New South Wales Supreme Court CITATION : Whalley v Commissioner of Police [2004] NSWSC 220 HEARING DATE(S) : 16 March 2004 JUDGMENT DATE : 16 March 2004 JURISDICTION: Common Law Division Administrative Law List JUDGMENT OF : Adams J at 1 DECISION : The decision made by the defendant in relation to the secondary employment of each of the plaintiffs as a police officer pursuant to the Police Act 1990 was invalid. Defendant to pay the plaintiffs' costs. CATCHWORDS : Police Officers - secondary employment - Commissioner's Policy - nature of appeal - requirement of procedural fairness LEGISLATION CITED : Police Act 1990 s88 William J Whalley (First Plaintiff) PARTIES : Jane M McLean (Second Plaintiff) Commissioner of Policde (Defendant) FILE NUMBER(S) : SC 30012/03 COUNSEL : C Ronalds with F Rogers (Plaintiffs) P Skinner (Defendant) SOLICITORS : Walter Madden Jenkins (Plaintiff) Michael North Holmes (Defendant) Ex tempore - revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J 16 MARCH 2004 30012/03 - WILLIAM J WHALLEY & ANOR v COMMISSIONER OF POLICE & ANOR JUDGMENT 1 HIS HONOUR: This is a summons seeking, amongst other relief, a declaration that the decision by the defendant in relation to the secondary employment of the plaintiffs who are police officers was invalid. 2 A number of issues arise from the evidence tendered in the proceedings but, in the result, I have decided that it was necessary for me only to consider one ground for making such a declaration relied on by the plaintiffs. 3 I say at once that I am much indebted to the way in which both counsel have approached their submissions and the evidence which has assisted in the identification of the issues and the isolation of what seems to me to be the crucial question. I have also decided that the resolution of the question is so clear that I should give an ex tempore judgment rather than a reserved one. It follows that this judgment may not give full justice to the considerable assistance that I have had from both counsel. 4 As I have said, the plaintiffs are police officers, the first plaintiff having joined the Service in 1987 and the second in 1985. The first plaintiff sought and obtained approval for secondary employment from the Commissioner in 1990. One way or another, that approval continued until November 1999 when the relevant officer revoked it. Following communications between the first plaintiff and that officer, verbal approval was given to continue the secondary employment and the plaintiff submitted a further formal application. Continuing correspondence ensued and the first and second plaintiffs lodged further applications in June 2001. The second plaintiff had become a part of this process in November 1999. 5 It is unnecessary for me to detail the continuing negotiations relating to the plaintiffs' applications for secondary employment. It is sufficient simply to note that they had either formal or informal (there is some controversy about this) interim approval pending a decision by the ultimately relevant officer. In March 2002, their approvals were revoked. The plaintiffs lodged two new applications. Various investigations took place which lead to a refusal of approval by the relevant officer. By virtue of the Police Act 1990, the Commissioner had the statutory duty to manage and control the New South Wales Police Service. Under s88 of the Act, persons in the position of the plaintiffs were forbidden to engage in any paid employment outside the duties of their position without the Commissioner's approval. The secondary employment policy of the New South Wales Police Service (the Policy) was promulgated by the Commissioner for the purpose of setting out relevant procedures for consideration of secondary employment issues. The plaintiffs appealed under the policy to the Commissioner. Their appeals canvassed a wide range of what they understood to be the relevant matters but it is evident that they did not appreciate that whether they had interim informal approval for their involvement in secondary employment was controversial. 6 The Commissioner sought a report from a Mr Petersen who was at the time performing duty as the Director, Employee Relations. I do not doubt, and it is not submitted otherwise, that the Commissioner was entitled to refer to Mr Petersen the appeals of the plaintiffs for the purpose of conducting such investigations as he thought necessary and making a report upon which the Commissioner would act. 7 The parties do not agree as to the character of the appeal to the Commissioner. The appeals process specified in the Policy does not define the nature of the reconsideration as distinct from the persons who are to conduct it. I do not think that it would have been the intention of the Commissioner and, more importantly, I do not think that any person who needed to refer to the Policy, would have thought that the right of appeal was limited in any arbitrary way. Rather, it seems to me that the lack of specification of the character of the appeal was intended to give the relevant persons a power to reconsider such matters as they thought the circumstances of each case fairly required. Sometimes that might be confined merely to a consideration of the suitability of the formal processes. Other cases might call for a consideration of some factual dispute. Any reasonable decision about how an appeal was undertaken could not be attacked by legal proceedings. Even so, if I may make this comment in parenthesis, it is probably desirable that the Commissioner should specify what he considers to be an appropriate procedure in terms of substance to be followed in determining the appeals, this would give useful guidance not only to the relevant decision makers but also to any officers seeking to take advantage of the provision. In this case Mr Petersen thought that he should confine his reconsideration to the adequacy of the process. There is a dispute between the parties as to whether the process was, indeed, adequate. My tentative view, because this matter was not fully debated, is that Mr Petersen's view that the process was, in substance, followed was reasonably open to him. 8 Mr Petersen came to the following conclusion: "Apart from the above-mentioned departure from procedure [which was insubstantial] the applications have been processed in line with the policy, including the provision of the required probity assessment and conflict/risk analysis by SC & IA. As such, the reviewing officer believes that the Commissioner can be satisfied that the applications were processed and determined in the appropriate manner." If it is not obvious from this paragraph, it is obvious from the earlier discussion that by "manner" Mr Petersen considered the procedures as distinct from the correctness of any intermediate assessment. However, he goes on to say: "Notwithstanding the above, the reviewing officer also makes the following observations and comments in respect of this 'appeal' by Senior Constables Whalley and McLean: there should be a level of concern for the fact that both Senior Constables Whalley and McLean have engaged in secondary employment prior to obtaining the necessary approval to do so. In this regard it is the reviewing officer's view that both officers have demonstrated a degree of disregard for the requirements of the policy. Any subsequent risk analysis should therefore take account of the fact that where the provisions of the policy are in conflict with the officers' current actions, they may seek or elect to circumvent them rather than comply." 9 This conclusion is, to some degree, elaborated on in subsequent paragraphs. The factual basis for this "concern" and the risk of circumvention depended upon factual conclusions, disputed by the plaintiffs and which, it seems very likely, were incorrect. 10 The significance of such adverse conclusions affects two aspects of the policy. The first is that officers who seek to engage in secondary employment must demonstrate that doing so does not involve a conflict of interest with the employee's police service duties or impinge on the integrity of the police service within the community. (see the Policy at para 3 ff). 11 These issues require the Commissioner, in my view, to have a high degree of confidence that the secondary employment does not place the police service at risk. It is not necessary that the Commissioner should conclude that the police service will, in fact, be adversely affected. It is obvious that the relevant decision maker to whom the powers of the Commissioner are delegated needs to exercise careful judgment in the context that it is the integrity of the police service which must take priority and which must have the benefit of any doubt. 12 The obstacle, therefore rightly placed in the path of any officer seeking approval for secondary employment, is a high one. It is obvious that if there is any reasonable basis for doubting the reliability of the information supplied in an application for secondary employment or that might adversely affect the confidence that the decision maker might have that the relevant police officer will abide conscientiously by the policy is of crucial importance. Thus, secondly, not only is the onus placed by the Policy on the police officer making the application for approval to establish that there is, in substance, no risk for the police service a high one which may not be established if there is a reason for doubting the assertions made by the officer, those doubts may, by themselves, justify a refusal of approval. 13 Mr Petersen has said - and the plaintiffs do not seek to contradict him - that he regarded his consideration of the appeal as confined to the procedural propriety of the steps leading to the refusal to grant an approval and that his observations about the behaviour of the applicants merely responded to extensive arguments that had been addressed to him by their appeal which asserted, broadly speaking, the reasonableness of their secondary employment and the integrity with which they undertook it. 14 In light of the importance placed by the plaintiffs on this matter, it was obviously reasonable and indeed desirable for Mr Petersen to address it. As I read his report to the Commissioner, however, it would have conveyed to him the view that, even if there were some doubts about the procedural proprieties, the behaviour of the applicants justified a refusal of approval. I do not see how his report could be reasonably read in any other way. 15 As I have mentioned, the plaintiffs complain that they did not get an opportunity to respond to Mr Petersen's doubts about their propriety and say that it depended upon mistakes about facts which they could have easily corrected and which would have significantly qualified that part of his report to the Commissioner. As I understand counsel for the Commissioner, this is not really controverted. His argument is that the behaviour or ethical questions were simply immaterial to Mr Petersen's report, relying for that submission upon Mr Petersen's uncontradicted affidavit. 16 However, Mr Petersen, as I have already pointed out, was not the decision maker. It seems to me inevitable that the Commissioner read the whole of his report and refused approval because of those matters which Mr Petersen brought to his attention. As I have already said, these were not only procedural but also ethical. 17 Counsel for the Commissioner does not press upon me an argument that, if the decision was to be significantly affected by the ethical questions, the plaintiffs should have been made aware that they were in issue and had an opportunity to make submissions about it. At all events, I have no doubt that it was a denial of procedural fairness not to have informed the plaintiffs that the extent to which they undertook secondary employment pursuant to formal or informal approval or otherwise was a significant question and they should have been given an opportunity to make submissions about it. It follows that the Commissioner's decision cannot stand. 18 I declare that the decision made by the defendant on or about 16 January 2003 in relation to the secondary employment of each of the plaintiffs as a police officer pursuant to the Police Act 1990 was invalid. 19 I note the undertaking by the defendant concerning the plaintiffs' current and future secondary employment. I order the defendant to pay the plaintiffs' costs. ********** Last Modified: 03/26/2004 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.