaded that the Police Commissioner's powers with respect to a transfer of police officers is so limited by the Police Act. 7. To take an example, the Police Commissioner's power under s 69 of the Police Act may be exercised in respect of two police officers in two non-vacant positions being swapped or transferred to each other's positions. If the Commission was to read into s 69 of the Police Act the requirement that a police officer may only be transferred to a position that is vacant, then the Police Commissioner would not be able to implement such transfers as the positions would not be, at the time of the Police Commissioner's decision to initiate the swap, vacant. 8. Further, if the legislature intended that the Police Commissioner's power to effect transfers pursuant to s 69 did not extend to swapping officers between positions and was limited to positions that were vacant then it was open to it to have referred to "vacant positions" as it did in ss 65, 66, 66AA and 66AB. In the absence of a clear legislative intentions to so limit the Police Commissioner's powers, we see no reason to infer that the Commission's powers are so limited. 9. If the Police Commissioner is not prohibited by subs 69(1) of the Police Act from transferring police officers to positions that are not vacant, it follows that the Commission's Disciplinary Orders does not require the Police Commissioner to create a new position. It is open to the Police Commissioner to place Mr Robbs into a sergeant position already occupied by another police officer and swap that police officer into the position previously held by Mr Robbs or another position. Is the Commission's discretion pursuant to s 177(1)(b) of the Police Act impacted by the rank to which the Commission considers is the appropriate alternative order? 1. The Police Commissioner contends that the Police Act also draws a clear distinction between positions within the rank of constable and positions within higher ranks. Subsection 10(4) provides that police officers appointed to the rank of constable or senior constable "hold a position", but that such a position is "not a separate position" in the NSW Police Force. It is submitted that this distinction allows an inference to be drawn, based on what is said to be an harmonious construction of the Police Act, that positions at ranks above constable are "separate positions". 2. In support of this argument, the Police Commissioner submits that the grades of constables and senior constables are "fungible" in nature and therefore persons working within those roles can be deployed to perform all aspects of police work at the rank and grade. By contrast, police officers in higher ranks will necessarily have more experience and seniority and therefore are more likely to perform specialised duties or have a role in supervising and mentoring other less experienced police officers. 3. It follows, according to the Police Commissioner, that transfers (whether disciplinary or not) of constables and senior constables are generally able to be accommodated. However, positions at the rank of sergeant and higher are more difficult to accommodate within the hierarchy and therefore are more likely to be filled only on a vacancy. 4. The Police Commissioner relies on these matters to submit that before any order can be made transferring an officer at the rank of sergeant or above, there must be a position into which they can be transferred. The Commission's Disciplinary Transfer Order did not identify an existing and vacant sergeant position into which Mr Robbs could be transferred, and as a consequence, it requires the creation of a new position. As the power to create a new position is exclusively reposed in the Police Commissioner under subs 10(1) of the Police Act, the Commission's Disciplinary Transfer Order exceeded the Commission's powers under s 177(1)(b). 5. There are three observations to make about these arguments. First, the premise of the Police Commissioner's argument is the inference that she says can be drawn from s 10(4), namely that that officers at the rank of sergeant and above "hold a separate position". We do not find this persuasive. 6. Second, for the reasons already canvassed, there is no basis for finding that the effect of the Commission's Disciplinary Transfer Order is to require the creation of a new position. 7. Third, and again as canvassed above, if the Parliament had intended that the Commission's powers under subs 177(1)(b) were to be applied differently on the basis of the rank of the applicant for review in the manner asserted by the Police Commissioner, it was open to include those limitations in s 177. Instead, the Parliament explicitly extended the Commission's powers beyond those available to the Police Commissioner under s 173 of the Police Act. 8. The Police Commissioner says that this distinction indicates that Mr Robbs had to be transferred to a separately identifiable sergeant position and not to a general or unspecified sergeant position which may have been able to be done if his demotion to senior constable had been upheld by Commissioner Murphy. 9. The Police Commissioner says that if no sergeant position is specified and vacant, the effect is to create a new position that does not otherwise exist. This cannot be done because the power to create a new position is exclusively reposed in the Police Commissioner under s 10(1) of the Police Act. This operates as a limitation on the Commission's powers under s 177(1)(b). 10. We reiterate the observations made at [35] above. While he may not have made an express finding in these terms, Commissioner Murphy decided that the Original Disciplinary Order, comprising both a demotion and a disciplinary transfer, was harsh. He identified the financial, career and personal impacts of the order on Mr Robbs. He determined that the disciplinary action was not proportionate to Mr Robbs's misconduct. He accepted that a disciplinary sanction was warranted but not of the kind which had been imposed by the Police Commissioner. He then determined that the appropriate disciplinary order was the one that he imposed. What evidentiary basis is needed for the exercise of the Commission's powers under s 177(1)(b)? Was there an evidentiary burden on Mr Robbs to establish that the Police Commissioner could comply with the alternative order? 1. The Police Commissioner submits that the evidentiary burden is on Mr Robbs to establish that the Commission's Disciplinary Orders and/or any alternative order are capable of being put into effect. In support of this position the Police Commissioner relies on sub-s 175(2) of the Police Act which provides: The applicant has at all times the burden of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. 1. The determination of an appropriate order takes place only after the applicant for review has made out their burden pursuant to subs 175(2). Accordingly, this sub-section does not, of itself, place a burden on Mr Robbs to provide evidence of the appropriateness of an alternative order. The Police Act is silent as to any onus to assist the Commission to determine "such other order as it considers appropriate" pursuant to subs 177(1)(b). Consequently, once the applicant for review has made out their burden to establish that the original order was harsh, unjust or unreasonable, the Commission is empowered to form a view as to the appropriate order on the basis of the material before it, without regard to an evidentiary burden on either party. 2. It was, of course, open to the Police Commissioner to seek to rely on evidence as to the effect of an order in the form proposed by Mr Robbs or to provide evidence of the vacant positions available at the time of the hearing at the levels of senior constable or sergeant to assist Commissioner Murphy to frame an order that he determined was appropriate. If such evidence had been adduced, then Commissioner Murphy may have taken these matters into account in determining the appropriate order. 3. However, the Police Commissioner elected not to adduce evidence of available positions in the proceedings before Commissioner Murphy despite being the only party having the peculiar capacity to produce such evidence (Blatch v Archer (1774) 98 ER 969 at 970 cited by Gleeson CJ in Russo v Aiello (2003) 215 CLR 643 at [10]). In these circumstances, the Police Commissioner asserts Commissioner Murphy erred by making an order without evidence. 4. At [81] of the Substantive Decision, Commissioner Murphy extracted the Police Commissioner's submissions including that there was no evidence upon which the Commission could be satisfied that an alternative order was available and could be given effect by the Police Commissioner, that Mr Robbs had not relied on any evidence that the proposed alternative order was possible, and such an order could not, and should not, be made in the absence of this evidence. 5. Commissioner Murphy rejected the Police Commissioner's submissions and stated: "82 … The effect of [this submission], if accepted, would be to severely restrict the types of orders this Commission could make pursuant to section 177 of the Police Act. 83 It would follow that every time a police officer was subjected to an order that involved a reduction in rank, coupled with a disciplinary transfer, the Commission would be prevented from making an order restoring the officer to the rank held prior to the order taking effect unless there was evidence before the Commission as to the availability of a position or positions at that rank at the new location. Such a restriction would severely limit the power of the Commission to make orders in cases such as the present one and cannot be the intention of the legislation." 1. The Police Commissioner says that Commissioner Murphy erred in the above conclusions and that Commissioner Murphy's reasoning misses the point of her submissions. Her contention was not that the Commission does not have the power to make an order transferring the disciplined police officer to another position or at a different rank or at a different location than that proposed in the Order being reviewed. Rather, the Commission does not have the power to require the Police Commissioner to create a new position such that the alternative order was not able to be made in the absence of evidence that such a position existed. 2. The Police Commissioner says that the contrary contention does not accord with a proper construction of the Police Act read as a whole, or with common sense. The effect of Commissioner Murphy's reasoning, according to the Police Commissioner's case, as she has made clear in the Substantive Appeal, is that the Commission may order the Police Commissioner to transfer a police officer at rank and at level to an existing position, which would require another police officer at that rank and level, if there was such a person, to be displaced at risk to their own professional and personal circumstances to accommodate the order of the Commission, before being appointed to some alternative new position. Or alternatively, it would require the Police Commissioner to create a new position in the Brisbane Water Police District or at another location within 60 minutes of the Mr Robbs's residence, when operational policing requirements may not justify the creation of such a position, or the budget does not allow it. According to the Police Commissioner, Commissioner Murphy's reasons simply assume that this is the Police Commissioner's problem to deal with, but with no regard to the whole of the Police Act. 3. In support of her contention, the Police Commissioner relies on Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales (2010) 77 NSWLR 159 ("Casari") which she says involved "a slightly different statutory context relating to the re-employment power under s 89(2) of the IR Act" [6] . In Casari, Spigelman CJ stated at [20]: "Furthermore, the Full Bench made no findings of the character required by s 89(2). It did not identify 'another position' which the employer had 'available' and about which the Commission had formed the opinion that it was 'suitable'. Indeed, the finding that Mr Casari could not be reinstated 'for the purpose of future employment' is, in substance, a finding that no other 'position' would be 'suitable'. The power to order re-employment cannot be exercised unless such findings are made." 1. Subsection 89(2) provides: (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. 1. The Police Commissioner submits that even allowing for the different statutory text that is contained in s 89(2) of the IR Act, Spigelman CJ's reasons have resonance to the present case and Commissioner Murphy could not have made a finding as to the appropriateness of the order without any evidence as to whether any such position in fact existed. [7] 2. The Full Bench does not accept this submission. The observations of Spigelman CJ in Casari are inapposite to a consideration of the Commission's powers pursuant to s 177 of the Police Act. In the paragraph preceding the one in Casari quoted by the Police Commissioner, the former Chief Justice, stated: "19 Section 89(2) authorises the Commission to make an order for re-employment. This is what the order set out at [11] above purports to do. However, s 89(2), to repeat, authorises the Commission to make an order of re-employment 'in another position that the employer has available'. The actual order made by the Commission was that 'the appellant is re-employed in his former position …'. Section 89(2) provides no statutory basis for an order of this character. This is an order of 'reinstatement' which requires the exercise of the power in s 89(1), a power which the Commission expressly abjured." (Emphasis in original) 1. Not only do the Police Commissioner's submissions fail to acknowledge the specific terms of the decision of the Full Bench, which were considered by the Court of Appeal in Casari, but the Police Commissioner's submissions minimise the significant differences in the language used in s 177 of the Police Act as compared with subs 89(2) of the IR Act. Subsection 177(1)(b) empowers the Commission to make "such order as it considers appropriate". That power is not subject to a constraint of the type appearing in subs 89(2), namely that the position to which re-employment may be ordered is to one that "the employer has available". 2. We also note that the Full Bench set out its view that in the unfair dismissal jurisdiction a "suitable" position was not necessarily a "vacant" position in IGA Distribution Pty Ltd and Moses (No 2) [2002] NSWIRComm 96 ("Moses (No 2)"): "26 We consider that the approach set out in the decision of the former Full Commission in Commonwealth Steel Company Limited v David Alfred Ward (unreported, IRC93/3144, 16 December 1994) is to be preferred to the decision in Effem. See in particular the following passage in the former case (at 15-18): … . We therefore have grave doubts that the legislature intended that the word 'available' meant 'vacant'. If that had been its intention, it would have been a simple matter for the legislature to have said so. In our opinion, the words 'another position which the employer has available' where used in s250(2)(a) mean, on their proper construction, another position that the employer has available in the sense that such a position 'exists', that is, that another position is of avail to, capable of being used by, or at the disposal or within the reach of, the employer - whether or not it is vacant at the time. We think that the lack of a vacancy in an available position may be a factor which goes to the question of the vacancy of the applicant's former position to which he may be reinstated is also a factor which may be taken into account when considering the question of practicability. … (The provision referred to in that decision, s 250 of the Industrial Relations Act 1991, was the predecessor to s 89 of the present statute)." 1. In light of Moses (No 2), where subs 89(2) of the IR Act restricts the Commission's power to order re-employment to an "available" position which the Commission considers is "suitable", and the Parliament has not determined to place such a limitation on the Commission's power under s 177 of the Police Act, we consider that the approach urged by the Police Commissioner would require the reading into the statute of additional words that are not reflective of the legislative intention. There is no basis for so curtailing the Commission's jurisdiction. 2. The Police Commissioner next submits that the language used in subs 177(3) - that the Commission's order under subs 177(1)(b) "is to be given effect to in accordance with its terms" - indicates that the order made must be capable of strict compliance and the Commission must ensure that the terms of the order are capable of practical implementation. It is contended that Commissioner Murphy erred by making the Commission's Disciplinary Orders without evidence that practical compliance was possible. 3. In our view subs 177(3) of the Police Act should not be read as limiting the Commission's powers, but rather as directing the Police Commissioner to give effect to the Commission's orders in their terms. Relevantly, there was no evidence before Commissioner Murphy of the "significant operational and practical impact" now asserted, nor that the Commission's Disciplinary Orders were incapable of compliance such as to establish any reason why the Police Commissioner could not give effect to the orders in their terms. 4. There also practical considerations about the relevance or usefulness of evidence about vacancies, if the Full Bench was to agree with approach urged by the Police Commissioner. To the extent evidence of "vacancies" is provided to the Commission (should the Police Commissioner elect to do so in order to assist the Commission to determine the appropriate alternative order), it will necessarily only be evidence at a point in time. There may be a delay between the hearing and the decision, in which case a subsequent hearing may be required if the Commission determines that an alternative order is required. Even then, the Commission will largely be in a position of being required to determine that matter immediately, lest the evidence become dated. We do not consider that the Parliament would have intended such a cumbersome operation of the Commission's powers of review pursuant to the Police Act. 5. We accept that the Commission's Disciplinary Transfer Order requires the Police Commissioner to place Mr Robbs in what could be described as "an unspecified position of sergeant" [8] but we do not agree that Commissioner Murphy misunderstood the Police Commissioner's submissions below. 6. We reject the Police Commissioner's contention that Grounds 1 and 2 do not involve a limitation on power, but rather call for an evidentiary basis for the exercise of the power. We agree with Mr Robbs that the contention that the Commission cannot make an order under subs 177(1)(b) of the Police Act unless there is evidence that a position exists and is vacant, fails to engage with the case advanced by the Police Commissioner in the Application before Commissioner Murphy, and the actual orders of Commissioner Murphy. 7. Having considered the Police Commissioner's case in relation to Grounds 1 and 2, we are of the view that the legislature did not intend to limit the Commission's powers pursuant to subs 177(1)(b) of the Police Act in a manner which would result in the Commission, having found that the Police Commissioner's order was beyond power or was harsh, unreasonable or unjust, having limited ability to correct that. This is what Commissioner Murphy addressed at [81]-[83] of the Decision, and there is no reason to disagree with his conclusions. 8. We find no error in Commissioner Murphy's rejection of the Police Commissioner's submission that he could not make the Commission's Disciplinary Order without evidence. Was there a failure to afford procedural fairness to the Police Commissioner in respect of Mr Robbs's offer made 4 August 2020? 1. The Police Commissioner complains about the timing and form of Mr Robbs's proposed alternative orders and asserts consequent procedural unfairness to her. In what we consider to be an effort to establish why she did not engage with the asserted evidentiary basis required for an alternative order before Commissioner Murphy, the Commissioner of Police sets out the following in the Appellant's Substantive Submissions: "14. After evidence had closed, the Respondent modified his position in written closing submissions dated 4 August 2020 - given to the Appellant for the first time at the start of the hearing - where he said he would accept being 'reduced in rank from Sergeant Level 9 to that of Sergeant Level 8 and be subject to a disciplinary transfer within a commutable distance of less than 60 minutes from his current address' (AB 231 at [56(b)]). 15. In the Appellant's closing written submissions dated 13 August 2020 (AB 237 at [17]­[20]), the Appellant contended that the onus rested upon the Respondent to establish the alternative order proposed could be made, and that no evidence existed that such positions were available. Moreover, as the Respondent did not identify this proposal until after evidence had closed, the Appellant did not have the opportunity to adduce such evidence. 16. The Respondent then modified his proposed alternative order again in written submission in reply to a transfer to a 'Sergeant position at a reduced level within the Brisbane Waters District or elsewhere within a 60 minute commutable distance of his residence' (AB 243 at [40]). … 19. Commissioner Murphy made an alternative order based on a proposal that was only identified after evidence had closed in closing submissions in reply." 1. In making such complaints, the Police Commissioner is seeking to nullify the decisions about evidence made by her counsel before Commissioner Murphy which led to the formulation of the Commission's Disciplinary Orders. This attempt to dissociate is unpersuasive. It is also unhelpful for the Police Commissioner to refer to the proposal being "only identified after evidence had closed" when the proposal was identified after the written evidence had been filed but before any witnesses had given sworn oral evidence and well before the evidence had closed in the proceedings before Commissioner Murphy. 2. Mr Robbs's desire to remain close to Newcastle for personal reasons was known to the Police Commissioner from at least the response to the notice issued under subs 173(5)(a) of the Police Act. It was taken into consideration by Acting Assistant Commissioner Whyte when making the Original Disciplinary Order. 3. Commissioner Murphy set out the evidence from Mr Robbs's first affidavit in the proceedings before him, in relation to the disciplinary transfer to Brisbane Waters at [16]- [18] in the Substantive Decision including: "16 After setting out the financial impact that the reduction in rank will have on him, the applicant stated: 36. I am agreeable to a disciplinary transfer to the Brisbane Waters Police District if the reduction to my Sergeant incremental level is that of a reasonable reduction having regard to my conduct and the admissions that I have made to save the complainants from any additional distress in having to endure giving evidence at a hearing at the IRC. 17 The applicant then detailed his responsibilities as the primary carer and support person for his 92 year old mother. 18 The applicant concluded by stating: 42. I acknowledge my inappropriate behaviour and understand the severity of the situation. I can confirm that this contrary conduct will not arise again and that my behaviour will be adjusted accordingly." 1. Commissioner Murphy then set out the Police Commissioner's evidence in reply to Mr Robbs's position: "19 The respondent relied upon a witness statement of Assistant Commissioner Whyte. …. 20 … Assistant Commissioner Whyte stated: 42. At paragraph 36 of his statement Sergeant Robbs says that he is agreeable to a disciplinary transfer to the Brisbane Waters Police District if the reduction to his Sergeant incremental level is reasonable 'having regard to my conduct and the admissions that I have made to save the complainants from any additional distress in having to endure giving evidence at a hearing at the IRC'. I am concerned by the implication in this statement that the admissions made by Sergeant Robbs in some way negates the severity of his misconduct. I do not consider that any requirement of the complainants to give evidence is a relevant factor to be considered in determining the reduction of Sergeant Robbs' rank. I maintain that reduction of Sergeant Robbs's rank is an appropriate disciplinary outcome having regard to his conduct and expectations of a Sergeant." 1. In the "Outline of Submissions on behalf of the Applicant" dated 4 August 2020 which were given to the Police Commissioner at the start of the hearing before Commissioner Murphy [9] , Mr Robbs said he would accept being "reduced in rank from Sergeant Level 9 to that of Sergeant Level 8 and be subject to a disciplinary transfer within a commutable distance of less than 60 minutes from his current address" [10] . 2. As we have stated above, there was no evidence that the Commission's Disciplinary Orders required the Police Commissioner to create a position, nor that the orders were incapable of compliance. Consistent with this, there was no application from the Police Commissioner during the hearing before Commissioner Murphy for leave to rely on evidence that such an order would have the effect of requiring the Police Commissioner to create a new position or have other negative effects and, as set out at [7], the Full Bench rejected the Police Commissioner's application to rely on further evidence in this appeal. 3. The Police Commissioner was represented by experienced counsel at the hearing before Commissioner Murphy. Had there been some difficulty with meeting an argument or contention once the alternate order had been proposed, then an available course was for counsel to seek an adjournment to deal with the evidentiary question at that time. Rather, the Police Commissioner made the decision to rely on her argument that the evidentiary burden fell to Mr Robbs which is now reasserted in this appeal. 4. During Mr Robbs's cross-examination before Commissioner Murphy, the following exchange occurred : "Darams: ... - your real concerns about attending to these things for your mother arise if you were transferred to the Sydney metropolitan area, the travel time there? Robbs: Certainly a metropolitan posting would either mean that I would have to move residence, which is certainly not an option in relation to mum, especially if operational on 12 hour shifts. It's not sustainable from a health and safety point of view. In relation to Gosford. I have no problem if Gosford was a posting. I see that as a reasonable travel time that a lot of people are doing and I could accommodate that without a major detrimental impact on myself or mum. Commissioner: Isn't that the decision that has been made? Darams: Yes. Commissioner: Well, that doesn't seem to be an issue, does it? Darams: No, not any longer." [11] 1. The exchange extracted at [92] evidenced an acceptance that the matters raised by Mr Robbs as to an appropriate posting for Mr Robbs's circumstances had been considered by the Police Commissioner's delegate, Acting Assistant Commissioner Whyte, and resulted in a decision to transfer Mr Robbs to the Brisbane Waters Police District albeit at a reduction in rank. 2. In light of that decision, Commissioner Murphy determined, in effect, that the reduction in rank was harsh and went on to consider the totality of the Original Disciplinary Orders. He upheld Mr Robbs's claim in respect of the harshness of the demotion, and that a reduction to Sergeant 3rd Year from Sergeant 9th Year was the appropriate order. 3. The Police Commissioner contends, in Ground 3, that Commissioner Murphy failed to consider whether the purpose of the disciplinary transfer order was punitive or remedial and that Commissioner Murphy erred in his consideration of the harshness of the Original Disciplinary Order in not making this distinction. This is considered below but has no bearing on whether Grounds 1 and 2 are made out. 4. Commissioner Murphy did not grant the alternative order sought by Mr Robbs but rather made the Disciplinary Transfer Order which gave flexibility to the appellant by adding: "or, at the discretion of the appellant or his delegate, to another location within a commutable distance of 60 minutes or less. from his current address." [12] 1. It was a matter for Commissioner Murphy to determine whether the orders he made were "appropriate" as required in subs 177(1)(b) of the Police Act. Commissioner Murphy made a bespoke order arising from the facts put before him and emanating from the order of the Police Commissioner's delegate, Acting Assistant Commissioner Whyte. 2. In light of the factual maters set above, the Full Bench does not accept that Commissioner Murphy failed to provide procedural fairness to the Police Commissioner because the "on the record" discussions about a possible alternate order involving a transfer "within a commutable distance of less than 60 minutes from [Mr Robbs's] current address" took the Police Commissioner by surprise such that she was unable to reconsider her position about evidence in relation to the availability of such positions. Determinations in respect of Grounds 1, 2(a) and 2(b) 1. On one analysis, when Grounds 1, 2 and 3 (Ground 3 is considered separately below) are taken together, the position advanced on appeal requires the Commission to give primacy to the reasons advanced by the Police Commissioner for imposing a disciplinary transfer on a police officer. The Police Commissioner seeks to constrain further the Commission's discretion by limiting its powers to vary the terms of any disciplinary transfer by requiring that it have evidence of a vacant position into which a police officer may be appointed. Compounding this constraint is the suggestion, which we have rejected, that the applicant, perhaps the party least able to assist the Commission in this regard, would bear the onus of proving the existence of a suitable vacancy. 2. We do not accept that the question of whether, as a matter of power under s 177(1)(b) of the Police Act, the Commission can make alternative orders in lieu of revoked orders made under subs 173(2) of the Police Act to transfer a police officer to a position which does not exist, is not vacant or must be created by the Police Commissioner, is properly raised by the Substantive Decision under appeal. To grant leave in this circumstance would be inconsistent with s 191 of the IR Act, particularly subs 191(1). Accordingly, leave is denied in respect of Ground 2(a). 3. Grounds 1 and 2(b) of the Substantive Appeal deal with whether there must be evidence before the Commission that an alternative order is capable of being put into effect before the alternative order may be made, and on whom the onus to lead such evidence rests. 4. We grant leave in respect of Grounds 1 and 2(b) but dismiss the appeal on those grounds for the reasons set out above. Ground 3 1. The Police Commissioner's third Ground of the Substantive Appeal is that Commissioner Murphy erred in his assessment of the proportionality of Mr Robbs's conduct against the proposed disciplinary action. 2. This Ground raises questions about the proper exercise of Commissioner Murphy's jurisdiction. In her written and oral submissions, the Police Commissioner asserts that Commissioner Murphy miscarried in the exercise of his discretion in making his assessment of whether the Disciplinary Transfer Order was appropriate by failing to take into account relevant considerations, in particular, her obligations under Work, Health and Safety and anti-harassment laws and the consequent need for supervision of Mr Robbs. 3. The Police Commissioner submits that leave should be granted to consider the application of Commissioner Murphy's discretion on two grounds. First, because the authorities have considered harshness in respect of removal of an officer from the Police Force but not the question of harshness when the disciplinary action has been taken for a remedial purpose. Second, because Commissioner Murphy failed to take into account a number of mandatory considerations. 4. The Police Commissioner contends that Commissioner Murphy erred by failing to consider the remedial purpose of the Original Disciplinary Order and severing the connection between the disciplinary transfer and its remedial and protective purposes of providing for greater supervision of Mr Robbs. The Police Commissioner set out the following in the Appellant's Substantive Submissions: "70. … [T]he Commission … is obliged to take into account a number of implied considerations discerned from the scope, subject-matter and purpose of the Police Act. 71. First, Commissioner Murphy failed to consider whether the Disciplinary Transfer Order made an appropriate order commensurate with the nature and purpose of a disciplinary transfer. In a recent decision, the NSW Court of Appeal (Macfarlan and White JJA and Barrett AJA) in Police Association of New South Wales v State of New South Wales [2020] NSWCA 3; 101 NSWLR 626 (Gardner) considered the nature of a 'non­disciplinary transfer'. … [T]he reasoning is useful in understanding the nature of disciplinary transfers by inverting the rationale for non-disciplinary transfers to describe the characteristics of a disciplinary transfer. 72. Macfarlan JA and Barrett AJA formed the majority and White JA dissented. Macfarlan JA found that a non-disciplinary transfer is a transfer that does not have the objective purpose and effect of punishing the officer, by causing some significant prejudice to the officer, in response to the officer's misconduct or unsatisfactory performance (at [5]). Barrett AJA held that a non-disciplinary transfer is a transfer through which 'coercive correction' is achieved, whether through the use of punitive or remedial measures (at [114], [116], [120]-[121]). White JA held that the term 'non disciplinary transfer' refers to a transfer that does not carry the dominant purpose of punishment but has been imposed for a dominant remedial purpose (at [27] and [32]). The three disparate approaches of each judge in the NSW Court of Appeal again slightly differed from the approach of the primary judge below, Adamson J in Police Association of New South Wales v State of New South Wales [2019] NSWSC 587. There, her Honour found that if the reason or purpose for making the order, on a proper characterisation of the order, is remedial in nature, then the transfer is a non-disciplinary transfer (at [90]). 73. Commissioner Murphy erred by not considering whether the Disciplinary Transfer Order was an appropriate order having regard to the nature and purpose of making such an order as reflected in Gardner. No reference is made in the Decision as to whether the Disciplinary Transfer Order is intended to have a remedial or punitive purpose or effect. Rather, Commissioner Murphy appears to have focused on revoking the reduction in rank to Senior Constable, and instead ordering a deferral in increment to Sergeant 3rd Year. In so doing, Commissioner Murphy assumed that a transfer could be made to a vacant Sergeant's position within a 60 minute commutable distance from the Respondent's residence. Consequently, the Disciplinary Transfer Order severed the connection between the disciplinary transfer and its remedial and protective purposes of providing for greater supervision of the Respondent: see Decision [78]­ [80]. … 83. As the question of harshness involves an evaluative judgment, it is therefore a discretionary decision which to succeed on appeal requires an error of a kind identified in House v The King (1936) 55 CLR 499 at 505 to be shown: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [21]-[30]. The Appellant submits that Commissioner Murphy made two errors of principle in assessing the proportionality of the Order relative to the Respondent's misconduct. 84. First, Commissioner Murphy assumed that the question of harshness is capable of being determined by reference to the authorities as to whether the misconduct giving rise to an employee's dismissal justified the severity of the penalty of an employee's dismissal: Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233; Lawrance v Commissioner of Police (2010) 199 IR 139 at [22]-[26]. This approach is founded on the premise that an order for reviewable action is made to punish the employee and therefore its purpose and effect can be equated to a dismissal. 85. It is not apt, however, to apply the approach to harshness in the context of an employee's dismissal for misconduct, when it is in fact a question of harshness in the context of an order for reviewable action short of dismissal. Unlike dismissal, which is characterised as a 'penalty' for serious misconduct, an order for reviewable action does not necessarily have such a sole or predominant purpose. Barrett AJA in Gardner recognised this point when he described a disciplinary transfer as a form of corrective coercion which can be taken for both punitive and remedial purposes. This is consistent with Assistant Commissioner Whyte's reasons for making the Order which included, amongst other things, that the Respondent lacked 'the insight required of a Sergeant with supervisory responsibilities and who is trusted as a role model to others' and that the Order was made, in part, to place the Respondent in a 'new work environment [which] will allow [him] to correct and improve [his] behaviour in the future' (AB 19). Commissioner Murphy thereby erred in not assessing the harshness of the Order in light of its protective, remedial and rehabilitative purposes. 86. Second, in weighing up the proportionality of the Order against the Respondent's misconduct, Commissioner Murphy erred in forming the view that the Respondent did not need further supervision in light of his misconduct: Decision [76]-[80]. In forming this view, Commissioner Murphy rejected the evidence of Assistant Commissioner Whyte for the need for such supervision recorded at Decision [78]. Commissioner Murphy reasoned that, because the Respondent had not engaged in misconduct before his admitted sexual harassment, had expressed genuine remorse, and had committed not to re-offend, there was no need for the Respondent to be demoted to Senior Constable so that he would be subject to supervision by a Sergeant. 87. Commissioner Murphy's conclusion that the Respondent would not need further supervision is at odds with the Appellant's obligations to take all reasonable steps to prevent unlawful sexual harassment, in order to avoid liability under the Anti­Discrimination Act 1977 (NSW) (ss 28B, 53(1) and 53(3)) and to ensure, so far as reasonably practicable, that NSW Police Force workplaces are free from risks to health and safety under the Work Health and Safety Act 2011 (NSW) (ss 19 and 20). Recent authorities indicate that employers must take significant pro-active steps to prevent, to the extent reasonably practicable, sexual harassment in the workplace: Von Schaefer v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13; 273 FCR 189 at [57]-[88]. In Von Schaefer, the Full Federal Court observed that what comprises all reasonable steps 'will depend on upon the whole of the circumstances, including the size of the organisation, the nature of its workforce, the conditions under which the work is carried out and any history of unlawful discrimination or sexual harassment' (at [61] underlining added)." 1. The Police Commissioner submits further that "whether or not an order that the [Police] Commissioner is empowered to make under section 173" in subs 177(1)(b) directs attention back to s 173 as to the kinds of orders that the Police Commission is (and is not) empowered to make. The Police Commissioner says that she may impose the forms of non-reviewable action listed in Sch 1 to the Police Act, and the forms of reviewable action listed in subs 173(2)(a)-(c) and the residual category allowing "(d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate". The Police Commissioner says that it is notable that the phrase in subs 173(2)(d), permitting action that she "considers appropriate", is the same criterion as the one used to govern the Commission's power to make an alternative order under subs 177(1)(b). 2. The Police Commissioner submits that the phrase "considers appropriate" in subs 177(1)(b) of the Police Act provides the Commission with a degree of latitude in determining whether to make an alternative order and the form of such an order. However, the words do not confer upon the Commission an unfettered discretion and do not have an unlimited width. The expression "indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper": Mitchell v The Queen (1996) 184 CLR 333 ("Mitchell") at 346; Vella v Commissioner of Police (NSW) [2019] HCA 38; 93 ALJR 1236 at [50]. The Police Commissioner says that the phrase is used in the sense of an order being assessed to be reasonable, suitable and adapted to its purpose in the particular circumstances, as well as being sensible, right and proper: BMW Australia Ltd v Brewster [2019] HCA 45; 94 ALJR 51 at [181]; Singh v Minister for Immigration and Border Protection [2018] FCAFC 184; 266 FCR 459 at [29]. In making this assessment, the interests of both parties must be taken into account "in moulding a just response" (Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 at 368) and is "circumscribed only by the subject matter and scope and purpose of the legislation" (Patty v Commonwealth Bank of Australia [2002] FCA 111 at [16]). 3. We reject Mr Robbs's submission that it would be perverse and inconsistent with the Police Act if the New South Wales Police Service punished officers by transfer placements. [13] However, we do accept that it would, in the ordinary course, be perverse for the Police Commissioner, in making a reviewable order, and the Commission in determining an appropriate alterative order, to do so without reference to the officer's skills, experience, family connections and community ties, all of which were relevant in the case of Sergeant Robbs. Those issues were all canvassed in the response to the notice issued pursuant to subs 173(5)(a) and Acting Assistant Commissioner Whyte determined the Original Disciplinary Order taking them into consideration. 4. In overturning the Court of Criminal Appeal which had set aside the sentencing judge's decision in Mitchell, the High Court said at 347: "There is no substance in the submission that the sentencing judge did other than strike a balance between considerations which bore upon the making of a choice between the competing outcomes for which the legislation provided. The legislation does not, contrary to the view advanced by Ipp J, indicate any particular 'overriding factor'. Nor, in our view, did the sentencing judge fail to give 'significant weight', assuming that to be the proper way to express the point, to the circumstances of the offences. Rather, as we have indicated, his Honour said that he continually returned, in the course of his consideration of the matter, to the intrinsic seriousness of the offences. His Honour is to be taken as having meant what he said. The question before the Court of Criminal Appeal was not whether, had their Honours collectively been exercising at first instance the power reposed in the sentencing judge, the Court would have reached a different decision and would have made an order under s 40D(2a) of the Act. Still less is it the function of this Court, on appeal from the Court of Criminal Appeal, to express any view as to the conclusion it might have reached if its task were the task of the sentencing judge. The point is that the majority of the Court of Criminal Appeal fell into error in displacing the decision of the primary judge." 1. In this Commission, authorities such as Big W Discount Stores v Donato [1995] 58 IR 239 and the terms of s 191 of the IR Act make it clear that "the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions": subs 191(3). The Full Bench will only intervene to correct error: Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 at [39]. 2. The Police Commissioner's submissions challenge findings made by Commissioner Murphy and his application of the authorities which consider harshness in the context of dismissal. Commissioner Murphy extracted and considered the Police Commissioner's arguments in the Substantive Decision, including that the Police Commissioner considered that Mr Robbs's conduct required a "substantial sanction" [14] and the Police Commissioner's view that Mr Robbs required supervision [15] . Commissioner Murphy made a finding that the disciplinary action must be "proportionate" [16] and made a finding that Mr Robbs was unlikely to re-offend. [17] Commissioner Murphy determined that Mr Robbs displayed insight in respect of his conduct [18] and explicitly rejected the evidence of Assistant Commissioner Whyte as to the need for the applicant to be supervised by another Sergeant or other more senior officer. [19] He determined that the level of supervision that the Police Commissioner asserted was necessary, was not required [20] . 3. It is clear from the Substantive Decision that Commissioner Murphy did not agree that a transfer to a location where Mr Robbs could be supervised was necessary for the remediation of Mr Robbs. Commissioner Murphy had the benefit of observing Mr Robbs give oral evidence under cross-examination in forming this view. Given his findings, Commissioner Murphy did not err in considering the harshness of the transfer and demotion together. 4. Commissioner Murphy formed a view, on the written and oral evidence of Mr Robbs that Mr Robbs accepted responsibility for, and is genuinely remorseful and contrite about, his misconduct. [21] Commissioner Murphy went on to determine that given Mr Robbs's insight into his conduct, acceptance of responsibility, genuine remorse and commitment not to re-offend, that Mr Robbs was capable of operating as a Sergeant of police without the necessity for supervision by a more senior officer [22] . 5. In light of the factual findings of Commissioner Murphy about Mr Robbs's likelihood of reoffending, the reversal of Mr Robbs's demotion from sergeant does not place Mr Robbs's co-workers at any greater risk to work health and safety risks than in respect of any other police officer. Similarly, on the basis of this finding, Commissioner Murphy's conclusion that Mr Robbs would not need further supervision is not at odds with the Police Commissioner's obligations to take all reasonable steps to prevent unlawful sexual harassment, in order to avoid liability under s 28B, and subs 53(1) and 53(3) of the Anti­Discrimination Act 1977, or her obligations to ensure, so far as reasonably practicable, that NSW Police Force workplaces are free from risks to health and safety pursuant to ss 19 and 20 of the Work Health and Safety Act 2011. 6. The Substantive Decision clearly shows the balancing act that Commissioner Murphy performed to determine that the Original Disciplinary Order was disproportionate to the misconduct. The Police Commissioner is attempting to relitigate her case and the findings of the first instance decision-maker and effectively asking the Commission to vacate the field. 7. The Police Commissioner's submissions in respect of Ground 3 do not demonstrate appealable error in order to overcome the significant hurdle in obtaining leave in respect of a discretionary decision by a first instance decision-maker. [23] Leave to appeal in respect of Ground 3 is refused. Ground 4 1. The Police Commissioner submits that in the Substantive Decision Commissioner Murphy did not refer to, did not have regard to, and did not communicate a view in relation to, the public interest and in failing to do so, the Commissioner erred. 2. Ground 4 raises the important question as to whether Commissioner Murphy, in conducting the review, complied with the obligation in s 175(4)(b) of the Police Act to consider the public interest. This is particularly so, in light of the Justice Heydon's finding at [27] in Eaton that the equivalent provision under Div 1A of the Pt 9 of the Police Act - s 181F(3)(b) - is a mandatory provision which "is adverse to the interests of applicants seeking reviews under s 181E" [24] . 3. We consider that it is appropriate to grant leave in respect of Ground 4 as this Ground involves a question about the correct interpretation and application of a statutory scheme, raises a substantial issue of principle and law that may have wide implications for applications for review under subs 174(1) of the Police Act, and may have widespread application in relation to disciplinary transfers. 4. The Police Act provides at subs 174(4): 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) the interests of the applicant, and (b) the public interest (which is taken to include the fact that the Commissioner made the order pursuant to section 173). 1. The High Court in Eaton held that the equivalent provision under Div 1A of the Pt 9 of the Police Act, s 181F(3)(b), is a mandatory provision. Similarly, the use of the word "must" indicates that the Commission is required to have regard to the public interest in conducting the review. 2. The Full Bench accepts that that Commissioner Murphy did not explicitly state in the Substantive Decision that he had regard to the public interest (which is taken to include the fact that the Commissioner made the order pursuant to s 173). 3. Mr Robbs submits that if one considers the Substantive Decision fairly, it is obvious that Commissioner Murphy, when undertaking his review, had regard to the public interest, including the fact that the Police Commissioner made the Order. Mr Robbs says that the following matters are relevant to the public interest in the due administration of justice, and in the resolution of the real issues in dispute: 1. Commissioner Murphy's acknowledgement of the seriousness of Mr Robbs's conduct during the hearing [25] and, in the Substantive Decision [26] ; and 2. Commissioner Murphy's evaluation of Mr Robbs's conduct and his finding that Mr Robbs did not need to be supervised by another Sergeant or other more senior officer, having regard to Mr Robbs's NSW Police Force service history, including no prior history of like conduct, Mr Robbs's insight into his conduct, acceptance of responsibility. genuine remorse and commitment not to reoffend [27] . 1. Mr Robbs says further that the accommodation of the Police Commissioner in the Commission's Disciplinary Transfer Order also demonstrates an appreciation by Commissioner Murphy of the public interest in a functional police service by facilitating the exercise of management powers in the Police Commissioner and her delegates as to the manner in which the Disciplinary Transfer Order could be implemented. 2. Mr Robbs submits lastly that Commissioner Murphy had specific regard to the public interest by way of his consideration of the Police Commissioner's order made pursuant to subs 173(2) of the Police Act, in particular, on the issue of harshness and proportionality of the Order [28] . 3. We accept that the Police Commissioner's submission that the phrase "in the public interest", when used in a statute, imports a discretionary value judgment confined to the subject matter and the scope and purpose of the statute: O'Sullivan v Farrer (1989) 168 CLR 210 at [226]; Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [75]. 4. At paragraph [14] of the Substantive Decision, Commissioner Murphy set out the consideration of Acting Assistant Commissioner Whyte in making the Original Disciplinary Order. Acting Commissioner Whyte stated: "A Sergeant of Police is a senior position and is expected to act as a role model and lead by example. I expect that you would understand and appreciate the importance of complying with relevant policies, procedures and the law in respect of your interactions with those around you within the workplace. In fact, it is critical and in the public interest for police officers to comply with the law and not engage in behaviour that constitutes sexual harassment or that creates a hostile or unsafe working environment. It is clear that you have failed in this regard." 1. At [33] Commissioner Murphy deals with the Police Commissioner's response to Mr Robbs's submission that the misconduct falls at the "lower end of objective seriousness". The Commissioner extracted pars 6 and 7 of the Police Commissioner's written submissions including: "6. The submission that the misconduct falls at the 'lower end of objective seriousness' should be rejected. There is no 'scale' of objective seriousness to admitted sexual harassment. … … g. the NSW Police Force takes a strong stance against sexual harassment and it is critical and in the public interest for police officers to comply with the law and not engage in behaviour that creates a hostile or unsafe working environment. h. the Applicant's admitted misconduct is significantly aggravated by his position as sworn police officer and Sergeant, and his supervisory responsibilities over (and power imbalance with) the unsworn targets of his admitted conduct." 1. At [42] of the Substantive Decision Commissioner Murphy considered and extracted paragraphs [22] to [26] Justice Walton's decision in Lawrance v Commissioner of Police (2010) 199 IR 139 [29] . His Honour referred to the observation in Commissioner of Police v Evans [2006] NSWIRComm 170 by her Honour, Justice Schmidt, about the need to consider the public interest: "[25] ... Her Honour accepted, as being open to the trial judge in an application pressed upon the ground of harshness, various considerations, including the nature and degree of the conduct engaged in by the police officer and other mitigating circumstances such as his remorse, good character, steps taken to deal with his drinking problem and other personal and financial circumstances. These, her Honour found, were relevant, even when the officer had engaged in serious misconduct. In this respect, Schmidt J accepted the trial judge's reliance upon Metropolitan Meat Industry Board. However, her Honour observed that what might be found as an unfair dismissal under Pt 6 of Ch 2 of the IR Act on the grounds of harshness might not be necessarily so concluded in proceedings under Div 1C of Pt 9 of the Police Act because what was not required to be considered in Metropolitan Meat Industry Board was how the conclusions (relevant to the principles in Metropolitan Meat Industry Board) were to be balanced with the public interest in 'the maintenance of the integrity of the Police Service'. That observation may be accepted and is broadly consistent with the approach of the Full Bench in Brennan at [70] and [71]. However, there is an observation and a qualification which should be made. First, by way of observation, I apprehend her Honour accepted, and I agree, whilst s 181F(3) is applicable (as earlier noted) to the assessment of harshness, that approach does not alter the factors applicable to the assessment of harshness, per se, namely, those stated in Metropolitan Meat Industry Board. Nor do those public interest considerations relieve the Commission of the need to fully assess the ground of harshness, when it is raised, in accordance with the factors stated in Metropolitan Meat Industry Board. Secondly, by way of qualification (as noted by the majority in Evans), the considerations arising under s 181F(3) do not dominate or necessarily determine a review when the issue of harshness is raised, but are to be weighed in the balance in accordance with the aforementioned principles (see also the approach adopted by the Full Bench in Johnston at [35] and [36])." 1. However, Commissioner Murphy's thorough consideration of general matters concerning the seriousness of Mr Robbs's misconduct and its proportionality and his consideration of relevant authorities, did not involve a specific statement about his consideration of the public interest which necessarily refers to matters outside the specific personal interests of the parties to the litigation. It is therefore not apparent from the Substantive Decision that Commissioner Murphy took into account the public interest, as required by subs 175(4) of the Police Act. The Full Bench cannot simply infer that Commissioner Murphy undertook this step in the mandatory statutory process. To that extent, the fourth ground of appeal is made out. 2. We have decided in this instance, not to refer back this matter to Commissioner Murphy in order for him to apply the public interest and to provide reasons as to whether the application of the public interest results in a different determination by him. Rather, we have determined to apply the public interest test to the findings of fact by Commissioner Murphy. 3. We have considered the matters put forward by the Police Commissioner that are said to go to the question of public interest. We consider that the Police Commissioner's submissions as to the obligations said to be imposed on her by relevant workplace health and safety and anti-discrimination legislation as set out at [115], are overstated. However, that legislation is clearly relevant and we have taken the obligations it imposes on the Police Commissioner into account. 4. We have identified a number of the matters were raised by Commissioner Murphy in the Substantive Decision which are relevant to the question of public interest, even if public interest was not expressly referenced. These include: 1. the discussion at [35]-[38], noting in particular the observations at [36] and [38]; 2. the finding at [53] that having Mr Robbs in unlikely to re-offend; 3. the finding at [58] that Mr Robbs had accepted responsibility for, and was genuinely remorseful and contrite about, his misconduct; 4. the acceptance at [71] that the early admission of misconduct by Mr Robbs to avoid the necessity of the complainants being required to give evidence was a mitigating factor in Mr Robbs's favour; and 5. the imposition of an order which still entailed Mr Robbs being demoted and subject to a disciplinary transfer. 1. Having regard to all of these matters we conclude that taking into account the public interest as required by subs 175(4), the Police Commissioner has not demonstrated that a different result ought to obtain. 2. We grant leave and uphold the appeal in respect of Ground 4 of the Substantive Appeal. However, for the reasons stated we do not intend to disturb the orders of Commissioner Murphy save for the operative date. Summary of the Full Bench's determinations in respect of the questions purportedly raised by the Substantive Appeal 1. In respect of the five questions that the Police Commissioner asserts are raised by the Substantive Appeal which are set out at [11] above the Full Bench: 1. considers that Commissioner Murphy did not err in interpreting the Commission's powers under s 177(1)(b) as asserted in respect of question 1; 2. considers that question 2 was not raised by the Substantive Appeal; 3. considers that although question 3 was framed on the basis that it was dependent on question 2 being determined in the affirmative, the Grounds of Appeal required it to consider the question of what evidence was required for Commissioner Murphy to determine the appropriate alternate order and determined that there is no onus on any party to provide evidence about the effect of an alternative order; 4. considers that question 4 is not raised by the Substantive Appeal in that no House v R error has been disclosed in Commissioner Murphy's assessment of harshness; and 5. has determined that Commissioner Murphy did not set out his consideration of the public interest and it is not able to infer from the matters relevant to the public interest in the Substantive Decision that Commissioner Murphy did consider the public interest as required by the legislation. The Full Bench has considered the matters which were relevant to the public interest and has determined that the Police Commissioner has not demonstrated that a different result ought be obtained. Non-disclosure Appeal 1. The Police Commissioner also seeks leave to appeal under subs 188(1) of the IR Act against Commissioner Murphy's refusal to grant a non-disclosure order under subs 164A(1)(a)(i) of the IR Act to prohibit the disclosure of the names of the complainants of the sexual harassment which led to the orders made against Mr Robbs under subs 173(2) of the Police Act. 2. The Police Commissioner submits that leave should be granted in respect of this appeal as it raises important questions of legal principle as to: 1. whether the Commission may grant a non-disclosure order under subs 164A(1)(a)(i) of the IR Act even after publication of the decision containing names of complainants due to the failure to make an application before publication; and 2. the relevant considerations informing the making of orders involving complainants to sexual harassment allegations. 1. The Police Commissioner submits that the Non-disclosure Appeal should be upheld because: 1. the finding of the Commissioner is disharmonious with the approach taken in the decisions of the Full Bench in Harry Day v John Smidmore and others (No.2) [2005] NSWIRComm 406 ("Smidmore") and Commissioner Tabbaa in X v Department of Justice and Attorney General [2011] NSWIRComm 1010; and 2. there is a public interest in determining whether the Commission should grant a non-disclosure order in these circumstances as the current decision may act as a deterrent to other complainants raising concerns about sexual harassment in the workplace in fear of suffering reputational damage associated with the publication of their identity in a decision. 1. Mr Robbs did not resist the Police Commissioner's application for leave to appeal in respect of the Non-disclosure Appeal or the Non-disclosure Appeal generally. 2. We will apply the principles in respect of leave as set out at [18] – [20] above. 3. Section 164A of the IR Act is in the following terms: 164A Powers of Commission as to the disclosure of matters before the Commission (1) A non-disclosure order is any of the following orders— (a) an order prohibiting or restricting— (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission, (c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings. (2) (Repealed) (3) The Commission may make any non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice. (4) The Commission may from time to time vary or revoke an order it has made under this section. (5) (Repealed) 1. There is an obvious public interest in encouraging persons to bring allegations and complaints to the attention of their employer, including matters involving sexual harassment. It is also self-evident that publication of details may cause stress and embarrassment to the complainants. However, there is not, and should not be, an assumption that a complainant's identity will automatically be protected pursuant to s 164A of the IR Act without considering the interests of justice as required by the legislation. It is a matter for a Commissioner to determine, pursuant to subs 164A(3), the interests of justice in the circumstances. 2. Open justice is one of the fundamental attributes of a fair trial and a matter that must be weighed in considering the interests of justice. That the administration of justice must take place in open court is a "fundamental rule of the common law": John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465, [476]–[477] (McHugh JA, Glass JA agreeing). The High Court has said that "the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances": Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ). The Full Bench in Smidmore referred to this as the paramount consideration. 3. We accept the Police Commissioner's submission that the power granted to courts by subs 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) ("Court Suppression Act") is analogous to the power granted to the Commission by s 164A of the IR Act. The relevant condition for the making of an order under subs 8(1)(a) of the Court Suppression Act is "necessity" in order "to prevent prejudice to the proper administration of justice" which is similar to subs 164A(3) of the IR Act which gives the Commission power to make an order when it is "satisfied that it is in the interests of justice". 4. Commissioner Murphy accepted the concerns expressed by the complainants after publication of the Substantive Decision but was not satisfied that, in the specific circumstances, the interests of justice required the suppression of the complainants' names. Commissioner Murphy relied on the fact that there was no application for an order pursuant to s 164A of the IR Act prior to the publication of the Substantive Decision and that the Substantive Decision had been available on the Caselaw website for a period of six days in deciding not suppress the complainants' names. The Police Commissioner says this was in error. 5. Commissioner Murphy was entitled to consider the circumstances of publication. He balanced the concerns of the complainants against the interests of open justice [30] and determined that "the interest of justice require that [the complainants] be properly identified". [31] Commissioner Murphy considered the orders sought were "generally given in cases where the identity of children is not to be disclosed". [32] Commissioner Murphy did not go as far as to say, as the Police Commissioner submits, "that such orders are made to protect the identity of minors and not adults". 6. The Non-disclosure Appeal does not disclose error of the type required to disturb a discretionary decision. The decisions of Her Honour Justice Schmidt in X v NSW Department of Education and Training [1999] NSWIRComm 34 and Commissioner Tabbaa in X v Department of Justice and Attorney General involved discretionary decisions by the relevant members and do not stand as authority for the proposition that the names of persons who allege misconduct in the context of sexual harassment should be suppressed, such as to overcome the paramount consideration. As the Police Commissioner herself submits, the interests of justice depend on the circumstances in each case. 7. The Police Commissioner has not identified any error in Commissioner Murphy's decision and as such leave to appeal is refused. Orders 1. The Full Bench makes the following orders in matter no 2020/323978: 1. leave to appeal in respect of Grounds 2(a) and 3 is refused; 2. leave to appeal in respect of Grounds 1, 2(b) and 4 is granted; 3. the appeal is dismissed in respect of Grounds 1 and 2(b); 4. the appeal is upheld in respect of Ground 4 on the limited basis as set out above; and 5. the Commission's Disciplinary Orders made on 30 October 2020 are upheld except that Order 4 is varied such that Orders 1, 2 and 3 take effect 28 days from the publication of this decision. 1. The Full Bench makes the following order in matter no 2020/336473: 1. leave to appeal is refused. ********** Endnotes 1. The Full Bench notes that Commissioner Karen Webb replaced Commissioner Michael Fuller as the Commissioner of Police on 1 February 2022. The Commission has used the female pronoun when referring to the Commissioner of Police as it reflects the occupant of the role of Commissioner of Police at the time of the publication of this decision. The Commission intends no disrespect to former Commissioner Fuller. 2. Respondent's Substantive Submissions at par 11. 3. Appellant's Substantive Submissions at par 42. 4. Godkin at [16]. 5. "Vacant position" is defined in s 63 of the Police Act as "a position that is not held by a person". 6. Appellant's Substantive Submissions at par 51. 7. Appellant's Substantive Submissions at par 52. 8. Appellant's Substantive Submissions at par 40. 9. See Substantive Decision at [24]. 10. Outline of Submissions on behalf of the Applicant dated 4 August 2020, p7 at AB 231 at [56(b)]. 11. Transcript of Hearing before Commissioner Murphy, 5 November 2020, AB Tab 8, p. 254 to 255. 12. Substantive Decision at [89(3)]. 13. See transcript 15 June 2021 p 35 at 29. 14. Substantive Decision at [25]. 15. Substantive Decision at [78] – [80]. 16. Substantive Decision at [38]. 17. Substantive Decision at [50]-[53]. 18. Substantive Decision at [80]. 19. Substantive Decision at [79]. 20. Substantive Decision at [80]. 21. Substantive Decision at [59]. 22. Substantive Decision at [80]. 23. See King (No 2) at [54] referring to Knowles. 24. Eaton at [27] 25. Transcript of Hearing before Commissioner Murphy on 5 August 2020, AB Tab 8, p 267, line 32 to 38. 26. Substantive Decision at [36] to [38] 27. Substantive Decision at [79] to [80] 28. see [84] to [88] of the Substantive Decision 29. This decision was appealed. Leave was granted and the appeal was dismissed. See Commissioner of Police v Lawrance [2011] NSWIRComm 109. 30. Transcript of hearing before Commissioner Murphy on 5 November 2020 at p 3, lines 2-5 and 14-19. 31. Transcript of hearing before Commissioner Murphy on 5 November 2020 at p 3, lines 18 -19. 32. Transcript of hearing before Commissioner Murphy on 5 November 2020 at p 3, lines 14-15. Amendments 06 June 2022 - Amendment to cover page. 06 June 2022 - Correction to [136] and cover page pursuant to cl 2.5 (4) of the Industrial Relations Commission Rules 2009. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2022