Federal Court of Australia

Ryan v Commissioner of Police, NSW Police Force (No 4) [2023] FCA 1016

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the costs of the respondents as agreed or to be assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J

1    In or around 2002, Mr Ryan, a former NSW police officer, was appointed to the status of Leading Senior Constable (LSC) within the NSW Police Force (NSWPF). That status was revoked, effective on 15 January 2015. On 17 December 2015, the applicant was medically retired from the NSWPF. The applicant alleges that the first respondent, the Commissioner of Police, NSWPF (the Commissioner) discriminated against him on the grounds of disability in contravention of s 15(2)(b) and/or (d) of the Disability Discrimination Act 1992 (Cth) (DD Act) by revoking his LSC appointment prior to his discharge.

2    On 16 February 2021, I dismissed his claim: Ryan v Commissioner of Police, NSW Police Force (No 2) [2021] FCA 106 (Ryan). The factual background of the matter is detailed in Ryan at [24]-[39]. The applicant appealed from that decision.

3    On 16 March 2022, the Full Court allowed an appeal against my decision: Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36; (2022) 290 FCR 369 (Ryan FC). In summary, the Full Court found that it was a misconstruction of cl 1.42 of the NSWPF 2014 Leading Senior Constable Guidelines (LSC Guidelines) (the clause under which the revocation was made), to conclude it mandated revocation of a LSC appointment when the preconditions set out in the clause were satisfied: Ryan FC at [203], [231]. The Full Court found that error infected the findings in Ryan as to the applicant’s claims for direct and indirect discrimination and remitted the matter for rehearing.

4    For the reasons below, the applicant’s claims fail.

The nature of the remittal

5    Prior to the substantive final hearing, the parties made submissions on the question of the scope of the remitter of this matter from the Full Court. After hearing argument, I concluded that this was a remitter pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), and pronounced that conclusion to the parties prior to the substantive rehearing. The parties agreed that the reasons for that conclusion be included in the final judgment. I now address those reasons.

6    The nature of the remitter necessarily affects the scope and nature of this Court’s task.

7    This has particular significance because the applicant wishes to rely on two further affidavits that were not before the Court at the original hearing. First, an affidavit of Michael Pont, which updates the evidence he gave at the original hearing in respect of the amount of damages claimed by the applicant. There is no objection to that evidence. Second, two affidavits of Jillian Whalebone (the Whalebone Affidavits) which, inter alia, exhibit documents produced on subpoena by State Super (the statutory trustee corporation administering the Police Superannuation Scheme under the Police (Regulation) Superannuation Act 1906 (NSW) (SAS Trustee Corporation), and correspondence between the parties. In summary, the documents appear to show that a number of police officers held their LSC status at the time of medical retirement. I address the content of those affidavits in detail below. Suffice to say at this stage that the respondents objected to the admission of this evidence.

8    The Full Court made orders pursuant to s 28(1) of the FCA Act. Relevantly, the text of that provision is as follows:

28 Form of judgment on appeal

(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:

(a) affirm, reverse or vary the judgment appealed from;

(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

(c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;

(d) set aside a verdict or finding of a jury, and enter judgment notwithstanding any such verdict or finding;

(f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or

(g) award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.

9    The terms of the remitter order in this case were that “the proceeding be remitted for rehearing”. The dispute over the scope of the remitter order arose as the Full Court did not expressly adopt the language of either s 28(1)(c) or (f) of the FCA Act.

Submissions

10    Initially, both parties agreed that the remitter was pursuant to s 28(1)(c), although there appears to have been some disagreement as to the consequence of that conclusion. However, after the applicant had filed his written reply submissions, he changed his position, and submitted that the better view was that the remitter was pursuant to s 28(1)(f). As explained by the applicant, this change occurred after he had become aware of the decision in McLoughlin v Randstad Pty Ltd [2023] FedCFamC2G 30 (McLoughlin), which he submitted I should apply. In particular, the applicant relied on a statement in McLoughlin that the words “for rehearing” were more naturally understood as intending that the proceeding be heard again. He submitted that the same conclusion was open in this matter.

11    In the alternative, the applicant submitted that if the remitter was pursuant to s 28(1)(c), that a “further hearing” does not preclude the possibility that a party could lead additional evidence and that it is unclear whether leave to reopen is necessary, citing Microsoft Corporation v CPL Notting Hill Pty Ltd & Ors (No.5) [2019] FCCA 1255 at [62]; Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105; (2022) 403 ALR 498 (Harvard Nominees) at [51]. He submitted the Full Court plainly intended that the parties would have the opportunity to have their case heard again on the basis there had been a comprehensive remitter of the entire controversy between the parties, citing Harvard Nominees at [44]. In making these submissions, the applicant relied on the Full Court’s observation that “[a] common and fundamental thread running through of [sic] the primary judge’s reasons was the finding that cl 1.42 of the LSC Guidelines mandated revocation of a LSC appointment…”: Ryan FC at [231].

12    The respondents submitted the Full Court had remitted the matter pursuant to s 28(1)(c) of the FCA Act. The respondents agreed it was a matter of characterising the content of the reasons for judgment when determining the nature and scope of the remittal power exercised, citing Addenbrooke Pty Ltd v Duncan (No 3) [2017] FCAFC 166 at [24]-[28]. The respondents submitted that in circumstances where there was only one issue that caused the decision to be set aside, and that was the discrete legal issue of the proper construction of cl 1.42 of the LSC Guidelines, there was no reason to believe the Full Court intended a “new trial”. This was in circumstances where the factual findings remained undisturbed. The respondents submitted that strongly supported the position that the primary judge upon remitter must decide whether the applicant’s claims were made out upon the existing pleadings and evidence and the undisturbed factual findings. As the “further hearing” would be conducted on the basis that it was a continuation of the first trial, the parties could only change course in accordance with well-known rules by seeking leave to reopen their case.

13    The respondents submitted that the Court in McLoughlin examined both the text of the remitter order and the reasons of the Full Court in determining whether it was an order under s 28(1)(c) or (f). In McLoughlin, the remittal for rehearing occurred in very different circumstances. The respondents further submitted the Full Court’s statement regarding the “common and fundamental thread” did not mean every finding of fact or law must be revisited. Rather, the Full Court’s intention was that this Court only determine issues flowing from the Full Court’s finding regarding cl 1.42. It was not necessary to redetermine issues that were neither challenged nor overturned on appeal.

Consideration

14    At the outset, it is convenient to refer to the principles governing matters remitted by the Full Court under s 28(1)(c) and (f) of the FCA Act.

15    The “further hearing and determination” in s 28(1)(c) is “just that, namely a continuation of a trial that has already begun, though interrupted by a final order which has been set aside”: CPSU, The Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] FCA 479; (2001) 112 FCR 324 (CPSU) at [15]; Harvard Nominees at [43]. The hearing is a continuation of the first trial before the same judge: CPSU at [17]. As a consequence, the parties can only change course in accordance with well-known rules by seeking leave to reopen their case: CPSU at [17]; Fernando v Commonwealth of Australia (No 5) [2013] FCA 901 at [51]-[62]; Harvard Nominees at [43] and [51], cf [44]; Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 at [8]. A party “is not at liberty to try the case and then seek a new hearing on the basis of issues or evidence not canvassed at trial”: Lynch, A.R. v Howard, W.J. & Ors [1980] FCA 118; (1980) 44 FLR 71 at 86.

16    In that context, it is appropriate to refer in more detail to Harvard Nominees, as the applicant relied on that decision to support his submission that, even if the remitter were pursuant to s 28(1)(c), there is some flexibility about whether to approach the hearing as a continuation of the first trial (including admitting further evidence), and questioned whether leave to reopen was required.

17    The applicant relied on [51], where Jackson J stated that:

A question may arise as to the extent to which new evidence may be adduced on the remitter.

18    Later in [51], his Honour went on to find:

…in this case there was no need to determine whether leave to reopen to adduce the new evidence was necessary, since it was adduced by agreement.

19    Plainly, this is not a case where the parties seek to adduce the Whalebone Affidavits by agreement.

20    The applicant further relied on [44]:

[44] That being so, then, subject to an obvious and important qualification, the present remitter is to be approached as a continuation of the original trial. It may have been necessary to approach it differently had it been a more comprehensive remitter of the entire controversy between the parties: see R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45 at [28]–[29]; Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 at [7], [16] (Gleeson CJ), [45] (McHugh J), [67] (Gummow & Hayne JJ).

21    As submitted by the respondents, this passage must be read in light of the passages that follow at [45]-[47]:

[45] The obvious and important qualification is that the remitter is to be conducted in light of the decision of the Full Court in which the remitter is ordered. That has at least three implications. The first is that the court on remitter must act consistently with the Appeal Judgment. That includes not only the ultimate orders made, which may give express direction to the court on remitter, but also the reasons for decision. The authorities for this basal proposition tend to be in the context of s 37 of the Judiciary Act 1903 (Cth), which imposes on courts to which the High Court remits a cause an express obligation to execute the judgment of the High Court in the same manner as if it were their own judgment: see the authorities collected by Pritchard J in Investments (WA) Pty Ltd v City of Swan [2012] WASC 278 at [35]. The power to remit under s 28(1)(c) of the Federal Court Act is not accompanied by any similar express requirement, although the different power under s 28(1)(g) is: see s 28(2). But none of the parties here suggested that this made any difference; where an appellate court, higher in the hierarchy that a primary court, determines a matter in a certain way, it must follow that the primary court cannot depart from that determination on remitter.

[46] The second implication is that where the appellate court has disturbed findings of the primary court, and therefore potentially reopened issues that the primary court had resolved, it will be open to the primary court to determine those issues afresh, once again provided that it does so in accordance with the judgment of the appellate court. This will of course include issues that are expressly within the scope of the order of remittal. No application to reopen for the purpose of determining those issues will be necessary. In relation to those issues, the court on remitter may reach a conclusion different to the one it reached the first time. It may of course be required to do so because of the findings of the appellate court.

[47] The third implication is in part a corollary of the second, and arises from the character of the remitter hearing as a continuation of the previous trial. It is that the primary court, on remitter, cannot go outside the scope of what is remitted, or reconsider any of its previous findings that have not been disturbed by the appellate court, unless it determines in accordance with ordinary principles that it is in the interests of the administration of justice to give leave to reopen.

22    The passage in [44] ought also to considered in light of [43]. I note that the Full Court dismissed an appeal from this decision: Harvard Nominees Pty Ltd v Nicoletti [2022] FCAFC 179. Jackson J accurately represents the position that applies to a remitter under s 28(1)(c). Paragraph [44], when understood in light of the cases cited therein and the paragraphs following, is not suggesting that leave to adduce further evidence is not required on a remitter pursuant to s 28(1)(c). This is so, even where the appellate court has disturbed findings of the primary court, and therefore potentially reopened issues that the primary court must determine afresh. No application to reopen for the purpose of determining those issues will be necessary: Harvard Nominees at [46]. However, in [47], his Honour expressly adopts, consistent with authority, that it is not open to a Court on a s 28(1)(c) remitter to reconsider any of its previous findings that have not been disturbed by the appellate court, without leave to reopen. Further evidence can only be adduced if leave is given to do so in accordance with the principles governing applications to reopen: Harvard Nominees at [51]. In any event, the Full Court in Fernando v Commonwealth of Australia [2014] FCAFC 181; (2014) 231 FCR 251 at [52]-[53] (Besanko and Robertson JJ, Barker J agreeing), accepted the position as explained in CPSU at [17] and set out above at [15], is correct. I am bound by that authority.

23    That said, the nature and circumstances in which the matter was remitted, and the issues to be resolved on the remitter will necessarily impact on the question of whether it is in the interests of justice to grant leave to reopen the case to permit further evidence to be led.

24    The “further hearing” in s 28(1)(c) is to be contrasted to a “new trial” in s 28(1)(f), which proceeds afresh, as if the case had never been heard before. For the purpose of a new trial, any finding in the first trial has been ‘got rid of’ and the parties are not bound by the manner in which they conducted the original trial. The parties may improve their case by leading evidence that had not been led at the first trial or by putting forward new arguments: CPSU at [11], citing inter alia, Blackstone’s Commentaries on the Laws of England (1768) vol. 3 at 391, Roe v Naylor (1918) 87 LJKB 958 at 963, Horton v Horton [1960] 1 WLR 987 at 988 and Bobolas v Economist Newspaper Ltd [1987] 1 WLR 1101 at 1104.

25    It is uncontroversial that where the Full Court’s remitter order did not expressly adopt the language of either subsection (c) or (f), regard can also be had to the reasons for judgment of the Full Court to determine the nature and scope of the power to be exercised by this Court: Addenbrooke at [24]-[28].

26    I observe also that the overarching purpose of this Court’s civil practice and procedure provisions, as articulated in s 37M of the FCA Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Although the applicant submitted that this purpose is not directly relevant to interpreting the Full Court’s orders, nonetheless, it accepted it may be relevant background to considering what was the Full Court’s intention.

27    Having regard to the remitter order and reasons of the Full Court, the better view is that it intended the remitted hearing to be a “further hearing” within the meaning of s 28(1)(c) of the FCA Act.

28    The Full Court upheld the appeal on the basis that it was a misconstruction of cl 1.42 of the LSC Guidelines to conclude it mandated revocation of a LSC appointment when the preconditions of the clause were satisfied (the Construction Error): at [203], [231]. As the respondents correctly submitted, the Full Court found I erred in concluding the Commissioner was compelled to revoke the applicant’s LSC appointment: [203]. As a result, it was an error to conclude the Commissioner “could not have “treated” the appellant less favourably than a person without the disability in circumstances that were not materially different within s 5(1) of the DD Act or “required” the appellant to comply with any requirement or condition within s 6(1) of that Act”: at [203]. The Full Court also found the error to be material to the conclusions as to direct and indirect discrimination: at [224], [230]. As explained in Ryan at [42], I have treated references to cl 21.2, being the identically termed clause in the draft version of the LSC Guidelines, as a reference to cl 1.42.

29    The applicant relies on the Full Court’s finding at [231] that this “was a common and fundamental thread running through the primary judge’s reasons” in a manner that unduly elevates its significance when the phrase is read in context, and the reasons as a whole are properly considered.

30    Aside from the Construction Error and matters affected by that conclusion, the factual findings in respect of the witnesses that are relevant to the claims of direct and indirect discrimination in Ryan are not impacted. To take a simple example, the factual findings in relation to Superintendent Glinn’s evidence, including the basis on which he concluded the preconditions in cl 1.42 were established, were not challenged on appeal, and are not affected by the Construction Error.

31    I accept the respondents’ submission that reading the orders and reasons for the decision in context, the Full Court intended that this Court only determine issues flowing from the Construction Error, but not re-determine issues that were neither challenged or overturned on appeal, nor otherwise impacted by the error. There is no logical reason to conclude otherwise. The issues to be determined flowing from the Construction Error, are whether the applicant has established his claim for either direct or indirect discrimination. Contrary to the applicant’s contention, the phrase that the error “was a common and fundamental thread running through the primary judge’s reasons”, when read in its proper context, does not mean every finding of fact or law must be revisited. This conclusion is fortified by the fact that the Full Court also resolved the one factual matter that was the subject of the applicant’s appeal (whether the preconditions of cl 1.42 were satisfied), and rejected some legal submissions advanced by the applicant (different to the error identified). This had the consequence of quelling aspects of the dispute between the parties and narrowing the issues to be determined on the remitter. In doing so, it was also apparent, as referred to above, that factual findings as to the witnesses (unaffected by the error) were not disturbed. It is in that context that the Full Court remitted the matter to the same primary judge for determination. It is also notable that the Full Court held the correct construction of cl 1.42 was the construction contended for by the applicant in the original hearing. The applicant had accordingly conducted the original hearing on that basis.

32    I note also that, subject to the evidence referred to above at [7], neither party suggested any need to present further evidence, nor that it was necessary to further cross-examine the witnesses called in the original trial.

33    There is nothing in the decision of Judge Manousaridis in McLoughlin (which was the basis for the applicant’s change in position), which is inconsistent with the conclusion above. But for McLoughlin, the applicant had submitted (it is assumed based on the Full Court’s order in the context of its reasons), that the better view was that it was a remitter pursuant to s 28(1)(c). McLoughlin simply applied the relevant principles to the circumstances of that remitter, determined by reference to the order and reasons for the judgment of the Full Court remitting the matter. It is also factually distinguishable from the present case. As a start, the order was for remittal for a rehearing before a different judge. The remittal related to the entire controversy between the parties because of deficiencies in the primary judge’s reasons for judgment. Issues of credibility were important to resolution of the dispute, with the credibility of the respondent’s decision-maker being a central issue in the hearing. That context required a different judge to determine the issues, including by observing the demeanour of that witness: see for example the summary in McLoughlin at [13]-[15]. Indeed, it is difficult to see how it could have been suggested that it was other than a remittal for a new trial pursuant to s 28(1)(f). His Honour’s observation about the natural meaning of the word “rehearing” is in that context (noting also that without that observation, the applicant had not taken that to be the natural meaning of “rehearing” in this case). The comparison between this case and McLoughlin serves to highlight that when determining the nature of a remitter, it is appropriate to consider the terms of the remitter order in the context of the Full Court’s reasons for judgment.

34    For these reasons, the better view is that the remitter is pursuant to s 28(1)(c). Consequently, the hearing was conducted with the features or limitations described above at [15], [21]-[22].

Further evidence

35    The evidence in the original hearing is listed in Ryan at [13]-[19], and is unnecessary to repeat here.

36    Given my conclusion as to the scope of the remitter, the applicant requires leave to re-open his case to adduce the new evidence. As referred to above at [7], the applicant reads an affidavit of Michael Pont, dated 16 September 2022, which updates the evidence he gave at the original hearing. There being no objection, I admit that evidence. As explained above, the argument as to the nature of the remitter was in the context of the applicant seeking to tender the Whalebone Affidavits. I turn to address the arguments relevant to reopening to adduce this evidence.

Submissions

37    The applicant relies on this evidence in relation to both his direct and indirect discrimination claims. The applicant submitted that it is relevant to assessing the less favourable treatment issue in the claim for direct discrimination, and the question of reasonableness in the indirect discrimination claim. As to why this evidence was not led at the original hearing, the applicant submitted that it was necessary to lead the further evidence in light of the Full Court’s conclusions regarding the Construction Error and that the LSC Guidelines did provide that an officer who was likely to be medically discharged may be placed in an overstrength position. He submitted the question now arising is whether the discretion in cl 1.42 was exercised less favourably towards the applicant than the comparator without his disability, and if so, whether that was ‘because of’ (or for reasons that included) the applicant’s disability. He submitted the first of these issues had not arisen to date, and the evidence is capable of rationally affecting the assessment of how the first respondent would have treated the comparator, at least. He submitted that evidence demonstrating that the first respondent had never revoked an LSC appointment in reliance upon cl 1.42 of the LSC Guidelines prior to the applicant, and that there were other LSC holders who met those criteria and were medically retired as LSCs, were both relevant to that question.

38    The respondents submitted that the applicant had sought unsuccessfully to rely on similar evidence (although at a higher level of generality) at the original hearing, being minutes of the Police Superannuation Advisory Committee (PSAC), for the purpose of establishing the applicant had been treated less favourably than the relevant comparator. The records were inadmissible: Ryan at [232]. The respondents submitted that the Whalebone Affidavits suffer from the same deficiencies as the PSAC evidence in the original hearing. The respondents also submitted that the evidence is irrelevant given the nature of the inquiry under s 5 of the DD Act, and that the applicant has pleaded a hypothetical comparator. On this view, a comparison between the applicant and other police officers would not help in determining whether the applicant was treated less favourably than a hypothetical comparator ‘in circumstances that are not materially different’: citing Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at [160]-[161]; Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at [56]-[57]; Zhang v University of Tasmania [2009] FCAFC 35; (2009) 174 FCR 366 at [66]. It submitted that it is not rational or logical to ascertain how other decision makers, in a range of potentially different circumstances, involving other police commands and other police officers with different incapacities, injuries or illnesses may have dealt with the issue, in establishing the treatment of a hypothetical comparator. The documents do not address the critical question of whether consideration was given to the revocation of the LSC status of each of the police officers. Rather, the documents are directed to a different topic: the consideration by the PSAC of the medical retirement of police officers who held LSC status. Accordingly, no reliable inferences could be drawn from the material. The respondents challenged the applicant’s assertion that production of this evidence arises because of the decision of the Full Court. The respondents submitted the applicant’s position as to relevance artificially divides the elements of causation and the hypothetical comparator exercise under the DD Act in a manner inconsistent with authority. Even if there was some probative value in the evidence, there is no persuasive basis to grant leave in the particular circumstances. The respondents also outlined the impact of the admission of the evidence on the length of the hearing and the necessity for them to obtain further evidence.

Consideration

39    It may be accepted, as the respondents contended, that the Whalebone Affidavits contain evidence on a topic very similar to the PSCAC records sought to be led in the original hearing: Ryan at [22] and [232]. In the original hearing the applicant said the evidence was relevant to the issue of a comparator as it reflected the way in which others have been treated in a relevantly similar position for the purpose of direct discrimination. It was also said to be relevant to the reasonableness of the condition and the unjustifiable hardship defence for the purpose of indirect discrimination. It may also be accepted that there is more detail in the Whalebone Affidavits than the PSAC records relied on in the original hearing.

40    In that context, I do not accept the applicant’s submission that the evidence is now sought to be relied on because of the Full Court’s findings. The relevance of the evidence now relied upon is the same as that in the original hearing, referred to in the preceding paragraph. As the respondents correctly submitted, it has always been the applicant’s case that the first respondent had a discretion over how he exercised his powers in the LSC Guidelines and that he exercised them in a manner that breached the DD Act.

41    The respondents’ submission on the impact the admission of the evidence would have on the timing and length of the hearing is of no consequence, because the respondents indicated before the substantive hearing (and resolution of this issue) that if the evidence was to be admitted, it would not seek to rely on any further evidence. The respondents did not identify any prejudice in the conduct of the proceedings if the evidence was to be admitted. The respondents’ submission as to the deficiencies in the evidence, particularly relevant to the issue of treatment of the comparator, have some force. However, as considered further below, that goes equally to what, if any, weight is placed on the evidence.

42    Evidence is relevant where, if it were accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Evidence Act 1995 (Cth). It is a relatively low bar. So much is apparent given that admissibility is determined on the basis that the evidence could have such an effect.

43    I am persuaded that the Whalebone Affidavits are relevant, and accordingly, in the circumstances of this case, that it is in the interests of justice that they be admitted, although, as explained below, there is a significant issue as to the weight that can be placed on them. I return to consider the Whalebone Affidavits in more detail below.

Full Court

44    The nature and extent of the findings of the Full Court are described above at [3] and [28]-[30], and they are unnecessary to repeat here. It suffices to observe the following matters.

45    First, the Commissioner had a discretion as to whether to revoke the applicant’s LSC status, the preconditions in cl 1.42 having been satisfied. Although this case concerns an officer who had been certified as unable to return to his pre-injury duties and was unable to undertake the inherent requirements of the position, it should be recognised that there is another circumstance where the discretion is enlivened. That is where a person has been certified as unable to return to their pre-injury duties and the person has been deployed to other suitable employment.

46    Second, relevantly, the Court concluded at [200] that:

Clause 41.2 of the Award confers a discretion on the Commissioner, and carries a necessary implication that the Commissioner will exercise that discretion when making a decision as to whether to revoke a LSC appointment. The Commissioner was not compelled by s 12 of the IR Act, cl 41.2 [sic] and cl 1.32 of the LSC Guidelines to revoke the appellant’s LSC appointment. As the Commissioner was bound under s 12 of the IR Act to comply with cl 41.2 of the Award, it should be inferred that the Commissioner exercised that discretion and, having exercised it, decided that the appellant’s LSC status should be revoked.

47    The remitted matter requires determination of the applicant’s claims applying that conclusion. Upon rehearing, the parties, as they had done in Ryan, proceeded on the tacit assumption that Superintendent Glinn, as the Commander of the Identification Services Branch (ISB), had delegated authority to revoke an LSC appointment: see Ryan FC at [187].

48    Third, there is now no issue that the preconditions of cl 1.42 were satisfied in this case. The applicant’s challenge to the conclusion that he had been certified unable to return to his pre-injury duties was rejected by the Full Court: Ryan FC at [209]. Whether the officer is unable to undertake the inherent requirements of their position, or whether the officer has been deployed to other suitable employment, the other aspects of cl 1.42, are not matters for certification by a medical or other health practitioner, but for determination by a commander: Ryan FC at [208]. The conclusion of Superintendent Glinn, not challenged on the appeal, was that the applicant was unable to undertake the inherent requirements of the position. Accordingly, the discretion to revoke the applicant’s LSC status was properly enlivened.

49    Fourth, the Full Court also rejected the applicant’s submission that whilever the applicant was on sick leave, his LSC status could not be revoked, concluding at [207]:

However, the LSC status will only necessarily be retained during any period of rehabilitation designed to return the officer to their pre-injury duties. If the officer’s injury or illness results in an inability to return to pre-injury duties, that may provide a basis for assessment as being that they are unable to meet the inherent requirements of their position. The LSC appointment may be revoked if the officer has been certified as unable to return to their pre-injury duties and is unable to undertake the inherent requirements. The appellant’s submission that his LSC status could not be revoked whilever he was on sick leave must be rejected.

50    I note that conclusion is referring, inter alia, to that aspect of cl 1.42 that provides if an LSC suffers a work related injury or illness, they will have their status maintained during any period of rehabilitation designed to return the officer to their pre-injury duties. Having been certified unable to return to pre-injury duties, there is no entitlement that the level of sick leave pay remain at an LSC level.

51    Finally, as referred to above, the Construction Error did not affect the factual findings in Ryan in respect of witnesses that are relevant to the claims of direct and indirect discrimination.

52    In that context, it is appropriate to recall the summary of the evidence of Superintendent Glinn in Ryan at [40]-[46], and see [171]-[172]. Superintendent Glinn explained that it was his decision to revoke the applicant’s LSC status, and that his reasons were set out in the letter to the applicant, dated 13 November 2014, which is referred to at [30]-[34] of Ryan. In summary, Superintendent Glinn said he had made the “decision as a consequence of [the applicant’s] inability to now fulfil the inherent requirements of the Leading Senior Constable role in the Command”. He articulated the reasons for that conclusion. I accepted his evidence: see Ryan at [171] and [172]. The content of the letter founds the applicant’s case, to which I will return.

Claims

53    The applicant claims both direct and indirect discrimination. The same conduct cannot amount to both direct and indirect discrimination: Munday v Commonwealth of Australia (No 2) [2014] FCA 1123; (2014) 226 FCR 199 at [157]; Walker v State of Victoria [2011] FCA 258; (2011) 279 ALR 284 at [28]; Abela v State of Victoria [2013] FCA 832 at [84]; Australian Medical Council v Wilson [1996] FCA 591; (1996) 68 FCR 46 (Wilson) at 55.

54    I outlined the relevant provisions of the DD Act in Ryan at [69]-[75].

Direct discrimination

55    There are two aspects to establishing direct discrimination: that the applicant was treated less favourably than a person (the comparator) without the disability in circumstances that are not materially different; and whether that less favourable treatment was because of their disability: s 5(1) DD Act, see Purvis at [213]; Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247 at [33].

Applicant’s submissions

56    The applicant pleaded a hypothetical comparator, who had the following characteristics:

(a)    A police officer appointed prior to 1 April 1988 who;

(b)     Has been appointed to a position attracting remuneration over and above the loaded salary for the substantive rank and grade held by the officer;

(c)     Has and continues to be absent from the workplace on a form of authorised paid leave for a period of some 4 ½ years;

(d)     Is the subject of an application by the Respondent under s 15B of the PRS Act for the SAS Trustee Corporation to issue a certificate under s 14 of the PRS Act, to facilitate the officer's medical retirement, such application not having yet been determined by the SAS Trustee Corporation;

(e)    Continues to be entitled to be absent from the workplace on a form of authorised paid leave until their medical retirement.

57    The applicant submitted the hypothetical comparator would not have had their LSC appointment revoked for a number of reasons. He submitted that in addition to the fact the Commander had a discretion as to whether to revoke his LSC status, there are a number of relevant matters:

(1)    information provided in answer to a subpoena to the NSWPF confirmed “that between 1 January 2014 and 15 January 2015, no police officers in the NSW Police Force (with the exception of the applicant) had their Leading Senior Constable status revoked by reason of an illness or injury in accordance with clause [1.42] of the NSW Police Force 2014 Leading Senior Constable Guidelines”;

(2)    the second Whalebone affidavit annexing documents produced by the SAS Trustee Corporation disclosed:

(i)    that between 1 January 2014 and 15 January 2015, there were at least three other officers medically retired whilst retaining their Leading Senior Constable status;

(ii)    beyond that closed period, there were details of a further 4 officers medically retired up to November 2015, including [from] general duties and specialist areas such as the Highway Patrol, who each were certified as totally unfit for extended periods prior to being the subject of medical retirement;

(iii)    more generally, the records produced by the SAS Trustee Corporation confirm there were 27 officers who held LSC appointments at the time of their medical retirement; and

(3)    there was no need for the Commander to revoke the applicant’s LSC appointment to make the appointment available for others, as he could have been placed in an overstrength position.

58    In addition, the applicant submitted he was on approved sick leave and certified fit to undertake a graded return to work plan at the time of the decision.

59    The applicant submitted in respect of less favourable treatment that it is perhaps enough that the first respondent admitted the matter referred to in [57(1)] above. Further, the question on less favourable treatment is how, on the evidence, would the comparator (which, the applicant accepted in oral submissions must be understood as having been certified as unable to return to their pre-injury duties and is unable to undertake the inherent requirements of their position), be treated. The applicant submitted there is no evidence that the comparator would have been treated in the same manner as the applicant, pointing to what he said was the failure by the respondents to adduce positive evidence in this respect. He submitted that the only available evidence is contained in the Whalebone Affidavits, and the Court must form a view of how the comparator would have been treated based on that available evidence. Accordingly, on the balance of probabilities, the comparator on paid sick leave, certified fit for a graded return to work, would not have had their LSC status revoked. The revocation of the applicant’s LSC status was less advantageous treatment than the comparator would receive. In oral submissions in respect of the Whalebone Affidavits, the applicant said even if one were to assume PSAC gave no consideration to revocation of the LSC status of the officers, that emphasised why the applicant was treated less favourably than a comparator would be.

60    The applicant submitted that there can be no doubt that at least some of the reasons for Superintendent Glinn’s decision were on the grounds of his disability, noting s 10 of the DD Act. He submitted at least one of the material reasons for the decision was the fact the applicant had been diagnosed as having a psychological disorder, and the imputation to the applicant of disability arising from that diagnosis; that is, the act of revocation was done for the reason of his disability, as defined in s 10.

Respondents’ submissions

61    The respondents took issue with the applicant’s submission. They submitted, inter alia, that the decision of the Full Court did not impact my conclusions in Ryan at [229]-[230] that the applicant had not been treated less favourably than a person without the disability in the same or materially similar circumstances. The respondents submitted that the correct construction and therefore legal effect of cl 1.42 of the LSC Guidelines was not strictly relevant to answering how Superintendent Glinn treated the complainant relative to a hypothetical comparator. This was because Superintendent Glinn made the decision based on issues that operated regardless of whether cl 1.42 compelled revocation of an officer’s LSC status.

62    The respondents submitted that the language of Superintendent Glinn’s letter indicates that he was satisfied the applicant could no longer fulfil the inherent requirements of the LSC position, as evidenced by contemporaneous reports that he relied upon. Accordingly, he was either obligated or empowered to revoke the applicant’s LSC status. Thus, even upon the Full Court’s finding that cl 1.42 conferred a discretion on Superintendent Glinn, the relevant objective facts remained the same and my conclusions with respect to less favourable treatment were not altered.

63    In respect of the appropriate comparator, the respondents submitted my consideration of the relevant circumstances to be used in identifying the correct comparator in Ryan at [171]-[172] and [225]-[228] remained the same. They submitted those objective circumstances include that the applicant was found to be unable to return to pre-injury duties and to be unable to perform the inherent requirements of the LSC position in light of his lengthy absence from work and the medical advice. Additionally, they included that Superintendent Glinn addressed each of the inherent criteria before concluding that the applicant was unable to perform the inherent functions of a LSC and did not approach the consideration on the basis that the applicant had a disability and therefore could not perform the function.

64    In respect of the Whalebone Affidavits, the respondents submitted that at the highest, the documents appear to show that a number of police officers held the status of LSC at the time of their medical retirement and did not have their LSC status revoked. As noted above when considering the admissibility of this evidence, the respondents submitted it was not rational or logical to rely on actual decisions regarding officers’ LSC status for the purposes of establishing treatment of a hypothetical comparator, given the broad range of circumstances operating in each decision. The respondents pointed to limitations of the evidence, including the failure to reveal whether the officers’ LSC status was considered by the decision makers, the material before those decision makers or the particular circumstances of each police officer. It was submitted those limitations limited the inferences that could be drawn from the material, its ability to provide the basis for actual comparators or to be meaningful for treatment of the hypothetical comparator. Moreover, by reference to the relevant statutory provisions and case law, which the respondents submitted focus on the conduct and state of mind of the actual decision maker, the respondents submitted the material in the affidavits was not relevant to how Superintendent Glinn treated the applicant and would have treated a hypothetical comparator.

65    The respondents submitted that there was no basis to demonstrate that had Superintendent Glinn interpreted the LSC Guidelines in the manner contended for by the applicant, he would have placed a hypothetical person without the applicant’s disability on paid sick leave in an overstrength position. It was said this creates a set of hypothetical circumstances that are divorced from the actual circumstances underpinning the applicant’s LSC revocation, which is precisely the approach rejected by the High Court in Purvis at [223].

66    The respondents submitted the causation question overlaps with the comparator question where a hypothetical comparator is used. It was submitted that answering the comparator question is a useful and powerful analytical tool to answer the causation question and isolate the real reason for the person's treatment, citing, inter alia, Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 (Watts) at [241]-[246] and Shamoon v Chief Constable of The Royal Ulster Constabulary [2003] UKHL 11 at [11]-[12]. On this view, an affirmative finding in respect of less favourable treatment would “more often than not determine” whether an applicant’s disability was the real reason for the less favourable treatment.

67    On the respondents’ submission, the analysis for the causation inquiry focuses on the state of mind of the actual decision maker. The respondents drew attention to my earlier finding that “Superintendent Glinn was satisfied that the applicant could no longer perform the inherent requirements of the LSC role” in Ryan at [235]. They submitted that my findings on Superintendent Glinn’s reasons for making the decision were not subject to challenge or disturbed on appeal. Once it was understood that Superintendent Glinn would not have treated the applicant less favourably than a person without his disabilities in the same circumstances, then it followed, it was submitted, that he made the decision not because of Mr Ryan’s disabilities, but because of his inability to perform the inherent requirements of the position. In oral submissions, the respondents drew a distinction between the manifestation or symptoms of a condition, and the consequences flowing from the condition, submitting that Superintendent Glinn’s reasons relied on the latter, and therefore Mr Ryan’s disability was not a reason for the decision.

Preliminary observations

68    First, during oral submissions, the respondents accepted (contrary to their written submission) that s 15(2)(d) of the DD Act applies to these proceedings: see for the meaning thereof, Ryan at [200], referring to Watts at [67]-[69]. The inherent requirements exception in s 21A does not apply to that provision. That said, the fact that a person may not be able to fulfil the inherent requirements of a position may still have some relevance, for example, as a characteristic of the comparator or as to the state of mind of the person making the decision. Moreover, depending on the circumstances, it is part of the preconditions to enlivening the discretion in cl 1.42.

69    Second, the respondents’ submission that the Construction Error identified by the Full Court did not affect the reasoning in respect of whether the applicant was treated less favourably than another without the disability in the same or not materially different circumstances is incorrect. That is not to say the conclusion is necessarily different, but rather, that the claim must be considered again, applying the LSC Guidelines as construed by the Full Court. The same is true in respect of the respondents’ submission on the impact of the Full Court’s reasons for the indirect discrimination claim, addressed later.

70    Third, the respondents’ submission that the Full Court did not impugn the LSC Guidelines themselves, may be accepted. Although the Full Court concluded that the LSC Guidelines did not have legal effect as an agreement under s 87 of the Police Act 1990 (NSW) or under the Industrial Relations Act 1996 (NSW), the LSC Guidelines represent a policy of the Commissioner in relation to the creation, operation and status of LSC positions. That includes the revocation of the status, as reflected, inter alia, in cl 1.42, bearing in mind the decision provided for in cl 1.42 is discretionary in nature.

71    As the decision is discretionary in nature, it follows that if the preconditions in cl 1.42 are satisfied, the discretion may be exercised either to revoke an officer’s LSC status, or not to.

72    Although I concluded in Ryan that on establishing the preconditions in cl 1.42, the officer’s LSC status was required to be revoked, that was not the approach taken by the decision-maker in this case. The evidence establishes that Superintendent Glinn made a decision and exercised a discretion to revoke the applicant’s status.

73    Fourth, as noted above, the applicant submitted that the only position the respondents pleaded for the element of less favourable treatment, is that revocation was mandatory on satisfaction of the preconditions. He submitted that the respondents ought not now be permitted to advance a case on the basis a discretionary decision was made, that the applicant was not treated less favourably than a comparator. To do so, he submitted, would involve a denial of procedural fairness. The respondents took issue with that contention, and with leave of the Court provided a note to chambers after the hearing with references to their approach on this topic in the original hearing. Although it is correct that the respondents did not plead on the basis of a discretionary decision, at least to some degree in the original hearing, they did advance written and oral closing submissions on this topic. Those submissions were advanced as an alternative position, in response to the applicant’s case that the decision in cl 1.42 was discretionary. That is, the respondents submitted that even if they were incorrect on the construction of cl 1.42 being mandatory, nonetheless, the applicant had not established his case. The applicant was on notice about this approach. He cannot properly contend that he is prejudiced by the approach, noting also that the applicant’s case has always been that cl 1.42 contained a discretion, and that he always had to establish his claim on that basis. Indeed, the applicant’s attempt to rely on the PSAC records in the original hearing bears that out. Further, the applicant’s submission that the respondents had not adduced positive evidence of how a comparator would be treated, while having some force, ignores that he bears the onus of establishing he was treated less favourably than the relevant comparator would be.

74    Finally, as explained above, my factual findings in relation to Superintendent Glinn’s evidence were not impacted by the Construction Error. He was the Commander in the specialist fingerprints area. He considered the applicant’s LSC status in a context where, on 13 January 2014, the applicant had emailed Acting Superintendent Andrew Sipos, who was then Commander ISB, regarding his capacity to recommence duties and enclosing a WorkCover Certificate of Capacity, dated 24 December 2013. On 29 October 2014, the applicant emailed Superintendent Glinn requesting suitable duties and enclosing a further WorkCover Certificate of Capacity, the certificates being referred to in Ryan at [174]. Although the Commissioner was applying for the applicant’s medical retirement, he made the decision about Mr Ryan’s LSC status in the context where Mr Ryan was seeking to return to work (and therefore may have returned in some capacity). The applicant’s case at the original hearing was that he was fit to return to work in a staged manner, and he had not been certified unable to return to pre-injury duties. I rejected the submission that he had not been certified unable to return to his preinjury duties: Ryan at [167] and [185]. As addressed above at [48], that finding, challenged by the applicant on appeal, was upheld by the Full Court: Ryan FC at [209].

Consideration

75    As explained above, the respondents submitted that the causation question overlaps with the comparator question where a hypothetical comparator is used, referring to Watts at [241]-[246] and Sklavos at [38]-[41], [49] and [53]. That may be practically so in some circumstances, but as both parties accepted, the questions are distinct. That is clear from Purvis at [213], where Gummow, Hayne and Heydon JJ observed:

Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability "in circumstances that are the same or are not materially different". If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not.

76    And later at [231]-[232]:

231.    …The answer to the question presented by treatment "because of" disability does not determine the separate, comparative, question which must be asked: how would the discriminator treat or have treated a person without the disability in the relevant circumstances?

232.    The Commissioner did not apply s 5(1) in the way we have described. Rather, the two separate questions we have identified as being presented by s 5(1) were elided and treated as one. ...

77    Before considering the question of less favourable treatment, it is first necessary to address the characteristics of the comparator. The principles relevant to ascertaining the comparator are discussed in Ryan at [223]-[224], and are unnecessary to repeat here.

Comparator

78    The applicant pleaded a hypothetical comparator in the terms set out at [56] above. A number of points can be made about that comparator. First, the applicant pleaded the comparator had been and continued to be absent from work, including for a period commensurate with the applicant, being about 4 ½ years. At the time of pleading, that was properly considered to be a material characteristic of the hypothetical comparator. In this hearing, the applicant did not address that characteristic as pleaded. Second, although the characteristics of the comparator include the person being on authorised paid leave, it is to be recalled from the observations above at [50], that for an LSC position, the entitlement to the LSC rate of paid leave only exists where the LSC suffers a work related injury or illness and during any period of rehabilitation to return the officer to their pre-injury duties. Therefore, once there is certification to the contrary, the entitlement does not exist. Third, at the time of the original hearing, the applicant submitted that it was not an objective feature of his circumstances, and therefore of the comparator, that the officer had been certified unable to return to his pre-injury duties or was unable to perform the inherent requirements: Ryan at [216]. Rather, as already explained, he maintained at that time that he was fit to return to his duties and he could conduct the inherent requirements of the position (and he did not want to be medically retired). As explained above at [48], that proposition has been rejected. Contrary to that position, the applicant accepted during this hearing that a characteristic of the comparator is that the person cannot fulfil the inherent requirements of the LSC position. Finally, as explained above, although the applicant was the subject of an application by the Commissioner for medical retirement, at the time of the decision the applicant was seeking to return to work, on the basis that there was evidence he was fit for a staged return.

79    In that context, in Ryan at [228], I concluded in relation to the characteristics of the comparator that:

The relevant circumstances in this case would include, but are not limited to the matters referred to above. It includes that the officer could not perform the inherent requirements of the LSC position (by reason of, inter alia, the officer does not possess the superior technical skills necessary for the position, and could not fulfil the leadership role which attended the position, for example, could not provide situational leadership, was not able to support training officers).

80    As the respondents submitted, there is no basis to alter that characterisation.

81    Although the applicant’s pleading and written submission advanced the hypothetical comparator as identified above, in oral submissions that description or the characteristics of the comparator subtly changed to became more general. That version was a person who is absent on sick leave and being referred for medical retirement because they are unable to perform the inherent requirements of the role. It was submitted on that basis, that the detail of the characteristics in Ryan at [228] do not apply, and that it is unnecessary to descend into such detail. Rather, the applicant submitted, it is sufficient that the comparator be unable to fulfil the inherent requirements of the LSC position. I do not agree with that submission. Although the applicant now accepts that being unable to fulfil the inherent requirements is a relevant characteristic, the level of generality in which he sought to now advance his case is devoid of the characteristics required for the circumstances to be the same or not materially different. The authorities make clear the importance of identifying the circumstances that are not materially different: see for example, Purvis at [223]-[225]; Watts at [250]-[253]; Izzo v State of Victoria (Department of Education and Training) [2020] FCA 770 at [57]; Zhang at [66]; Ponraj v Wycombe Services Pty Ltd [2023] FCA 118 at [107]. As illustrated in the authorities, that involves a level of granular detail. As explained in Ryan at [62] and [67]-[68], the LSC Guidelines set out the general inherent requirements of an LSC at cl 1.2, and then detail the eligibility and selection criteria depending on the area in which the LSC is to be held, which reflect different requirements. Clauses 1.3 – 1.5 address three categories of LSC, being general duties, highway patrol, and other (which relevantly includes those attached to Specialist Operations Commands, including the Forensic Services Group (FSG) in ISB). The FSG LSC Eligibility Criteria are set out in Ryan at [68], as follows:

Leading Senior Constables within the FSG are expected to provide situational leadership in the filed [sic] with a combination of the following abilities, knowledge and experience:

•    Thorough understanding of the operational aspects of the F.S.G Command Management Framework;

•    Appreciation of specific issues impacting on the nominated Section/Branch;

•    Superior Technical skills;

•    Extensive knowledge of, Specialist Field specifics, FSG and corporate policies and procedures;

•    Extensive experience in brief preparation and court presentation;

•    Extensive knowledge of operational safety issues;

•    Responsibility as a Work Place Assessor for Section/Branch training;

•    Competent with new technologies and the gathering of forensic evidence; and

•    Capacity to maintain positive and professional relationships with customers

Leading Senior Constables will work closely with less experienced Constables and provide support, mentoring and guidance in all aspects of operational situations. Leading Senior Constables will be utilised as Field Teaching Officers to supplement and support the existing Field Teaching Officers in FSG Sections/Branches.

Leading Senior Constables must be able to undertake all duties. Leading Senior Constables opportunities are intended to be provided to those who wish to further their career in FSG in the medium to long term and recognises the importance of operational experience.

82    As can be seen, the characteristics are different from those required in other areas, including relevantly, superior technical skills. Superintendent Glinn gave evidence as to the requirement for those skills: Ryan at [44]. That detail is part of the relevant circumstances of the hypothetical comparator. To a degree, the pleadings recognised the need for granular detail when identifying the comparator. For example, they included as a characteristic that the hypothetical person had been absent from work for about 4 ½ years, notwithstanding that aspect subtly changed in oral submissions to an ‘extended period’ on sick leave.

83    Although the applicant disavows that he is changing his case from a hypothetical comparator, there are aspects of his submissions that appeared to do so. The high-level general description used in oral submissions is more than just a short hand manner of describing the hypothetical comparator pleaded. It removes and omits relevant characteristics. The applicant appears to pitch the description at that general level in order that he may rely on the Whalebone Affidavits as determinative of the less favourable treatment issue.

Less favourable treatment

84    The applicant submitted that it is enough for him to establish the less favourable treatment aspect of his claim, that the first respondent admitted that between 1 January 2014 and 15 January 2015, no police officers in the NSWPF (with the exception of the applicant) had their LSC status revoked by reason of an illness or injury in accordance with cl 1.42 of the LSC Guidelines. From the evidence, that relates to three officers. The applicant’s logic is that although there is a discretion in cl 1.42, as these three officers did not have their LSC status revoked, the inference and only reasonable conclusion the Court could draw, is that Mr Ryan was treated less favourably than the comparator would be. That submission appears to proceed on the basis that those officers were in materially the same circumstances as the applicant (and therefore the comparator), based on the breadth of what the applicant ultimately contended were the characteristics of the comparator. To put it another way, because there was no revocation of the status in those three cases, it necessarily follows that if an officer’s LSC status were revoked in the same circumstances, they would have received less favourable treatment (within the meaning of the DD Act). It would also logically follow, based on the applicant’s submission, that as the applicant was treated less favourably, so would each person thereafter who had their LSC status revoked in the same circumstances. The submission fails to recognise that there is a discretion as to whether to revoke the LSC status if the preconditions are satisfied. It proceeds as if the fact of the three officers having their LSC status at the time of medical retirement is reflective of a policy that officers in that circumstance would not have their status revoked. As a result, the hypothetical comparator would not have had their status revoked. The applicant did not expressly suggest that a person in his position must not have his LSC status revoked, however that is the practical consequence of his submission. The submission, in effect, removes any discretion.

85    Given the nature of the applicant’s submission, it is appropriate to make a number of further observations about the Whalebone Affidavits. The applicant’s submission focussed on what occurred in relation to the first three officers (after the LSC Guidelines took effect). As the respondents submitted, the documents exhibited via the second Whalebone affidavit in relation to those officers relate to a different topic; being the consideration by the PSAC of whether those police officers (who held LSC status) were capable of personally exercising the functions of a police officer. This assessment was for the purpose of their applications for medical retirement. That is plainly a different task to that faced by a commander considering whether the preconditions of cl 1.42 are satisfied, and if so, whether to exercise their discretion to revoke an officer’s LSC status in a particular case. This is bearing in mind also, that as explained above, Mr Ryan was requesting to return to work, and the Commander considered his LSC status in that context. In relation to the three officers relied on, there is no evidence to show whether their relevant commanders considered cl 1.42, and if so, what material was before them, or the circumstances in which the discretion was exercised as it was. There is insufficient information about the features of their cases in the evidence relied on, with the result that no proper analysis can be conducted as to their treatment’s relevance to the hypothetical comparator. For example, there is no information about whether the officers held a specialised role, or, noting that the officers were each employed in General Duties, what, if any, specific technical expertise was required in their particular role. There is also no evidence concerning whether the officers were unable to meet the inherent requirements of the LSC position by reason, inter alia, of not possessing the superior skills necessary for the position. I note also, as explained above, the LSC Guidelines provide different inherent requirements for LSCs in General Duties to those required for the FSG LSCs, as required of the applicant. Although the respondents submitted the documents do not show the duration of the three officers’ absence from work, that is not strictly correct. What can be gleaned from the documents is that the periods are substantially less than the 4 ½ years pleaded regarding the comparator.

86    I am not satisfied that those officers are in the same and not materially different circumstances to that of the applicant. Although the applicant contends these officers are not direct comparators, he submitted they fit the description of the hypothetical comparator. That they do not do so necessarily affects the weight that can be placed on the evidence in the Whalebone Affidavits when assessing the issue of whether the applicant has established he has been treated less favourably than a hypothetical comparator.

87    Moreover, from the correspondence between the parties exhibited via the first Whalebone affidavit, which included the admission relied on by the applicant, it is apparent that the applicant had sought a broader admission relating to a longer period from 1 January 2014 to 8 September 2022, being the date of the applicant’s notice to admit. The evidence reflects that the admission was not made because the Commissioner did identify other police officers who had their LSC status revoked under cl 1.42 of the LSC Guidelines and who were on sick leave or pending medical retirement during the longer period. According to the correspondence, those officers had their status revoked under [cl 1.42] of the LSC Guidelines after 15 January 2015, but before 8 September 2022. It therefore cannot be said the position in respect of the three officers relied on by the applicant has always been applied since his LSC status was revoked. Moreover, irrespective of whether cl 1.42 was considered in relation to those three officers (which the evidence relied on by the applicant does not reveal), plainly it was considered in relation to other LSCs. In that regard, the applicant’s submission is temporal, because it focuses on the three officers who kept their LSC status during the limited time between implementation of the LSC Guidelines and before the revocation of his status. So much is apparent from the limited terms of the admission. The applicant accepted during oral submissions that if there were some occasions where the status was revoked and others it was not, that may affect the strength of his submission (although qualifying the concession by stating that he would want to know why there was a difference in some cases). It appears on the evidence that in fact, that is the situation that came to pass in the time following the applicant’s LSC status revocation.

88    In so far as the applicant relied on the broader statistics referred to above at [57(2)(ii)-(iii)], those submissions (which were principally in writing) must also be considered in that context where some LSC’s have had their status revoked. I note the documents relied on were sought by two subpoenas (one at the time of the original hearing) and were only directed to LSCs who were considered by PSAC for approval for medical retirement. The second subpoena sought further information based on the names obtained from the first subpoena. I observe that the records in relation to the further four officers retired up until November 2015 suffer, inter alia, the same limitations as the records in relation to the first three officers (with the result they are not comparators, nor meaningfully inform how a hypothetical comparator would be treated). As to the submission that 27 officers held LSC appointments at the time of their medical retirement up to 2020, that submission appears to be based on minutes of PSAC meetings. It appears the relevant number is 25, as one officer appears to have been denied medical retirement on two occasions. For 18 of those officers, the records provided even less information than in relation to those seven officers already addressed. It follows that flaws identified in the records apply with more force to those 18 officers. Further, I note that the terms of the subpoenas were not directed to the issue of LSCs who had their status revoked under cl 1.42 while on sick leave or pending medical retirement. Those flaws in the evidence bespeak the applicant’s focus on the admission referred to above.

89    At times the applicant’s submission was put on the basis that “no one was ever treated” the way the applicant was notwithstanding they were not able to meet the inherent requirements for continuing in their roles. The evidence relied on, which was directed to a discrete period of time only, and three police officers, does not provide a basis for that submission. Nor does the broader evidence referred to in the paragraph above.

90    I do not accept the applicant’s submission that the admission (referred to above at [59]) and the contents of the Whalebone Affidavits, establish that the applicant was treated less favourably than a hypothetical person without his disabilities in the same or not materially different circumstances would have been.

91    It is necessary to address three further submissions the applicant relied upon.

92    The first is the submission that one of the relevant matters is that the Commander did not need to revoke the applicant’s LSC status to make the appointment available for others, as he could have been placed in an overstrength position pursuant to s 8 of the LSC Guidelines. On this view, failing to place the applicant in an overstrength position amounted to less favourable treatment than a comparator would receive. However, placing a person in an overstrength position is discretionary: Ryan FC at [197]. The clause does not require that the first respondent take that approach.

93    The second is a submission based on the proposition that an inference can be drawn from Superintendent Glinn’s letter that revocation would not have occurred absent the applicant’s disability. Flowing from that, he submitted that ordinarily if a person was away from the police force on extended leave, they would be retrained on return, and therefore Mr Ryan was treated less favourably. There are a number of flaws with that reasoning. To mention just two, it is inconsistent not only with the characteristics of the hypothetical comparator, but also the applicant’s acceptance that the comparator cannot perform the inherent requirements of the LSC role (and there was an application for his medical retirement). Further, it is based on a submission about retraining that is inconsistent with my findings in Ryan at [45]-[46], at [178]. As noted above at [52] and [74], I accepted Superintendent Glinn’s evidence, which relevantly included the nature of the inherent requirements in the ISB and retraining required for the applicant to obtain the foundational skills of an LSC in that branch. Those findings were not affected on appeal.

94    The third is the submission based on the proposition that the applicant was on approved sick leave and certified fit to undertake a graded return to work plan at the time of the decision to revoke his LSC status. In making the submission, the applicant referred to the fact that grounds on which an LSC may be revoked include “non-performance of the inherent requirements …”: cl 1.31; or repeated failure to meet the performance standards: cl 11. The applicant referred to the LSC Guidelines requiring a mandatory “Annual Leading Senior Constable CAT Test”: Part 12. He also referred to cl 1.31, which he said is to recognise that “non-performance of the inherent requirements” could come about because of periods of leave and states that “[c]ertain types of leave are not a trigger for revocation. These leave types are detailed under Section 21 Leave”. The applicant submitted the purpose of that sentence is to confirm it is not open to a commander to identify an officer as not able to perform the inherent requirements of a position because they have been absent on sick leave. To impose a worker to a detriment because they took the benefit of an industrial instrument (such as sick leave under the Award), would have been unlawful: Industrial Relations Act 1996 (NSW) ss 210 and 213. That this part of the LSC Guidelines is designed to protect against the impact of having been absent from the workplace on sick leave, is reinforced at cl 1.42: “[t]here is no basis for an officer's performance to be assessed as unsatisfactory or not meeting the inherent requirements on the basis of the legitimate use of sick leave”. The effect of the submission is that the applicant’s LSC could not be revoked on the basis of being unable to fulfil the inherent requirements as a consequence of legitimately using sick leave.

95    That submission, which is premised on cl 1.42, was considered by the Full Court at [205]-[207]. Although referred to briefly above, it is convenient to recite that consideration in full:

205.    The appellant relies on the statement in cl 1.42 of the LSC Guidelines that, “[t]here is no basis for an officer’s performance to be assessed as unsatisfactory or not meeting the inherent requirements on the basis of the legitimate use of sick leave”. The appellant submits that this means that while he was on sick leave, the Commissioner could not revoke his LSC status on the basis that he was unable to perform the inherent requirements of the role.

206.    However, as has been discussed, the Commissioner was not bound by the LSC Guidelines and was able to exercise his discretion to revoke even if it was contrary to cl 1.42 (subject to any other legal strictures). In any event, cl 1.42 must be read with cl 1.31 which states that, “[c]ertain types of leave are not a trigger for revocation”. When cl 1.42 is read with cl 1.31, what is meant is that mere absence from work on sick leave will not of itself provide a basis for assessing an officer as not meeting the inherent requirements of the role.

207.    However, the LSC status will only necessarily be retained during any period of rehabilitation designed to return the officer to their pre-injury duties. If the officer’s injury or illness results in an inability to return to pre-injury duties, that may provide a basis for assessment as being that they are unable to meet the inherent requirements of their position. The LSC appointment may be revoked if the officer has been certified as unable to return to their pre-injury duties and is unable to undertake the inherent requirements. The appellant’s submission that his LSC status could not be revoked whilever he was on sick leave must be rejected.

96    An issue arose as to whether the relevant question for the purpose of determining less favourable treatment is how the specific decision maker, Superintendent Glinn would have treated the hypothetical comparator (as contended by the respondents), or how the first respondent would have done so (as contended by the applicant). That question does not need to be resolved. That is because, on either scenario, given the characteristics of the hypothetical comparator, I am not persuaded, on the balance of probabilities, that the applicant was treated less favourably than a hypothetical person without his disabilities in the same or not materially different circumstances would have been.

Causation

97    Given that conclusion, the next issue, whether the treatment was because of the applicant’s disability, does not arise. As the applicant has not established that he was treated less favourably than the hypothetical comparator would have been, there is no issue of causation.

Indirect discrimination

98    As explained in Ryan at [243]-[244], this aspect of the claim directs attention to s 6 of the DD Act. To establish this claim, the applicant must establish that the respondents required the applicant to comply with a requirement or condition which, because of the applicant’s disability he does not or would not comply, or is not able or would not be able to comply, and the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the applicant’s disability.

99    Unlawful indirect discrimination does not occur if the requirement or condition is reasonable, having regard to the circumstances of the case: s 6(3) of the DD Act. The burden of proving that the requirement or condition is reasonable lies on the Commissioner, as the person who required the applicant to comply with the requirement or condition: s 6(4) of the DD Act.

100    The parties agree that the reasonableness of the condition is the only issue that arises for determination on this aspect of the applicant’s claim, however in oral submissions they appeared to proceed on different understandings of the content and effects of the condition.

Applicant’s submissions

101    The applicant submitted that the finding in Ryan that there was no requirement or condition imposed (based on the Construction Error) had been overtaken, noting the Full Court’s decision at [203]. The finding in Ryan that the requirement or condition was reasonable was found to have been in error by the Full Court at [230].

102    The applicant submitted the requirement imposed upon Mr Ryan was that in order to maintain his LSC appointment he not be certified as unable to return to pre-injury duties or be unable to perform the inherent requirements of the role. On his case, having been hurt on duty he was entitled to remain on sick leave on full pay until he recovered or was the subject of medical retirement. The only effect of the requirement or condition that was imposed upon him, resulting in the revocation, was to cut the amount he was being paid on sick leave and to cut his attributed salary at medical retirement, reducing his pension entitlement as a consequence of being retired as hurt on duty. That is not a reasonable effect. He further submitted that this was not a generally applicable policy, as it had been imposed on Mr Ryan alone. Moreover, to the extent that it was imposed on other people, it had a similar unreasonable consequence for those individuals. He questioned the reasonableness of the condition in circumstances where what was sought by the Commissioner was Mr Ryan’s medical retirement. In submissions in reply, he submitted there was no requirement that the condition be one that is generally applied to a group, rather, by reference to the words of s 6 of the DD Act, he submitted it may be a condition that is required of an individual.

103    The applicant submitted the respondents had not provided any positive evidence to justify the requirement or condition being imposed upon Mr Ryan. Citing the Full Court’s reasons at [197], he submitted there was no need for the Command to revoke the applicant’s LSC appointment to make it available for others, as the applicant could have been placed in an overstrength position. Accordingly, he submitted the LSC guidelines themselves do not support the reasonableness of a requirement generally to revoke an officer’s LSC status. To the extent that maintaining Mr Ryan’s LSC status gave rise to some additional expense, that was submitted to be the consequence of his legal entitlements to remain on full pay after being hurt on duty. The applicant submitted that to the extent there was reliance placed on the need to free LSC positions, the Commissioner was not limited by the LSC Guidelines from creating more LSC positions to ensure sufficient numbers of LSCs in the force. The applicant also relied upon the Whalebone Affidavits, submitting that on any other occasion revocation of an officer’s LSC status was not seen as a necessary course of action to take.

Respondents’ submissions

104    The respondents submitted that nothing in the applicant’s submissions or the Full Court judgment disturbed the Court’s assessment of the issue of indirect discrimination in Ryan. The Full Court’s finding on the correct construction of cl 1.42 of the LSC Guidelines did not change the rationale for why the condition was imposed.

105    The respondents submitted the applicant’s case focused on the requirement or condition as it had been applied specifically to Mr Ryan in his particular circumstances. This was counter to the whole notion of indirect discrimination, which they submitted is concerned with generally applicable conditions or requirements. The respondents said the relevant requirement or condition was an exercise of discretion under cl 1.42 of the LSC Guidelines, read in the context of the entire guidelines, which might have other conditions or requirements as to when people may or may not have their LSC status retained or not retained. The guidelines represent a statement of policy and procedure by an organisation as to how that discretion is to be exercised in particular circumstances. In assessing the requirement or condition, one cannot do it in a vacuum, in isolation, by looking at how it was done in the case of Mr Ryan. One has to look at how the guidelines would have applied to all police officers.

106    The respondents submitted that the Full Court’s consideration of cl 8 of the LSC Guidelines merely stated that the Commander had a degree of discretion in certain prescribed circumstances to place a police officer who is likely to be medically discharged in an overstrength position, provided that the officer meets certain medical criteria. It said that statement did not otherwise impugn the Court’s construction of cl 8 in Ryan at [256].

107    The respondents submitted the reasonableness of the requirement or condition also has to be looked at in terms of funding for the LSC positions. In Ryan it was found there was a rational, transparent justification for why the requirement was introduced, being the need to ensure officers in supernumerary positions were not filling up available LSC roles. If operational LSC roles went unfilled as a result, that might have very serious impacts, impairing commands and LSCs’ work supervising and mentoring police officers in the field.

108    In respect of the Whalebone Affidavits, the respondents submitted that at best, the documents reveal the LSC Guidelines may have been inconsistently applied.

Consideration

109    The assessment of the reasonableness of the requirement involves an examination of the requirement. It is not concerned with the conduct of either party in relation to the application of the requirement. It is not concerned with whether the parties have acted reasonably or unreasonably, an evaluation of the correctness of the decision or whether other alternatives were reasonable: Commonwealth of Australia v Human Rights and Equal Opportunity Commission [1995] FCA 1067; (1995) 63 FCR 74 at 87; Wilson at 61; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 80 FCR 78 (Commonwealth Bank v HREOC) at 112-3; State of Victoria v Schou (No 2) [2004] VSCA 71; (2004) 8 VR 120 (Schou) at [26]-[27]. The test of reasonableness is an objective one: Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 (Catholic Education Office) at [115]. It is less demanding than necessity but more demanding than a test of convenience: Catholic Education Office at [115].

110    On the indirect discrimination aspect of the claim, in Ryan at [249] I observed that:

Whether a requirement or condition is reasonable cannot be considered in the abstract. The nature and extent of its discriminatory effect must be balanced against the reasons for the requirement including any commercial considerations; whether it is appropriate and adapted to its purpose and has a logical and understandable basis; and whether there is a less discriminatory option, including any accommodation of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory: Waters v Public Transport Corporation (1991) 173 CLR 349 at 378. These are questions of fact and degree.

111    In Ryan FC, the Full Court concluded that the Commissioner, by cl 1.42 of the LSC Guidelines, required the applicant, at least, to comply with a condition that he be able to fulfil the inherent requirements of the LSC role: Ryan FC at [202].

112    As referred to above, and as submitted by the respondents, the condition is not to be considered in isolation, but in the context of the LSC Guidelines. In Ryan at [254], I described:

The LSC is an appointment not a rank. The positions are limited per Command. The positions are subject to management by the Commander and subject to conditions reflected in the Guidelines, which themselves are subject to change. It is not necessarily a continuing position in that it is subject to conditions including yearly assessments, performance reviews, and there are circumstances where the appointment may or must be revoked. The position does not travel with the officer if the officer changes Command. It was designed to recognise the experience and skills of, and provide leadership assistance by, experienced Senior Constables.

113    Where a former LSC no longer holds that status, it results in that officer being paid at the Senior Constable rate, which is lower than the LSC rate: Ryan at [253]. That is so, regardless of the basis on which the officer no longer holds the LSC status. It is not confined to the exercise of the discretion under cl 1.42 where the officer cannot return to pre-injury duties and is unable to undertake the inherent requirements of the role. Indeed, it will also occur, inter alia, where the LSC is transferred to another location or section at their request: s 8. Nor is cl 1.42 confined to an officer who is certified unable to return to pre-injury duties and is unable to perform the inherent requirement of the position. Rather, as noted above at [45], it also applies to officers who have been deployed to other suitable employment.

114    That said, the applicant’s submission was premised on the basis that a failure to meet the condition in relation to the inherent requirements of the LSC position results in the automatic revocation of an officer's LSC status, the consequence being a cut to his pay on sick leave affecting his superannuation upon being medically retired. However, that position ignores that the failure to meet the condition simply enlivens the Commissioner's discretion to consider revocation. Accordingly, in the circumstances of this case, the applicant was required to comply with the condition that he be able to return to pre-injury duties and be able to fulfil the inherent requirements of the LSC position, in order that his LSC status not be subject to discretionary review.

115    It follows that where an officer fails to meet the condition, cl 1.42 provides for a case-by-case discretionary determination of that officer’s LSC status by the relevant commander. That determination can weigh the evidence and merits of each officer’s case. Plainly, the Commissioner’s delegate is an appropriate person to consider revocation given their knowledge of the officer’s circumstances (and the extent and impact of their inability to fulfil the inherent requirements of the LSC role), the operational needs for training, mentoring and leadership, and the existing allocation of LSCs per command. The circumstances would include the duty of care to that officer’s welfare and that of their colleagues in the NSWPF. I note also that the inability to fulfil the inherent requirements of an LSC does not mean the officer will necessarily cease working or be medically retired. That the condition enlivens a discretionary decision that may consider the full range of relevant circumstances speaks to the appropriate and adapted nature of the condition.

116    Ryan provides a discussion of the creation of the LSC position, and the policy underlying it at [59]-[68]. Under the agreement that created the position and LSC Guidelines, there is only limited funding for, and allocation of LSCs to each command (the number allocated depending on the command), and there is no capacity for a commander to increase the number of LSCs allocated to the command: cl 19.

117    As the applicant correctly submitted, part my reasoning in Ryan where I dismissed this aspect of his claim, was that a consequence of revocation is that it frees up the LSC position to be filled by another officer: Ryan at [253]. The applicant had argued then, as he did in this hearing, that the condition is unnecessary because of the ability of the commander to place the officer in an overstrength position if they are likely to be medically retired.

118    The Full Court accepted that an LSC may be moved to an overstrength position pursuant to cl 8, allowing the LSC position to be filled by another officer: Ryan FC [197]. It was not suggested otherwise in Ryan, rather, I observed that placing an LSC in an overstrength position did not mean that the supernumerary would continue to be paid at an LSC rate (a point addressed below): Ryan [147]. It can be accepted, as the applicant submitted, that the option to place an officer in an overstrength position is not limited only to officers likely to be medically discharged as a result of being hurt on duty. However, there is no requirement or obligation to move an eligible officer to an overstrength position. Rather, at its highest, it is an alternative approach that may be adopted in a given case where the discretion is enlivened, in circumstances where the LSC is likely to be medically discharged and satisfies the criteria set out in the Medical Discharge Standard Operating Procedures: LSC Guidelines cl 8. It should also be borne in mind that an officer is not necessarily entitled to retain his LSC status while he is on sick leave: Ryan FC [207]. Accordingly, as noted above at [50], while Mr Ryan may have been entitled to remain on full pay while he remained on sick leave, it was not necessarily an entitlement to remain on the LSC rate of pay.

119    The Full Court’s decision (although it was not expressly addressed), implies that contrary to the finding in Ryan, moving an officer to an overstrength position involves that person continuing to be paid at the level of an LSC. There is only limited evidence as to the funding of the LSC positions (reflecting that funding was allocated when the positions were created). Nonetheless, it can be inferred that positions are funded, and there is not an unlimited or open-ended budget for funding positions. It follows that for however long an officer is in an overstrength position, it raises the issue of funding another officer holding the newly freed LSC appointment. This is because placing an officer in an overstrength position frees up an LSC appointment, but not the funds attached to it. Plainly, that results in an additional financial burden to fill the original LSC position that becomes free. In contrast, upon having his LSC status revoked, the applicant returned to the position of Senior Constable until medical retirement, attracting a reduced rate of pay, freeing up the LSC position (and associated funding) and enabling it to be filled. Accordingly, the ability to put an officer in an overstrength position, while relevant to the assessment of the reasonableness of the condition, does not achieve the same outcome as the revocation of the LSC. That conclusion is strengthened when regard is had to the logical basis for the condition, addressed below.

120    As the applicant acknowledged, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Catholic Education Office at [88], [111], citing Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (Waters) at 394-395, 383-384 and 410; Schou at [26]. That must especially be the case where the alternative does not address the objective of the impugned condition: see for example, Waters at 395.

121    As with the original hearing, the applicant’s submission in many respects focused on his individual position, and an assertion that the consequence is unreasonable because it is unfair in his case: see above at [102]. In substance, the applicant’s position was that it was unfair that his LSC status was revoked as some other LSC’s still held their status at medical retirement, and cl 1.42 did not exist at the time he was given the LSC status. As to the second aspect, in Ryan at [257] I observed:

…That the clause did not exist in the earlier Guidelines does not suggest it was not reasonable or needed. To the contrary, that the changes were made by agreement between the Association and the Commissioner gives rise to the inference that, in light of the Guidelines as they previously operated, the changes were deliberate, necessary and appropriate. That the changes occurred after the applicant took up the position does not practically affect the assessment of the reasonableness of the condition. Although the applicant referred to that fact, he never articulated its significance to his argument in relation to his claims. It has not been suggested that the clause does not apply to him by virtue of that fact.

122    As noted above at [103], the applicant also submitted that a factor relevant to the reasonableness of the condition was that Mr Ryan was already on sick leave and already in the process of being considered for medical retirement at the time the condition was imposed on him. However, as previously explained, this decision was made in a context where the applicant was seeking a return to work.

123    In any event, as noted above, whether the condition is reasonable does not turn on whether the decision in the applicant’s case was reasonable or correct. Rather, it is the reasonableness of the requirement or condition that must be judged for the purposes of s 6(3) of the DD Act, not the reasonableness of the conduct of either party, or the decision to require the person to comply with that requirement or condition: Nojin v Commonwealth of Australia [2011] FCA 1066; (2011) 283 ALR 800 at [85]; Schou at 26. Accordingly, as the respondents submitted, the issue is not whether the exercise of the discretion has been applied consistently or fairly, rather it is the requirement or condition that needs to be reasonable. The applicant submitted, by reference to the Whalebone Affidavits, that where the condition had not been used to revoke other officers’ LSC status, that reflected on the condition’s necessity. However, the fact that three officers retained their LSC status at the time they were medically retired does not assist, particularly given the unknown circumstances as described above at [85]. Given the limitations on the evidence as previously described, it does not advance the submission that the condition that enlivens the discretion is unreasonable. Moreover, contrary to the applicant’s submission that the condition had been imposed on Mr Ryan alone, the fact that other officers had their LSC status reviewed (and some revoked) prior to medical retirement reflects that the condition enlivening the discretion has been applied to other officers.

124    A factor, perhaps a very important factor, relevant to reasonableness of a condition or requirement is whether the point of distinction adopted has a logical and understandable basis: Commonwealth Bank v HREOC at 112. The term, condition or requirement does not necessarily have to be one with which all persons or most persons agree: Wilson at 61.

125    I am satisfied, on balance, that the condition has a logical, rational and understandable basis.

126    The failure to meet the condition enlivens the Commissioner's discretion to consider revocation. The discretionary decision will be exercised in the circumstances of the case, by the commander, who is well positioned to do so.

127    As explained above, the position of LSC is an appointment, not a rank, the positions are limited per command and the number of LSC positions allocated to a command are financed. The Guidelines do not provide that the appointment to the status of LSC is necessarily indefinite.

128    A logical consequence of retaining Mr Ryan in an overstrength position on the LSC salary where funding for LSCs is finite, is that there is no funding for a replacement LSC, or if one were to be employed, the funding would have to be taken from elsewhere. In that context, it is apparent the impugned condition, by providing the commander a discretion, is also administering a policy decision to allow the financial resources of the NSWPF to be reallocated from persons who cannot perform the LSC function to the employment of those who can. Once that is understood, any less discriminatory alternative that does not enliven a discretion to revoke an officer’s LSC status (and thereby does not provide the possibility of reallocating funding), does not achieve that object of the condition. Reallocating funding from an LSC who has had their status revoked to a working LSC may be unpopular, at least for the person having the status revoked, but it has a rational basis in the finite resources and operational needs of the police force. The same analysis is an answer to the applicant’s submission that the Commissioner could have created new or additional LSC positions as needed. Moreover, when this purpose is understood, it becomes clear that contrary to the applicant’s submission, cutting the amount he was being paid on sick leave was not the only effect of the condition.

129    As outlined in Ryan at [184] and [258], it remains the case that if a consequence of placing an officer in an overstrength position is to limit the ability to employ an active LSC in a particular branch, that plainly undermines the purpose for which the LSC positions were created. Those purposes include assisting the retention of experienced officers and recognising their leadership role within a command. In those circumstances, a command would find themselves without the benefit of the situational leadership, support, guidance and mentoring an LSC provides to less experienced constables. That is reflected in Superintendent Glinn’s letter advising the applicant of the decision to revoke his LSC status, which took into account, inter alia, “the operational need to fill this “critical training role with a suitable fully operational officer within the Command as soon as possible”.

130    Having considered the nature and discriminatory effect of the condition, whether the condition is appropriate and adapted, the logical and rational basis for the condition, and in that context, the absence of a less discriminatory alternative that would achieve the same object, I am satisfied the respondents have established that the condition in cl 1.42 of the LSC Guidelines is reasonable for the purposes of s 6(3) of the DD Act.

131    Accordingly, the applicant’s claim pursuant to s 6 of the DD Act must fail.

Conclusion

132    The applicant has not established his claims. Accordingly, the proceedings are dismissed, with costs.

Associate: L Bellach

Dated:    25 August 2023