Coutts v Commonwealth

[1985] HCA 40

High Court of Australia|1971-04-19|Before: Dawson JJ, Deane J, Wilson J

View original source

At a glance

Source facts

Court

High Court of Australia

Decision date

1971-04-19

Before

Dawson JJ, Deane J, Wilson J

Source

Original judgment source is linked above.

Judgment (63 paragraphs)

[1]

These proceedings were brought to challenge the validity of the dismissal by the Governor-General of an officer of the Air Force. His appointment was terminated on medical grounds purportedly in accordance with regs. 72(1) and 628(1) of the Air Force Regulations. It is objected that the grounds prescribed by reg. 628(1) did not exist and that the power to dismiss was not exercised in conformity with the requirements of natural justice. The question (stated in the form I adopted in F.A.I. Insurances Ltd. v. Winneke [30] ) is whether "a condition imposed by the statute upon the exercise of the power, albeit an implied condition, is not fulfilled". For the reasons stated by Wilson J., I agree that the valid exercise of the power to dismiss is not conditioned upon the existence of the circumstances prescribed by reg. 628(1) or the satisfying of some requirement of natural justice. The power to dismiss an officer of the Defence Force, whether it flows from statute or the prerogative, is a power to dismiss at pleasure. That is, the power to dismiss may be exercised at any time and for any reason, or for no reason or for a mistaken reason. In point of law, an officer has no security of appointment. If the Governor-General dismisses him in the belief that he is bound to do so under reg. 628(1), however erroneous that belief may be or however inappropriate was the procedure which led to the formation of that belief, the officer loses no legal right to which he was entitled. A power to dismiss members of the Defence Force at pleasure is an exceptional, perhaps anachronistic, power nowadays, but the legislature has seen fit to leave that power undiminished. As reg. 628(1) is neither a source of the power to dismiss nor a condition affecting the exercise of that power, the present case is to be distinguished from F.A.I. Insurances Ltd. v. Winneke.

[2]

[13]

The law governing the relationship between the Crown and those in the Defence Force of this country is now largely regulated by statutory instruments in the form of Acts of the Commonwealth Parliament and Regulations made thereunder. While the provisions of those statutory instruments should be read against the background of established common law rules defining the traditional relationship between the Crown and members of the armed services (cf. The Commonwealth v. Welsh [32] ; Marks v. The Commonwealth [33] ), they must be construed according to ordinary principles of statutory construction. In particular, their meaning and effect are not to be overriden or distorted because of assumed conformity with common law rules which were developed in other times to control - or to keep outside the law - the privileges and aspirations of those who served in the military forces of the Crown or the East India Company and which reflected notions of the Royal prerogative of the command of the army which are of little or no contemporary relevance in this country. It is true that the command in chief of the naval and military forces of the Commonwealth is vested by the Constitution (s. 68) in the Governor-General as the Queen's representative. That role is, however, essentially a titular one: see Sir Ninian Stephen, "The Governor-General as Commander in Chief", graduation address at the Joint Services Staff College, Canberra, 21 June 1983. It is also true that the provisions of statutory instruments governing the appointment and service of members of the Defence Force are largely structured around powers conferred upon the Governor-General. Those powers are not, however, the ancient prerogative powers of the command of the army: see per Windeyer J., Marks [34] . They are statutory powers which are exercisable by the Governor-General with the advice of the Executive Council (Acts Interpretation Act 1901 Cth, s. 16A) and which are defined and controlled by the provisions of the statutory instruments which confer them.

[28]

There are several matters relating to the wording of reg. 628(1) of which specific mention should be made. One is that, by definition (reg. 4(1)), "member" includes "any officer". Another is that, as Jacobs J. pointed out in his judgment in the Full Court of the Supreme Court, the word "discharge" should be read as referring to a "member" who is not an officer while the word "retired" should be read as referring to an officer. A third is that, contrary to a submission advanced on behalf of the Commonwealth, the provisions of s. 628(1) are not self-executing. They do not provide that, if the specified circumstances exist, the member's service is automatically terminated. They provide that he or she "shall be retired or discharged at the earliest possible date after the opinion of the confirming medical authority has been expressed" (emphasis added). What the sub-regulation envisages is an administrative decision that the specified circumstances exist followed by subsequent administrative action retiring or discharging the member. The fourth, and most important, matter is that examination of the provisions of reg. 628(1) makes clear that they are mandatory in their nature. If the specified circumstances exist in the case of a particular officer, it is a mandatory requirement that he or she be retired. The termination of the appointment of an officer consequent upon a conclusion that the case is within the provisions of reg. 628(1) cannot properly be seen as involving the mere exercise of a discretionary power to terminate an appointment during pleasure. To the contrary, no real exercise of discretion is involved at all. If the facts of the particular case are such that it comes within those provisions, all that is involved is compliance with the requirement that the officer "shall be retired at the earliest possible date" regardless of whether other considerations might, if retirement had been discretionary and not mandatory, have balanced the scales in favour of his or her retention.

[29]

The Regulations contain no express prescription of the procedural steps to be followed in complying with the requirement that an officer to whom reg. 628(1) applies shall be retired. The appropriate procedure would appear to be termination of the officer's appointment to service in pay and transfer of his or her name to the Retired List. That is the procedure which was sought to be followed in the case of the deceased. The letter of 6 December 1979, with its reference to "Medically Unfit for Further Service" and its statement that it was not "possible" for the deceased to continue in service, plainly indicates that the conclusion was reached that the deceased's case came within the provisions of reg. 628(1) and that, that being so, it was recognized as mandatory that the deceased be retired in accordance with the requirements of that sub-regulation. The approach adopted was to retire the deceased by terminating his appointment ("in accordance with" reg. 628(1)) pursuant to the power of termination which is implicit in the provision of reg. 72(1) that an officer shall hold his or her appointment "during the pleasure of the Governor-General". It was submitted by Mr. Doyle Q.C., who appeared for the deceased on the hearing of the appeal, that that approach was mistaken in that termination of an appointment in accordance with reg. 628(1) involves the exercise of a distinct power to terminate which is implicit in the sub-regulation's requirement that the relevant officer be retired at the earliest possible date and which is different in nature from the general discretionary power implicit in reg. 72(1). While there is obvious force in that submission, it appears to me that the preferable view is that which was acted on in the case of the deceased, namely, that the provisions of reg. 628(1) operate through the power to terminate implicit in reg. 72(1). Ultimately, however, nothing turns in the present case on this point. Regardless of whether reg. 628(1) should be construed as containing an independent power to terminate an appointment in the designated circumstances or whether it should be seen as operating through the power to terminate implicit in reg. 72(1), its effect is to introduce a mandatory requirement that the appointment of an officer be terminated in any case where the designated circumstances exist. Put differently, regardless of whether reg. 628(1) operates independently or through reg. 72(1), it operates as an effective disqualification of an officer from continued service in that, where its conditions of operation are satisfied, the appointment of an officer to service in pay must be terminated as a matter of course at the earliest possible date. On either view, the question which lies at the heart of the appeal is whether the validity of a purported exercise of a power to terminate an appointment in perceived compliance with the requirements imposed by reg. 628(1) is liable to be impugned in judicial proceedings either on the ground that the particular case does not come within the provisions of reg. 628(1) at all or on the ground that requirements of procedural fairness have not been observed. Three particular considerations have been suggested as requiring, either individually or in combination, a negative answer to that question. They are: that the deceased's appointment was during pleasure, that the power to terminate it was exercisable by the Governor-General and that the deceased's appointment was to service as an officer in the Defence Force. I shall consider these particular considerations in the order in which I have mentioned them.

[30]

The fact that an appointment is during pleasure does not mean that the exercise of a statutory power to terminate it will necessarily be immune from attack even where the power is a truly discretionary one which may be exercised at any time and without reason being assigned. As Lord Wilberforce pointed out in Malloch [39] , the very possibility of dismissal without reason being given may, in some circumstances, make "it all the more important" for the person dismissed "to be able to state his case and, if denied the right to do so, to be able to have his dismissal declared void". Be that as it may however, any such immunity would logically be restricted to a termination of the appointment pursuant to the exercise of the discretionary power to dismiss at pleasure. It would not extend to a case such as the present where the statutory provisions pursuant to which the appointment is terminated operate, in a case to which they are applicable, to override the discretionary nature of the ordinary power of dismissal by requiring termination regardless of the pleasure of the person during whose pleasure the appointment is held. In such a case, the effect of the statutory provisions is to deprive the appointee of the legitimate expectation that his or her appointment will only be terminated pursuant to a discretionary decision in the exercise of which the decision-maker will be able (regardless of whether compellable) to take into account all relevant considerations, including considerations of personal circumstances and hardship. Prima facie, one would not presume a legislative intent that the person whose appointment has been terminated in purported obedience to the requirement of such statutory provisions should be deprived of the ordinary right to challenge the validity of the termination of his or her appointment on the ground that his or her case was not within the statutory provisions at all or on the ground that requirements of procedural fairness were applicable and had not been observed.

[35]

The termination of the deceased's appointment brought to an end his career in the Air Force. It deprived him of the opportunity of continuing to earn his livelihood in the manner of his choice. It was purportedly effected by the exercise of a statutory power in perceived obedience to a statutory direction. It involved the formation of an opinion by the "confirming medical authority" about the deceased's fitness or unfitness for further service and, in the light of that opinion, a decision about whether the case came within the provisions of reg. 628(1). The ordinary and strong presumption is that the requirements of natural justice are applicable in respect of the exercise of such a statutory power entailing such consequences and that the person directly and adversely affected is entitled to challenge the validity of the purported exercise of the statutory power on the ground that those requirements had not been observed or on the ground that the case was not within the relevant statutory provisions at all. There is nothing in the provisions of the Regulations which expressly negates or overrides that presumption. For the reasons which have been given, the requirements of natural justice are not excluded by reason of, or by reason of a combination of, the considerations that the deceased's appointment was during the pleasure of the Governor-General, that the power to terminate the appointment was vested in the Governor-General and that the appointment which the deceased held was to service as an officer in the Defence Force of the Commonwealth. Nor, in my view, is there any other consideration or anything in the provisions of the Regulations which has that implied effect. It follows that the requirements of natural justice or procedural fairness were applicable in respect of the termination of the deceased's appointment and that the deceased was entitled to attack the validity of that purported termination in the present proceedings on the ground that those requirements had not been observed or on the ground that the provisions of reg. 628(1) were not applicable to the circumstances of his case.

[48]

On the other hand, it was said that even if the power to terminate the plaintiff's appointment was truly a power to terminate it at will, nevertheless the procedures under reg. 628 were invoked and those procedures by implication required the application of the rules of natural justice. In other words, before any conclusion could properly be reached under reg. 628, so it was said, the plaintiff must have been given a proper hearing. Since he was denied this, his appointment is said not to have been validly terminated. In my view it is not possible to put the argument in this alternative way. If in some manner the power to dismiss at will, which is an incident of appointment during pleasure, is modified or replaced when reg. 628(1) is invoked with the result that a hearing is required as a prerequisite to a valid dismissal, then that is one thing. But it is another thing to say that, even assuming a power to dismiss at will, the application of reg. 628(1) itself nevertheless requires a hearing and the failure to afford such a hearing invalidates any subsequent dismissal consequent upon the application of that regulation. The argument in that form does not assert reg. 628(1) as a source of the power to dismiss and denies any modification of the power found by reference to reg. 72(1). But assuming that reg. 628(1) imports the requirement of a hearing, if there is a power to dismiss at will independently of that regulation, then the termination of the plaintiff's appointment must have been effective notwithstanding the disregard of any procedure which reg. 628(1) requires. Perhaps, making the same assumption, if the plaintiff had acted before any conclusion was reached under reg. 628(1), he may have been able to invoke the aid of the Court to compel some appropriate person to afford him a hearing. But upon this argument, his dismissal having taken place, it is no longer to the point to invoke that regulation, since the failure to afford a hearing pursuant to its terms cannot affect the validity of the subsequent dismissal which, ex hypothesi, was in the exercise of a power to dismiss at will which is unaffected by reg. 628(1). The dismissal cannot in those circumstances provide the foundation for the remedies which the plaintiff seeks.