Employment status of the police in Australia.

• Jurisdiction: Australia
• Author: Carabetta, Joseph
• Date: 01 April 2003

[A long-established rule of the common law is that police officers are not 'employees'. This article examines the origins of this rule, and argues that it is without proper foundation and also lacks modern support. The implications of the rule, particularly from the perspective of state-appointed police officers in Australia, are also discussed. The rule is presented as being not only inequitable, but also incompatible with state police officers' current (statutory) employment rights, including their rights under federal industrial laws. It is argued, however, that the current common law position ought to be re-examined not through further legislative reform, but through judicial intervention.]

CONTENTS I Introduction II The Current Position and It A Introduction B The Legislative Framework C The Common Law Theory of Police Employment Status 1 The 'Original Powers' Doctrine 2 The Perpetual Trustee Cases D A Preferred Approach III Some Implications of Police Employment Status A Operation of the Workplace Relations Act 1996 (Cth) 1 Industrial Disputes: Awards/Certified Agreements 2 Termination of Employment 3 The Police Federation of Australia B Contractual Remedies IV Conclusion: Redefining Police Employment Status I INTRODUCTION

It is a well-established rule of the common law that members of the police force are not 'employees'. The Privy Council made it clear as long ago as 1955, in Attorney-General (NSW) v Perpetual Trustee Co Ltd, (1) that the relationship of master and servant does not exist between the Crown and its police officers, but that police constables are independent office-holders exercising 'original authority' in the execution of their duties. Traditionally, Australian courts have had very little hesitation in applying or reaffirming this rule. (2) In more recent times, however, the general issue of police officers' employment status has been the subject of much closer scrutiny by the courts, and several judges of high authority have suggested that it may be time for a review of this apparent anomaly. (3)

In Australia, as in other common law countries, the operation of the common law rule (4) has largely been modified by statute. Largely, but not entirely. In many areas, the law has undergone significant change, ensuring that police officers enjoy essentially the same protective employment and industrial rights as regular employees. In others, however, there has either been no direct attempt to resolve the uncertainties and inequities stemming from the rule or, even where this has occurred, those uncertainties have only been partially dealt with, so that the common law theory of police employment status still gives rise to a number of potential practical problems, and still produces undesirable outcomes.

In recent years, the employment status of police officers has been an important issue in a number of contexts, including termination of employment, (5) industrial matters, (6) vicarious liability, (7) and occupational health and safety. (8) The issue has been especially significant since the High Court's decision in Re Australian Education Union,' Ex parte Victoria, (9) where it was confirmed that, in a constitutional sense, police officers are capable of being the subject of an industrial dispute. That decision was made in the context of an application, under the former Industrial Relations Act 1988 (Cth), by the organisation then representing members of the Australian Federal Police ('AFP') for consent to an alteration of its eligibility rules to allow it to represent police officers throughout Australia. This objective was ultimately achieved, leading to the establishment of the Police Federation of Australia. Importantly, however, the question of whether state police officers are not employees at common law, and therefore outside the scope of the federal Act, apparently played no part in the reasoning of the High Court in Re AEU.

It is against this background that in recent years the police authorities have been reappraising the nature of the relationship between the Crown and members of the police force. For the police unions, meanwhile, it had been hoped that the Konrad (10) case in the Full Federal Court might have provided a suitable vehicle for re-examining the rule that police officers are not employees. This, however, was not to be; the Court held that state-appointed police officers could access the federal termination provisions regardless of their status at common law.

A key purpose of this article is to consider the origins of, and reasoning behind, the common law doctrine that police officers are not employees. It is argued in Part II that the distinction drawn between police constables and ordinary Crown employees is not entirely sound, that Perpetual Trustee is open to question, and that the reasoning behind that decision was to some extent due to the judicial atmosphere in which it was made. It is also shown that we are now seeing a trend towards the recognition of police officers as both office-holders and employees, and that this view not only has a certain contemporary attractiveness but also accords with the approach that has been applied to other officeholders in Australia.

Part III of this article considers some of the implications of police officers' employment status, focusing mainly on members of the state and territory police forces. It is argued that, although the special characteristics of police service would place certain restrictions on police officers' employment entitlements, state and territory police officers could have much to gain from the establishment of a formal employment relationship. It is also suggested that this would tie in with their current employment entitlements and may even increase the effectiveness of those entitlements.

Part IV of this article considers proposals for reform. The conclusion reached is that, because of the complexity of the political issues involved, and because of the attendant technical difficulties, parliamentary intervention may only deliver partial reform and, realistically, judicial intervention is required to achieve the relevant changes to police officers' employment status.

II THE CURRENT POSITION AND ITS ORIGINS

A Introduction

The linchpin in any definitive examination of the employment status of police officers in Australia is Perpetual Trustee. (11) In that case, the Privy Council, in considering the nature of the relationship between the Crown and a member of the police force, adopted the following proposition:

there 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 ... (12) Together with the earlier decision of the High Court in this case, (13) this highly unusual pronouncement has been consistently applied and reaffirmed in numerous Australian cases, (14) including a series of recent decisions. (15) The key presumption behind it is that, unlike most other public sector workers, police officers exercise special discretionary powers which they derive directly from the law itself and not indirectly by delegation from some other source, such as a minister for police. A police officer, therefore, is the servant of no-one 'save of the law itself' and 'answerable to the law and to the law alone.' (16)

The 'original powers' doctrine is drawn from British law and tradition and is supported by the pristine view of the position of the police constable as simply 'a person paid to perform, as a matter of duty, acts which if he were so minded he might have done voluntarily.' (17) The doctrine was first introduced into Australian law in Enever v The King, (18) a vicarious liability case. Along with the leading British decision of Fisher v Oldham Corporation, (19) that case has been the subject of widespread criticism. One of the more common criticisms is that, in focusing on the inability of the Crown to 'control' police constables in the exercise of their duties imposed by law, Enever is dependent on what has now become an outdated definition of employment. (20) On first thought there seems to be a certain appeal and logic to this argument. The major difficulty with it, however, is that in the case of police constables, as with certain other officeholders to which the doctrine has been applied, it has been the absence of legal control that has been considered significant in establishing their independent status. This is to be compared to the absence of control which, in the case of highly skilled employees, for example, stems merely from the employer's physical inability to control the worker's activities. (21)

It should also be noted at this point that the basic idea that police constables exercise 'original powers' in the execution of their functions has generally not been called into question in the modern cases which have dealt with the issue of their employment status. The real issue in many of these cases, rather, has been the question of whether because police constables are entrusted with such powers, the general relation between the Crown and members of the police force is not that of employer and employee. It will be seen that across the common law world the courts have given contradictory answers to this question, and in some jurisdictions the fact that police officers are entrusted with special powers by law has not prevented them from being held to be employees. In Australia, as in Britain, however, the courts have adopted a far more restrictive approach and the long-held view, reflected in the passage quoted above from Perpetual Trustee, has been that it follows by analogy from the original powers concept that police officers are not employees.

But how, it must be asked, did the courts come to accept such a view? The main purpose of...