High Court of Australia|1938-05-04|Before: Evatt JJ

For the reasons which I have given the judgment of the Full Court was right and the appeal should, therefore, be dismissed.

In Shenton v. Smith[25] it was said "that, unless in special cases where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown." The appellant, who was a constable of police, contends that in relation to the police force it is otherwise provided. He bases the contention on the existence of statutory regulations providing a method of laying charges and disposing of them by means of inquiry, report to and action by the commissioner, and upon the existence of a statutory appeal to a board constituted under the Police Regulation (Appeals) Act 1923. No doubt all this was intended to increase the security of members of the police force against dismissal on ill-founded or insufficient grounds. But I doubt whether the regulations are more than administrative for the guidance of the force, and it is clear that the Police Regulation (Appeals) Act 1923 confers a right of appeal against decisions of the commissioner only. Neither rules nor statute appear to me to be directed to the control or restriction of the powers of the Executive Government. In England at common law a police constable did not hold an office in the service of the Crown. But in Australia the police force has been part of the service of the Crown. From that mere fact it follows that a police constable, like other officers, is liable to dismissal by the Governor in Council, whether with or without cause. There is nothing, in my opinion, to take police constables in the New South Wales force out of the general rule. The appellant received notice of his dismissal from the commissioner, but he gave it under the direction of the Minister, whose action was confirmed by an Order in Council. This, I consider, amounts to dismissal under the power of the Crown.

For these reasons I think the appeal should be dismissed.

Appeal from a judgment of the Supreme Court of New South Wales upon a case stated by the parties in an action in that court.

The Police Regulation Act 1899 authorized the Inspector-General of Police (now styled the Commissioner of Police, Act 1935 No. 13), subject to disallowance by the Governor, to appoint constables of police for the preservation of peace throughout New South Wales. Constables so appointed were required to take an oath prescribed in sec. 9, and every person taking and subscribing such oath was deemed to have entered into a written agreement with and was thereby bound to serve His Majesty as a member of the police force until legally discharged, provided that no such agreement should be set aside for want of reciprocity and that such agreement might be cancelled at any time by the lawful dismissal, discharge or other removal from office of any such person.

The Interpretation Act 1897, sec. 30, provides that whenever by any Act power is given to His Majesty or to any officer or person to make appointments to any office or place it shall, unless the contrary intention appears, be intended that His Majesty or the Governor, or such officer or person, shall have power to remove or suspend the person appointed.

The appellant had been appointed a police constable under the Police Regulation Act 1899.

A Royal Commission (see Act 1923, No. 29) had been issued by the Governor of New South Wales and in 1936 the commissioner reported that the appellant and other officers of police had been guilty of serious misconduct. Whereupon the Chief Secretary (the Minister administering the Police Regulation Act) directed the Commissioner of Police first to suspend the appellant and others and then, on 2nd December 1936, to dismiss them from the force. The Deputy Commissioner of Police (See Act 1933, sec. 4 (1)) dismissed the appellant and others accordingly.

On 5th February 1937, the Governor in Council confirmed the dismissal and also passed an executive minute that the appellant and others "and each and every of such members be dismissed from the police force of New South Wales." The action of the Governor in Council was communicated to the appellant by the Commissioner of Police.

The appellant then commenced an action against the respondent, as nominal defendant on behalf of the Government of New South Wales pursuant to the Claims against the Government and Crown Suits Act 1912, for wrongful dismissal. The case was stated in this action and the questions for determination were: Whether an action for wrongful dismissal lies by the plaintiff - the appellant here - against the Crown in respect of either or both of the following acts: - (a) the purported dismissal on 2nd December 1936; (b) the purported dismissal on 5th February 1937.

The appellant as a member of the police force of New South Wales was an officer in the service of the Crown. And it is now well settled that servants of the Crown hold their office during the pleasure of the Crown unless the contrary is provided by law (Shenton v. Smith[26]; Gould v. Stuart[27]; R. Venkata Rao v. Secretary of State for India[28]; Ryder v. Foley[29]).

The statutory power given to the commissioner to appoint and dismiss constables is a delegated power: it is an expeditious way, as O'Connor J. said in Ryder v. Foley[30], by which when necessity arises a constable's services with the Crown might be terminated. But it is an additional authority and in no wise cuts down the right of the Crown itself to dismiss a constable (Ryder v. Foley[31], per Barton J.).

The appellant, however, contends that he did not hold office at the pleasure of the Crown and that he could only be dismissed by a procedure which he claims is provided by the Police Regulation Act 1899 and rules made thereunder and by the Police Regulation (Appeals) Act 1923. The Police Regulation Act 1899, sec. 12, authorized the Governor to make rules for the general government and discipline of members of the police force. Under this power the Governor in Council purported to make rules relating to conditions of service and discipline of the force. They are set forth in detail in the transcript, and I shall not go through them in detail. Somewhat similar provisions have been fully considered by the Judicial Committee in R. Venkata Rao v. Secretary of State for India[32], by this court in Ryder v. Foley[33], and by the Supreme Court of New Zealand in Power v. The King[34]. All these tribunals denied that such provisions affected the tenure of office of constables or conferred any right upon them. The conclusion reached was that the provisions constituted administrative machinery necessary or desirable for the management and discipline of the police force.

The reasons assigned for the conclusion are applicable to the present case and may be found at large in the cases mentioned. But there is an additional provision relevant to this case which is contained in the Police Regulation (Appeals) Act 1923. It, by sec. 6, provides that any member of the police force, if dissatisfied with any decision of the inspector-general (now Commissioner of Police) in regard to the granting or refusal of promotion to him or the imposition upon him of any punishment where such punishment consists of the infliction of a fine, suspension or reduction whether in rank or pay, dismissal, discharge or transfer, may give notice of appeal from such decision to a Police Appeal Board constituted by the Act. The decision of the board and the report and recommendation of the Commissioner of Police must be forwarded to the Minister administering the Act to be considered by him and his decision is final. No appeal by sec. 8 lies or is permitted to any court or tribunal whatsoever and no writ of prohibition or mandamus or certiorari lies in respect thereof. All this is part of the same administrative scheme for the management and discipline of the police force and is, to adopt the words of the Judicial Committee in R. Venkata Rao v. Secretary of State for India[35], "a statutory and solemn assurance that the tenure of office, though at pleasure, will not be subject to capricious and arbitrary action, but will be regulated by rule."

The result is that both the questions stated in the case should be answered in the negative, as they were answered by the Supreme Court, and the appeal dismissed.

Under the combined effect of sec. 6 of the Police Regulation Act 1899-1935 and of sec. 30 of the Interpretation Act 1897 the Commissioner of Police may appoint and dismiss constables of police. Under sec. 12 of the former Act the Governor in Council is authorized to make rules for the general government and discipline of the police force. Under this power rules have been made which provide how charges against a member of the police force should be formulated, notified, inquired into and dealt with. The rules provide for a hearing before an officer who is to draw up his comment and state whether he finds the charge proved or not, and to submit the record to the superintendent or the commissioner. Under the Police Regulation (Appeals) Act 1923 a board is constituted called the "Police Appeal Board." From decisions of the commissioner of a disciplinary nature a constable or other police officer may appeal to this board. In particular an appeal lies against dismissal by the commissioner.

Although the procedure set out in the rules was not followed, the plaintiff appellant was dismissed from the police force, in which he held the rank of constable. This dismissal was directed by the Minister and communicated to him by the commissioner. Afterwards the dismissal was confirmed by the Governor in Council.

The plaintiff complains that he was wrongfully dismissed. He says that the rules, considered with the statutory provisions giving an appeal from dismissal by the commissioner, operate to impose conditions upon his liability to removal from office and that, as these conditions were not observed, his dismissal from the force was wrongful.

In my opinion the short answer to the plaintiff's case is that a final or residuary power of dismissal without cause belongs to the Executive Government and that his removal from office was effected by the Governor in Council. For the purposes of the case, it may be assumed in the plaintiff's favour that the rules and the statutory provisions for appeal do regulate the mode in which the commissioner's statutory power of removal may be exercised and the conditions upon which its exercise becomes finally effective. It is unnecessary to consider to what extent the assumption is valid, though plainly it is open to question whether some at least of the rules relating to charges of a disciplinary kind are not merely directory. But neither the rules nor the Police Regulation (Appeals) Act govern removal from office by the Governor in Council. No statutory provision invests the Governor in Council with a power of removing members of the police force from office. But, on the other hand, none takes it away. In my opinion the power exists. Its existence is due to the simple fact that the police force is in New South Wales a regular service of the Crown. It is a disciplined force in the service of the Crown. Unless statute otherwise provides, either expressly or by implication, those who serve in such a capacity hold office at the pleasure of the Crown. The general rule of the common law is that the King may refuse the services of any officer of the Crown and suspend or dismiss him from his office.

I do not think that, when a power of appointing and dismissing police constables is given by statute to the commissioner, this is any evidence of a legislative intention to abrogate or exclude the power or removal otherwise residing in the Crown.

For these reasons I think the appeal should be dismissed.

This appeal from the Supreme Court of New South Wales is brought to determine whether police constables hold office upon the condition that the Crown has the power to dismiss at pleasure. Such is the condition which ordinarily applies to servants of the Crown: and, to adopt the words of the Judicial Committee in R. Venkata Rao v. Secretary of State for India[36], "the question is: Does the present case fall into the general category defined and illustrated by Shenton's Case2(1895) A.C. 229.; or the more exceptional category defined and illustrated by Gould's Case3(1896) A.C. 575.?"

To support his contention that the case resembles Gould's Case[39], the plaintiff relied upon the rules made in pursuance of the Police Regulation Act 1899. By sec. 12 of that Act the Governor is empowered to make rules "for the general government and discipline" of the members of the police force. Rules were duly made. They consist of twenty sections providing, inter alia, for the distribution and organization of the force, for the enrolment, promotion and discipline of officers and for conditions of service.

It is to be noted that sec. IV. (1) (v), dealing with conditions of service, is mainly set out in descriptive or narrative form. Further, when closely examined, each condition seems rather to emphasize existing legal liabilities and obligations rather than to describe existing rights or to confer new rights. For instance, clause 1 (m) of sec. IV. states that the police are liable to punishment or dismissal in respect of a large number of matters mentioned in the rule. It is not possible to read clause 1 (m) as an exclusive specification of the causes for which punishment or dismissal may be imposed.

Sec. IX. (10) (dealing with discipline) declares that complaints against police officers should be committed to writing so that, if disciplinary action is required or intended, a definite charge will be preferred and such a procedure will be adopted as will enable the officer charged to know what is alleged against him, and to make full answer. But here again the rules refrain from employing language of command and strongly suggest that what is being done is to direct each person concerned how he is to behave and conform himself, not to give any legally enforceable right to the officer charged or to alter the contract or any part of it to which he is a party.

These prima facie conclusions from the rules are greatly reinforced by a consideration of the statute itself. Sec. 9 shows that the service of the constable is the service of the Crown. Sec. 10 makes the oath of office of a constable equivalent to a written agreement to serve the Crown from the day on which the oath has been taken until the officer has been legally discharged from his obligations. Next, sec. 10 (a) provides that the agreement is binding despite "want of reciprocity." By sec. 10 (b), the agreement may be cancelled "at any time" by the lawful discharge of the officer. The "want of reciprocity" referred to in sec. 10 (a) seems to refer to the fact that, while no member of the police force is at liberty to resign unless he gives three months' notice of such intention (sec. 18), the Crown is under no similar or analogous obligation. It seems to follow at once that the Crown may dispense with the services of the officer without any notice whatever.

It is in the setting of the above statutory provisions that sec. 12 (conferring the rule-making power) must be viewed. I think that Mr. Watt was right in arguing that Ryder v. Foley[40] turned to some extent upon the special provisions of Queensland legislation; none the less the conclusion to be drawn from the Act of 1899 is that not only does it fail to remove officers of police from the general category of Crown servants liable to be dismissed at pleasure but it provides practically conclusive evidence that they are included within the general category; further, the special disciplinary rules as to the procedure in case of charges were not intended to (and in fact could not) remove the officers of police from the general category.

Up to this point the plaintiff's case should fail. But attention must be directed to the Police Regulation (Appeals) Act 1923. Sec. 6 thereof gives every member of the police force dissatisfied with the decision of the commissioner a right to appeal to the Police Appeal Board, consisting of a District Court judge. The jurisdiction of the District Court judge includes questions of promotion and questions of punishment, including dismissal. The right of appeal is from the decision of the commissioner. After the Police Appeal Board hears the appeal, it forwards its decision to the commissioner, who transmits to the Minister all the departmental documents, including a report and recommendation of his own. The Minister is thereupon required to consider the matter, and his decision is made final. Sec. 8 provides that no appeal from a decision either of the appeal board or of the Minister or of the commissioner shall be permitted to any court whatsoever.

It is plain that this Act is of fundamental importance in the good government of the police force of New South Wales. The scheme is that while officers are deprived of all redress before the ordinary courts of law, they are given, by way of compensation, a right of access to an independent tribunal, appointed for seven years, well experienced in the exercise of judicial power, and presumably specially acquainted with the administrative problems affecting the force. It seems to contemplate that, in the first instance, the commissioner should himself give a decision and that in respect of all matters of promotion and punishment the jurisdiction of the minister - whose decision is final - should be appellate and not original. In other words, the scheme is that the officers of police who are placed under the jurisdiction of a commanding officer shall be entitled to obtain his decision upon the vital questions of promotion and punishment; and although such decision is made subject to ultimate ministerial control it is expected that the Minister will never intervene until after the appeal board has heard all parties concerned - including the commissioner - and pronounced its decision. Of course, the appeal board's decisions are not made binding upon the Minister. None the less it would be a most serious responsibility for the Minister to refuse to act upon the decision of the appeal board.

Thus, the interposition of the independent tribunal operates as a continuing guarantee to every officer in the police force. Its very existence is calculated to prevent serious injustice to individuals by making the judgment of the political officer subject to the check and safeguard of a public hearing of grievances or charges where all really concerned can be heard. By such means administrative action is controlled by open investigation before a judicial officer. The importance of the public hearing is universally recognized. And, in regard to judicial proceedings proper, Lord Shaw said: - "It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice" (Scott v. Scott[41]).

In the present case the device of direct ministerial intervention set at nought the scheme of the Police Regulation (Appeals) Act. A Royal Commission had inquired into certain matters affecting the administration of the Gaming and Betting Act and the conduct of police officers in relation thereto. It is elementary that under New South Wales law a Royal Commission exists for the purpose of investigation and report. It is not intended to be a substitute for statutory tribunals with jurisdiction over departmental officers, nor can its finding that a charge is proved have the effect accorded to the finding of a court of justice. A Royal Commission may have to embark upon a general investigation and in the course of doing so deal incidentally with dozens of so-called "charges" not specifically referred to in its terms of reference. As a result there is an absence of the safeguards which usually attend a separate investigation of each individual charge, for one case is apt to be confused with another, causing danger of injustice to individuals. When finally a Royal Commission embodies its conclusions in a report, it may choose to make findings against individuals; but such findings can never be judicial findings in the strict sense, they are merely administrative opinions.

However, by reference to the Royal Commissioner's report officers like the plaintiff were deprived of the benefits of the Police Regulation (Appeals) Act 1923. The Minister directed the commissioner to dismiss instead of allowing the commissioner to exercise his own discretion in each case. By these means the commissioner accepted no responsibility for the dismissals. Consequently, when the police officers sought to appeal to the Police Appeal Board the absence of any "decision" of the commissioner was held fatal to the jurisdiction of the board. It is very probable that such a result was never intended by the Royal Commissioner. It is quite possible that, after open inquiry, the appeal board would have reached a conclusion similar to that of the Royal Commissioner, but it is equally possible that it would have reached a different conclusion. In the latter event the final decision would have rested with the Minister, but he would have had the enormous advantage, and the officer of police concerned would have had the enormous protection, of a reasoned decision against dismissal. In my opinion, it is very regrettable that in these cases neither the Commissioner of Police nor the appeal board was allowed to fulfil the functions specified in the Act of 1923 and intended to be exercised in accordance therewith.

But the question remains whether the Police Regulation (Appeals) Act 1923 precludes the Minister or the Executive Government from terminating the plaintiff's services. Does that Act intend that except in accordance with its own scheme of appeals all questions of promotion and dismissal shall be removed from direct political control? The plaintiff is confronted with the difficulty that, prior to the Act of 1923, the Crown had the right of dismissal at pleasure and that it is quite possible that such a right can coexist with the scheme embodied in the Act. On the whole I do not think that the 1923 Act intends to interfere with decisions as to dismissal, providing that the Executive Government chooses to accept primary responsibility. The fact that the Act of 1923 preserves ministerial control only by way of final resort is not sufficient to warrant the inference that the pre-existing power of primary ministerial control by dismissal has disappeared.

Upon the admitted facts the dismissals of 2nd December 1936 and 5th February 1937 were each dismissals by the Minister acting on behalf of the Crown. Although the method of procedure adopted deprived the commissioner of his normal responsibility and stripped the plaintiff of his normal right of appeal to the independent Police Appeal Board, the dismissals were lawful and the judgment of the Supreme Court should be affirmed.

Solicitors for the appellant, P. V. McCulloch & Buggy.

Solicitor for the respondent, J. E. Clark, Crown Solicitor for New South Wales.

[1] (1906) 4 C.L.R., at pp. 435, 436.

[13] (1921) 3 K.B. 500, at pp. 503, 504.

[15] [1921] HCA 9; (1921) 29 C.L.R. 219.

[16] (1929) N.Z.L.R. 267, at p. 283.

[18] [1921] HCA 54; (1921) 30 C.L.R. 132.

[19] (1934) A.C., at pp. 178-180.

[23] (1937) L.R. 64 Ind. App. 40, at p. 53.

[24] (1935) 36 S.R. (N.S.W.) 21; 53 W.N. (N.S.W.) 1.

[25] (1895) A.C., at pp. 234, 235.

[31] (1906) 4 C.L.R., at pp. 444, 445.

Law Procedure Act 1899

South Wales Civil Service Act 1884

Deputy Commissioner of Police (See Act 1933

Regulation (Appeals) Act 1923

Commissioner of Police, Act 1935

Government and Crown Suits Act 1912

Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55 (4 May 1938)

Fletcher v Nott [1938] HCA 25;

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (2)

Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55 (4 May 1938)