The Police Commissioner can order that certain action be taken against a police officer for misconduct or unsatisfactory performance under section 173 of the Police Act 1990 (NSW) (Police Act). Such action, if “reviewable action”, can include:
The Commission has no jurisdiction to review action referred to as “non-reviewable action” (defined in s 173(1) and Schedule 1 of the Police Act).
A police officer can apply to the Commission for a review of the 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 a review on behalf of the police officer, or a group of police officers if the orders were issued for a related reason.4
The IRC 8 – Application for Review/Appeal Under Police Act 1990 must be completed through the NSW Online Registry. Applicants can submit their application by email, post or in-person only if the NSW Online Registry is experiencing technical difficulties.
Once filed, a copy of the Application must be sent to the Police Commissioner (referred to as the respondent). Unless a regulation states otherwise, the police officer must be given access to and be able to copy the documents and material the Police Commissioner relied upon or had regard to in deciding to make the order once an application is filed.5
If an application for review of an order imposing reviewable action is filed in the Commission, the order the subject of review does not come into effect until the application is finally determined.6
Practice Note 24A sets out the procedures the Commission will follow.
The respondent must file and serve a Notice in Reply to the application within seven days of being served the application.
The case will be allocated to a Member of the Commission who will take steps to try and settle the case through conciliation.7 Should conciliation fail the matter will proceed to arbitration [JT1] but further attempts to settle the matter can be attempted at any time.8
At arbitration, the Commission will hear the case and determine whether the order issued against the police officer was harsh, unreasonable, unjust or beyond power.9 The police officer must establish why the Police Commissioner’s order was harsh, unreasonable, unjust or beyond power.10
In determining the application, the Commission may consider such matters as it considers relevant but must consider the interests of the applicant and the public interest (which is to include the fact that the Commissioner made the order pursuant to s 173).11
The Commission can:
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.13
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.14 There is no ability for the Commission to extend the time for filing an application for a review of an order imposing reviewable action.
The Commission’s decision can be appealed, with leave, to the Full Bench of the Commission.15 See ‘Appeals’ for further details.
2 Police Act 1990 (NSW) s 173(2).; 3 Ibid s 174(1); Corrective Services NSW v Danwer (2013) 235 IR 215; [2013] NSWIRComm 61.; 4 Police Act 1990 (NSW) s 174(2).; 5 Ibid s 174(5).; 6 Ibid s 173(8).; 7 Ibid s 176.; 8 Ibid s 177(4).; 9 Ibid s 175(4).; 10 Ibid s 175(2).; 11 Ibid s 175(3)– (4).; 12 Ibid s 177(1).; 13 Ibid s 177(2).; 14 Ibid s 174(4).; 15 Industrial Relations Act 1996 (NSW), ss 187, 188.
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