Industrial Relations Commission New South Wales Medium Neutral Citation: Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 Hearing dates: 23, 24 May and 10 June 2016 Date of orders: 24 June 2016 Decision date: 24 June 2016 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application dismissed Catchwords: POLICE – removal of police officer – s.181D Police Act 1990 – review under s.181E Police Act - statutory scheme – powers of Commission – hearing de novo ONUS – Onus on applicant to demonstrate decision 'harsh, unreasonable or unjust' – onus not carried – application dismissed RANDOM DRUG TESTING – cannabis – expert evidence POLICE – discipline – Commissioner entitled to expect that officers will not consume illicit drugs PRACTICE AND PROCEDURE – s.181F Police Act – Commissioner to answer applicant's case – Commissioner only required to answer the case mounted by applicant. PRACTICE AND PROCEDURE – Commissioner's Order and reasons brought before the commission by effect of application for review PUBLIC INTEREST – in each case a matter of fact and degree – public interest lies in the integrity of the Police Force – public interest under Police Act specifically defined and differs from meaning of public interest under Industrial Relations Act Legislation Cited: Evidence Act 1995 s.79(1) Industrial Relations Act 1996 Part 6 Police Act 1990 s.181D, 181E, 181F, 181G Cases Cited: Baker v Commissioner of Police [2015] NSWIRComm 14 Beck v Commissioner of Police (No 3) [2015] NSWIRComm 1023 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Commissioner of Police v Collins [2008] NSWIRComm 162 Commissioner of Police v Eaton [2013] HCA 2; 87 ALJR 267; 294 ALR 608 Commissioner of Police v Reid-Frost [2010] NSWIRComm 2 Commissioner of Police v Sewell [2008] NSWIRComm 147 Hosemans v Commissioner of Police [2004] NSWIRComm 253 Lawrance v Commissioner of Police [2010] NSWIRComm 149 Little v The Commissioner of Police (No 2) (2002) 112 IR 212 McGhee v Commissioner of Police (No 2) [2010] NSWIRComm 165 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 Police Service Board v Morris and Martin [1985] HCA 9; (1985) 156 CLR 397 Reid-Frost v Commissioner of Police (No 2) [2010] NSWIRComm 86 Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2004] NSWIRComm 65 Starr v Commissioner of Police [2001] NSWIRComm 226 Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 458 Category: Principal judgment Parties: Mr D Tredinnick – Applicant Commissioner of Police – Respondent Representation: Counsel: Ms P Lowson (Applicant) Mr Y Sharriff (Respondent) File Number(s): 2015/00375731 Judgment 1. This is an application brought under s.181E of the Police Act 1990 ('the Act') by Mr David Tredinnick. Mr Tredinnick seeks a review of an order made by the Commissioner of Police pursuant to s.181D of the Act removing Mr Tredinnick from the Police Force. He does so on the grounds that the Order providing for his removal was harsh, unreasonable or unjust. 2. The Commissioner's Order was made on 26 November 2015. Powers of the Commission on review 1. Significant argument was advanced by the respective counsel going to questions of proof and onus, and a number of interlocutory decisions were required during the case to deal with applications that arose, essentially as a consequence of differing views about the onus of proof and the evidentiary requirements of the case. The debate continued into closing submissions. 2. For that reason it is useful at the outset to set out the Commission's powers and jurisprudence in a matter of this kind. 3. The legislative structure under which this matter falls to be decided is a hybrid, a grafting of parts of the Police Act onto the Industrial Relations Act 1996 ('the IR Act'). Like all hybrids it is not wholly satisfactory. Parts of the legislative structure thus created do not sit well with other parts. However, the statutory provisions must be read and applied as they are, and must be read so as to work, rather than so as not to work: Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113. 4. It is as well to set out here the essential elements of the statutory structure. Section 181D of the Act gives the Commissioner of Police power to remove an officer where the Commissioner no longer has confidence in the officer's suitability to remain a police officer having regard to the officer's competence, integrity, performance or conduct. 5. A person who is the subject of a decision to remove him from the Police Force may apply for a review of that decision of the Commission pursuant to s.181E of the Act. 6. Section 181E relevantly provides: 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission… for a review of the order on the ground that the removal is harsh, unreasonable or unjust. 1. A statutory code prescribing in mandatory terms the manner in which the Commission is to conduct the review is set out at s.181F of the Act: 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 NSW Police Force, (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 NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (a) 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: (i) the interests of the applicant, and (ii) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1). 1. The jurisprudence of the Commission has been developed in a number of decided cases, most extensively in Little v Commissioner of Police (No 2) (2002) 112 IR 212. 2. To begin with, the hearing before the Commission is a hearing de novo, not a review of an administrative act: Hosemans v Commissioner of Police [2004] NSWIRComm 253 at [134]; Commissioner of Police v. Reid-Frost [2010] NSWIRComm 2 at [11]. There is a tension between this prescription and the evidentiary structure imposed by s.181F(1) and, even more, the provisions of s.181G(1)(f) and s.181G(2) – in a true hearing de novo there would be no restrictions on the evidence save relevance – but that it is a hearing de novo is well-established law binding on me and I propose to follow it. 3. As to the process to be adopted, s 181F requires the Commission first to 'consider' the Commissioner's reasons for the decision to remove the applicant from the Police Service. 4. At that stage, the Commission's 'consideration' of the Commissioner's reasons, the Commissioner is not required to prove or substantiate those reasons at all. The Commissioner's reasons are those set out accompanying the Order the Commissioner has made under 181D. 5. There was some debate in this matter as to how the Commissioner's reasons come before the Commission. The answer is that they come before the Commission by way of the application for review itself. An application for review under s.181E cannot be made unless there has been an Order under s.181D. Bringing an application to review the Order, which requires, as a function of the statute, the Commission to 'consider' the Commissioner's reasons, of itself brings the Order and Reasons before the Commission. And further, of course, it would be impossible for an applicant for review to argue that the decision to remove him (or her) was harsh, unreasonable or unjust, the next step in the process, if he does not put the reasons forward as part of the application. 6. So the Commissioner's reasons for making the s.181D order sought to be reviewed here are before the Commission. 7. It is then for the applicant to make out a case that the decision to remove him from the Force was harsh, unreasonable or unjust. 8. In order to do so an applicant will be required, in almost every imaginable circumstance, to go into evidence to some degree. The applicant's evidentiary case is the first evidence put before the Commission. 9. The applicant has the task, if the review is to succeed, of "establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust": Act, s.181F(2). 10. An applicant can advance any kind of basis on which that proposition could be established; whether a basis of substantive fact – for example, that he did not in fact carry out the conduct which formed part or all of the Commissioner's reasons for the removal – or that the penalty was inappropriately severe to the conduct, or inconsistent with the punishment given to others for the same conduct, or that there was procedural unfairness, noting what was held in McGhee v Commissioner of Police (No 2) [2010] NSWIRComm 165, that whilst a procedural failure may of itself render a removal order harsh, unjust or unreasonable, this is only likely to be so in circumstances where there have been very serious procedural failures of some gravity. 11. It follows from the statutory structure that if an applicant cannot advance evidence that has a capacity to establish that the order to remove was harsh, unreasonable or unjust, the application for review cannot succeed. I here observe that the meaning of the words 'harsh, unreasonable or unjust', which are disjunctive terms, in review proceedings under the Act must be the same as the effect to be given to them in proceedings under Part 6 of the IR Act. As it was held in Hosemans, these proceedings are 'essentially the same as the unfair dismissal regime subject to specified modifications.' (at [97], [104]) 12. I note that, notwithstanding what was said in Hosemans, the test in coming to a view as to whether a given removal was harsh, unreasonable or unjust is not identical to that test in the IR Act. That is because the Commission in proceedings under s.181E must take into account matters, set out in s.181F(3)(b), which the Commission in an application brought under s.84 does not have to consider in addressing that question. Amongst other things, the Commission is to have regard to a 'public interest' which is not the same as the 'public interest' in the IR Act: Commissioner of Police v Eaton [2013] HCA 2; 87 ALJR 267; 294 ALR 608 at [27]. 13. But the important point here is the primary onus that falls on the applicant. That onus has an effect on the conduct of the parties' evidentiary cases. If the applicant advances any evidence that might go to establishing that the removal was harsh, unreasonable or unjust, the onus of addressing that evidentiary case falls on the Commissioner. 14. As the Full Bench held in Hosemans: "The issues of onus of proof and evidentiary burdens in matters relating to the removal of a police officer under s181B of the Police Act was [sic] discussed at length in Starr and it is not necessary for us to explore those issues in detail in the present matter. However, it is worthy of repetition that the legislative stipulation in s181F(2) which imposes the primary onus on an applicant does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant. A shifting evidentiary burden is consistent with the structure of the review process laid down by s181F and does not offend s181F(2)." (at [131]) To the same effect is Starr v Commissioner of Police [2001] NSWIRComm 226. 1. It is essential to appreciate that the purpose of the Commissioner's evidentiary case is, as the Act expressly provides, and as the Full Bench in Hosemans held, to make answer to the applicant's case. The Commissioner might answer an applicant's case in a number of ways: by, as one example, simply arguing that the applicant's evidence, before or after cross-examination, does not establish that the dismissal was harsh, unreasonable or unjust; or if it is considered necessary, by going into evidence. 2. If an applicant cannot establish on his evidentiary case that a dismissal was harsh, unjust or unreasonable, there may be no need for the Commissioner to go into evidence at all; an example is Beck v Commissioner of Police (No 3) [2015] NSWIRComm 1023, where the propositions advanced by the applicant in his case as to why the decision to remove him was harsh, unreasonable or unjust were patently unsound on the applicant's own evidence and required no evidentiary reply. 3. As the Commission held in that case: '[I]f an applicant's evidentiary case does not require rebuttal by evidence, there is no requirement on the Commissioner to bring evidence. He must, under the Act, reply to the applicant's case. In some cases, such as this one, that is properly done wholly by argument, and by reference to materials put in evidence by the applicant.' (at [104]) 1. Remembering that the applicant's case is pointed to establishing that the decision to remove was harsh, unreasonable or unjust, the Commissioner, on any reading of the Act, is not required to do more than to answer the applicant's case so far as it asserts that the dismissal was harsh, unreasonable or unjust. 2. It must also be understood that the Commissioner, even if he does go into evidence, is not required in every case to establish by evidence all the facts on which he has relied in coming to the decision to remove an officer. That is not what the 'shifting evidentiary burden' referred to In Hosemans means. Whether the Commissioner brings evidence about some, or all, or none of those facts in a given case will depend on the case advanced by an applicant. To that extent a proceeding for review under s.181E differs from an unfair dismissal case under part 6 of the Industrial Relations Act when the dismissal was for misconduct, where the employer is obliged as a matter of course to make out the misconduct on evidence. 3. Of course, as was held in Starr, 'each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case.' (at [140]) 4. With all that in view I turn to the instant matter. The Commissioner's reasons 1. I first turn, as the Act requires, to the Commissioner's reasons for having come to the view that he had lost confidence in Mr Tredinnick as a police officer. They are set out in the Statement of Reasons accompanying the s.181D(1) Order. 2. First, the Commissioner notes that the results of the random drug test conducted on Mr Tredinnick on 28 May 2014 recorded that Mr Tredinnick tested positive for the presence of 11-nor-carboxyl-THC at a level of 185 mcg/L. The Commissioner says that he does not accept Mr Tredinnick's contention that his handling of cannabis on 22 May 2014 caused this concentration of 11-nor-carboxyl-THC in Mr Tredinnick's urine. He then says that he does not accept that this 'positive drug test' was caused by some contact with Mr Tredinnick's load-bearing vest, as Mr Tredinnick had also contended. The Commissioner concludes that Mr Tredinnick 'consumed a prohibited drug, namely cannabis'. Having made that finding the Commissioner, with reference to relevant provisions of the Police Act, the Police Regulation, the NSW Police Handbook, the NSW Police Force Drug and Alcohol Policy and the NSW Police Force Code of Conduct and Ethics, determines that he does not have confidence in Mr Tredinnick's suitability to remain a member of the NSW Police Force. For the purposes of s.181D, the grounds for the Commissioner's decision are 'conduct' and 'integrity'. 3. I have considered the Commissioner's reasons. What is required of the reasons is that they explain why the decision has been taken: Baker v Commissioner of Police [2015] NSWIRComm 14 at [98]. On their face the reasons here given comply with the requirements of s.181D(4) of the Act, in that they provide a basis for the removal action taken. The matter does not, of course, end there. Mr Tredinnick's case 1. Mr Tredinnick then advanced his case. It is to be remembered that, as set out above, the hearing before the Commission is a hearing de novo. The determination of the question posed by the Act of whether the decision to remove was harsh, unreasonable or unjust depends on the case an applicant brings to the Commission. That is the meaning of the words 'the case presented by the applicant' in s.181F(1)(b). The applicant's case is not restricted to the case he advanced to the Commissioner. The latter may be taken into consideration in assessing, for example, the consistency of an applicant's assertions, but the case on review turns on the evidence and argument put before the Commission. 2. In his evidentiary case and his argument Mr Tredinnick addressed the fact that the Commissioner had relied, in the decision to remove him, on a laboratory reading of a urine sample provided by him on 28 May 2014 of 11-nor-carboxyl-THC at a level of 185 mcg/L. 3. Mr Tredinnick did not have an onus to establish the cause of the urine test result, as the respondent contended. Rather, he had an onus to show why the Commissioner's decision to remove him in reliance on the urine test result was harsh, unreasonable or unjust. 4. In the case he conducted before the Commission to establish that the Commissioner's decision to remove him was harsh, unreasonable or unjust, Mr Tredinnick did not advance any evidence to suggest that there is a provable tendency to error in the laboratory test results, that a percentage of them is routinely wrong, or anything of that sort. Nor did he advance any evidence to suggest that the sample was contaminated by the takers. His case that the decision to remove him was harsh, unreasonable or unjust proceeded on the basis that there was a reading of 11-nor-carboxyl-THC at a level of 185 mcg/L in his urine on 28 May 2014; the fact of the reading was not called into question in his evidentiary case. 5. To write to the Commissioner in the context of the proceedings before the Commission saying 'we put you to strict proof of the laboratory test', as solicitors for Mr Tredinnick did, misconceives, with respect to them, the position. The Commissioner has proceeded on the basis of his being provided with a laboratory reading of a urine test showing the presence of THC in Mr Tredinnick's urine. Mr Tredinnick may, in his case before the Commission, attack the Commissioner's decision on any basis or combination of bases available to him, including by advancing in his case that the test result was suspect. If that is a case that is advanced by Mr Tredinnick before the Commission on any evidentiary basis, then the Commissioner has the burden of meeting that evidentiary case. It was not so advanced, and the Commissioner was not, in response to Mr Tredinnick's case, obliged to prove the test result at all. 6. Mr Tredinnick's case did not proceed on that basis, but on the basis of a resolute denial, in the face of that test result, that he had deliberately voluntarily ingested cannabis. 7. Mr Tredinnick's case proceeded in two strands, following his denial of having deliberately ingested cannabis. 8. First, as to the reading that emerged from the laboratory analysis of his urine, Mr Tredinnick said this: 9. He advanced that the test result may have been caused by his handling of a significant amount of fresh, wet sticky cannabis on 22 May 2014. On the evidence it is sufficiently clear that Mr Tredinnick on that day handled, without wearing gloves, an amount of fresh cannabis which may have been up to 4.5 kilograms. He posited that some of the cannabis may have been dermally or otherwise absorbed into his system at that time. 10. Second, he said that he wore the same load-bearing vest for several days on and after 22 May 2014, up to and including the day of the urine test, without washing it. He postulated that some parts of the cannabis plant, in whatever form, may have adhered to his loadbearing vest and been ingested by him while eating or breathing or transferred from his vest via his hands to his mouth in some way or other on any of those days, including the day of the test. 11. In support of the propositions that the reading of 11-nor-carboxyl-THC in his urine could have been caused by either the contact with cannabis on 22 May or, further or alternatively, by accidental ingestion of cannabis, in whatever form, that may have contaminated his load-bearing vest that he wore on 22 May and on subsequent days up to and including 28 May, Mr Tredinnick advanced expert evidence. 12. The second strand of his case was his own unchallenged evidence about his dedication to a healthy lifestyle and abhorrence of drugs, and the inherent improbability that a well-regarded police officer having that dedication would deliberately ingest cannabis, the more so in between two shifts. 13. It should here be said that evidence about the character of an officer, including his own evidence, is not, in applications for review under s.181, to be treated as some kind of secondary evidence to which regard is had only when considering penalty. On the contrary, what is generally described as 'character' evidence is, particularly if an officer's integrity is as here in issue, to be taken into account in assessing the probability of the facts in issue: Lawrance v Commissioner of Police [2010] NSWIRComm 149 at [313], unaffected on appeal; Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 458. 14. This approach is, as counsel for Mr Tredinnick submitted, consistent with the principle espoused – albeit in a criminal case – by the High Court in Attwood v. R (1960) 102 CLR 353: evidence of good character is regarded as really bearing on the probability or improbability of guilt'. (at 359). In my view that principle is consistent with Lawrance and Toshack and is properly applicable in matters of this kind. 15. Here it was said against Mr Tredinnick that he deliberately consumed cannabis. He flatly denied that. As was held in Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2004] NSWIRComm 65: 'A consideration of probability where accusation and denial counter each other must be by consideration of the objective facts available and the surrounding circumstances in order to determine the probability or otherwise of an event.' (at [325]) 1. Here the objective facts include the presence of THC in Mr Tredinnick's urine and the facts of what occurred on and between 22 and 28 May 2014. The surrounding circumstances include Mr Tredinnick's good record as a police officer and Mr Tredinnick's own unchallenged evidence about his lifestyle choices including his vehement opposition to drug use. The expert evidence 1. Against the fact of the presence of THC in his urine sample taken on 22 May, and in support of the hypotheses he advanced as to how that result might have come about, Mr Tredinnick brought Dr Michael Robertson. No challenge was mounted to Dr Robertson's ability to give expert opinion evidence and I accept that he was qualified to do so in the manner contemplated in s.79(1) of the Evidence Act 1995. 2. Dr Robertson provided two reports, the first dated 3 September 2015, a supplementary report dated 9 May 2016, and gave oral evidence. 3. I will refer to Dr Robertson's evidence in the context of the whole of the expert evidence, The Commissioner in his case before the Commission relied on expert evidence given by Dr John Lewis by way of a report and oral evidence. I am satisfied that Dr Lewis was qualified to give expert opinion evidence in the manner contemplated in s.79(1) of the Evidence Act 1995. I do not accept, as I was urged to accept by counsel for Mr Tredinnick, that Dr Lewis was partisan or that his evidence ought be discounted for that or any other reason. I regarded his evidence as given in a form and manner appropriate to a giver of expert opinion evidence. 4. As to the first proposition advanced by Mr Tredinnick, that the result of the urine test may have come about because of his handling a significant quantity of sticky cannabis on 22 May, Dr Robertson opined 'it is unlikely that a urine sample would remain positive 6 days following any dermal or inhalation exposure during the seizure and subsequent processing of cannabis.' Whilst 'unlikely', it could not, he said, be excluded as a possible cause of the test result. 5. In this context, and also relevantly to the next part of Mr Tredinnick's case, Dr Robertson and Dr Lewis agreed, by reference to experiment results published in peer-reviewed journals, that dermal absorption of THC was unlikely, as cannabinoids are hydrophobic and do not transfer across the aqueous layer of skin without a carrier. This means, Dr Lewis opined, that simply touching cannabis would not enable any quantity of THC to enter the bloodstream. 6. As to the proposition that Mr Tredinnick had ingested cannabis, in whatever form, whether resin or by particles of leaf or flower, from contact with his load bearing vest, Dr Robertson opined that the effect of ongoing exposure via dermal adsorption due to contact with a contaminated load bearing vest is the period 22 to 28 May 2014 is "difficult to determine". 7. Dr Lewis gave evidence – again by way of reference to reported studies – that THC is unstable and prone to oxidation, with significant losses of THC when stored in the light over six days or more. In Mr Tredinnick's case, Dr Lewis' opinion was that this would mean that the almost daily wearing of the vest by Mr Tredinnick would have significantly depleted any traces of THC upon it. 8. Dr Lewis also gave evidence, based on published studies, that raw, unheated cannabis (which is the only form in which cannabis residue could have been on Mr Tredinnick's load bearing vest) contains at most low levels of THC. Dr Robertson did not opine against this proposition. 9. It is also the case that Mr Tredinnick in his evidence in cross examination said that he did not notice any cannabis material on his load bearing vest on or after 22 May 2014. 10. Dr Lewis' opinion was that the urine test result 'could not have occurred' as a result of either of the scenarios postulated by Mr Tredinnick. He opined that the 'only explanation' for the test result is that Mr Tredinnick had used cannabis within a short time prior to the drug test on 28 May. 11. Dr Robertson did not conclude that that was the only explanation, but rather opined that the first hypothesis advanced by Mr Tredinnick was 'unlikely' and the second 'cannot be excluded as a possible source' of the THC in the urine test result, while agreeing with Dr Lewis about the degradation of THC when exposed to light. 12. Dr Robertson and Dr Lewis agreed that the later urine test results obtained by Mr Tredinnick on 7 and 17 June 2014 do not demonstrate that Mr Tredinnick did not deliberately ingest cannabis, nor refute the presence of 11-nor-carboxy-THC in Mr Tredinnick's urine on 28 May 2014. As Dr Robertson put it, it is entirely consistent that the test results of 28 May, 7 and 17 June 2014 are all correct. Equally the evidence of both experts was that the negative hair test result did not prove that Mr Tredinnick had not consumed cannabis, as hair testing is unlikely to reveal an occasional user of cannabis. 13. It must be noted that both experts agreed that the test result of a presence of 11-nor-carboxyl-THC at a level of 185 mcg/L in Mr Tredinnick's urine on 28 May 2014 was consistent with deliberate consumption of cannabis, by smoking or ingestion after heating, a day or two before the test was carried out. 14. At this point, then, the Commission is faced with evidence from two properly-qualified experts, which, summarised, leans strongly in its combined effect to a finding that the urine test result arose from Mr Tredinnick deliberately consuming cannabis a short time before the test on 28 May. That this is the effect of the expert evidence taken as a whole cannot be gainsaid. That is Dr Lewis' express opinion; as to the hypotheses against that conclusion advanced by Mr Tredinnick, the expert called in his case, Dr Robertson, said that the first of them was 'unlikely' and put the second no higher than that it 'cannot be excluded as a possible source' of the test result. 15. That level of evidence itself does not allow a finding that the Commissioner's reliance on the test result as demonstrating that Mr Tredinnick deliberately used cannabis was misconceived, or that that reliance rendered the decision to remove in any way harsh, unreasonable or unjust. 16. But that evidence is only part of the case. As it was held in Russell, cited above, it must be considered in its overall context; the Commission must consider the objective facts available and the surrounding circumstances in order to form a determination about the probability of an event having occurred. 17. That overall evidentiary context includes this. 18. Mr Tredinnick joined the New South Wales Police Force in 2001 and had an unblemished record. He obtained promotion to the rank of sergeant, and indeed began relieving as a sergeant within five years of joining the Force. His unchallenged evidence was that he is dedicated to a healthy lifestyle and abhors drugs. 19. Not only would that evidence, if accepted, stand against a finding of fact that Mr Tredinnick consumed cannabis, there is also, as counsel for Mr Tredinnick posited it, the inherent improbability that a police officer, with no identified association with drugs or drug suppliers, should have deliberately consumed cannabis in the middle of his rostered shifts; and without undertaking any ameliorative action against the possibility of testing such as consuming more water. 20. With all that, the Commission must assess whether, on the balance of probabilities, having regard to the seriousness of the allegations, it is more likely that Mr Tredinnick deliberately consumed cannabis, or that the presence of THC in his urine arose from some other cause. 21. To accept as evidentiary fact the proposition that Mr Tredinnick did not deliberately consume cannabis because it was against his own strongly-stated principles to do so, and because illicit drug taking (even on a very occasional basis) is inconsistent with the actions of a dedicated and well-regarded police officer means to set aside, on the basis of inference, the weight of the expert opinion evidence, the effect of which is, taking both experts' views into account, that the test result is very much more likely to be the consequence of Mr Tredinnick deliberately ingesting cannabis by smoking it or eating heated cannabis than arising from any other cause. I do not see that I can overlook that expert evidence. 22. It is not just the conclusions of the expert witnesses to which I have regard, but their underlying reasoning and conclusions and the scientific publications to which they referred. 23. I do not agree that the applicable approach to making this decision is that set out in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, as counsel for the Commissioner invited me (by reference to another case) to hold. Of course that case is, with respect, correctly decided, but it applied to a civil case that did not involve the possibility of a finding that a police officer had committed criminal conduct. This case does. The standard is of course the civil standard, but the satisfaction that the conduct occurred must be found at a level consistent with the seriousness of the allegation here involved. 24. Taking that approach I am compelled to the view, on all the evidence and the surrounding circumstances, that it is far more likely than not that the reason that Mr Tredinnick's urine contained a reading of 11-nor-carboxyl-THC at a level of 185 mcg/L on 28 May is that he deliberately ingested cannabis within a day or two of that date. 25. The matter does not, however, end there. What is to be determined is not simply whether Mr Tredinnick deliberately consumed cannabis, but whether the decision to remove Mr Tredinnick was harsh, unreasonable or unjust, and that matter is to be considered in the context of a number of statutory directions. Matters required to be considered by s.181F(3) 1. The Act sets out at s.181F(3) matters the Commission must consider in determining whether an order to remove was harsh, unreasonable or unjust. The Commission must have regard to the interests of the applicant, and must further have regard to the public interest. The interests of the applicant include, but are not limited to, the consequences for the applicant of his dismissal. The interests of the applicant 1. Having regard to the interests of the applicant, it is clear that the effect of the Commissioner's decision on Mr Tredinnick is very great. It is so in the case of any sworn police officer removed from the force, of course, but the effects will be different in fact and degree in each case. 2. Counsel for Mr Tredinnick put the matter in this way: "The impact on Mr Tredinnick has been serious and ongoing. It is now exactly two years since he was suspended with pay, and his reputation and career have suffered significant damage. He has suffered a significant reduction in income, returning a small income to date, and with significant start-up costs. He lives in a regional area of Australia where any employment opportunities are limited, and has commenced a small landscaping business. He came to policing relatively late in life, and now has the opprobrium of termination of employment and adverse finding as to his integrity on his record. (Section 16(1)(d) of the Security Industry Act (NSW) 1997 mandates that the Commissioner of Police must refuse an application for a security licence if the person has been removed from the Police on integrity grounds)." 3. I accept that this submission reflects, and does not overstate, the effect of the removal on Mr Tredinnick. 4. I am obliged to balance that matter against the repeatedly-stated proposition, which I accept is a valid one, that there is no place in the NSW Police for a user of illicit drugs. In my view the Commissioner is entitled to hold that view and entitled to act on that view. The effects of the removal are very significant on Mr Tredinnick, but while that must be considered, and I have given it weight, it is subordinate, in my view of the balancing that is required in this particular case, to the right of the Commissioner to expect that his officers will abide by what is said throughout the statutory, regulatory and policy schemes governing the NSW Police, that is, that officers will not use illicit drugs. 5. Further, it is a necessary consequence of the conclusion that Mr Tredinnick did, in fact, deliberately consume cannabis that he did not give a truthful account to the Commissioner, nor to this Commission. That has a bearing on the assessment of the tripartite test. Public interest 1. Considering the public interest will often depend on a balancing of interests, including competing public interests, and will be very much a matter of fact and degree: Commissioner of Police v Collins [2008] NSWIRComm 162 at [58]. As I note above, the public interest here to be considered is one unique to the Act. The public interest is prescribed by the Act to include the public interest of maintaining the integrity of the NSW Police Force, and also to include the fact that the Commissioner made the order pursuant to section 181D (1). In that latter regard it is appropriate to bear in mind the comments of the Full Commission in Commissioner of Police v Sewell [2008] NSWIRComm 147: "There is no warrant for elevating the Commissioner's loss of confidence (based on misconduct), or according it some higher status, or place of prominence, or priority, above any other factor, or factors, which might fall for consideration as part of the balancing exercise between competing interests under s 181F(3) of the Act." (at [7]) 1. And as was held in Lawrance, (supported on this point on appeal): 'Here, there is required a balancing of considerations between the Commissioner's determination, the maintenance of the integrity of the Police Force (by the upholding of appropriate standards, even in off duty situations) and the elimination of conduct which may bring the Police Force into disrepute (such as the impugned conduct), and, the maintenance of the service of a highly trained officer who has the strong support of his colleagues (because of his performance in the Police Force) and who is capable of providing valuable service to the Police Force in the future.' (at [313]) 1. I bear those precepts in Sewell and Lawrance very much in mind. 2. I also bear in mind that a person who accepts the role of a police officer also necessarily accepts the levels and standards of discipline that apply within the Force: 'The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.' Police Service Board v Morris and Martin [1985] HCA 9; (1985) 156 CLR 397 at 412 per Brennan J. 1. It is in the public interest that the Commissioner act so as to preserve the integrity of the Force by removing persons who use illicit drugs. 2. Despite what is said in the policies, there is clear provision in the Regulation for the Commissioner to take other disciplinary action, in relation to an officer who has used a drug or steroid, than removal. I do not agree that that provision is limited to officers who admit to drug use, as seemed to be suggested by counsel for the Commissioner. There is no warrant in the words of the Regulation for that approach. However, whether the officer has been candid or not about his use of a drug is necessarily a matter that the Commissioner is entitled to consider in forming a view about the appropriate disciplinary sanction. 3. It is not in my view harsh, unreasonable, or unjust to remove an officer whom the Commissioner is entitled to find, on the evidence, deliberately consumed an illicit drug and was not candid about that fact. Addressing each limb of the tripartite test to this particular case, it was not harsh, including having regard to the consequences for Mr Tredinnick, nor was it unreasonable, nor was it unjust, given the conduct by Mr Tredinnick that the Commissioner was entitled to accept had occurred, for the Commissioner to remove Mr Tredinnick from the Force. Summary and disposition of the matter 1. I cannot find that Mr Tredinnick has met the task required of him under the statutory scheme, if the review is to succeed, of "establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust": Act, s.181F(2). Accordingly I cannot uphold the application. Orders 1. The Order I make in this matter is that the application for review is dismissed. 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: 24 June 2016