By Giuseppe Carabetta
Lecturer
The University of Sydney
University of Sydney lecturer, Giuseppe Carabetta, addressed the Police Association annual delegates’ conference in October. Below is an abridged version of his speech.
The term “legal status” refers to police officers’ status at common
law - their status in the eyes of the judiciary. Another way of saying
this is their “employment status”. It refers to the issue: are police
officers employees, just like most other public sector workers, or,
does the fact that police are clearly public office-holders mean that
they cannot also be employees? My argument is that, although police
are classified as office-holders - which sets them apart from most
other Crown servants in Australia - they should also be classified
as employees. They should, in other words, wear two hats rather than
just one.
In some respects, of course, whether police are employees, or whether
they wear “two hats”, is of little practical significance. This is
so for two main reasons: (i) the existence of “deeming” provisions
in all police jurisdictions; and (ii) the existence of the “detailed
paternalistic code” (as DC Thomson put it in 1963)1 of
police employment. The result is that, in many employment areas (workers
compensation, leave entitlements, and the like) police enjoy broadly
the same entitlements as other Crown employees. Nonetheless, as I
argue, the issue remains significant in a number of key areas.
Current legal status
As confirmed by some of the more recent decisions, and most notably
the Konrad2 decision, the linchpin in any examination of
the legal status of police in Australia is Perpetual Trustee.3
In that case, the Privy Council held that:
[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 [sic] 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...4
This pronouncement has been applied or affirmed in numerous Australian
cases. The key presumptions behind it are that: a. police officers
exercise “original powers” derived from the law (meaning common law
and statute); b. those powers are discretionary powers; and
c. police officers are office-holders and not employees as neither
the Crown, nor anyone else, controls them.
The outcome is that police officers are not even able to come within
the more modern (and much broader) employee “tests”. That is, according
to Perpetual Trustee, there is an absence of legal control and not
an absence of control which stems merely from a physical inability
to control a worker’s activities. This absence of control will outweigh
any other employment indicator under the modern tests and so, if we
are going to analyse Perpetual Trustee, it has to be from this
perspective. It is all about control.
Problems with the Perpetual Trustee Doctrine
As I see it, there are three basic problems with Perpetual Trustee.
First, there seemed to be a selective use of authorities in that case,
and in particular the High Court’s decision in Enever.5
On my interpretation, Enever does not support the proposition
that police officers are not Crown employees. Only the Chief Justice,
Griffiths CJ, held that police constables were pure office-holders.
O’Connor and Barton JJ were of the view that the police constable
in question was both an office-holder and an employee. This
dual status view of Enever is supported by three members of
the High Court in Perpetual Trustee (including two majority
members); more recent vicarious liability decisions; the vicarious
liability literature; and certain overseas decisions.
The second
point is that (as has also been pointed out in the police accountability
literature) Perpetual Trustee ignores the duality in the police
constable’s role. It is true that police exercise powers derived from
law itself; and that key powers, such as the power of arrest, are
discretionary powers. But it is equally true that police discharge
other functions which are not unlike those of other public sector
workers.
The third point is that Perpetual Trustee ignores the fact
that the Commissioner’s superintendence of the police force is subject
either to a ministerial officer or to a Governor-in-Council. It also
overlooks the fact that police officers are members of a hierarchical
force governed by a code of discipline.
The current trend
We are now, not surprisingly, seeing a trend toward the recognition
of police officers as both office-holders and employees. It is clear
from remarks made in various court decisions, and particularly some
of the more recent Australian cases6, that there is strong
support for a dual status view. Indeed, the High Court itself, in
a 1986 decision concerning the status of a marine pilot7,
seemed to endorse such a view.
It also cannot be denied that, as well as the powers of control
exercised over members of the police force, there are many other aspects
of their engagement that are indicative of an employer-employee relationship.
Such factors include the right to demand exclusive service, the high-level
organizational integration, the permanency of appointment, and so
on.
Legislatively, the clearest example of the trend is the Australian
Federal Police Amendment Act 2000 (Cth). Under that Act, members
of the Australian Federal Police, with the exception of certain senior
members and special members, are initially engaged as “AFP employees”.
However, it must be remembered that the AFP operates within the federal
system and there are special legislative arrangements in place under
the new Act also.
Implications
The High Court’s decision in the Re Australian Education Union8
case was made in the context of an application by the organization
then representing members of the AFP for an extension of its eligibility
rules to allow it to represent police throughout Australia. That objective
was ultimately achieved, leading to the establishment of a national
police union, the Police Federation of Australia (PFA). The High Court
also confirmed that (in a general sense) the Commonwealth Parliament
is able to legislate with respect to members of the state and territory
police forces. Under the Workplace Relations Act 1996 (Cth),
however, federal awards and certified agreements deal only with relations
between employers and employees. Thus, although there
is now a national framework in place, and a federally registered police
union, State and Territory police cannot gain access to the federal
industrial system if that is indeed the objective.
To some extent, the same applies in respect of the federal termination
provisions, although to what extent State police should have access
to those provisions is a complex question. The Full Federal Court’s
decision in Konrad established that, to the extent that the
former federal provisions relied on the relevant ILO Convention, they
covered all public sector workers, including police. However, the
current provisions do not rely solely on the ILO Convention. Some
of the provisions apply only to certain categories of employees in
the strictest sense.
As just mentioned, the PFA is the first national police union. It
was formally established in August 1997, following the Re Australian
Education Union decision and then the Australian Industrial Relations
Commission’s decision in Re AFPA.9 The eligibility
rule of the PFA provides that it shall consist of persons who are:
“...persons appointed to any rank, grade... of police officer of any
Police Force or Service of any State, Territory or Commonwealth Government
of Australia”. Under the terms of the Workplace Relations Act,
however, an association with access to the Act is one where some members
are employees in the common law sense; and the remaining members are
either officers of the association or persons deemed to have coverage
under the Act. What this means is that if State police are not deemed
to have coverage under the Act - and this is indeed the case at the
moment for some States - they must come within the first category.
Finally, I will not discuss in any detail the remaining areas where
a contract of employment might be significant. But it is important
to note that the implications for police in all jurisdictions are
not confined to their statutory entitlements, or the question
of access to the federal industrial system. They also extend to the
application of basic contract principles to their appointment, such
as, the implied right of mutual trust and confidence, the right to
a claim for wrongful dismissal, and what two leading British writers10
have termed “the legitimate scope of the constable’s employment”.
Conclusion
First, in my view, judicial intervention, not legislative reform,
is the preferred option. Legislative reform will not be the most practical
solution, and may only deliver peace-meal reform. Second, given the
recent trends, and given the strong support for a dual status approach,
it seems that police officers in Australia will one day become the
wearers of “two hats” rather than one. Finally, in my view, such a
move would be highly significant for police officers and their associations.
It would not only deliver important gains to police officers, as well
as promote symmetry in police entitlements and promote police professionalism,
but, in doing so, it would also reinforce the relationship between
police officers and the community they serve. For more detail on this
topic, see the author’s article, Employment Status of the Police
in Australia, in volume 27 of the Melbourne University Law
Review.•
1 DC Thomson, ‘Employment and
the Law in the New South Wales
Police Force’ (1963) Sydney Law Review 404-415,
at 404).
2 Konrad v Victoria Police (1999) 91 FCR 95.
3 Attorney-General (NSW) v Perpetual Trustee Co Ltd
(1955) 92 CLR 113,
affirming the earlier decision of the High Court:
(1952) 85 CLR 237.
4 (1955) 92 CLR 113 at 129 (Viscount Simonds).
5 Enever v The King (1906) 3 CLR 969.
6 Eg. Konrad v Victoria Police (1998) 152 ALR 132 at 144 and
Re AFPA (1997) 73 IR 155 at 158.
7 Oceanic Crest Shipping Co Pty Ltd v Pilbara Habour
Services Pty Ltd
(1986) 160 CLR 626.
8 Re Australian Education Union; Ex parte Victoria
(1995) 184 CLR 188.
9 (1997) 73 IR 155.
10 S Fredman and GS Morris, The State as Employer: Labour
Law in the
Public Services (London, Mansell, 1989)
at 73.
• G.J. Carabetta, ‘Employment Status of the Police
in Australia’ (2003) 27
Melbourne University Law Review 1-32.
