NSW Police Commissioner seeks clarification of IRC's jurisdiction: High Court

The apparent overlap between two statutes is the issue of appeal

NSW Police Commissioner seeks clarification of IRC's jurisdiction: High Court

The New South Wales Police Commissioner has mounted an appeal in the High Court concerning the review of a police officer’s medical discharge and its proper jurisdiction.

Trevor Cottle was a member of the NSW Police Force from 2002 until 2016. In December 2016, the Police Commissioner decided to retire Cottle based on medical grounds under the Police Act 1990.

Cottle went to the Industrial Relations Commission (IRC) and sought relief under the Industrial Relations Act 1996 (IR Act), claiming that the commissioner’s decision was a dismissal. He also said that such dismissal was “harsh, unreasonable or unjust.” He further stated in his IRC application that there was “no medical evidence to support [his] medical discharge.”

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The commissioner filed a notice of motion in the IRC. He argued that the IRC had no jurisdiction to entertain an unfair dismissal claim under the IR Act made by a police officer retired on medical grounds.

The crux of the case comes from the apparent overlap between the Police Act and the IR Act in Cottle’s case. The Police Act does not expressly provide that the IRC can review a removal based on “medical retirement,” but it is empowered to do so for other types of removal.

At the first instance, the IRC acceded to the motion and held that it lacked jurisdiction. The motion was dismissed. However, Cottle sought and was granted leave to appeal to the Full Bench of the IRC. The Full Bench overturned the prior decision, holding that the IRC did have jurisdiction over Cottle’s claim.

The commissioner sought judicial review before the NSW Supreme Court and was successful. When Cottle elevated the case to the Court of Appeal (CA), the latter decided in his favour.

The commissioner has since appealed before the High Court and seeks to declare that the IRC has no jurisdiction. The appeal claims that the CA “did not correctly apply statutory construction principles in interpreting two overlapping statutory schemes.”

The court has commenced hearing the appeal on 3 November.

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