Industrial Relations Commission New South Wales Medium Neutral Citation: A (a pseudonym) v Commissioner of Police [2019] NSWIRComm 1091 Hearing dates: 25, 26, and 27 February 2019 and 30 April 2019 Date of orders: 16 December 2019 Decision date: 16 December 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Constant Decision: Pursuant to s 177(1) (b) of the Police Act 1990 (NSW) the Commission orders: (1) The order made by the delegate of the Commissioner of Police on 6 July 2018 under s 173(2)(a) of the Police Act 1990 (NSW) that the applicant be subject to a disciplinary transfer from the Child Abuse Unit Hunter, Child Abuse & Sex Crimes Squad, State Crime Command, to the Assets Confiscation Unit, Organised Crime Squad, State Crime Command is revoked. (2) The applicant be subject to a disciplinary transfer from the Child Abuse Unit Hunter, Child Abuse & Sex Crimes Squad, State Crime Command, to the Assets Confiscation Unit, Organised Crime Squad, State Crime Command commencing from the date one month after the publication of this decision until the date a Sergeant, or Detective Sergeant, position becomes available within a commutable distance of 60 minutes from the applicant's current home address at which time the applicant will be placed in this available position. If the applicant rejects this position, she will remain attached to the Assets Confiscation Unit, Organised Crime Squad, State Crime Command in Parramatta and will be eligible to apply to be placed on the Mobility List in the usual way subject to NSW Police Force's applicable policies and procedures. The Commission makes the following recommendations: (1) The parties immediately commence discussions as to flexible work arrangements for the applicant to perform work from Parramatta, with the goal that within one month after the publication of this decision, flexible work arrangements that take into account operational requirements are in place for the applicant to perform work from Parramatta. (2) The Conduct Management Plan is waived on the date one month after the publication of this decision. Catchwords: POLICE – application for review of order for disciplinary transfer – alleged inappropriate use of respondent's computer system – alleged failure to declare conflict of interest and declarable association - whether order is beyond power or harsh, unreasonable, or unjust – misconduct established – disciplinary order not beyond power, unjust or unreasonable - disciplinary order harsh - order revoked and alternative order made Legislation Cited: Industrial Relations Act (NSW) s 164A Police Act 1990 (NSW) ss 7, 8, 173, 174, 175, 181D, 181E, 181F Police Regulation 2015 (NSW) cl 8, 76 Cases Cited: Commissioner of Police v Collins [2008] NSWIRComm 162 Commissioner of Police v Eaton [2013] HCA 2 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Sewell [2009] NSWCA 198 Day v Smidmore (No 2) [2005] NSWIRComm 406 Dr A and Health District [2014] NSWIRComm 28 Ebner v Official Trustee in Bankruptcy [2000] 63; 205 CLR 337 Hosemans v Commissioner of Police (2004) 138 IR 159 McDiarmid v Commissioner of Police [2012] NSWIRComm 100 Police Service Board v Morris and Martin (1985) 156 CLR 397 Probst and Commissioner of Police (No 2) [2009] NSWIRComm 201 Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28 Starr v Commissioner of Police [2001] NSWIRComm 226 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 Whyte v Commissioner of Police [2010] NSWIRComm 84 Category: Principal judgment Parties: A (a pseudonym) (applicant) Commissioner of Police (respondent) Representation: Counsel: P Lowson (applicant) Y Shariff (respondent) Solicitors: Walter Madden Jenkins (applicant) Sparke Helmore Lawyers (respondent) File Number(s): 2018/234980 Publication restriction: Names suppressed in accordance with Orders made on 25 February 2019 pursuant to s 164A of the Industrial Relations Act 1996 (NSW) DECISION 1. On 6 July 2018, the respondent, the Commissioner of Police, through his delegate, Detective Superintendent John Kerlatec, made an order pursuant to sub-s 173(2) of the Police Act 1990 (NSW) ("the Police Act"), that disciplinary action be taken against the applicant ("the Disciplinary Order"). The Disciplinary Order was served on the applicant on 13 July 2018. 2. The Disciplinary Order was a result of sustained findings in an investigation undertaken pursuant to Part 8A of the Police Act, covering three allegations which are set out below at paragraph [27]. 3. The Disciplinary Order states that the applicant ... be subject to a disciplinary transfer from the Child Abuse Unit Hunter, Child Abuse & Sex Crimes Squad, State Crime Command, to the Assets Confiscation Unit, Organised Crime Squad, State Crime Command. 1. On 31 July 2018, the applicant filed an application for review of the Disciplinary Order pursuant to sub-s 174(1) of the Police Act ("the Application"). 2. The Application contends that: 1. the respondent made findings of fact that on the balance of probabilities it was not reasonable to make; 2. given the terms of the Disciplinary Order the respondent gave insufficient weight or no weight at all to the contents of the applicant's response to the Notice under s 173(5) of the Police Act served on the applicant on 4 December 2017 ("the Show Cause Notice") dated 19 February 2018 ("the Response to the Show Cause Notice"); and 3. the Disciplinary Order is harsh, unreasonable or unjust. Conduct of the proceedings 1. The Application was conciliated before Commissioner Sloan on 8 August 2018, but did not settle. The matter was reallocated to me for arbitration and evidence was heard before me on 25, 26, and 27 February 2019, following which the parties filed written submissions and then a further day of hearing for oral submissions on 30 April 2019. 2. On the first day of the hearing, the applicant moved the Commission for orders: 1. prohibiting the disclosure of: her name, her partner's name and the names of her children and her partner's children; 2. anonymising her name in the publication of these proceedings; and 3. restricting access to the evidence tendered in these proceedings to persons granted leave to access the material by the Industrial Registrar ("the Motion"). 1. The applicant filed written submissions in support of the Motion which contended that the orders sought were in the interests of justice for 12 particularised reasons. I determined that it was in the interests of justice to make the orders sought in the Motion, and pursuant to s 164A of the Industrial Relations Act 1996 (NSW) ("the IR Act"), I made the orders sought by the applicant ("the Non-Disclosure Orders") and I assigned the pseudonym of "A" to the applicant and the pseudonym "B" to her partner. I now provide my reasons supporting my decision to make the Non-Disclosure Orders. 2. Section 164A of the IR Act is in the following terms: 164A Powers of Commission as to the disclosure of matters before the Commission (1) A non-disclosure order is any of the following orders: (a) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Commission or a witness summoned by, or appearing before, the Commission), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Commission, (c) an order prohibiting or restricting the publication of evidence given before the Commission, whether in public or in private, or of matters contained in documents lodged with the Commission or received in evidence by the Commission, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Commission, or of the contents of a document lodged with the Commission or received in evidence by the Commission, in relation to the proceedings. (2) (Repealed) (3) The Commission may make any non-disclosure order if it is satisfied that it is necessary to do so in the interests of justice. (4) The Commission may from time to time vary or revoke an order it has made under this section. (5) (Repealed) 1. The approach to an application for a non-disclosure order pursuant to s 164A of the IR Act is set out in the decision of the Full Bench of this Commission in Dr A and Health District [2014] NSWIRComm 28 ("Dr A"). After citing a number of authorities, the Full Bench in that matter stated as follows: [47] In referring to these authorities the main points sought to be made by the respondent were that: (1) the principle of open justice is a fundamental aspect of the legal system and the conduct of proceedings in public is an essential quality of an Australian court of justice: John Fairfax 2004 per Spigelman CJ at [18]-[21] (Handley JA & Campbell AJA agreeing); Rinehart at [32]; Fairfax Digital at [9]; (2) exceptions to the principle of open justice are strictly defined and applied sparingly: John Fairfax 2004 at [19], [21]; (3) the test in s 164A(3) of the IR Act is the common law test: Smidmore (No 2) at [29]; (4) according to the common law test mere embarrassment or distress is not sufficient to warrant the making of a non-disclosure order: Smidmore (No 2) at [19]; Buttling (No 2) at [26]; Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress would be inimical to the ordinary rule that courts should conduct their proceedings publicly and in open view: Smidmore (No 2) at [32]; Buttling (No 2) at [6]; (5) the "necessary" requirement in s 164A(3)(b) of the IR Act reinforces the legislative intention that non-disclosure orders should only be made in exceptional circumstances: Buttling (No 2) at [8]. 1. Prior to 15 June 2013, sub-s 164A(3) of the IR Act was in the following terms: The Commission (other than in Court Session) may make any non-disclosure order only if: (a) in relation to proceedings under Subdivision 2 of Division 2 of Part 7 of the Commission for Children and Young People Act 1998—it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, or (b) in relation to any other proceedings—it is satisfied that it is necessary to do so in the interests of justice. 1. From 15 June 2013, sub-s 164A(3) has been in terms similar to those set out at paragraph [9] above. In my view, the reference to sub-s 164A(3)(b) of the IR Act in the extract from Dr A applies to sub-s 164A(3) in its current terms. 2. My fundamental reason for making the Non-Disclosure Orders is the protection of the children of the applicant and the children of B. I consider the interests of the children of the applicant and of B in these circumstances establish an exception to the principle of open justice such that the making of the Non-Disclosure Orders sought by the applicant is necessary. 3. I am guided in this view by the fact that Parliament has assisted courts and tribunals by legislating for effective privacy in proceedings involving children in the criminal jurisdiction and in the care jurisdiction. 4. If the names of the applicant and of B were published then the children of both A and B would be identifiable. The applicant submits, and I accept, that despite there being no substantiated allegations against B, the nature of the allegations about B "carry with them a particular social opprobrium, which tends to continue irrespective of the accuracy, and denial, of the allegations … [which] has been known to be expressed through threats and, sometimes, violence". 5. The applicant submits that if her name or the name of B were published then the effect on the children, B and herself could extend limitlessly into social media forms where online commentary and threats could be severely disruptive to B, herself and the children. 6. If the names of the applicant and B were published on social media and/or print, television and/or other media, there is a real and appreciable risk that the four children would be identified and could become subject to threats of violence or actual violence. In an era of social media and immediate access to digital news sources on hand-held devices, the impact cannot be limited by time and geography. 7. I accept that the potential impact on the children provides an exception to the principle of open justice such that the making of the Non-Disclosure Orders sought by the applicant, including the pseudonym order, is necessary. 8. I also accept that it is possible that there could be irretrievable damage to B's reputation if his name was published. However, as referred to in the extract of Dr A set out at paragraph [10] above, a Full Bench of the Commission in Court Session in Day v Smidmore (No 2) [2005] NSWIRComm 406 when considering its power under the now repealed sub-s 164A(2), which gave a wider discretion to the Commission in Court Session than the current sub-s 164A(3) gives to the Commission, determined at [32]: 32 Whilst we do not consider it appropriate to define with precision the boundaries of the powers conferred by s 164A, in exercising the power under s 164A(2) we do not consider that it would ordinarily be desirable to make a non-disclosure order only because a person was embarrassed or distressed by allegations made in proceedings. The paramount consideration, in our opinion, remains the principle of open justice. Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress would be inimical to the ordinary rule that courts should conduct their proceedings "publicly and in open view": Scott v Scott [1913] AC 417 at 441. As Gibbs J observed in Russell v Russell (1976) 134 CLR 495 at 520 (quoted in A (No 4) at [45]): This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. 1. Accordingly, while I accept the possibility of irretrievable damage to the reputation of B, I did not make the Non-Disclosure Orders, which have the consequence of restricting the proceedings from being public and in open view, to protect B, or the applicant, who are adults, from injury, hurt, embarrassment or distress, but as I have set out above, to protect the interests of their children. Evidence 1. At the hearing, the applicant tendered into evidence: 1. three statements made by A: a statement made on 29 October 2018; a statement made on 8 February 2019 in reply to the statements of: Superintendent Kerlatec made 4 December 2018; and Detective Inspector Waterman made 30 November 2018; and a statement made on 20 February 2019 in reply to the statement of Detective Senior Sergeant Paul Laksa made 9 January 2019; 2. a statement made by Merrin Dimmock on 23 October 2018; 3. a statement made by Kevin Bale on 24 October 2018; 4. the New South Wales Police Force Guidelines on procedural fairness & Part 8A evidence based investigations; and 5. the Investigator's Report by Detective Inspector Thomas Barnes for c@ts.i File P1700852. 1. The respondent tendered into evidence: 1. a statement of Chief Inspector Tracy Maree Chapman made 3 December 2018; 2. a statement of Detective Chief Inspector Andrew Waterman made 30 November 2018; 3. a statement of Detective Senior Sergeant Paul Laksa made 9 January 2019; and 4. a statement of Detective Superintendent John Steven Kerlatec made 4 December 2018. The Disciplinary Order is annexure JK-20 to the statement of Detective Superintendent Kerlatec. 1. The applicant was cross-examined. The applicant's other witnesses were not cross-examined. 2. Chief Inspector Chapman, Detective Chief Inspector Waterman and Detective Superintendent Kerlatec were cross-examined. Detective Senior Sergeant Laksa was not cross-examined. 3. The applicant and respondent filed written submissions and their counsel made oral submissions in support of their written submissions. 4. The Commission has carefully weighed and considered all of the written and oral evidence and submissions before it. Alleged Misconduct 1. In making the Disciplinary Order the respondent relied on three sustained allegations of misconduct which are set out in the Show Cause Notice (which is annexure JK-12 to the statement of Detective Superintendent Kerlatec): 1. the applicant conducted inappropriate and unauthorised enquiries into confidential information held by the NSW Police Force ("NSWPF") on the Computerised Operational Policing System ("COPS"), specifically: 1. On 16 February 2016 at 4:06pm when she made an "event enquiry" (search) for event E 557421812 and then sighted: 1. CNI 679511773 "[B]" as a "party enquiry" within E55741812; 2. CNI 789093258 "[daughter of B]" as a "party enquiry" within E 55741812; 3. Location 32162 "West Wallsend, NSW, 22... " as location enquiry within E55741812 1. On 16 February 2016 at 4:09pm when the applicant made a party enquiry (search) for CNI 679511773, which is the record for [B]... ". 1. Between February 2016 and March 2017 the applicant failed to identify a conflict of interest involving B, once he disclosed to her that he had been the subject of prior child protection reports. 2. The applicant failed to abide by the policies of the NSWPF with regard to declarable associations having failed to declare her association with B between February 2016 and March 2017. Background 1. The applicant was one of two Team Leaders at the Child Abuse Squad ("CAS") Newcastle office from 28 November 2010. 2. The CAS is now known as the Child Abuse Unit ("CAU") and is part of the Child Abuse and Sex Crimes Squad ("CA&SCS") which is part of the NSWPF State Crime Command. I have referred to the "CAU" as the "CAS" throughout this decision to avoid confusion. 3. The applicant's direct supervisor, Detective Chief Inspector Waterman, was responsible for supervising several CAS offices from The Entrance to Ballina. 4. Team Leaders are responsible for reviewing referrals relating to potential child abuse matters and planning and coordinating the response on behalf of the NSWPF in conjunction with the former Department of Family and Community Services ("FACS") and NSW Health. In her role as Team Leader, the applicant was required to make daily decisions on referrals relating to child abuse matters involving child sexual abuse, serious physical abuse and/or extreme neglect offences. 5. The applicant had a coffee with B sometime during January 2016. She then had a second date with him sometime in early February 2016 at a cafe at Warners Bay. 6. B has two children (one boy and one girl) from an earlier relationship. 7. During that second date, the applicant disclosed to B that she was a police officer working in the CAS in Newcastle. B then disclosed to the applicant that he had dealings with her office because there had been allegations made against him by his former wife and/or children in 2014 ("the 2014 Complaints"). 8. According to the applicant, when B first told her about the 2014 Complaints she "was concerned, and asked [B] a lot of questions about what happened, what did the police say, what did FACS say, [was he] ever offered the opportunity to be interviewed by police or served with an AVO". 9. Following this second date, according to the applicant's evidence, she conducted a COPS search to determine whether she had been involved in the investigation of the 2014 Complaints. 10. The applicant says that she concluded that she had no involvement in the 2014 Complaints and did not report these developments to her superiors. She proceeded to engage in the relationship with B. 11. According to the evidence of Detective Chief Inspector Waterman, on 3 March 2017, he received a telephone call from the applicant in which the applicant informed him that: 1. B had been served with an AVO for a recent alleged indecent assault on his son; 2. the matter would likely be transferred to the Newcastle CAS for an investigation; and 3. B had told her on their second date in February 2016 that the Newcastle CAS had previously investigated allegations of child abuse against him. 1. Later on 3 March 2017, Detective Chief Inspector Waterman had a conversation with the applicant in which he asked her whether she had undertaken a PERFIND search on COPS relating to B. 2. There is a dispute between the parties as to whether the applicant then disclosed having made COPS searches on B or relating to him and whether she was fully candid in what she did disclose to Detective Chief Inspector Waterman at this time. 3. On 17 May 2017 the applicant was issued an interim risk management plan ("the IRMP"). The IRMP assigned to the applicant a mentor, Detective Senior Sergeant Paul Laksa and a monitoring officer, Detective Chief Inspector Andrew Waterman and initially temporarily relocated the applicant to the Lake Macquarie Local Area Command ("LAC"). Powers of the Commission on review of the Disciplinary Order 1. Section 173 of the Police Act gives the respondent the power to make orders that reviewable action as set out in the legislation be taken with respect to a police officer who engages in misconduct. Sub-section 173(2) is in the following terms: (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate. 1. A person who is the subject of an order for reviewable action made under s 173 of the Police Act may apply to the Commission for a review of the order pursuant to s 174 on the ground that the order is beyond power or is harsh, unreasonable or unjust. 2. The manner in which the Commission must conduct the review is set out at s 175 of the Police Act: 175 Proceedings on a review (1) The Commission is to commence hearing an application for a review under this Division within 4 weeks after the application is made. (2) The applicant has at all times the burden of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) In determining the applicant's claim, the Commission may take into account such matters as it considers relevant. (4) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the fact that the Commissioner made the order pursuant to section 173). 1. The hearing before the Commission is not a review of an administrative act: Hosemans v Commissioner of Police (2004) 138 IR 159 ("Hosemans") at [134], Probst and Commissioner of Police (No 2) [2009] NSWIRComm 201 ("Probst") at [11] and Whyte and Commissioner of Police [2010] NSWIRComm 84 ("Whyte") at [11]. Parts 8A and 9 of the Police Act contemplate that the Commission will assess allegations of misconduct or unsatisfactory performance and determine if these allegations are properly based, and then determine if these matters justify the relevant reviewable orders. This is similar to the exercise of the removal powers in s 181D of the Police Act. 2. If the applicant does not advance a case that has capacity to establish that the Disciplinary Order was harsh, unreasonable or unjust, the Application cannot succeed. The applicant will not have carried her onus. The Full Bench stated in Hosemans (at [131]) (cited with approval in Tredinnick v Commissioner of Police [2016] NSWIRComm 14 ("Tredinnick (No 2)") at [78]): … 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). But the important point here is the primary onus that falls on the applicant. 1. The words of s 181F(2) of the Police Act mirror the wording of s 175(2) of the Police Act, and the primary onus falls on the applicant in proceedings under each section. However, if the applicant advances any evidence or argument that might go to establishing that the Disciplinary Order was harsh, unreasonable or unjust, the onus of addressing that case, including that evidentiary case, then falls on the respondent: Tredinnick (No 2) at [78]. 2. The purpose of the respondent's case is, as the Full Bench in Hosemans held, to make answer to the applicant's case. 3. It was also held in Hosemans that proceedings for review pursuant to s 181E of the Police Act are "essentially the same as the unfair dismissal regime" of the IR Act "subject to specified modifications" (at [97], [104]). It follows that the meaning of the words "harsh, unreasonable or unjust" in review proceedings under the Police Act have the same meaning as that given to them in proceedings under Part 6 of the IR Act: Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 ("Tredinnick (No. 1)") at [20]. 4. Section 175 (4) of the Police Act provides that, in considering applications for review made under s 174 of the Police Act, the Commission must take into account the officer's interests and the public interest which includes the fact that the Commissioner (or his delegate) made the order pursuant to section 173 of the Police Act. 5. Relevantly, in Commissioner of Police v Eaton [2013] HCA 2, Heydon J stated (at [27]): … The matters referred to in s 181F(3)(b) of the Police Act stand outside s 146(2) of the IR Act. The Commission's duty to have regard to the public interest as defined in s 181F(3)(b) is adverse to the interests of applicants seeking reviews under s 181E... 1. In Probst, Deputy President Sams considered at [21] the "mandatory and specific requirement of what the Commission must have regard to in a s 174 review" found at sub-s 175(4) of the Police Act. The Deputy President set out, at paragraphs [22] – [23] of his decision relevant extracts from the Court of Appeal's consideration of s 181F in Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales and Raymond Sewell [2009] NSWCA 198, and adopted these matters for a s 174 review. 2. Deputy President Sams referred in Probst, at [53], to the Full Bench's determination in respect of the competing interests of the applicant and the public interest in Commissioner of Police v Wayne Edward Collins [2008] NSWIRComm 162 in which the Full Bench said at [53]: We would add that it is important when balancing the applicant's interest against the various countervailing factors relevant to the public interest, that no one factor should be accorded any greater weight than any other factor, or factors. 1. The Deputy President also considered the obligations of procedural fairness in Probst and said at [20]: 20 It seems to me that the key to the Commission's consideration of whether procedural fairness has been denied to the applicant is found in the following principles distilled from the authorities: 1. The procedural requirements in s 173(5) require 'if not a strict compliance at least a careful and punctilious regard to correct procedure'. 2. The Commissioner of Police is not free to 'act ill-advisedly or capriciously' in respect to giving the aggrieved officer proper and adequate reasons for his decision to make the order. 3. The discretion to make the order is intended to be exercised 'according to rules of reason and justice, not according to private opinion'. 4. There would need to be demonstrated that a failure to afford procedural fairness causes 'a substantial and irrevocable prejudice to the employee'. 1. Section 177 (1) of the Police Act provides that the Commission may determine the application when, in the Commission's opinion, all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful by: 1. revoking the order; 2. revoking the order and making such other order as it considers appropriate, whether or not it is an order that the Commissioner is empowered to make under s 173; 3. upholding the order; or 4. dismissing the application. 1. If the Commission revokes the order, it may also direct the payment of compensation for any loss suffered by the applicant as a consequence of the making of the order. 2. Although the Commission's approach to removal orders and orders for reviewable action are, broadly speaking, the same the relative severity of the sanctions under consideration must be borne in mind when considering authorities dealing with removal orders. 3. Finally, as was held in Starr v Commissioner of Police [2001] NSWIRComm 226, "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]). The applicant's case 1. The applicant submits: 1. The Disciplinary Order to transfer her to a Detective Senior Sergeant's position in Parramatta, and to impose a Conduct Management Plan, was beyond power and/or unjust and/or unreasonable as she did not engage in the conduct alleged against her; 2. In the alternative, the Disciplinary Order is harsh because: 1. even if the Commission is satisfied that she engaged in misconduct, the conduct alleged in the three allegations falls at the least serious end given: 1. the complex nature of the matters that had to be considered to determine whether the applicant breached the policies as alleged; 2. the lack of deliberateness about her conduct; 3. her seniority and flawless career, and her obvious experience in the specialised area of child sex abuse; and 4. the public interest in retaining the experience of a police officer and utilising those skills in the best way possible; and 1. the impact on the applicant having regard to the length of the commute; the significant reduction in the time that she would spend with her children; her children's sporting commitments; and the fact that no accommodation would be offered to her by the Parramatta Superintendent. The Sustained Misconduct 1. The applicant's primary submission is that she did not engage in the conduct alleged against her. Allegation 1 - COPS Access 1. The first finding against the applicant is that on 16 February 2016 she conducted inappropriate and unauthorised enquiries into confidential information held by the NSWPF on the COPS system which was contrary to her obligations under the Police Act, the Police Regulation 2015 (NSW), the NSWPF Code of Conduct and Ethics and the NSWPF Computerised Operational Policing System User Guide. 2. Section 7 of the Police Act relevantly states: Statement of values of members of the NSW Police Force Each member of the NSW Police Force is to act in a manner which: (a) places integrity above all, (b) upholds the rule of law, … (h) ensures that authority is exercised responsibly. 1. Clause 8(1) of the Police Regulation 2015 states: Police officers are to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them. 1. Clause 76(1) of the Police Regulation 2015 states: A member of the NSW Police Force or a student of policing must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone. 1. The NSWPF COPS User Guide states at p 37: "under no circumstance is the information provided by COPS to be used for a purpose other than official Police business" and provides the following guideline: "only access information in the normal course of your duty (do not access information for gratuitous or personal reasons)". 2. The NSWPF Code of Conduct and Ethics sets out key ethical requirements for employees of the NSWPF, including the requirements to: 1. behave honestly and in a way that upholds the values and the good reputation of the NSWPF whether on or off duty; and 2. only access, use and/or disclose confidential information if required by their duties and allowed by NSWPF Police Force policy. 1. Point 3 of the NSWPF Code of Conduct and Ethics relevantly states: An employee of NSW Police must know and comply with all policies, procedures and guidelines that relate to their duties. If you are going to work lawfully and effectively you need to understand and act in accordance with the standards that govern duties. 1. Point 8 of the NSWPF Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police Force policy. The community places significant trust in the NSW Police Force to appropriately manage confidential information. Employees must only access New South Wales Police Force information for purposes that are directly relevant to their duties. This information can only be used and/or disclosed for a lawful purpose and in accordance with legislative requirements and NSW Police Force policy. 1. Point 9 of the NSWPF Code of Conduct and Ethics relevantly states: An employee of the NSW Police Force must not make improper use of their position or New South Wales Police Force information or resources. Employees of the NSW Police Force hold positions of authority and have access to a range of resources and confidential information. Use of any of these must only be for lawful purposes and in the course of your duties. You must not improperly use your position, or access NSW Police Force resources and information, for personal gain or the gain of any other person or organisation. 1. The respondent says that the applicant was familiar with the applicable policies relating to COPS and there can be no doubt that the conduct of the applicant was in breach of the relevant policies and that those breaches amount to misconduct. 2. The statement of Detective Superintendent Kerlatec includes, at paragraph 15.4, the results of an audit of the applicant's COPS access undertaken on 13 March 2017 as follows: 1. at 4:06pm on 16 February 2016, the applicant made an "event enquiry"·(search) for COPS event E 55741812, which contained information regarding a disclosure made by B's daughter to her mother. The disclosure related to alleged assaults by B of both his children. The applicant then sighted: 1. CNI670511773 "[ B]" as a "party enquiry" within E 55741812 2. CNI789093268 "[daughter of B]" as a "party enquiry" within E 55741812 3. Location 32162 "West Wallsend, NSW, 22... " as location enquiry within E 55741812 1. at 4:09pm on 16 February 2016, the applicant made a "party enquiry" (search) for Central Name Index (CNI) 679511773 which is the record for B. 2. no "reasons for access" were recorded in COPS by the applicant and no references to B or his children were made in the applicant's Duty Book entry for 16 February 2016 or the applicant's notebooks. 1. The applicant accepts that the records concerning B into which she made enquiries in February 2016 comprised confidential information but submits that the Commission should not find that she engaged in unauthorised COPS access. 2. The applicant says that she made the enquiries on COPS to ascertain whether she had any involvement in the investigations into the 2014 Complaints and says: this is a valid reason to access COPS; it is in accordance with her duties; and is part of official police business; and the respondent has not established that she accessed COPS for any purpose other than this. 3. The applicant submits further, that if she had identified the need to report the potential conflict of interest of having been involved in investigations into the 2014 Complaints, it is entirely plausible that her supervisor might have required her, or another officer, to access COPS for the same express purpose. 4. The respondent submits that at the time the applicant conducted the searches she did not know what personal information pertaining to B, or his family, she would be accessing. The applicant conducted a person search by using B's details on the Joint Investigation Response Team ("JIRT") database to obtain the COPS reference number. The respondent says that in conducting that search the applicant did not know whether this would disclose information limited to the two sets of allegations that she understood had been made against B at that time. 5. The respondent submits further, when the applicant subsequently conducted the COPS searches, she knew that she would be obtaining information beyond a confirmation as to whether she had supervised the investigations into the 2014 Complaints, and would most certainly obtain information, personal or otherwise, which was confidential pertaining to B's former wife and his children. In support of this, the respondent refers to the applicant's evidence during the hearing: Q. I'm now asking you about COPS. When you did the COPS search, you did not know what information you were going to be viewing about B, his ex­ wife, or his two children, did you? A. Well, doing a COPS inquiry on the event which related to the report of 2014 investigation one of the 2014 investigations, so I would have imagined it would have just been information relating to that. Q. By doing that and by reading the material on there in relation to that event, you were going to be reading information that was private and confidential to B, his ex-wife and his two children, weren't you? A. Potentially, yes. Q. That information, you would accept, wouldn't you, is confidential to them? A. Yes. (Transcript 25/2/19, p39, 24-47) 1. The applicant defends her action in undertaking a COPS enquiry stating that if she wanted to obtain information on B or his family she would have done a different search as follows (Transcript 25/2/19, p41, 1-6): Q. A cynical view might be taken that by you accessing the confidential information, you were checking up on his history; would you accept that? A. No, because if I wanted to check up on his history, I would have done a PERFIND on him. His history isn't contained in one single event. You need to do a PERFIND on somebody to bring up all their history for every single involvement that they've ever had with the police. 1. The respondent says that the extent and nature of the applicant's searches went beyond accessing information about whether she supervised the investigation, it extended to accessing actual confidential information about those reports, including information pertaining to B's family. 2. The respondent refers to the applicant's admission during her directed interview and in her cross-examination that she "probably" did not have any lawful reason to access COPS and that she "realises now" that she should not have accessed COPS at all. 3. In her directed interview the applicant was asked the following questions and gave the following answers: Q86: Do you believe you had a lawful reason to access information on the persons in question on the COPS database? A: At the time I thought I did and that I wasn't doing anything improper, because I was trying to ascertain whether I was involved in a matter that I may have had to report as a possible conflict. I am however now aware that in hindsight I probably didn't have a lawful reason to access it and I should have reported my concerns to my supervisor. It also should be noted that it wasn't an ongoing investigation. … Q91: do you believe that, given the enquiry related to a person with whom you were at the time involved in a relationship, that you should have both recorded the reasons why you accessed the information? A: I realise now that I shouldn't have accessed it at all. … Q96: Is there anything further you would like to say about either of the two allegations under investigation? A: no, only that with the benefit of hindsight, I would not have accessed the information, and would have told Inspector Waterman as soon as I became aware of the earlier matters in 2016. 1. The following exchange took place between Counsel for the respondent and the applicant about the applicant's admission during her directed interview that she had probably breached the COPS User Guide by accessing information, and her later admission that she should not have accessed the information at all (Transcript 25/2/19, p41 at 26-50)]: Q. Can I take you back to your record of interview at page 19, question 86, you were asked, "Do you believe that you had a lawful reason to access the information". You say, "At the time, I thought I did". Then you say this, "I am however now aware that in hindsight I probably didn't have a lawful reason to access it", is that your position now? A. Yes. Q. At question 91, over the page, you were asked the question, "Do you believe given the inquiry related to a person with whom you were at the time involved in a relationship that you should have both recorded the reasons why you accessed the information and why you accessed it", see that? A. Yes. Q. You say, "I realise now that I shouldn't have accessed it at all"? A. Yes. Q. Is that your position now? A. Yes. I should have reported it to my supervisor. Q. What is your position in relation to allegation 1 that was put to you in the notice by the delegate of the Commissioner, do you accept the allegation that you breached the COPS procedure or not? A. Sorry, are you talking about the 173 notice? Q. Yes, JK12. A. Yes. 1. Despite the applicant making these admissions, the applicant now submits that she accessed the material for the lawful purpose of seeking to determine whether she had a conflict of interest. The respondent says that this submission is irreconcilable with the applicant's admissions made during the course of the investigation and at the hearing and furthermore that the applicant's admissions in her directed interview and during the hearing that she breached the relevant COPS procedures and policies should be regarded by the Commission as an admission that she did breach those policies and procedures in the way that is set out in the Disciplinary Order. 2. I accept the applicant's evidence that she accessed COPS in order to determine if she was the supervisor of the investigation into the 2014 Complaints. However, this could have been verified simply after a disclosure to her superior. The assertion that the applicant had a lawful purpose in accessing COPS to ascertain whether she had a conflict of interest exposes the inherent conflict that arises in those circumstances. By making the COPS access in these circumstances an officer may be actually or potentially advancing the officer's actual or potential conflict of interest, and this is why it is necessary for the officer to disclose an actual or potential conflict. Whether or not that material was exculpatory of B is irrelevant; the access was inappropriate and clearly for a purpose "other than official Police business" which is the only reason COPS should be accessed by Police Officers. 3. Despite the applicant's assertion that she could have used a different enquiry if she had wanted to obtain more information about B or his family, in acting as she did, the applicant accessed confidential information about B and his former wife and their children which was in breach of: the NSWPF Code of Conduct and Ethics set out at paragraphs [66] and [69]; the NSWPF COPS User Guide set out at paragraph [65] and cl. 76 of the Police Regulation 2015. 4. The applicant's submission that had she declared a conflict of interest then her superiors may have undertaken a check of the type she undertook does not assist to establish that the access was for a proper purpose, and as the respondent pointed out serves to highlight the inherent conflict. 5. Even on her own case, the applicant admits that at the time she made the enquiry she had a potential or perceived conflict of interest although she says that this is not the conflict that is the subject of Allegation 2. The applicant should have given her superiors the information she had obtained from B and allowed her superiors to make whatever enquiries they saw fit and not put herself in a position of accessing confidential information which, if she had been the supervisor of the investigation, would have compromised her further. 6. The applicant's action in taking it upon herself to make the enquiry: was not an appropriate access of confidential information belonging to the NSWPF; is a breach of the COPS User Guide; is a breach of the NSWPF Code of Conduct and Ethics; is a breach of cl. 76 of the Police Regulation 2015; is inconsistent with s 7 of the Police Act; and is misconduct. Allegation 2 - Conflict of Interest Issue 1. The second sustained finding is that from the date B advised the applicant that he had been the subject of prior child protection reports in February 2016 and until March 2017, the applicant failed to identify a conflict of interest involving B, which was contrary to the Police Act, the Police Regulation 2015 (NSW), the NSWPF Code of Conduct and Ethics and the NSWPF Conflicts of Interest Policy Statement and Procedures for Managing Conflicts. 2. Point 7 of the NSWPF Code of Conduct and Ethics relevantly provides: An employee of the NSW Police Force must take reasonable steps to avoid conflicts of interest, report those that cannot be avoided and cooperate in their management. The NSW Police Force must effectively manage conflicts of interest. This ensures we provide the community with fair and impartial services, maintain public confidence, prevent corruption and manage allegations of misconduct. You are responsible for identifying and avoiding conflicts of interest that relate to your employment with the NSW Police Force. These conflicts may be actual, perceived or potential. … All conflicts of interest will be managed in favour of the public interest. 1. The Conflicts of Interest Policy Statement that applied from November 2015 states: A conflict of interest occurs when the private interests of the NSW Police Force employee interferes with or influences, or appears to interfere with or influence their official duties and responsibilities all where an employee uses their official status to influence private interests. The NSW Police Force is committed to resolving conflicts of interest in the public interest. This commitment requires that all individuals engaged in activity on behalf of the NSW Police Force: identify actual, potential and perceived conflicts of interests take all reasonable steps to avoid conflicts of interest where possible seek advice if uncertain whether a conflict of interest exists report any conflicts of interest if they cannot be avoided put the public interest before your private interest cooperate in the management and resolution of conflicts of interest report any noticeable change in circumstances relating to conflicts of interest that are being managed. The following principles underpinning this policy statement The NSW Police Force recognises that conflicts of interests are often inevitable. It is therefore not considered misconduct to have a conflict of interest as long as it is reported and managed in line with this policy and related procedures. … Failure to comply Failure to comply with this policy and related procedures will be considered a breach of the NSW Police Force Code of Conduct and Ethics and may result in management action. 1. The NSWPF Procedures for Managing Conflicts of Interest: 1. sets out its purpose at section 2 to include: … enable[ing] the NSW Police Force to: provide fair and impartial services to the community maintain public confidence in policing implement corruption resistance strategies effectively deal with allegations of bias/misconduct. 1. defines "conflict of interest" at section 5.1 as: Conflicts of interest occur when the private interests of a NSW Police Force employee interferes with or influences, or appears to interfere with or influence their official duties and responsibilities. A conflict of interest can involve gaining a personal advantage as well is avoiding or minimising personal disadvantage. That is, a conflict of interest may allow you to avoid a loss, expense, or something else that has a negative impact on your personal or private interests. Where a conflict of interest arises you are required to put the public interest before your private interests, whether on or off duty. 1. defines and sets out definitions and obligations in respect of "private interest", and other matters in section 5 as follows: 5.3 Private interest Private interest is broadly defined as anything personal in your private life that impacts you. It is only relevant to this policy where there is a connection to your official duties. Private interests can include your social, community, professional and business interests and those of the people and groups with which you associate (including friends, relatives, associations/businesses, community groups, rivals and enemies). It is only those private interests that conflict (or can be perceived, or have the potential to conflict) with your official duties and responsibilities that need to be declared and managed. Private interests that may give rise to a conflict of interest often broken into two groups, pecuniary and non-pecuniary. … 5.5 Non pecuniary (non-financial) interests A non-pecuniary interest does not have a financial component. The non-pecuniary interest can involve personal or family relationships, or involvement in social, political, religious, sporting or cultural activities that could influence, will be perceived to influence, your judgement or decisions as a NSW Police Force employee. Personal opinions, prejudices and attitudes can also represent a non-pecuniary interest. If you are unable to set these aside in the conduct of a public duty, then these can lead to a conflict of interest. Even when you can set them aside, such personal viewpoints might be seen to be a conflict of interest by others. … 5.7 Types of conflicts of interest There are three main types of conflicts of interest: actual, perceived and potential each of these presents the same personal and organisational risks and therefore need to be managed appropriately. If you are unsure of a conflict exists, you should discuss the matter with your commander/manager. Actual conflict of interest: where a conflict exists between your official duties or responsibilities and your private interests. Perceived conflict of interest: where it could be seen by others that your private interests could improperly interfere with or influence you in the performance of your official duties or responsibilities, whether or not this is in fact the case. Potential conflict of interest: where your private interests could interfere with or influence your official duties or responsibilities in the future. (Original emphasis) 1. sets out at section 9.2 the need to "consider the perceptions of others" and states: Perceived and potential conflicts of interest are often characterised by other people's opinions or perceptions. If the conflict of interest has not been identified and managed, the perceptions of others can cast doubt on the integrity of individuals and the NSW Police Force even if there has not been misconduct. Such situations are more difficult to manage and crisis brackets for example, when there is high media interest). It is therefore necessary for the NSW Police Force to implement strategies to avoid dealing with the conflict of interest in advance. To identify conflicts of interest ask yourself the following questions. Could a member of the public reasonably considered/perceive a conflict in the circumstances? Given my personal interests, could my involvement cast doubt on my integrity / decision-making or impact in any way on the reputation of the NSW Police Force? 1. at section 10, requires Commanders and managers to identify and implement strategies to resolve conflicts of interest for affected employees, including: restricting involvement of the employee; removing the employee from the situation; the employee relinquishing the personal interest; and the employee resigning. 1. The applicant refers to the definition of "conflict of interest" set out at paragraph [91(2)] and says that the respondent alleges that the applicant "failed to identify a conflict of interest involving B once he disclosed to her that he had been the subject of prior child protection reports". The applicant submits that the respondent was required to set out the actual conflict of interest in the allegation and he failed to do so; consequently the allegation cannot be sustained. The applicant says she presumes her "private interest" is her developing relationship with B who had been the subject of prior child protection reports, and the respondent's case is that the developing relationship with B interferes with, or appears to interfere with, or influence, the applicant's official duties and responsibilities. 2. In support of this argument that she was not properly informed of the conflict of interest that was alleged against her, the applicant tendered the NSWPF Guidelines on procedural fairness & Part 8A evidence based investigations which relevantly provides: 3. How does procedural fairness apply a Part 8A complaint investigation? The key features of procedural fairness are: 1. The disclosure to the subject officer of the allegations (evidence adverse to the officer) and any other proposed adverse comment or finding, before making a decision. 2. Giving the subject officer the opportunity to respond to and comment on allegations (evidence adverse to the officer) and any other proposed adverse comment or finding. … 3.1 Disclosure to the subject officer of all relevant material before making a decision The best way to test the reliability or credibility of information collected during the investigation is to disclose the allegations and the relevant evidence relied upon to form provisional conclusions to the affected person in advance of a final decision. The subject officer must be provided with information, in sufficient detail to enable the officer to understand the allegations being made, the evidence gathered in support of the allegations and at least the substance of proposed adverse comment. They must be given the opportunity to make a full and proper response, before any finding of fact is made. 1. The applicant says it might be accepted that, if B had been the subject of adverse findings, or even adverse comment, in the course of being a "subject of child protection reports", then a conflict of interest arose. However, B was not the subject of adverse comment in the child protection reports which are annexures JK-1 to JK-3 to Detective Superintendent Kerlatec's statement, and the applicant says that for all intents and purposes B was wholly exonerated in 2014. Accordingly, the applicant says, it is entirely unclear how the fact of B being the subject of ''prior child protection reports" could interfere, or appear to interfere, with the applicant's performances of duties. 2. The applicant says the concept of "interference" is not at some low level. It involves interference at a degree that reflects a conflict between the applicant's interests, and that of the NSWPF. The applicant says the respondent has not established how the fact that she continued to date B in 2016, a year when she was nominated and obtained an award for her performance of work and for much of the time, the only Team Leader working at the Newcastle CAS, interfered with, and/or appeared to interfere with, her official duties. 3. In her statement of 8 February 2019 the applicant gave evidence, which was accepted by Detective Superintendent Kerlatec in cross-examination, that in 2016 she "was involved in reviewing and assessing over 500 reports of child abuses … [and] many of these cases involved family law issues; sometimes that fact contributed to a decision to cease investigating allegations, and sometimes it made no difference and allegations were investigated and where appropriate, prosecuted". The applicant also provided eight examples of matters in which she was involved in 2016 and another matter in 2017 which involved family law disputes and/or allegations involving family members in which she says she acted with impartiality. The applicant says that this should negate Inspector Waterman and Superintendent Kerlatec's concern about the applicant's error of judgement and that she might be influenced by Family Court matters. 4. The applicant says the Commission cannot be satisfied to the requisite standard that the applicant breached the Code of Conduct policy as alleged by the NSW Police. 5. The applicant says that the respondent cannot now rely on the applicant's admission regarding her failure to report to her supervisor a potential conflict of interest between the coffee meeting and accessing COPS because the applicant made that concession in her interview with DCI Barnes in late March 2017, but the respondent chose not to make that allegation against the applicant in the s.173 process, or in these proceedings. 6. The applicant's written submissions deal with the test for a reasonable apprehension of bias and the fair-minded lay, reasonable or objective observer in respect of the allegations of breach of the policy and procedures on declarable associations and the failure to declare a conflict of interest in breach of the policy. 7. The applicant's submissions refer to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 ("Ebner") at [69] - [73] concerning an argument that the failure by Mandie J, the judicial officer whose conduct is considered in the appeal from the Supreme Court of Victoria by Clenae Pty Limited and others, to disclose his shareholding in itself resulted in an apprehension of bias. The applicant says the following passage from this decision is useful in the context of considering what information the fair-minded lay observer is taken to have: As a matter of prudence and professional practice judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying. ... It is, however, neither useful nor necessary to describe this practice in terms of rights and duties. At most, any "duty" to disclose would be a duty of imperfect obligation. A failure to disclose is relevant (if at all) only because it may be said to cast some evidentiary light on the ultimate question of reasonable apprehension of bias. A failure to disclose has no other legal significance. In particular it does not, of itself, give a litigant any right to have the judge desist from further hearing the matter or to have the ultimate decision in the matter set aside for want of procedural fairness. To describe the practice of making disclosure as a matter of right or duty may distract attention from the fundamental question to be answered which is whether the reasonable apprehension of bias test is established … [T]here will, in those proceedings, be a full opportunity to make whatever case for disqualification of the judge the moving party can. Inquiring whether the moving party was denied some opportunity to make submissions on the question of disqualification to the judge in question is irrelevant. The question of disqualification can and will be litigated fully in the appeal or application for prerogative or like relief and no separate question of denial of procedural fairness could arise. The point can be illustrated by what happened in Clenae. The fact that the judge did not disclose his shareholding gives no different or additional right to the present appellants. All that they were denied by the fact that there was no disclosure was an opportunity to put an argument which we consider must fail. Disclosure of association may raise more difficult questions than are presented by the straightforward case of ownership of shares in a corporation. It is impossible to identify all of the kinds of association which might be thought to reveal a serious possibility of being potentially disqualifying. As we have said earlier, the application of the apprehension of bias principle requires identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and the articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. In the present case, the failure of Mandie J to disclose his acquisition of shares in the Bank was of no legal consequence. For the reasons already given, he had a clear duty to deliver the judgment he had reserved. His failure to make disclosure did not deprive the appellants of an opportunity to advance any argument or inform him of any facts which would have given rise to a contrary conclusion. His silence could not reasonably support an inference of want of impartiality. (Footnotes omitted and my emphasis) 1. The applicant says that the Court's determination that "the application of the apprehension of bias principle requires identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and the articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits" has been re-affirmed by the High Court on a number of occasions. It follows the reasonable observer in an apprehended bias case has complete knowledge of the relevant circumstances, as the enquiry is into "the logical connection between [the conduct] and the feared deviation". 2. In support of her contention that the test for apprehended bias is objective, and that is the relevant test to determine whether the applicant has a conflict of interest in breach of the Conflicts of Interest Policy Statement and/or a declarable association, the applicant also refers to Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at 28 which held as follows: Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. 1. In assisting me to understand the applicant's submissions about the fully informed objective person, Counsel for the applicant submitted that the objective observer must have the underlying material that would have been available to them at that time, and that underlying material would have demonstrated that: no charges were laid; B was not interviewed; no steps were made to remove the children; and he continued to have his children in accordance with the family orders overnight. With this knowledge, the objective observer would conclude "none of the people who are paid by the taxpayer to protect children, none of those people across the JIRT team had any concerns about B continuing to look after the children. And in those circumstances - and given his denials and his explanations - then he did not engage in the conduct". 2. The applicant says that B is in no different category to anyone else with whom the applicant has a relationship, whether it be a family relationship or a friend. That is, in the future anybody might have cause to come before the Newcastle CAS. At that point in time the conflict can be managed, as it was managed in March 2017, when the AVO was taken out against B, and the applicant disclosed it and it was managed without interference. 3. The applicant submits that it would be a council of perfection if, because you are in a relationship with someone whose former partner made false allegations, that you need to declare all of this and if that is the case, then both the conflict of interest and declarable associations policy and procedures need to be a lot clearer about substantial grey areas that are not covered. I do not accept this submission as accurate. The Conflicts of Interest Policy Statement clearly states that an officer must "seek advice if uncertain whether a conflict of interest exists". The applicant should have, but did not, seek such advice. 4. The applicant accepts that she identified a potential conflict of interest but submits that is not the conflict of interest that the respondent has prosecuted against her and both Inspector Waterman and Mr Kerlatec were clear about that. The conflict of interest at issue in this Allegation, however, is a much larger conflict of interest which the applicant says she does not entirely understand. 5. The respondent says it goes without saying that when someone is embarking upon a relationship of some description, albeit at an embryonic stage, that is nevertheless a position where personal or private interests are at play. I agree with this submission. 6. The respondent says the applicant made the apparent admission in the directed interview and this was clarified in cross-examination. The respondent says that after the second date, the applicant was dissembling in her own mind a frame of reference to ascertain whether she had an actual conflict of interest, which is whether she was herself in fact involved in the investigation of the prior complaints made against B, about which she was not sure and so she accessed COPS. The applicant accessed COPS sufficiently to obtain information to ascertain that she was not the person responsible for the investigation. In so doing she was only determining whether she had an actual conflict of interest in the sense of whether there was an actual interference or an actual influence on her duties, not a perceived conflict of interest. I agree with this submission. 7. I also agree with the respondent's submission that the applicant fails to deal with the perception of conflict and this is where there has been a conflation by the applicant as to the objective person test or the reasonable observer. The respondent says that as a police officer you have to view the potentiality of the conflict through the eyes of others and ask yourself: "do you, as a police officer have a conflict?" That is what is expected of police officers. 8. The applicant's contentions about a reasonable observer or bystander having a view that B was no different from any other person are misconceived. The applicant made an assessment of whether she had a conflict (including the potential or appearance of the conflict) based on her assessment and determination of B's account. That is, she believed his version of events on his 'say so'. What she was being told by B were only his assertions of what had happened. That is not to say that B was being untruthful or that the applicant was not entitled to think he was being honest. However, what the applicant could not do was to become the independent or sole arbiter of the question. That is because, as the respondent submits, a fortiori she was in a position of actual, potential or apparent conflict. 9. Counsel for the respondent posited the hypothetical example which he says is no different to the circumstances in this case of the applicant being a member of the drug squad and the person that she was on a second date with saying to her: Well, I've had allegations made against me that I'm a drug supplier in the past. Nothing came of it. It was about eighteen months ago. The police came and told me, 'Nothing to see here'. No one came and confiscated, from the Federal agencies, any of my property or anything. There's been no Proceeds of Crimes Act order and the applicant saying, "Okay, well, I believe you," and not disclosing this information to her superiors, but accessing COPS to determine that she herself had not been involved in any of the investigations. 1. In response to the applicant's assertions that the conflict of interest that has been sustained against her and outlined in the Show Cause Notice is not the conflict to which she admitted and that the respondent did not ever properly identify the conflict, the respondent says that the allegation against the applicant was that she failed "to identify a conflict of interest involving [B]", , the policy documents make it clear that a conflict of interest may be actual, perceived or potential and it was never alleged that the conflict of interest was actual. Further, during cross-examination the applicant was specifically taken to this allegation and asked whether she admitted it, and she confirmed that she did: Transcript 25/2/2019 p. 29. The respondent says that the point is one of procedural fairness, and it is not accepted by the respondent that there has been any denial of procedural fairness. 2. The respondent submits that in McDiarmid v Commissioner of Police [2012] NSWIRComm 100 ("McDiarmid"), Boland J considered whether invalidity arises as a result of a disconnect between a show cause notice and the order made. In considering this issue, Boland J made the following observations concerning procedural fairness: [89] Thus, in review proceedings the Commission is to consider complaints about alleged failure by the Commissioner to comply with the requirements of the Police Act, including notices to show cause, as part of the fabric of the merit review rather than separately as complaints as to the "validity" of the order made. [90] As the respondent correctly submitted, the significance of procedural issues raised will vary depending upon the gravity of the failure and its effect on the opportunity for the police officer to receive a fair hearing when all the relevant circumstances of the particular case are taken into account: see Reid-Frost at [11](e) and (f). In my opinion, no procedural issue arises in this case that is of such significance that it rendered the process of dealing with the applicant's misconduct invalid. [91] I would also refer to what the majority in Reid-Frost stated at [21] and [24]: [21] Both parties to the proceedings accepted the formulation by Boland J, President, in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 ('Hosemans (No 3)') as to the nature of the obligation reposing in the Commissioner to give reasons under s 181D(4). We also agree with that formulation and consider that, essentially, the similar obligations repose in the Police Commissioner to provide "a Notice setting out the grounds on which the Commissioner does not have confidence" under s 181D(3)(a). That is, the grounds contained in a notice issued under s 181D(3)(a) must set out the essential bases for the Commissioner not having confidence in the officer's suitability in such a manner that they are sufficiently comprehensible to the police officer on whom they are served as to enable that person to understand those grounds and respond to them in a written submission as contemplated by s 181D(3)(b). … [24] In this matter, the written submission provided by the respondent to the Commissioner on 21 April 2008 demonstrated that the Notice was sufficiently comprehensible to the respondent and enabled her to, adapting the words of Boland J in Hosemans (No 3), "mount a coherent and comprehensive challenge". [92] As I have already indicated, I am satisfied the "essential bases" of the applicant's misconduct was set out in the show cause notice in such a manner that they were "sufficiently comprehensible" to the applicant as to enable him to understand the nature of the misconduct and respond to it coherently and comprehensively. 1. The respondent says that although the applicant says this is not a simple procedural fairness point, the principle of procedural fairness, is that once the allegation is made of a general: "You've failed to comply with conflict of interest," the subject matter has been enlivened and findings made within that general subject matter are still within the broad penumbra of the allegation, which is consistent with Boland's J decision in McDiarmid. I agree with this submission. 2. The respondent says further, that the importance of recognising conflicts of interest is illustrated by the fact that the Code of Conduct has only ten items in it, one of which is the Conflict of Interest Policy, and as it was put to the applicant, there are hundreds of policies and procedures within the Police Force, but in drawing the attention of Police officers to ten of the most important policies and procedures it is clear that the Conflicts of Interest Policy Statement is one all officers should know and abide by. I agree with this submission. The question before the Commission is whether the applicant's private interests had the appearance of interference with or influence over her performance of her duties, or that there was a potential for that to occur. 3. I am satisfied that the essential bases of the allegation of the failure to declare a conflict of interest was set out in the Show Cause Notice. 4. The NSWPF policies and procedures about conflicts of interest require police officers to take into account that potential or perceived conflicts must be adjudged by other people's opinions and perceptions. Such other people's perceptions include those of the members of the public/community, complainants, families and relatives. That is so because, for example, members of the community or the complainants may think there is appearance of bias or influence, if B's present partner is a senior officer working in the same office as that which is investigating, or had investigated, or was handling, or had handled, or may in the future handle, complaints made against him. Those perceptions can only be managed if the NSWPF is made aware of the actual, potential or apparent conflict. If it is not made aware of them at all, it is not in a position to deal with the question of perceptions. 5. As the respondent submits, the question of perception cannot be understated. It is essential that officers not only act with integrity, but that officers and the whole of the NSWPF, appear to have such integrity. This position is reinforced in the applicable policies and procedures outlined above. The relevant policies and procedures state that perceived and potential conflicts of interest are often characterised by other people's opinions or perceptions. If a conflict of interest is not identified and managed, the perceptions of others can cast doubt on the integrity of individuals and the NSWPF even if there has not been any misconduct. 6. The applicant's contentions about a reasonable observer or bystander are misconceived in respect of the Conflicts of Interest Policy Statement. The applicant made an assessment of whether she had a conflict (including the potential or appearance of the conflict) based on her assessment and determination of B's account. It was not appropriate that the applicant became the arbiter of the question of whether there was an actual conflict of interest and ignored question of whether there was a perceived conflict of interest. 7. The facts of this matter, which are said to be complex, do not excuse the failure on the part of the applicant to declare a conflict of interest. Prior to undertaking the COPS search, the applicant did not know that there was not an active investigation against B, but she surmised that to be the case on her own judgement based on the responses given by B, without recognising that she was in a position of conflict at that time, and not able to independently assess these matters for herself. 8. The applicant was relying on the information provided to her by B which she then analysed in light of her experience, as the basis for determining that there was not an active investigation, and therefore, on her understanding, that no conflict of interest arose. I agree with the respondent that the difficulty with this is that the information provided by B were not facts, but rather assertions made by him, whom she had only met twice, and which she had not verified independently. 9. Following their second date, the applicant says she thought about what B had told her for a few days and reached a level of uncertainty as to whether she had been involved in the investigation involving B: Transcript 25/2/19, p 29 36-47. At this point, even on her own evidence and her own analysis, the applicant had a potential conflict and ought to have disclosed her personal interests to her superiors. 10. It is irrelevant that the applicant, or a "reasonable observer" would have concluded that B was not a person who was involved in, or perceived to be involved in, child sexual assault. B's actual involvement in child sexual assault, or his guilt in that regard, is not relevant. What is relevant is whether at the relevant point in time (the second date and thereafter) the applicant should have identified that there was an actual or potential conflict of interest, or the appearance of it, taking into account the perceptions of others. At that point in time, the applicant was aware that B was a person against whom child sexual assault allegations were made, and that those allegations were investigated by the CAS in Newcastle, being the same team where the applicant was a senior employee, with oversight and influence. 11. In respect of the potential conflict of interest it was, and is, irrelevant whether B was innocent, telling the truth, or whether the applicant was entitled to rely on his word. There was a conflict, potential or apparent, and it required disclosure. Once disclosed, the NSWPF would be in the position to manage the situation. 12. The applicant's submissions about what information the fair-minded lay observer is taken to have and the cases dealing with the apprehension of bias of judicial officers ignores the reality that the policy that applied to the applicant was clear that an officer needs to consider whether her or his involvement could "cast doubt on [the officer's] integrity/decision-making or impact in any way on the reputation of the NSW Police Force". Further, judicial officers are placed in a position where it is their decision whether to recuse themselves, there is no superior to whom they can disclose a potential conflict and have the decision-making, and potential or actual conflict managed elsewhere. The extract from Ebner set out in the applicant's submissions and at paragraph [100] above says: As a matter of prudence and professional practice judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying. (my emphasis) 1. As the applicant noted, the plurality, continued: It is, however, neither useful nor necessary to describe this practice in terms of rights and duties. At most, any "duty" to disclose would be a duty of imperfect obligation. A failure to disclose is relevant (if at all) only because it may be said to cast some evidentiary light on the ultimate question of reasonable apprehension of bias. A failure to disclose has no other legal significance. In particular it does not, of itself, give a litigant any right to have the judge desist from further hearing the matter or to have the ultimate decision in the matter set aside for want of procedural fairness. 1. The position of judicial officers is different from NSW Police Officers subject to the Conflicts of Interest Policy Statement and the NSWPF Procedures for Managing Conflicts of Interest. The Policy Statement and Procedures create obligations or duties for NSW Police Officers which include that all individuals engaged in activity on behalf of the NSWPF: identify actual, potential and perceived conflicts of interests take all reasonable steps to avoid conflicts of interest where possible seek advice if uncertain whether a conflict of interest exists report any conflicts of interest if they cannot be avoided put the public interest before your private interest cooperate in the management and resolution of conflicts of interest report any noticeable change in circumstances relating to conflicts of interest that are being managed. 1. I agree with the respondent that a police officer who has been directed to consider whether there might be an apparent or potential conflict of interest, taking into account the perception of members of the community, should disclose the circumstances of B to their superiors. The purpose of this obligation is to avoid a perception that a police officer in that position has a conflict of interest and will not act objectively, regardless of whether the officer is able or not able to treat the matter objectively. The applicant's decision not to report the perceived conflict of interest is misconduct. 2. I also agree with the respondent that this obligation says nothing about the falsity or the truth of what the applicant was told but rather, the integrity of the NSWPF. 3. I am satisfied that the second allegation is made out. It was an objectively serious breach, given that conflicts of interest are a key component of the NSWPF Code of Conduct. Allegation 3 - The Declarable Association Breach 1. This finding is that between February 2016 and March 2017, the applicant failed to declare her association with B which was contrary to the Police Act, the Police Regulation 2015, the NSWPF Code of Conduct and Ethics and the NSWPF Declarable Associations Policy Statement and Procedures to Manage Declarable Associations. 2. The Procedures to Manage Declarable Associations - Individual Responsibilities in place at the relevant time, defines a declarable association at section 3.2 as follows: A declarable association exists when an individual is associated (to varying degrees) with a person, group or organisation who are involved in (or perceived to be involved in) activity that is incompatible with the NSW Police Force. 1. The Procedures to Manage Declarable Associations - Individual Responsibilities states at cl 4 at p 8: To deal with declarable associations effectively, individuals must: Identify, where reasonably practicable, declarable associations relating to them (actual, potential and perceived) report all declarable associations in writing to their commander/manager or supervisor using the Declarable Associations Report Form P1097 actively cooperate in the management of the declarable association(s) monitor the declarable association(s) until resolved In each of the above stages the individual with the declarable association is responsible for taking appropriate action to deal with the conflict in the public interest, and advise their commander/manager or supervisor when it is resolved or relinquished. 1. The Procedures to Manage Declarable Associations - Individual Responsibilities states at cl 4.1, 4,2, and 4.4 at pp 10-11: 4.1 Identify declarable associations An individual is responsible to assess all of their personal associations (including those that may commence in each) in order to identify associations that need to be declared. Individuals must seek advice from a manager or supervisor if they have any doubt or confusion. It is your responsibility to identify declarable associations. … If you are uncertain whether your circumstances meet the definition of a declarable association seeking advice from a manager or supervisor 4.2 Consider the perceptions of others It may not be easy to identify a declarable association in cases where an individual has a long established association, where emotional relationships are involved or where knowledge or information is lacking. Individuals who believe that their circumstances do not meet the criteria for a declarable association should still consider how a reasonable member of the public would view it. If there are any doubts, seek advice from a manager or supervisor. Failure to identify a declarable association when the individual involved could have reasonably been expected to, can lead to further management action. … 4.4 Report declarable associations Individuals must report all declarable associations that apply to them: promptly (as soon as practicable) in writing (using the Declarable Association Report Form P1097) to their commander/manager or supervisor 1. The applicant refers to the definition of a declarable association as set out at paragraph [132] and says the question for the Commission is: At February 2016, and afterwards, was [B] a person who was, or was perceived to be, involved in child sexual assault, being an activity that is incompatible with NSW Police? 1. The applicant says that the respondent eschewed any characterisation of this case as being about B being a paedophile, but the focus of this allegation is whether or not the applicant's relationship with B falls within the Declarable Associations Policy Statement. The applicant says determination of this requires close consideration of what the reasonable observer would perceive B did or did not do in order to ascertain whether or not the declarable association policy applies. 2. The applicant submits that applying the case law in respect of the determination as to whether there is an apprehension of bias set out in her written submissions and referred to above at paragraphs [100] and [102], the objective observer assesses whether or not the applicant's relationship with B fell within the terms of the declarable association policy with all of the relevant information reasonably available at that time. That relevant information includes the following matters taken into account by the applicant: 1. B himself disclosed his involvement with the CAS Newcastle, when he could have kept silent; 2. police at the time: did not interview him; did not take out an AVO against him; did not charge him; advised him that the matter would go no further; 3. FACS officers: told him that they believed it was a Family Court matter; did not prevent him from seeing the children; and took no steps to interfere with the Family Court orders that gave him the right to spend overnight time with the children; 4. the way in which B was reacting to revealing these matters; 5. B's account of how he reacted at the time when FACS first advised him of the accusations; 6. the history of B's ex-wife's mental health issues; and 7. her own knowledge of police and FACS procedures and the fact that B's disclosures were consistent with him being excluded from further investigation in relation to the allegations. 1. The applicant submits that the reasonable observer, like her, would have concluded, on this information alone, that B was not a person who was involved in, or perceived to be involved in, child sexual assault. If the police had perceived that he was involved in child sexual assault, they would have taken action against him; if FACS thought he was a person involved in child sexual assault, they would have prevented him from seeing his children between 2014 (and March 2016); and if the children's mother thought that he was a person involved in child sexual assault, she would have taken steps to change the Family Law orders and prevent him seeing the children. 2. The applicant says that the reasonable observer would be attributed with even more knowledge than her; they would be attributed with the knowledge of the contemporaneous police and FACS records that demonstrated that the cases had been closed or suspended, and the children continued to stay at B's house. 3. The applicant says that the argument that the applicant was not entitled to believe the uncorroborated version given to her by B loses all cogency once the Commission accepts that the reasonable observer would be seized of all relevant knowledge, and not limited to the knowledge only available to the applicant. The applicant says further, the respondent's position is illogical because if the applicant could not accept the words coming out of B's mouth (albeit she tested them against other information and observations) then why did she need to trust his assertion at the outset that he had had contact with the Newcastle CAS? 4. The applicant says that it is not relevant that she had not had access to the interviews with the children because experienced officers from JIRT: FACS, NSW Police, and NSW Health working together, had access to the children's accounts and had determined not take any action against B. That decision runs squarely against any objective observer's perception that B was involved in child sexual assault. The simple fact of an allegation of child sexual assault having been made against B, when all extrinsic evidence is entirely and exclusively consistent with that allegation being false, cannot objectively give rise to a perception that B was, or had the potential to be, involved in child sexual assault. 5. The respondent says that the fact in issue is what information did the applicant have, and the information the applicant had was that B was telling her he had not been interviewed. The question then is, seized with that information, was it sufficient for the applicant to say there is not a perception of involvement in criminal activity. 6. The applicant says this mischaracterises the extent of the information obtained, and the process engaged to obtain it, by the applicant in her coffee shop meeting with B. The applicant says that the information that the applicant obtained when she accessed the database is irrelevant because based on her scrutiny of B and her cross-examination of him at the coffee shop the applicant, determined that B was telling her the truth when he said that the allegations were false. 7. The respondent says that the applicant's position is that: 1. the perception must be the perception of the objective observer or reasonable observer, and that observer would have full knowledge of the contemporaneous police and FACS records; 2. the reasonable observer, like the applicant, would have concluded that B was not a person who was involved in, or perceived to be involved in, child sexual assault; and 3. from a period after February 2016 until April 2017, B was a person who was perceived to be involved in an activity that is incompatible with the NSWPF, however, the applicant managed the declarable association herself by not having any contact with him. 1. The respondent says that the last point above discloses the very vice the policy and procedures dealing with declarable associations seek to address. I agree with the respondent's submission that it was not, nor could it be, for the applicant to manage any declarable association with B. The relationship ought to have been declared and managed by those superior to the applicant with the applicant's co-operation. 2. The respondent accepts that an objective test is to be applied in determining whether a declarable association exists. However, the respondent submits it is a test that has to take into account the perceptions of members of the public. For example, a member of the public might think there should be a declaration of association where a person is in a relationship with an officer working in an office that is the very office that has, is, or will be investigating or has, is, or will be handling complaints against the first person. This is consistent with the purpose of the Declarable Association Policy which is to uphold the integrity of the NSWPF and ensure that its officers are beyond reproach and are seen to be so. That is, the appearance of integrity is as important as the value of integrity itself. Any interpretation or application of the policy that seeks to limit the operation of the appearance of integrity is to be rejected. 3. The respondent says that contrary to what is submitted by the applicant, there is no basis to attribute to the application of the objective test the full knowledge of the COPS database and the FACS database. Not even the applicant had access to such information. To attribute such information to the objective (or reasonable) observer would be to conflate "involvement in" an activity and "a perceived involvement in" such an activity. Further, to imbue the supposed objective test with that information is to enliven the vice that is inherent in the underlying association. 4. The respondent says that the question is whether at the point in time of the second date and before making the COPS accesses, on any objective view there was a declarable association. That question is not answered by attributing into the test, the information which was obtained by accessing the COPS database. The question is to be assessed and answered at the point in time before the information is obtained and assessed. That is, whether there was a declarable association from the point of the second date when the applicant learned that there had been allegations made against B. The answer to that question is irrefutably, yes, there was a declarable association at that point in time. 5. The respondent says that the declarable association policy is not complex because there is a final catch-all provision which says if you are unsure about an association or a situation, seek advice. 6. It is evident that the applicant and B were associates from early 2016 when they had their first date. It is accepted that child sex offences are activities incompatible with the NSWPF. What is disputed is whether B was involved in, or perceived to be involved in, child sex offences and if so, for what period. 7. Despite the applicant's position that she formed a view, based on her experience as a police officer that the information that B gave to her on their second date, was the truth, and that there was no active investigation therefore B was not engaged in activity that was incompatible with the activities of the NSWPF, it is my view that the applicant was obliged to declare the association with B, which she failed to do. The information provided by B to the applicant was not facts, but rather assertions by a man, whom she had met twice and with whom she was trying to build a relationship, and which she could not independently verify without breaching NSWPF policies. Despite this, the applicant relied on B's assertions as the basis for establishing that there was no active investigation against B and that therefore no conflict of interest, or declarable association, arose. 8. I agree with the respondent that there is no basis to attribute to the application of the objective test the full knowledge of the COPS database and the FACS database. Not even the applicant had access to such information. To attribute such information to the reasonable observer conflates "involvement in" an activity and "a perceived involvement in" such an activity. The question is whether at the point in time of the second date and before making the COPS accesses, on any objective view there was a declarable association. It was inappropriate for the applicant to rely on B's assertions, regardless of her experience in interviewing witnesses in the child protection field. The applicant should have declared the association, and sought advice from her superior as set out in the Procedures to Manage Declarable Associations. 9. Allegation 3 that the applicant failed to declare her association with B which was contrary to s 7 of the Police Act, cl 8 of the Police Regulation 2015, the NSWPF Code of Conduct and Ethics and the NSWPF Declarable Associations Policy Statement and Procedures to Manage Declarable Associations is made out. 10. I have determined that the three Allegations have been made out. The applicant has not made out her primary case that she was not guilty of the misconduct alleged against her. Accordingly, the Disciplinary Order was not beyond power nor unreasonable nor unjust on this basis. Matters of procedural fairness 1. I do not accept that there was a denial of procedural fairness as asserted by the applicant on the basis that the respondent's delegate, Detective Acting Superintendent Yeomans, did not disclose in his reasons in the Show Cause Notice that one of the reasons why he was proposing a transfer order was because he could not trust the applicant's judgement. It is clear in the Show Cause Notice, in particular at pp 18 – 20, Detective Acting Superintendent Yeomans questioned the applicant's judgement in not being able to identify the conflict and gave notice of the fact that he was proposing a disciplinary order by way of a transfer. Is the Order disproportionate or harsh? 1. The applicant asserts that her conduct does not amount to a serious breach, and although she has retained her rank of Sergeant, the solution of moving her to Parramatta is entirely disproportionate and harsh especially when seen in the context that she was attempting to do the right thing at every step. 2. The applicant says that the Disciplinary Order was harsh because the misconduct which has been established falls at the least serious end of misconduct when the following matters are considered: 1. the complex nature of the matters that had to be considered to determine whether the applicant breached the policies as alleged; 2. the lack of deliberateness about her conduct; 3. her seniority and flawless career, and her obvious experience in the specialised area of child sex abuse; and 4. the public interest in retaining the experience of a police officer and utilising those skills in the best way possible. 1. The applicant says that the Disciplinary Order was also harsh having regard to the impact on her of: the length of the commute; the significant reduction in the time that she would spend with her children; her children's sporting commitments; and the fact that no accommodation would be offered to her by the Parramatta Superintendent. 2. The applicant says that proper weight was not given to the Response to the Show Cause Notice. Detective Superintendent Kerlatec had not acquainted himself with the fact that her carer's responsibilities were accommodated by a special arrangement in her role at the Newcastle CAS and he accepted in cross-examination that the travel times to Parramatta made reaching a similar agreement in the Parramatta position impossible. The applicant says her evidence regarding her approach to the Parramatta supervisor lays to rest any suggestion that any request for accommodation of her circumstances would be met favourably. 3. The applicant submits further that she has suffered sufficient penalty over the last two years. During this time the applicant, inter alia: 1. has been subject to the IRMP, which has prevented her acting up or seeking permanent promotion positions; and 2. has not filled a proper position, and has not had her talents, skills or experience appropriately utilised during this delayed period. 1. The applicant says that the submission that her errors of judgment should be taken into account when considering the appropriate penalty was not put against her in the Show Cause Notice and it would be contrary to the procedural fairness requirements and the scheme of s 173 of the Police Act for the Commission to take this into account. The applicant says further, Detective Superintendent Kerlatec refused to make any appropriate concession that the applicant demonstrated her capacities in relation to exercise of judgment and it would be entirely disproportionate to weigh against her so significantly the asserted error of judgment identified by Detective Superintendent Kerlatec. 2. The applicant says the following points give an insight into the real motivation for Detective Superintendent Kerlatec and Inspector Waterman: 1. Inspector Waterman said that the applicant should not be in the CAS even if she had not breached the policies; 2. Inspector Waterman would not agree that B had not engaged in the conduct asserted by B's children and former partner. The applicant says that this is a significant issue because it shows the degree to which this question of the objective observer is just immaterial to the decision makers; and 3. Inspector Waterman said that if the Commission decided that it was appropriate for the applicant to return to the CAS, he would make that work. Accordingly, this is not a case where there is any impediment to an outcome that sees the applicant's skills and abilities being appropriately used by her being placed back into her position. 1. The respondent says the Disciplinary Order is justified having regard to the applicant's multiple breaches of NSWPF policies and procedures and given the lack of insight demonstrated by the applicant in relation to these breaches. 2. The respondent says that the applicant's conduct is objectively serious for reasons including: 1. the applicant was a senior police officer in the CAS acting in a Team Leader role and operating with minimal supervision and a high level of autonomy; 2. the policies and procedures that the applicant failed to comply with are fundamental to upholding the integrity of the NSWPF. 3. instead of doing the correct thing, which was to disclose the matter to her superiors, the applicant decided to become the sole arbiter of whether she had an actual or potential conflict by accessing the confidential records of the NSWPF through COPS. The applicant's disregard of proper reporting lines and the command environment in which she worked is serious; and 4. the position taken by the applicant throughout the hearing, namely that her accessing COPS was appropriate and for a valid work-related purpose, reinforces concerns about the applicant's conduct and demonstrates a complete lack of understanding of policing practices and the standards of conduct expected of police officers. It also gives the respondent no confidence that the applicant would not act in the same way again if placed in a similar situation in the future. 1. I do not accept that the applicant was trying to do the right thing at every step. The applicant knew, or ought to have known, and admitted in her directed interview, that she should not have accessed COPS to determine if she had a conflict of interest or a declarable association. The Code of Conduct, the COPS User Guide, the Conflicts of Interest Policy Statement, the Procedures for Managing Conflicts of Interest and the Procedures to Manage Declarable Associations are designed to protect the integrity of the members of the Police Force and the Police Force itself. It is evident from these polices, when read together, that a police officer who thinks that they may possibly have a conflict of interest or a perceived conflict of interest, should not take it upon themselves to make enquiries to determine if there is, in fact, a conflict. 2. A key purpose of these policies is that the decision making on these matters is taken out of the hands of the person with the actual, perceived or possible conflict. The applicant's submissions that she did not act in breach of the COPS User Guide in making the enquiry as to whether she was the supervisor, and that if she had declared a conflict to her superiors then these same enquiries would be made but by someone other than her shows her failure to recognise this purpose. 3. For the reasons set out in paragraphs [165] and [166] and for the reasons submitted by the respondent and set out in paragraph [164] I agree that the applicant's misconduct is serious and I do not consider that the Disciplinary Order was disproportionate to the misconduct. 4. The respondent says further, that the applicant appears to have taken the position that she will make admissions and then resile from them as is necessary to protect or advance her position in these proceedings and this reinforces the respondent's concerns about her conduct, her absence of insight or understanding and is relevant to the Commission's consideration. I agree with this submission. 5. The respondent says that it is the views of Detective Superintendent Kerlatec, the respondent's delegate and the decision-maker, that are relevant and not the views of Inspector Waterman as to the findings made about the Allegations and the appropriate disciplinary outcome. I concur with this view, save for Inspector Waterman's concession that if the Commission ordered the return he would make it work which I consider is relevant to my determination and should be afforded weight pursuant to sub-s 175(4)(b) of the Police Act. 6. In determining whether Detective Inspector Kerlatec failed to make appropriate concessions I have considered the following exchange which took place between Counsel for the applicant and Detective Inspector Kerlatec: Q: … Do you accept that it's appropriate for Ms A to work in the child abuse squad in Newcastle? A. No. Q. And that's never again, from your perspective? A. Not in the child abuse squad with the Newcastle - to indicate - whether Newcastle or any of the other locations. Q. And that's not withstanding her long history in child abuse? A. Yes. Q. And notwithstanding the very confined timeframe of the matters found proven against her? A. Yes. Q. So all of her accolades and all of her work performance is set aside, in your view - well I withdraw that. Do you accept that removing her from the child abuse squad has had the impact of removing a valuable member of the police force from the area of child abuse? A. I accept that Sergeant A has got a wealth of experience and knowledge in regards to child abuse investigations and has no doubt done some incredibly complex and challenging matters and seen some horrendous matters. Where I lose faith is on her decision making and being able to accept that she will review and view matters objectively, particularly where Family Law Courts matters are involved, where she is talking to accused persons and she gets a version of events, not too dissimilar to what Mr B had provided, and accepting that Mr B is not convicted of any offence. It causes me concern that she would not continue to be objective and conduct, in an area of high trust and high responsibility and a team leader, to look after other people in such a delicate area of investigation. Q. Just unpacking that a bit Mr Kerlatec, is this your view firstly, that notwithstanding the many cases that Ms - I'll go back - Ms A's evidence is that there was in excess of 450 cases that she dealt with and it was dealt with within the child abuse squad in Newcastle in 2016, you accept that? A. Yes. Q. That she was the only substantive team leader for much of that time? A. I'd accept that. I don't know that for a fact, but I'll accept that. Q. That there was a vacant position in which some people acted from time to time, but not entirely throughout that year. Accept that? A. As I said, I don't know for a fact, but I won't dispute that. Q. You'd accept that of those 450 cases, and we're just talking about one year of her police career as a team leader at Newcastle, that some of those cases would have involved family law issues? A. Yes. Q. And there's no complaints that have arisen, as far as you're aware, in relation to her supervision of the officers investigating those matters? A. I'm not aware of any. Q. And so your position is that because of the error of judgment that you say, or the errors of judgment, that you say she engaged in in relation to Mr B, that you no longer have confidence that she would bring an unbiased view to child abuse matters that involve family court proceedings, is that right? A. That include Family Law proceedings and also to - as I said, Mr B is not convicted of any offence, but for an accused person who was able to give a very compelling version that would suggest or try to influence their position of innocence would sway an experienced investigator not to keep an open mind, concerns me. Q. Well it's your opinion that Ms A didn't keep any open mind in relation to Mr B, that's right isn't it? A. Yes. Q. But you have no evidence at all that she has done anything other than bring an open mind to both matters that she investigated directly and matters that she supervised as team leader. That's right isn't it? A. That's right. Q. And you accept that she's worked on thousands of cases over the years? A. No I don't know how many. Q. Well if you accept that she worked on 450 in 2016? A. Sergeant A wouldn't have worked on 400 alone. That particular unit had carriage of 400 matters. Q. You accept that she has, as a - first of all as a detective constable, detective senior constable and then as a detective sergeant over, I think a 14 or 16 year period, that she would have worked on thousands of child abuse cases? A. No I wouldn't accept thousands. I accept that she would have done a large volume. I wouldn't quantify it as the thousands. Q. And you're unaware of a single complaint in relation to the outcome of any of those matters that she was involved in? A. I'm not aware of any. Q. And yet you weigh up one matter involving her personal judgment and say that she cannot do that work again? A. Yes. Q. I put to you that's entirely unreasonable? A. Well that's my position. I'm not comfortable. I do not hold faith that she would not be objective in her position, that it would not be prejudiced by family law, not swayed by a very compelling version of an accused person in the future. That we have to maintain the highest integrity in conducting these investigations, which she has in the past. But I've got to go forward and present that we have the highest and most ethical and conduct the investigations to the highest integrity for families, for victims, for parents, for the community. We have to hold our head as high was we can in this regard. Q. Mr Kerlatec, would you accept this, if it had been demonstrated that Ms A's assessment of Mr B was wrong and that he had engaged in that child abuse, I want you to accept that hypothetical. She took his word in February, that's how you characterise it, it's now how you characterise it. She took his word in February and then it turned out that was wrong and he had abused his children. In that circumstance, you would say, "Well that shows that her judgment was wrong. She believed someone how it turned out was a paedophile". Is that what you'd say? A. I wouldn't change my position. My position is that the version that she was provided with should have been treated very differently. Rightly or wrong with the outcome, whether he was convicted or not. Q. Well I want to say to you that that's the problem, it's one of the problems with the position that you're taking now because you can't and you don't impugn her, do you? I withdraw that. Do you - is one of the concerns that you have about Ms A that she continues to live with Mr B? A. Absolutely not. Q. So she accepted Mr B's version of events, as you put it, that he hadn't abused his children, but other than that - that is the sole issue, is it here? That she accepted his version of events when she shouldn't have. Is that it? A. No, what I'm saying is she should keep a very open mind. She should accept or otherwise, what she did with that information, how she dealt with that information, the fact that she didn't seek advice from her supervisor as to, "Take a step back. I'm involved in this. Take a step back and then deal with it". She allowed - she involved herself by accessing COPS, by forming a decision and then acting on that and not disclosing for nearly 12 months. 1. I do not accept that Detective Superintendent Kerlatec failed to make appropriate concessions in the above exchange. Detective Superintendent Kerlatec is a senior police officer of 40 years' policing experience who has led, and been responsible for, the CAS for several years. His view that the applicant should not be returned to the CAS is substantially informed by the applicant not having kept an open mind about B's innocence or guilt and making a decision that B was telling her the truth based on B's account and her own experience, without any objective verification, in circumstances where she was commencing a personal relationship with B. Detective Superintendent Kerlatec's responses to this question were not, in my view, a failure to make appropriate concessions. 2. The respondent submits: 1. the applicant's travel time is not dissimilar to the experience of members in the community who have to undertake travel to attend to their daily jobs. The respondent says that the Commission, as the peak industrial tribunal in NSW, should exercise caution in making any finding that the applicant's proposed travel time to get to work is particularly harsh because to do so would be tantamount to diminishing the experience of many other workers in the community. Furthermore, as Sams DP said in Probst at [415]: Moreover, like all police officers, the applicant joined the Force on the understanding he could be transferred to any location, at any time, for operational reasons. It is a reality of policing life. The fact that he secured appointment to his home town was very fortunate, but he knew this could not be guaranteed indefinitely. 1. the significant reduction in the time that the applicant says she would spend with her children and the fact that no accommodation would be offered to her by the Parramatta Superintendent are not reflective of the evidence. The evidence that emerged from the hearing was that the applicant's discussions with the Commander of Fraud & Cybercrime Squad about flexible work were limited to whether she could work "one day per fortnight from the Newcastle area or from another LAC", and that she could request flexible working arrangements and these would be considered in accordance with the NSWPF's Flexible Work Arrangements Guidelines and Procedures and the Part Time Work for Police Officers Policy and Guidelines; 2. the applicant is only required to work a nine-day fortnight in the Parramatta role therefore, at a minimum, even if she did not request flexible working arrangements, she would be able to organise her working fortnight so that she only worked a four day week on the week that she had custody of her children and a five day week on the week that she did not have custody of her children. 3. as to the applicant's point that the commute to Parramatta would impact on her children's sporting commitments, again, her experience is not dissimilar to that which confronts most members in the community. The applicant's children's sporting commitments that may be impacted by her travel to Parramatta were limited to after-school sport training for two or three days per fortnight, for six months per year. Although the applicant claims to have made enquiries with other parents to determine whether they may be able to assist with taking her children to or from these commitments, it seems that she has not made enquiries with her former husband (and the children's father) or B (her current partner with whom she resides), as to whether they may be able to assist with taking the children to these sporting commitments. It appears from her evidence that she has not sought to intrude upon their arrangements to suit her own but, such is the case for many other members of the community, she will have to make decisions about where the burden of taking her children to their sporting commitments lies but that is a matter for her. In any event, the Commission should not approach the question of harshness on the premise that the applicant has no options available to her to address this purported issue. 1. I have considered the respondent's submission that the applicant's travel time is not dissimilar to the experience of members of the community who have to undertake travel to attend to their daily jobs. While this may be the case, the statutory scheme requires me to consider the impact on the applicant, including her Family Law arrangements and the impact on her children: sub-s. 175(4)(a) of the Police Act. I have considered these personal circumstances. 2. I must also take into account that the decision-maker has made the Disciplinary Order: sub-s. 175(4)(b) of the Police Act. As a reason for making the Disciplinary Order the decision maker has formed a view that the applicant should not work in the CAS. In considering the public interest, the opinion of Detective Superintendent Kerlatec as to the appropriateness of the Disciplinary Order, and whether he took into account the applicant's circumstances, is relevant. 3. Despite the examples provided by the applicant and referred to at paragraph [96] above which the applicant says should negate Inspector Waterman and Superintendent Kerlatec's concerns about her error of judgement and that she might be influenced by Family Court matters, I accept the evidence of Detective Superintendent Kerlatec in respect of the applicant's errors of judgement, failure to recognise a conflict of interest, there being a real risk in the applicant's willingness to be transparent in decision making and his concerns about the applicant's prejudices in concluding, without any objective evidence, that there is no truth to child abuse allegations when there are mental health issues or a family law dispute and his conclusion that that the applicant cannot work in the CAS and should be supervised more closely. Despite the applicant's evidence about circumstances where she says that the Family Law circumstances had no bearing on her professional judgment or the outcome of the matter, the risk continues to exist in circumstances where the applicant does not acknowledge that she had a conflict of interest that she did not declare and where she maintains that it was appropriate that she form a view that she did not have a conflict based on B's information and her assessment of that information, without any objective verification of the information. 4. The applicant says that proper weight was not given to the Response to the Show Cause Notice, in particular Detective Superintendent Kerlatec did not give appropriate weight to the fact that her carer's responsibilities were accommodated by a special arrangement in her role at the Newcastle CAS. The applicant says her evidence regarding her approach to the Parramatta supervisor lays to rest any suggestion that any request for accommodation of her circumstances would be met favourably. 5. Detective Superintendent Kerlatec gave the following evidence in cross examination (27/2/2019 p 29-32): Q. Mr Kerlatec, just in relation to your decision in relation to transferring A to Parramatta, you say in your statement and you refer to the flexible hours agreement is a policy that exists? A. Yes. Q. Were you aware that A last year had spoken to the commander at Parramatta about the possibility of working other than eight hours a day nine days a week? A. Yes, I think I do have some recollection of that, yes. Q. And that he had informed her that there would be no ability to be flexible around those hours? A. Yeah, I don't remember that bit. Q. That's been A's evidence in these proceedings. You accept certainly that it's in the commander's discretion as to whether or not flexible hours are granted? A. Yes. Q. Now that you know that, do you accept that that was something that was valuable to A in terms of managing her Family Law commitments to have her children one week on, one week off? A. I'd accept that'd be valuable to her, yes. Q. And do you accept that even if - I'll go back a step. Do you accept that she's been told by the commander at Parramatta that she wouldn't be able to work flexible hours, that she would have to work nine days per fortnight, eight hours a day? Do you accept that that's what she's been told? A. Yes, I accept that. Q. And that even if there was some flexibility, it would be very difficult for her to replicate the arrangement that she had had for many years at - well, when I say for many years, from the date of the - withdraw that. She had had that arrangement in place since her children had been seeing her week on, week off since her relationship broke down I think some time in 2013, that it would be hard to replicate that arrangement when one factors in the driving time to Parramatta from Newcastle? A. The 12-hour shifts? Q. Yes? A. It would be challenging, yes. Q. And insofar as her family situation was concerned you took into account the fact, did you, that she was now - because of the separation from her former husband that she was seeing her children half the time that a parent would normally see their children? A. I accept that, yes. Q. And do you accept that in seeing her children half the time that she reasonably wants to maximise the time that she spends with her children in that week? A. I accept that. Q. And do you accept that the decision that you made sending her to Parramatta would significantly deplete the number of hours that she would have time to spend with her children? A. I accept that the - that's a consequence of that decision, yes. Q. Well, when you say that you took into account her personal circumstances, how did you take that particular aspect of her personal circumstances into account? A. Well, I should qualify just by saying that the scope of where I could transfer A to is limited to within my capacity within State Crime Command so Parramatta was my only option. Q. I have to say I don't understand enough about the police processes to quite understand what you've said so perhaps for the benefit of the Commission-- A. Yeah. Q. --can I just firstly understand your - you're not currently A's commander, that's right? A. Well, technically, yes. Q. You are? A. Even though she is on - working at a police area command near Newcastle, she's still attached to the Child Abuse Sex Crimes Squad, yes. Q. Which is within your command? A. That's correct. Q. You're based at Newcastle? A. I'm based at Parramatta here. Q. I'm sorry, at Parramatta here, and you hadn't met A before today, is that right? A. Oh no, I would have. I'd say I would have, yes. Q. You don't have independent recollection of having done so? A. I have met her before, yes. When, how often, I couldn't say. Q. So she falls within your command because she's in the child sex abuse, the new name of the squad? A. Yes. Q. And even though that's located in Newcastle, your particular command extends into different geographical areas because of the nature of the work that you supervise? A. That's right. That's right. Q. And other than Newcastle, the remainder of your command is here in Parramatta, is that right? A. It's spread across all the New South Wales, as you mentioned. Q. Yes? A. In satellite locations. The main office is here at Parramatta. 1. I accept that the travel to Parramatta will cause the applicant difficulties and I have considered the consequences for the applicant and her family of the transfer. It is clear that there will be impacts on the applicant's personal life, and that the distance that the applicant will be required to travel each day in a nine day fortnight is not insignificant. These factors, in particular the distance, have weighed heavily in considering the harshness of the Disciplinary Order. However, as Deputy President Sams pointed out in the extract from Probst, relocation is a reality for police officers who are routinely relocated for operational reasons unrelated to any misconduct. 2. Further, as the respondent submitted, the impacts on the applicant's children, for whom the applicant has week on / week off custody, can be mitigated by the involvement of their father or B, with whom she lives, and the fact that she will be working a nine-day fortnight, even if flexible work arrangements cannot be arranged. 3. In respect of flexible work arrangements, I have considered the applicant's evidence about the discussions that she has had with Commander Anthony Cook, the evidence of Detective Superintendent Kerlatec and Chief Inspector Tracy Chapman about flexible working arrangements, and the Flexible Work Arrangements Guidelines and Procedures ("the FWA Guidelines"). I note the Principles set out at pp7 and 8 of the FWA Guidelines which state: … 7. Requests for FWAs should identify the particular need of the employees so that reasonable options may be explored to meet this need. 8. Best outcomes are achieved by both parties considering a range of options. What is agreed to may not be either parties preferred way. 9. Each request should be genuinely considered by the Commander/Manager on a case-by-case basis and judged on its merits first question should be "How can I best assist me the employees need?" 1. In light of the submissions put by the respondent's Counsel and the evidence of Chief Inspector Chapman and Detective Superintendent Kerlatec in this regard, I would expect that all requests for flexible working arrangements by the applicant will be considered in accordance with the Guidelines and that an appropriate arrangement will be agreed between the parties. I do not accept the evidence supports the applicant's submissions that flexible work arrangements will not be approved. 2. I accept that the applicant has experienced anxiety and possible embarrassment as a consequence of the investigation and the Disciplinary Order. I do not accept the applicant's submission that she has already suffered sufficient punishment, if what is meant by punishment is punishment in the form of a sanction imposed by the respondent pursuant to the Police Act. The Disciplinary Order has been, in effect, stayed pending this Application, so it has not taken effect, and the transfer that has occurred out of the CAS and into the other unit in which the applicant is working was as a result of the IRMP which is a component of the Conduct Management Plan that is not reviewable by the Commission and is not a punishment of the type of sanction that is dealt with in this Application. 3. I have taken into account the evidence and references provided by Detective Sergeant Kevin Bale and Merrin Dimmick and the reference from Superintendent John Grafton which was submitted with the Response to the Show Cause Notice which is found at annexure JK-13 of the statement of Detective Superintendent Kerlatec. 4. Detective Sergeant Bale is highly complementary of the applicant's skills and performance as a member of the JIRT Team at Ashfield and that he "would have no issue working with her or questioning her integrity". Detective Sergeant Bale also refers to "the unlawful access" and "that [A] would've learnt from the experience" which implies he agrees that the COPS access was unlawful and I infer that he does not know that the applicant is asserting in the Application that she has not engaged in misconduct. Detective Sergeant Bale says: Having been a JIRT Team Leader for over eight years and being involved in the assessing, reviewing and investigation of numerous child abuse allegations, I can fully understand [the applicant's] you in relation to the JIRT process being used on occasions by parents during Family Law Court proceedings and not making a person dramatically a suspect. It was an issue often discussed with other team leaders and I believe it is common knowledge by officers that have worked within a JIRT office for an extended period of time. Despite this knowledge, I have no doubt that [A] as all Team Leaders would still assess each matter on a case-by-case basis only make a conclusion of all the evidence have been assessed. From my experience as a JIRT Team Leader/Investigator there is a very fine line between personal conflicts and operational issues, such as those with children of a similar age to the alleged victim or offender. However, as a Team Leader/Investigator we are trained to be able to separate any personal issues would decide fresh issues and I have never had any reason to question [A]'s ability to do the same and have never heard of any concerns in relation to this. 1. Despite Detective Sergeant Bale's evidence, the applicant did not wait until she had all of the evidence before making a conclusion. Further, Detective Sergeant Bale's evidence of the very fine line between personal conflicts and operational issues is another reason for the strict adherence to the NSWPF's policies. 2. Superintendent Grafton is supportive of the applicant's skills as a police officer and says that he would be willing to work with the applicant again. The Superintendent expresses the following views: … I note that she appears to now (with hindsight) have an understanding that our actions that brought her under notice were certainly unwise. … … I believe that she has learnt from her mistakes, has shown contrition for her actions and is not likely to repeat similar behaviour into the future. 1. The applicant has made limited admissions but I have difficulty accepting Superintendent Grafton's view that the applicant is unlikely to repeat similar behaviour in the future when she does not acknowledge before the Commission that she has done anything wrong. 2. I have considered carefully the respondent's evidence of the lack of Detective Sergeant positions available outside of the CAS in the Port Stephens Police District ("PD"), Hunter PD, Newcastle City PD, Lake Macquarie PD and Tuggerah Lakes PD. It is clear from the evidence of Chief Inspector Chapman that the availability of Detective Sergeants' positions close to the applicant's current residence is extremely limited. Detective Superintendent Kerlatec has given evidence that the majority of State Crime Command positions are in Parramatta. 3. Chief Inspector Chapman has also given evidence, which I accept, that available Constable positions cannot be converted into Detective Sergeant positions because authorised positions are allocated with a special rank and duty type. This is not only due to budgetary reasons but also workload and the requirement of particular ranks and duty types to conduct the required rank. 4. Section 8 of the Police Act makes the respondent responsible for the management and control of the NSWPF, subject to the direction of the Minister. Whether the Commission has power, pursuant to sub-s 177(1)(b) of the Police Act, to order that the respondent place the applicant in a Constable position, but at the remuneration and other conditions of Detective Sergeant was not dealt with in any substantive way by the parties, although the applicant did concede, and the respondent agreed, that I do not have the power to create a new Detective Sergeant's position. The respondent submitted that the Commission's orders must be consistent with the Police Act and referred to the powers of the respondent pursuant to s 173. 5. On its face, sub-s 177(1)(b) of the Police Act does not limit the Commission to the actions available to the respondent pursuant to s 173. However, in the circumstances, where I have not had the benefit of the parties' considered submissions on this matter, and where this review is undertaken pursuant to the legislative scheme which requires that the Commission, in exercising its powers of review of the Disciplinary Order, consider that the respondent made the Disciplinary Order, and that the parties agree that I cannot create a Detective Sergeant position, even if I did have the power to make such an order, I consider I am bound to exercise significant caution, before interfering with the respondent's decisions as to how the NSWPF is managed and controlled pursuant to s 8 of the Police Act. 6. The applicant's misconduct, viewed objectively, is serious and the Disciplinary Order is, for the reasons referred to at paragraph [167], in the circumstances proportionate to the conduct. A substantial sanction is not only warranted but required. 7. In summary, in considering whether the Disciplinary Order is harsh I have taken into account: the impact of the transfer to Parramatta being highly undesirable for the applicant and its impact on her family; the good conduct history of the applicant; the excellent work of the applicant; and the public interest in retaining skilled and highly trained officers like the applicant. I have balanced these matters against: the applicant's lack of insight into, and acknowledgement of, her serious misconduct and her obligations under the respondent's policies; Detective Superintendent Kerlatec's view that there is a real risk in the applicant's willingness to be transparent in decision-making and his concerns about the applicant's prejudices in concluding, without any objective evidence, that there is no truth to child abuse allegations when there are mental health issues or a Family Law dispute; and Detective Superintendent Kerlatec's conclusion that the applicant cannot work in the CAS. I have also taken into consideration the limited availability of Detective Sergeants' positions close to the applicant's current residence, and the acceptance by both parties that the Commission is not empowered to create a Detective Sergeant's position close to the applicant's residence. 8. Taking into consideration all of the circumstances referred to in this decision, and, in particular, those set out in paragraph [193] and the fact that relocation is a reality for police officers who are routinely relocated for operational reasons unrelated to any misconduct, I consider that the applicant has discharged her onus of demonstrating that the Disciplinary Order is harsh in its ongoing operation. However, I do not accept the applicant's submission that the applicant has already suffered sufficient punishment under the Conduct Management Plan. The NSWPF is a disciplined force. A person who accepts the role of a police officer also necessarily accepts the levels and standards of discipline that apply within the NSWPF and such discipline is important for public confidence in the NSWPF: Police Service Board v Morris and Martin (1985) 156 CLR 397. It would be against the public interest for the Commission to revoke the Disciplinary Order and not make a different order, particularly in light of my finding that the Disciplinary Order is proportionate to the misconduct. 9. The respondent proposed the following alternative orders if the Commission determined the Disciplinary Order to be harsh: 1. The transfer to Parramatta per the Disciplinary Order stands and that the Commission direct that suitably flexible work arrangements that take into account operational requirements, be agreed as between the applicant and the respondent for her to perform work from Parramatta. 2. The Conduct Management Plan is waived. 3. The applicant be placed into the next available Sergeant, or Detective Sergeant, position within a commutable distance of 60 minutes from her current home address. 4. If the applicant rejects the next available position under (3) above, she will remain attached to the Fraud and Cybercrime Squad in Parramatta and would be eligible to apply to be placed on the Mobility List in the usual way subject to NSWPF's applicable policies and procedures. 1. As the respondent has proposed these orders, the respondent's position must be that these orders are within power. The applicant has submitted that because of the lack of availability of Sergeant and Detective Sergeant positions as set out in the respondent's evidence in the relevant geographical region the alternative orders proposed by the respondent are a poisoned chalice; however, she has not raised any concerns regarding the Commission's power to make these alternative orders. 2. I accept that there is no fixed period within which the next Sergeant or Detective Sergeant position will become available, and this is a matter against the applicant's interests. Nevertheless, taking into consideration all of the circumstances, in particular my acceptance of the respondent's conclusion that the applicant should not work in the CAS, I consider that the substance of the alternative orders, in particular the order that has the consequence that the applicant be placed into the next available Sergeant, or Detective Sergeant, position within a commutable distance of 60 minutes from her current home as proposed by the respondent, addresses and overcomes on balance, the harshness of the Disciplinary Order. CONCLUSIONS AND FINDINGS 1. The Commission finds that: 1. Allegations 1, 2, and 3 are sustained and the applicant's conduct in respect of the sustained Allegations was misconduct; 2. There were no issues of procedural unfairness of such significance as to outweigh the seriousness of the applicant's misconduct; and 3. Taking into consideration the public interest and the applicant's interests, the applicant has not discharged her onus of demonstrating that the Disciplinary Order is beyond power or is unjust or unreasonable. 4. Taking into consideration the public interest and the applicant's interests, the applicant has discharged her onus of demonstrating that the Disciplinary Order is harsh. ORDERS 1. Pursuant to s 177(1) (b) of the Police Act 1990 (NSW) the Commission orders that: 1. The order made by the delegate of the Commissioner of Police on 6 July 2018 under s 173(2)(a) of the Police Act 1990 (NSW) that the applicant be subject to a disciplinary transfer from the Child Abuse Unit Hunter, Child Abuse & Sex Crimes Squad, State Crime Command, to the Assets Confiscation Unit, Organised Crime Squad, State Crime Command is revoked. 2. The applicant be subject to a disciplinary transfer from the Child Abuse Unit Hunter, Child Abuse & Sex Crimes Squad, State Crime Command, to the Assets Confiscation Unit, Organised Crime Squad, State Crime Command commencing from the date one month after the publication of this decision until the date a Sergeant, or Detective Sergeant, position becomes available within a commutable distance of 60 minutes from the applicant's current home address at which time the applicant will be placed in this available position. If the applicant rejects this position, she will remain attached to the Assets Confiscation Unit, Organised Crime Squad, State Crime Command in Parramatta and will be eligible to apply to be placed on the Mobility List in the usual way subject to the NSW Police Force's applicable policies and procedures. Recommendation 1. The Commission makes the following recommendations: 1. The parties immediately commence discussions as to flexible work arrangements for the applicant to perform work from Parramatta, with the goal that within one month after the publication of this decision, flexible work arrangements that take into account operational requirements are in place for the applicant to perform work from Parramatta. 2. The Conduct Management Plan is waived on the date one month after the publication of this decision. N J CONSTANT 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: 19 December 2019