State of New South Wales v Fahy [2006] NSWCA 64
[33] Attention might have been directed to whether the Crown was the employer for the purposes of determining the safety of conditions of employment. Section 6 of the Vicarious Liability Act expressly states that a police officer shall be deemed to be a person in the service of the Crown “and not a servant of the Crown”. For other statutory purposes the Commissioner is deemed to be the employer: see Anti-Discrimination Act 1977 (NSW), s 4B referred to in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at [90]–[94], Spigelman CJ (Stein JA and Davies AJA agreeing). However, there is no equivalent provision in the Police Act 1990, previously known as the Police Service Act 1990. (Compare s 41, dealing with executive officers; and s 84, treating the Commissioner as the employer of non-executive officers, but only for the purposes of proceedings before a tribunal dealing with industrial matters.) In Konrad v Victoria (1999) 91 FCR 95 at [104] Finkelstein J treated a police constable as an employee of the Crown. Adopting that view, a failure to provide safe conditions of work would constitute a breach of duty by the State, not merely a breach of duty by officers for which the State was vicariously liable.