See also Ruddock v Vadarlis (2001) 110 FCR 491 at 539-41 (French J).
93 In my view, these principles mean that s51 of the Act does not abrogate the common law power or its incidents merely because the power is stated in statutory form or is qualified to a degree. The nature and extent of such qualification must however be closely examined.
94 The respondent's arguments may now be addressed in turn.
95 As to (a) (annual performance review: s43), this is ultimately neutral on the present issue. It did not take place, but neither was it the basis of the respondent's removal from office. True, the respondent was removed because of the Commissioner's dissatisfaction with his performance, but that in itself provides no more than an explanation why the Commissioner recommended his removal to the Governor (cf s51(1)(a)). The legal incidents of the power conferred by s51 do not change with the context in which it is invoked.
96 As to (b) (the limited exclusion of judicial review in s44), this also takes the matter no further. As a privative clause, s44 does not preclude judicial review in the present context. But a right to seek judicial review is not the same as a proper basis for such review. Absence of procedural fairness is not inconsistent with the lawful exercise of the power to dismiss at pleasure. The respondent suggested that the amenability of the Governor's power of dismissal to judicial review indicated that the prerogative is no longer involved, but this reasoning is unhelpful if only because prerogative powers and powers vested by statute in the Governor are not on that account immune from judicial review.
97 As to (c) (the absence of an express provision purporting to preserve the common law principle), this is either circular because s51 does in fact do that, or irrelevant because the onus rests upon the respondent to point to something that clearly displaces the principle.
98 As to (d) (alternative procedures for removal), this if anything harms the respondent's case. The very fact that the Act provides by way of clear alternative (cf s51(7)) a ground for removal for cause, subject to due process and appellate rights (ss181D and Part 9, Division 1C) only reinforces the different field of operation of the power conferred by s51. The vesting of the s51 power in the Governor as distinct from the Commissioner heightens the likelihood that s51 is the statutory acknowledgement of the continuing operation of the principle, qualified only by the rights conferred by ss52-54. See also Kaye at 200; Director-General of Education v Suttling at 442 (Brennan J). It certainly means that the removal from office in this case was the act of the Crown (cf R v Wilson (1977) 19 ALR 235 at 241, 245 per Bowen CJ, Suttling at 450 per McHugh JA).
99 As to (e) (s73(3)), the argument rises no higher than an appeal to the expressio unius maxim. Such appeals seldom succeed. Section 73(3) is explicable by its own subject matter. The provision enables the Commissioner to dismiss a probationary police officer from the Police Service at any time and without giving any reason. The object of such power and the person in whom it is reposed confirm that s73(3) has nothing to say about the proper scope of s51.
100 As to (f) (the statutory term appointment effected by ss40, 41 and 61 of the Act in conjunction with the instrument of appointment), the term appointed is expressly stated to be subject to the Act which, as already indicated, is at pains to segregate contractual entitlements and statutory entitlements. The entitlement to hold the office for the specified term is expressly "subject to" the Act (s40. See also s61). This subjects the term of appointment to the (due) exercise of s51. Section 61 is particularly strong, because it includes "the terms of appointment" among the matters that must yield to "this Part".
101 The parties' substantial arguments concentrated on the terms of s51 itself. To these I now turn.
102 The respondent points to the discretionary nature of the power and the fact that it is not expressly conditioned on providing reasons as matters that heighten the importance of the requirement of procedural fairness. There is more than a hint of circularity in this submission. The submission also echoes obiter dicta of Hely J in Barratt at 618 [58] which in turn echoes the views of Professor Campbell (op cit pp20-21). I have already indicated that it is contrary to the river of High Court authority already referred to. Indeed, as long as the principle remains part of the law, the argument has the feature that it seeks to treat a statute that tracks or parallels the principle as somehow incompatible with it. This is curious to say the least. Gould does not support such an approach.
103 Considerable attention was devoted on both side to the words "at any time" in s51(1).
104 The appellant submitted that these words effectively usher in the dismissal at pleasure principle, because a power of this nature is necessarily inconsistent with any requirement of procedural fairness. Since this aspect of the common law principle, at least, is reflected in the statute, the argument that the principle has not been displaced by s51 is strengthened.
105 The respondent countered with the submission that the phrase "at any time" is far too slender a raft upon which to find a statutory incorporation of the principle, let alone a negation of the common law right to procedural fairness. To bolster the submission, the respondent pointed to the much more emphatic "for any or no reason and without notice" found in statutes, including an amendment to s51 itself, enacted after the events with which this case is concerned. Senior counsel for the respondent submitted that the phrase had work to do, but he had difficulty in identifying what it was. To say that the provision is "temporal" and indicates that wheels can be put into motion at any time (CA Tr pp55, 56) does not explain the presence of these emphatic words. I do not see them as having been inserted to deal only with the situation before or after the term fixed by the instrument.
106 I accept the appellants' submissions on this matter. It is removal that can be effected at any time, not the commencement of a process that may culminate in removal. This is in terms a right to remove without notice. It is impossible to see the utility of the words "at any time" unless they were intended to emphasise the capacity to resort to the power peremptorily (ie without compliance with procedural fairness) if perceived to be necessary in the public interest.
107 The language of s51(1) ("at any time") is the very language used for almost a century to explain one of the key incidents of the dismissal at pleasure principle (see Ryder at 449 ("at any time, and in any manner that it thinks fit" (O'Connor J); Commonwealth v Quince at 252 ("at any time without notice" (Williams J); Marks at 586 ("at will, without notice at any time" (Windeyer J); Coutts at 104 ("at any time for good or bad reasons or for none") (Wilson J); Coutts at 105 ("at any time and for any reason, or for no reason of for a mistaken reason" (Brennan J)).
108 The dismissal at pleasure principle is applicable to Crown service and its termination in circumstances such as the present. The onus rests upon the respondent to displace it. Equivocal language and circular arguments do not carry the day.
109 Next, the respondent pointed to the requirement that the Governor must act on the recommendation of the Commissioner which in turn requires the approval of the Minister for its submission to the Governor. The respondent argued that it is significant that the Governor could not act unless and until the statutory pre-conditions found in s51(1) and (1A) had been satisfied. For reasons which were never clearly enunciated, these matters were said to make the situation conceptually different from that prevailing where the Governor merely acts on the advice of the Executive Council which in turn stems from a Cabinet or ministerial recommendation.
110 I cannot see any relevant distinction. The Governor acts on the advice of the Executive Council even if that advice cannot be lawfully given without the precondition of the Commissioner's recommendation submitted with the approval of the Minister for Police. The interposition of the Minister and Commissioner is conceptually no different from the interposition of the right of appeal to the Government and Related Employees Tribunal, which this Court in Kelly held to have been engrafted upon the dismissal power, without causing its abrogation (see Kelly esp at 535-6 per Giles JA, at 557-8 per Heydon JA, at 571 per Rolfe AJA).
111 The respondent placed considerable reliance on Barratt v Howard (2000) 96 FCR 428, a decision of the Full Court of the Federal Court. Section 37 of the Public Service Act 1922 (Cth) provided for "fixed term" appointments to be effected (as in the present case) by the combined operation of the section and the particular instrument of appointment stipulating for a term not exceeding five years. One ground for an appointee being "retired from the Service by force of" s37(5) was if the Governor-General directed that the appointment be terminated on a specified day, being a day not earlier than the day on which the direction was given. The Governor-General's power so to direct was limited as to its basis (subs (7)). It was also exercisable only in accordance with advice received by the Governor-General that was consistent with a recommendation by the Prime Minister (subs (11)). The Prime Minister's power to make such a recommendation was also circumscribed by a requirement that the Prime Minister first receive a written report from named senior public servants in relation to the taking of action.
112 This statutory scheme was held to import a requirement of procedural fairness. The matter was not in issue before the Full Court and it turned, in part, upon the requirement that the Prime Minister receive (and implicitly consider) a written report about the taking of adverse action (see at 443-5). Some of the reasoning in this passage, and in the judgment at first instance of Hely J (165 ALR 605 at 613-616), provides a level of support for the respondent's argument that the dismissal at pleasure principle cannot overreach the near-universal obligation of procedural fairness as a prerequisite to the exercise of statutory powers having significant and particular adverse impact upon individuals.
113 I have not overlooked these passages in relation to my respectful disagreement with Simpson J as regards the application of Annetts. Without, I trust, being circular in my reasoning, I cannot detect the same intensity of indicators in s51 supporting the direct implication of a duty of procedural fairness. Conversely, s51 strikes me as standing in the long line of provisions affirming and applying the dismissal at pleasure principle as an opportunity of last resort to the Executive in the efficient administration of a disciplined police force. The words "at any time" suggest this. So too does the fact that Parliament has seen fit to ameliorate the impact of summary dismissal by conferring rights of return to public sector employment and of compensation (ss52, 53) upon those removed from office by the sharp hand of s51.
114 Section 53(5) declares that the person to whom the section applies (ie the one entitled to such compensation as SOORT determines) is not entitled to any other compensation for the removal from office or to any remuneration in respect of the office for any period after the removal (except remuneration in respect of a subsequent re-appointment to the office). In light of this emphatic language it is difficult to see the basis upon which damages were sought and awarded in the respondent's favour (cf Suttling (1985) 3 NSWLR 427 at 450-1 per McHugh JA). I address this issue below. Simpson J held that this preclusion did not apply because the removal was not valid under s51 (see her reasons at 86 [51]-[52]). Let that be accepted, for the moment and for argument's sake. Sections 52 and 53 (s53(5) in particular) are strong indicators that s51 is intended to restate the Crown's right of peremptory dismissal, while providing statutory modification of its otherwise harsh impact.
115 The main thrust of the appeal in Barratt related to the grounds upon which the Prime Minister could recommend the termination of a fixed term appointment to the Governor-General. The Full Court held that the statutory requirement conditioning the Prime Minister's power upon consideration of a report supported an implication that the recommendation could only be made upon substantively limited grounds. Accordingly, fixed term appointments were not held at pleasure (see (2000) 96 FCR at 448 [71]-[73]). Once again, s51 does not imply a similar limitation (contrast the Commissioner's power under s181D). Section 51 is not posited upon proven misbehaviour (cf s53(1)(b)). Removal may be effected "at any time".
116 In the section that was considered in Barratt, the substantive advice capable of being given to the Governor-General by the Executive Council is controlled by the requirement that it be consistent with the Prime Minister's recommendation, which in turn has statutory preconditions (s37(11) and (12)). By contrast, the power conferred upon the Governor by s51 of the Act requires no more than the confluence of three streams that contain no substantive content beyond being supportive of the removal from office (ie the advice of the Executive Council, the recommendation of the Commissioner and the submission of that recommendation to the Governor by the Minister for Police).
117 I would for these reasons set aside the remaining declarations and orders made by Simpson J. The respondent's peremptory dismissal from office did not involve any unlawful or invalid act on the part of the Executive even though removal from office occurred without notice and without affording the opportunity to debate the assigned cause.