Police Association of New South Wales v State of New South Wales [2020] NSWCA 3

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Police Association of New South Wales v State of New South Wales [2020] NSWCA 3 Hearing dates: 7 November 2019 Decision date: 10 February 2020 Before: Macfarlan JA at [1] White JA at [14] Barrett AJA at [43] Decision: (1) Grant leave to appeal. (2) Direct that a notice of appeal in the form of the draft in the white folder be filed within seven days. (3) Allow the appeal. (4) Judgment and orders of the court below be set aside. (5) Declare that the order styled "Non-disciplinary Transfer Order" made by Detective Superintendent Kenneth Finch on 7 August 2018 and addressed to Senior Constable Nicholas Gardner was invalid. (6) Order that the said order made on 7 August 2018 be quashed and that the Commissioner of Police be restrained from giving effect to the order. (7) Order that the respondents pay the costs of the applicants/appellants of the proceedings in this Court and in the court below. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – Misconduct and unsatisfactory performance – Powers of Commissioner – Power to order transfer of non-executive police officer to another position in case of "misconduct" – Whether particular transfer a "non-disciplinary transfer" – Meaning of "non-disciplinary transfer". Legislation Cited: Interpretation Act 1987 (NSW), ss 33, 34 Law Enforcement Conduct Commission Act 2016 (NSW), ss 4, 9, 10 Police Act 1990 (NSW), ss 7, 69, 173, 174 Police Amendment (Police Promotions) Act 2006 (NSW) Police Regulation (Appeals) Act 1923 (NSW), s 6 Police Service Amendment (Complaints and Management Reform) Act 1998 (NSW) Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 (NSW), s 182 Supreme Court Act 1970 (NSW), s 101