Industrial Relations Commission of New South Wales CITATION : Van Huisstede and the Commissioner of Police [2000] NSWIRComm 97 APPLICANT: Ian John Van Huisstede PARTIES : RESPONDENT: Commissioner of Police FILE NUMBER: IRC440 of 1999 CORAM: Walton J Vice-President Order for removal of police officer - proper respondent - review of order - provisions of Police Service Act ("the Act") and Industrial Relations Act ("IR Act") apply - reasons for decision by Commissioner of Police ("the Commissioner") unclear and undesirable - steps required under s181D(3) mandatory - Commissioner must give notice of grounds for removal - non-publication orders - procedure adopted by Commissioner - use of analysts and development of profile for consideration by Commissioner - issue of notice - submission by applicant to Commissioner - analysis of applicant's submissions - findings of fact as to information and materials not considered by the Commissioner - Commissioner not consider evidence at criminal proceedings - findings of fact as to Commissioner having regard to publicity and community concern - evidence of applicant as to whether basis in fact for grounds for removal - cross-examination - further cross-examination - rule in Browne v Dunn - admission of transcript of evidence - whether leave required to admit - notice of calling evidence under s181G of the Act - hearsay evidence - evidence not before Commissioner - prejudice - evidence at trial by complainants admitted - inconsistencies in complainants' evidence CATCHWORDS : Legislative scheme - history of legislation - relevant general principles - nature of review - application of decisions in Bigg v NSW Police Service (No. 2) and Oswald v NSW Police Service (No. 2) - Commissioner has broad discretion but not at large - obligation to act in manner which is not uninformed - review not same as judicial review - failure to adhere to procedures required by legislation and principles laid down in Bigg (No. 2) of significant gravity in determination - merits or substance of decision - merits review - application of IR Act - meaning of removal - whether distinction from dismissal - Commissioner's confidence - interest of applicant - public interest - responsibilities of public officials - decision to remove harsh, unreasonable and unjust - inadequate assessment of available information - flawed finding that allegations should be believed - failure to examine nature and substance of statements made by complainants - failure to have regard to inconsistencies in evidence of complainants and corroborating evidence for applicant - conclusions and opinions must be sustainable on information before Commissioner - decision uninformed - inappropriate reliance on public outcry and community concern not based on rules of reason and justice - substance of allegations - no finding on onus - credit of applicant - failure to call complainants - weight of complainants' evidence - inconsistencies in complainants' evidence - costs certificate - criminal convictions of complainants - relief - similar relief available as per IR Act - reinstatement primary remedy - practicality - s181F(3) and public interest - seriousness of allegations - factors warranting reinstatement - orders - reinstatement - payment of monies lost whilst removed Police Service Act 1990 ss51 82 181D 181E 181F 181G and 181H LEGISLATION CITED : Industrial Relations Act 1996 ss84 85 87 89 and 163 Industrial Arbitration Act 1940 s83 Bigg v New South Wales Police Service (No. 2) (1998) 80 IR 434 R v Anderson, Ex Parte Ipec Air Pty Limited (1965) 113 CLR 177 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 NSW Bar Association v Kalaf (unreported, Court of Criminal Appeal, 11 October 1988) Clyne v NSW Bar Association (1960) 104 CLR 186 Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 2) (1990) 35 IR 60 Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Allied Pastoral Holdings Pty Limited v The Commissioner of Taxation [1983] 1 NSWLR 1 Bulstrode v Trimble [1970] VR 840 Newton v New South Wales Police Service (No. 2) (1999) 87 IR 66 Newton v Commissioner of Police (1998) 85 IR 119 Browne v Dunn (1894) 6 R (HL) 67 Amalgamated Metal Workers Union v Electricity Commission (1989) 28 IR 155 R v Hull Prison Board of Visitors, Ex parte St Germain & Ors (No 2) [1979] 3 All ER 545 Downey v Pryor (1960) 103 CLR 353 CASES CITED : Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 PDS Rural Products Ltd v Corthorn (1987) 19 IR 153 FAI Insurances Limited v Winneke (1982) 151 CLR 342 Bartlett v New South Wales Police Service (1998) 87 IR 436 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Barratt v Howard (1999) 170 ALR 529 Re Queensland Electricity Commission, Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 Bankstown City Council v Paris (unreported, Wright J, President, Peterson J and Bishop C, Matter No. IRC262 of 1999, 23 August 1999) Leeds and Northrup Australia Pty Ltd v Hull (1992) 46 IR 11 Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 CCH Australia Ltd v Bowen (1998) 79 IR 205 Hollingsworth v Commissioner of Police (1999) 88 IR 282 Oswald v New South Wales Police Service (No. 2) (1999) 90 IR 42 Slonim v Fellows (1984) 154 CLR 505 Hardcastle v Commissioner of Police (1984) 53 ALR 593 HEARING DATES: 11/08/1999; 11/09/1999; 11/10/1999; 12/15/1999; 01/28/2000 DATE OF JUDGMENT: 06/26/2000 APPLICANT: Mr B Docking of Counsel Solicitor - Mr M Treharne Walter Madden Jenkins Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Mr G Willis of Counsel Solicitor - Mr F Hutchison General Manager Legal Services NSW Police Service JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, Vice President 26 June 2000 MATTER NO. IRC 440 OF 1999 IAN JOHN VAN HUISSTEDE AND THE COMMISSIONER OF POLICE. Application by Ian John Van Huisstede pursuant to section 181E of the Police Service Act 1990. DECISION 1 This is an application by Ian John Van Huisstede ("the applicant") for a review of an order made by the Commissioner of Police ("the Commissioner") pursuant to s181D(1) of the Police Service Act 1990 ("the Act") on 5 January 1999 ("the order") removing the applicant from the Police Service of New South Wales ("the Police Service"). 2 The application specified that the respondent in the proceedings was the "Commissioner of Police, New South Wales Police Service", although the applicant nominated the "Commissioner of Police" as his employer in the initiating process. The parties later clarified that the proper respondent in the proceedings was the Commissioner of Police. The application is amended accordingly. 3 The proceedings are governed by Division 1B of Part 9 of the Act. Section 181E provides that a police officer may apply to the Industrial Relations Commission of New South Wales ("the Commission") for a review of an order removing a police officer from the Police Service on the grounds that the removal was harsh, unreasonable or unjust. By operation of s181G(1) of the Act, the provisions of the Industrial Relations Act 1996 ("the IR Act") apply to the application for review, subject to some stated limitations, in the same way as those provisions apply to an application brought under Part 6 of Chapter 2 of the IR Act. The Applicable Legislation 4 Section 181D of the Act provides as follows: 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the Police Service if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the Police Service. (5) The removal takes effect when the order is made. (6) (Repealed) (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission. (7A) Nothing in this section, limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8) For the purposes of this Act, removal of a police officer from the Police Service under this section has the same effect as if the police officer has resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the Police Service. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 5 Sections 181E, 181F, 181G and 181H generally concern a review of a decision of the Commissioner made pursuant to s181D. Those sections are in the following terms: 181E Review generally (1) A police officer who is removed from the Police Service by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and the other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the Police Service, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the Police Service is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to section 181D (1)). 181G Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently, or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision. 181H Commissioner and members of Commissioner's Advisory Panels compellable witnesses only by leave (1) In any proceedings before the Commissioner under this Division, neither the Commissioner nor any members of a Commissioner's Advisory Panel is compellable to give evidence in relation to the exercise of the Commissioner's functions under section 181D unless the Commission gives leave. (2) The Commission may give such leave only if it considers that extraordinary grounds exist that warrant leave being given. (3) In this section Commissioner's Advisory Panel means a panel established by the Commissioner to assist in the exercise of the Commissioner's functions under section 181D. 6 I shall later set out some of the provisions of Part 6 of Chapter 2 of the IR Act. For present purposes it is noted that ss84, 85, 87, 88 and 89 of that Act are relevant to the present application. The Application 7 The applicant filed an application in accordance with Form 10 of the Rules of the Commission. The form is applicable to an applicant bringing an action pursuant to s84 of the IR Act. 8 By his application, the applicant sought an order of reinstatement to the Police Service. The applicant further sought that, in the event that the Commission considers that "it would not be probable that the applicant be reinstated", then he would seek an amount of compensation. 9 The grounds relied upon by the applicant in the application were as follows: 1. The Commissioner of Police denied the Applicant procedural fairness before, during, and after the 181D proceedings. 2. The Commissioner of Police took into account irrelevant material when he determined to serve the 181D Notice on the Applicant and, when he determined to remove the Applicant from the Police Service. 3. The Commissioner of Police did not take into account material that he should have when he decided to remove the Applicant from the Police Service. 4. In the order removing the Applicant from the Police Service the Commissioner of Police relies on matter which were not referred to in the 181D Notice served on the Applicant. 5. There is no basis upon which the Commissioner of Police could conclude that the Applicant is not a person of conduct an[d] integrity and is a person not suitable to remain in the Police Service. 6. To the extent that it may be necessary the Applicant will seek leave to rely on other grounds to contend that his removal from the Police Service is unfair. The Order 10 On 5 January 1999, the Commissioner made the order in the following terms: Order under Section 181D(1) of the Police Service Act 1990 I, Peter James Ryan, Commissioner of Police, having considered your conduct and integrity, do not have confidence in your suitability to continue as a police officer. By this order, I therefore remove you from the New South Wales Police Service. In reaching my decision, I have considered a profile prepared in relation to you, the notice served upon you pursuant to Section 181D(3)(a), of the Act, and the written submissions furnished by you through your solicitors. I have carefully considered the matters raised by you in response to the notice. The reasons for my decision are contained within the document annexed hereto and titled "Commissioner's comments Re Section 181D Notices." Your removal from the New South Wales Police Service takes effect from the date of this order. 11 The order was served upon the applicant on 21 January 1999. Reasons for the Decision 12 The reasons for decision (which were dated 23 November 1998) were as follows: I have read the profile and the response by Senior Constable Van Huisstede in relation [to] the matters and allegations raised against him. It is regrettable that this incident has taken so long to resolve itself and come before the Commissioner for resolution. It should have been dealt with many months ago. I note the denials by Van Huisstede regarding his conduct but this matter received incredible publicity at the time and created shock and horror in the community who could not believe the police were capable of the allegations which were made against them. This community concern still persists to this day. I have carefully read the transcripts of the trial and the submission by Senior Constable Van Huisstede but find that I cannot sustain my confidence in this officer remaining a member of the NSW Police Service. The allegations, the subsequent community outrage and the damage to the reputation of the NSW Police Service is, to my mind, unforgivable. I tend to believe the allegations which were made rather than the account and denials made by the Senior Constable. As I have recorded earlier, it is very regrettable that this matter has taken so long to finalise but nevertheless we should draw a line through this whole affair now. I find that I have no confidence in Van Huisstede remaining a member of the Police Service and therefore intend to issue the Notice under Section 181D of the Police Service Act 1990. The Profile and Notice issued pursuant to s181D(3)(a) 13 In the final paragraph of the reasons for decision of the Commissioner ("the decision"), the Commissioner indicated his intention to issue a notice pursuant to s181D. A notice was issued pursuant to s181D(3)(a) on 25 February 1998 ("the notice"). Hence the reference to the issuing of a notice in the decision is erroneous. 14 The notice was expressed in the following terms: Notice under Section 181D(3)(a) of the Police Service Act 1990 The Commissioner's Confidence provisions allows for the Commissioner of Police to remove an officer where he has lost confidence in the officer's suitability to remain a Police officer. This is determined by the Commissioner on the basis of the officer's conduct, integrity, performance or competence. In accordance with Section 181D(3)(a) of the Police Service Act 1990, I hereby give you notice that I do not have confidence in your suitability to continue as a police officer in regard to your integrity and conduct taking into account the following grounds: · Your alleged inducement of two minors to participate in an act of child prostitution at Taree Police Station on 12 August 1990. You are hereby notified that I am considering making an order for your removal from the New South Wales Police Service under Section 181D of the Police Service Act 1990. In accordance with section 181D(3)(b) of the Police Service Act 1990, prior to making my decision, you are hereby given 21 days from the date of the service of this notice, within which to make written submissions to me in relation to the proposed action. Attached is a copy of your Service history and the facts relating to the matter. Your submission should be delivered to my Office, Level 18, Police Headquarters, 14-24 College Street, Darlinghurst 2010. 15 "The profile" referred to in the decision was brought into existence as part of the process initiated by the Commissioner to consider whether or not to remove the applicant pursuant to s181D. These procedures will be discussed in greater detail later in this decision. The profile was forwarded to the Commissioner on 25 February 1998. 16 Putting aside the cover page, the profile is a two page document. The first page of the profile provided the service history of the applicant. The second page of the profile was as follows: CRITERIA -Integrity -Conduct FACTS · CIS 95004311. Following an anonymous complaint, allegedly made by a Police Officer, investigations were commenced into alleged sexual assault matters that had happened in Taree Police Station. As a result of these investigations, three girls, who had been in custody at Taree Police Station from 11 August 1990 to 13 August 1990, gave corroborating evidence that they performed oral sex on Senior Constable Van Huisstede and other officers in return for food. Police Service Action Senior Constable Van Huisstede was interviewed on 5 September 1995 in relation to the allegations. On 19 March, 1996 two issues were found sustained: * On 12 August 1990, at Taree, Senior Constable Van Huisstede did induce Complainant 1 to participate in an act of child prostitution. * On 12 August 1990, at Taree, Senior Constable Van Huisstede did induce Complainant II in an act of child prostitution (with another officer). It was recommended that departmental proceedings against Senior Constable Van Huisstede be postponed until after his criminal trial. On 8 December 1997, Senior Constable Van Huisstede and another officer stood trial at Newcastle District Court, both indicted on two counts of "Induce child to participate in an act of child prostitution". On 18 December 1997, the jury found him not guilty of the two counts of which he was indicted. He was formally discharged by the Trial Judge. POLICE OFFICER'S STATUS Senior Constable Van Huisstede is still currently suspended without pay as a result of the above allegation. 17 In his decision, the Commissioner refers on a number of occasions to "allegations". In essence, his decision is based fundamentally upon an acceptance of "allegations", however described, made against the applicant. Another component of the Commissioner's reasoning process appears to be the "community outrage" arising from either the existence or publication of those allegations. 18 Section 181D(3)(a) requires the Commissioner to give a police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officers suitability to continue as a police officer. The grounds specified in the notice were as follows: Your alleged inducement of two minors to participate in an act of child prostitution at Taree Police Station on 12 August 1990 19 There was no reference in the decision to the grounds specified in the notice in the Commissioner's decision. As earlier mentioned the reference to the notice in the decision is plainly erroneous. It is presumably a reference to 'an order'. The notice is referred to in the order (issued later in time). In that instrument the Commissioner indicates that he has 'considered' the notice. 20 It is reasonably clear that the Commissioner had regard to matters not raised in the notice (or otherwise not brought to the attention of the police officer) in his decision. For example, the Commissioner had regard to matters such as "community outrage". I will refer to this issue later in the judgment. 21 It is not clear, just what the Commissioner was alluding to when he referred to "allegations" in his decision. In particular, it is not entirely clear whether, in considering allegations, the Commissioner confined his attentions to the grounds specified in the notice. 22 The Commissioner referred to the profile in his reasons for decision. That document does refer to "allegations", but those allegations are different in nature to the grounds specified in the notice and the findings of the investigating officer (which are also referred to in the profile). The allegations referred to in the profile were to the effect that the three girls had performed oral sex on the applicant and other officers. Both the notice and the findings of the investigating officer concern acts performed by two of the complainants. Further, the allegations in the profile do not make clear just how many officers were involved in the alleged activity. However, the notice and the finding of the investigating officer refer only to the acts of the applicant and one other police officer. 23 The investigating officer seems to have made findings inconsistent with the allegations identified in the profile as the profile records that the investigating officer found only two issues substantiated (which are detailed in the profile). No such distinction is found in the decision of the Commissioner. This lack of rigor or conciseness in the reasons for decision is undesirable. This is particularly so as provisions of s181D confine the Commissioner, in determining whether to make an order to remove a police officer, to a consideration of the grounds specified in the notice, unless the Commissioner provides the officer with the opportunity to make submissions in relation to any fresh notice pursuant to s181D(3)(a) (assuming for present purposes that it is available to the Commissioner to issue a further notice). 24 The Commissioner must take the steps specified in s181D(3) before removing a police officer. The procedures required by that sub-section are mandatory. This is made clear by the opening words of the sub-section. This limitation also arises from the operation of s181D(3)(c). The requirement for the Commissioner to take into account the submission of a police officer with respect to any grounds specified in the notice would be rendered nugatory, if the Commissioner were permitted to have regard to grounds, in reaching a decision to remove an officer, which were not identified in the notice. Cases presented by the Applicant and the Commissioner 25 Pursuant to s181F(1) of the Act, the Commission is required to firstly consider the Commissioner's reasons for decision and then the case presented by the applicant as to why the removal of the applicant was harsh, unreasonable or unjust and the Commissioner's reply to that case. 26 A Full Bench of the Commission in Newton v New South Wales Police Service (No.2) (1999) 87 IR 66 at 75, 77 and 78 described the approach which should be adopted by the Commission in the exercise of its powers under s181F as follows: While s181F requires the Commission, firstly, to consider the reasons provided by the Commissioner of Police for the decision to dismiss, it also requires the Commission to consider, secondly, the case presented by the applicant as to why the dismissal was harsh, unreasonable or unjust and, thirdly, the case presented by the Commissioner of Police in answer to the applicant's case. ... Section 181F picks up those notions and, in reviewing a dismissal under s181D, imposes a statutory obligation on the Commission to consider the three matters specified in s181F(1) before finally determining the matter. In our view, it is an obligation which the Commission is not free to depart from in the way proposed by the appellant. ... The passage emphasised confirms our consideration of s181F; that the role of the Commission is to conduct a review of the merits of the decision of the Commissioner of Police, to consider the whole of the circumstances of the matter in the way determined by s181F and apply the statutory criteria in that situation. 27 The reasons for decision given by the Commissioner have been earlier set out and discussed in a preliminary way. They shall be examined in greater detail later in this decision. Similarly, it is now appropriate to encapsulate the respective cases of the applicant and the Commissioner before proceeding to examine the evidence (in the context of the cases brought by the parties), the legislation and relevant principles and, finally, in the context of the requirements of s181F(1) of the Act, whether the decision to remove the applicant was harsh, unreasonable or unjust. Case for the Applicant 28 Mr B. Docking of counsel, who appeared for the applicant, submitted that the applicant should be reinstated to his position with the Police Service as the dismissal was harsh, unreasonable or unjust. The decision to remove the applicant may be so described as there had occurred "procedural unfairness" and "substantive unfairness" in the decision making process. 29 Broadly, as to the procedural considerations, the applicant submitted that: 1. The Commissioner made an uninformed decision due to his failure to consider relevant material. Central to this complaint was a contention that the Commissioner had failed to consider relevant evidence in the criminal proceedings brought against the applicant and, in particular, the corroborative evidence of Mr Wadsworth in favour of the applicant; 2. The Commissioner did not confine himself to rules of reason and justice. This issue principally concerned the Commissioner's reliance in his decision upon the publicity associated with the trial and community concerns over allegations made against the applicant; 3. The Commissioner failed to meet the statutory requirement, and in particular to meet the requirements of s181D(3)(c), by failing to take into consideration the written submission of the applicant. It was submitted that the Commissioner had not exercised his duty to take into consideration any written submissions because the duty had not been personally met by him but it had been undertaken by delegation; 4. The Commissioner, in considering the applicant's 'conduct and integrity', had found that he believed the allegations which were made. It was submitted that this was a process of finding proven allegations of criminal activity which was no more than a "futile illusion of fairness"; 5. The Commissioner's reasons for decision were not adequate or proper due to their length, the use of a formula to cloak the decision with the appearance of conformity with the statute and a failure to indicate which material or evidence was rejected or accepted (or whether it was adequately based); 6. The Commissioner's delay of many months in applying the steps taken by him under s181D was, by his own admission, unfair. 30 As to the question of "substantive unfairness", the applicant submitted that: 1. On all the evidence, the Commissioner had not made out the charges on which the dismissal was based; 2. The applicant was not guilty of the misconduct upon which the Commissioner acted; 3. There was a harsh effect on the personal circumstances of the applicant as an individual in terms of his personal, social and economic situation. 31 The Commission will consider various aspects of these submissions in greater detail later in this decision. The Case for the Respondent 32 Mr G. Willis of counsel, who appeared for the Commissioner, initially made submissions going to the nature of the legislative scheme. In this respect, he emphasised that the application before the Commission is for the review of an order made by the Commissioner to remove the applicant from the New South Wales Police Service. Mr Willis emphasised that the legislative scheme focussed upon the process of 'removal' of a police officer as opposed to the dismissal of an employee. 33 It was submitted that s181F casts a burden on the applicant of establishing that his removal from the Police Service was harsh, unreasonable or unjust. Furthermore s181F(3) required the Commission, in making its decision, to have regard to the interests of the applicant and the public interest. The public interest included the interest of maintaining the integrity of the Police Service and the fact that the Commissioner had made the order. Although the proceedings before the Commission were not disciplinary proceedings what had been said about the public interest in maintaining discipline in the Police Service is relevant to these proceedings: see Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597. 34 The need to maintain the reputation of the Police Service should particularly be taken into account in the public interest in these proceedings. The Commissioner also relied upon a decision of this Commission in Bartlett v New South Wales Police Service (1998) 87 IR 436 . The legislation required, it was contended, the Commission to balance the competing interests. There is no basis in which the interests of the applicant should be given more importance or weight than that of the public. The fact that the Commissioner, by his order, has expressed a loss of confidence in the applicant's suitability to remain a police officer is significant in the public interest given his statutory responsibilities under the Act. 35 Mr Willis made detailed submissions as to the appropriateness of the process adopted by the Commissioner in reply to the submissions of the applicant concerning "procedural fairness". These detailed replies to the applicant's contentions will be considered later in this decision. 36 As to the applicant's submission that the Commissioner did not confine himself to rules of reason and justice, it was submitted that, although the decision was not clearly expressed, it was apparent the Commissioner had in mind the need to protect the reputation of the Police Service and maintain public confidence in it in stating his regard for the publicity and community concern. These are issues which went to the pubic interest and were clearly relevant to his decision. The Commissioner did not merely take into account that there were allegations involving the applicant. 37 As to the applicant's contention that the Commissioner had failed to properly take into consideration his submissions, Mr Willis submitted that there was no evidence that the Commissioner failed to take into account the written submissions. The only reasonable inference the Commission could draw from the evidence was that the Commissioner complied with his statutory obligation to consider the applicant's submission. 38 As to the applicant's submission that the process of finding proven allegations of criminal activity was no more than a 'futile illusion of fairness', it was submitted for the Commissioner that there was no requirement for either the analyst preparing a profile for the Commissioner or for the Commissioner himself to apply any standard of proof to the evidence relied upon. The Commissioner was entitled to remove an officer from the Police Service if, having regard to the officer's competence, integrity, performance or conduct, he did not have confidence in the officer's suitability to continue as a police officer. Amendments to the Police Service Act during the course of the Police Royal Commission and following the final report of the Royal Commission demonstrated that the legislature had intended to disentangle the Commissioner from complex and prolonged litigation concerning disciplinary matters arising from the conduct of police officers. The initial amended form of s181B demonstrated a clear legislative intention to give more freedom of action to the Commissioner whilst providing the officers concerned with a right of review. 39 It was submitted that s181D of the Act does not require the Commissioner to make a determination as to any particular state of affairs (that is, that a person is guilty of criminal behaviour or any other particular matter of fact). The section does not require the Commissioner to find as a proven fact that an officer is corrupt or incompetent, nor does it require the Commissioner to find as a matter of fact that certain conduct occurred. The section does not require the respondent to conduct an investigation or to conduct a hearing. The essence of the section is that the Commissioner should form a view that he does not have confidence in the officer's suitability based upon one or more of the four criteria referred to in s181D(1). 40 It was further submitted that the review available under s181E does not proceed on the basis that the Commissioner is required to prove criminality or the conduct referred to in the notice issued under s181D(3)(a), but rather proceeds on the basis that the onus is on the applicant to establish that his or her removal from the police service was harsh, unreasonable or unjust. That requirement is to have effect despite any law or practice to the contrary. 41 It was contended that in his reasons for decision, the Commissioner stated that he had carefully read the transcript of the trial and that he tended to believe the allegations rather than the account and denials made by the applicant. The Commissioner thereby concluded that he had no confidence in the applicant's suitability. In coming to that opinion, there was no requirement upon him to apply any standard of proof. 42 Mr Willis submitted that the reasons for decision were adequate and satisfied the statutory requirements. It was submitted that, whilst the reasons might have been more fully and clearly expressed, the significant and relevant matters were clear from the statement of reasons, namely, the Commissioner was concerned about the damage to the reputation of the Police Service ('the public interest'); and, on the basis the information contained in the profile, the transcript annexed to the applicant's written submissions and the submissions themselves, the Commissioner accepted the allegations made against the applicant (and rejected the applicant's denials). On the same material, the Commissioner formed the view that he had no confidence in the applicant's suitability to remain a police officer. Thus, the reasons given were adequate. The Commission should not construe the reasons minutely or finely with an eye keenly attuned to the 'perception of error'. 43 As to the issue of delay, it was submitted that there was no evidence of any particular prejudice to the applicant of any delay by the Commissioner. The applicant was acquitted of the criminal charges on 18 December 1997 and the notice signed on 25 February 1998. The notice was served upon the applicant on 19 March 1998. The applicant's submission was then received and a process then followed under which reasons for decision were given on 20 November 1998 and an order signed on 5 January 1999. 44 In this case the incident occurred in 1990. However, the incident was not reported until 1995 through no fault of the Commissioner. The internal investigation that followed was reasonably prompt; the applicant being interviewed on 5 September 1995. The fact that criminal proceedings were not finally disposed of until December 1997 was no fault of the Commissioner. There was no unreasonable delay on the Commissioner's part and, if there was any such delay in completing the s181D process, it would not have added to any prejudice suffered by the applicant. 45 Mr Willis refuted the applicant's contention that there was "substantive unfairness". He referred to the decision in Bigg v New South Wales Police Service (No. 2) (1998) 80 IR 434 in relation to the shifting of the evidentiary burden of proving an allegation. It was submitted that, accepting for present purposes of argument that the profile which was originally forwarded to the Commissioner was deficient (in terms of the information it provided as to the allegations made against the applicant) at the time the Commissioner made his decision, he had been subsequently provided with sufficient information to allow him to properly exercise his discretion. The additional information as to the particulars of the allegations, the applicant's details, the inconsistencies in the complainants evidence and the applicant's evidence at his trial, were all provided by the applicant with his written submissions. The process required by the legislation in allowing the officer to make written submissions which must be taken into consideration by the Commissioner ensured a balance in the material upon which he made the decision. The evidence is that that process was adopted by the Commissioner in this case. Further, there is no evidentiary burden upon the Commissioner to prove the allegations. It was submitted that there was no onus upon the Commissioner in reinstatement proceedings before the Commission to establish that any corrupt or criminal conduct had, in fact, occurred. 46 It was also submitted that this is not a case where the Commissioner was exercising a contractual right of summary dismissal, nor is it a case where he was exercising a statutory right of dismissal. The legislative scheme provided that s181D was not for the dismissal of police officers on the ground of conduct (or any other criteria). The scheme conferred a discretionary power upon the Commissioner to remove police officers in whom he no longer had confidence. Like the statutory scheme considered in Bigg (No. 2), s181D is a specific statutory scheme not previously considered in cases before the Commission. The legislature had recognised a distinction between dismissal and removal. Section 181D provides that the removal of a police officer under the section had the same effect as if the officer had resigned or retired. This was clearly meant to ameliorate the effect of removal, both in terms of preserving accrued benefits and in terms of any stigma that might otherwise attach to being dismissed. 47 The legislature had intended to remove the previous system of dealing with disciplinary complaints against police officers. If in these proceedings the respondent is required to prove the conduct in issue then the old system will not have changed. There are no departmental charges, but essentially, the Commissioner will bear the same onus (to prove the particularised misconduct) which existed under the scheme described by the Minister in his second reading speech where he described the legislation as being cumbersome, somewhat protracted and legalistic. 48 Mr Willis also contended that the fact that the applicant was acquitted of criminal charges did not mean that the Commissioner was not entitled to form the opinion that he had lost confidence in the applicant's suitability to remain a police officer. 49 Finally, it was submitted that it was not every failure to follow procedure that would warrant the intervention of the Commission. The Commission should take into account that the allegations made against the applicant were of a most serious kind and that although the three complainants were inconsistent in their accounts in evidence, they were consistent in the sense that they each gave an account of an incident of the same type. Each complainant had identified that the incident had occurred in the cells of the Taree police station. Even though the magistrate at the committal had reluctantly committed the applicant for trial, it may be inferred from the evidence that the Director of Public Prosecutions considered that there was sufficient evidence to find an indictment against him and require him to stand trial. Further, although the District Court issued a cost certificate in favour of the applicant, the trial had not been taken away from the jury and there was no directed verdict in favour of the applicant. The Commission was, therefore, entitled to draw the inference that the District Court was of the view that there was sufficient evidence to go to the jury. It was true that the applicant had been acquitted of criminal charges but the disciplinary investigation conducted by the investigator found, on 19 March 1996, the two issues sustained. Background to the Initiation of Procedures under s181D 50 The applicant is a 32 year old former police officer who held the rank of Senior Constable at the time of his removal from the Police Service. He became a trainee at the Goulburn Police Academy in 1987 and commenced duties as a probationary Constable in Taree in January 1988. He became a Constable in January 1989. He remained stationed at Taree, carrying out general and other duties until July 1994 at which time he was transferred to Mudgee where he obtained a promotion to the rank of Senior Constable. He was removed from service whilst stationed at Mudgee. 51 At the time of the incident giving rise to the allegations made against the applicant, namely 12 August 1990, the applicant was residing in Forster and stationed at the Taree police station. He was not interviewed in relation to the allegations until after he left the Taree police station. 52 On 5 September 1995, the applicant was interviewed by officers from the internal affairs unit, Northern Region. The investigation was carried out as part of a disciplinary process. Some five months later the investigator made a finding that two charges (referred to in the profile) were sustained against the applicant. The first of those charges involved an allegation that the applicant induced a female person to engage in sexual acts upon him. The second charge concerned the applicant inducing a complainant to perform such acts with another police officer. 53 It is appropriate at this juncture to refer to the decision made by the Commission during the proceedings as to the non-publication of the identity of the persons who made the allegations against the applicant. The Commission made various non-publication and 'pseudonym orders' such that the complainants would be referred to in the proceedings as KB1, KB2 AND RS ("the complainants"). 54 The reasons for that decision were given on 9 November 1999 as follows: Having regard to the decision of the Commission in Ann Margaret Stonham v The Speaker of the Legislative Assembly of New South Wales in matter number IRC649 of 1999 published on 9 August 1999, I have decided, noting the consent of the parties to this course to continue the orders made yesterday as to the non-publication of the identity of the three persons who have been the subject of evidence in these proceedings, who have been designated for the purposes of the making of these pseudonym orders respectively the names or code names KB1, KB2, and, RS. In coming to that decision I should emphasise that the proceedings before the Commission, both in relation to section 84 of the Act and generally, are proceedings which should occur in public, and that a proceeding would only occur on a private or restricted basis where it is proven necessary for that step to be taken. I have in mind in particular the adoption by the Full Bench of the decision of Justice Schmidt in X v The New South Wales Department of Education , which is provided in the judgment in Stonham at pages 27 to 29 in that regard. In this case I have taken into account the consent of the parties as one matter going to the exercise of my discretion to so confine the proceedings. There are two other considerations which in my view require the making of non-publication orders. I note before giving those reasons that in the case of X v The New South Wales Department of Education and Training her Honour Justice Schmidt made such an order with respect to the student in that case. In the present matter I consider that the orders should be made additionally, firstly as suppression orders of this kind or character were made in the criminal proceedings before the District Court of New South Wales and, secondly, having regard to the fact that the three persons in question will be not called to give evidence in these proceedings, thereby effectively making them third parties to the proceedings and not having the opportunity to be heard in relation to this question or to be considered specifically in the context of the evidence that they may give in the proceedings. For those reasons I make the non-publication orders referred to yesterday. 55 The reference to complainant one in the profile is a reference to "KB2". It has been alleged since 5 September 1995 that KB2 performed oral sex upon the applicant on 12 August 1990. At that time KB2 was fifteen years of age. 56 It has not been alleged that either KB1 or RS performed oral sex on the applicant. It was suggested that RS performed oral sex on another officer, namely Mr Riley, who has since deceased. RS was seventeen years of age on 12 August 1990. The third officer alleged to have been at the police station on 12 August 1990 was David Bryce Wadsworth (who at the time held the rank of Senior Constable). It was not suggested that KB1 had oral sex with Mr Wadsworth or, for that matter, the applicant or Mr Riley. 57 On or about 9 November 1995 the applicant was charged with two counts of inducing a child to participate in child prostitution. The offences were laid under s91D(1)(a) of the Crimes Act 1900 . 58 Section 91D(1)(a) of the Crimes Act 1900 was relevantly in the following terms: (1) Any person who - (a) by any means causes or induces a child to participate in an act of child prostitution; ... is liable to penal servitude for 10 years or if the child is under the age of 14 years, to penal servitude of 14 years. 59 The applicant was committed for trial on 16 April 1996. In his submission to the Commissioner, the applicant called in aid of the findings of the magistrate in determining to commit him for trial. I shall set out below some of the salient aspects of the magistrate's findings: These proceedings are anachronistic in another sense, in the fact that the material upon which the prosecution relies, upon [sic] recollection of documentary evidence going back to 1990, justice delayed is justice denied. The reason for that is more than anything else is the failure of recollection after such a long period of time. One of the complainants in these proceedings was, as I understand it, fifteen years old at the time that these events took place or were alleged to have taken place. One can speculate on the propriety or otherwise of the decision to prosecute in these circumstances because the matters that Mr Scragg and Mr Meadley have drawn to attention manifestly demonstrate the difficulties which the prosecution confronts. The allegations which have been made against these two defendants are serious. They are particularly serious because they were, at the time, responsible for the custody of three young girls who had been arrested while in a stolen motor vehicle. They were not arrested by these defendants but by other police. The defendants responsibilities on the evidence were simply as custodial officers. The evidence that has been presented to the court in these committal proceedings suggests serious improprieties by [the] defendants towards these young persons and it suggests that they have taken advantage of these young women by seeking sexual favours in return for food. The evidence against Mr Wadsworth does not for one minute suggest that he was directly involved in taking any sexual advantage, the evidence suggests only that he was there and aware of what was alleged to have gone on and that he was ultimately responsible for bringing the food, which [was], according to the prosecution, the inducement to the three young women in the cell. Now, it is fundamental that the case against each defendant stands or falls initially on the credibility of the three young female complainants. The records and other information before the court suggests these three were far from model members of the Taree community. The inconsistencies in their evidence is manifest. There is certainly no clear indication about what time these events were said to have taken place. The insistence by the witness KB2 that she was arrested on the Friday could hardly be seen, however, as an indication of her lacking credibility. Her insistence seems to me to have been more than anything else a complete failure of memory, remembering again that she was fifteen years old at the time that these events were said to have taken place. How good would anybody expect the recollections of a fifteen year old to be after she had gone through the experience of being locked up even over one night in the Taree cells. Ms Wells is quite correct in her observation that if these three were fabricating a story, one would expect a story far more precise and consistent in it's detail of what is alleged to have taken place. It is all too frequently the case in criminal proceedings the defendants seek to find differences between the evidence, the police giving evidence for the prosecution or other prosecution witnesses, it leads t[o] some odd results, particularly presentation of police evidence. The fact is, experience in the courts show that inconsistency in some respects tends to enhance credibility simply for the reason that if a story is to be concocted then it will be obvious that certain elements of the story are exactly the same. These three young women, in their evidence, did not come close to achieving precisely the same accounts. Certainly, KB2, the last of the three young women to give evidence was a very poor witness. Even now she appears to me to be a person of considerable immaturity and it is very difficult to determine the degree of her distress in the witness box was anything other than a reflection of that immaturity confronted with the extremely difficult situation of having to give evidence of a graphic and unpleasant kind in proceedings like this. As I've said it's clear from the material that there are grave inconsistencies in the accounts given by the three young girls. As I've also said, I think the prosecution has a difficult task with this matter, the events occurring some six years ago, but what I cannot get past at the moment is that fundamentally the evidence of the three women is of the same kind as to the events which are said to have taken place in the Taree cells on or about 12 August 1990. It is, in my view, a matter of the credibility of the three balanced against whatever the defence can make from the inconsistencies in their accounts, but I don't believe that at this stage the law allows me to form a conclusion a jury properly instructed would not be likely to convict the defendants. I could not put it that high and while I have my doubts about the desirability of the matter going beyond this stage, that is a matter for public policy I suppose, for the Director of Public Prosecutions, but I am not able to reach the positive conclusion required of me under S41(6) were I to be of a mind to discharge these defendants and because I can't reach that conclusion I will commit them for trial. 60 The applicant was subsequently suspended from duty without pay and stood trial on 8 December 1997. Judge GHT Armitage QC of the District Court of New South Wales presided over the trial. Senior Constable David Wadsworth was a co-defendant at that trial. 61 During the course of the trial Judge Armitage directed the jury to acquit Senior Constable Wadsworth. On 18 December 1997 the applicant was acquitted by the jury on the two counts charged. 62 On 29 July 1998 Judge Armitage issued a certificate under the Costs in Criminal Cases Act 1967. The applicant pointed to this certificate as significantly in his favour given the opinion that was required to be formed by the District Court in order for the certificate to be issued. The relevant aspect of the opinion formed by the District Court in relation to the prosecution was as follows: (a) If the prosecution had, before the proceedings against the said [the applicant] were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute proceedings and; (b) That any act or omission of the said [the applicant] that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 63 The profile and the notice were prepared prior to the issuing of this certificate, but after the acquittal of the applicant. Procedure Adopted by the Commissioner General 64 Broadly speaking, the procedure adopted by the Commissioner consisted of: 1. A police officer was identified as a person who may warrant action being taken pursuant to s181D of the Act; 2. A procedure was then adopted to assist the Commissioner in determining whether or not to issue a notice pursuant to s181D(3)(a) of the Act. This involved a person entitled an 'analyst' preparing a profile which was then provided to the Commissioner (after some scrutiny, in this case, by Detective Inspector Champion). A recommendation may accompany the profile. The Commissioner played no role in the preparation of the profile and, at least in this matter, did not generally receive the materials relied upon by the analyst; 3. A notice pursuant to s181D(3)(a) or alternatively a performance warning notice may then issued (as earlier noted in this case a s181D(3)(a) notice was issued); 4. If, as in this case, a notice pursuant to s181D(3)(a) of the Act was issued then the police officer was given 21 days to respond; 5. Upon receipt of the officer's submission, an analyst prepared a response which, together with the profile and submissions, were provided to the Commissioner for the purposes of considering whether to issue an order. A recommendation may accompany the materials forwarded to the Commissioner; 6. In this matter the Commissioner reached a decision, gave reasons for same in writing and then made an order pursuant to s181D which is served on the police officer. The Profile 65 Detective Inspector Allen Maurice Champion, who was attached to the police internal affairs unit, was provided the applicant's name as "a candidate for Commissioner's confidence action". He then assigned the task of preparing the profile to a member of the internal affairs staff. He gave instructions to prepare a summary of the applicant's service history, a summary of facts involved in the charges that had been proffered against the officer and the action taken by the Police Service. 66 A written procedure has been introduced by the Commissioner to deal with processes concerning s181D of the Act. That procedure is contained within a document entitled "Commissioner's Confidence Process: Section 181D of the Police Service Act 1990". This is the standard operating procedure for handling such matters. The standard operating procedure provides for the nomination of a police officer who may warrant consideration under the provisions of s181D. An initial assessment is then made within the Police Service as to whether the matter should be progressed. This is undertaken by a review team. If the review team decides to progress the nomination of a police officer a profile, a notice pursuant to s181D(3)(a) and a performance warning notice is prepared. 67 The operating procedure established the following standards for the development of the profile: 4.1 A Profile is a critically and clinically researched document that details the: Officer's service history; Criteria under which they are being considered (for example, conduct and integrity); Facts relating to the contemporary issue and linked sustained matters being considered including Police Service action(s); Officer's current employment status ... 68 At the time of the preparation of the profile concerning the applicant there was not a record kept of the process of critically and clinically researching the matter. The methodology was changed in or about early 1998 after the assessment of his matter. 69 The standard operating procedure does not lay down any specific criteria as to the assessment of factual issues. The profile is prepared by analysts. These persons consist of a mixture of both administrative and sworn police officers, some of which had not been trained in any investigative work. They examine the material provided to them to prepare the profile. They are required to consider bona fides of the material supplied and to weigh up competing evidence, including the consideration of corroborative and scientific evidence. Where there are conflicts between versions of events the analysts are instructed to "resolve the issue as best they can". However, in this case Detective Inspector Champion conducted a final review of the profile before it was sent to the Commissioner. He examined whether the material was of an appropriate standard to progress to the Commissioner and whether it was in a suitable style having regard also to grammatical and typographical accuracy. 70 The analyst preparing the profile in relation to the applicant received material contained in what is described as a complaints file. exhibit T in the proceedings contained in paginated pages four to thirty two, some of the material contained within the complaints file. An objection was made to the admissibility of exhibit T. For the purposes of the analysis of the procedures which I am presently undertaking, I have determined to admit into evidence exhibit T. It is relevant to ascertaining those materials which were before the Commissioner or the analyst engaged in the s181D(3)(a) process. I shall return to the question as to whether these documents should be admitted as to the truth of any allegations contained within them later in this judgment. 71 It is clear from exhibit T that the analyst had received a bundle of documents which consisted of guide sheets setting out certain offences which were alleged to have been committed by the applicant together with a summary of facts. There was also contained within the documents statements by KB1, KB2 and RS. These statements were used in the criminal prosecution of the applicant. However, the analyst was not provided with the transcript of any part of the criminal proceedings. Nor was the analyst provided with the transcript of the committal hearing or the proceedings before Judge Armitage of the District Court of NSW. The trial transcripts were obtained at a later time, after the decision to remove the applicant was made. On the evidence of Detective Inspector Champion, there was no reason why the trial transcripts could not have been obtained at an earlier time. The analyst did not prepare any documents setting out any inconsistencies existing between the versions of the complainants. The Notice 72 A document was forwarded to the Commissioner titled "Commissioner's Checklist". This document verified that the Commissioner had regard only to the profile in deciding to issue the notice. It also indicated that the Commissioner had regard to the grounds set out in a draft notice (which ultimately become the grounds contained within the earlier notice set out in this judgment). 73 A memorandum from Detective Inspector Champion was forwarded with the checklist. The Detective Inspector recommended that the Commissioner consider issuing either a "181D Notice" or, in the alternative, a "Performance Warning Notice". 74 The only information the Commissioner received, for the purposes of determining whether or not he should issue a notice pursuant to s181D(3)(a) of the Act, was the profile which was prepared in the foregoing manner. The Commissioner was not, therefore, advised of the evidence given by the complainants at the committal or the trial, including whether there existed inconsistencies in the evidence of the complainants given at the trial. He was not advised of any observations made by the magistrate at the committal hearing. He was not advised as to whether the co-defendant, Mr Wadsworth, had been acquitted by direction or had given corroborating evidence in favour of the applicant. Submission by the Applicant 75 The applicant made a response to the notice. This response consisted of a submission together with some attachments. The primary elements of the submission were as follows: (a) The applicant emphatically rejected the allegation that he had in any way acted improperly at the Taree Police Station on 12 August 1990. (b) He was found not guilty of two criminal charges. (c) The investigation into the allegations took place some five years after the date in which they were alleged to have occurred. (d) Prior to the investigation the applicant had some knowledge of the allegations because of the suicide of Mr Riley. (e) The statements made by the applicant in a record of interview conducted on 5 September 1995 were true. (f) During the trial the applicant was vigorously cross-examined and it may be implied that the jury found him a witness of credit. (g) During his police service there were no adverse findings of a disciplinary nature made against him. The applicant had no criminal record. 76 The applicant attached to his submission a number of documents consisting of the following: (a) Record of interview between Detective Inspector Shepherd and the applicant at Mudgee Police Station held on 5 September 1995. (b) The findings of the magistrate at the committal proceedings. (c) A transcript of the applicant's evidence in the District Court trial. Response to Applicant's Submission 77 Following the receipt of the applicant's response a member of the Internal Affairs staff prepared a response to the applicant's submission. 78 The document was in the following terms: Senior Constable Van Huisstede has provided a response in relation to the issues identified on the Notice served upon him on 19 March 1998, with the assistance of his solicitor, Mr Ken Madden. He states that his response is prepared on the basis of an assurance given to his solicitor that the Police Service has complied with s181E(3) of the Police Service Act . Section 181E(3) states that "it is the duty [of the] Commissioner to make available all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in s181D(1)." It should be noted that this particular section of the Act relates to the review of the s.181D Order, applied by the Industrial Relations Commission, on the grounds that the officer's removal is harsh, unreasonable or unjust. The issue identified on the Notice revolves around the allegation that Senior Constable Van Huisstede was involved in the inducement of two minors to participate in an act of child prostitution. As a result of the receipt of the Officer's response, the response and the facts contained within the profile were reviewed. No deficits pertaining to the facts contained within the Profile were identified. The information contained within the Profile, the Officer's response and its attachments, should be relied upon in determining this issue. 79 The reference to deficits in the second last paragraph of this document was explained by Detective Inspector Champion in his evidence as follows: Q. Is that a term commonly used in the section 181D process about there being deficits? A. No, it is not something that is commonly in use. It was used by the analyst who conducted the review. Q. Do you remember in examination in chief you were the one who actually the one who used exactly the same expression before you were asked expressly about page 8 of Exhibit A? A. Yes, I read it off the actual page. Q. Is it an expression that is commonly used or not? A. No. Q. You do not really know what the analyst meant to convey by the note, deficits pertaining to the facts within the profile were identified as set out on page 8 of Exhibit A? A. My interpretation is that that is the purpose of the analysis, is to establish the applicant in his response has provided evidence that negates any primary issue in the material, which originally went to the Commissioner and formed the ground on which he is facing his determination or if there is something identified - that would be what we are talking about here. Q. You said your interpretation. Have you seen that expression used before in s181D process analysis of responses? A. Yes, I have. Q. In giving your interpretation, do you actually know in what way the analyst used it on page 8 of Exhibit A? A. Do I know? No, I don't know. I take it that was the use of that particular phrase. 80 Prior to this document being forwarded to the Commissioner an advice was obtained from a solicitor engaged by the Police Service. Order Making Process 81 Detective Inspector Champion forwarded a memorandum to the Commissioner dated 30 September 1998. This document was accompanied by a checklist in the following terms: COMMISSIONER'S CHECKLIST RE : Senior Constable Ian John VAN HUISSTEDE In accordance with Section 181D of the Police Service Act , 1990 in making my decision to issue an Order I have relied upon the following material; * PROFILE * NOTICE * OFFICER'S RESPONSE * ANALYSIS OF THE RESPONSE COMMENTS: I have considered the grounds set out in the Notice and have not taken into account the following: [No entry appeared in this section] The reasons for my decision to issue an Order are as follows: Please see attached. 82 The memorandum contained the following comments: Senior Constable Van Huisstede, with the assistance of Walter Madden and Jenkins solicitors, has furnished a written response which is attached. The profile, of the officer's response, together with an analysis of the response are provided to the Commissioner who should now consider that material and provide advice as to whether he determines to remove the officer and issue an Order, or considers a Performance Warning Notice appropriate. The Commissioner should endorse on the attached checklist that he has considered the material and make comment as to the reasons he is relying upon for removal and grounds that he has not taken into consideration. The appropriate document will be provided to the Commissioner for signature upon his determination. 83 Thus, the Commissioner had before him for the purposes of determining whether to remove the applicant the profile, the notice, the applicant's submission and the analysis. There was no other material before the Commissioner. 84 The Commissioner did not receive a draft of the reasons for decision. This was prepared by the Commissioner himself. Materials Received by the Applicant 85 During the course of the aforementioned process the applicant received from the Commissioner the profile, the notice, the Commissioner's reasons for decision and the Order. He did not receive a copy of the materials which were examined by the analyst in preparing the profile. Furthermore, he did not receive any materials concerning public or community reaction to the allegations made against him. Nor was he advised that the Commissioner would take into account these considerations in his Reasons for Decision. Information and materials not considered by the Police Commissioner 86 Mr Docking submitted that the Commissioner's decision was uninformed because he did not have regard to the following: (1) The New South Wales Police Service brief of evidence, the committal depositions or the District Court trial transcripts. (2) The inconsistencies in the various versions of the three female persons. (3) Dishonesty of the three female persons. (4) The nature of the evidence of the three female persons as found by Judge Armitage in his decision to issue a cost certificate. (5) The corroboration of Mr Wadsworth for the applicant's account and denials. 87 I shall now turn to the respective submissions of the parties as to these contentions and my findings of fact in relation to same. Brief of evidence, committal dispositions and trial transcripts 88 It was submitted on behalf of the applicant that the Commissioner did not consider the brief of evidence of the criminal proceedings, the criminal depositions or the District Court trial transcripts even though these documents were available to him. Mr Willis submitted that the analyst who prepared the profile did receive the brief of evidence although these documents were not considered by the Commissioner. The respondent conceded that the committal depositions and the District Court trial transcripts were not considered by either the analyst or himself. The only record of the criminal proceedings considered by the Commissioner was the transcript of evidence of the applicant at the District Court trial, which transcript came to the Commissioner's attention as an annexure to the applicant's submission. The analyst apparently considered the brief evidence which contained the statements by the complainants. However, the profile does not provide any description of this material except perhaps by the making of the statement contained under the heading "Facts" appearing in the profile as follows: Gave corroborating evidence that they performed oral sex on Senior Constable Van Huisstede and other officers in return for the food. 89 So expressed, the description is not consistent with any of the allegations made against any of the police officers as at no time was it suggested that the three girls performed oral sex on the police officers. The profile does not record any statement by the applicant as to his account of the allegations except to note that he was found not guilty of the criminal charges. 90 In my view, the committal transcripts and the District Court transcripts could have been obtained for the purposes of the Commissioner considering whether to remove the police officer pursuant to s181D of the Act. Detective Inspector Champion indicated in his evidence that the material had not been obtained because it was simply not the practise to do so. Inconsistencies in the Various Versions of the Complainants 91 It was submitted for the applicant that inconsistencies in the versions of the three female persons were not considered by the Commissioner although the applicant had pointed to the Local Court's criticisms of the complainants (and this information was before the Commissioner). In reply, Mr Willis submitted that the Commissioner did have knowledge of the inconsistencies in the various versions of the three complainants because the applicant had included the decision of the Local Court Magistrate at the committal proceedings with his submission to the Commissioner. 92 At no stage did the Commissioner consider directly the evidence of the three persons. He could not therefore have directly considered whether and to what extent there existed inconsistencies in the accounts of their complaints. Nor did the Commissioner have the benefit of any commentary by an analyst or Detective Inspector Champion as to the existence or otherwise of any such inconsistencies. 93 Detective Inspector Champion's evidence as to the provision of information to the Commissioner concerning inconsistencies in the versions of events by the complainants to the Commissioner is instructive. 94 Detective Inspector Champion stated in cross-examination that the reference in the profile to a finding of "not guilty" at the trial was an adequate way of raising any conflict in the evidence concerning the applicant. However, he also conceded that commonsense and good police practice in an ordinary criminal investigation would be to analyse conflicts by drawing up a table comparing the competing versions. Similarly, it would be commonsense and good police practice for information of that type to be provided to the Commissioner to assess whether to issue a notice under s181D of the Act. 95 The Detective Inspector indicated that the Commissioner had no information before him as would permit him to make comparisons or to conduct an analysis as to competing versions of events regarding the allegations against the applicant, although he had the observations of the magistrate before him. The Commissioner had called for such information in other cases arising under s181D of the Act but had decided not to make such a request in this matter. 96 The Commissioner did not seek or obtain information as to the accounts given by the complainants after the receipt of the Local Court's observations at the committal trial (accompanying the applicants submission), even though, as the Detective Inspector recognised, the observations made by the Local Court magistrate were a cause for concern as to the veracity of the allegations made. Detective Inspector Champion considered that the magistrate's warning indicated a need for general concern and that in order to draw more specific conclusions as to the Local Court's observations it would be necessary to know, for example, in the case of the evidence of KB2, "why the magistrate thought the witness to be a very poor witness". 97 This would indicate, in my view, a recognition by the witness of a need for a more detailed examination of the background of the Local Court's observations in order to reasonably reach conclusions as to allegations made against the applicant by the complainants. 98 Detective Inspector Champion resisted the suggestion that commonsense and good police practice had not been administered in the process applied in deciding whether to remove the applicant pursuant to s181D. He also resisted the proposition that the Commissioner had not applied the Police Service's own standard in any such determination. However, he did make a number of concessions as to deficiencies in the information which the Commissioner relied upon in reaching his decision to remove the applicant from service as a police officer. 99 He gave the following evidence: Q. We know from your evidence already that the Commissioner failed to take into account the circumstances of the case, that there were inconsistencies, didn't he? A. Yes. Q. So according to your own standard, and when I say yours I mean the police service's standard, the Commissioner fails, doesn't he? A. Just referring to the previous question, you said the Commissioner failed to take into account their are inconsistencies. I refer to my answer previously. The Commissioner was advised that the officer was tested at the trial. There is no reference there to an analysis of inconsistencies between the evidence of the witnesses. Yes, I would agree with that. Q. Well, in terms of what you have accepted for both investigating criminal offences and the s181D process is commonsense and good police practice, you have accepted that never happened for Mr Van Huisstede, to your knowledge, concerning the inconsistencies? A. That the inconsistencies--are you saying that the inconsistencies were never considered? That was the question, was it? Q. That is what I am getting at and according to your evidence Commissioner Ryan never considered the inconsistencies that you have accepted is good police practise and commonsense? A. Yes, I accept that. Q. When you say you accept the Commissioner, in effect, failed his own standard, that is right, isn't it, because he did not take into account all the circumstances involving Mr Van Huisstede? A. The Commissioner did not, as you said, refer to a table of inconsistencies. Q. Using your own words, and I mean the police, the Commissioner did not take into account all circumstances of the inconsistencies in the case involving Mr Van Huisstede, did he? A. All of the circumstances, yes, I would agree with that, all of them. Q. And it follows, using the police service's own standard, that the Commissioner for Mr Van Huisstede was not extremely careful and diligent [sic] in regard to any determination in the s181D process for Mr Van Huisstede? A. No, I would not agree with that ... 100 Further, the Detective Inspector gave the following evidence: Q. Look at the allegations made against Mr Van Huisstede. Would you in your ordinary experience as an investigator or section 181D officer, accept grave inconsistencies in the accounts given by the three young girls, must be deficits pertaining to the allegations? A. Yes, I would say yes. Q. There is no other way one could characterise it for the allegations of Mr Van Huisstede other than it being a deficit pertaining to the facts? A. The facts in general? No. I do not consider it is a deficit in relation to the material set out in the paginated document 59. Q. Do you consider it a surplage to the allegations about Mr Van Huisstede? A. A surplage? Could you give me another view. Q. A necessary fact for the Commissioner to consider, that the Magistrate had expressed the view there were grave inconsistencies? A. No, it wasn't necessary, and based on that the Commissioner was advised that ultimately at the end of the criminal prosecution, that the applicant was discharged and found not guilty. Q. But the Commissioner was missing all the building blocks, was he not, between the committal and the discharge, for example the inconsistencies in the evidence of the girls? A. Yes. Q. And that is an essential building block, if someone is to express an opinion, is it not, for those sorts of most serious allegations? A. Yes, you could view it as that. Q. There is no other way to view, is there, for the purpose of considering these types of allegations? A. I think it has certainly some relevance to it but I think it is far more relevant on this basis, that the Commissioner was advised of the outcome of the trial, rather than what occurred on the way through. Q. But in your experiences, when someone is looking at the outcome of a trial, an ordinary commonsense approach is to look at why that outcome occurred? A. Yes. Q. One issue someone would look at concerning the outcome of the trial was whether there was any deficits in the evidence of the Crown? A. Yes. Q. In other words the deficit could be inconsistencies in the evidence of the accusers? A. Yes Q. Another deficit would be whether the accusers were acceptable as credible witnesses? A. Yes. Q. The opposite to a deficit, from at least a Crown point of view, would be whether the accused, being Mr Van Huisstede, was acceptable as a credible witness? A. Yes. Q. It would be on the cards that he must have been accepted by the jury of twelve as a credible witness, to be acquitted? A. Yes. Dishonesty of Three Female Persons (the Complainants) 101 It was submitted on behalf of the applicant that the Commissioner was not entitled to ignore material of which he had actual or constructive knowledge, namely the dishonesty of the three female persons. It was submitted that this information had a direct bearing on the justice of the decision made. In reply, Mr Willis submitted that whilst particulars or respective records of the complainants was not available to the Commissioner, it was clear from the material that he had before him that they were not of unblemished character. In this respect, it was submitted that it was central to the allegations that the three complainants were being held in custody at the Taree Police Station at the relevant time. Furthermore, it was submitted that the decision of the magistrate referred to the complainants being arrested while in a stolen motor vehicle and that the records and information before the court suggested that the complainants were far from model members of the Taree community. 102 It is clear that actual records of the criminal history of the complainants was not taken into account in the process leading to the making of the s181D order. This material was readily available to the Police Service. 103 KB2 had a history of convictions in the Children's Court, which are referred to in the criminal records produced by the Police Service in these proceedings as including "break, enter and steal", "malicious damage", "trespass" and "unlawful use of a conveyance". Each of the complainants had criminal histories involving dishonesty offences. Detective Inspector Champion agreed that dishonesty offences do have the likelihood of affecting whether the information provided by the complainants should be accepted. He also accepted that commonsense and good police practise would see information as to the criminality of complainants presented to the Commissioner as part of his deliberations pursuant to s181D of the Act. Cost Certificate 104 It was submitted for the applicant that the nature of the evidence of the complainants at the District Court trial was found by Judge Armitage, QC to be such that there was not a reasonable basis to institute criminal proceedings. It was submitted on behalf of the Commissioner that there was no evidence that he had any knowledge of the fact that the applicant had applied for, or received, a certificate from the District Court. The applicant did not refer to this fact in his written submissions. The Director of Public Prosecutions may have had that knowledge, however, that cannot be construed as constructive knowledge of the respondent. It cannot be maintained that the respondent failed to take this into account. 105 Detective Inspector Champion, in his evidence, considered that the existence of a cost certificate would be a matter that should be taken into account in assessing whether a s181D order should be made. 106 I consider that the certificate issued under the Costs in Criminal Cases Act 1967 would have been a matter relevant to be taken into account in assessing whether to remove the police officer pursuant to s181D . The Commissioner did not have this information before him in making his decision. The certificate was issued after the notice and submission by the applicant to the Commissioner. It was issued before the making of the order and the analysis of the applicant's submission. In these circumstances, I do not consider that this Commission should form any adverse view as to this aspect of the procedure adopted by the Commissioner for failing to have regard to the certificate. However, the certificate appears to be in that class of material which is now appropriate to be considered as part of the review before the Commission, notwithstanding that it was absent from the deliberative processes engaged in by the Commissioner. 107 It should be noted that Detective Inspector Champion, in cross-examination, conceded that as a general proposition successful cost applications in criminal matters show that there were deficiencies in the prosecutor's case and that it would be rare for such a certificate to issue. The certificate would typically issue if there were inconsistent versions given by the accusers at the trial. Corroboration of Mr Wadsworth 108 It was submitted for the applicant that the failure of the Commissioner to consider the corroboration of Mr Wadsworth for the applicant's account meant that the Commissioner made an uninformed decision. 109 Mr Willis in reply, submitted that the Commissioner had no knowledge of the corroborative evidence given by Mr Wadsworth. Further, the applicant had not relied upon this evidence in his written submission. It was also submitted that, although the respondent knew that another police officer stood trial, he did not know what was actually given in evidence by that person or that the evidence was corroborative in nature. 110 The evidence of Mr Wadsworth given at the District Court trial is in evidence in these proceedings. At the trial, Mr Wadsworth denied that he attended with the applicant to engage in any of the activities alleged by the complainants. In short, the evidence of Mr Wadsworth corroborated the evidence of the applicant in the applicant's denial of the allegations made against him. Publicity and Community Concerns about the Trial 111 Mr Docking submitted that the Commissioner did not confine himself to rules of reason and justice as he relied upon, in his reasons for decision, unknown publicity about the trial and unknown details of alleged community concern. Mr Willis, in reply, submitted that, although not clearly expressed, it is apparent that the Commissioner, in stating his regard for the publicity and the community concern, had in mind the need to protect the reputation of the Police Service and maintain public confidence in it. It was further submitted that these are issues which went to the public interest and were therefore relevant to his decision. 112 However, in his submissions, Mr Willis conceded it would not be appropriate for the Commissioner to take into account mere public agitation about an event for the purposes of determining whether to make an order under s181D. He also properly conceded, in my view, that the taking into account of such a consideration would be unfair to the applicant in the present proceedings. 113 In his evidence, Detective Inspector Champion identified that there was no material before the Commissioner or the analysts as to the nature of the publicity attended upon the trial or community concern. Furthermore, he conceded that the applicant was not told that the Commissioner intended to take into account the publicity surrounding the trial or the community outrage in assessing whether or not to remove him. The evidence of Detective Inspector Champion, as to the reliance placed by the Commissioner upon this material, is significant and hence I will set it out in full: Q. Do you condone and support allegations of incredible publicity being used in the s181D process? A. Do I condone or support allegations of publicity being used? No. Q. Why did you not stop Commissioner Ryan using that allegation in Mr Van Huisstede's matter, about incredible publicity? A. Because that was the Commissioner's decision and that was the Commissioner's reasons. Q. If he came to you for advice would you say that it is an inappropriate or improper matter to be used as part of the reasons justifying a section 181D process? A. On the basis that it wasn't the matter that the applicant was called upon to address, I'd say it is inappropriate. Q. So you accept no procedural fairness to Mr Van Huisstede in this allegation of incredible publicity was offered by the Commissioner? A. Yes. Q. Putting aside the procedural fairness aspect, I want to know, given your position, have you ever permitted in any other section 181D process the use of an allegation of incredible publicity to justify an opinion on an allegation that someone should be removed from the Service? A. Have I ever allowed that to occur? No. Q. But you would not let it occur, would you, at any stage if it was up to you in the section 181D process? A. No. Q. You agree with me? A. Yes. Q. Also, you might see on page four of Exhibit A there is a reference of shock and horror in the community? A. Yes. Q. Do you also accept that procedural fairness was never offered to Mr Van Huisstede concerning the Commissioner's purported reliance on that aspect? A. Yes. Q. In any other section 181D matters have you permitted, as part of the justification of any such section 181D processes the use of the allegation concerning shock and horror in the community? A. No. Q. It is not something you would consider to be appropriate or fair to you to use at any stage in the section 181D process, if it was up to you? A. In that basis or in that context, no. Q. There would never be a context or a basis if it was up to you, would it? A. Perhaps if public outcry, a particular issue was to become an issue in the question of the officers, something which should be put to the Commissioner and that was identified as an issue to which the officer may respond and address, under those circumstances it may be appropriate but it is very much a case by case basis. Q. The only time you would have is when an officer is convicted or pleaded guilty to a matter? A. Yes. Q. Which is the very opposite of what happened in Mr Van Huisstede's case? A. Yes. Q. Because you would appreciate that an allegation of shock and horror in the community in Mr Van Huisstede's case is out there in the ether? A. Yes. Q. In other words you would accept that it is impossible in this reinstatement case for the Police Service or the Commissioner to justify the allegation about there being shock and horror in the community? A. Yes. Q. Because there is not a shred of record on the Commissioner's file to back up that allegation, is there? A. No. Evidence as to Acts Alleged to be Committed by the Applicant General 114 The Commission has earlier mentioned the applicant's submission as to "substantive unfairness" and the respondent's submission in reply. The respondent also submitted that the evidentiary burden which fell upon the respondent was that described by the Full Bench in Bigg (No.2) . That is, once the applicant produced evidence which suggested that the legislative requirements had not been followed, the evidentiary burden shifted to the respondent to demonstrate that the requirements had been observed in a manner described by Kitto J in R v Anderson; Ex Parte Ipec Air Pty Limited (1965) 113 CLR 177 at 189. I will return to the respondent's submissions as to the legislative scheme shortly, but for present purposes it should be noted that the respondent also submitted that even if the profile was deficient, the Commissioner had sufficient information to allow him to properly exercise his discretion. Evidence of the Applicant 115 In his statement of evidence, the applicant gave evidence as to the background of s181D proceedings, including criminal charges being brought against him, his work and personal circumstances after his suspension and ultimate removal from office and his history in the Police Service. 116 He also gave the following evidence: (1) That his sworn evidence at his trial given on 15 December 1997 is a true and accurate account of what happened during his shift at the Taree Police Station on 12 August 1990; (2) That his submission to the Commissioner during the s181D process is "the truth"; and (3) That he has always maintained that the allegations made against him were untrue and that he still maintained that he had "done nothing wrong". 117 As earlier noted, the applicant in his submission to the Commissioner stated that he denied the allegations made by the complainants. He further stated that the allegations made against him were not true. 118 In his evidence in chief, given at the District Court trial on 15 December 1997, the applicant gave the following evidence: Q. Mr van Huisstede, did you at any time on the weekend of 11 and 12 August 1990 make any offer of sexual conduct to KB2, RS, or KB1? A. No, I did not. Q. Were you present when any such offer was made? A. No, I was not. Q. Did you participate in any sexual activity with Ms KB2? A. No, I did not. 119 In addition to this evidence in chief the applicant relevantly gave other evidence in chief at the trial as follows: (1) whilst attached to the Taree Police Station during August 1990, the applicant resided in Forster located some 30km from the Police Station. The travelling time from his home to the Taree Police Station was approximately half an hour. It should be noted that in his statement of evidence the applicant indicated that on 11 and 12 August he was living in Forster and that on 11 August he had a rest day and performed station duties from 3pm until 11pm on 12 August. Additionally at the trial, the applicant indicated the following as to his activities prior to 12 August: (i) from Thursday 2 August to Wednesday 8 August 1990 he was performing night work from 11pm to 7am. Thus, his night shift completed at 7am on Thursday 9 August 1990. (ii) the applicant did not work on the balance of the day on 9 August or on Friday 10 August (which was a rest day). (iii) the applicant also had a rest day on Saturday 11 August 1990 and indicated that it was very unlikely that he visited the police station at Taree on that day. (iv) he also indicated that he attended the station to commence work at about 10 minutes prior to the start of the shift. (2) he had a nickname of "Efram". (3) as at August 1990, he knew KB1 as a result of performing police duties and knew of KB2 and RS but had no dealings with them and had not spoken to them. (4) the applicant had no independent memory of KB1, KB2 or RS being in the cells at Taree Police Station when he commenced work on 12 August 1990 or that he had to check on those persons as prisoners. (5) it was very likely that on 12 August the applicant left the Taree Police Station around 11pm. Leaving the station around completion time was his normal practice. 120 In cross-examination at the trial, the applicant denied the allegations put against him and, in particular, denied that he suggested that the complainants be given food in exchange for sexual favours and, in particular, oral sex. He denied that one of the complainants had oral sex with him and another of the complainants had oral sex with Mr Riley on 12 August 1990. Additionally, during cross-examination, the applicant gave evidence that, upon reviewing the custody records for the Taree Police Station, KB1, KB2 and RS were in custody on Sunday evening, 12 August 1990. 121 The applicant gave evidence in these proceedings on 8 November 1999. He gave evidence that his statement of evidence was true and correct to the best of his knowledge and belief. In summary, he gave the following evidence in chief: (a) he had sought access to relevant records such as occurrence pads, telephone message pads, rosters and car diaries but those records had been destroyed by the Police Service. The occurrence pads were used on a daily basis and would have outlined anything that was happening on a certain day; (b) he had no independent recollection if Mr Wadsworth worked on 12 August 1990. From the records of the trial, he ascertained that Mr Wadsworth had worked on the day during the 11pm to 7am shift, that is the night shift; (c) Mr Wadsworth had given evidence as a co-defendant at the trial. Judge Armitage QC had directed that a verdict of not guilty be entered in favour of Mr Wadsworth; (d) a contractor had provided meals to those in remand at the Taree cells over the weekend during which the incidents were said to have occurred. 122 The applicant was cross-examined on 8 November 1999. The following relevantly emerges from that cross-examination: (1) no complaint was made by the three complainants until they were interviewed in 1995, at which time an investigation was commenced; (2) in relation to that allegation, the applicant was interviewed on 5 September 1995 by Inspector Sheppard. It was identified that the applicant had read the statements made by the complainants and the allegations made therein. However, it was not suggested in cross-examination that the allegations in those statements or, more generally, the allegations that had been made against the applicant were true, although it should be noted that the following question was asked and answer given: Q. I take it that whatever these girls say that involves you in any impropriety is still not true? A. That is correct. I also note that the applicant was asked whether the evidence he gave at the trial was the truth. He answered "Yes"; (3) the records held by the Police Service, in relation to 12 August 1990, showed that the duty performed by the applicant on 12 August was directly related to the prisoners in the cells; (4) the applicant did not know why KB1 or KB2 would be untruthful or implicate him in such a serious matter; (5) the applicant did not know, prior to being interviewed by Inspector Sheppard, of any conduct of the type complained of taking place in the Taree Police Station; (6) it was unusual for three young women to be held in the cells at the Taree Police Station over a period of three days; (7) a record was entered only if something had occurred out of the ordinary. The telephone diary record would have assisted in the applicant ascertaining the persons who were working on or about the days in question. The fact that it was unusual for three young girls to be held in the police station for three days did not jog the applicant's memory as to the circumstances applying on this particular occasion. 123 The applicant stated in re-examination, by reference to his police notebook, that he had a rest day on 10 August 1990. He also confirmed from that record that he had a rest day on 11 August 1990 and did not commence work on 12 August until 3pm. The witness was shown a copy of his notebook and confirmed that he had actually recorded the times he worked or did not work on the three days in question. He also indicated that it had not been suggested to him by anyone that he did not have rest days on 10 and 11 August. Upon tendering the notebook, the following submissions were made respectively by Mr Docking and Mr Willis : [Docking]: I tender a photocopy of the notebook. I do not press it, the writing which Mr van Huisstede has said is not his. [Willis]: I have not seen it before. I have no objection to it, Your Honour. 124 The applicant also confirmed in re-examination that he had a changeover day on 9 August, that is, he ceased work at 7am and did not carry out work for the remainder of that day. The applicant also denied the truth of the allegations contained in the statements made by the complainants. Further Cross-Examination of the Applicant 125 At the close of the proceedings on 10 November 1999, Mr Willis made an application to have the applicant recalled for further cross-examination. He made the following submission: My client's position, it is obvious from the reasons provided for removing the applicant from the compulsory service, does not accept the denial given by the applicant to the allegations made against him. I did not put to the applicant in cross-examination either that the incident, involved in the allegations against him, in fact, occurred or that he was untruthful in his denials about it and my application in this brief form at the moment is that, given the opportunity, to have him recalled simply to put those questions to him. I reasonably anticipate what his responses to those questions will be, and I would not expect that that is going to further complicate the hearing of the matter [or] the programme of the hearing of the matter by a necessity for any other evidence to be called. I make the application at this stage by way of flagging it only. It is perhaps an application I can address to your Honour by way of written submissions to be provided to your Honour at the same time that I provided the written submissions on the admissibility of the documents. 126 Mr Willis put that the respondent wished to put in cross-examination that the acts complained of by KB1, RS and more particularly KB2 did, in fact, occur and that the applicant's evidence denying that they occurred, or that he had no knowledge of them, was untrue. 127 It was submitted that it was necessary for the respondent to put those questions to the applicant to formally comply with the rule in Browne v Dunn (1894) 6 R(HL) 67. It was further submitted that it was clearly the case for the respondent that the applicant had not been truthful. Further, in his reasons for decision, the Commissioner had stated that he tended to believe the allegations that were made rather than the account by, and denials of, the applicant. 128 It was submitted that if the respondent was not permitted to put the questions to the applicant, then the applicant would be entitled to ask the Commission to draw an inference adverse to the respondent's case. Alternatively, and relying upon Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 225, it was put that the respondent had, by nature of the conduct of his case, made it sufficiently clear that the evidence as a whole would be contested, and therefore, no adverse inference could be drawn. 129 The applicant opposed the application to have the applicant recalled. It was submitted that the respondent had breached the rule in Browne v Dunn. That rule is a rule of conduct which is essential to fair play at a trial and a fair dealing with witnesses. It was submitted that the respondent had not given a significant reason for not cross-examining the applicant upon the truth of the allegations made against him. It was further submitted that the Commission has a discretion to exclude the further evidence because there had occurred a breach of the rule in Browne v Dunn. It was further submitted that if the Commission exercised its discretion to permit the recall of the applicant then it would be impermissible for the respondent to positively suggest that the applicant had committed the alleged wrongdoings. This is so as the respondent did not propose to call any witness in support of a submission that the applicant had perjured himself. This submission was advanced on two bases: (i) relying on the decision in NSW Bar Association v Kalaf (unreported, Court of Criminal Appeal, 11 October 1988) it was submitted that the Commission could not ordinarily be expected to make a finding that the applicant had lied. Nor could the Commissioner ask the Commission to do so on the basis of matters such as demeanour and word against word, if there is a person who is able to establish the truth of the matter (according to the respondent) and that person is not called. Ordinarily, in disciplinary proceedings where it is claimed that a party lied and a witness can speak to that issue directly, the witness should be called; (ii) the respondent must be able to substantiate the allegations or justify them by evidence that it intends to call: Clyne v NSW Bar Association (1960) 104 CLR 186 at 201. 130 On 15 December 1999 the Commission determined that the applicant may be recalled for cross-examination as to the additional two questions proposed to be put by the respondent as to the truth of the allegations made against him. The Commission indicated it would later provide reasons for that decision. It is convenient to now provide those reasons at this juncture. 131 The rule in Browne v Dunn was the subject of detailed consideration by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 2) (1990) 35 IR 60. In that matter the issue concerned whether a party could lead evidence in chief to controvert the evidence of a witness where the party had not cross-examined that witness as to the issue in question. His Honour made an assessment of the relevant authorities and stated (at 64): I do not apprehend the rule to operate so as to prohibit the leading of evidence by a party - that would be prejudicial to that party and thus contrary to the very concepts of fairness and justice on which the rule is based - at most, in my view, it is a rule of professional practice, which, if breached, properly enables the court to reach a certain conclusion on the relevant evidence, but subject to consideration of the evidence as a whole including the evidence on which there has been no cross-examination. In other words, a party breaching the rule runs the very real risk that the evidence on which there has been no relevant cross-examination may be more readily accepted by reason itself of non-compliance with the rule. 132 Further, after considering the judgment of Hunt J in Allied Pastoral Holdings Pty Limited v The Commissioner of Taxation [1983] 1 NSWLR 1 at 15 - 16 and Newton J in Bulstrode v Trimble [1970] VR 840, his Honour reached the following conclusion with which I respectfully concur (at 67): Therefore, and after extensive reviews of the application of the rule in Browne v Dunn , both Hunt J in New South Wales and Newton J in Victoria concluded that there was nothing, as a matter of law, to prevent a party from himself calling evidence to contradict the other party's witness even though no relevant cross-examination of that witness had been conducted. It must also be emphasised that even if a party does not call evidence to contradict the earlier evidence of a witness which was not the subject of cross-examination that evidence, in any event, need not necessarily be accepted but rather is to be considered in the totality of the evidence in terms of its own weight or cogency. 133 Hungerford J also observed in relation to the operation of s83 of the Industrial Arbitration Act 1940 (NSW) (at 67): In my view, tribunals operating under the Act should be astute to ensure procedural fairness generally to the parties and not so as to permit a case to turn on the overly strict application of a rule of professional legal practice. The instant case, it seems apparent to me, is a good illustration of this point in that whilst Mr Newall conceded he was "crystal clear" on the rule in Browne v Dunn, it is clear to me, but only after considering the many authorities concerned, that it would be unfair to visit on the respondent any adverse application of the rule. To me, that is no more than an appropriate application of s83 of the Act requiring the Commission to be governed in its procedure by "equity and good conscience". 134 Section 163 of the IR Act is the successor to s83 of the Industrial Arbitration Act 1940 and, in my view, his Honour's observations as to the operation of s83 are equally applicable to the operation of that section of the IR Act. The provisions of s163 of the IR Act are not relevantly excluded in this respect by the operation of s181G of the Act, which is directed to the calling of new evidence. 135 Upon this assessment of the rule in Browne v Dunn and the provisions of s163 of the IR Act, it was appropriate to allow the respondent to further cross-examine the applicant. This was so for three reasons. Firstly, it was apparent from both the procedures leading to the removal of the applicant and presentation of the respondent's case before the Commission that the respondent did not accept the applicant's version of events. Secondly, even if an inference were to be drawn against the respondent in relation to the failure to cross-examine, the assessment, if required, of whether there was any basis in fact for the allegations made would need to be undertaken having regard to the entirety of the evidence and the cases presented by the respective parties, particularly having in mind the provisions of s181F(1) and the conclusions reached by the Full Bench of the Commission with respect to the operation of that provision in Newton (No.2) at 79. The Commission would, in any event, be required to consider the entirety of the applicant's and respondent's cases in the light of s181F to assess whether, in the circumstances of the case, the dismissal was harsh, unreasonable or unjust for the purposes of Pt6 of ch2 of the IR Act. Thirdly, the application arose prior to final submissions. Having regard to the provisions of s163 of the IR Act, it was appropriate to permit the respondent, despite the apparent omission in the presentation of his case, to put squarely that which he contended was in issue in the proceedings, namely, that there was a basis in fact for the allegations made against the applicant. 136 In the result, the applicant was recalled and the following evidence was given in cross-examination: WILLIS: Q. Mr Van Huisstede, on the last occasion you gave evidence in these proceedings I asked you questions about the contents of statements made by KB1, KB2 and RS. What I put to you is that the acts complained of by those three people, and more particularly by KB2, in fact occurred? A. No they did not. Q. And what I put to you is that on any occasion that you have denied that they did occur or that you had no knowledge of the incidents they describe, that you have been untruthful? A. No, I have been truthful. 137 Mr Docking tendered, on behalf of the applicant, character references by John Malcolm MacLachlan and the former Mayor of Taree, Mr Ralph Metcalfe. Mr MacLachlan was a retired police officer who had 31 years of service. He was transferred to the Taree Police Station in late 1987 and was at the Taree Police Station in January 1989 when the applicant was transferred to that station. He was the applicant's supervisor (having retired at the rank of Senior Sergeant). He noted that the applicant was transferred to Mudgee Police Patrol in 1994. He considered the applicant as a person of great integrity, honesty and truthfulness. He also indicated that the applicant interacted well with the general public and was popular with most decent law abiding citizens within the local community. He was aware of the allegations made against the applicant, but he did not believe them. He considered the applicant to be an asset to the Police Service. 138 Mr Metcalfe indicated that he had come into contact with the applicant on many occasions in his duties as a police officer and that he was a person of the highest integrity, honesty and trustworthiness. He had high community respect. Admission of evidence of allegations made by the complainants 139 An issue arose during the proceedings concerning the admissibility of the brief of evidence prepared for the trial of the applicant and of extracts from the transcript from the committal proceedings containing the evidence of KB 1, KB 2 and RS. The brief of evidence consisted of statements and records of interview, including the statements made by KB 1, KB 2 and RS in relation to the criminal proceedings brought against the applicant. These documents were tendered by the respondent and conditionally marked as exhibit T in these proceedings. 140 The respondent submitted that the statements of the three complainants contained in the brief were part of the material available to the analyst who prepared the profile of the applicant. As such, it would be artificial for the Commission to review the respondent's decision by reference only to the profile itself and not the source material from which that document was prepared. The respondent further contended that the "documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer" for the purposes of s181E(3) should not be confined only to the profile. 141 In relation to the transcript of the evidence given by KB 1, KB 2 and RS at the committal hearing, the respondent conceded that this evidence was not part of the source material which was available to the analyst for the purpose of preparing the profile. However, the respondent submitted that the evidence did relate to its case because it was evidence given by the witnesses on oath in support of the complaint made in their statements. Any inconsistencies between that evidence and their statements should be taken into account in relation to the question of what weight the Commission should give to the evidence, not to the question of admissibility. 142 Generally, the respondent contended that the Commission should admit the evidence as to the truth of its contents and give it such weight as it considers appropriate having regard to the circumstances of its admission, including the fact that the witnesses were not called to give evidence in these proceedings. The respondent conceded that the statements and transcript are strictly hearsay evidence, but pointed out that the Commission is not bound by the rules of evidence (see s163(1)(c) of the Industrial Relations Act 1996). It was submitted that in the exercise of its discretion to "act according to equity, good conscience and the substantial merits of the case", the Commission should admit the documents into evidence. 143 The respondent contended that there would be no prejudice to the applicant by the admission into evidence of the statements or the transcript as a result of the fact that the witnesses were not called in these proceedings. It was said that the statements and transcript do not raise any fresh matter for the applicant to answer. Both the statements and the transcript contain the evidence of the complainants as to the specific allegations made against the applicant. The applicant was legally represented by counsel at the committal proceedings who cross-examined the complainants at some length to test their evidence. 144 The respondent submitted that neither the statements nor the transcript constitute "new evidence" for the purpose of s181G(1)(f) because they were documents which were made available to the applicant in the process of the criminal prosecution and they did not raise any fresh issues for the applicant to answer. In the alternative, it was submitted that the respondent does not require leave of the Commission to adduce the evidence. Leave is only required if notice of intention to adduce the evidence and its substance is not given. The statements and transcript were served on the applicant's solicitor prior to the hearing in response to orders made by the Commission. 145 The applicant resisted the admission of the documents into evidence. The applicant refuted the suggestion that the documents were considered as part of the decision-making process. There was no evidence to suggest that the documents formed part of the s181E(3) material upon which the Commissioner relied in making a decision to issue an order for removal or that they were part of the Commissioner's reasons under s181F(1)(a) or part of the police officer's response under s181D(3)(b). There was no evidence that Detective Inspector Champion examined the file in any detail and the analyst who completed the profile was not identified by the respondent nor called to give evidence. 146 The applicant contended that although s163(1)(b) of the Industrial Relations Act 1996 provides that the Commission is not bound by the rules of evidence, this does not mean that the acceptance of evidence is unrestrained and the Commission is still required to act according to equity and good conscience. The applicant submitted that the evidence contains assertions which are highly prejudicial in their nature and content. This factor should, absent opportunity to test the evidence, lead to is exclusion on grounds of manifest unfairness: see Amalgamated Metal Workers Union v Electricity Commission (1989) 28 IR 155 at 158 - 159 and 161. The applicant cited a number of reasons why the evidence should be excluded in this case. In particular, the applicant noted the fact that each of the three complainants have criminal histories involving dishonesty offences and that there were such deficiencies in the evidence that Judge Armitage QC in the District Court proceedings concluded that it was not reasonable to institute criminal proceedings. 147 The decision of the respondent not to call the three complainants deprived the applicant of the opportunity to cross-examine the witnesses. The applicant argued that this would be tantamount to depriving him of a fair trial: see R v Hull Prison Board of Visitors; Ex parte St Germain & Ors (No 2) [1979] 3 All ER 545 at 552 - 553. It was submitted that it was absurd to suggest that the applicant would not be prejudiced as a result of the denial of the opportunity to cross-examine the witnesses. This case is substantially one of fact in relation to which there are direct conflicts in the evidence and the Commission faces a grave disadvantage in assessing the veracity of that evidence. 148 It is convenient to deal initially with the question of whether leave is required pursuant to s181G to adduce the additional evidence. This question may be shortly resolved by an examination of the relevant legislation. Relevantly, new evidence may not be adduced before the Commission unless a notice of intention to do so and of the substance of the new evidence has been given pursuant to s181G(1)(f)(i) or unless the Commission gives leave under s181G(1)(ii). The Commission may grant leave in such circumstances as it thinks fit, but must grant such leave in the circumstances set out in s181G(2)(a) - (c). 149 In my view, the meaning of these provisions is clear on their face. Section 181G(1)(f) provides that new evidence may not be adduced in proceedings before the Commission unless either notice is given pursuant to subsection (i) or the Commission grants leave pursuant to subsection (ii). These options are alternatives. If appropriate notice has been given then there would be no further requirement to seek the leave of the Commission. Had the legislature intended that both notice and leave be required before new evidence could be adduced it could have easily so provided. 150 It should also be noted in the final report of the Police Royal Commission (which was delivered prior to the passage of s181G) the Royal Commission discussed legislative restrictions in relation to the receipt of evidence which might apply in the event that the Industrial Relations Commission should be given jurisdiction to review decisions of the Commissioner to remove a police officer. The Report recommended that additional evidence be received only when the Commission was satisfied that special grounds existed. Leave would be required to introduce such evidence. By the enactment of s181G, the legislature plainly adopted a different criteria for the admission of evidence whereby leave to admit new evidence would not be required where notice is given pursuant to s181G(1)(f)(i). 151 Section 181G(1)(f) was considered in passing by the Full Bench in Newton (No.2) . The Full Bench commented (at 80): … it is difficult to conceive of an "ambush" of an applicant by the Commissioner of Police of the kind outlined by Mr Hendy. Such a situation would necessarily involve new material being put of which the applicant was not previously on notice. Leave would have to be sought and granted by the Commission for the introduction of such new evidence. If leave were granted, the applicant would, in the ordinary course, be given an appropriate opportunity to deal with any such "new material", if necessary, by an adjournment of the hearing. A development of that nature, it may be postulated, might be a matter relevant to the Commission's consideration of whether the dismissal had been demonstrated to have been harsh, unreasonable or unjust. 152 In this passage, the Full Bench was not dealing directly with the admission of particular evidence. It was merely contemplating the alleged consequences of a particular interpretation of other provisions of the Act. However, the opinion of the Full Bench there expressed would appear to be in accordance with the construction I have adopted. Where the Full Bench discusses the requirement for leave to be sought, it is referring to a circumstance in which the applicant was "not previously on notice". 153 Some difficulties are created by the fact that s181G(1)(f)(i) refers to notice being given "in accordance with the regulations under this Act". Despite this provision, no regulations have been made to prescribe the manner in which such a notice should be given. In Downey v Pryor (1960) 103 CLR 353 at 362, Kitto J expressed the view that provisions requiring an act to be done "in the prescribed manner" or "in accordance with regulations" may be of two different natures. The wording, context and nature of the provision may indicate that the prescribed method is the essence of the authority conferred such that there is no authority capable of being exercised in the absence of a valid prescription of the method. Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 is an example of such an instance. On the other hand, the means may be that the authority or act is to be subject to the power of the Executive to regulate its function, but in relation to the reference to any prescribed method the words "if any" should be implied. 154 In my view, s181G(1)(f)(i) is of that latter type. The intention of the provision would appear to be to ensure that neither party is surprised by any new evidence presented at the hearing through requiring that notice of intention to adduce new evidence and of its contents be given to the other party prior to the hearing. This process may have the benefit of facilitating the smooth running of the hearing before the Commission and, as pointed out by the Full Bench in Newton , of protecting the applicant from being "ambushed" by new evidence presented by the Commissioner. The process of notification is capable of being facilitated by the Commission in the absence of regulations and the Commission can adjudicate on whether sufficient notice has been given. I note that in Browne v Commissioner for Railways, Jordan CJ commented (at 29): If it is provided by Statute that an application may be made to a Court within the time and in the manner and on the conditions directed by the rules of Court, this is regarded as creating a right in the applicant to make, and a duty in the Court to hear, the application, irrespectively of whether any rules have been made. In such a case there is a power in the Court to prescribe conditions by rules, but until it does so, the Court must deal with applications as justice and commonsense demand. 155 Even in the absence of regulations, the Commission must, in my view, allow new evidence to be adduced in proceedings under the Act where appropriate notice has been given by the party seeking to adduce that evidence. In this case, I am satisfied that appropriate notice was given by the fact that the evidence was served on the applicant's solicitor prior to the hearing. As such, leave of the Commission is not required to adduce the evidence. 156 The question remains as to whether the brief of evidence and extract from the transcript tendered by the respondent should be admitted into evidence. In the particular circumstances of this case, I am satisfied that in the interests of justice these documents should be admitted for all purposes. A number of circumstances particular to this case have lead me to this conclusion. Firstly, the existence of the transcript may be an important consideration in determining the material which was available to the Commissioner. Indeed, the applicant expressly raised as an issue the failure of the Commissioner to consider the inconsistencies in the complainant's evidence when making his decision. Where one of the issues to be determined concerns whether the Commissioner gave adequate consideration to the available evidence, the existence and content of other evidence is obviously a matter which requires serious consideration. To exclude that evidence would reduce the capacity of the Commission to assess the quality of the decision-making process which was adopted by the Commissioner when removing the applicant. 157 Secondly, in their submissions the parties joined in raising the question of whether the allegations had any basis in fact. Mr Docking specifically submitted that the removal of the applicant was "substantively" unfair as a result of the fact that the respondent had not made out the allegations on the evidence and that the applicant was not guilty of the misconduct alleged. Whilst the respondent submitted that it was not required to prove the allegations, it was put that on the evidence before him the Commissioner was entitled to form the opinion that he did not have confidence in the applicant. 158 In the absence of the evidence contained in the statements and transcript, the Commission would have before it no direct evidence of the events other than the applicant's explicit denial that there was any substance at all to the allegations. This circumstance is, no doubt, a direct result of the course adopted by the Commissioner in these proceedings. Mr Willis sought to tender the transcript of criminal proceedings containing the evidence of the complainants and the complainants' statements without calling the witnesses to give evidence and be available for cross-examination. This approach by the Commissioner denied the Commission access to the best evidence available (noting that it was not put by the Commissioner that the complainants were not available or compellable to give evidence). Notwithstanding this, however, it is, in my view, inappropriate in this case for the Commission to exclude evidence which is available and casts light on the nature and substance of the allegations. As will be discussed, the substance of the misconduct alleged to have been the basis for the removal of the applicant is a matter which should, having regard to the respective cases of the parties and the reasons for the decision given by the Commission, be considered in determining if the removal was harsh, unreasonable or unjust. The veracity of serious allegations, such as those raised in this case, must also be relevant to the consideration of any relief to be granted and, particularly, to the consideration which must be given to the public interest in maintaining the integrity of the Police Service. 159 Thirdly, a further matter which may be relevant to the admission of the transcript evidence concerns the material supplied by the applicant to the Commissioner in response to the s181D notice. It will be remembered that the applicant attached to his response a copy of his evidence given at the District Court trial. In evidence before the Commission the applicant adopted his evidence given at trial and reasserted the truth of the evidence there given. Arguably, the applicant has put his evidence given at the trial in evidence in these proceedings in his defence. It would be artificial to consider that evidence without also having regard to the evidence given by the complainants at the trial. 160 The applicant correctly pointed out that although the Commission is not bound by the rules of evidence, this does not mean that the admission of evidence is unrestrained. Commonsense dictates that the Commission receive only evidence which is relevant to an issue which requires determination in order to decide the case: see PDS Rural Products Ltd v Corthorn (1987) 19 IR 153 at 155. The requirement that the Commission "inform itself on any matter in any way that it considers to be just" (s163(1)(b)) and exercise its functions according to "equity, good conscience and the substantial merits of the case" (s163(1)(c)) demand that it consider any unfairness or prejudice which would be suffered by a party as a result of the admission of certain evidence. The admission of hearsay material containing evidence which is prejudicial to a party, but cannot be tested through cross-examination, has obvious potential to cause serious disadvantage to that party. I note that s181L(2) of the Act would not seem to exclude the Commission's discretion to refuse to admit hearsay evidence which was highly prejudicial (even if that evidence consists of transcripts of proceedings in a court or tribunal). 161 Notwithstanding the potential disadvantage to the applicant, the statements and transcript should, in my view, be admitted into evidence in order for the Commission to properly exercise its discretion under the Act. However, the failure of the respondent to call the complainants to give evidence (or provide an explanation for not doing so) must be considered when deciding what weight should be attached to that evidence. The approach adopted by the respondent of not calling the complainants to give evidence has a detrimental effect upon the weight which may be attached to the evidence contained in those statements and the transcript of evidence of the complaints. So much was conceded by Mr Willis . Although the complainants were cross-examined by counsel for the applicant in the District Court, this occurred in criminal proceedings and at a substantially earlier point in time. Had the complainants been called to give evidence in these proceedings, they could have been cross-examined in light of all information which has subsequently come to light, including their evidence at the trial. The Commission has also been denied the opportunity of seeing the complainants give evidence in person and so forming an opinion as to their credibility from their demeanour and attitude whilst giving evidence. 162 It is appropriate to emphasise before continuing that the decision to admit the brief of evidence and the transcript in this matter should not be taken to have any application beyond the circumstances of this case. There is the potential for significant prejudice to be suffered by an applicant as a result of the course adopted by the respondent in this case. The serious consideration which must be given to any prejudice to be suffered by the applicant is amply demonstrated in Amalgamated Metal Workers Union . In that case, the Full Bench considered the admission of statements and evidence given to a committee investigating allegations against a dismissed employee. The Full Bench commented (at 159): In a case of this nature we regard this deficiency as a fundamental one going not just to weight but to admissibility. The evidence is highly prejudicial in its nature and content, and there is no practical method of properly testing it. To admit it would result in serious disadvantage and unfairness to the other side. 163 It will not be every case that this prejudice occasioned an applicant is outweighed by other factors. The Complainants' Evidence 164 It was accepted that if the brief of evidence and extracts of transcript tendered by the respondent were admitted, then two further documents tendered by the applicant would also be admitted. The first of these documents was the complete transcript of the applicant's District Court trial. The second document sought to be tendered by the applicant was a document prepared for the applicant's costs application to the District Court which consisted of a summary of inconsistencies alleged to exist in the evidence given by the complainants in their statements at the committal proceedings and at the trial. The evidence given by the complainants which was before the Commission, therefore, consisted of their statements given in August and September of 1995, their evidence to the committal proceedings and their evidence at the District Court trial. The Commission was also assisted by the table of inconsistencies tendered by Mr Docking . These various documents are now admitted into evidence and their previous conditional markings are revoked. 165 The substance of the allegations made by the complainants revealed in their statements and evidence at the committal hearing and trial is as follows. 166 The complainants alleged that they were apprehended by police some time on either Friday, 10 August 1990 or Saturday, 11 August 1990 in possession of a car which had earlier been stolen by KB1 and KB2. The complainants gave evidence that they were then held in custody on charges, including "unlawful use of a conveyance", at cells at Taree Police Station until the following Monday morning when they appeared before the Local Court. 167 Each of the complainants alleged that some time on the Sunday night, that is, Sunday, 12 August 1990, three police officers came to the door of the cell in which they were being held. KB1 and KB2 identified the three officers involved as the applicant, Constable David Wadsworth and Constable Robert Riley. RS alleged that the officers present were Constable Wadsworth, Constable Riley and another officer who she thought was Constable Craig Ryan. At the committal hearing, RS stated that she had been mistaken and the third officer involved was in fact the applicant not Constable Ryan. 168 It was stated that one of the complainants yelled out that they were hungry and requested that the officers bring them some food. It was alleged that one of the officers said words to the effect that the complainants would be given food and coffee in return for oral sex. There were divergences in the recollections of the complainants as to which officer made the suggestion. KB1 indicated that the suggestion was made by the applicant. KB2 was initially unsure which officer made the suggestion, but at the trial gave evidence that it had been the applicant. In her statement, RS stated that she though it was Craig Ryan, but later said she could not recall. One of the complainants then apparently expressed agreement to the suggestion, although there was disagreement concerning which complainant responded. 169 RS gave evidence that she was taken by Mr Riley to the sergeant's office and performed an act of oral sex on him. KB2 stated that all three complainants were taken to the lunch room whereupon RS and herself were taken to another room where RS began to fellate Mr Riley. KB2 alleged that she was then taken by the applicant to another room and she performed an act of oral sex on the applicant. KB1 stated that she was taken to the lunch room by Mr Wadsworth and no sexual contact occurred between them. The complainants were subsequently returned to their cells. RS stated that she was taken to the lunch room by Mr Riley first and given a cup of coffee. The complainants were later given some chicken and chips. No complaint was made by KB1, KB2 or RS at the time of the alleged incident. An anonymous complaint was made by a male person on 23 August 1995 and the three complainants were subsequently interviewed. 170 The evidence of the complainants contained in their statements and evidence at the committal hearing and trial were not the subject of detailed submissions before me. Nonetheless, the material is in evidence and I have reviewed that evidence. At this point I merely note that there were clearly a number of significant inconsistencies in the complainants' evidence. Some of these inconsistencies are peripheral, and perhaps unsurprising, having regard to the period of time which had elapsed between the alleged events and the evidence given by the complainants. However, other inconsistencies go directly to the reliability of their recollections and led the magistrate to conclude that the inconsistencies in their accounts were "manifest". It is not necessary in this judgment to go through the inconsistencies in the complainants' evidence in undue detail. It may, however, be useful to indicate some of the more apparent discrepancies in their versions of events. 171 Perhaps the most notable inconsistency in the complainants' evidence concerned the identity of the three officers who were alleged to have been involved in the incident. As has been mentioned, KB1 and KB2 both identified the applicant as being involved and KB2 alleged that she performed oral sex on the applicant. RS, however, did not initially indicate that the applicant had been one of the three officers involved. There were discrepancies concerning on which day and at what time the events were alleged to have occurred. The statements did not indicate what day the complainants were arrested, although RS thought that it was Friday, 10 August. KB2 thought that it had been Friday, but by the trial indicated that it must have been Saturday. Both RS and KB1 were unable to be more precise than saying that it may have been Friday. 172 As to the time of the alleged incident, RS and KB1 stated that the officers approached the cell late in the night, at least after 11pm and possibly up to about 4am. They stated that the applicant must have worked through the night. At the committal hearing, KB2 stated that it was "not late" and agreed that it must have been some time around 6pm. Evidence of the timing of the events may be of particular significance given the evidence produced in the applicant's police notebook tendered during re-examination. The applicant's police notebook revealed he did not work at all on 10 or 11 August 1990, but worked at the station from 3pm to 11pm on Sunday, 12 August 1990. The evidence of Mr Wadsworth was that he worked from 11pm to 7am on 12 August 1990; that is, not on the same shift as the applicant. 173 The uncertainties in the evidence extended to the course of events during the alleged incident. RS stated that she was taken from the cell alone by Mr Riley to another room and later returned to the cell where she found both KB1 and KB2 still waiting. As has been indicated, KB2 stated, in contrast, that all three complainants had been taken by the three police officers to the lunch room. According to KB2, she and RS were then taken to another room and she observed RS perform an act of oral sex on Mr Riley. It was only then that KB2 alleged she was taken to a separate room by the applicant. KB2 also stated, in conflict with the evidence of RS, that when she returned to the cell both RS and KB1 were there already. KB1 presented a different version again. In KB1's account, RS was taken from the cell first by Mr Riley and then she was taken to the lunch room by Mr Wadsworth. KB1 stated that KB2 was left in the cell with the applicant and that both RS and KB2 were in the cell when she returned. 174 There were a number of other inconsistencies or discrepancies in the evidence. For instance, there were uncertainties in the evidence of the complainants as to whether they had been denied proper meals during the time they were held in the cells. RS stated that she was very hungry at the time, a statement which was supported by KB1. However, both at the committal and at trial both RS and KB1 indicated that they had received regular meals and that they probably weren't in great need of food. In contrast, at the committal hearing KB2 stated that the complainants only received one lot of food while they were in the cells and were literally starved. KB2 changed her evidence at the trial saying that they probably did receive regular meals. The complainants also disagreed concerning whether they spoke about the incident once they were returned to the cells. KB2 said that RS told her what had happened, whereas RS denied telling anyone what had occurred at the time of the incident. Legislation and Relevant General Principles 175 I turn now to a consideration of the provisions of the Act relating to the removal of police officers. The Royal Commission into the New South Wales Police Service precipitated successive amendments to the provisions of the Act dealing with the removal of police officers and the review of decisions by the Police Commissioner to remove a police officer. There have been, in recent years, no less than four legislative schemes dealing with the process for the removal of police officers from the Police Service. The history of the legislation provides an important background to the present provisions. These successive amendments to the Act were reviewed in detail by Peterson J in Newton v Commissioner of Police (1998) 85 IR 119 at 120-122 and I respectfully adopt the summary there given. It is nonetheless useful to provide a brief further overview of the legislative history. 176 The Police Service Act 1990 (Act No 47 of 1990) initially contained provisions facilitating the initiation and resolution of disciplinary action by the Commissioner against an officer. These provisions provided for a range of disciplinary procedures depending upon the type and seriousness of the conduct involved, including unsatisfactory conduct, conduct justifying a departmental charge and conduct justifying the institution of criminal proceedings. Conduct justifying a departmental charge against an officer was under the sole jurisdiction of the Police Tribunal which would make a recommendation to the Commissioner. The Commissioner was empowered to impose disciplinary measures in relation to a disciplinary charge or criminal charge and the disciplinary measures available included dismissal. Appeal was available to the Government and Related Employees Appeals Tribunal ("GREAT") from any decision of the Commissioner to impose disciplinary measures. 177 The Police Service Amendment Act 1995 introduced into Part 9 of the Act, Division 1A, "Dismissal and Resignation of Police Officers - Police Royal Commission". The Full Bench of the Commission has noted that the purpose of the 1995 amendments was "to provide a fast track method of dismissal to deal with 'exceptional circumstances' of police corruption revealed in the Police Royal Commission": Bigg (No. 2) at 451. As a result of the amendments, the Police Commissioner could, by order, dismiss an officer if the Commissioner formed an opinion, based on information arising out of the Police Royal Commission, that the officer had engaged in corrupt conduct or certain criminal conduct and was no longer a fit and proper person to remain a police officer (the former s181B). Existing rights of appeal were abolished, but an officer dismissed under this provision retained the right to apply to the Industrial Relations Commission of NSW for reinstatement under the unfair dismissal provisions in the then Industrial Relations Act 1991 (the former s181B(5) of the Act). 178 The Police Legislation Further Amendment Act 1996 removed s181B and replaced it with Division 1B, "Summary Removal of Police Officers in whom the Commissioner does not have Confidence". The Commissioner was given power to remove an officer where the Commissioner did not have confidence in the officer's suitability to continue in the Police Service having regard to the officer's competence, integrity, performance or conduct (s181D). The right to apply to the Industrial Relations Commission of NSW was abolished (the former s181D(7)), but jurisdiction was conferred on the Supreme Court to review a decision of the Commissioner made under s181D according to administrative law principles applicable to the review of decisions that turned on the opinion of a decision-maker (the former s181D(6)). 179 The Police Service Amendment Act 1997 introduced the provisions as they presently exist. The Commissioner's power under s181D to remove police officers in whom the Commissioner did not have confidence was retained. However, the jurisdiction of the Industrial Relations Commission of NSW to review a decision of the Police Commissioner to remove an officer from the Police Service was restored, albeit in a modified form. The Commission may now review the order under s181E(1) of the Act on the ground that the decision of the Commissioner was harsh, unreasonable or unjust. The procedure to be adopted in the case of such a review is dictated by s181F and s181G. 180 The various legislative schemes have been the subject of detailed consideration in a number of decisions of this Commission. The scheme created by the introduction of s181B of the Police Service Amendment Act 1995 was considered in Bigg (No. 2) and in Oswald v New South Wales Police Service (No. 2) (1999) 90 IR 42. In Bigg (No. 2) , the Full Bench summarised the effect of s181B in the following terms (at 449): (1) Where there was material before the Police Royal Commission regarding a police officer, the Police Commissioner was permitted to form an opinion, by consideration of such information, that the police officer had engaged in corrupt conduct or certain criminal conduct and was no longer a fit and proper person to remain a police officer. (2) If the Commissioner formed such an opinion then, provided he proceeded in accordance with the provisions of s.181B(3) of the Police Service Act , he could dismiss the officer, without first meeting the other requirements of the Police Service Act in relation to the laying of charges against the officer. (3) The existing rights of appeal against the dismissal to GREAT were abolished. (4) The officer, once dismissed, retained the right to apply to the Industrial Relations Commission for reinstatement, the right to do so having been specifically and in unequivocal terms, retained by s.181B(5). 181 In the view of the Full Bench, the jurisdiction of the Commission to determine whether the dismissal of an officer was harsh, unreasonable or unjust involved a thorough analysis of the procedural aspects as well as the substance of the Commissioner's decision. The Full Bench in Bigg (No. 2) stated (at 451): In our view, the question of the procedure adopted by the Acting Commissioner of Police in coming to a decision to dismiss Mr Bigg, as an exemplar of the industrial merit of the decision, as well as the general industrial merits of the decision, would both be open to review before the Industrial Relations Commission in proceedings brought under s 246 of the 1991 Act. The consideration of those industrial merits would have to include consideration of the statutory mechanism (s 181B of the Police Service Act ), under which the dismissal occurred. 182 It was also found that, although extremely broad powers had been conferred on the Commissioner, the Commissioner was not at large to have regard only to some of the relevant material before the Police Royal Commission. In this regard, the Full Bench relied upon the judgment of Mason J in FAI Insurances Limited v Winneke (1982) 151 CLR 342 at 368 (his Honour citing the decision of Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189). 183 The Full Bench in Bigg (No. 2) made two further observations concerning the approach to be adopted in relation to the fairness of dismissals under s181B of the Act. The observations were as follows (at 459): · In coming to an opinion under s 181B, the Police Commissioner would have to observe and, if doubt were raised in proceedings under s 246 of the 1991 Act, demonstrate that he had met the obligation to act in a manner which allowed no allegation of an uninformed decision to be founded. Failure to do so would allow the Industrial Relations Commission to intervene, if it took the view that the dismissal was harsh, unreasonable and unjust. · Were the material in the written submission forwarded by the police officer in response to the s 181B notice to demonstrate factual and legal explanations which would call the opinion formed by the Police Commissioner into doubt when fairly considered, or were the officer to call other evidence before the Industrial Relations Commission which called the opinion formed into such doubt, then such circumstances would allow the Industrial Relations Commission to intervene, if it took the view that the dismissal was harsh, unreasonable and unjust. 184 A similar approach was adopted in Oswald (No. 2) . That case concerned the dismissal of the appellant for alleged involvement in an attempt to pervert the course of justice arising out of the arrest of an alleged drug dealer. The Full Bench concluded that the removal of the police officer involved was harsh, unreasonable or unjust having regard to the inadequate approach adopted by the Commissioner in the process of considering the information arising out of the Police Royal Commission. The Full Bench in Oswald (No. 2) stated its conclusion as follows (at 66): Here, we think it is undoubted that the conclusion the appellant's dismissal was harsh, unreasonable and unjust must follow from the inadequate approach adopted by the Acting Commissioner in the s181B process to the consideration of the information arising from the Police Royal Commission. We so find. That approach clearly led, in our view, to a relevantly uninformed decision calling for explanation by the respondent to resolve doubt. That explanation was not given. 185 The Full Bench expressly agreed (at 57-58) that the discretion vested in the Commissioner to remove a police officer must be exercised according to the rules of reason and justice: citing the decision of Kitto J in R v Anderson; Ex parte Ipec-Air Pty Limited (1965) 113 CLR 177 at 189. 186 It is useful to record the grounds cited by the Full Bench in Oswald (No. 2) as warranting intervention by the Commission. In the view of the Full Bench, the Commissioner was required to take account of a range of circumstances including the fact that the appellant was a police officer of seemingly unblemished reputation, that the appellant had not been identified by any witness, the fact that a number of the witnesses had altered their stories and that the relevant events took place at night on an unlit road. The Full Bench indicated that the Commissioner had not properly taken into account the evidence given to the Police Royal Commission by another police officer which corroborated the evidence of the appellant. The Commission, at first instance, should have also taken who account the fact that the person who had given the corroborating evidence was not required for cross-examination. The Full Bench also concluded that the finding made by the trial judge at first instance in Oswald, that the appellant had perjured himself, was in error as the trial judge had made that finding without apparent consideration of the corroborating evidence (at 67). 187 I turn now to a consideration of the present provisions of the Act. As has been mentioned, power is conferred on the Commissioner to, by order, remove a police from the Police Service if the Commissioner does not have confidence in the officer's suitability to continue as a police officer (s181D(1)). Various procedural requirements must be adhered to by the Commissioner in seeking to exercise this power. In particular, the Commissioner must give the officer notice setting out the grounds on which the Commissioner does not have confidence in the officer (s.181D(3)(a)). The Commissioner must give the officer at least 21 days to make written submissions (s181D(3)(b)) and must take into consideration any written submissions which are made (s181D(3)(c)). The order must also set out the reasons for the Commissioner's decision (s181D(4)) 188 A police officer who is removed from the Police Service by an order under s181D may apply to the Industrial Relations Commission of NSW for a "review" of the order on the ground the removal was "harsh, unreasonable or unjust" (s181E(1)). Section 181F dictates the procedure to be adopted by the Commission in conducting a review pursuant to an application brought under s181D. In reaching its decision, the Commission is required to have regard to the interests of the applicant and the public interest (s181F(3)). 189 It is plain that the various provisions of the Act introduced since 1995 have been intended by Parliament to establish a more flexible system governing the dismissal of police officers which permitted the Commissioner to remove officers without the bureaucratic impediments which characterised the old system. So much is clear from the discretion conferred on the Commissioner by s181D to order the removal of a police officer in whom the Commissioner does not have confidence having regard to the officer's competence, integrity, performance or conduct. This view is confirmed by the Second Reading Speech to the Bill which introduced the 1996 amendment ( Hansard , Legislative Assembly, 13 November 1996 at p5912), where the Minister for Police said: One of the most important tools necessary for the effective management of the Police Service is the capacity to rid the service of the deadwood. The commissioner cannot be held fully accountable whilst forced to retain the services of those who fail to live up to expected standards of competence, integrity or conduct. Yet the processes for terminating the employment of members of the Police Service seem designed to thwart any attempt to remove anyone, even those convicted of criminal offences. The royal commission has made it very clear that this situation cannot continue, and it will not continue. This bill will provide the commissioner with the statutory authority to remove from the Police Service any officer in whom he ceases to have confidence. This sends a clear message to police whose dedication is less than total: shape up or ship out! This power is the cornerstone on which the new Police Service will be built. It signals the end of the road for both the corrupt and the non-performers, and a new beginning for the dedicated, hardworking and honest. The vast majority of police are of course hardworking and honest. They are constantly let down by the corrupt and incompetent. It is essential that these undesirable elements are removed to allow talent to blossom and performance to improve. The Government recognises that the authority to terminate employment under the commissioner's confidence provisions vests considerable power in the commissioner. It also recognises that this means that checks and balances are required to ensure that it is only used as it is meant to be, and is neither exceeded nor abused. 190 To support the view that the Act is intended to confer a broad discretion on the Commissioner, the respondent referred to the decision of Maidment J in Bartlett v New South Wales Police Service (1998) 87 IR 436. In that case, his Honour stated (at 452): The Royal Commission shook public confidence in the management and members of the Police Service. Commissioner Peter Ryan was appointed in the hope that he would be able to turn the situation around and, to that end, he is empowered to remove a police officer in whom he does not have confidence in the officer's suitability to continue as a police officer (s181D(1)). The Act envisages that the Police Service will be rid of persons in whom the Commissioner lacks confidence. 191 Broadly speaking, this may well be correct. However, the discretion conferred on the Commissioner was never completely unfettered, nor was it intended to be so. It was always envisaged that the Commissioner's powers should be subject to certain checks and balances and any decision made by the Commissioner to remove a police officer would be reviewable by a specified court or tribunal. Thus, the Commissioner was, and is, required to adhere to certain procedural requirements, including giving notice to the officer of the reasons for his or her proposed removal. An officer dismissed under these provisions was, under the initial scheme, entitled to make an application under the unfair dismissal provisions then contained in the Industrial Relations Act 1991. The subsequent amendments permitted an officer to seek review by the Supreme Court and now by the Industrial Relations Commission of NSW on the grounds specified in s181E and s181F. 192 The current form of the provisions undoubtedly raises some difficulties in interpretation. Jurisdiction is conferred on the Commission to conduct a "review" of an order made by the Commissioner on the ground that the removal was "harsh, unreasonable or unjust". In conducting that "review" the Commission is required to proceed according to the sequence set out in s181F(1). The instruction that a dismissal not be harsh, unreasonable or unjust has, of course, been applied for many years in the Commission's unfair dismissal jurisdiction. The Commission is required to determine whether, in all the circumstances of the case, the dismissal of the employee was harsh, unreasonable or unjust. The Commission would not ordinarily be thought of as conducting a review of the employer's decision, for example, in the nature of a judicial review. 193 In my view, the concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2) . This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree: … it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows: … a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself … That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons. 194 What may be further deduced from the decisions in Bigg (No. 2) and Oswald (No. 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion . Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd , the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2) , also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner. 195 As was said by the Full Bench in Bigg (No. 2) , the Commission should consider, to the extent relevant in a matter, both the procedure employed by the Commissioner in seeking to remove the police officer as well as the merits or substance of the decision. 196 In the first place, the fairness of the process adopted by the Commissioner, and particularly whether the Commissioner adhered to the procedural requirements of s181D, are vital considerations in determining whether the removal of an officer was harsh, unreasonable or unjust. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389, the Full Bench stated: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of "an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss" or a failure to afford procedural fairness which causes a "substantial and irrevocable prejudice to the employee" will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. 197 Further, the Full Bench stated (at 390): While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust. 198 These comments were supported in Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 50. 199 Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. As was observed by the Full Bench in Bigg (No. 2) (in relation to the former legislative scheme) (at 458): However, it seems to us that where extraordinary powers and authorities such as those given by s 181B are being exercised, a careful and punctilious regard to correct procedure should supervise the exercise of discretion. 200 I consider that these observations are equally applicable to the exercise of the Commissioner's discretion under s181D of the Act. 201 In Oswald (No. 2) , the Full Bench also considered the evidentiary burden falling on the Commissioner in relation to his adherence to the procedure dictated by the Act. The Full Bench commented (at 64): … we are satisfied on the case advanced to Fisher P by the appellant that sufficient doubt was raised as to whether the requirements of s 181B had been met by the Acting Commissioner, in the way discussed by Kitto J in Anderson , so as to give rise to an evidentiary burden upon the Acting Commissioner to demonstrate they had been adhered to. We consider that that burden was not met. 202 In my view, the present provisions of the Act also establish that once an applicant raises sufficient doubt as to whether the requirements of s181D are met, the Commissioner bears an onus of demonstrating that those requirements were, in fact, met. This view is supported both by the Full Bench in Oswald (No. 2) and by the structure of the review established by s181F. Section 181F requires that the Commission consider the reasons of the Commissioner, then the case put by the applicant and finally any case presented by the Commissioner in response. If, in the case brought by the applicant, doubt is raised as to compliance with the procedural requirements of the Act, that matter would then need to be answered in the case brought by the Commissioner. 203 In this matter, the applicant also raises the merits or substance of the Commissioner's decision to remove the police officer. In those circumstances, an inquiry of that kind will be appropriate in review proceedings brought pursuant to Division 1C of Part 9 of the Act. In conducting a review, the Commission is required by s181F(1)(a) to firstly consider the reasons given by the Commissioner and then the case presented by the applicant. The reasons for the Commissioner's decision may clearly deal with the substance and basis of the allegations including, as in this case, whether there was any basis in fact for the allegations levelled against the police officer. It would be open for the applicant's case to touch upon such issues. The case presented by the applicant, and the case put in answer by the Commissioner, may both raise matters going to the merits of the decision (again, as occurred in this case). If so, the Commission is required to consider those submissions. 204 I note that this proposition is supported by the decision of Peterson J in Newton at 133 and 134 where his Honour stated: ... I am inclined to view that the legislation does intend the Commission to be a "one-stop-shop" but perhaps not limited to the sense advanced by Mr Docking . The structure of s181F suggests, I think unavoidably, that the Commission is free to examine the Commissioner's reasons both on the basis of the means by which they were achieved and, if necessary, their substance ... On the other hand, one can readily appreciate that the pursuit by the Commissioner of a process may involve an approach which, by its failure in some relevant respect, leads to an unfair termination. Although based on different statutory provisions, Bigg's case is an example. However, the matter does not end there. The requirement for the Commission to consider the Commissioner's case in answer to the applicant's case (a requirement which one would in the normal course of events think it unnecessary to stipulate) presents an opportunity for the Commissioner to traverse the substance of the reasons for dismissal rather than solely the process undertaken for their acceptance. 205 Furthermore, s181G(1) applies provisions of the IR Act to an application under s181F(1) in the same way as they apply to applications under Part 6 (Unfair dismissals) of Chapter 2 of that Act. Relevantly, s88 lays down matters which the Commission may take into account in determining an application alleging unfair dismissal. Section 88(b), for instance, requires the Commission to consider, amongst other things, the nature of any reason given for the dismissal and whether the reason has any basis in fact. This suggests that the Commission should examine the reasons why the Commissioner claims to have lost confidence in a particular officer and whether those reasons are founded upon an appropriate consideration of the evidence available. I might add that this was very much the approach adopted by the Full Bench in Bigg (No. 2) and Oswald (No. 2) and, in my view, remains the appropriate approach under the present provisions of the Act (see also Bigg (No. 2) at 451). 206 This view of the scope of the review to be undertaken by the Commission pursuant to s181F is supported by the Second Reading Speech of the Minister for Police in relation to the 1997 amendments to the Act ( Hansard , Legislative Assembly, 18 June 1997, 10563), where the Minister said: The bill provides police officers with the right to go to the Industrial Relations Commission to seek review of a dismissal decision. Again, whilst similar to the protection provided to other workers under the unfair dismissal provisions of the Industrial Relations Act, it is not identical as there are some important differences which I will discuss shortly. The key aspect [of the] review to be conducted by the Industrial Relations Commission will be a review of the merits of the decision of the commissioner. It will allow both the fairness of the process by which the decision was arrived at, the facts on which the decision was based, and whether the dismissal was harsh, unjust or unreasonable. 207 Mr Willis emphasised that the Act conferred a broad discretion on the Commissioner to "remove" a police officer rather than providing for the dismissal of an officer (although these contentions were not the subject of detailed submissions by the parties in the context of the proper construction of the Act). As earlier discussed, it was submitted that a distinction should be drawn between summary dismissal under the general law and the "removal" of a police officer under the Act. This distinction was said to impact upon the scope of the review to be undertaken by the Commission, particularly in relation to the merits of the decision to remove the officer. Because the "removal" was based on the confidence of the Commissioner, it was not necessary for the Commissioner to be satisfied that any particular state of affairs existed before making the order. The section, it was submitted, does not require the Commissioner to find as a proven fact that an officer is corrupt or incompetent. Nor is the Commissioner required to find as a fact that certain conduct occurred. The section does not require the Commissioner to conduct an investigation. Nor was it necessary for the Commissioner to establish to the satisfaction of the Commission that any particular conduct had in fact occurred. The purpose of the "removal" provisions was to circumvent a process whereby the Commissioner would be required to prove charges against an officer. 208 The issue raised by the Commissioner as to the meaning of the expression removal may be resolved relatively simply in the present matter. Whatever s181D might otherwise require the Commissioner to do in the exercise of his discretion, in this case the Commissioner did make a determination as to 'allegations' raised against the applicant in his reasons for decision. These reasons were the basis for the order made by him. Thus, the Commissioner made an express finding as to the state of affairs which existed before the making of the order and as to the acts said to be committed by the applicant. He also reached conclusions as to the factual controversy; preferring the version of events of the complainants over those of the applicant. In making those findings the Commissioner was not at large (nor, on one view of his decision, did the Commissioner consider that he was). The Commissioner's discretion is not absolute or unfettered. For the reasons earlier discussed in this decision, the principles enunciated in Bigg (No.2) and Oswald (No.2) are, for example, applicable to the exercise of that discretion. 209 Further, as the issue of 'substantive fairness' raised by the applicant, the respondent refers to the discretion to remove an officer in s181D as indicating a legislative intention that the Commissioner not be required to 'prove' the allegations made against the officer in the review proceedings. However, as will be later discussed, this is not a matter in which the issue of 'onus' will have any bearing upon the determination of the ultimate findings made by the Commission in this decision; particularly in relation to the issue concerning whether there was any basis in fact to the allegations made against the applicant. The findings made by the Commission are available upon the assumption that the applicant bore the onus and evidentiary burden of making out all relevant matters (see Bigg (No. 2) at 456 - 457). I also note in this respect the provisions of s181F(2) of the Act. 210 Furthermore, the applicant has put in his case that he did not commit the acts alleged and found by the Commissioner against him. That the applicant may prosecute his case upon such a basis having regard to s181F(1)(b) of the Act is a fortiori the case where the Commissioner has made findings about, and relied upon acts said to be committed by the applicant in his reasons for making an order to remove the officer; which reasons must be reviewed pursuant to s181F(1)(a). 211 The question as to whether the legislature intended to draw a distinction between the removal of a police officer and a dismissal at common law will require further examination in a matter more directly requiring a consideration of that matter and where more comprehensive submissions have been received on the issue. I shall, however, briefly consider the matter. 212 I note that the Commissioner relied upon the provisions of s181D(8) to demonstrate that the legislature had drawn a distinction between the dismissal and the removal of an officer. This contention would be usefully examined in the context of ss51 and 82 of the Act. However, it is not clear to me that a distinction has, in fact, been drawn by the legislature between 'dismissal' and 'removal' in s181D(8). Even if it did give such an indication, it does not seem, in my view, to affect the requirements of s181G (which is a key provision governing review proceedings under Division 1C of Part 9 of the Act). Section 181G applies the provisions of the IR Act in relation to the review of unfair dismissals (with some exceptions) to an application for review under the Act. Notwithstanding that the legislature expressly constrained the operation of certain aspects of the IR Act, it did not limit the Commission's general powers as to unfair dismissals, and to this extent, it may be inferred that the legislature intended that the Commissioner's decision would be reviewable in a similar manner as dismissals otherwise reviewable under Part 6 of Chapter 2 of the IR Act. 213 In relation to the role of the Commission in conducting a review under s181F, the respondent provided a copy of the decision of the Full Federal Court in Barratt v Howard (1999) 170 ALR 529. In that case the Secretary to the Department of Defence was removed from his position under s37(5) of the Public Service Act 1922 (Cth). That provision empowers the Governor-General, following a recommendation by the Prime Minister, to direct that the appointment of a person to the office of Secretary be terminated. In the course of its decision, the Full Federal Court considered the basis upon which the power to terminate the Secretary's appointment under s37 could be exercised. The court concluded that although the termination must be based on some ground or grounds, the permissible purposes of termination were limited only by the general confines of the objects of the Act. It was sufficient, for instance, that the relevant Minister had lost confidence in the Secretary and that the absence of confidence was detrimental to administration of the department. It was not for the court to determine if the loss of confidence was objectively reasonable. 214 In my view, the provisions facilitating the removal of a Departmental Secretary considered by the Full Federal Court in Barratt may be distinguished from the statutory scheme presently under examination. Notably, the basis for removal of a police officer under s181D is not unrestrained in the same way as the termination of appointment of a Departmental Secretary under s37 of the Public Service Act 1922 (Cth). The Commissioner may conclude that he does not have confidence in a police officer only on the basis of the officer's competence, integrity, performance or conduct. The Commissioner's decision must have some foundation in one or more of these attributes. Furthermore, the function of the Commission, when reviewing the removal of a police officer, is very different from the function of a court conducting judicial review. The Commission is required to determine whether the order to remove the officer was harsh, unreasonable or unjust, not merely whether the decision was made lawfully. As I have said, this task requires the Commission, at least to some extent, to examine the substance of the Commissioner's decision. Furthermore, the Act requires the Commission, as discussed in Newton (No. 2) , to review the matter in accordance with the procedures specified in s181F(1). The Commission is thereby required to consider the reasons for the Commissioner's decision and the respective cases brought by the parties as to whether the removal from office was harsh, unreasonable and unjust. 215 The respondent sought to emphasise the importance of s181F(3) which requires the Commission, in making its decision, to have regard to the interests of the applicant and the public interest (which is taken to include the interest of maintaining the integrity of the Police Service and the fact that the Commissioner made the order pursuant to s181D(1)). The respondent submitted that the legislation requires the Commission to balance the competing interests and there is no basis upon which the interests of the applicant should be given more importance or weight than that of the public. The fact that the Commissioner has expressed a loss of confidence in the applicant's suitability to remain a police officer is contended to be significant in the public interest. 216 The intent of the sub-section is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interests and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so. 217 However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other. 218 The subsection also makes clear that the public interest is only taken to "include" the public interest in the integrity of the Police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, for instance, Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context): Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. 219 In this case, there are many factors which the public may have an interest in upholding, including the interests of maintaining the integrity of the Police Service. Not the least of these will be the importance of ensuring that public officials who are conferred responsibilities by the Parliament, the exercise of which may affect the rights or reputation of individuals, carry out those responsibilities in a manner which is both just and reasonable. 220 In my view, and having regard to the foregoing discussion of the legislative scheme and relevant principles, it is clear that the legislative scheme involves a review of the decision and orders of the Commissioner as a merit review, although in a situation where appropriate caution must be exercised in the light of the important public interest considerations involved and the process which preceded the Commission's review proceedings (that is, the process giving rise to and the fact of the decision made by the Commissioner). Consideration 221 The task of the Commission is then to determine whether the decision to remove the applicant was harsh, unreasonable or unjust, having regard to the foregoing legislative scheme and principles arising in relation to the same. Having considered the evidence which was before the Commission and noting the findings of fact earlier made in this decision, I have formed the view that the decision to remove the applicant was harsh, unreasonable and unjust. I consider that each element of the phrase "harsh, unreasonable or unjust" within s181E(1) (and see also s84 (1)) is applicable to the removal of the applicant in this matter (see Bankstown City Council v Paris (unreported, Wright J, President, Peterson J and Bishop C, Matter No. IRC262 of 1999, 23 August 1999) at 20). 222 The decision of the Commissioner and the reasons advanced in support of his decision were, in my view, founded on a fundamentally inadequate assessment of the available information. The insufficiency of the consideration given to the available information is revealed by the finding made by the Commissioner that he tended "to believe the allegations which were made rather than the account and denials by the Senior Constable". It is clear from the Commission's earlier discussion of the decision-making process that the Commissioner did not have before him such information as would properly permit him to come to such a conclusion. He did not, in essence, have the substance of those allegations before him. Excepting for the submission of the applicant, the Commissioner had only bare details of the allegations as originally stated by the complainants and advice of the outcome of the internal investigation and the criminal trial. 223 Although the analyst apparently considered the statements of the complainants (and not the transcript of their evidence), the profile did nothing to describe with any precision the nature of the allegations contained in the statements and nor did it fairly set out the competing contentions in the nature of inconsistencies or corroboration as would enable the Commissioner to properly balance the nature of the allegations made. The further report from the analyst supplied to the Commissioner after the written submission was made by the applicant provided no further information than the applicant's written submission which, as I will now discuss, raised a serious basis for concern as to the veracity of the allegations made against the applicant. In my view, the 'response' provided to the Commissioner gave an inaccurate assessment of the applicant's submission to the extent that it was suggested the applicant's submission demonstrated no 'deficits' in relation to the facts (such as they were) contained in the profile. 224 The Commissioner did not have before him any of the record of the criminal proceedings. In particular, the Commissioner did not have the transcript of the committal proceedings before the magistrate nor of the trial before Judge Armitage QC. The only material relating to the criminal proceedings which the Commissioner did have before him relevant to the veracity of the allegations was that provided by the applicant in his response to the notice given under s181D(3)(b), namely, the findings of the magistrate in the committal proceedings and the transcript of the applicant's evidence in the District Court trial. The evidence of the applicant in the District Court trial contained statements consistent with his repeated denials of the allegations. 225 The reasons of the magistrate, on the other hand, pointed to some serious deficiencies in the prosecution's evidence against the applicant. Amongst other things, the magistrate observed that the inconsistencies in the evidence of the complainants were manifest, that the three complainants did not come close to achieving precisely the same account and that one of the complainants at least was a very poor witness. The respondent submitted that these comments of the magistrate in the committal hearing adequately identified to the Commissioner the inconsistencies in the evidence of the complainants. This submission has not been sustained. The magistrate expressed some of his concerns with the prosecution's case, but did not attempt to describe in any detail the nature of the inconsistencies or absences in the evidence. As Detective Inspector Champion conceded, the reasons of the magistrate raised good cause for concern as to the veracity of the allegations. He further identified in cross-examination that an assessment of the inconsistencies of the complainants would normally be good police practice and commonsense in ordinary police work. He also conceded that the inconsistencies in the evidence of the complainants would represent a deficit in the Crown's case against the applicant at the criminal trial which would have been relevant to the Commissioner's assessment of the veracity of the allegations made against the applicant. Rather than constituting sufficient description of the inconsistencies in the complainant's evidence, the reasons of the magistrate should, in my view, have alerted the Commissioner to the need for further inquiry and analysis of the available information which was not undertaken by him. Indeed, he had arranged to have such material before him in other matters arising under s181D of the Act. 226 The fact that the Commissioner did not have before him the record of the criminal proceedings meant that he did not have regard to the evidence of Mr Wadsworth given at the District Court trial in which Mr Wadsworth corroborated the evidence of the applicant denying that any of the alleged misbehaviour occurred at the police station on 12 August 1990. In Oswald (No. 2) , a major aspect of the Full Bench decision concerned the failure of the Commissioner to have regard to evidence which corroborated the evidence given by the dismissed officer. The Full Bench concluded (at 64): We turn now to the evidence given before the Police Royal Commission by Mr Walpole which was corroborative of the evidence of the appellant, but not referred to by the Acting Commissioner in the s181B notice. There was no other evidence led from which it could be inferred that the Acting Commissioner had considered this evidence. It was tendered in the appellant's case. Mr Walpole was not required for cross-examination. It follows that Fisher P, in our view, was in error in finding (at p 23) that '… the account given by Mr Osborne [sic] is supported in these proceedings only by his own reiteration'. As was observed by the Full Bench in Bigg (No 2) (at 457) - '... the Police Commissioner would not be justified in considering only the information which led to the conclusion that the police officer was corrupt or had committed an indictable offence.' That the evidence given by Mr Walpole before the Police Royal Commission was evidence which the Acting Commissioner was obliged to consider in coming to a view about the appellant is manifestly clear. 227 The decision of the Full Bench in Oswald (No. 2) was concerned with the correctness of a finding made at first instance in light of the evidence available at the hearing. However, in my opinion, the failure of the Commissioner in this matter to have regard to readily available material which corroborated the account of the applicant demonstrates the inadequacy of the approach adopted by him to the consideration of the allegations. It is true that the evidence of Mr Wadsworth was not before the Commissioner, nor was it referred to in the response of the applicant. Nonetheless, the Commissioner was aware that Mr Wadsworth was charged and acquitted in relation to the same alleged incident and that his evidence was likely to be important in considering the veracity of the allegations. In a situation in which the material before him was manifestly deficient, the Commissioner should have sought and had regard to such information. 228 The information not considered by the Commissioner (that is, the transcript of evidence of the complainants and Mr Wadsworth), which is now in evidence in these proceedings, calls the opinion formed by the Commissioner into doubt (see Bigg (No. 2) at 457 and 458). Further, the material which was before the Commissioner, in substance, substantially supported a conclusion consistent with the innocence of the applicant. 229 It is not necessary in this case to determine the precise scope of the investigation which the Commissioner would generally be required to conduct in order to ascertain the veracity of allegations made against a police officer. It is certainly not intended to imply that the Commissioner is required to conduct an exercise in the nature of a trial or formal proceedings. However, where the Commissioner chooses to draw, as in this matter, a positive conclusion that he believed the allegations of the complainants over the denials of the applicant, he should have before him sufficient information as would enable him to weigh the competing contentions. It is not open for the Commissioner to draw conclusions which are obviously not supported by the information and materials before him or to refrain from considering countervailing information which may support the applicant. This is particularly so where the evidence which is before him raises manifest and serious concerns as to the veracity of the allegations and further information directly relevant to those allegations would be readily available. 230 The respondent contended that even if the Commission found that there were deficiencies in the information provided to the Commissioner, or that there was other information which he should have used to fully inform himself, the Commission may nonetheless consider that the case is not one which warrants intervention. The respondent cited the approach adopted by Maidment J in Bartlett . After criticising the profile in that case, his Honour said (at 453): I note my concern that the profile of Mr Bartlett prepared for the Commissioner contained unwarranted conclusions and opinions and also inaccurate material. As earlier stated I am of the view that, nonetheless, the processes involved afforded Mr Bartlett with an opportunity to address those matters in these proceedings. 231 In the present case, if the Commission forms the view that the dismissal of the applicant was harsh, unreasonable or unjust having regard to the procedure adopted by the Commissioner, the unfairness involved is not, in my view, removed by virtue of the right of the applicant to bring a claim before the Commission: see Abboud at 51. The dismissal remains harsh, unreasonable and unjust for that reason (although this does not suggest the relief which may be appropriate in a given case). In any event, the deficiencies in the process adopted by the Commissioner were not restricted to deficiencies in the profile. As I have said, the Commissioner made positive findings preferring the evidence of the complainants to that of the applicant without having before him sufficient information which could have properly supported such a finding. 232 In addition to the inadequacies in his consideration of the available materials, the Commissioner also introduced considerations of the publicity and community outrage concerning the applicant's case into his reasoning process. It was conceded by counsel for the respondent that these considerations were not raised with the applicant prior to the making of the order under s181D. This concession recognises a failure on the part of the Commissioner to comply with the requirement of s181D(3)(a) to give notice of the grounds on which he does not have confidence in an officer. Counsel also conceded that it was not appropriate for the Commissioner to take into account mere 'public agitation' about an event in assessing whether or not there was an effect on public confidence and that it would be unfair to the applicant to do so (although he sought to distinguish the Commissioner's reasons in this case as being merely connected with a consideration of the public interest for the purposes of the Act). Detective Inspector Champion, in his evidence, agreed that there should not have been a reference to the publicity or community outrage in the decision of the Commissioner (and that it was not relevant to the s181D process). Further, he conceded that reliance upon this community outrage was procedurally unfair to the applicant. This concession was, in my view, properly made by the witness. I would add that considerations of alleged publicity or community concern, undertaken by the Commissioner in his decision, are foreign to the determination the Commissioner was required to make, namely, whether he had confidence in the suitability of the applicant to continue as a police officer. 233 In this case, the conclusion that the applicant's removal was harsh, unreasonable or unjust follows from the inadequacies in the approach adopted by the Commissioner in the s181D process. The Commissioner's decision was, in my view, "uninformed" in the sense that that expression was used in the Full Bench decisions in Bigg (No. 2) and Oswald (No. 2) . The Commissioner made explicit findings as to the veracity of the allegations against the applicant without having before him details of the allegations made and without regard of other evidence which would have thrown light upon the nature of the allegations. He did so in circumstances in which the evidence which was before him would have caused considerable disquiet in the mind of a reasonable observer. In addition, the Commissioner had regard to undetermined considerations of publicity and community concern which were not brought to the attention of the applicant and which were, in any event, unfair and largely irrelevant. In relying upon those considerations, the exercise of the discretion by the Commissioner plainly miscarried having regard to requirements for the exercise of such a discretion enunciated in the decision of Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd. The decision was also infected by considerations which fell outside rules of reason and justice which should have applied in the decision making process. 234 Hence, the procedural deficiencies in the approach adopted by the Commissioner to the s181D process in this case provide a sufficient basis to determine that the applicant's removal was harsh, unreasonable and unjust. However, having regard to the decision of the Full Bench in Newton (No. 2) (at 79), the earlier discussion of the legislative scheme and relevant general principles in this decision, the respective cases put by the parties (in which the substance or merit of the allegations was debated) and, further, given the Commissioner's assessment of "allegations" in his reasons for decision (see s181F(1)(a)), it is appropriate to also consider the substance of the decision to remove the applicant. It is also appropriate, in my view, to express a view as to whether the allegations against the applicant were made out. 235 In making these findings, I do not think it necessary to express an opinion concerning whether the Commissioner bears the onus of establishing that an officer removed under s181D is guilty of the misconduct alleged against him or her: see Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83 - 84 and Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463 - 464. In this case, I consider that the veracity of the allegations may be determined without recourse to the question of onus, as I consider that the applicant has made out his case even upon an assumption that he bears the onus and evidentiary burden as to all the relevant matters in dispute (see Bankstown City Council v Paris , at 13). 236 In considering whether the allegations were made out, I must also stress the limited nature of the evidence which was available to the Commission. In particular, the Commission did not have the advantage of observing the complainants giving evidence. The Commission was restricted to considering their evidence (given at the committal hearing and at trial) on its face. The Commission was also not assisted by detailed submissions concerning the factual material. However, it is only possible for the Commission to make findings on the evidence before it. On the basis of that evidence, I have formed the view that I am satisfied that the applicant has established, upon the balance of probabilities, he did not engage in the conduct which he was alleged to have undertaken in the grounds specified in the notice (or more generally to engage in the conduct alleged in the Commissioner's reasons for decision). 237 In arriving at this conclusion, I firstly had regard to the evidence given before the Commission by the applicant. I closely observed the applicant giving evidence and being cross-examined by counsel for the respondent. He was, in my opinion, a witness of credit who gave forthright, consistent and reliable evidence of matters within his memory. His evidence to the Commission was consistent with his evidence at the committal hearing and at trial and consistent with his repeated denials that any of the alleged misconduct had occurred. His evidence was also largely corroborated by Mr Wadsworth, both in relation to his denial that any misbehaviour of the type alleged occurred and in relation to a number of incidental aspects of his account. Further, Mr Wadsworth was not required for cross-examination by the respondent. 238 In contrast, the evidence which was said to support a finding that the allegations were made out was characterised by a number of deficiencies. I have previously examined a number of the inconsistencies which were evident on the face of the evidence given by the complainants in their statements at the committal hearing and at trial. These inconsistencies speak for themselves and are related to significant aspects of this matter. The inconsistencies touched on the identity of the officers alleged to be involved in the incident, the timing of key events including the complainants' arrest, as well as events comprising the allegations themselves. The complainants gave inconsistent evidence concerning relevant parts of the accounts, including whether they were deprived of food while held in the cells and whether they discussed what had happened upon their return to the cells. 239 A number of other uncertainties in the evidence were not addressed by the respondent. In particular, the evidence introduced from the applicant's police notebook established the he did not work on either the Friday or Saturday and only worked a shift running from 3pm to 11pm on the Sunday, 12 August 1990. This evidence gives rise to a question as to whether that he did not work the same shift as Mr Wadsworth on that day and also raises some doubt as to whether the applicant was on duty at the time the alleged events were said to have occurred. The evidence of the complainants differed as to the time of those events. However, both RS and KB1 believed that they occurred "very late" or at least after 11pm. The evidence of the times which the applicant worked on that weekend also creates considerable uncertainty concerning insinuations that the applicant was involved in depriving the complainants of food whilst they were in the cells. 240 There were also a number of reasons to question the reliability of the complainants as witnesses. In this regard, I consider that I should have regard to the comments made by the magistrate at the conclusion of the committal hearing. The magistrate had the advantage of seeing the witnesses. Amongst other things, the magistrate remarked upon the inconsistencies in the evidence and stated that KB2 was "a very poor witness". Similarly, although the reasons of Judge Armitage QC were not available to the Commissioner, the fact that a costs certificate was issued in favour of the applicant in relation to the criminal proceedings must be taken to be a comment on the reliability of the evidence given by the complainants. Ordinarily, such comments would be disregarded in separate proceedings. However, as the Commission has not been given the opportunity to form its own opinion of the reliability of the complainants, the opinions expressed by the magistrate and the fact of the costs certificate must be given some weight. 241 Finally, I take note of the criminal convictions of the complainants. In relation to the reliability of the complainants as witnesses, I do not regard the fact that each of the complainants has a number of convictions as in itself of any significant weight. However, I should have regard to the fact that they each have convictions relating to offences involving dishonesty. 242 In light of all these factors, I am not satisfied that the evidence before the Commission sustains the allegations made against the applicant (even assuming that the onus of convincing the Commission that the allegations were untrue or had no basis in fact fell entirely upon the applicant). Relief 243 Having determined that the decision to remove the applicant was harsh, unreasonable and unjust, it is necessary to consider the relief to be granted. The Act itself makes no express reference to the relief to be available in the case of an application brought under s181E. Rather, s181G incorporates, by reference, the provisions of the IR Act relating to unfair dismissal applications. Relevantly, s89 of the IR Act provides as follows: 89. Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (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. (3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. (4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. (7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. (8) An order under this section may be made on such terms and conditions as the Commission determines. 244 It should be noted that s181G(1)(d) provides that s89 of the IR Act is to be read as if sub-section (7) were omitted in the case of an application under s181E. 245 In my view, the incorporation of this provision must have the effect of rendering a similar approach appropriate to the granting of relief under the Act as is appropriate under the unfair dismissal provisions of the IR Act. If the Commission finds that the dismissal of an employee has been harsh, unreasonable or unjust, the primary remedy available under the IR Act is reinstatement or re-employment. It is only in circumstances in which reinstatement or re-employment are found to be impracticable that the Commission will give consideration to the remedy of compensation: see Leeds and Northrup Australia Pty Ltd v Hull (1992) 46 IR 11 at 15 and Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100 at 104. 246 The proper approach, when evaluating the practicality of reinstatement or re-employment, was considered by the Full Court of the then Industrial Relations Court of Australia ( Wilcox CJ, Marshall and North JJ) in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192: If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. 247 This approach was adopted by Full Benches of this Commission in Hollingsworth v Commissioner of Police (1999) 88 IR 282 at 341 - 342; CCH Australia Ltd v Bowen (1998) 79 IR 205 at 217 - 218 and Oswald (No. 2) at 67. 248 That having been said, there may be some particular considerations which arise when hearing an application brought under s181E of the Act. As has been mentioned, s181F(3) requires the Commission, in making its decision, to have regard to the interests of the applicant and the public interest, including the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order under s181D(1). The need to have regard to these matters may arise in some instances when the Commission is called upon to determine if the removal of a police officer was harsh, unreasonable or unjust. However, it would seem to me that the public interest in maintaining the integrity of the police service will be particularly pertinent when the Commission comes to consider what relief should be granted. 249 The power of the Commission to order the reinstatement of an employee should always be exercised with caution (see Slonim v Fellows (1984) 154 CLR 505 at 515), particularly where the case involves a public position such as that of a police officer. The proposed reinstatement of a police officer whose integrity has been impugned is a matter of some gravity having regard to the position of trust and responsibility occupied by members of the police force in our society. However, the remedy of reinstatement is clearly provided by the Act. The capacity of an officer to seek the review by the Commission of his or her removal under s181E is itself evidence that the legislature did not intend either the making of an order removing the officer or the fact of allegations being raised against the officer to of itself preclude reinstatement. The incorporation of s89(5) of the IR Act in itself makes clear that reinstatement remains the primary remedy. 250 In this case, counsel for the applicant submitted that he is entitled to reinstatement without loss of benefits as a result of the finding that his dismissal was harsh, unreasonable or unjust. Counsel also pointed out that the applicant consistently denied the allegations, had an otherwise unblemished record of service, as well as excellent character references. The respondent contended that in determining whether the applicant should be granted relief, the Commission should take into account the serious nature of the allegations made, the fact that the complainants each gave an account of an incident of similar type, that the magistrate committed the applicant to stand trial in relation to the allegations and that, although the applicant was acquitted, the trial judge did not take the matter away from the jury and direct an acquittal. 251 Having carefully considered the evidence before the Commission, I have formed the view that not only was the removal of the applicant harsh, unreasonable and unjust, but that the appropriate relief to be granted is an order of reinstatement without loss of benefits. I come to this view with some hesitation having regard to the seriousness of the allegations made against the applicant. However, in this case, there were substantial procedural defects involving a failure on the part of the Commissioner to properly consider the available evidence. The Commissioner made positive findings against the applicant without having before him sufficient evidence upon which such findings could be based. In addition, the Commissioner introduced into the reasoning process extraneous considerations which were unfair to the applicant and not raised with him at any time during the process. 252 The respondent has raised no consideration which would support the view that any insurmountable impediment exists to the applicant being reinstated. Further, and aside from the allegations made by the complainants, the applicant had an otherwise unblemished record of service. There was no evidence presented of any other matter or incident which would be relevant to the suitability of the applicant to remain in the Police Service. I also take note of the character references provided by the applicant, the fact that the applicant consistently denied the allegations outright and persistently sought reinstatement to the Police Service. 253 Furthermore, in relation to the question as to whether the allegations against the applicant were made out, I am not satisfied that on the evidence before the Commission and upon the balance of probabilities (which test I apply for the purposes of this matter) they were. As was said in Oswald (No. 2) (at 68 - 69): Where, as here, a person's wrongdoing (indeed, corruption in the performance of public duty) has been the basis for a dismissal but has been shown following due process not to have been established then, in the opinion we have formed, that person has a right, as was remarked in Perkins , to the "primary remedy provided by the legislation". Otherwise, the mere accusation of guilty conduct would be equated to actual guilt and would be seen to be so. 254 I have had regard to the public interest for the purposes of s181F(3)(b) in coming to my decision to reinstate the applicant. In this respect I have applied the earlier discussion of relevant principles in this decision. The order made by the Commission is, for the reasons earlier given, based upon a flawed decision. The public interest, in my view, will not be adversely affected by the Commission making an order which will do justice in the circumstances of this case (where the rights and reputation of the individual have been adversely affected). Additionally, the public interest will be served by ensuring that the exercise of discretion by the Commissioner is carried out in a manner that is just and reasonable and in accordance with the relevant statutory requirements. Orders 255 I make the following orders: 1. The respondent shall reinstate the applicant in his former position effective on terms not less favourable than those which would have applied to him if he had not been removed from the Police Service. 2. The applicant's period of employment is to be taken not to have been broken by such removal. 3. The respondent shall pay to the applicant the remuneration the applicant would, but for being removed, have received before being reinstated less remuneration earned by him from other employment during that period. 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.