That appears to be a question to be resolved by the Victorian courts in a claim for compensation brought by an injured police officer (see ‘State denies duty of care to injured policeThe Age 5 July 2014 ). In that article we are told that

The state government and Victoria Police are using an arcane legal technicality to block seriously injured police officers from suing the force for compensation, claiming they owe no duty of care to members hurt in the line of duty.

Actually the claim is not that arcane. Police officers have never been held to be employees at common law because they are appointed to the office of constable and it is up to a constable to decide, on his or her own initiative, not at the direction of others, how to perform his or her duties, that is who to arrest and when.   The office of constable is one of the oldest offices in law, dating back to the time of Henry I and long before there were recognised police forces. Lord Denning said, in R v Metropolitan Police Commissioner; Ex parte Blackburn [1968] 1 All ER 763 at 769, that a constable:

“… must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself.

“No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.”

(For a detailed history of the office of constable see The Office of Constable: The bedrock of modern day British policing (Police Federation of England and Wales, 2008)).

As far back as 1906 the High Court had to consider changes in the office of constable and they way constables were appointed and the increasing scope of their duties under legislation.   In Enever v R (1906) 3 CLR 969 Griffith CJ said:

… at common law constables had large powers necessarily incident to the discharge of their functions as peace officers or conservators of the peace, amongst which perhaps the most important was the authority to arrest on suspicion of felony. To these powers others of a like nature have from time to time been added by statutory provisions … But there is no reason for thinking that the mere statutory addition to the list of their powers altered the essential nature of those powers. It seems also to have been always accepted as settled law that … no responsibility for such[unlawful or unjustified] acts attached to those by whom he was appointed.

That is the development of modern police forces did not change the essential nature of the role of constable as an independent officer, not a mere employee who would, therefore be subject to direction and control in the performance of his or her duties. The Court (Griffith CJ, Barton and O’Connor JJ) held that the State of Tasmania was not vicariously liable for the torts of a constable as the constable was not the Crown’s servant or agent.

Today police officers, who are sworn constables, must abide by the relevant legislation that establishes the modern police force, in Victoria that’s the Victoria Police Act 2013 (Vic) (though at the time of the injuries complained of in this case the relevant Act was the Police Regulation Act 1958 (Vic)).

The issue of police employment arose in New South Wales v Fahy [2007] HCA 20. In this case Constable Fahy sued NSW alleging that the State was liable for the negligence of other police officers who, by their conduct, caused injury to her.   She alleged that the State was vicariously liable as the employer of the other officers. Kirby J in particular (but also Basten JA in the Court of Appeal) raised the question of whether or not the relationship was really an employment relationship but none of the parties to the proceeding wanted to raise that argument. Accordingly the court had to deal with the matter that the parties put into dispute.   What that means, in short, is that the State did not want to deny that they were liable for the other police even though they had been invited to do so. The case is not authority for the proposition that police are employees as the court did not decide that and it did not decide that as it was not asked to; but the issue was, at least in the mind of two judges, a very real issue.

Victoria Police or, more accurately the insurers for the State of Victoria do not seem so generous but one can’t say they are really relying on archaic law and, further, current Victorian legislation supports the claim. The Victoria Police Act 2013 (Vic) provides that the Victoria police consists of various police officers as well as Victoria Police employees confirming that police officers are not Victoria Police employees (s 7).   Although the Minister may give policy directions to the Commissioner, he or she cannot give a direction that relates to those traditional offices of constable, such as ‘preservation of the peace and the protection of life and property in relation to any person or group of persons’ and ‘enforcement of the law in relation to any person or group of persons’ (s 10).   Police officers are appointed by the Chief Commissioner (s 27), not the Crown and they are not employed in the public sector as the Public Administration Act 2004 (Vic) dealing with public sector employment does not apply to a police officer (Public Administration Act 2004 (Vic) s 106(1)(h)); compare this to the situation of police recruits who are employed (not appointed) (s 36).

The State will be vicariously liable for the torts of police by virtue of the Victoria Police Act 2013 ss 72-81. If police were employees of the Crown then these provisions would not be necessary.  All of this supports the claim that police are appointed, but not employed by the Commissioner.

If police are not employees it does not follow that ‘The Police Enterprise Agreement refers to officers as employees, so the agreement would thus be void’ and ‘No new agreement can be formed because the Fair Work Act only applies to employees’ (see ‘Cowardly Claim’ (Letter to the Editor)).   The Fair Work Act 2009 (Cth) does refer to employees and employers but it has an extended definition of the word ‘employee’. An employee includes a ‘reference to a law enforcement officer of a State …’ (ss 30E and 30P) that is police are deemed to be employees for the purposes of the Fair Work Act.  Members of Victoria Police are also deemed to be employees for the purposes of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (see s 4(3) and Schedule 1).   Provisions deeming a person to be an employee would not be necessary if the person was, in law, an employee.

All of this means that police are treated like employees, the State is vicariously liable for their torts and their work entitlements are governed by the relevant Enterprise Agreement but the State appears to want to ensure that they are not employees so they are not subject to the sort of direction that employees are. They are ensuring that police remain independent law enforcement officers that are to exercise their choice to investigate and prosecute offences, the Constable (whatever their rank) ‘is answerable to the law and to the law alone’.

As noted the current police Act is the Victoria Police Act 2013. The claims discussed in the article that stimulated this post arose under the Police Regulation Act 1958 (Vic). What, if any, the impact of the older legislation may have, and what impact the rule that police are not in fact employees will have on the alleged common law duty of care remains to be seen.