Industrial Relations Commission New South Wales Medium Neutral Citation: Regan v Commissioner of Police [2015] NSWIRComm 1028 Hearing dates: 11 December 2015 Date of orders: 11 December 2015 Decision date: 11 December 2015 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Declaration sought in Notice of Motion made – application for review dismissed Catchwords: POLICE – application for review - reviewable action and non-reviewable action – proper approach to determining whether action reviewable or non-reviewable – action non-reviewable – no jurisdiction – declaration made JURISDICTION OF COMMISSION - where no jurisdiction lies, no power lies to make orders or directions about a matter – power limited to declaration that no jurisdiction lies DECLARATION OF JURISDICTION – declaration sought that Commission lacks jurisdiction – declaration made Legislation Cited: Industrial Relations Act 1996 s.84, 88. Industrial Relations Commission Rules 2009, rule 10.8(1)(g) Police Act 1990 s 173(9), 174(1) Cases Cited: Commissioner of Police v Skelly [2010] NSWIRComm 18 Category: Principal judgment Parties: Mr James Regan (applicant) Commissioner of Police (respondent) File Number(s): IRC 372 of 2015 Judgment 1. This is an application for review brought before this Commission by Mr James Charles Regan. It is for review of an order certified by Superintendent Paul Glynn. That order is styled as a Commander's Warning Notice and was issued to Mr Regan on 1 July 2015. Mr Regan says that the warning notice is unlawful and bad for a range of reasons, including that it was issued for an improper purpose, and seeks review of it on that basis. 2. In the context of Mr Regan's application to the Commission, the Commission now has before it a notice of motion filed by the respondent that seeks two things: a declaration that the Commission has no jurisdiction over the proceedings and an order dismissing the proceedings or setting aside the proceedings. 3. It is important to understand that the Commission is not a common law court. It is a statutory body which operates within the confines of a statutory jurisdiction, and that jurisdiction with regard to police matters is set out in s 174 of the Police Act which falls within Part 9, Management of Conduct within the New South Wales Police, of that Act. 4. As the Commission is not a common law court it has no initial jurisdiction at all unless it is given it by a statute. What s 174 of the Police Act does is to grant a jurisdiction to the Commission which otherwise would not exist. The point is important. The Commission, not being a court, has no initial jurisdiction over anything at all unless it is a jurisdiction granted by statute, whether that be the Industrial Relations Act 1996 or the workers' compensation legislation or other acts that provide for the Commission's jurisdiction; here, the Police Act. So here the Commission is given a jurisdiction which otherwise would not exist, that is, to review certain of the Commissioner of Police's orders. 5. When one looks at the statutory scheme granting the Commission jurisdiction, the starting point is that no order made by the Commissioner or his delegate is reviewable; s 173(9) so provides. However, notwithstanding that overall privative clause, a jurisdiction is given to review certain orders. Section 174 sets out the orders which are reviewable. 6. Pursuant to subsection 174(1), the Commission has the power to review what is called in the Act, Reviewable Action, and the Commission does not have power to review what is called in the Act, Non-reviewable Action. It is set out in the Act what is non-reviewable action, and it is those non-reviewable actions that are expressly excluded from the Commission's jurisdiction. They are set out in schedule 1 to the Act. Schedule 1 provides a dozen or so matters which are expressly styled non-reviewable action; included are, for example, counselling, reprimand and warning. 7. Here, on the face of the document, Sergeant Regan was given a warning. Of course it is not, as Sergeant Regan points out in his submissions, sufficient for the Commissioner's delegate to call something a warning with the result that it is immune from review, that being the necessary effect of schedule 1, if it in fact is not a warning or it is something else. That proposition is made abundantly clear by the decision of a full bench of this Commission in Commissioner of Police v Skelly [2010] NSWIRComm 18. At paragraph 56 of the full bench's unanimous decision in that matter, the bench held as follows: "An assessment of whether an action taken by the Commissioner was under ss 173 and 174 is not to be determined entirely by the labelling of that action by the Commissioner. Objective factors must also be taken into account to ascertain the intention and effect of the order." 1. So what is required of the Commission is to determine what is the true nature of the disciplinary sanction which is before it which is sought to be reviewed. That is, whether the sanction is, objectively assessed, properly regarded as falling within schedule 1 or not. On the face of the document, of course, it says that it is a warning and it expresses itself specifically to be a warning within the meaning of schedule 1 to s 173 of the act. That does not, as Sergeant Regan submits, take the matter to its conclusion. 2. The Commission is obliged to address the contents of the document. I have done so with some care and in my view it is inescapable that the document is what it says it is; it is a warning. It says so within the text of the document in terms, and its clear intent and purpose and function is to warn Sergeant Regan about certain matters. If it is a warning, and in my view it cannot be characterised otherwise than as a warning, then it is non-reviewable action. 3. I then must turn to what jurisdiction I have in that regard. Certainly my jurisdiction over non-reviewable action is confined in the way that Skelly says it is confined. If one turns to paragraph 22 of the full bench's unanimous decision in Skelly the full bench held there: "The purpose of s 173(9) is to make it clear that non-reviewable orders are beyond the Commission's jurisdiction, but its purpose is not to preclude the Commission from determining whether what is before it is within power or beyond power." 1. In other words, to paraphrase the full bench, I am entitled to look at a matter to see whether it is within my jurisdiction or not, but if it is non-reviewable then it is beyond my jurisdiction and I can do nothing about it at all, I cannot proceed in relation to it. So I can and indeed I must look at the order challenged to see if it is reviewable or not reviewable. I have done so and as I say in my view it is indisputable that it is a warning. If it is a warning, it is caught by the clear terms of schedule 1 and if that is so then it is non-reviewable and that puts the Commission in the position addressed by the full bench in Skelly at paragraph 21: "The Deputy President was entitled to determine, pursuant to s 174, whether it was beyond power for him to deal with the matter. If his Honour had determined the order was an order for non-reviewable action, then pursuant to s 173(9) he could not have considered or reviewed the order because it would have been beyond power to do so." 1. I have determined, looking at the matter objectively and examining its substance as well as its style, that the application which Sergeant Regan seeks to review is in fact a non-reviewable action, and the result of that is that I have no power to do anything more about it in its substance. I cannot act; the only action I can take is to determine whether or not I have jurisdiction and make consequential orders on that basis. 2. Now Sergeant Regan says, and advances materials seeking to persuade me, that the warning is in fact bad and for an improper motive. I do not doubt his sincerity of belief in saying that and I am prepared to address the question as if it were so. I do not express the view that it is the case but I am prepared to address the question of this matter. Assume for the purpose of this decision that Sergeant Regan is right and the warning were for an improper motive. Even were that so - and I do not say that it is so, I do not form any view about that and I am not required to - even were that so I could not act and I could not inquire into that matter. 3. The Commission is not the Supreme Court. If an administrative action were wrongly taken - and I say again I form no view and express no view that it was so in this case, but speaking at large - it may be, subject to certain criteria, open to challenge in the common law courts and particularly the Supreme Court on the basis that there was no power, properly understood, to carry it out. That is not a function that I am able to exercise, not a jurisdiction I am able to exercise, and not a matter I am able to consider at all. 4. It is perfectly clear from the decision of the full bench in Skelly and on any reading of the Act itself that if the appealed action is a non-reviewable action I am unable to address it further. I have no doubt that the action that I am asked to review here today is, in substance as well as style, non-reviewable action and I am unable to address it further. 5. What I have just said is, in judicial terms and with explanations and reference to authority, a long form of a declaration that I have no jurisdiction. That being so it is proper that I make the declaration that is sought of me. Mr Regan has sought that were the decision be adverse to him, the matter be stood over for directions. I understand that submission, I have not ignored it, but I am not able to accede to it because I simply have no power to deal with the matter any further at all if I have no jurisdiction over it, even in an administrative sense. The power I have got is only, to paraphrase the full bench, and indeed to paraphrase the High Court, the power to say I have no jurisdiction and dismiss the matter, I cannot do more. Declaration and Order 1. Accordingly, I formally make a declaration that pursuant to s 173(9) of the Police Act 1990 and rule 10.8(1) (g) of the Industrial Relations Commission Rules 2009, the Commission has no jurisdiction over the respondent in respect of the subject matter of the instant proceedings, they being the proceedings initiated by Mr Regan, and I make an order pursuant to the same section of the Police Act and the same part of the rules, setting aside the applications filed by the applicant. PETER NEWALL Commissioner ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2016