LEGAL

RICHARD YATES

Partner Tindall Gask Bentley Lawyers

The ongoing legacy of William Enever

LEGAL

THE JUICY DETAILS OF THE fight resulting in the arrest of the labourer William Enever in central Hobart on 4 June 1904 are somewhat lost to history.

Newspaper clippings record there was a pub fight that occurred "under observation" of a uniformed constable appointed to the recently centralised Tasmanian police force.

The constable arrested Mr Enever for assault and breach of the peace. A police magistrate found it was a case of mistaken identity, and "the defendant really tried to stop a row, and in doing so came to blows.”

Having been acquitted of the charge, Mr Enever sued King Edward VII (although in name only; in reality, he sued the Tasmanian Government) for false imprisonment. He won, and a jury awarded him 25 pounds. The government appealed, and the case found its way to the High Court, which had only commenced its operations eight months earlier. The High Court allowed the Crown’s appeal and dismissed Mr Enever’s civil suit.

The case firmly established that, in Australian law, police officers are not employees of the state, but rather they are appointed to government office.

Why am I telling you this centuryold story now? Because the principle decided by Enever remains important to the work that police union lawyers do. The case firmly established that, in Australian law, police officers are not employees of the state, but rather they are appointed to government office. That principle, although described by the High Court as "inconvenient" in a different case 100 years later, remains good law to this day.

Parliamentary legislation has altered many of the Enever case’s practical effects. For example, the civil liability protection section 137 of the Police Act 1892 (WA) affords to police officers came about because of Enever. Section 137 is designed to be a shield and a sword; a shield to police officers against personal civil liability, and a sword to allow plaintiffs to recover damages from the state when civilly wronged rather than having to pursue police officers personally. Whether section 137 adequately achieves that is a debate for another day (hint: it certainly does not), but anyway, that is why we have section 137.

Over time other pieces of legislation have been amended to treat police officers, for certain purposes, as if they were employees. For example, police officers were deemed into the Industrial Relations Act 1979 (WA) in 2000 and the Occupational Safety and Health Act 1984 (WA) in 2003. Police officers have been deemed into the Workers' Compensation and Injury Management Act 1981 (WA), but only when they die from a workrelated injury. In each of these examples, the bringing of police into the legislation is only as far as the legislation provides. The workers compensation legislation is a good example of that partial coverage: it covers you in the afterlife but not before you get there.

The bringing of police officers into parts of employment law does not make them employees in a more general sense.

The Enever case remains important in working out things like whether an order from a superior officer is lawful and assists in understanding why decisions such as the power of arrest and commencing prosecutions are vested in the individual police officer and not their supervisors or the state generally.

When Mr Enever decided to break up that pub fight in 1904, he would have had no idea of the legacy his split-second decision would create. Mr Enever died aged 77 in Hobart in 1928, and he was survived by his wife, Emily, and their four children.