Battle to restore appeal rights

This centenary story takes us to the late 1990s when Association members waged a relentless campaign to restore their right to appeal against unfair dismissal.

“It was a good kick in the guts,” was how former Association president Phil Tunchon APM described the moment in 1996 when NSW police officers lost their right to appeal against unfair dismissal.

On 12 November 1996, the Wood Royal Commission handed down the second Interim Report, entitled Immediate Measures for the Reform of the Police Service.

Among the 12 recommendations which included drug and alcohol testing, lateral entry, integrity declarations (including partners) were two that caused the Association great alarm.

Recommendation 6 proposed abolishing the Police Board and transferring its powers relating to employment, transfer, and appointments to the Commissioner of Police. Recommendation No 5 proposed empowering the Commissioner to summarily dismiss officers in whom he had lost confidence.

With rumours swirling that legislation to severely curtail members’ entitlements was imminent, Association officials urgently met with the Police Minister Paul Whelan. He reassured the President Mr Tunchon and Secretary Mr Remfrey that it wasn’t the case.

Barely an hour after that meeting, the Minister tabled the Police Service Further Amendment Bill 1996 in Parliament.

This meant the Commissioner could serve an officer with a notice indicating the loss of confidence in the police officer’s suitability to continue in the force and they would have no recourse to appeal that decision, except on limited administrative law principles.

“That was a good kick in the guts and we went hard. I went particularly hard,” Phil recalled in an interview with Ted Bassingthwaighte on 31 July 2019.

After holding an emergency Executive meeting on 12 November, the PANSW initially attempted to stop the legislation from passing. The Association sought and received the support of Unions NSW (then NSW Labor Council) whose President Mr John Whelan, was the brother of the incumbent minister.

Senior Association staff lobbied politicians of all persuasions, arguing that the process had been flawed given the breakneck speed with which the legislation had been introduced.

These efforts and solid lobbying won a brief reprieve. Unfortunately, Labor caucus endorsed the legislation and the Police Legislation Further Amendment Act 1996 was passed on 27 November 1996. This served to increase the Association’s determination to restore appeal rights.

Not only was the Association outraged that police were denied their fundamental rights, but there was also a sense of betrayal.

In the two years prior, the Association had participated in the Royal Commission round table discussions and provided detailed written submissions on important work-related issues. Since July 1996, an Association representative had been seconded to the Royal Commission Implementation Unit.

Members were aghast that in the face of such hands-on involvement the royal commission had resorted to a punitive course of action. 

VOTING WITH THEIR FEET

The Association immediately launched a multi-faceted campaign involving television and newspaper advertising, lobbying of politicians as well as seeking legal advice.

The rally in the Domain was attended by 2,500 PANSW and Commissioned Officers members and Police union officials from every Australian state and territory.

Surmounting numerous logistical challenges—US President Bill Clinton was visiting Sydney at the time—a mass rally was organised virtually overnight.

An estimated 2,500-3,000 police and supporters attended a mass meeting in The Domain on 20 November 1996, a great effort considering the Commissioner had directed Police not to attend on duty or in uniform.

Not only did the rally send a clear message to the government, members voted unanimously to pass several motions at the Sydney meeting. This culminated in industrial action in the form of work-to-Commissioner’s-Instructions around the state.

Mass meetings were held in Lismore, Dubbo, Wagga Wagga and Goulburn. The support of country police, many of whom travelled extraordinary distances generate community support for their cause.

Sydney’s mass meeting was significant for two reasons. It marked the first occasion the then separate Commissioned Police Officers Association (CPOA) joined forces with the PANSW on an industrial issue.

(The two unions amalgamated in 1999.) Secondly, momentary ill-discipline at the rally threatened to derail our campaign. What happened was that after the rally was over, members were invited to march from The Domain to Parliament House in Macquarie Street.

A good number did so and standing in front of Parliament House they chanted, “Support honest cops,’’ and “We want justice”. Then came a brief chant from a small group stating, “Send the pommy back”.

Association officials acted quickly to disperse the crowd but not before the media seized on it. The issue dominated headlines for days afterward.

“We were absolutely pilloried, not just by the media,” Mr Tunchon recalled.

“A lot of our members, who hadn’t come to the march were ringing the office and letting it be known that we’d overstepped the mark.”

Since the beginning of the Wood Royal Commission, sections of the media had been in a feeding frenzy. Following the Sydney rally, severe criticism was directed at the Association for its purported defence of corrupt police.

Contrary to the media hype, the fundamental right of appeal, available to every other worker in the state, was one of the main issues that led police to form an association in 1920. 

CANDOUR OVER SECRECY

The founders and leaders of the early Association cut their industrial teeth campaigning for a Police Appeals Board to be created.

At the time NSW Police were deeply dissatisfied with the lack of transparency in the system of promotions, and methods of dismissal and disciplinary action. They wanted an independent tribunal and an end to unjust decisions based on anonymous complaints where officers had been condemned without a fair hearing.

One of over 100 motions passed at the first Police Association conference called for the Police Regulations to be amended so that, “All anonymous letters referring to members of the Police Force should be ignored, and the communications handed to the members concerned and left to their discretion as to their disposal.”

After much dint and persuasion, the Police Appeals Act came into being on 1 January 1924.

The Police Association’s 1924 annual report called it “the crowning achievement of a strenuous year.”

This paved the way for the Police Appeal Board to which Judge White was appointed as chairman, alongside assessors Mr J T Moylan (Association representative) and Mr Spryer. Hearings commenced on 29 May 1924.

Given that history, Association members were not going to cede these rights in the Nineties without a fight. 

SUPPORT HONEST COPS

In the days following the Sydney rally, the Association refocused its efforts to restore appeal rights to Police. On 3 February 1997, a massive campaign was launched at the Justice and Police Museum.

The message articulated by the “Support Honest Cops” campaign was that the vast majority of NSW police were honest and deserved fair and just treatment.

Association members letterboxed their neighbourhoods and stood outside major railway stations during peak hours handing out information about the campaign. Former President of the Association Ian Ball and Treasurer Luke Hannon daringly hung banners across major highways to highlight the issue for commuters.

In their off-duty hours, Association members visited or wrote to local Members of Parliament explaining the ramifications of the legislation.

They wrote letters to local newspapers. They attended Association branch and district meetings, thus maintaining a coordinated approach and maximise pressure on the government. 

ON-AIR PROMISE

On 26 November 1996, Premier Bob Carr made a promise on 2UE radio. He said, “In March next year I say to Police, there will be a reinstatement of an appeal process that will meet their need for industrial fairness.”

Whilst welcoming these comments, the Association continued its pressure on politicians while seeking legal advice as to the appropriate way to achieve its objective. The PANSW participated in further Royal Commission Round Table Conferences as well as the Minister’s Working Party.

Subsequently, a Ministerial Working Party on Appeal Rights produced a report for the Royal Commission, which formed the basis for the Police Service Amendment Bill. The Bill was passed unanimously by both houses. It became law on 27 June 1997 thereby granting all Police to access the Industrial Relations Commission on dismissal.

Mr Tunchon recalled, “From the day we lost our appeal rights until they were reinstated — just a little over six months— it was an outstanding achievement, given the climate.”

The campaign to restore appeal rights was a tumultuous chapter in our history, which unified members of the Association and ultimately left it in a stronger position.