Police Appeals

An application may be made to the Industrial Relations Commission of New South Wales (Commission) for review of a decision of the Commissioner of Police (Police Commissioner) to:

• make a misconduct or unsatisfactory performance order;
• make a removal order; or 
• grant or refuse a leave of absence during any period of absence caused by an officer being hurt on duty.

The Commission has no power to make or vary any award or order in respect of death and disability payments for police officers. ¹

Industrial law can be complex.  It is recommended that a police officer may wish to speak to a lawyer or an industrial representative to understand their rights because the Commission does not provide legal advice.

Misconduct  or unsatisfactory performance order

The Police Commissioner can order that action be taken against a police officer who engages in misconduct or unsatisfactory performance under section 173 of the Police Act 1990 (NSW).  The Commission has the power to review an order that the following action be taken against a police officer:

• a reduction of a police officer’s rank, grade, or seniority;
• a deferral of the police officer’s salary increment; or 
• any other action (other than dismissal or a fine) the Police Commissioner considers appropriate (except for the action specified in Schedule 1 of the Police Act 1990 (NSW)).²

Who can lodge an application for review? 
A police officer can apply to the Commission for review of a misconduct or unsatisfactory performance order on the ground that it is harsh, unreasonable, unjust or beyond the Police Commissioner’s power.³ An industrial organisation can also apply for review on behalf of a police officer or on behalf of a group of police officers if orders were issued at the same time or for a related reason.⁴

How does a person apply for a review? 
A police officer can apply for review by completing and filing Form 8 - Application for review/appeal under Police Act 1990 (NSW) through the NSW Online Registry. Once filed, a copy of the application must be served on the Police Commissioner.

What happens after the application is filed? 
The application will be allocated to a member of the Commission who will attempt to settle application by conciliation.⁵ If conciliation is unsuccessful, the application will be determined by the Commission by arbitration.  However, further attempts to settle the application by conciliation can be attempted at any time.⁶

At arbitration, the Commission will hear the application and determine whether the order issued against the police officer was harsh, unreasonable, unjust or beyond power.⁷ In determining the application, the Commission may consider matters it considers relevant, including the interests of the applicant and the public interest (which is to include the fact that the Commissioner made the order pursuant to section 173).⁸

Once an application is filed, the Police Commissioner must make available to the police officer all documents and material which the Police Commissioner relied upon or had regard to when making the order (other than documents subject to the client legal privilege).⁹

What can the Commission do? 
The Commission can:

• revoke the order against the police officer;
• make another order against the police officer that it considers to be more appropriate;
• uphold the order made by the Police Commission; or
• dismiss the application.¹⁰

If the Commission revokes the order, it may also direct the payment of compensation for any loss suffered by the police officer because of the order issued.¹¹

Is there a time limit to appeal? 
An application must be filed with the Commission within 21 days after the date on which the Police Commissioner served written notice of the order on the police officer.¹²

Can the Commission’s decision be appealed? 
The Commission’s decision can be appealed, with leave, to the Full Bench of the Commission.¹³ See Appeals for further details. 

Review of a removal order

The Police Commissioner can order the removal of a police officer from the NSW Police Force if they do not have confidence in the police officer’s suitability to continue, having regard to that police officer’s competence, integrity, performance or conduct.¹⁴ The Commission has the power to review a removal order against a police officer.

Who can lodge an application for review? 
A police officer can apply to the Commission for a review of a removal order on the ground that is harsh, unreasonable or unjust.¹⁵

How does a person apply for a review? 
A police officer can apply for review by completing and filing Form 8 - Application for review/appeal under Police Act 1990 (NSW) through the NSW Online Registry. Once filed, a copy of the application must be served on the Police Commissioner. The filing of an application for review of a removal order does not operate to stay the operation of the removal order.¹⁶

What happens after the application is filed? 
The application will be allocated to a judicial member of the Commission who will attempt to settle the application by conciliation.¹⁷ If conciliation is unsuccessful, the application will be determined by arbitration by a different judicial member of the Commission.¹⁸ The Commission is required to commence hearing the application within four weeks.¹⁹ 
At arbitration, the Commission will hear the application and determine whether the removal order against the police officer was harsh, unreasonable, or unjust. The police officer must establish why the Police Commissioner’s removal order was harsh, unreasonable or unjust.²⁰ 
 
In conducting a review, the Commission must consider:

• first, the Commissioner’s reasons for the decision to remove the police officer;
• second, the case presented by the police officer as to why the removal is harsh, unreasonable or unjust; and
• third, the case presented by the Police Commissioner in answer to the police officer’s case.²¹

The Commission must also have regard to the interests of the police officer and the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Police Commissioner made the removal order).²²

What can the Commission do? 
The Commission can:

• reinstate the police officer;
• re-employ the police officer, if reinstatement is impracticable;
• in the case of reinstatement or re-employment, order the Police Commissioner to pay the remuneration the police officer would have received if they were not removed, and order that the police officer’s period of employment not be broken by the removal;
• order that compensation be paid (not exceeding the police officer’s remuneration in the previous six months), if reinstatement or re-employment is impracticable; or
• dismiss the application.

Is there a time limit to appeal? 
An application must be filed with the Commission within 14 days after the date on which the Police Commissioner served written notice of the removal order on the police officer.²³ There is no ability for the Commission to extend the time for filing an application for a review of a removal order.

Can the Commission’s decision be appealed? 
The Commission’s decision can be appealed, with leave, to a Full Bench of the Commission constituted by three judicial members.²⁴ See Appeals for further details.

Hurt on duty leave appeal

A police officer may appeal to the Commission against a decision of the Police Commissioner to grant or refuse a leave of absence on full pay when they are hurt on duty.²⁵ The term ‘hurt on duty’ means the police officer has been injured in circumstances where they would otherwise be entitled to compensation under the Workers Compensation Act 1987 (NSW).²⁶

How does a person commence an appeal? 
A police officer can appeal by completing and filing Form 8 - Application for review/appeal under Police Act 1990 (NSW) through the NSW Online Registry.²⁷ Once filed, a copy of the application must be served on the Police Commissioner.

What happens after the appeal is filed? 
The case will be allocated to a member of the Commission who will attempt to settle the appeal through conciliation.²⁸ If conciliation is unsuccessful, the appeal will be determined by the Commission at a formal hearing.
Practice Note 24 sets out the procedures the Commission will follow for Police Hurt on Duty Appeals.

What can the Commission do? 
The Commission can allow or disallow the appeal, or make another decision that it thinks fit.²⁹ Where the Commission finds that the Police Commissioner failed to comply with the rules of procedural fairness it has the option of quashing the decision and remitting it back to the Police Commissioner to decide again.

Is there a time limit to appeal? 
An appeal must be filed with the Commission within 28 days after the date on which the police officer was notified of the decision.³⁰ There is no ability for the Commission to extend the time for filing an appeal.

Can the Commission’s decision be appealed? 
The Commission’s decision can be appealed to the Full Bench of the Commission in Court Session but only on questions of law.³¹ See Appeals for further details. 

^{1 Industrial Relations Act 1996 (NSW) s 146D. 2 Police Act 1990 (NSW) s 173(2).  For example, among other things the Commission cannot review an order that a police officer undertake training, or be reprimanded, or be placed on restricted duties.  The full list of actions that cannot be reviewed is set out in schedule sch 1 of the Police Act 1990 (NSW). 3 Ibid s 174(1). 4 Ibid s 174(2)-(3). 5 Ibid s 176. 6 Ibid s 177 (4). 7 Ibid s 175 (4). 8 Ibid s 175(3) – (4). 9 Ibid s 174 (5); Police Regulation 2015 (NSW) reg 55. 10 Police Act 1990 (NSW) s 177 (1). 11 Ibid s 177 (2). 12 Ibid s 174 (4). 13 Industrial Relations Act 1996 (NSW) ss 187-188 14 Police Act 1990 (NSW) s181D (1). 15 Ibid s 181E (1). 16 Ibid s 181E (2). 17 Industrial Relations Act 1996 (NSW) s 87; Police Act 1990 (NSW) s 181K. 18 Police Act 1990 (NSW) s181K (1). 19 Ibid s 181G(1)(e). 20 Ibid s 181F (2). 21 Ibid s 181F (1). 22 Ibid s 181F (3). 23 Ibid s 181G (1)(b). 24 Industrial Relations Act 1996 (NSW) ss 187-188; Police Act 1990 (NSW) s181K (2). 25 Police Act 1990 (NSW) s 186. 26 Police Regulation (Superannuation) Act 1906 (NSW) s 1(2). 27 Industrial Relations Act 1996 (NSW) s 100A. 28 Ibid s 100E (1). 29 Ibid s 100C (2). 30 Ibid s 100B. 31 Ibid s 197B (1).}