Jarratt v Commissioner of Police

[2005] HCA 50

High Court of Australia|2005-09-08|Before: Heydon JJ

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Source facts

Court

High Court of Australia

Decision date

2005-09-08

Before

Heydon JJ

Source

Original judgment source is linked above.

Judgment (345 paragraphs)

[1]

The applicant was appointed (in fact, re-appointed) to the office of Deputy Commissioner on 5 February 2000 for a term of five years. He was removed on 12 September 2001, with effect from 14 October 2001. The removal was by the Governor of New South Wales, acting under s 51 of the Police Service Act 1990 (NSW)[1] ("the Act") upon a recommendation of the Commissioner (pursuant to s 51(1)(a)) submitted with the approval of the Minister for Police (pursuant to s 51(1A)). The removal was said in a media release from the Commissioner to be on the ground of "performance", by which was obviously meant non-performance. The applicant complained that he was given no opportunity to be heard on the substance of any criticisms of his performance before a recommendation was made that he be removed. Whatever room there might have been for factual argument about that matter, no such argument was advanced on behalf of the respondents in these proceedings. Rather, their case was simply that the applicant was not entitled to such an opportunity.

[2]

The facts, and the history of the litigation, are set out in the reasons of McHugh, Gummow and Hayne JJ. At first instance in the Supreme Court of New South Wales, Simpson J[2] held that there had been a denial of natural justice to the applicant, that his purported removal was invalid, that his discharge from the Police Service constituted a repudiation of his contract of employment, and that (after allowing for compensation that had already been paid to him) he was entitled to damages in the sum of $642,936.35. The Court of Appeal reversed the decision of Simpson J, holding that the applicant had not been entitled to a hearing by the Commissioner before recommending removal, and that his removal was valid and effective.

[8]

To say that an office is held at pleasure means that whoever has the power to remove the office-holder may exercise that power at any time, and without having to provide, either to the office-holder, or to a court examining the decision to remove, any justification of the decision[14]. No period of notice, and no justification or cause for removal, is required by law[15]. No fault or incapacity of the office-holder, or other compelling circumstance, need be shown. The corollary has generally been taken to be that such an officer has no right to be heard before removal. In Ridge v Baldwin[16], Lord Reid gave as the explanation that, if the person with power to remove is not bound to give a reason to the office-holder, then there is nothing for the office-holder to argue about, and if a court cannot require the person to give a reason to the court, then there is no way in which the court can determine whether it would be fair to hear the officer's case before taking action. That explanation may call for further examination. Lord Reid also pointed out that, as a practical matter, when an office-holder is removed, a reason will commonly be given. The facts of the present case illustrate why that is so. The removal of a Deputy Commissioner of Police is a public event. The applicant was not removed without explanation. The public were told that the applicant's performance was unsatisfactory. This was bound to have an adverse effect on the applicant's reputation. In its nature, it is a charge that a person might wish to answer. Any answer the applicant gave would almost certainly have gone before the Minister, and the Governor, and would probably have become public. The Governor-in-Council would act on the Minister's advice, but, in the circumstances of a case such as the present, it would be wrong to assume that there could be no purpose in giving the office-holder an opportunity to be heard. Furthermore, in Malloch v Aberdeen Corporation[17], Lord Wilberforce pointed out that the rigour of the "at pleasure" rule may make it all the more important, in some circumstances, for a person whose career, or pension rights, may be affected, to have an opportunity to state his or her case. His Lordship went on to say that, while courts will respect the right, for good reasons of public policy, to dismiss without assigned reasons, this should not prevent them from examining the statutory framework and the context to determine whether there is a right to be heard.

[14]

Part 4 of the Act deals with the Commissioner, who is to be appointed by the Governor on the recommendation of the Minister (s 24). Subject to the Act, the Commissioner holds office for such period, not exceeding five years, as is specified in the instrument of appointment. The term is renewable (s 26). The employment of the Commissioner is governed by a contract of employment between the Commissioner and the Minister, and a number of the later provisions relating to executive officers also apply to the Commissioner (s 27). The Governor may remove the Commissioner from office on the recommendation of the Minister. Such a recommendation may be made only after the Minister has given the Police Integrity Commission a reasonable opportunity to comment on the proposed recommendation (s 28). Section 28 provides the exclusive basis for removal of the Commissioner (s 28(8)). It provides two substantial modifications of what would have been the position at common law. First, while the Commissioner's contract of employment is with the Minister, it is the Governor, acting on the recommendation of the Minister, who has the power of removal. This means, of course, the Governor-in-Council. Secondly, the Minister's power to make a recommendation is fettered by the need to notify the Police Integrity Commission of what is proposed and to give that Commission an opportunity to comment. The removal of a Commissioner of Police would almost certainly be accompanied by wide publicity. That practical consideration, coupled with the need to inform the Police Integrity Commission, and bring the matter before the Governor, seems to make it likely that, in most cases, a reason for a removal recommendation would exist and be made public. There is nothing in the Act that says that the Commissioner may be removed only for breach of contract or incapacity. Even so, the procedure that must be followed makes it practically certain that the Minister would seek to justify the recommendation for removal. The provisions of the Act which deal with the Commissioner are not directly relevant, but they form part of the statutory context. It would be odd if the requirements of natural justice were to apply to the removal of a Commissioner but not to the removal of a Deputy Commissioner.

[136]

"53 Compensation where executive officer has no right to return to public sector > > (1) This section applies to: > > (a) an executive officer who is removed from office under section 51 and who ceases to be an executive officer as referred to in section 51(4), or > > (b) an executive officer who is otherwise removed from office (except for misbehaviour after due inquiry), or > > (c) (Repealed) > > (d) an executive officer who was employed in the public sector when first appointed as an executive officer, whose term of office as an executive officer expires and who is not re-appointed, > > being a person who is not entitled to be engaged in the public sector under section 52. > > (2) A person to whom this section applies is entitled to such compensation (if any) as the Statutory and Other Offices Remuneration Tribunal determines. > > (3) The Statutory and Other Offices Remuneration Tribunal: > > (a) may determine that compensation is payable for the failure to re-appoint an executive officer only if the Tribunal is satisfied that the person had a reasonable expectation of being re-appointed, and > > (b) must have regard to any general directions given to the Tribunal by the Minister administering the Statutory and Other Offices Remuneration Act 1975 as to the matters to be taken into consideration when it makes determinations under this section. > > (4) The maximum compensation payable is an amount equal to the person's remuneration package for the period of 38 weeks. > > (5) The person is not entitled to any other compensation for the removal or retirement from office or for the failure to re-appoint the person or to any remuneration in respect of the office for any period afterwards (except remuneration in respect of a subsequent re-appointment to the office). > > (6) An executive officer who is removed from office or not re-appointed is not entitled to compensation under this section if: > > (a) the person is appointed on that removal or expiry of the term of office to another executive position, and > > (b) the remuneration package for the holder of that position is not less than the remuneration package for the holder of the former position. > > (7) If the Statutory and Other Offices Remuneration Tribunal determines that compensation is payable under this section, it must, in its determination, specify the period to which the compensation relates. > > (8) The person may not be engaged in the public sector during the period so specified, unless arrangements are made for a refund of the proportionate amount of the compensation."

[145]

"Some of the reasoning in early cases applying the dismissal at pleasure principle turned upon the absence of any contractual relationship, or the designation of the contract as 'unilateral' in the sense of binding only the Crown employee[94]. > > The mere existence of a contract does not exclude the Crown's right to dismiss at will[95]. This is so, whether the principle is seen as a prerogative or as a term of the contract (implied at law or in fact) that has not been displaced. > > There is much debate as to whether a valid contract for a fixed term excludes the Crown's right under the principle. ... This debate has no bearing on the present case, because the [applicant's] contract went out of its way to negate any suggestion that it was fixed as regards its term ... Not only was the contract silent as to any such provision. More to the point, the Act stipulated most clearly that an executive officer's term of office was not (that is, could not be) fixed by the contract of employment (s 41(3). See also s 41(5) and s 61). In Director-General of Education (NSW) v Suttling Brennan J (with whom Mason CJ and Deane J agreed) said[96]: > > 'If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service.' > > For this reason it was, in my view, not open for any declaration of breach of contract to have been made. Nor should the case have proceeded as if contractual damages were to be assessed as on a wrongful dismissal. An employee's action for damages for wrongful dismissal is at bottom a claim based on breach of the employer's promise of work for a fixed term or, alternatively, for an indefinite period terminable only upon due notice. This contract had no such conditions. > > Declaration 2 [that the Commissioner acted contrary to the Act in breach of contract] must therefore be set aside on this ground alone."

[170]

"181D Commissioner may remove police officers > > (1) The Commissioner may, by order in writing, remove a police officer from the Police Service if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. > > (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. > > (3) Before making an order under this section, the Commissioner: > > (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and > > (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and > > (c) must take into consideration any written submissions received from the police officer during that period. > > (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the Police Service. > > ... > > (7) Except as provided by Division 1C: > > (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and > > (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. > > In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission. > > (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. > > ... > > (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action."

[186]

The respondents argued that on no view was the applicant entitled to damages; the limit of his entitlement was the compensation which he had been paid equating with 38 weeks of salary. I would reject that argument although what the applicant was entitled to receive and was awarded by the trial judge was not properly characterizable as damages for breach of contract. I have held that the applicant's removal was invalid. He therefore remained in office and was entitled to the emoluments of his office for the period that he could have expected to serve in it. In some respects this case is analogous with Lucy v The Commonwealth[121] in which it was declared that the office of a public servant had been wrongfully terminated. Starke J said that in such a case damages for wrongful removal or dismissal from office are not available. But his Honour went on to say that there is no difficulty in applying the general law in relation to servants who are wrongfully discharged from their service, and that the measure of damages is not the wages agreed upon but the actual loss sustained, including compensation for any wages of which the servant was deprived by reason of his dismissal. His Honour applied that measure in the case of the plaintiff there and I would accordingly do the same here with the result that the award made by the trial judge should stand. The respondents argued that the applicant should not be compensated for the whole of the balance of the unexpired term of his appointment; to do so made no allowance for contingencies and vicissitudes in particular, the possibility, indeed the likelihood, that had he been afforded procedural fairness his appointment would still have been terminated well before the balance of the five years elapsed. This is an argument which may be compared with an argument of a failure to mitigate, the onus in respect of which lies upon a defendant. No reason for removal was proved or suggested, and hence there was no evidence of how the applicant might have responded to it. This means that the Court cannot make any assessment of the validity of the respondents' assertions and argument in this regard[122]. In those circumstances, and because the removal was invalid and no further attempt at removal was made, the applicant must be taken as having remained in office and being entitled to its emoluments in full, subject only to the deductions actually made by the trial judge.

Jarratt v Commissioner of Police

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Judgment (345 paragraphs)

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Legislation Cited (32)

Cases Cited (44)

Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44; (2005) 221 ALR 95; (2005) 79 ALJR 1581 (8 September 2005)