The Police Commissioner can remove a police officer from the NSW Police Force if they have lost confidence in their suitability to continue as a police officer, having regard to their competence, integrity, performance or conduct.¹⁶ The order must be in writing¹⁷ and set out the grounds for removal in accordance with the Police Act 1990 (NSW) (Police Act).¹⁸

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 it is harsh, unreasonable or unjust.¹⁹

How does a person apply for a review?

The IRC 6 – 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, the applicant must send a copy of the application to the Police Commissioner

(referred to as the respondent). The filing of an application for review of a removal order does not operate to stay the operation of the order.²⁰

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 considered when the order was issued.²¹

What happens after the application is filed?

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 as quickly as possible, who will take steps to settle the case through a conciliation.²² Should conciliation fail the matter will proceed to arbitration before a single judicial member of the Commission²³ but further attempts to settle the case can be attempted at any time.²⁴

At arbitration, the Commission will hear the case and determine whether the removal order issued 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.²⁵ In conducting a review, the Commission must consider:

• the Commissioner’s reasons for the decision to remove the applicant from the NSW Police Force;
• the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, and
• the case presented by the Police Commissioner in answer to the applicant’s case.²⁶

The Commission must also have regard to the interests of the applicant 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 order pursuant to s 181D(1) of the Police Act.²⁷

What can the Commission do?

The Commission can:

• order that the police officer be reinstated;
• if reinstatement would be impracticable, order that the police officer be re-employed in another position;
• if reinstatement or re-employment is ordered, order the Police Commissioner to pay the police officer an amount that does not exceed the remuneration they would, but for being dismissed, have received before being reinstated or re-employed, and that the period of employment be taken not to have been broken by the dismissal; and
• if the Commission considers it would be impracticable to make an order for reinstatement or re-employment, order compensation not exceeding the amount of remuneration of the police officer during the period of six months immediately before being dismissed²⁸; or
• dismiss the application.

Is there a time limit to apply to the Commission?

An application must be filed with the Commission within 14 days after the date on which the Police Commissioner served written notice of the order on the police officer.²⁹  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 the Full Bench of the Commission.³⁰  See ‘Appeals’ for further details.

^{16 Police Act 1990 (NSW) s 181D(1).; 17 Ibid.; 18 Ibid s 181D(3)(a).; 19 Ibid s 181E(1).; 20 Ibid s 181E(2).; 21 Ibid s 181E(3).; 22 Ibid s 181G (1)(e); Industrial Relations Act 1996 (NSW) s 86.; 23 Police Act 1990 (NSW) s 181K (1).; 24 Ibid s 181G(1); Industrial Relations Act 1996 (NSW) s 87(2).; 25 Police Act 1990 (NSW) s 181F(2).; 26 Ibid s 181F(1).; 27 Ibid s 181F(3).; 28 Ibid s 181G(1); Industrial Relations Act 1996 (NSW) s 89.; 29 Police Act 1990 (NSW) s 181G(1)(b).; 30 Industrial Relations Act 1996 (NSW) ss 187, 188.}