Fair Work Act 2009
s.394—Unfair dismissal

Nathan Vale, Karoly Ban and Kim Dridan
v
Northern Territory Police, Fire and Emergency Services
(U2022/1031, U2022/172 and U2022/265)

Application for relief from unfair dismissal – jurisdictional objection – whether members of the Northern Territory Police Force are protected from unfair dismissal under the Fair Work Act 2009 (Cth) – applications dismissed.

Introduction

[1] The three applicants in these proceedings (Applicants) are former members of the Northern Territory Police Force (NTPF). Each Applicant was retired from the NTPF by the Northern Territory Commissioner of Police (Police Commissioner) pursuant to s 89(d) of the Police Administration Act 1978 (NT) (Police Act). The retirements arose in circumstances where the Applicants had allegedly failed to comply with COVID-19 vaccination requirements in accordance with directions made by the Northern Territory Chief Health Officer and as required by the Police Commissioner.

[2] At the time of their retirement, Mr Vale and Mr Ban both held the rank of Constable First Class, and Ms Dridan was an Auxillary First Class.

[3] The Respondent has raised a jurisdictional challenge to the unfair dismissal applications lodged by the Applicants in the Fair Work Commission (Commission). The Respondent contends that the Applicants were not national system employees for the purposes of Part 3-2 of the Fair Work Act 2009 (Cth) (FW Act) and, in any event, s 53 of the Northern Territory (Self Government) Act 1978 (Cth) (Self Government Act) operates to deny the Commission any power in respect to the employment, and termination of employment, of members of the NTPF. The Applicants oppose those contentions and submit that they were protected from dismissal within the meaning of s 382 of the FW Act.

[4] This decision only addresses the jurisdictional objection raised by the Respondent.

[5] I heard the Respondent’s jurisdictional objection to all three unfair dismissal applications together because they arose from the same core factual matrix and the Applicants were all represented by the same paid agents. The Applicants filed and served witness statements but were not required for cross examination at the hearing of the jurisdictional question. The Respondent adduced evidence from Ms Cindy McGrath, Senior Lawyer of the Northern Territory Police, Fire and Emergency Services.

Self Government Act

[6] It is convenient to deal first with the Respondent’s arguments concerning the Self Government Act, for if the Respondent is correct in what it says about that legislation the Commission has no power in respect of the employment, or termination of employment, of the Applicants.

[7] I will consider the relevant provisions of the Self Government Act on the assumption (without deciding) that the Applicants were employed by the Respondent during their time as members of the NTPF.

[8] Section 53 of the Self Government Act, which is a Commonwealth piece of legislation, provides:

“Application of Fair Work Act 2009

(3) Until provision to the contrary is made by an Act, the powers of the Fair Work Commission do not extend to employment in respect of which a tribunal established by an enactment before 1 July 1978 has power to hear and determine disputes, claims or matters relating to the terms and conditions of the employment.

(4) Provision may be made by enactment for a member of the Fair Work Commission to constitute, or to be a member of, a tribunal established by an enactment before 1 July 1978, and nothing in this section or the Fair Work Act 2009 prevents a member of the Fair Work Commission from accepting appointment or performing duties as, or as a member of, such a tribunal.

(5) The power of the Legislative Assembly conferred by section 6 in relation to the making of laws does not extend to the making of a law conferring on any court, tribunal, board, body, person or other authority any power in relation to the hearing and determining of disputes, claims or matters relating to terms and conditions of employment.

(6) Subsection (5) does not prevent the making of:

(a) a law conferring the power to make determinations by way of the ascertainment of rights or obligations conferred or imposed on persons by law; or

(b) a law conferring power on the Public Service Commissioner of the Territory, on a body established by enactment, or on the holder of an office established by enactment, to make determinations by way of the fixing of terms and conditions of employment of persons employed in the Public Service of the Territory or employed by that body or by the holder of that office, as the case may be.

Note: See section 40 of the Fair Work Act 2009 and regulations made under subsection (2) of that section for the interaction between determinations made under paragraph (6)(b) of this section and fair work instruments (within the meaning of that Act).”

[9] Subsections 53(3) to (6) of the Self Government Act have been in effect since 1 July 1978, subject to amendments to reflect changing industrial legislation and the titles of predecessors to the Commission.

[10] The plurality in SZTAL v Minister for Immigration and Border Protection 1 (SZTAL) succinctly described the contemporary approach to statutory construction:

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.’ 2(footnotes omitted)

[11] The observations of Gageler J in SZTAL are also important:

“The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.

The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.

Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation” “is in that respect a particular statutory reflection of a general systemic principle”.” 3 (footnotes omitted)

[12] Taking a purposive approach to construction is also required by s 15AA of the Acts Interpretation Act 1901 (Cth) (AI Act). It requires that a construction that would promote the purpose or object of the Act is to be preferred to one that would not promote that purpose or object. The purpose or object of the Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the Act, and another does, the latter interpretation is to be preferred. 4 Of course, s 15AA requires one to construe the legislation in the light of its purpose, not to rewrite it.5

[13] The Self-Government Act established the Northern Territory as a self-governing entity. The Self-Government Act was intended to provide, among other things, for the establishment of separate political, representative and administrative institutions in the Northern Territory and to give the Northern Territory control over its own Treasury. 6

[14] The Commonwealth Parliament’s notes on clauses circulated by the Minister for the Northern Territory, the Hon. Evan Aldermann, in relation to the Northern Territory (Self-Government) Bill 1978 contain the following relevant entries in relation to s 53 of the Self Government Act:

“Sub-Clause (3) prevents the Conciliation and Arbitration Commission (until contrary legislation applies) from hearing and determining disputes, claims or matters which are already within the province of existing Northern Territory Arbitral tribunals. Sub-clauses (5) and (6) precluded the creation – by Territory law – of further industrial Tribunals and establish the superiority of the Conciliation and Arbitration Act 1904.”

[15] These notes may be considered in ascertaining the meaning of s 53(3) of the Self Government Act. 7

[16] It is apparent that the purpose of s 53(3) of the Self-Government Act is to prevent the Commission from exercising any powers in relation to matters which are within the jurisdiction of “existing Northern Territory Arbitral tribunals”. 8 Sections 53(5) and (6) prevent the creation, under Northern Territory law, of new industrial tribunals with power to hear and determine disputes, claims or matters relating to terms and conditions of employment. Sub-Clause (3) prevents the Conciliation and Arbitration Commission (until contrary legislation applies) from hearing and determining disputes, claims or matters which are already within the province of

Is the Police Arbitral Tribunal a “tribunal established by an enactment before 1 July 1978” within the meaning of s 53(3) of the Self Government Act?

[17] The word “tribunal” is not defined in the Self Government Act.

[18] Part III, Division 1 of the Police Act governs the Police Arbitral Tribunal. Section 35 provides:

35 Establishment of Tribunal

There shall be a Police Arbitral Tribunal which shall have jurisdiction to hear and determine all matters relating to the remuneration and terms and conditions of service of members of the Police Force other than the Commissioner, a Deputy Commissioner, and an Assistant Commissioner or a member of the rank of Commander.”

[19] The Police Arbitral Tribunal was established in 1949 by the Police Arbitral Tribunal Ordinance, which amended the Police and Police Offences Ordinance 1923-1947. Section 4 of the Police Act defines “Tribunal” to mean “the Police Arbitral Tribunal formerly constituted under the Police and Police Offences Ordinance and continued under Part III of this Act.” This is consistent with s 3(3) of the Police Act, now repealed but part of the legislation when it first commenced operation, which made clear that the Police Arbitral Tribunal would “continue in force”.

[20] The Police Arbitral Tribunal Ordinance No.1 of 1949 relevantly provides:

“AN ORDINANCE

To provide for the Establishment of an Arbitral Tribunal for the purpose of determining the Remuneration and Terms or Conditions of Service of Members of the Police Force.

[Assented to 14^th February, 1949.]

Be it ordained by the Legislative Council of the Northern Territory of Australia with the assent of the Administrator of the Northern Territory in pursuance of the powers conferred by the Northern Territory Acceptance Act 1910-1919 and the Northern Territory (Administration) Act 1910-1947 as follows:-

1.-(1.) This Ordinance may be cited as the Police Arbitral Tribunal Ordinance 1949.

(2) The Police and Police Officers Ordinance 1923-1947 is, in this Ordinance, referred to as the Principal Ordinance.

(3) The Principal Ordinance, as amended by this Ordinance, may be cited as the Police and Police Offences Ordinance 1923-1948.

2. After Section twelve of the Principal Ordinance the following Sections are inserted:-

“12A (1.) There shall be a Police Arbitral Tribunal which shall have jurisdiction to hear and determine all matters relating to the remuneration and the terms or conditions of services of members of the Police Force.”

[21] The Police Arbitral Tribunal has existed continuously, albeit pursuant to different pieces of legislation, since 1949. Contrary to the submissions advanced by the Applicants, it does not matter that legislation which has underpinned the Police Arbitral Tribunal at different points in time has been rescinded or repealed. In order be a “tribunal” within the meaning of section 53(3) of the Police Act, two conditions must be satisfied. First, there must be a tribunal which “has power to hear and determine disputes, claims or matters relating to the terms and conditions of the employment”.

[22] Secondly, the tribunal must have been “established by an enactment before 1 July 1978”. For the reasons already explained, the Police Arbitral Tribunal was established before 1 July 1978. As to whether it was established by an “enactment”, section 4 of the Self Government Act defines “enactment” to mean:

“(a) a law (however described or entitled) passed by the Legislative Assembly and assented to under section 7 or 8; or

(b) an Ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by this Act;

and includes any part of any such law or Ordinance.”

[23] Section 57(1) of the Self Government Act provides:

“57 Continuance of laws

(1) Subject to this Act, on and after the commencing date, all existing laws of the Territory have the same operation as they would have had if this Act had not been enacted, subject to alteration or repeal by or under enactment.”

[24] Subsection 57(3) of the Self Government Act defines “existing law of the Territory” to mean:

“(a) any law in force in the Territory immediately before the commencing date, other than an Act or an instrument (not being an Ordinance or an instrument made under an Ordinance) made under an Act; or

(b) an Ordinance, or an instrument under an Ordinance, in force immediately before the commencement date or made and assented to before that date but not in force before that date.”

[25] Section 56 of the Self Government Act defines an “Ordinance” to be an ordinance made under the Northern Territory (Administration) Act 1910. Section 56 also defines an "instrument" to include “rules, regulations or by-laws”. Further, s 73 of the Self Government Act deals with the validity of Ordinances. It provides:

“For the avoidance of doubt, it is hereby declared that an Ordinance made by the existing Legislative Assembly under the previous Act [the Northern Territory (Administration) Act 1910] (including an Ordinance that was not assented to before the commencing date) is as valid as if it had been passed by the Legislative Assembly under this Act.”

[26] The Police Arbitral Tribunal Ordinance No.1 of 1949 amended the Police and Police Offences Ordinance and thereby established the Police Arbitral Tribunal. Both the Police Arbitral Tribunal Ordinance No.1 of 1949 and the Police and Police Offences Ordinance were made under the Northern Territory (Administration) Act 1910. They are therefore Ordinances within the meaning of s 56 of the Self Government Act.

[27] The Police and Police Offences Ordinance remained in force immediately before the commencement date of the Self Government Act in 1978. It therefore was an “existing law of the Territory” within the meaning of s 57(3) of the Self Government Act.

[28] Because the Police and Police Offences Ordinance was an “existing law of the Territory”, it continued in force by reason of s 57(1) of the Self Government Act, “subject to alteration or repeal by or under enactment”. The Police and Police Offences Ordinance of 1949 was not altered or repealed by the Self Government Act. As is made plain in s 73 of the Self Government Act, the Police and Police Offences Ordinance remained valid and in force, notwithstanding that parts of it were repealed by the Summary Offences Act 1978 (NT) on 1 August 1979. 9 Accordingly, the Police and Police Offences Ordinance is an Ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by the Self Government Act. It follows that the Police Arbitral Tribunal was established by an “enactment” within the meaning of section 4 of the Self Government Act.

[29] It is clear from section 35 of the Police Act, which I have set out above, that the Police Arbitral Tribunal “has power to hear and determine disputes, claims or matters relating to the terms and conditions of the employment” of members of the NTPF.

[30] Accordingly, the Police Arbitral Tribunal is a “tribunal” within the meaning of s 53(3) of the Police Act.

[31] Other relevant features of the Police Arbitral Tribunal include:

(a) The Chairperson of the Police Arbitral Tribunal must be a member of the Commission or a person who, in the opinion of the Minister, has suitable qualifications and experience to be appointed Chairperson: s 36(3) of the Police Act.

(b) A matter before the Police Arbitral Tribunal must be resolved by a decision of the majority of members of the Tribunal: s 38(1) of the Police Act.

(c) Subject to the Police Act, the procedures to be adopted at the hearings of the Police Arbitral Tribunal are determined by the Police Arbitral Tribunal: s 38(2) of the Police Act.

(d) Any determination made by the Police Arbitral Tribunal in pursuance of the Police Act is binding on the Crown, the Police Commissioner and the members of the NTPF to whom the decision is expressed to relate: s 43(1) of the Police Act. A penalty may be imposed for failing or omitting to abide by any determination, or contravening the provisions of a determination made by the Police Arbitral Tribunal: s 43(2) of the Police Act.

(e) The Police Commissioner or the Police Association may, with the leave of the Supreme Court, appeal to the Supreme Court against a determination made under Part III, Division I of the Police Act, but only on a question of law: s 50A of the Police Act.

(f) The Police Arbitral Tribunal may summon any person to attend the Police Arbitral Tribunal to give evidence or produce documents: s 45(1) of the Police Act.

(g) The Police Arbitral Tribunal may require a person appearing as a witness before the Police Arbitral Tribunal to give evidence on oath: s 46 of the Police Act.

(h) The Minister and the Police Association may enter into consent agreements relating to the remuneration and terms and conditions of service of members of the NTPF, but such agreements do not have effect unless and until they are certified by the Police Arbitral Tribunal as being in the public interest: ss 51 and 53 of the Police Act.

[32] The Respondent advanced the submission that it is open to the Commission to find that it has no power to hear and determine the unfair dismissal applications lodged by the Applicants solely on the basis that the Police Arbitral Tribunal is a “tribunal” within the meaning of s 53(3) of the Police Act. I do not agree with that submission. The Police Arbitral Tribunal does not have any power to hear or determine disputes, claims or matters relating to the dismissal, retirement or termination of members of the NTPF. If the Respondent’s argument were correct, members of the NTPF would not have any means of challenging their dismissal, retirement or termination as members of the NTPF in either the Police Arbitral Tribunal or the Commission. Such an outcome would be contrary to the purpose of s 53(3), as explained in the Commonwealth Parliament’s notes on clauses in relation to the Northern Territory (Self-Government) Bill 1978, to prevent the Commission “from hearing and determining disputes, claims or matters which are already within the province of existing Northern Territory Arbitral tribunals”. In my opinion, the expression “employment in respect of which a tribunal … has power to hear and determine disputes” in s 53(3) means that there must be a tribunal (established by an enactment at the requisite time) which has the power to determine the employment-related dispute in question, to oust the powers of the Commission to deal with the matter.

[33] The more forceful submission put by the Respondent is that both the Police Arbitral Tribunal and the Appeal Boards are “tribunals” within the meaning of s 53(3) of the Police Act, with the result that the Commission does not have any power to deal with the Applicants’ unfair dismissal claims.

Is an Appeal Board a “tribunal established by an enactment before 1 July 1978” within the meaning of s 53(3) of the Self Government Act?

[34] The Police Act provides for an Appeal Board to deal with an appeal by a member of the NTPF against various actions, decisions or directions made by the Police Commissioner. An Appeal Board is defined in s 4 of the Police Act to include “a Promotions Appeal Board, a Disciplinary Appeal Board and an Inability Appeal Board”.

[35] Division 2 of Part VI of the Police Act is concerned with inability and disciplinary appeals. Section 94 of the Police Act is the commencement of Division 2 of Part VI. It provides:

“94 Inability or disciplinary appeals

(1) A member aggrieved by:

(a) the action of the Commissioner under section 78; or

(b) the action under section 84E(3) by a member; or

(c) the action under section 81(2)(d) or 84D by the Commissioner or a prescribed member; or

(ca) a direction of the Commissioner under section 84G that the member not be paid salary during the period of the member’s suspension under section 76A or 80; or

(d) a direction, action or intention under section 89 by or of the Commissioner; or

(e) a decision or opinion as a result of which such an action was taken, direction given or intention made,

may, within 14 days after being notified of the action, direction or intention (or, in a case referred to in paragraph (b), within 14 days after being notified of the action taken as a result of a review under section 84E(3)), and in the prescribed manner and form:

(f) in the case of an action referred to in paragraph (a), (b), (c) or a decision or opinion relating to such action – appeal to a Disciplinary Appeal Board against the action; or

(fa) in the case of a direction referred to in paragraph (ca) – appeal to a Disciplinary Appeal Board against the direction; or

(g) in the case of a direction, action or intention referred to in paragraph (d) or a decision or opinion relating to such direction, action or intention – appeal to an Inability Appeal Board against the direction, action or intention.

(2) For the purposes of this section, an Appeal Board shall be constituted by the following persons appointed by the Commissioner:

(a) a Chairman, who shall be appointed from a panel approved for that purpose by the Minister on the advice of the Commissioner given after consultation by the Commissioner with the Police Association;

(b) a person nominated by the Police Association; and

(c) one other person, who shall be from a panel approved for that purpose by the Minister on the advice of the Commissioner.

(3) Nothing in this Act prevents more than one Disciplinary or Inability Appeal Board (to deal with different matters under this Part) being in existence at the one time.

(4) The Chairman and members of a Disciplinary or Inability Appeal Board hold office:

(a) for 3 years; and

(b) subject to the terms and conditions determined by the Minister.

(5) The person appointed to be Chairman must:

(a) be a lawyer who has been admitted to the legal profession for at least 5 years; or

(b) have other qualifications or experience which, in the opinion of the Minister, are suitable for the office of Chairman.

(6) In determining an appeal, a Disciplinary or Inability Appeal Board may:

(a) disallow the appeal; or

(b) allow the appeal in whole or in part and direct the Commissioner or member to take such action under sections 78, 81(2)(d), 81(3), 83 or 89 as the Appeal Board considers necessary.

(7) In this section, for the purpose of enabling an appeal under subsection (1) against the dismissal of a member from the Police Force to be made, member includes a former member.”

[36] Section 95 of the Police Act governs procedural matters in relation to an Appeal Board. It provides:

“95 Procedural matters

(1) This section applies only to and in relation to appeals under section 94.

(2) Subject to subsection (3), an appeal shall be by way of a review of the material taken into account by the Commissioner or prescribed member against whose direction, action, intention, decision or opinion the appeal is lodged.

(3) Where a party to an appeal considers that there was additional material that was not available to the Commissioner or prescribed member before he took the action or formed the intention, the party may, in the prescribed manner and form, apply to the Appeal Board to admit that material and, in its discretion, to deal with the appeal as a hearing de novo.

(4) For the purpose of determining whether to admit the material or to declare the appeal a hearing de novo, the Appeal Board may conduct a preliminary hearing.

(5) The decision of the Appeal Board on an application under subsection (3) is capable of being reviewed by a court.

(6) The procedure for an appeal or a preliminary hearing is, subject to this section and the Regulations, within the discretion of the Appeal Board.

(7) An appeal under this Part shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Part and a proper consideration of the matter permit.

(8) If an Appeal Board thinks fit, an appeal may be determined without an oral hearing.

(9) Where an Appeal Board conducts an appeal by holding an oral hearing, it shall give reasonable notice to the appellant, the Commissioner and any other person who is joined as a party to the appeal of the date, time and place at which the oral hearing is to occur.

(10) An appeal shall not be heard in public unless either party to the appeal so requests and the Appeal Board agrees.

(11) Where an Appeal Board conducts an appeal by holding an oral hearing, each party is entitled to appear and to tender a written summary of the submissions made at the oral hearing.

(12) Where an Appeal Board conducts an appeal without holding an oral hearing, each party is entitled to tender written submissions.

(13) An Appeal Board, when conducting an appeal as a hearing de novo, may admit evidence at the appeal notwithstanding that the evidence would not be admissible in a court.

(14) An Appeal Board, when conducting an appeal as a hearing de novo, may:

(a) summon a person whose evidence appears to be material to the appeal; and

(b) require a person appearing before it to give evidence on oath; and

(c) require a person to produce documents or records in the person's possession or under the person's control which appear to be material to the appeal.

(15) A person who, without reasonable excuse (and to whom, where the person is not a member, payment or tender of reasonable expenses has been made), neglects or fails to attend in obedience to a summons under subsection (14) or to take an oath, to answer relevant questions or to produce relevant documents when required to do so under that subsection, is guilty of an offence.

Maximum penalty: 40 penalty units.

(16) An Appeal Board may:

(a) strike out an appeal that it considers vexatious or frivolous; and

(b) in any case, award costs both in respect of a preliminary hearing and the appeal.

(17) An Appeal Board shall give its decisions in writing, shall cause copies of decisions to be served on each of the parties and shall, if a party within 14 days after the copy of the relevant decision is served on him so requests, provide the party with written reasons for the decision.”

[37] Appeal Boards have been in existence and operation in the Northern Territory since 1961. The Appeal Boards were established in accordance with the Police and Police Offences Ordinance 1923-1960. It relevantly provides:

“106.-(1) The Administrator may make regulations…

(b) prescribing the conditions of eligibility for appointment to the Police Force;

(c) prescribing the duties of members;

(d) prescribing the manner in which members may be dealt with and punished in pursuance of section ten of this Ordinance;

…

(h) providing for the establishment and appointment of a Police Appeals Board to be compromised of a Special Magistrate, a person nominated by the Administrator, and a person nominated by the Northern Territory Police Association;

(i) prescribing and regulating the powers and functions of the Police Appeals Board with respect to appeals against promotions made by the Commissioner and against punishments imposed under this Ordinance or the regulations…”

[38] On 8 May 1961, the following relevant regulations were made under the Police and Police Offences Ordinance 1923-1960:

“Regulations 1961 No. 4

91. There shall be a Police Appeals Board, which shall have power to hear and, subject to these Regulations, determine-

(a) appeals against punishments imposed under Division 2 of Part IV of these Regulations [including being dismissed from the NTPF]”

[39] As to whether Appeal Boards were “established by an enactment” within the meaning of s 53(3) of the Self Government Act, it is important to understand that, unlike the Police Arbitral Tribunal, the Appeal Boards were not established by the Police and Police Offences Ordinance 1923-1960 or any other Ordinance or part of an Ordinance. Instead, the Police and Police Offences Ordinance 1923-1960 permitted the making of regulations by the Administrator to provide for “the establishment and appointment of a Police Appeals Board”. The Administrator of the Northern Territory proceeded to make Regulations 1961 No.4 (1961 Regulations); they contain the following preamble:

“I, Roger Bede Nott, the Administrator of the Northern Territory of Australia, having received the advice of the Administrator’s Council, in pursuance of the powers conferred on me by the Police and Police Officers Ordinance 1923-1960 and the Administrator’s Council Ordinance 1959, hereby make the following Regulations.”

[40] The 1961 Regulations established a Police Appeals Board. So much is clear from regulation 91: “There shall be a Police Appeals Board…”

[41] Accordingly, the Appeal Boards were established by the 1961 Regulations.

[42] As an “instrument” 10 made under an Ordinance, the 1961 Regulations were an existing law of the Northern Territory that continued to operate after the commencement of the Self Government Act.11

[43] Returning to the definition of “enactment” in s 4 of the Self Government Act, the 1961 Regulations are not “a law (however described or entitled) passed by the Legislative Assembly and assented to under section 7 or 8” of the Self Government Act, because they were not passed by the Legislative Assembly. Nor are the 1961 Regulations an Ordinance or part of an Ordinance, notwithstanding that the 1961 Regulations were made pursuant to the authority conferred on the Administrator of the Northern Territory by the Police and Police Offences Ordinance. The content of regulation 91 of the 1961 Regulations, which established a “Police Appeals Board”, could have formed part of the Police and Police Offences Ordinance, as was the case with the creation of the Police Arbitral Tribunal, but a different path was chosen, namely, to empower the Administrator to make regulations “for the establishment and appointment of a Police Appeals Board”. The 1961 Regulations were made pursuant to the power conferred on the Administrator by the Police and Police Offences Ordinance 1923-1960; the 1961 Regulations do not form part of an Ordinance. It follows that the 1961 Regulations are not an “enactment” within the meaning of s 4 of the Self Government Act.

[44] The Respondent contends that the word “enactment” in s 53(3) of the Self Government Act has a wider meaning than the definition of “enactment” in s 4 of the Self Government Act. The Respondent relies on the fact that s 4 commences with the qualifying words, “In this Act, unless the contrary intention appears”. The Respondent further submits that, adopting the established approach to statutory construction, and where the evident intention of the Self Government Act was that the “existing laws of the Territory” were to continue, it would be accepted that for the purposes of the Self Government Act (including s 53(3)) an “enactment” being an Ordinance, and in particular, for the purpose of the words in s 4, “or any part of it”, also includes instruments made under that Ordinance. I do not accept this submission. In my opinion, neither the text nor the purpose of s 53(3) of the Self Government Act reveal a “contrary intention” to give the word “enactment” a wider meaning than the definition contained in s 4 of the Self Government Act. It may be accepted that the general intention of the Self Government Act was for existing laws of the Northern Territory to continue to operate and, by s 53(3), for “existing Northern Territory Arbitral tribunals” 12 to continue to function to the exclusion of the Commission. However, if Parliament had wished to simply permit any tribunals established before a certain time to continue to operate in the Northern Territory, s 53(3) would have referred to “a tribunal established before 1 July 1978”. Instead, the expression “established by an enactment” was used in s 53(3) and a specific definition of “enactment” was included in s 4. This use of specific language suggests that only particular types of tribunals were intended to continue to operate to the exclusion of the Commission. Plainly, there are material differences between the Police Arbitral Tribunal and Appeal Boards. The former was established by an Ordinance and has extensive powers to “hear and determine all matters relating to the remuneration and terms and conditions of service of members of the Police Force”.13 The Chairperson of the Police Arbitral Tribunal is a member of the Commission or a person with suitable qualifications and experience.14 The latter was established by regulation made by the Administrator pursuant to power conferred on the Administrator by an Ordinance; Appeal Boards permit members of the NTPF to appeal against particular types of decisions made by the Police Commissioner. The Chairperson of the Appeal Boards must be a lawyer of at least five years standing or a person with suitable qualifications or experience.15 These material differences between the different types of bodies under consideration in this case are consistent with an intention to exclude the powers of the Commission in relation to matters before an “existing Northern Territory Arbitral tribunal” with similar standing and powers to the Commission, but not to lesser bodies such as Appeal Boards.

[45] Because the Appeal Boards were established by the 1961 Regulations, they were not “established by an enactment” within the meaning of s 53(3) of the Self Government Act. This conclusion means that I must reject the Respondent’s argument that the Commission does not have power, by reason of s 53(3) of the Self Government Act, to deal with the unfair dismissal applications lodged by the Applicants. For completeness, however, I will address some of the other arguments raised by the parties in relation to other aspects of s 53(3) of the Self Government Act.

[46] As is the case with the Police Arbitral Tribunal, it does not matter that legislation which has underpinned the Appeal Boards at different points in time has been rescinded or repealed. The Appeal Boards meet the requirement imposed in s 53(3) of having been established before 1 July 1978. The Appeal Boards have continued to exist since that time.

[47] The Appeal Boards clearly meet the requirement in s 53(3) of having “power to hear and determine disputes, claims or matters relating to the terms and conditions of” relevant employment.

[48] The Applicants submit that an Appeal Board is not a “tribunal” within the meaning of s 53(3) of the Police Act. One matter they rely on is the difference in language between s 53(3) and s 53(5). In particular, s 53(3) refers to a “tribunal”, whereas s 53(5) refers to “any court, tribunal, board, body, person or other authority”. The Applicants contend that if Parliament had intended for a board such as an Appeal Board constituted under the Police Act to be a “tribunal” within the meaning of s 53(3) of the Police Act, s 53(3) would, like s 53(5), have expressly included a “board”. Although the Applicants did not express it in this way, this argument is, in effect, an application of the expressio unius est exclusio alterius rule. The maxim expressio unius is a rule of statutory construction which presumes that an express mention in a provision of a particular person, power or thing means that the provision is not intended to include any others and any others are thereby excluded. 16

[49] Courts have repeatedly called for care and caution in the application of the expressio unius rule. In Houssein v Under Secretary, Department of Industrial Relations and Technology, 17 the High Court observed:

“That maxim must always be applied with care, for it is not of universal application and applies only where the intention it expresses is discoverable on the face of the instrument ... It is ‘a valuable servant but a dangerous master’.”

[50] In Colquhoun v Brooks, 18 it was concluded that:

“Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the expressio complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind’.”

[51] In Rich v Australian Securities and Investments Commission, 19 Kirby J observed:

“[T]his Court has warned many times that care must be exercised in the use of the expressio unius rule of construction ... [e]specially in an Act as large and cumbersome as that under consideration [with its history of patchwork accretions].”

[52] In my view, s 53(3) and s 53(5) are concerned with different issues and have different purposes. Section 53(3) is intended to prevent the Commission from exercising any powers in relation to matters which are within the jurisdiction of a Northern Territory tribunal that was established by an enactment prior to the time the Police Act commenced operation in 1978. Sections 53(5) and (6) are intended to prevent the creation, under Northern Territory law, of new industrial tribunals with power to hear and determine disputes, claims or matters relating to terms and conditions of employment. Having regard to this purpose, it is not surprising that the draftsperson of s 53(5) cast the net widely by referring to “any court, tribunal, board, body, person or other authority”. In my opinion, there is no persuasive ground for concluding that the legislature intended that the reference to “tribunal” in s 53(3) was to be exhaustive of the subject, in the sense that only a body called a tribunal could be a “tribunal” within the meaning of s 53(3) of the Self Government Act.

[53] In Commissioner of Police v Farquhar, 20 Justice Mildren quashed a decision of an Inability Appeal Board under the Police Act, as being outside the scope of that provided for in s 94(6) of the Police Act. Mildren J concluded:

“[25] So far as jurisdictional error is concerned, I am satisfied the plaintiff has made out its case for jurisdictional error and that certiorari should be granted. I am also satisfied by the submission of Mr Silvester that, in any event, the tribunal had no power to decide the appeal on the grounds which it did, irrespective of the correctness of Kearney J’s decision.

[26] It is clear that the powers of the tribunal contained in s 94(6) do not include a power to, in effect, grant a remedy on administrative law grounds. The Disciplinary Inability Appeal Board can allow the appeal but on proper grounds not on administrative law grounds, which are purely the prerogative of this Court.

[27] There will be an order in the nature of certiorari pursuant to order 56 of the Rules quashing the decision of the Inability Appeal Board dated 11 December 2009.” [emphasis added]

[54] While it is true that Mildren J was not deciding whether an Appeal Board under the Police Act was a “tribunal” within the meaning of s 53(3) of the Self Government Act, his Honour’s description of the Appeal Board as a tribunal is worthy of some weight.

[55] Similarly, Northern Territory of Australia v Disciplinary Appeal Board of the Northern Territory & Anor 21concerned an application before Mildren J for judicial review of a decision of the Disciplinary Appeal Board under the Public Sector Employment and Management Act 1993 (NT). Such a Disciplinary Appeal Board has a comparable composition and powers to the equivalent Disciplinary Board under the Police Act. The Disciplinary Appeal Board was repeatedly referred to as an “administrative tribunal” in the reasons of Justice Mildren.22

[56] The Respondent points to the fact that this approach to the nature of appeal boards being tribunals has been adopted in a diverse range of areas including sport, 23 building appeals boards,24 and land and planning appeals boards.25

[57] In N (No.2) v Director General, Attorney General’s Department, 26 O’Connor K DCJ (President) considered whether the Victims Compensation Tribunal was a “tribunal” within the meaning of s 10 of the Freedom of Information Act 1989 (NSW) in circumstances where the legislation in question did not define the word “tribunal”. Judge O’Connor observed (at [15]):

“The present case involves a public authority that Parliament has chosen to call a ‘Tribunal’. It is possible of course that a body might be called a ‘Tribunal’ but on closer examination of its statutory framework and mode of operation be found not to be a tribunal in the sense in which the term is normally used; and conversely, a body might not have the name ‘Tribunal’ or ‘Court’ but be found on closer examination to be capable of being so described. For instance, bodies with names such as ‘Board’ or ‘Commission’ often are given quasi-judicial functions; and would for the purposes of the FOI Act, constitute a ‘court’ or ‘tribunal’.”

[58] In BSU v Workers Compensation Commission, 27 the New South Wales Civil and Administrative Tribunal held that the Workers Compensation Commission of NSW was a tribunal for the purposes of s 6(1) of the Privacy and Personal Information Protection Act 1998 (NSW) and s 13(1) of the Health Records and Information Privacy Act 2002 (NSW). The following analysis was applied:

“21. The first matter to determine is whether the tribunal has jurisdiction to review the commission’s conduct referred to in the application. The applicants saw it as anomalous that they had been advised they could seek review in the tribunal if the tribunal might be found to lack jurisdiction in a particular case. But that is not the end of the enquiry. Section 6 of the PPIP Act provides as follows:

6 Courts, tribunals and Royal Commissions not affected

(1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court’s, or the tribunal’s, judicial functions.

(2) Nothing in this Act affects the manner in which a Royal Commission, or any Special Commission of Inquiry, exercises the Commission’s functions.

(3) In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes:

(a) in relation to a Magistrate—such of the functions of the Magistrate as relate to the conduct of committal proceedings, and

(b) in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009.

22. Similarly, s 13 of the HRIPA Act provides as follows:

13 Courts, tribunals and Royal Commissions not affected

(1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court’s, or the tribunal’s, judicial functions.

(2) Nothing in this Act affects the manner in which a Royal Commission, or any Special Commission of Inquiry, exercises the Commission’s functions.

(3) In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes:

(a) in relation to a justice—such of the functions of the justice as relate to the conduct of committal proceedings, and

(b) in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009.

23. Pursuant to subsection (1) of the two provisions set out above, it is necessary to determine whether the respondent Workers’ Compensation Commission is a “tribunal”. The commission is established by s 366(1) of the Workplace Injury Management and Workers Compensation Act 1998, commonly known as the WIM Act. Its objectives are set out in s 367(1) of that Act and include, in pertinent part, “(a) to provide a fair and cost-effective system for the resolution of disputes under the Workers Compensation Acts”, and “(f) to establish effective communication and liaison with interested parties concerning the role of the Commission”.

24. Neither the PPIP Act nor the HRIP Act defines the term “tribunal “. It is considered, however, to be a broad term that includes a commission: Re AG Becker, Inc. (1984) 45 CPC 163 at 165, 166 (Ont. HC). The name of a statutory body therefore does not necessarily determine its nature: N (No. 2) v Attorney General’s Department [2002] NSWADT 33, [15]. Thus, a bishop’s commission of inquiry is a tribunal, and witnesses giving evidence before it therefore have the usual protections against actions for defamation in relation to their testimony: Barratt v Kearns [1905] 1 KB 504.

25. Dr JRS Forbes provides a useful general definition of the term in Justice in Tribunals (4th edn. 2014). After pointing out that the word has no precise meaning in Australian law, he postulates that “‘tribunal’ means an authority created by statute... performing judicial functions outside the regular system of courts”. N (No. 2) identifies the following features as characterizing a tribunal:

•  “[It should] Be impartial and detached from the ordinary processes of executive government

•  Have a defined jurisdiction

•  Receive claims or applications

•  Determine claims following a process of examining submissions, receiving evidence and assessing that evidence by reference to standards of proof

•  Use a process of assessment that gives rise to the making of a reasoned decision applying the relevant law

•  Make a final order that is binding.”

26. Those criteria are consistent with the reasoning of the High Court in Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1 at 11 – 12, in which Mason J concluded that the Workers’ Compensation Board of Victoria was a specialist tribunal:

Its membership comprises a county court judge as chairman, a nominee of the insurers under the Act and the Victorian Employers’ Federation and a nominee of the Melbourne Trades Hall Council.... The chairman alone determines any question of law.... And a determination or award of the Board is not liable to be challenged appealed against reviewed quashed or called in question by any court (s 9(1)), except in so far as a case may be stated on any question of law for the determination of the Full Court of the Supreme Court.... The Board is established by the Act “to act as a tribunal with exclusive jurisdiction to inquire into hear and determine all matters and questions arising out of claims” under the Act (at 12).

27. The New Zealand Law Commission defines tribunals as statutory bodies that

•  determine questions affecting people’s rights,

•  consider facts and evidence and applies standards (generally rules or policies) to the facts,

•  exercise a defined specialist jurisdiction and

•  are independent of the executive; that is, members are not departmental officers (Law Commission, Tribunals in New Zealand, Issues Paper 6, Wellington, January 2008, p 42, para 2.26).”

[59] Returning to the present case, Appeal Boards exercise a defined specialist jurisdiction under the Police Act. In particular, an Inability Appeal Board may hear and determine an appeal by a member of the NTPF against particular actions, directions or decisions of the Police Commissioner, many of which may relate to the terms and conditions of their employment (assuming, for the purpose of this argument, that members of the NTPF are employees): s 94(1) of the Police Act. By way of example, the Applicants had the right to appeal to an Inability Appeal Board against the direction, action or intention of the Police Commissioner to retire them from the NTPF pursuant to s 89 of the Police Act: s 94(1)(d) and (g) of the Police Act.

[60] An appeal commences when an Inability Appeal Board receives a claim or application “in the prescribed manner and form” from an aggrieved member of the NTPF: s 94(1) of the Police Act.

[61] An Appeal Board such as an Inability Appeal Board considers facts and evidence, including any evidence it decides to admit which was not available to the Police Commissioner when the original decision was made: s 95(2) and (3) of the Police Act. No express provision of the Police Act prescribes the standard of proof to be applied by an Appeal Board. The Chairman of an Appeal Board must be a lawyer of at least five years’ standing or a person with other suitable qualifications or experience: s (94(5) of the Police Act.

[62] An Appeal Board may compel a person to appear before it to give evidence on oath or produce documents or records which appear material to the appeal: s 95(14) and (15) of the Police Act. Any such witness has the same protection, and is subject to the same liabilities, in any civil or criminal proceedings, as a witness in proceedings in the Supreme Court of the Northern Territory: s 101(3) of the Police Act.

[63] An Appeal Board has the power to determine an appeal without an oral hearing, where it “thinks fit” to do so: s 95(6) and (8) of the Police Act. If an oral hearing is held by an Appeal Board, parties to the appeal must be notified of the date, time and place at which the hearing is to occur and each party is entitled to appear and tender a written summary of the submissions made at the oral hearing: s 95(9) and (11) of the Police Act. A hearing may be conducted in public if one or more parties so requests and the Appeal Board agrees: s 95(10) of the Police Act. Where an Appeal Board conducts an appeal without holding an oral hearing, each party is entitled to tender written submissions: s 95(12) of the Police Act. It is clear from these procedural requirements that an Appeal Board must afford natural justice to parties to an appeal.

[64] Although the Police Act does not empower an Appeal Board to make orders and does not expressly state that decisions made by an Appeal Board are binding on all parties, 28 an Appeal Board clearly has the power to determine an appeal against an action, direction or decision of the Police Commissioner in relation to a member of the NTPF: s 94(6) of the Police Act. In determining an appeal, the Appeal Board may disallow the appeal or allow the appeal and direct the Commissioner to take such action under the relevant provisions as the Appeal Board considers necessary: s 94(6) of the Police Act. It is therefore apparent that an Appeal Board has the power to substitute its own decision for that of the original decision maker (the Police Commissioner) and thereby determine questions affecting people’s rights.

[65] An Appeal Board has the power to strike out an appeal that it considers vexatious or frivolous: s 95(16(a)) of the Police Act. An Appeal Board may also award costs in respect of a preliminary hearing and/or the appeal: s 95(16(b)) of the Police Act.

[66] An Appeal Board must give its decisions to parties in writing and must, if requested, provide reasons for its decisions: s 95(17) of the Police Act.

[67] There is a Registrar of Appeal Boards under the Police Act: s 97(1) of the Police Act.

[68] Further, I consider that an Appeal Board is required to be impartial and detached from the ordinary processes of executive government. This is apparent from:

(a) the composition of an Appeal Board being a Chairman (experienced lawyer or equivalent), appointed from a panel approved by the Minister on the advice of the Police Commissioner after consultation with the Police Association, a person nominated by the Police Association, and another person from a panel approved by the Minister on the advice of the Police Commissioner: s 94(2) and (5) of the Police Act;

(b) the fact that where a matter comes before an Appeal Board in which a member of the Appeal Board is directly concerned, the member must notify their interest to the Minister and must temporarily cease to act, so that a replacement member can be appointed to the Appeal Board: s 99 of the Police Act; and

(c) a member of an Appeal Board has, in the performance of their duty as a member, the same protection as a Supreme Court Judge: s 101(1) of the Police Act.

[69] Having regard to these features of an Appeal Board, I am of the opinion that an Appeal Board has quasi-judicial functions under the Police Act and is a “tribunal” within the meaning of s 53(3) of the Self Government Act.

Conclusion on s 53(3) of the Self Government Act

[70] The Police Arbitral Tribunal is a “tribunal established by enactment before 1 July 1978” within the meaning of s 53(3) of the Self Government Act. The Appeal Boards are not, because they were not “established by enactment” within the meaning of s 53(3) of the Self Government Act. It follows that the (assumed) employment of the Applicants by the Respondent is not “employment in respect of which a tribunal established by an enactment before 1 July 1978 has power to hear and determine disputes, claims or matters relating to the terms and conditions of the employment”. In the result, the Commission is not precluded by reason of s 53(3) of the Self Government Act from exercising any powers it has in relation to the termination of employment of the Applicants.

National system employees and employers

[71] The unfair dismissal regime in Part 3-2 of the FW Act applies to “national system employees” and “national system employers”.²⁹

[72] Sections 13 and 14 of the FW Act define what is meant by a “national system employee” and “national system employer” respectively:

“13  Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note:     Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.

14  Meaning of national system employer

(1) A national system employer is:

(a)  a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b)  the Commonwealth, so far as it employs, or usually employs, an individual; or

(c)  a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d)  a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i)  a flight crew officer; or

(ii)  a maritime employee; or

(iii)  a waterside worker; or

(e)  a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f)  a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1:       In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).

Note 2:       Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.

Particular employers declared not to be national system employers

(2)  Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a)  that employer:

(i)  is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

(ii)  is a body established for a local government purpose by or under a law of a State or Territory; or

(iii)  is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

(b)  that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(c)  an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

(3)  Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer.

Endorsement of declarations

(4)  The Minister may, in writing:

(a)  endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or

(b)  revoke or amend such an endorsement.

(5)  An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment.

Note:          Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment (see regulations made for the purposes of paragraph 54(2)(b) of that Act).

Employers that cannot be declared

(6)  Subsection (2) does not apply to an employer that:

(a)  generates, supplies or distributes electricity; or

(b)  supplies or distributes gas; or

(c)  provides services for the supply, distribution or release of water; or

(d)  operates a rail service or a port;

unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.

(7)  Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.”

[73] It is apparent from the definition in s 14 of the FW Act that “national system employers” are employers that “bear certain characteristics such as to make them amenable to particular heads of the legislative power of the Commonwealth in s 51 of the Constitution.”³⁰

[74] Sections 30C and 30M of the FW Act extend the meaning of “national system employee” in relation to a referring State. Similarly, sections 30D and 30M of the FW Act extend the meaning of “national system employer” in relation to a referring State. Those provisions are not relevant in the present case, because the Northern Territory is not a referring State.

[75] Section 30E of the FW Act extends the ordinary meaning of employee to include a “law enforcement officer of a State that is a referring State because of this Division if the State’s referral law so provides for the purposes of that law”. Again, this provision is not relevant in the present case, because the Northern Territory is not a referring State.

[76] It is clear from sections 13 and 14 of the FW Act that for the Applicants to have been national system employees at the time they were members of the NTPF, they must have been employed, or usually employed, by the Respondent and the Respondent must have been a “national system employer” within the meaning of s 14(1)(f) of the FW Act. Paragraphs 14(1)(a),(b),(c),(d) and (e) of the FW Act are plainly not relevant to the present case.

Did the NT Police carry on an activity in a Territory in Australia? (s 14(1)(f) of the FW Act)

[77] The Respondent accepts that it “could be ‘a person’ for the purposes of s 14(1)(f) of the FW Act”.³¹

[78] I am satisfied that the Respondent was, during the Applicants’ service with the NTPF, “a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia” within the meaning of s 14(1)(f) of the FW Act. The activity which the Respondent carried on was that of operating a police force for the Northern Territory.

Were the Applicants employed or usually employed by the Respondent?

[79] The FW Act does not seek to establish a statutory definition of what constitutes an employee.³² Under the FW Act, an employee is a party to an employment relationship at law, i.e. an employee at common law.³³ An employment relationship is a relationship “based upon and arising from a contract of employment; not a relationship arising from a contract of a different kind.”³⁴ In Barnett v Territory Insurance Office,³⁵ Mansfield J explained the concepts as follows:

“… underpinning every employment relationship is a common law contract of employment that is a contract under which a person agrees to work for another person in return for remuneration. The existence, for example, of an award does not create the relationship of employer and employee. That arises from the agreement between the employer to engage, and the employee to be engaged in employment. The contract of employment may, subject to the law, specify the detailed terms and conditions of that employment relationship. If relevant statutory provisions or instruments such as an award or enterprise agreement sourced from a workplace law or the NES, are superimposed over that contract of employment, the agreed terms of the contract are either suppressed or unlawful to that extent. But the contract of employment itself stands. The legislative structures are built upon the premise of an agreement to employ and to be employed.”

[80] Certain fundamental elements must exist for an employment relationship to exist. First, there must be a contract between the parties to the relationship. Secondly, because an employment contract is, at its essence, a work-wages bargain, the “irreducible minimum of mutual obligation” necessary to create such a contract is an obligation on the one side to perform the work or services that may reasonably be demanded under the contract, and on the other side to pay for such work or services.³⁶ However, those circumstances (performance of work and financial reward in return) are not themselves sufficient to identify a contract of employment. They are also hallmarks of an independent contractor and principal relationship.³⁷ Accordingly, it is necessary to characterise the contract as a contract of employment or as a contract of some other character.

[81] An employee’s contract of employment will be governed by any applicable statute in respect of the matters with which the statute deals.³⁸ As the High Court observed in Commonwealth Bank of Australia v Barker:³⁹

“The employment relationship, in Australia, operates within a legal framework defined by statute and common law principles, informing the construction and content of the contract of employment.”

[82] In the recent judgment of the Full Court of the Federal Court in Ryan v Commissioner of Police, NSW Police Force, 40 the common law position in relation to police officers was explained as follows:

“[89] At common law, the relationship of employee and employer is formed under a contract of employment: Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 at [16]; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [41].

[90] In the absence of a statutory provision to the contrary, members of a police force are not employed under a contract of employment, but are independent office-holders exercising original authority in the execution of their duties. In Attorney-General for New South Wales v Perpetual Trustee Co Ltd [1955] HCA 9; (1955) 92 CLR 113, Viscount Simonds, delivering the judgment of the Privy Council, observed at 129:

...[T]here is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original not delegated and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognized in the fact that his relationship to the Government is not in ordinary parlance described as that of servant and master.

(See also Attorney-General for New South Wales v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237 at 252-253, 261-262, 278-279; Enever v The King [1906] HCA 3; (1906) 3 CLR 969 at 982; Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637 at 643.)”

[83] There are many cases in which police officers have been held to be employees for the purposes of particular legislation, but the outcome of those cases turns on the particular statutory regime under consideration. For example, it has been held in separate decisions of the New South Wales Court of Appeal that police officers in New South Wales, who are not employees at common law, 41 are “employees” within s 53 of the Anti-Discrimination Act 1977 (NSW)42 and for the purpose of s 3 of the Employees Liability Act 1991 (NSW).43

[84] It is important to appreciate, when construing particular legislation, that words such as “employee” and “employment” have more than one ordinary meaning. This point was explained by Spigelman CJ in Commissioner of Police v Estate of Russell 44 as follows:

“The word “employee” has a legal meaning in the sense of a person who has a contract of employment with another. However, the word is capable of being used in a more general sense to encompass a person who is paid for performing work on a regular basis at the request, and at the direction, of another… The issue turns on the proper construction of the word in its context, in which process the scope and purpose of the statute under consideration plays an important part.”

[85] In Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors, 45 Justice Sully, at first instance, considered whether police officers in New South Wales were employees at common law. His Honour decided that they were not.46 In reaching this conclusion, Justice Sully had regard to the Police Service Act 1990 (NSW), which, according to its long title, is “an Act to establish the Police Service of New South Wales; to provide for the management of the Police Service and for the employment of its members; and for other purposes” [emphasis added]. References to the word “employment” in the Police Service Act 1990 (NSW) did not cause Justice Sully to find that police officers in New South Wales were employees at common law. After referring to the common law status of police officers as statutory office-holders and not employees, his Honour also made reference to the following relevant principles:47

“20 First, that the mere enactment of statutory codifications concerning the establishment and management of police services does not of itself displace the ordinary principles of the common law. The Privy Council observes in that regard:

“Today as in the past he is in common parlance described in terms which aptly define his legal position as ‘a police officer’, ‘an officer of justice’, ‘an officer of the peace’. If ever he is called a servant, it is in the same sense in which any holder of a public office may be called a servant of the Crown or of the State.”

Secondly, the traditional requirement carried forward into modern statutory provisions respecting police services, that a police constable, before entering formally upon the exercise of any of his official functions, must take an oath or make an affirmation of office as a police officer: “ ...............is not the usual concomitant of the master and servant relationship”; and the obligation of service as normally embodied in such an oath or affirmation of office “.................is of negligible significance. It is the traditional word in the context of subject and Sovereign and does not by itself import the relation of master and servant in the ordinary sense of those words”.

Thirdly, the common law continues to recognise the distinction explored in Blackstone’s Commentaries:

“... between public officers and domestic relations. There appears to their Lordships to be ample justification for saying as was said in the High Court that the service of a constable is ‘different in nature’ or ‘on a different plane’ from the domestic relation, that it is ‘different both in its nature and its incidents’, and that, even if some of the incidents which the law implies in the ordinary contract of service are present also in the relation of the constable to the Crown, there is a fundamental difference which makes it necessary to approach with caution the question whether a form of action available in the one case is available in the other also”.

21 See also, and generally, the discussion in Avery: Police – Force or Service? at 64, 65, under the heading: The Traditional Independence of Police.

22 The Common Law principles which have been thus far discussed are well established in the Law of New South Wales. It is, of course, within the constitutional competence of the Parliament of New South Wales to legislate so as to abrogate, either in whole or in part, such common law principles. It is, in that connection, a sound canon of statutory interpretation that, if Parliament wishes to make such a change to established common law principles, nothing is easier than for Parliament to say so in clear and simple statutory terms. It is an accepted corollary of that basic canon of construction that, if Parliament does not legislate with that degree of clarity, then it ought not lightly to be inferred that Parliament intended, as it were by a side wind, to overturn, whether in whole or in part, antecedent common law principles of long recognised standing.

23 The foregoing propositions raise for present consideration the question whether the Police Service Act upon its proper construction, has changed, and if so to what particular extent, the antecedent principles of the common law respecting the employment status of police officers.”

[86] As is the case in New South Wales, 48 the Police Act does not in terms simply abrogate the common law in relation to the legal standing of serving police officers. Justice Sully held that s 14 of the Police Service Act (NSW) was in terms to the contrary.49 It provides:50

“In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law of the State).”

[87] Section 25 of the Police Act (NT) is in materially similar terms. It provides:

“Subject to this Act, a member shall perform the duties and obligations and have the powers and privileges as are, by any law in force in the Territory, conferred or imposed on him.”

[88] Importantly, the Police Act distinguishes in various places between a member of the NTPF, on the one hand, and “an employee within the meaning of the Public Sector Employment and Management Act 1993” or a “public sector employee”, on the other hand. 51 These provisions indicate that Parliament had in mind a distinction of substance between a member of the NTPF and an employee.

[89] The Police Act provides for the NTPF to consist of “a Commissioner and other members appointed and holding office under and in accordance with this Act”: s 6 of the Police Act. The fact that members of the NTPF are “appointed” and “hold office” is to be contrasted with an employee at common law, who is party to an employment relationship which is formed under a contract of employment. Further, the Police Commissioner is empowered by the Police Act to appoint or promote a member of the NTPF to a particular rank without there being a need for a contract or an amendment to a contract: s 16(1) of the Police Act.

[90] Sections 26 to 28 of the Police Act concern the taking of an oath by members of the NTPF. They provide:

“26 Members to take oath

(1) A person shall not exercise or perform any of the powers, functions or duties conferred or imposed upon a member of the Police Force by a law of the Territory unless he or she has taken and subscribed an oath in the form in the Schedule.

(2) An oath under subsection (1) must be administered by the Commissioner, a Deputy Commissioner or an Assistant Commissioner.

27 Oath binding on members

A person on taking and subscribing the oath as provided in section 26, or on probation under section 16A, shall be bound by the terms and conditions of his employment as a member of the Police Force, as provided by this Act, until such time as he ceases to be a member of the Police Force.

28 Members to serve the Crown

(1) Subject to subsections (2) and (3), every person, on taking and subscribing the oath as provided in section 26, shall be deemed to have thereby entered into a written agreement with, and shall be thereby bound to serve the Crown as a member of the Police Force or in any other capacity if so instructed in accordance with this Act or the regulations, at the current rate of pay, until lawfully discharged.

(2) No agreement of the type referred to in subsection (1) shall be set aside for want of reciprocity.

(3) An agreement of the type referred to in subsection (1) may be cancelled at any time by the lawful discharge, dismissal or removal from office of any such person, or by the resignation of any such person being accepted by the Administrator or the Commissioner, as the case may be.”

[91] It is significant that members must not exercise or perform any of the powers, functions or duties conferred or imposed on them as members of the NTPF without taking an oath in the prescribed form. The oath requires the member to “serve Her Majesty, Queen Elizabeth the Second … as a member of the Northern Territory Police Force”.

[92] Section 27 of the Police Act makes reference to “terms and conditions of his employment” but only “as a member of the Police Force, as provided by this Act”. There is no suggestion that the terms and conditions of employment are specified in or dealt with by an employment contract. They are provided for in the Police Act.

[93] The reference in s 28 of the Police Act to a “written agreement” is one which the legislation deems to have been created by the taking of an oath. Such a deemed agreement is different in substance and form to a contract of employment.

[94] Section 51 of the Police Act permits the Minister and the Police Association to enter into consent agreements relating to the remuneration and terms and conditions of service of members of the NTPF. Such consent agreements, once made and certified by the Police Arbitral Tribunal, are binding on the Crown, the Police Commissioner and members of the NTPF: s 54 of the Police Act. These consent agreements determine and govern the remuneration and other relevant terms and conditions of service of members of the NTPF.

[95] Section 20 of the Police Act governs how, and the circumstances in which, a member of the NTPF may resign their office and relinquish their duties of office as a police officer. The provision does not contain any indication of there potentially being a contract of employment in existence alongside the appointment as a police officer under the Police Act.

28. The Police Act empowers the Police Commissioner to, amongst other things, retire and dismiss members from the NTPF in particular circumstances and after the procedures governed by the Police Act have been followed. The terms “dismiss” and “retire” in Parts IV, V and VI of the Police Act are defined in s 4(1) as follows:

“dismiss, in Parts IV, V and VI, in relation to a member, means to terminate the employment of the member because of a breach of discipline.”

“retire, in Parts IV, V and VI, in relation to a member, means to terminate the employment of the member otherwise than by dismissing the member.”

[96] When these definitions are read in context with the remaining provisions of the Police Act and in light of the emphasis throughout the Police Act on members of the NTPF being statutory office-holders, I am of the opinion that the word “employment”, where it is used in these definitions, other provisions of the Police Act 52 and the Northern Territory Police Force Consent Agreement 2019 (made pursuant to Part III of the Police Act), should be construed, in its general sense, to mean the engagement of a person who is paid for performing work on a regular basis at the request, and at the direction, of another.

[97] Section 16AAA of the Police Act is concerned with the duties to be performed by particular members of the NTPF. It provides:

“16AAA Term or contract employment

(1) The Commissioner may, from time to time, determine the duties or classes of duties in the Police Force of a member of or above the rank of Commander that:

(a) may be performed on an appointment for a fixed period; or

(b) may only be performed on an appointment for a fixed period.

(2) Duties referred to in subsection (1) may, subject to the relevant determination under that subsection, be performed either by the appointment under section 16 of a person on contract or by the promotion or transfer of a member for a fixed term.

(3) In making a determination under subsection (1), the Commissioner shall specify a period, not exceeding 5 years, as the period for which a person may be employed to perform the duties.

(4) The Commissioner may determine the terms and conditions to apply to and in relation to employment to perform duties referred to in subsection (1), and where such a term or condition is inconsistent with this Act, the term or condition so determined prevails and the conditions of or under this Act, to the extent of the inconsistency, have no effect.

(5) The period of employment to perform duties referred to in subsection (1) may be renewed from time to time by the Commissioner for a period not exceeding the duration of the original period.

(6) Where duties referred to in subsection (1) are performed by a member promoted or transferred as referred to in subsection (2), the terms and conditions to which the member is subject as a permanent member at his rank shall be deemed to be varied, to the extent of the determination under subsection (4), for the duration of the period during which the member performs those duties.”

[98] In my view, the reference in this provision to a “contract” and “employment” is specific to the particular subject matter with which the section is concerned. It empowers the Police Commissioner to determine the duties to be performed, as well as the applicable terms and conditions, by a member of the NTPF who is at the rank of Commander or above for a fixed period. Viewed in this context, I am of the opinion that the references to “employment” in s 16AAA are intended to encompass the general sense of the word, i.e. employment as in the engagement of a member who is paid for performing particular work at the request, and at the direction, of the Police Commissioner.

[99] In my opinion, the Police Act does not disclose a legislative intention to abrogate, either in whole or in part, the long-recognised principles of the common law concerning the status and legal standing of police officers as statutory office holders, not employees at common law. My conclusion in this regard is consistent with the judgment of Southward J and Mildren AJ in The Queen v Rolfe (No. 5), 53 in which their Honours observed:

“[33] The words “performance of duties as a member” in s 148A(1) and elsewhere in Part VIIA of the Police Administration Act have been carried forward from repealed s 163(1). They are reflective of the tortious and vicarious liability matters dealt with in Part VIIA. They are equivalent words to the words “in the course of employment” which are commonly used in matters involving the vicarious liability of employers for employees. The Legislature used the words “performance of duties as a member” because members of the police force are independent statutory office holders. They are not employees. However, the Territory is vicariously liable for police torts committed by members of the police force in the performance of their duties as members.” [emphasis added]

[100] Earlier in their reasons, Southward J and Mildren AJ referred to the second reading speech for legislation that amended the Police Act to make the Crown liable for the torts of members of the NTPF: 54

“[29] During the second reading speech for the Bill that became the Police Administration Amendment (Powers and Liability) Act, the Minister for Police, Fire and Emergency Services stated:

The bill seeks to amend the Police Administration Act in a number of ways. Primarily, this bill will put into place a new regime dealing with claims of alleged tortious acts by members of the police force.

[...]

As I noted in my response to the house on 5 October 2004, this is a complex area of law. It is made more difficult by the fact that members of the police force are not ‘employees’. Vicarious liability is a common law doctrine relating to the issue of an employer’s liability for the actions of their employee. Generally speaking, the Crown cannot be vicariously liable for the actions of an independent statutory officeholder such as a member of the police. It is for this reason that section 163(1) of the Act makes the Crown liable for members’ torts in the like manner as a master is liable for the torts committed by a servant in the course of employment.” [emphasis added]

[101] In support of their argument that they were employees at common law of the Respondent, the Applicants rely on letters provided to them by the Commissioner of Police at the time they commenced with the NTPF. Such correspondence cannot assist the Applicants because the Commissioner does not, on the proper construction of the Police Act, have the power to enter into employment relationships with members of the NTPF. The Police Act governs the nature of the legal relationships between the Police Commissioner and members of the NTPF. It is apparent from the provisions of the Police Act to which I have referred above that the legal relationship between a member of the NTPF and the Police Commissioner is, and must only be, one of a statutory office holder.

[102] In the event that the conclusion I expressed in the previous paragraph is challenged on appeal, I will now consider the content of the correspondence between the Commissioner of Police and the Applicants.

[103] Mr Ban received a letter dated 8 September 2008 from the Acting Assistant Commissioner of Police. The letter has the subject line “Offer of Employment as a Constable in the Northern Territory Police Force”. The letter relevantly provides:

“The Commissioner of Police is pleased to offer you appointment under Section 16 of the Police Administration Act (the Act) as a Trainee Constable in the Northern Territory Police Force. This offer of appointment is subject to, and conditional upon, the satisfactory resolution of outstanding antecedent checks currently being conducted and the receipt and consideration of any other outstanding documentation being sought, including the medical assessment. In the event that there is not a satisfactory resolution of these outstanding matters, the Commissioner of Police may rescind this offer and terminate your employment.

The conditions and terms of your employment are contained in the Act, the Police Arbitral Tribunal Determination No. 1 of 2000 and in the Northern Territory Police Force Consent Agreement 2008.

Your salary on appointment will be $42,372 per annum based on accrual of seven weeks annual recreation leave. On completion of training and on the commencement of dutues, your salary will rise to $49,369 plus 20 percent Consolidated Allowance and five percent General Duties Allowance.

Your appointment, should you accept, will be under section 16 (1) (a) of the Act, which is qualified by section 16A of the Act. The qualification relates to a requirement to successfully complete the probationary period of two years from your date of appointment as a Trainee. Confirmation of your appointment will be subject to successful completion of the Constable Training Program, which includes assessment of your performance over that two year probationary period.

Failure to meet the ongoing assessments of either the College or the latter phase of the Trainee Constable Program will result in early termination of appointment as a Constable as provided for at s. 16A (6) of the Act. In relation to the College phase of the Trainee Constable Program it is important to note that should you be served with three warning notices as a result of failing to meet the academic or physical requirements or disciplinary matters, your employment may be terminated.

The acceptance of your appointment to the Northern Territory Police Force is offered on the understanding that you may be required to serve in any geographical location within the Northern Territory where police presence is required. Further, you are also required to maintain your physical fitness, swimming ability and the currency of your Senior First Aid Certificate.

All new employees default into the Northern Territory Government’s superannuation fund, which is the Australian Government Employee Superannuation Trust (AGEST). Should you wish to nominate a fund of your choice at the time of commencement please ensure you have fund details available on the first day of employment. You may elect to transfer to another fund at any time following commencement. Members electing to contribute to any scheme must nominate the fortnightly amount to be deduced from their after-tax salary.

Should you be required to relocate to Darwin, the Northern Territory Police Force will meet reasonable costs associated with the removal of furniture, household and personal effects. These costs are based on household items normally used to furnish a three-bedroom house, as well as for the family car. Transport costs of extra vehicles, trailers, boats, caravans and the like are your own responsibility. A vehicle allowance will be paid if you elect to drive. In addition, Trainee Constables who have recognised dependants, shall be granted a one-way airfare, to allow their dependants to join the member in the Northern Territory prior to, during or after Recruit Training. In the event of your employment being terminated, or you choose to resign, there is no provision for the payment of relocation costs associated with that termination.

You will officially commence the Trainee Constable Program at the Northern Territroy Police, Fire and Emergency Services College, Peter McAulay Centre, Vanderlin Drive, Berrimah at 0800 hours on Monday, 13 October 2008. The position offered to you is one of full-time employment. Accordingly, once you enter paid employment with the Northern Territory Police Force, any other full-time employment must cease.

To accept this offer of employment for placement in the Trainee Constable Program, please sign, date and return one copy of this letter within seven days of receipt in the enclosed Express Post envelope direct to:

Officer in Charge, Police Recruitment

Human Resource Management Branch

NT Police, Fire and Emergency Services

PO Box 39764, WINNELLIE NT 0821

Yours sincerely”

[104] On 14 September 2008, Mr Ban signed an acceptance in the following terms:

“I, Karoly Ban, accept the offer of employment contained in this letter, and understand this offer and my acceptance is conditional upon the requirement stipulated in this letter being met.”

[105] Mr Vale was provided with a letter dated 31 December 2009. It is in materially the same, or very similar, terms as the letter dated 8 September 2008 and sent to Mr Ban, save that Mr Vale was offered appointment as “a Trainee in the Accelerated Recruitment Program (ARP) in the Northern Territory Police Force … [at the] Constable level ten increment”. Mr Vale signed an acceptance of his offer on 11 January 2010.

[106] Ms Dridan was provided with a letter dated 15 June 2016. It is in materially the same, or very similar, terms as the letter dated 8 September 2008 and sent to Mr Ban, save that Ms Dridan was offered appointment as “a Police Auxiliary in the Northern Territory Police Force”. Ms Dridan signed an acceptance of her offer on 19 June 2016.

[107] Even if the Police Commissioner had the power under the Police Act to enter into contracts of employment with members of the NTPF which co-existed with their appointment as statutory office holders, I do not consider that the letters sent to, and accepted by, the Applicants at the time of their commencement with the Respondent constituted, or evidenced the existence of, contracts of employment. First, the letters offered the Applicants an “appointment” under the relevant provision of the Police Act to a role as a member of the NTPF. So much is clear from the first and fourth paragraphs of the letters of offer, read together with the provisions of the Police Act to which those paragraphs expressly refer. Secondly, the references in the letters to “employment” and “offer of employment” have to be read in context with the express statement in paragraph two of the letters that “The conditions and terms of your employment are contained in the [Police] Act …” For reasons already explained, the Police Act does not permit members of the NTPF to be engaged as employees at common law; they must be appointed and hold office as members of the NTPF. Thirdly, in light of the first two reasons, coupled with the proper interpretation of the relevant provisions of the Police Act, the word “employment” in the letters of offer should be construed in its general sense to mean the engagement of a person who is paid for performing work on a regular basis at the request, and at the direction, of another. The letters of offer are properly characterised as letters of appointment to the position of statutory office holder.

[108] It is uncontroversial that the Applicants received a number of employee-type benefits during their time as members of the NTPF. For example, they received an annual salary, pay slips, sick leave, annual leave, long service leave and superannuation. This is not unusual. Police officers in other States receive similar benefits even though they are not employees at common law. The receipt of such benefits, most of which are provided for by or pursuant to the Police Act, do not alter the status of the Applicants as members of the NTPF to employees at common law.

[109] The Applicants also point to the fact that they signed their letter of acceptance before the making of the formal instrument of appointment by the Police Commissioner, or his or her delegate, which was before their oath was taken. For example, Ms Dridan signed her letter of acceptance on 19 June 2016, the formal instrument of appointment appointing her to be a member of the NTPF was signed on 25 July 2016, and Ms Dridan swore her oath on 1 September 2016. I do not consider that this sequence of events supports a conclusion that the Applicants were employees at common law. As soon as the Applicants accepted their appointment under the Police Act as a member of the NTPF they were subject to the relevant terms of the Police Act. The effect of taking the oath meant that the member was permitted by s 26 of the Police Act to “exercise or perform any of the powers, functions or duties conferred or imposed upon a member of the Police Force by a law of the Territory”. Contrary to the Applicants’ submissions, the Police Act does not permit or provide for the co-existence of a contract of employment and an oath agreement between a member of the NTPF and the Police Commissioner.

[110] The schedule to formal instrument of appointment for Ms Dridan and the other Applicants included the following statement:

“The member is, by reference to section 16(A) of the Police Administration Act and as a condition of employment, subject to a probationary period …”

[111] For the same reasons as expressed above, I consider that word “employment” in the schedule to the formal instrument of appointment has its general meaning, not its legal meaning.

Other matters

Prior unfair dismissal cases involving Northern Territory police officers

[112] The Applicants point to the fact that previous decisions of the Fair Work Commission have dealt with unfair dismissal applications made by members of the NTPF. It is apparent from the reasons for decision in those cases that the respondent did not argue that the member of the NTPF in question was not protected from unfair dismissal and the Commission did not give consideration to that question. 55

[113] The Respondent is not precluded by previous unfair dismissal cases concerning members of the NTPF in the Commission from raising its jurisdictional objection in these proceedings. Jurisdiction either exists or it does not. If the Commission does not have jurisdiction to deal with the unfair dismissal applications lodged by the Applicants, it must dismiss those applications.

Benchbook

[114] The Respondent points to the fact that its position on jurisdiction is consistent with that expressed in the Commission’s Unfair Dismissal Benchbook, which states that “in the NT the national system includes: ALL employees (except a member of the Police Force)”. The Benchbook also relevantly provides:

“Exclusions

The following people are excluded from the national system (including but not limited to):

•  a member of the Defence Force

•  a member of the Police Force of the Northern Territory

…

Northern Territory

A member of the Northern Territory Police Force who has been dismissed may appeal to a Disciplinary Appeal Board against the action.”

[115] The Commission’s Benchbooks are stated to be “used as a general guide only”.

[116] Although the conclusion I have reached in these proceedings in relation to whether members of the NTPF are protected from unfair dismissal under the FW Act is consistent with the views expressed in the Commission’s Unfair Dismissal Benchbook, my opinion on the relevant questions has not been influenced by the content of the Benchbook.

Public sector employees

[117] The Respondent contends that even if the Applicants were employees at common law of the NTPF, the Applicants were not public sector employees for the purposes of the FW Act and, as a result, they cannot be “national system employees” for the purpose of Part 3-2 of the FW Act. 56 I reject this submission.

[118] Public sector employment for the purposes of the FW Act is defined in s 795 of the FW Act to relevantly mean:

“795 Public sector employer to act through employing authority

Employer to act through employing authority

(1) For the purposes of this Act and the procedural rules, the employer of an employee (a public sector employee) employed in public sector employment must act only through the employee’s employing authority acting on behalf of the employer.

Acts done by or to employing authority

(2) For the purposes of this Act and the procedural rules, anything done by or to a public sector employee’s employing authority acting on behalf of the employee’s employer is taken to have been done by or to the employer (as the case may be).

Application of subsections (1) and (2)

(3) Subsections (1) and (2) apply despite any other law of the Commonwealth, a State or a Territory

Meaning of public sector employment

(4) Public sector employment means employment of, or service by, a person in any capacity (whether permanently or temporarily, and whether full-time or part-time):

(a) under the Public Service Act 1999 or the Parliamentary Service Act 1999; or

(b) by or in the service of a Commonwealth authority; or

(c) under a law of the Australian Capital Territory relating to employment by that Territory, including a law relating to the Australian Capital Territory Government Service; or

(d) by or in the service of: (i) an enactment authority as defined by section 3 of the A.C.T. Self-Government (Consequential Provisions) Act 1988; or (ii) a body corporate incorporated by or under a law of the Australian Capital Territory and in which the Australian Capital Territory has a controlling interest; other than an authority or body prescribed by the regulations; or

€ under a law of the Northern Territory relating to the Public Service of the Northern Territory; or

(f) by or in the service of a Northern Territory authority; or

(g) by or in the service of a person prescribed by the regulations; or

(h) under a law prescribed by the regulations.

(5) However, public sector employment does not include:

(a) employment of, or service by, a person prescribed by the regulations; or

(b) employment or service under a law prescribed by the regulations.

This subsection does not apply for the purposes of section 40.

Note: Section 40 deals with the interaction between fair work instruments and public sector employment laws.

Meaning of employing authority

(6) An employing authority of an employee is the person prescribed by the regulations as the employee’s employing authority.”

[119] Regulation 6.08 of the Fair Work Regulations 2009 provides:

“(3) For paragraph 795(5)(a) of the Act, a member of the Police Force of the Northern Territory is prescribed.”

[120] Accordingly, a member of the NTPF is not in a “public sector employee” within the meaning of s 795 of the FW Act.

[121] However, whether a person is a “public sector employee” has no bearing on whether they are a “national system employee” within the meaning of s 13 of the FW Act. The expression “public sector employment” is defined in s 795(4). The defined meaning is used in s 795(1) and (2) for a particular purpose. 57 Sections 795(1) and (2) are concerned with when an act may be taken to have been done by or to a public sector employer. Those provisions have similarities with s 793(1) of the FW Act, which determines when conduct has been engaged in by a body corporate.

[122] The expressions “public sector employment” and “public sector employee” are not used or referred to in the definition of “national system employee” or Part 3-2 of the FW Act. They are not relevant to the question of whether the Applicants are “national system employees” and protected from unfair dismissal under the FW Act.

Conclusion

[123] The Applicants did not have employment relationships with the Respondent. They were not “national system employees” within the meaning of s 13 of the FW Act. Accordingly, they are not entitled to the protection of the unfair dismissal provisions of the FW Act. It follows that the application made by each Applicant for relief from unfair dismissal must be dismissed.

[124] The Applicants were not left without a right to challenge their dismissal from the NTPF. They had the right to appeal to an Inability Appeal Board against the direction, action or intention of the Police Commissioner to retire them from the NTPF pursuant to s 89 of the Police Act. An Inability Appeal Board had the power to allow such an appeal “in whole or in part and direct the Commissioner to take such action … as the Appeal Board considers necessary”. 58

DEPUTY PRESIDENT

Appearances:

Mr L Matarazzo and Ms C Matarazzo, for the Applicants
Mr K Brotherson, counsel for the Respondent

Hearing details:

2022.
Newcastle
22 June (by videoconference).

Final written submissions:

29 July 2022

Printed by authority of the Commonwealth Government Printer

<PR744603>

 1   [2017] HCA 34 (Kiefel CJ, Nettle and Gordon JJ)

 2   Ibid at [14]; also see Australian Mines and Metals Association Inc v CFMMEU [2018] FCAFC 223 at [76] – [86]

 3   Ibid at [37]-[39]

 4   Huntsman Chemical Company Australia Pty Limited [2019] FWCFB at [12]

 5   Mills v Meeking (1990) 169 CLR 214 at [235]

 6   Preamble to the Self Government Act (Hearing Book at p 420)

 7   Section 15AB(1) & 2(e) of the AI Act

 8   See “notes on clauses” in paragraph [14] above

 9   North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41 at [15] (footnote 19)

 10   Section 56 of the Self Government Act

 11   Section 57(1) of the Self Government Act

 12   See “notes on clauses” in paragraph [14] above

 13   Section 35 of the Police Act

 14   Section 36 of the Police Act

 15   Section 94 of the Police Act

 16   Blackburn v Flavelle (1881) LR 6 App Cas 628 at 634; 45 LT 52

 17   (1982) 148 CLR 88 at [10]

 18   (1887) 19 QBD 400

 19   (2004) 220 CLR 129 at [122]

 20   [2010] NTSC 61

 21   [2003] NTSC 120

 22   Ibid

 23   South Melbourne Football Club Ltd v Football Federation Victoria Inc [2010] VSC 355

 24   Valome Pty Ltd v Building Appeals Board [2013] VSC 641

 25   Nowicki v Martyn (1993) 131 FLR 88

 26   [2002] NSWADT 33

 27   [2015] NSWCATAD 125

 28   cf s 43(1) of the Police Act re determinations made by the Police Arbitral Tribunal

29 Section 380 of the FW Act

30 Ayub v NSW Trains [2016] FWCFB 5500 at [25]

31 NT Police submissions dated 13 May 2022 at [22]

32 Ayub v NSW Trains [2016] FWCFB 5500 at [25]

33 Ayub v NSW Trains [2016] FWCFB 5500 at [25]

34 Fair Work Ombudsman v Valuair Limited (No 2) [2014] FCA 759 at [76]

35 (2011) 196 FCR 116 at [24]; applied in Fair Work Ombudsman v Valuair Limited (No 2) [2014] FCA 759 at [81]

36 Voros v Dick [2013] FWCFB 9339 at [13]

37 Fair Work Ombudsman v Valuair Limited (No 2) [2014] FCA 759 at [76]

38 NSW Trains v James [2022] FWCFB 55 at [108]

39 (2014) 253 CLR 169 at [1]

 40   [2022] FCAFC 36

 41   Ibid at [91]

 42   Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232

 43   Police Service of New South Wales v Honeysett (2001) 53 NSWLR 592; see, too, Konrad v Victoria (1999) 91 FCR 95

 44   (2002) 55 NSWLR 232 at [82]

 45   [2001] NSWSC 745

 46   This finding was not disturbed on appeal: Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232

 47   Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors [2001] NSWSC 745 at [20]-[23]

 48   Ibid at [24(1)]

 49   Ibid

 50   Ibid at [17]

 51   See, for example ss 14(4), 34J, 34M

 52   See, for example, s 79A of the Police Act

 53   [2021] NTSCFC 6. Part of this decision was subject to appeal by special leave to the High Court (The Queen v Rolfe [2021] HCA 38, but that did not alter what was said as to the status of members of the NTPF.

 54   Ibid at [29]

 55   See, for example, Isles v Northern Territory Police, Fire and Emergency Services [2010] FWA 9147; Isles v Northern Territory Police, Fire and Emergency Services [2018] FWCFB 6295; Khan v Northern Territory of Australia (Commissioner of Police) [2014] FWC 194

 56   Respondent’s outline of submissions dated 13 May 2022 at [27]

 57   See, too, s 40 of the FW Act, which is also irrelevant to the jurisdictional objection raised in the present case

 58   Section 94(6) of the Police Act