Industrial Court of New South Wales CITATION: Laurence Godkin v Commissioner of Police, New South Wales Police Service [2007] NSWIRComm 202 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT: Laurence Godkin PARTIES: RESPONDENT: Commissioner of Police, New South Wales Police Service FILE NUMBER(S): IRC 3306 of 2006 CORAM: Staunton J CATCHWORDS: Application for declaratory relief pursuant to s 154 of the Industrial Relations Act 1996 - declaratory power of the Court considered - application of Court's powers of interpretation under s 175 of the Act considered - held, on first considerations, the applicant's transfer under s 67(1) of Police Act contrary to the spirit and intent of s 67(1)(a) of that Act - necessary to consider provisions of s 89 and s 63 of the Police Act - definitions of 'appointment' and 'vacant position' in s 63 of the Police Act relevant - when taken together, applicant's transfer under s 67(1) of the Police Act not an industrial matter pursuant to the Industrial Relations Act 1996 relevant to the Commission's jurisdiction - held the privative provisions of s 89(3) of the Police Act ousts power of the Court to grant legal relief - held the Court has no jurisdiction to make the declaratory or consequential orders sought - Hickman principles considered - in all the circumstances, not persuaded that Commissioner acted in bad faith in exercising power to transfer under s 67(1) relying on s 67(1)(a) - application dismissed - issue of costs reserved. Federal Court of Australia Act 1976 Land and Environment Court Act 1979 LEGISLATION CITED: Industrial Arbitration Act 1940 Industrial Relations Act 1991 Industrial Relations Act 1996 Police Act 1990 A v Commissioner for Children and Young People and anor [2001] 107 IR 211 Atlantis Relocations (NSW) Pty Limited v Department of Industrial Relations [2000] 99 IR 125 Ford v SAS Trustee Corporation [2000] 98 IR 443 Mitchforce v Industrial Relations Commission of New South Wales and ors [2003] 124 IR 79 CASES CITED: National Parks and Wildlife Service and anor v Stables Perisher Pty Limited (1990) NSWLR 573 PEIRA v PSA (NSW) (Re Scorzelli) [1993] 49 IR 169 Plaintiff 5157/2002 v Commonwealth (2003) 211 CLR 476 Public Service Board (NSW) v Public Service Association (NSW) [1986] 14 IR 445 R v Hickman; ex parte Fox (1945) 70 CLR 598 The Queen v Australian Broadcasting Tribunal; ex parte 2HD Pty Limited (1979) 144 CLR 45 HEARING DATES: 13 and 14 August 2007 DATE OF JUDGMENT: 5 September 2007 APPLICANT: Mr A Metcalfe of counsel SOLICITORS: Walter Madden Jenkins LEGAL REPRESENTATIVES: RESPONDENT: Mr J West QC SOLICITORS: Henry Davis York JUDGMENT: - 19 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Staunton J DATE: 5/9/2007 Matter No IRC 3306 of 2006 Laurence Godkin v Commissioner of Police, New South Wales Police Service Application for declaratory relief pursuant to s 154 of the Industrial Relations Act 1996 JUDGMENT [2007] NSWIRComm 202 1 While this application is brought primarily pursuant to s 154 of the Industrial Relations Act 1996 (the Act), it is also stated to be brought pursuant to s 175, Powers of Interpretation, of the Act and/or the inherent powers of the Commission. 2 Initially, when the matter was filed, there were two applicants, namely Laurence Godkin and Darren Taylor. Following conciliation, Mr Taylor's matter was resolved between the parties. Accordingly, a Notice of Discontinuance was filed with respect to Mr Taylor on 21 March 2007. This matter has proceeded with respect only to Laurence Godkin. 3 The declaratory relief sought under s 154 of the Act is framed in the following terms: (1) Laurence Godkin is entitled to the following declaration: (i) that the purported transfer of Officer Godkin from the Police Academy, Goulburn was not in the interests of NSW Police. (2) The applicant is entitled to the following consequential orders: (i) that he is entitled to remain employed at the Police Academy, Goulburn; (ii) his purported transfer from his employment at the Police Academy on or about 9 August 2006 is invalid and of no effect; (iii) payment of any remuneration that has been withheld or otherwise not paid as a consequence of the invalid transfer orders; (iv) such further or other orders as the Court deems appropriate. (3) Each party bears their own costs. Relevant factual background 4 There is no relevantly significant factual dispute between the parties as to the background giving rise to the application currently before the Court. 5 The applicant currently holds the rank of Sergeant with the NSW Police Force. He joined the Force in 1987 and performed general duties and highway patrol duties. 6 In March 2000, Sergeant Godkin was transferred to a teaching position at the Goulburn Police Academy. He was then at the rank of Senior Constable. In April 2003 he was promoted to Sergeant. Further, he held the position of Acting Senior Sergeant for a limited period in 2006. 7 During the latter period of 2002 and extending into 2003, an inquiry was undertaken into allegations of sexual misconduct and inappropriate relationships with students by police officer teachers at the Police Academy. That inquiry was known as the 'Professional Distance Inquiry' (the Inquiry). 8 The applicant was one of the police officers who was the subject of the Inquiry's investigations. That Inquiry made adverse findings against the applicant in relation to two complaints. A subsequent review of the Inquiry's findings and recommendations determined that one of the two adverse findings could not be sustained. That left one adverse finding of sexual harassment consisting of inappropriately touching a female student and making inappropriate sexually suggestive comments and gestures towards her. 9 In October 2003, when that finding was sustained, the decision taken by police management was to counsel the applicant. The applicant remained at the Police Academy but, for the most part, was removed from duties that involved him having any direct contact with students at the Academy. In or about June 2006, when he was promoted to Acting Senior Sergeant, he was put in charge of the Simulated Patrol Assessment Centre (SPAC) at the Academy. As deposed to by the applicant: [32] The SPAC program consists of three parts. Session 1 students are the recruits. Session 2 students are completing their training prior to being attested as Probationary Constables, and the third component are Distance Education Session 1 students. 10 On 9 August 2006, in circumstances largely not disputed, Sergeant Godkin was transferred by the Commissioner from the Police Academy to the Goulburn LAC (Local Area Command) pursuant to s 67(1) of the Police Act 1990 and in accord with s 67(1)(a) of that Act. 11 The basis of the Commissioner's decision under s 67(1) of the Police Act was that Sergeant Godkin's transfer was in the interests of the NSW Police. 12 The background to the decision taken by the Commissioner to transfer Sergeant Godkin was deposed to in considerable detail by Acting Assistant Commissioner McWhirter. He is currently the Director of Human Resources for the NSW Police. His affidavit was tendered without objection subject only to the deletion of one paragraph that was not pressed. I will return to the relevant parts of that affidavit later in this judgment. 13 It was Acting Assistant Commissioner McWhirter who, under delegation, exercised the Commissioner's power to transfer Sergeant Godkin pursuant to s 67(1) of the Police Act. 14 No issue was taken to Acting Assistant Commissioner McWhirter's power of delegation made pursuant to s 31 of that Act to transfer Sergeant Godkin relying on s 67(1) of the Police Act. 15 It is that transfer and the basis of the Commissioner's reasons for doing so that grounds Sergeant Godkin's application for declaratory relief in the terms filed. 16 What the applicant asserts, notwithstanding the explanation given by Acting Assistant Commissioner McWhirter, is that Sergeant Godkin's transfer is invalid in that it has not been effected in accordance with s 67(1)(a) of the Police Act. The decision to transfer Sergeant Godkin was done, it was contended, for an ulterior motive, that being to avoid further adverse media publicity in relation to the Police Academy. 17 Further, it was submitted, the decision to transfer Sergeant Godkin in August 2006 was oppressive in that it amounted to further disciplinary proceedings for matters that were the subject of disciplinary proceedings finalised in 2003. It was, in effect, a disciplinary transfer in relation to non-reviewable action taken in 2003. The declaratory power of the Court 18 The respondent challenged the Court's jurisdiction to deal with the application for declaratory relief in the terms as filed or at all. 19 In the first instance, the Court's power to grant declaratory relief is governed by the provisions of s 154 of the Act that provides: (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 20 Reference to the Commission in Court Session should now be read as the Industrial Court. 21 It seems plain on a reading of the above provisions that the Court's power to grant declaratory relief is confined to 'a matter in which the Commission (however constituted) has jurisdiction.' As was said by the Full Bench in Atlantis Relocations (NSW) Pty Limited v Department of Industrial Relations [2000] 99 IR 125 at 127: The declaratory jurisdiction arises 'in relation to a matter' in which the Commission has jurisdiction whether or not any consequential relief is or could be claimed: s 154(1). The declaratory power is therefore not contingent upon the existence of proceedings which are otherwise within jurisdiction as the power arises in relation to a matter as opposed to proceedings. 22 See also the decision of Hungerford J in A v Commissioner for Children and Young People and anor [2001] 107 IR 211 at [8] and Ford v SAS Trustee Corporation [2000] 98 IR 443 at [76] where his Honour stated, correctly in my view: The fundamental nature of the declaratory power in s 154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter about which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it. 23 Having regard to the above decisions, with which I concur, I do not agree with the contention as framed in the application for relief that reliance was placed on the Court's 'inherent power' to grant such relief. That issue was considered by the Full Court of the Industrial Court in PEIRA v PSA (NSW) (Re Scorzelli) [1993] 49 IR 169. In that matter the Court considered whether the Court had an inherent power to grant declaratory relief in the absence of any statutory power in the Industrial Relations Act 1991 (the 1991 Act). 24 In considering that issue, the Full Court said: The fact that the parliament did not choose to make any provision to the effect of s 30A of the 1940 Act appears to us in the light of the legislative history and the course of decision making with respect to declaratory judgments generally to be decisively against a conclusion that the Court now has an inherent power to grant declarations in respect of any matter arising under the 1991 Act. The provisions of s 30A of the 1940 Act were in all material respects identical with those of s 75 of the Supreme Court Act 1970 (NSW). The history of the scope of the power in the Supreme Court to grant declarations is well documented (see for example the judgment of Gibbs J in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 434-435 and Equity Doctrines and Remedies (Meagher, Gummow and Lehane 2nd Ed Butterworths 1984, Chapter 19)). The latter work in dealing with the 1965 amendment to s 10 of the Equity Act 1901 (NSW) (the predecessor to s 75 of the Supreme Court Act 1970) observed (par 1910): "By the same Act the Legislation of New South Wales not only extended the equitable jurisdiction of the Court to grant declaratory relief, but also (for the first time) conferred on a common law judge sitting in commercial causes limited power to grant declaratory relief." That the power in that context was statutory appears not to have been doubted. For example in the same work in par 1902) the development of the remedy is referred to entirely in its statutory context and the history of English Courts of Chancery before 1850 refusing to make mere declaratory decrees is given. Further in Sutherland Shire Council v Levendekkers (1970) 91 WN (NSW) 250 at 256, Street J (as he then was) said: "It is to be observed that the English decisions proceed upon a rule of court providing that the court 'may make binding declarations of right'. In New South Wales the jurisdiction is statutory." 25 Ultimately, it seems to me, the declaratory power of the Court is limited by its jurisdiction. In that sense, it is akin to that of the Federal Court and the New South Wales Land and Environment Court. 26 The declaratory power of the Federal Court is to be found in s 21 of the Federal Court of Australia Act 1976 in the following terms: (1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. (2) A suit is not open to objection on the ground that a declaratory order only is sought. 27 The declaratory power of the Land and Environment Court is to be found in ss 22 and 23 of the Land and Environment Court Act 1979 in the following terms: [22] The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. [23] The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. 28 The extent of the declaratory power of the Land and Environment Court was considered by the Court of Appeal (Gleeson CJ, Kirby P and Meagher JA) in National Parks and Wildlife Service and anor v Stables Perisher Pty Limited (1990) NSWLR 573. In considering that issue, Gleeson CJ stated at 578: The Land and Environment Court is both a superior court of record and a court of limited jurisdiction. These characteristics are not inconsistent: see, eg, Cameron v Cole (1944) 68 CLR 571 at 599 per McTiernan J and R v Ross Jones; Ex parte Green (1984) 156 CLR 185. The characteristics of a superior court are described in the judgment of Latham CJ in R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208. Even a superior court of record, if it is a court of limited jurisdiction, is amenable to relief designed to keep it within its jurisdiction. In Ex parte Brennan (1915) 15 SR (NSW) 173, Cullen CJ said, at 178, with reference to the Court of Industrial Arbitration: "Now it is plain on the face of the Act that the Court of Industrial Arbitration is limited both in regard to the subjects on which it can adjudicate and in regard to the classes of persons affected by its adjudication… it is this limitation of jurisdiction, and not the question whether it is described as a superior or an inferior Court, which supplies the test whether a Court created for a special purpose is free to travel outside that jurisdiction without liability to be restrained by prohibition. But the description of a Court as a superior Court would prevent any implied limitation of its powers based on an assumption that it is to be regarded as an inferior Court." In Bank of New South Wales v United Bank Officers' Association (1921) 21 SR (NSW) 593 at 603, Cullen CJ said, referring to the same court: "… Though the Court is described as a superior Court, still, being a Court limited in its sphere of action in regard both to parties and to subject matter, any award and any order or proceeding of the Court which travelled beyond what is implied in 'industrial matters' would be, on the principle already referred to, not an award, order or proceeding of the Court within the meaning of the section. It would, to use a phrase very commonly adopted, be a proceeding coram non judice ." Although there seems in the past to have been some misapprehension about the matter, it is now clear, and was common ground on this appeal, that s 22 of the Act, properly understood, is not a section which confers jurisdiction upon the Land and Environment Court, or in any way extends the jurisdiction elsewhere granted to the court. The reason for this is explained in the judgments of the High Court in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457. The High Court was there considering the operation of s 22 of the Federal Court of Australia Act 1976 (Cth), which is in the same terms as s 22 of the Act, and is in similar terms to s 16 of the Supreme Court Act 1970. Those provisions have their origin in s 24(7) of the Judicature Act 1873 (UK) and s 43 of the Supreme Court of Judicature (Consolidation) Act 1925 (UK). It is well established that the purpose and effect of such provisions is to constitute a legislative injunction to a court to the effect that whenever a controversy arises in an action which can conveniently be determined between the parties to the action, the court should determine it so as to prevent further and needless litigation (at 489). The provisions have never been regarded as conferring jurisdiction. Rather, assuming the existence of a given jurisdiction, a provision such as s 22 confers power to grant relief in proceedings brought within such jurisdiction. The section does not amplify the jurisdiction of the Land and Environment Court. It provides that, where there is jurisdiction, it is to be fully exercised to secure the object identified in the section. Section 23, likewise, operates in respect of matters in which the court has jurisdiction. It does not grant, or extend, jurisdiction. (emphasis added) 29 Further, in concurring with Gleeson CJ, Kirby P said at 586: When, however, the legislation which confers jurisdiction on the Land and Environment Court is examined, I am driven to the same conclusion as Gleeson CJ has reached. Certainly, I do not agree with the concession made in Whitehouse (at 382) that s 22 of the Land and Environment Court Act 1979, of itself, confers on that Court a general "implied incidental power to deal with matters not expressly within its statutory jurisdiction". By its terms, s 22 confers on the Court the power to grant remedies "in every matter before the Court". This can only mean every matter properly before the court, that is, before the court within the jurisdiction conferred by statute or, consistent with statute, necessarily imported because it is a court. 30 One final matter in relation to the Court's power to grant declaratory relief. On behalf of the applicant, reliance is placed on the decision of the Full Bench in Public Service Board (NSW) v Public Service Association (NSW) [1986] 14 IR 445 at 447 to support the proposition that the Court's jurisdiction to grant declaratory relief was 'very wide'. 31 Reference to the above judgment and p 447 in particular does not support the above proposition - at least insofar as s 154 of the Industrial Relations Act 1996 is concerned. Any reference to the expression 'very wide' in referring to the declaratory powers of the Court having regard to s 30A of the Industrial Arbitration Act 1940 (the 1940 Act) is clearly reference to a submission made by counsel on behalf of the PSA in those proceedings. 32 Indeed, it is necessary to go to p 448 to elicit the Court's conclusions in relation to the then declaratory powers of the Court where it was said: The new power to make declaratory orders is couched in language which is consistent with that used in the Supreme Court Act , clearly demonstrating an intention that the Commission is to be vested with a discretionary power to make declaratory orders similar to that of the ordinary courts. The full extent to which the discretion may widen existing powers of the Commission need not be discussed. There can be little room to question in the present case, which concerns an employee in the public service whose rate of salary is regulated by an industrial award made under the Industrial Arbitration Act , that the new power is intended to be exercisable in a situation in which a question arises whether or not the employee has been lawfully deprived of his entitlement to salary, either as a consequence of some alleged incorrect application of award provisions, or of the terms of his contract of employment or some applicable statutory prescription, in this case the Public Service Act . 33 Further and more significantly, the declaratory power of the Commission under s 30A(2) of the 1940 Act was expressed somewhat differently to s 154 of the current Act. The provisions of s 30A of the Industrial Arbitration Act 1940 were as follows: 30A General powers and function of the commission. (1) The Commission: (a) is empowered to endeavour, by all means which it deems proper and necessary, to settle by means of conciliation industrial matters and matters arising under contracts to which Part VIIIA applies; (b) shall take all reasonable steps to effect an amicable settlement of industrial matters and matters arising under contracts to which Part VIIIA applies and for this purpose is empowered to adjourn any matter at any stage to enable the parties concerned to negotiate with a view to a settlement of the matters in dispute by amicable arrangements. (2) No proceedings before the commission shall be open to objection on the ground that a merely declaratory order or award is sought thereby, and the commission may make binding declarations of right whether or not any consequential relief is, or could be, sought. 34 In initial contentions filed in relation to this application, counsel for the applicant referred to s 175, Powers of Interpretation, of the Act as being relevant to the application for declaratory relief. Section 175 provides: The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 35 As I understand it, in relying on s 175, the applicant does not do so suggesting s 175 is a source of the Court's declaratory powers but rather pointing to the Court's power to interpret any relevant law or instrument in connection with a matter before it. 36 I would agree with the submission made by counsel for the respondent that only the Commission, pursuant to its arbitral powers under Ch 3 of the Act, (not the Industrial Court), requires recourse to the powers of interpretation that s 175 provides. Where the interpretation of a statute arises for consideration pursuant to the jurisdiction of the Court under s 153 of the Act, the Court would exercise its powers of interpretation relying on the general principles of statutory interpretation subject, of course, to it being a matter within the Court's jurisdiction. Relevant considerations 37 The respondent asserts that the matter that is the basis of the application for relief is not one over which the Court has jurisdiction. 38 In so asserting, the respondent points in the first instance to the relevant provisions of s 67(1)(a) of the Police Act that provides: If the Commissioner considers it to be in the interests of the NSW Police to do so, the Commissioner may transfer a non-executive officer from one non-executive officer position to another non-executive position: (a) if the position to which the officer is transferred entitles its holder to the same remuneration as the officer's former remuneration, or ....... 39 Putting to one side for the moment the provision in s 67(1) as to what is meant by the Commissioner's considerations 'in the interests of the NSW Police', it is the provisions in s 67(1)(a) that the applicant contends have been invalidly utilised by the Commissioner to transfer him from the Police Academy. 40 In support of that submission, the applicant maintains that the administrative decision taken by Acting Assistant Commissioner McWhirter, under delegation, to continue to pay him the Special Duties Allowance for Teacher, Foundational Studies, Education Services as provided by clause 39, Special Allowances of the Crown Employees (Police Officers - 2005) Award, is payment of an allowance as part of his remuneration to which he is not currently entitled. In short, the applicant submits, his transfer to a position at the Goulburn LAC is not one that 'entitles' him to the allowance that s 67(1)(a) requires in order to ground the Commissioner's power to transfer him under s 67(1). 41 In my view, there seems no doubt the decision to continue to pay Sergeant Godkin the above Special Duties Allowance was done to satisfy the requirements of s 67(1)(a) that requires an officer transferred pursuant to that sub-section to be transferred to a position that 'entitles' the officer to the same level of remuneration as the officer's former remuneration. The allowance clearly formed part of Sergeant Godkin's remuneration while at the Police Academy. As Acting Assistant Commissioner McWhirter deposed: [1] In his previous position at the NSW Police Academy, Sergeant Godkin was paid a Special Duties Allowance (Teacher, Foundational Studies, Education Services) at the rate payable to officers three years after permanent appointment (Code 1644) in accordance with the Crown Employees (Police Officers - 2005) Award (Teaching Allowance). [2] I determined that Sergeant Godkin should continue to be entitled to the Teaching Allowance following his transfer to the Goulburn Local Area Command. 42 That Sergeant Godkin was not entitled to continue to receive the particular allowance once he left the Police Academy is borne out by the fact that, after his transfer, the relevant administrative personnel at the Goulburn LAC stopped paying Sergeant Godkin the allowance. As Acting Assistant Commissioner McWhirter further deposed: [3] Following the transfer, Sergeant Godkin continued to be paid the Teaching Allowance for a period of just under two months. This was in accordance with my determination. [4] In the course of preparing for these proceedings, I became aware that on or around 8 October 2006, Ms Joanna Whittaker, General Administrative Officer, Human Resources, Goulburn Local Area Command, identified that Sergeant Godkin was being paid the Teaching Allowance, and classified the payment an "overpayment." As a result, payment of the Teaching Allowance to Sergeant Godkin had been stopped contrary to my intention and Sergeant Godkin had been required to repay $229.60 in Teaching Allowance that had been paid to him since his transfer. [5] In accordance with my intention that Sergeant Godkin should continue to be entitled to the Teaching Allowance, on 5 July 2007, I issued the following memoranda: .............. 43 It is not necessary, for the purposes of this judgment, to set out the memoranda referred to. Suffice to say that the decision made by Acting Assistant Commissioner McWhirter included the following direction: When Sergeant Godkin transferred from the NSW Police College to the Goulburn LAC on 10 August 2006, it was agreed that his allowances would be maintained. Further, he is to continue to receive this allowance until such time that he is transferred from your Command. 44 There seems little doubt that the Special Duties Allowance for Teacher, Foundational Studies, Education Services is an allowance directed quite specifically to an officer appointed to a position involving teaching duties within the overall educational services provided by the NSW Police. Reference to clause 39, Special Duties Allowance of the abovementioned Award lists, by grade, a specific array of allowances to be paid to an officer who holds a position designated within the gradings. Once he was transferred from the Police Academy, Sergeant Godkin was clearly not in a designated position attracting the allowance under clause 39 of the Award. 45 The respondent submitted that the overriding primary provision contained in clause 39 gave the power to determine the payment of an allowance to the Commissioner. That provision states: In addition to the rates prescribed for Non Commissioned Officers by clause 34 Salaries and clause 35 Loading of this Award a Non-Commissioned Officer who holds a position set out hereunder shall on the determination of the Commissioner be paid the appropriate allowance prescribed in Table 7 - Special Duties Allowances (Non-Commissioned Officers) of PART B Monetary Rates of this Award, provided that, in respect to grades 1 to 5 where more than one rate applies to a Non-Commissioned Officer they shall only be entitled to one rate namely the higher or highest. (emphasis added) 46 While the Commissioner 'shall' determine the payment of the allowance, such determination is predicated on the officer holding a position specified in sub-clause (ii) of clause 39. In his current position, Sergeant Godkin does not hold the position of Teacher, Foundational Studies, Education Services designated in sub-clause (ii) Grade 2 of clause 39, that had been the position he held at the Police Academy prior to his transfer. 47 It is abundantly clear, in his current position at Goulburn LAC, Sergeant Godkin does not hold a position that, in the normal course of events, would entitle him to receive the Special Duties Allowance he is currently receiving by dint of administrative fiat. 48 That the Commissioner is the person who determines the payment of the allowance does not, in my view, overcome the other condition precedent that entitles an officer to payment of the allowance - that being that he or she 'holds a position set out hereunder' as provided in sub-clause (i) of clause 39. 49 On one view, it would appear to be an arbitrary use of the Commissioner's power to determine payment of an allowance under clause 39 of the Award to an officer who did not hold a position designated in sub-clause (ii). On the face of the evidence, that is exactly what occurred in order to transfer Sergeant Godkin from the Police Academy under s 67(1) of the Police Act because, as the respondent contends, it was in the interests of the NSW Police to do so. 50 It should also be noted that s 67(1)(a) provides for an officer to be transferred by the Commissioner if the position to which the officer is transferred entitles the officer to the 'same remuneration' as he or she was receiving prior to the transfer. While the submissions received have centred on the continuing payment of the Special Duties Allowance as part of that remuneration, it has also been contended by the respondent that, at the Goulburn LAC, there may be the potential for overtime work and penalty rates that may result in Sergeant Godkin enjoying greater overall earnings following his transfer. 51 No evidence was produced to support such a proposition and it is entirely speculative. In any event, there is no inherent entitlement to overtime or penalty rate payments and, as I understand the position at the present time, Sergeant Godkin is not in receipt of any such payments. 52 Given the above, it is my view that in purporting to transfer Sergeant Godkin pursuant to s 67(1) of the Police Act, and specifically s 67(1)(a), the Commissioner did so contrary to the spirit and intent of s 67(1)(a). That is, he determined to effect Sergeant Godkin's transfer by determining to continue to pay him an allowance to which he was not entitled in order to effect his transfer under s 67(1) of the Police Act. 53 On first considerations, the above finding would be sufficient to ground a declaration that Sergeant Godkin's transfer from the Police Academy under s 67(1)(a) of the Police Act was invalid. Such preliminary considerations, however, are clearly contingent on other considerations, particularly the provisions of s 89 of the Police Act and the definitions contained in s 63 of that Act. 54 Section 89 of the Police Act provides: (1) The appointment of or failure to appoint a person to a vacant non-executive position, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) Subsection (1) applies whether or not any person has been appointed to a vacant non-executive position. (3) No proceedings for an order in the nature of prohibition, certiorari or mandamus, or for a declaration or injunction or for any other relief, lie in respect of the appointment of or failure to appoint a person to a vacant non-executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (4) Subsection (3) does not affect the operation of the Government and Related Employees Appeal Tribunal Act 1980. (5) The failure of a non-executive commissioned police officer to be appointed for a further term of office as provided by section 72B is for the purposes of this section taken to be a failure to appoint a person to a vacant non-executive position. 55 Also relevant is the definition of 'appointment' and 'vacant position' for the purposes of Part 6 of the Act to which ss 67 and 89 belong. They are contained in s 63 as follows: appointment means appointment by way of promotion or transfer or otherwise. ............. vacant position, in relation to a police officer position, means: (a) a position that is not held by a person, or (b) a position to which a person is temporarily appointed, or (c) a position that is held by a person who is temporarily appointed to another position in accordance with section 66 (1A), or (d) a position that is held by a person who has ceased to be temporarily appointed to another position in accordance with section 66(1A) if that person has no right of return to the position because of section 66 (1B). 56 Clearly, a transfer such as that determined in relation to Sergeant Godkin is an appointment for the purposes of s 89(1) of the Police Act. As well, given the definition of vacant appointment in s 63, Sergeant Godkin's transfer to what was described by Acting Assistant Commissioner McWhirter as an 'over strength position' at the Goulburn LAC would be categorised as a vacant position, being 'a position that is not held by a person'. 57 Given the above, Sergeant Godkin's transfer under s 67(1) of the Police Act is, in accordance with s 89(1) of the Act, not an industrial matter for the purposes of the Industrial Relations Act 1996 and is therefore not amenable to the jurisdiction of the Commission (as distinct from the jurisdiction of the Court). I am dealing with the jurisdiction of the Court under s 153(1)(b) and s 154 of the Act concerning the Court's power to make binding declarations of right. Accordingly, is it open to me and within jurisdiction to make a declaration as to the validity or otherwise of Sergeant Godkin's transfer? 58 In my view, the answer to that question is found within the privative provisions of s 89(3). Those provisions, as set out above, are sweeping in their import. When taken together with the definitions in s 63 of the Act, to which I have already referred, they effectively prohibit any 'proceedings' contemplated, including a declaration or 'other relief' in relation to the transfer of Sergeant Godkin to the 'over strength position' at the Goulburn LAC, irrespective of the 'invalidity of any such appointment'. 59 In my view, the privative provisions of s 89(3), when taken together with the relevant definitions in s 63, effectively oust the jurisdiction of the Court to grant the relief sought in relation to the transfer of Sergeant Godkin from the Police Academy. 60 The applicant contends that the application of what are generally referred to as the Hickman principles to the privative provisions of s 89(3) will not protect a manifest defect in the sense that the decision to transfer was not a bona fide attempt to exercise the power relying on the decision of the Court of Appeal in Mitchforce v Industrial Relations Commission of New South Wales and ors [2003] 124 IR 79 and Plaintiff 5157/2002 v Commonwealth (2003) 211 CLR 476. 61 Reference to the Hickman principles is reference to the decision of the High Court in R v Hickman; ex parte Fox (1945) 70 CLR 598 where the High Court effectively concluded that a privative provision in legislation is effective to protect from jurisdictional error provided the impugned decision embraces the following principles: (i) it was a bona fide attempt to exercise its power; (ii) it relates to the subject matter of the legislation; and (iii) it is reasonably capable of reference to the power given to the tribunal. 62 If I am wrong in my conclusion as to the combined application of ss 89 and 63 of the Police Act to Sergeant Godkin's application for declaratory relief, I am also not persuaded that, in exercising his power to transfer Sergeant Godkin under s 67(1) of the Act, relying as he did on s 67(1)(a), the Commissioner has acted in a manner that would render his decision invalid, relying on the above Hickman principles to usurp the privative provisions of s 89(3) of the Police Act. 63 Applying the above principles to the issue before me, the Commissioner's decision cannot be said not to relate to the subject matter of the legislation. Likewise, the Commissioner's decision under s 67(1) was reasonably capable of being a reference to the power given to the Commissioner or his delegate. 64 As to the Commissioner's decision to transfer Sergeant Godkin not being a bona fide attempt to exercise his power under s 67(1), it is necessary, in my view, to consider the reasons given for the Commissioner exercising his power to transfer Sergeant Godkin. They are detailed in the affidavit of Acting Assistant Commissioner McWhirter and are unchallenged. They are, relevantly as follows: NSW Police Force recruitment [12] On 6 June 2006, the NSW Government released the Budget Estimates 2006-2007 , which included a commitment to increase authorised police numbers by 750 positions. In order to meet this commitment, the NSW Police Force was required to commence a major recruitment campaign. [13] In the normal course, the NSW Police Force has a relatively targeted recruitment strategy. Generally, the NSW Police Force will be represented at various career days held at universities and colleges, as well as major community events around the State, such as the Royal Easter Show. The purpose of attending these events is to engender a general level of community interest in pursuing a career with the NSW Police Force. [14] From time to time, the NSW Police Force has also used television advertising in its recruitment strategy. For example, in 2002, a very successful television campaign was conducted featuring the slogan "he's not heavy, he's my brother," which had a markedly positive effect on recruitment. [15] In general, the NSW Police Force is able to attract about 1,000 - 1,200 recruits per year to commence training. These new recruits for the NSW Police Force are trained at the NSW Police College in partnership with Charles Sturt University. The NSW Police Academy has three intakes per year. At any one time, there will be two classes of recruits in training at the Academy, with an average class size of approximately 320 recruits. [16] As a result of my experience, I am aware that there is an attrition rate of approximately 20% for new recruits. This means that, on average, approximately 960 new recruits are required in order to have 760 new recruits graduate the Diploma of Policing Practice and go on to be sworn as probationary constables each year. [17] Given that the NSW Police Force has an attrition rate of approximately 60 officers per month, the numbers of recruits coming through the NSW Police Academy and completing the Diploma of Policing Practice each year will generally maintain overall numbers in the NSW Police Force. Normal recruitment procedures therefore keep the NSW Police Force at a "steady state" level. [18] However, in order for the NSW Police Force to achieve the target of 750 additional officers on the ground, it was necessary to recruit an extraordinary intake of 950 recruits (taking account of likely attrition rates) in a single class (class number DPP26) to be at the Academy and in training in September 2006. ... ..................... [20] To attract 950 new recruits for the September class, the NSW Police Force was faced with the task of: (a) Seeking to ensure that as many as possible of pool of 290-300 potential recruits who had already been identified were enrolled in the September 2006 intake; (b) Expanding the recruitment campaign to try and interest quality people in a police career who might not otherwise have considered a career in policing as an option; (c) Trying to get potential applicants who were considering joining the NSW Police Force to apply sooner, rather than later; (d) Competing with other law enforcement agencies and similar agencies, including the Australian Defence Force, the Australian Federal Police and State police in other jurisdictions, for the best and brightest recruits; and (e) Trying to cater for longer term recruitment needs by ensuring that the applicant pool was replenished as soon as possible for future intakes. ...................... [22] I understand that, in or about 2005, The Daily Telegraph made its first request for documents connected to the Professional Distance Inquiry under the Freedom of Information Act. I understand that issues about the documents which were, or were not, required to be released in response to that request were initially dealt with by the Legal Services and Corporate Services areas. I understand that these issues were eventually referred to the Ombudsman. [23] I did not have any involvement in relation to the Freedom of Information request made by The Daily Telegraph. Nor did I have any involvement in determining which documents would, or would not, be released under the Freedom of Information Act. [24] On or about Thursday 20 July 2006 or Friday 21 July 2006, I attended a meeting of the Professional Standards Command. To the best of my recollection, in addition to myself, the meeting was attended by: (a) Assistant Commissioner John Carroll, Commander, Professional Standards; (b) Ms Fran McPherson, Executive Director, Corporate Services; and (c) Assistant Commissioner Lee Shearer, Legal Services. [25] During the meeting, one of the other participants (I do not remember exactly whom) made a comment in words to the following effect: " We are going to have to release a large amount of material to The Daily Telegraph about the Professional Distance Inquiry . We need to consider how to manage any potential fall-out ." [26] During the meeting, one of the other participants, probably Assistant Commissioner John Carroll, made a comment in words to the following effect: " We need to ascertain for sure whether or not there are any officers still at the Academy that were subject to adverse findings in the 268 Inquiry. If so, we will need to consider how to manage that ." [27] Given that I had been an Acting Chief Superintendent at the Academy for three months in 2004, I was aware of the identity of a number of officers who had sustained adverse findings as part of the 268 Inquiry. I knew that Mr Laurence Godkin was one of those officers. I also knew that Mr Godkin remained attached to the Academy, although, as at the time of the meeting, I did not know if there were any other officers who had sustained adverse findings who also remained attached to the Academy. [28] Not long after the meeting, although I cannot remember exactly when, I learnt that, in addition to Mr Godkin, there was one other officer who was still attached to the Academy who had also been subject to adverse findings as a result of the 268 Inquiry. Media interest in the outcomes of the Professional Distance Inquiry [29] On or about 24 July 2006, The Daily Telegraph published a story regarding the findings of the Professional Distance Inquiry in relation to conduct at the NSW Police Academy. The story was entitled " Secret Police File of Shame - Trainees in Sex Scandal ". [30] Following the publication of the article " Secret Police File of Shame - Trainees in Sex Scandal " by The Daily Telegraph on 24 July 2006, there was substantial general media interest in the story. [31] For instance, I am aware that the findings of sexual misconduct at the NSW Police Academy was reported in a range of media outlets, including the Daily Telegraph , the Sydney Morning Herald , the Australian Broadcasting Corporation, the Sunday Telegraph , 2GB radio, Australian Associated Press, the Border Mail , the Birmingham Post , and the Hobart Mercury . [32] Annexed to this affidavit and marked "A" is a true copy of clippings of articles in the press about sexual misconduct at the NSW Police Academy from around that time. [33] I am also aware that comments regarding misconduct at the NSW Police Academy were made by the (then) NSW Police Minister, Mr Carl Scully, and (then) NSW Leader of the Opposition, Mr Peter Debnam. For instance, I am aware that comments made by Mr Scully and Mr Debnam were reported in various newspapers on 27 July 2006, 6 August 2006, 8 August 2006, 9 August 2006 and 11 August 2006. Some of those comments are reported in the articles attached as Annexure "A" to this affidavit. NSW Ombudsman's Report - "Misconduct at the NSW Police Academy" [34] At the beginning of August 2006, the NSW Ombudsman also released a special report to Parliament under s.31 of the Ombudsman Act 1974 , entitled " Misconduct at the NSW Police Academy. " ........................ [36] The Ombudsman's report detailed a number of case studies in respect of which adverse findings had been made as part of the 268 Inquiry. [37] Mr Godkin is not specifically named in the Ombudsman's report. However, at the time that the Ombudsman's report was released, I had already obtained a copy of the findings and recommendations of the 268 Inquiry. [38] That document recorded that adverse findings had been made against Mr Godkin with respect to the following matters: (a) that Mr Godkin did sexually harass a named student by inappropriately touching her and making inappropriate sexually suggestive comments and gestures towards her in around November 2001; and (b) that Mr Godkin did misuse his authority for personal benefit and sexually harassed a named student by requesting for sexual favours under threat that he could prevent her from attesting at some time between April and May 2001. .......................... [40] I was also aware that Superintendent Wayne Benson subsequently reviewed the findings and recommendations of the 268 Inquiry in relation to Mr Godkin. Superintendent Benson was not satisfied that the second finding regarding misuse of authority to obtain sexual favours could be sustained. However, this still left one sustained finding against Mr Godkin. [41] Having read the document setting out the findings of the 268 Inquiry, I recognised that Case Study B in Appendix 1 of the Ombudsman's report was a critical summary of the findings and recommendations of the 268 Inquiry regarding allegations of sexual misconduct against Mr Godkin. The case study was cited as an example of " poor handling by police of a serious complaint " in the Ombudsman's report. [42] I was concerned that the Ombudsman's report would significantly fuel further media scrutiny of the allegations of sexual misconduct at the NSW Police Academy and cause further adverse impact on the image and reputation of the NSW Police Force. Adverse impact of media coverage [43] By early August 2006, I was becoming quite concerned at the effect that the media interest in the culture of the NSW Police Academy might have on the recruitment campaign then being conducted by the NSW Police Force. [44] A very significant investment had been made in recruitment advertising by the NSW Police Force. Nearly 18,000 recruitment information packages were sent out to potential applicants during 2006. However, at that time, the NSW Police Force was still battling to attract the number of quality recruits required to meet the commitment in the Budget papers. [45] I was very concerned that continued media coverage regarding sexual misconduct at the NSW Police Academy was likely to have a significant impact on the ability of the NSW Police Force to attract the required numbers of the best and brightest recruits: (a) I was aware of the many stories which had already appeared in a range of media outlets; (b) I was aware that members of the public, including former officers, were ringing the radio talk back hosts and making comment regarding alleged sexual misconduct at the Academy; (c) I feared that the media coverage might have already caused at least some potential recruits to either decide not to join the NSW Police Force, or to defer joining; (d) I was concerned that continued media coverage would cause other potential recruits to decide not to join the NSW Police Force, or to defer joining; (e) I was concerned that adverse media coverage might have a particularly negative effect of the ability of the NSW Police Force to recruit young women, and persons from a variety of other backgrounds and walks of life; (f) I was concerned that, if this coverage continued into August and September 2006, the risk to an effective recruitment campaign would be magnified; (g) I was concerned that the NSW Police Force faced the risk of losing the best and brightest candidates to other agencies; and (h) I took the view that the potential loss of even 5-10 quality candidates would be detrimental to the NSW Police Force, and not in its best interests. [46] I was also aware that, as at early August 2006, the documents released by the NSW Police Force under the Freedom of Information Act had not identified the particular officers against whom adverse findings had been made as part of the 268 Inquiry (as I understood it, the NSW Police Freedom of Information unit had blacked out all personal names on the released documents in accordance with what I understand is common practice). [47] I was also aware, from reading the articles which had appeared in the print media and listening to material broadcast on the radio, that the media had not yet reported the names of any of the officers against whom adverse findings had been made as part of the 268 Inquiry. I assumed from this that the media were not, at that time, in possession of those names. [48] However, at some time over the first week of August 2006 (I do not remember exactly what day), I spoke with an officer in the Freedom of Information Unit (although I do not remember exactly whom). That officer made a comment to me in words to the following effect: "The Daily Telegraph has made more FOI applications. They seem to be honing in on the identity of the officers involved in the 268 Inquiry." [49] I considered it likely that, if media reporters continued to try to identify the actual officers involved, then they would ultimately obtain that information, either through the FOI process, or as a result of their own investigations and inquiries. [50] I was concerned about the potential effects for the NSW Police Force if the media were able to obtain the names of the officers involved, including Mr Godkin's name. My specific concerns were as follows: (a) I was concerned that identification of the officers involved would add a new angle to the story which would be likely to add to the coverage of the issue, and keep the story running for a longer period of time; (b) I was concerned that the media would seek to "match up" individual names, including that of Mr Godkin, with the specific case studies set out in the Ombudsman's report; (c) I was concerned that, if the media were able to identify any of the affected officers as still being attached to the Academy, this would also add a new angle to the story which would be likely to add to the coverage of the issue, and keep the story running for a longer period of time; (d) I was concerned that, if individual officers were identified, then reporters might seek to include those names in their coverage, which could have adverse effects on the welfare of those officers and their families (especially if the media were to publicly name a person as having being involved in specific acts of sexual harassment or sexual misconduct); and (e) I was concerned that reporters might seek to take and publish photographs of individual officers, which could have further adverse effects on the welfare of those officers and their families. [51] I was particularly concerned that Mr Godkin was likely to be of interest to the media, given that he remained attached to the Academy and also given that his conduct was one of the case studies included in the Ombudsman's report. I also held similar concerns in relation to the other officer who was still at the Academy in relation to whom adverse findings had been made (although my concern in that regard was slightly lessened by the fact that the adverse findings against that officer were in relation to a less serious matter than that involving Mr Godkin). [52] As a result of my previous work in Goulburn, I was aware that it can be a "small town". I was very concerned that, if Mr Godkin was named in the media, this information would quickly be known by his friends and colleagues in the broader Goulburn community. I thought that this would inevitably impact on Mr Godkin's reputation and standing. [53] I was also very concerned that the public identification of Mr Godkin as having a sustained adverse finding for sexual harassment would also become known by persons associated with his family (such as his son's peers at school). I thought that this would inevitably lead to public embarrassment for his family. [54] As a result, I ordered that, if Mr Godkin's identity and location was revealed, both he, and his family, would be likely to suffer considerable public embarrassment. I thought it highly likely that this would cause considerable personal stress to Mr Godkin, and was likely to have a negative impact on his health and welfare. I considered that this would not be in the best interests of the NSW Police Force. [55] At the same time, I was also very concerned about the impact which the public identification of Mr Godkin might have on the ongoing recruitment campaign. The NSW Police Academy at Goulburn is, of course, the first port of call for all new recruits to the NSW Police Force. As a result, it is important that the Academy be seen to stand for the highest standards of integrity, ethics and professionalism. I was very concerned about the possibility of reports that an officer who had previously been found to have sexually harassed a student remained at the Academy, and continued to have potential contact with students. I thought that any such report would inevitably have an adverse effect on the recruitment campaign. Events of 9 August 2006 [56] On this basis, by the morning of 9 August 2006, I had formed the view that it would not be in the best interests of the NSW Police Force to continue to station either Mr Godkin, or the other relevant officer against whom adverse findings had been made as a result of the 268 Inquiry, at the NSW Police Academy. Instead, I considered that it was in the best interests of the NSW Police Force to transfer both Mr Godkin and the other affected officer to alternative positions not linked to the Academy. ........................ [59] In order to minimise the impact of my decision on the affected officers, I determined that both officers would initially be transferred to non-executive positions at the Goulburn Local Area Command. The officers were to be transferred at rank with no reduction in seniority. [60] I also determined to offer both Mr Godkin and the other affected officer the option of taking a non-disciplinary transfer to some other suitable position in a Command outside of Goulburn, should they prefer that course of action. .......................... [66] On 10 August 2006, NSW Police Force Public Affairs released the story that two officers had been moved from the NSW Police Academy. Annexed to this affidavit and marked "G" is a true copy of the NSW Police press release. 65 In considering the totality of the above facts and circumstances then prevailing, the Commissioner's decision to transfer Sergeant Godkin pursuant to s 67(1) by exercising his power to determine the continuing payment of the Special Duties Allowance to Sergeant Godkin despite his disentitlement to it was not a decision that, in my view, could be said to have been made in overall bad faith such as to invalidate his power to transfer under s 67(1) of the Police Act. In short, I would agree that the decision to transfer Sergeant Godkin was, at that time, in the interests of the NSW Police. 66 Finally, I am not persuaded that the Commissioner's decision is invalid because it was taken for the 'ulterior motive' of avoiding adverse media publicity. The unchallenged background to the Commissioner's decision, as detailed by Acting Assistant Commissioner McWhirter, attests to the diverse operational and policy issues underpinning the Commissioner's considerations on the issue. 67 Section 67(1) of the Police Act gives to the Commissioner the power to transfer an officer if 'the Commissioner considers it to be in the interests of the NSW Police to do so'. In short, I accept the respondent's contention that the Commissioner's power to 'consider' what is in the best interests of the NSW Police does not involve the Court in an objective analysis of policy considerations but the respondent's state of mind and the exercise of discretion and judgment that his decision to transfer is based upon. There is force in the respondent's submission that the Commissioner's decision to transfer Sergeant Godkin was, given the facts and circumstances, a clear case of discretionary operational decision making where the Commissioner has had regard to a broad range of policy and other matters as part of his considerations underpinning the decision to transfer Sergeant Godkin. As such, it was said, such discretionary powers are inapt for judicial resolution and are not justiciable. 68 While I do not necessarily agree with the ultimate conclusion drawn by the respondent that the Commissioner's discretionary powers are not justiciable, I accept that a Court would not lightly intervene in the exercise of the Commissioner's power to transfer under s 67(1) (discounting the privative provisions of s 89(3) for the moment) unless the decision to transfer was 'definitely extraneous to any objects the legislature could have had in view': See The Queen v Australian Broadcasting Tribunal; ex parte 2HD Pty Limited (1979) 144 CLR 45 at 49. Such a consideration does not apply to the circumstances before me. 69 It is clear the Commissioner was faced with difficult and unusual circumstances. As Acting Assistant Commissioner McWhirter deposed: [67] After Mr Godkin and the other officer were transferred to the Goulburn LAC, the Commissioner determined that no officer was to be attached to the NSW Police Academy under any circumstances who had an adverse finding regarding sexual misconduct. I am aware that a number of officers have since been rejected from coming in to the NSW Police Academy from the field to conduct Simulated Patrol Assessment Centre sessions because they had sexual adverse findings recorded against them. 70 In conclusion, for the reasons as set out above, the transfer of Sergeant Godkin from the NSW Police Academy to the Goulburn LAC is not a matter within the jurisdiction of the Court. Accordingly, the application is dismissed. 71 I will hear further from the parties on the question of costs. AMENDMENTS HISTORY: 14/09/2007 - Amendment made at request of parties. - Paragraph(s) 64 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.