Jarratt v Commissioner of Police for NSW & Anor

Supreme Court of NSW|2002-06-24|Before: Simpson J

CITATION : Jarratt v Commissioner of Police for NSW & Anor [2002] NSWSC 596 FILE NUMBER(S) : SC 30060/01 HEARING DATE(S) : 24 June 2002 JUDGMENT DATE : 5 July 2002

Jeffrey Thomas JARRATT - Plaintiff PARTIES : COMMISSIONER OF POLICE FOR NSW - 1st Defendant STATE OF NSW - 2nd Defendant JUDGMENT OF : Simpson J

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW list

30060/01 Jeffrey Thomas JARRATT v COMMISSIONER OF POLICE FOR NSW and THE STATE OF NSW

JUDGMENT 1 HER HONOUR: In these proceedings, commenced by summons (which has since twice been amended) filed on 20 September 2001, the plaintiff, Jeffrey Thomas Jarratt, seeks a variety of orders and declarations arising out of his appointment and subsequent removal as Deputy Commissioner of the NSW Police Service. 2 Initially, only one defendant, the Commissioner of Police, was named in the summons. During the course of the hearing the State of NSW was, by consent, added as the second defendant. 3 The facts, about which there is relatively little controversy, are in a short compass. On 5 February 1997, having been a member of the Police Service since 1965, the plaintiff was appointed Deputy Commissioner of the Service for a term of three years. In February 2000 his appointment was renewed, this time for a term of five years. On 28 April 2000 the plaintiff and the then Commissioner of Police (Mr Peter Ryan, hereinafter referred to as "the Commissioner") executed a NSW Police Service Senior Executive Service contract of employment. On 12 September 2001, acting on the recommendation of the Commissioner made on 5 September, the Governor removed the plaintiff from the office. The Commissioner's recommendation was submitted to the Governor with the approval of the Minister. 4 In a statement of reasons which predates the removal of the plaintiff from his office, the Commissioner alluded to what might be described as unsatisfactory aspects of the plaintiff's performance in his role as Deputy Commissioner. 5 It is the circumstances of the plaintiff's removal from the office of Deputy Commissioner that give rise to the present proceedings. Put shortly, the plaintiff's case is that, in the circumstances, he was entitled, before being removed from his office, to be accorded procedural fairness, that procedural fairness demanded that he be advised that his removal was under consideration, and that he be given an opportunity to be heard on whether he should or should not be removed, and to answer any specific allegations made against him; and that he received no warning that his removal was under consideration and was given no opportunity to be heard on that question; that he was not told of specific allegations nor given an opportunity to respond to any such allegations. 6 The position adopted by the defendants is stark and brutally simple. Conceding that nothing that could be classified as procedural fairness had been afforded to the plaintiff in respect of the process of his removal, the defendants contend that they were under no obligation to afford procedural fairness to him; that, pursuant to the relevant legislation, the plaintiff could be removed from office at any time, without explanation, justification or excuse; that the decision to remove him could be made capriciously, unfairly, whimsically, in bad faith, for good reason or bad or no reason at all; and that such a decision is nevertheless unassailable. Unpalatable though that argument may seem, the defendants were able to support it by reference to a considerable body of respectable authority. The principle on which they rely is that Crown employees hold their offices during and at the pleasure of the Crown and that they may therefore be dismissed at the will - and indeed on the whim - of the Crown. 7 It is true, as is contended on behalf of the defendants, that, over the years many authorities, both in the United Kingdom and in this country, have held that "servants of the Crown" hold their offices during the pleasure of the Crown and may be dismissed at the will of the Crown: see, for example, Shenton v Smith [1895] AC 229, where it was further held that this derived, not from any special prerogative of the Crown, but because the well understood terms of engagement were to that effect. (See also Dunn v The Queen [1896] 1 QB 116.) 8 Following Shenton and Smith, the High Court of Australia, in 1938, accepted the principle: Fletcher v Nott (1938) 60 CLR 55 at 67-68; again, in 1956, in Kaye v Attorney-General for Tasmania (1956) 94 CLR 193 at 198; and in 1985 in Coutts v the Commonwealth of Australia (1985) 157 CLR 91 at, for example, 105-106. Those decisions of the High Court remain binding upon me: see Kelly v the Commissioner of the Department of Corrective Services [2001] NSWCA 148; 106 IR 181, in which the principle was affirmed. However, in each case it was also recognised that the common law principle could be modified by statute. An early example of a case where a modification was held to have been made is Gould v Stuart [1896] AC 575. 9 Counsel for the defendants also drew attention to the decision of this Court in George v Minister for Education and Youth Affairs, unreported, 31 August 1989, per Smart J. Particular reference was made to a paragraph appearing at p23. That paragraph reads as follows: "There is nothing inconsistent between the prerogative power to dismiss at pleasure and s47 of the Interpretation Act 1987. As appears from the authorities referred to in Coutts statutes and regulations may enunciate the prerogative right to dismiss at pleasure."

(s47 of the Interpretation Act relevantly provides that a statutory power of appointment includes power to remove or suspend, at any time, a person so appointed.) 10 When Smart J came to express his views and conclusions he wrote this: "This is not a case where questions of livelihood arise. Nevertheless, the office of Fellow of the Senate is an important and honoured one. The distinction between civil office and office in the Armed Forces is marked. There has been a modern tendency to modify the rights of the Crown by statute in relation to dismissal from the civil service. Sometimes the provisions are express and sometimes this modification appears by implication. There is an evident concern in the Courts that civil servants of the Crown should, where reasonably possible, be accorded procedural fairness prior to dismissal or removal. This concern springs from the serious effects dismissal may have and the changes in opinion as to what public policy requires. However, in the absence of some statutory indication to the contrary, where an appointee holds office during pleasure and the prerogative power is exercised to remove the office holder without giving any reason, such office holder is not entitled to be accorded procedural fairness where that power is truly discretionary. That is the position in the present case."

His Honour held that the plaintiff in that case, who had peremptorily been removed from a position of Fellow of the Senate of the University of Sydney, was not entitled to procedural fairness, either by way of warning that consideration was being given to her removal, or by being given an opportunity to be heard on that question. 11 That the law stated in the series of cases referred to in paragraph [8] above remains good law is clear. In Kelly v the Commissioner of the Department of Corrective Services Heydon JA, with whom Giles JA and Rolfe AJA agreed, wrote: "52 However, no authority binding on this Court has overruled authorities which are binding on this Court and which compel it to hold that an officer in respect of whom a decision to recommend that the Governor dismiss him is made is not owed a duty to receive natural justice, or prior notice. Morrison v Abernethy School Board [(1876) 3 R 945] and Malloch v Aberdeen Corporation [[1971] 1 WLR 1578; [1971] 2 ALLER 1278] are Scottish decisions, and each is based on implications from relevant statutes. It does not follow from the fact that some decisions based on common law prerogative powers have been held to import a duty to give natural justice that all decisions on common law prerogative powers attract that duty. It does not follow from the fact that some persons having a legitimate expectation that a state of affairs will continue must be given a hearing that Crown servants either can have that expectation or must be given a hearing. The public policy pointing to the contrary can produce harsh results, but the cases sanction both it and them." 12 The principle is, however, in clear collision with another, and more modern, line of authority, the central core of which concerns the circumstances in which the rules of procedural fairness are to be applied. In Annetts v McCann (1990) 170 CLR 596, the majority of the High Court (Mason CJ, Deane and McHugh JJ) held: "It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: (internal references omitted). In Tanos [ Comissioner of Police v Tanos (1958) 98 VLR 383] Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelt out from 'indirect references, uncertain inferences or equivocal considerations'. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice … in Kioa v West [(1985) 195 CLR 550] Mason J said that the law in relation to administrative decisions 'has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.' In Haoucher [ Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648] Deane J said that the law seemed to him 'to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision making'. " 13 In my opinion the only way of reconciling that line of authority which begins with Shenton v Smith and culminates in Kelly v the Commissioner of the Department of Corrective Services with the procedural fairness cases is to treat cases concerning employment by the Crown as a specific class of cases which have not yet been held by appellate Courts to attract the principles stated in the procedural fairness cases, such as Annetts. It does not lie within the province of a first instance judge to declare that the general principles stated in the procedural fairness cases encompass those cases which have, by tradition, been held to exclude those rules, and which are, as the Court of Appeal has so recently stated (in Kelly), binding upon me. 14 However, as I have already observed, those cases dealing with Crown employment invariably acknowledge that the "power of the Crown to dismiss at pleasure" principle is subject to modification by the statutory provisions which govern that employment. It is appropriate, in my opinion, and particularly having regard to the passages from Annetts which I have just extracted, to construe those provisions more liberally than perhaps would formerly have been the case. Indeed, it may not be going too far to say that, while in an earlier time, it lay upon the party propounding the proposition that the rules of procedural fairness apply to Crown employees to establish that the statute makes such provision, the reverse is now the case, and the onus lies upon the party seeking to exclude those rules to establish that fact. That is the approach I propose to adopt. I recognise that this is not the approach taken by Smart J in George. 15 The plaintiff was appointed, and his removal was (purportedly) effected, under the provisions of the Police Service Act 1990 ("the Act"). On behalf of the plaintiff it was contended that the Act manifests a legislative intention to exclude the Shenton v Smith principle and require the application of the rules of procedural fairness in the termination of an executive office under the Act. The defendants contend to the contrary. That makes it necessary to consider, in some detail, certain relevant provisions of the Act. 16 Part 5 of the Act is concerned with the Police Service Senior Executive Service, into which category the plaintiff's former position as Deputy Commissioner falls. Division 3 of Part 5 of the Act deals with appointment; Division 4 with employment; and Division 6 with removal and retirement, in each case of executive officers. 17 There was no suggestion that the plaintiff's initial appointment in 1997, or his reappointment in 2000, were other than completely regular. It is therefore unnecessary to set out in detail the statutory provisions governing those matters, although it is worth noting that s39(1)(b) expressly requires that appointments to executive positions are to be made on merit. The first section to which attention needs to be directed is s43, which falls within Division 4, dealing with employment of executive officers. S43 requires annual review by the Commissioner or a person appointed by the Commissioner, of the performance of executive officers. 18 It was common ground that, although more than a year elapsed between the renewal of the plaintiff's appointment in February 2000 and his removal from office, no performance review had taken place. No explanation was given for the plain failure on the part of the Commissioner to comply with his statutory obligation. The failure to comply with this obligation played a central role in the case advanced on behalf of the plaintiff. 19 S51 (part of Division 6, dealing with removal and retirement of executive officers) provides: " 51 Removal of executive officers from office (1) An executive officer may be removed from office at any time: (a) by the Governor on the recommendation of the Commissioner, in the case of a Deputy Commissioner or Assistant Commissioner, or (b) by the Commissioner, in any other case. (1A) A recommendation referred to in subsection (1) (a) may not be submitted to the Governor except with the approval of the Minister. (2) The Commissioner: (a) may declare an executive officer who is removed from an executive position under subsection (1) to be an unattached officer in the Police Service, and (b) may revoke any such declaration. (3) While a declaration under subsection (2) remains in force, the person to whom the declaration relates: (a) is to be regarded as an executive officer, although not holding an executive position, and (b) is entitled to monetary remuneration and employment benefits as if the person had not been removed from his or her position. (4) If: (a) an executive officer is removed from a executive position under subsection (1) and a declaration is not made in relation to the officer under subsection (2), or (b) a declaration under subsection (2) made in relation to an executive officer is revoked, the officer ceases to be an executive officer, unless appointed to another executive position. (5) A member of the Police Service who ceases to be an executive officer because of subsection (4) ceases to be a member of the Police Service, unless appointed to another position in the Police Service. (6) The making of a declaration under subsection (2) in relation to an executive officer does not prevent the officer from ceasing to be an executive officer because of the completion of the officer's term of office. (7) This section does not prevent an executive officer being removed from office apart from this section." 20 Ss 40, 41, 42, 43 and 44(1) and (7), all of which form part of Division 4, relevantly provide: " 40 Term appointments

Subject to this Act, an executive officer holds office for such period (not exceeding 5 years) as is specified in the officer's instrument of appointment, but is eligible (if otherwise qualified) for re-appointment." " 41 Employment of executive officers to be governed by contract of employment (1) The employment of an executive officer shall be governed by a contract of employment between the officer and the Commissioner. (2) A contract of employment may be made before or after the appointment of the executive officer concerned. (3) An executive officer is not appointed by, nor is an executive officer's term of office fixed by, the contract of employment. (4) A contract of employment may be varied at any time by a further contract between the parties. (5) A contract of employment may not vary or exclude a provision of this Act or the regulations. (6) The Commissioner acts for and on behalf of the Crown in any contract of employment between the officer and the Commissioner."

(1) The matters to be dealt with in a contract of employment between an executive officer and the Commissioner include the following: (a) the duties of the executive officer's position (including performance criteria for the purpose of reviews of the officer's performance), (b) the monetary remuneration and employment benefits for the executive officer as referred to in Division 5 (including the nomination of the amount of the remuneration package if a range of amounts has been determined for the remuneration package), (c) any election by the executive officer to retain a right of return to the public sector under section 52.

(2) A contract of employment may provide for any matter to be determined: (a) by further agreement between the parties, or (b) by further agreement between the executive officer and some other person specified in the contract, or (c) by the Commissioner or other person or body specified in the contract."

(1) An executive officer's performance must be reviewed, at least annually, by the Commissioner or by some person nominated by the Commissioner.

(2) Any such review is to have regard to the agreed performance criteria for the position and any other relevant matter."

" 44 Industrial arbitration and legal proceedings excluded

(1) In this section, a reference to the employment of an executive officer is a reference to: (a) the appointment of, or failure to appoint, a person to a vacant executive position, or (b) the removal, retirement, termination of employment or other cessation of office of an executive officer, or (c) any disciplinary proceedings or disciplinary action taken against an executive officer, or (d) the remuneration or conditions of employment of an executive officer.

(7) No proceedings for an order in the nature of prohibition, certiorari or mandamus, or for a declaration or injunction or for any other relief, lie in respect of the appointment of or failure to appoint a person to a vacant executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment." 21 S61, which appears in Division 7 (containing general provisions) provides: " 61 This Part prevails over any inconsistent provision of any other Act or law or of the terms of appointment of or a contract with a person." 22 It is convenient here to deal with one matter that was the subject of submission, although, as it turned out, not significant dispute. S44(7) precludes the commencement of any judicial proceedings to review: "the appointment of or failure to appoint a person to a vacant executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment." 23 As will be seen, the subsection limits its own reach to incidents related to appointment or non-appointment to a vacant executive position. It does not extend to other matters of employment, such as those identified in s44(1)(b), (c) and (d) such as removal, retirement or remuneration. The argument put on behalf of the plaintiff, therefore, was that other matters concerning employment, relevantly including removal, termination of employment or other cessation of office of an executive officer, were not excluded, and deliberately not excluded, from judicial review. 24 So much was accepted on behalf of the defendants. They, however, did not accept that, because those matters are omitted from sub-s(7), they are therefore available for judicial review. On their argument, the proper construction of the Act as a whole, and particularly s51, yields the same result - that is, that the removal of an executive officer is not subject to judicial review, and that that explains the omission of those matters from sub-s(7). 25 On behalf of the plaintiff some store was placed on the decision of the Court of Appeal in Suttling v Director General of Education (1985) 3 NSWLR 427. There McHugh JA (as his Honour then was), with whom, in this respect, Glass JA agreed, held (Kirby P, as his Honour then was, dissenting), contrary to the argument advanced on behalf of the Director General, that the prerogative of the Crown to dismiss its employees at pleasure may be bargained away by express agreement between the parties to the employment contract, as well as abrogated by statute. There is some difficulty in accepting this decision as of binding authority, because that matter was finally decided in the High Court (Director General of Education v Suttling (1986) 162 CLR 427), where, by a majority, the decision of the Court of Appeal was upheld, but on a substantially narrower ground than that that had prevailed in the Court of Appeal. In the High Court, the majority focused upon the provisions of the statute governing the employment in question. A year later, McHugh JA returned to the subject, referring to the Court of Appeal decision in Suttling and making it plain that he adhered to the view he had there expressed: Attorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 188 - 189. However, neither of the other members of the Bench (Street CJ and Kirby P) found it necessary to join in the confirmation of the majority Court of Appeal views. Since Kirby P had dissented in Suttling, his lack of assent in the later case is hardly surprising. 26 In my opinion, in these circumstances, and even taking into account the view that is expressed by McHugh JA in Heinemann, the Court of Appeal judgment in Suttling lacks the capacity to be of binding authority. That is not, obviously, to say that it is irrelevant or of no weight, and I do regard it as significant - if, as I have noted, lacking binding force. 27 Counsel for both sides trained their sights essentially on single provisions of the Act. Counsel for the defendants "unashamedly" (the word chosen by senior counsel) focused upon the words "at any time" in s51(1). It is worth repeating the relevant parts of that sub-section. Relevantly, it reads: "(1) An executive officer may be removed from office at any time : (a) by the Governor on the recommendation of the Commissioner, in the case of a Deputy Commissioner … (b) ..." (emphasis added) 28 The words "at any time", counsel for the defendants argued, effectively reproduced the notion of employment of Crown employees "at the pleasure of the Crown", with all that that historically entailed, including the right to terminate in denial of natural justice. They accepted that they were casting a heavy burden upon three words which have only a temporal meaning and which, in ordinary language, do not convey any notion such as "without explanation", "without reason (good, bad or indifferent)", "capriciously", or "mala fides". 29 I am unable to accept that these three words, with their limited meaning, can be so read as to exclude what would (absent clear words to the contrary) otherwise be implied: that is, that, before employment (or an appointment) is to be terminated, procedural fairness should be afforded. 30 It is not uncommon to see in statutes governing Crown employment a subsection such as did appear in the relevant Act in Suttling's case, and in the Kelly case, in the following or like terms: "…nothing in this Act shall be construed or held to abrogate or restrict the rights or power of the Crown to dispense with the services of any person employed… ."

No such provision is incorporated in the Act. Despite the presence of those provisions in the legislation relevant to Suttling and Kelly , the rules of procedural fairness were nevertheless held to apply: that is, the Shenton v Smith principle was excluded. 31 Counsel for the plaintiff placed equally heavy reliance on s43, which requires annual review of an executive officer's performance. If that annual review is to be regarded as a necessary prerequisite to the removal of an officer such as the plaintiff, then it cannot be gainsaid that, the performance review not having taken place, the removal was unlawful. However, I do not understand counsel for the plaintiff so much to be arguing that the performance review was a necessary prerequisite to removal, as to be arguing that the requirement of an annual performance review is to be taken as an indicator that the legislature intended the rules of procedural fairness to apply and be observed before employment or an appointment is brought to an end. 32 At least where the termination of employment/appointment is performance based, this proposition has, at least initially, some attraction. So, too, does the response made on behalf of the defendants. That response was a reminder of the context in which Crown employees are engaged and operate, and the need for Crown employers to be able to manage the business of government in the most economical and efficient way, and in accordance with current policy. It may be that a restructure of the organisation deemed necessary or desirable would render some officers redundant, thus justifying the exercise of the s51 removal power for reasons entirely extraneous to performance. In such a case the s43 requirement of annual performance review would not suggest that procedural fairness should be afforded. (Nor would it suggest to the contrary - it would simply be irrelevant.) But that makes the relevance of s43 to the question whether, as a general proposition, the Act requires procedural fairness before the termination of an appointment, somewhat tenuous. It may be that procedural fairness is required in some circumstances (for example, where the motivation for the termination lies, as here, in an adverse view of the officer's performance) but not in others (for example, where the motivation for the termination lies in an intention to restructure the organisation). There are certainly stronger grounds for considering that procedural fairness is required where the explanation for the termination lies in an adverse view of performance, than where the explanation lies in policy or structural matters, but, as a matter of construction, I do not think a distinction can too readily be drawn between termination for certain reasons and termination for other reasons. If, on the true construction of the Act, procedural fairness is required before termination, it could be expected that that requirement be across the board. Of course, what is required by the application of procedural fairness may vary considerably - where a policy decision, as distinct from performance, necessitates removal, there may be little that is demanded by way of according procedural fairness. The distinction lies in the content, not the requirement, of procedural fairness. 33 The need for government departments and instrumentalities to have the freedom to go about their business in the most efficient and effective way is of significance, but of no greater significance than the need for private enterprise to do the same thing. McHugh JA, in Suttling, made some observations to this effect. His Honour wrote: "I think that the criticisms of Dunn v the Queen and the decisions which follow it are justified. Nothing in any case before the end of the nineteenth century supported the view that the Crown was not bound by a contract of employment with a civil servant for a fixed term. The rule in Dunn v the Queen is the creation of the English judges of the Victorian era who thought that public policy made it necessary. But, even if public policy does require that the Crown should be able to dismiss its employees when it wishes to do so, why should that prevent the Crown paying damages when it acts in breach of its solemn agreement. If the rule in Dunn v the Queen was not followed in this State, it would not prevent the Crown from terminating an employment relationship. If no grounds were available to justify the termination of the agreement, the only difference would be that the Crown would pay damages just as other employers pay damages when they cannot justify the termination of employment. Further, it is a rule which often causes great injustice as many of the decided cases show. Employees enter into Crown employment on the understanding that they are employed for a fixed period and then, without any fault on their part, they are dismissed, often without compensation. [p 446] … In an age where a large section of the workforce is employed by the government, there is no reason in principle or justice why the contractual rights of Crown (who are in reality government) employees should differ from those of private sector employees. … the Crown is never bound to enter into fixed term contracts. If it elects to do so, the ordinary rules of the laws of contract should apply." [p 447] 34 These remarks, it must be acknowledged, are not directly pertinent to the question of whether an intention to exclude the rules of procedural fairness is manifest in the Act. They are, however, consistent with the procedural fairness cases to which I have already referred, which suggest that the onus lies upon those seeking to exclude the operation of the rules rather than on those seeking to import their operation. 35 On both sides, reliance was placed upon the first instance decision of the Federal Court of Australia in Barratt v Howard [1999] FCA 1132; 165 ALR 605 (and, on appeal, Barratt v Howard [2000] FCA 190; 96 FCR 428). In that case, brought under Commonwealth Public Service legislation, the plaintiff had been appointed as Secretary of the Department of Defence for a period of five years. Purportedly exercising a statutory power, and acting on the advice of the Prime Minister, the Governor-General directed that the appointment be terminated. The applicant challenged the decision, contending that it had been made contrary to the rules of procedural fairness. As here, the respondents argued that they were not required to give procedural fairness. 36 The legislation specifically provided that a direction to terminate such an appointment could be made by the Governor-General only in accordance with advice consistent with a recommendation by the Prime Minister; in turn, the power of the Prime Minister to recommend termination was dependent upon his having received a written report in relation to the taking of the action from the Secretary to the Department of Prime Minister and Cabinet. 37 Hely J at first instance rejected the respondents' argument that they were not obliged to give the applicant procedural fairness. Counsel for the plaintiff in the present case relied upon the decision in Barratt as having such parallels that it affords guidance in the present determination. Counsel for the defendants argued that the requirement that, before the Prime Minister recommended termination, he be provided with a written report, created a significant distinction between the two cases and that it was this requirement that led Hely J to the conclusion to which he came. (It is convenient to refer principally to the first instance decision because, on appeal, the respondents in Barratt did not challenge the conclusion that Mr Barratt should have been given procedural fairness.) 38 I do not accept the defendants' contention that the requirement of a report was the sole, or even main, reason for Hely J's conclusion that the rules of procedural fairness were to be applied in the circumstance of Barratt's case. At [59] Hely J wrote: "It would be contrary to accepted principles of administrative law to conclude that a statutory power of termination is exercisable without any reason … " 39 On appeal, the Full Court (Beaumont, French and Merkel JJ) wrote (notwithstanding the absence of any challenge to Hely J's finding in this respect): "49 As a general proposition it is not lightly to be supposed, absent express provision, that legislators have conferred a power affecting rights, privileges or liabilities, which is able to be exercised in a way that is unfair. Whether they have will depend upon the attributes of the power concerned. These will include its width, purpose and subject matter and the consequences of its exercise." 40 Their Honours went on to refer to a section of the Act there under consideration which specified as the chief objective of the Act the achievement of: "… the efficient, equitable and proper conduct, in accordance with sound management practices (including personnel management practices), of the public administration of the Australian Government …",

a section which has no equivalent or parallel in the Act. Their Honours went on to write: "51 Efficiency, equity and proper conduct are all elements of that object. It is not a tenable proposition, having regard to those elements, and particularly that of equitable conduct, that the Parliament would have intended the exclusion of procedural fairness from the processes prescribed for the premature termination of the fixed term appointment of the most senior officers of the Australian Public Service. Importantly, equity is not the only consideration to be seen to support procedural fairness. Fairness is not a moral fetter on efficiency. Fairness, expressed in recognition of the right to be heard and want of bias on the part of the decision-maker, operates in aid of informed decision-making that has regard to relevant criteria and so advances the statutory purpose. So equity serves efficiency. …." 41 This passage, in Barratt's case, has added force by reason of the content of the section identifying the chief objective of the Act. However, it is not entirely irrelevant to the present circumstances. One could be forgiven for thinking that, as a general proposition, Acts of Parliament governing public service organisations would have as their objectives (stated or unstated), something like efficient, equitable and proper conduct in accordance with sound management practices, relevant to the specific aspects of public administration to which they are directed. The passage therefore has some general relevance. Finally, their Honours observed that: "52 The subject matter of the power is an office held by an individual which will ordinarily be the source of that individual's livelihood and public standing. The consequence of termination will be loss of that livelihood, loss of the associated public standing and possible damage to reputation."

These remarks are equally appropriate in the present case. 42 I am confronted with a situation in which there are, in my view, two conflicting lines of authority: those exemplified in (but not limited to) Kioa and Annetts concerning procedural fairness, which would suggest that a person in the position of the plaintiff should be given the opportunity to be heard in relation to a proposal to remove him from office, and the Shenton v Smith and Dunn v The Queen line of authority specific to the dismissal of Crown employees and stating that, absent a contrary statutory intention, such employees are not entitled to procedural fairness. On the one hand, it must be recognised that the latter group of cases, being specific, cannot readily be put to one side. Given the most recent affirmation of their binding force, in Kelly, the conclusion that they do apply is even more compelling. On the other hand, cases such as Kioa and Annetts represent the most recent thinking of the High Court on the approach to the construction of statutes where the rights of individuals may be adversely affected. 43 In my opinion, the recourse had by the defendants to early authority concerning the entitlement of the Crown to act in relation to its employees or appointees in the high-handed manner for which they contend is, in the twenty-first century, and in the light of modern authority, misplaced. The focus in the Act on merit as the basis of appointment, and the requirement of annual performance reviews, support that view. That conclusion is the more acceptable because the basis for the recommendation for the plaintiff's removal was specifically to do with the manner in which he performed his duties. It was not to do with the general structure of the Police Service or policy decisions in relation to that service. The plaintiff was entitled, not only to the benefit of a review of his performance in accordance with s43, but also, when his removal was being contemplated on performance grounds, to be notified of that fact and given an opportunity to respond to the proposal and the criticisms of his performance. Further, he was entitled to be advised of any specific allegations against him, and to the content of any adverse report, and to be given an opportunity to respond to those. 44 He was denied each of those opportunities. The decision of the Commissioner to recommend to the Governor that the plaintiff be removed from his office was legally flawed and is invalid. 45 Counsel for the plaintiff assert that the decision on the part of the Commissioner to recommend the removal of the plaintiff was vitiated also by his having taken into account an irrelevant consideration. This requires a return to the facts, some of which I have not previously stated. 46 Among the reasons mentioned by the Commissioner in the statement of reasons for his recommendation was a reference to a decision made by the plaintiff during the course of his first term as Deputy Commissioner to interview a particular, identified, former police officer for a senior position in the Police Service. This, counsel argued, was irrelevant because it had been the subject of a previous enquiry and a recommendation, and the plaintiff had undertaken the remedial processes suggested. In other words, on the argument of counsel for the plaintiff, this matter was, effectively, "spent", and unavailable to be taken into account in the decision to recommend removal. In essence, the submission was that this circumstance was dead and buried. 47 I do not accept this. It is not difficult to envisage circumstances in which (and I do not suggest this is the present case) an employee or appointee might engage in a series of errors of judgment, poor decision making, poor administration, none of which individually would be sufficient to warrant recommendation for removal, and each of which, successively, might have been the subject of remedial action. That would not preclude the history of individual misjudgements being taken into account in a consideration of that person's suitability for a position. I therefore reject the second basis on which the plaintiff puts his case. 48 It follows from the conclusion above that the plaintiff is entitled to orders to the effect of those claimed in paragraphs 1, 2, 3, and/or 4 of the Further Amended Summons. Counsel for the parties agreed that, should I reach a conclusion in the plaintiff's favour, the appropriate course would be to deliver my findings of fact, conclusions of law and reasons and give them the opportunity to bring in Short Minutes of Order reflecting and appropriate to those findings, conclusions and reasons. That is what I propose to do. 49 However, in paragraph 5 of the Further Amended Summons, the plaintiff also claims damages. This gave rise to a subsidiary issue. As at the time of his removal the plaintiff's appointment of five years had almost three and a half years to run. The competing positions of the parties can be simply stated. On behalf of the plaintiff it was submitted that he was entitled to damages representing his salary loss for the whole of the unexpired term of his contract, less a proper allowance for sums he has been able to earn in the meantime, the sum he was awarded by way of compensation (to which I will come in a moment) and a sum representing the estimate or projection of his earnings between the date of hearing and the expiration of the contract term. 50 On behalf of the defendants, reliance was placed upon s53 of the Act. Relevantly, that section is in the following terms: " 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 is respect of the office for any period afterwards (except remuneration is respect of a subsequent re-appointment to the office).

(6) ... (7) ... (8) ..." 51 It was common ground that the plaintiff had made an application to the Statutory and Other Offices Remuneration Tribunal ("the Tribunal") and had, pursuant to sub-s(4), been awarded the maximum compensation payable, that is an amount equal to his remuneration package for the period of 38 weeks. Counsel for the defendants therefore argued that, pursuant to sub-s(5), the plaintiff was not entitled to any other compensation for his removal. 52 I reject this submission. It is my opinion that the opening words of s53(1) make it clear that the balance of the section, including the limitation on compensation payable, applies to an executive officer who is removed from office "under section 51"; it is further my opinion that that presupposes valid removal under s51. I have held that the plaintiff's removal was not valid under s51 and the balance of the section does not therefore apply. 53 No argument was advanced that, by making an application to the Tribunal, the plaintiff forfeited his right to challenge his removal, or was in some way estopped from arguing that he was not validly removed from office under s51. 54 In my opinion, s53 does not preclude an award of damages and does not limit the award of damages to an amount equal to the plaintiff's remuneration package for the period of 38 weeks. 55 The second argument put on behalf of the defendant was that, even if s53 does not impose a limit on the amount of damages which may be awarded, nevertheless the plaintiff should not be compensated for the entire unexpired portion of the contract, but should be awarded damages on the basis that he was entitled to a reasonable period of notice of his removal from office. Counsel placed reliance upon a decision of Gillard J in the Supreme Court of Victoria in Rankin v Marine Power International Pty Ltd [2001] VSC 150, unreported, 21 May 2001. At [203] Gillard J wrote: "… In the nineteenth century, the Courts held that it was to be implied into a contract of service, in the absence of any evidence to the contrary , that either party could bring the contract of employment to an end by giving a reasonable period of notice to terminate." (emphasis added) 56 Rankin was a case in which the contract of employment was one of "indefinite duration". It is, to my mind, of little, if any, assistance in the present circumstances, where the parties themselves had identified the period of the appointment. That was done, not by the contract (although the contract did purport to state its duration); s41(3) expressly precludes the fixing of an executive officer's term of office by the contract; s40 provides that an executive officer holds office for such period (not exceeding five years) as is specified in the instrument of appointment. Indeed, in the contract, both parties acknowledged that the plaintiff was not appointed by, nor was his term of office fixed by, the contract. His term of office was fixed by the instrument of appointment. 57 There is nothing in the contract that contemplates or provides for its premature termination. Nor, apart from s51, is there anything in the Act which so provides. I can see no purpose in the appointment of an executive officer for a time fixed by the instrument of appointment (and re-stated in the contract) if that term is not intended to be adhered to. S51 clearly permits removal (after the necessary steps have been taken) and this extends to removal for misconduct or poor performance. Unless, the correct procedures having been followed, an executive officer is validly removed, he or she is entitled to rely and act upon, and organise his or her personal and financial affairs having regard to, the term of the appointment. This is consistent with the approach taken by McHugh JA in the passage from Suttling extracted above. I can see no reason to import into either the contract, or the term of the appointment, the capacity on the part of the defendant to terminate the plaintiff's appointment "on reasonable notice". They may well have been entitled to do so had they brought about his removal in accordance with what the statute required of them. They not having done that, the plaintiff was entitled to the benefit of the agreement he had made, and the appointment he had received. 58 There was evidence as to the amount he has been able to earn since his unlawful removal. It is a modest sum. He has received an amount awarded to him by the Tribunal. It was conceded on his behalf that some assessment should be made of his earning capacity, as best it can be done, during the balance of what would have been his term. It was conceded that the evidence in this respect is minimal. This was, in fact, the principal topic on which oral evidence was given. 59 The plaintiff said that he had approached 13 or 14 employment organisations or agencies, he had a limited amount of contractual work as a result of his arrangements with one of these agencies, but he said that the others had "essentially gone cold very shortly after initial contact". He said that he had been told he was too big a risk by reason of his lack of commercial experience and by reason of his removal from his office and publicity that had surrounded it. He was not challenged on this evidence. 60 I am satisfied that the plaintiff has made all reasonable attempts to mitigate his losses by obtaining alternative employment. I am further satisfied that his prospects of obtaining alternative work in the future are very limited indeed and are unlikely to produce any greater earnings than those he has already made. 61 In this respect as well as in the formulation of orders and declarations, the parties agreed that the most convenient course would be for my findings to be made known and to give them an opportunity, as far as they are able, to resolve the fine detail of an award of damages. Accordingly, it is only necessary to say that I am satisfied that the plaintiff is entitled to an award of damages, that, apart from reductions for actual or projected earnings and the payment ordered by the Tribunal, represent the unexpired term of his contract. 62 With those findings and conclusions I will leave it to the parties to bring in short minutes of the appropriate orders. If they are unable to agree then I will resolve the outstanding issues. **********

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