Jarratt v Commissioner of Police for New South Wales

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,McHugh,Gummow,Hayne JJ,Callinan J,Heydon J
• Judgment Date: 08 September 2005
• Neutral Citation: 2005-0908 HCA B,[2005] HCA 50
• Docket Number: S593/2003
• Date: 08 September 2005

[2005] HCA 50

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Hayne, Callinan AND Heydon JJ

S593/2003

Jeffrey Thomas Jarratt

Applicant

and

Commissioner of Police for New South Wales & Anor

Respondents

Representation:

M L D Einfeld QC with D R Campbell SC and R D Glasson for the applicant (instructed by Verekers)

R C Kenzie QC with P Ginters for the respondents (instructed by Crown Solicitor for New South Wales)

Police Act 1990 (NSW), ss 8, 11, 33–35, 39, 40, 41, 42, 43, 51, 53, 181D.

Jarratt v Commissioner of Police for New South Wales

Police — Tenure — Dismissal from office — Applicant was Deputy Commissioner of Police and a member of the senior executive service under Part 5 of the Police Act 1990 (NSW) (‘the Act’) — Commissioner of Police recommended to Governor that the applicant be dismissed from office pursuant to the Act — Governor dismissed applicant — Applicant afforded no hearing — Whether dismissal from office invalid as breaching requirements of natural justice.

Constitutional law — Prerogatives of the Crown — Prerogative to dismiss Crown servants at pleasure — Whether implied term of contract of employment of Crown servant — Whether compatible with modern-day conditions of public service — Whether compatible with statutory regime for employment of senior police officers — Whether compatible with obligation to accord natural justice.

Statutes — Construction — Provision for Governor to dismiss senior police officer ‘at any time’ on advice of Commissioner of Police — Whether the words ‘at any time’ import into the statute the Crown's right to dismiss Crown servants at pleasure — Whether obligation to accord natural justice implicitly excluded.

Contract — Damages — Where employment contract entered into pursuant to statutory provision following appointment to office — Where dismissal from office necessarily resulted in termination of contract — Whether award of damages may be made for repudiation resulting from invalid exercise of statutory power — Relevance of statutory scheme for compensation for dismissal from office.

Words and phrases — ‘at any time’, ‘dismissal at pleasure’.

ORDER

1. Special leave to appeal granted and the appeal be treated as instituted and heard instanter.

2. Appeal allowed with costs.

3. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 11 November 2003 and in their place order that the appeal to that Court is dismissed with costs.

1 Gleeson CJ. This application for special leave to appeal was referred to a Full Court and argued as on an appeal. The issues concern the application of the requirements of natural justice to the removal of Mr Jarratt (‘the applicant’) from the office of Deputy Commissioner, Field Operations and Development, within the Police Service of New South Wales, and the consequences of a failure to comply with those requirements.

2 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.

3 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 3.

Police officers

4 The authors of Halsbury's Laws of England4 describe the history of the police force as the history of the office of constable, upon which an organised police force was later superimposed. In former times in the United Kingdom, constables, or officers under other titles, were responsible for keeping the peace. In Enever v The King5, Griffith CJ said:

‘At common law the office of constable or peace officer was regarded as a public office, and the holder of it as being, in some sense, a servant of the Crown. The appointment to the office was made in various ways, and often by election. In later times the mode of appointment came to be regulated for the most part by Statute, and the power of appointment was vested in specified authorities, such as municipal authorities or justices. But it never seems to have been thought that a change in the mode of appointment made any difference in the nature or duties of the office, except so far as might be enacted by the particular Statute. Again, at common law constables had large powers necessarily incident to the discharge of their functions as peace officers or conservators of the peace, amongst which perhaps the most important was the authority to arrest on suspicion of felony.’

5 The individual authority and responsibility of constables gave rise to particular legal consequences, such as the absence at common law of vicarious responsibility on the part of the body or authority appointing the constable 6. The Supreme Court of Canada described the office as one of ‘certain offices that survive because their historical roots are still nourished by functional consideration[s]’ 7.

Crown service ‘at pleasure’

6 At common law, subject to the provisions of any statute or to the terms of any valid contract, and, in Australia, subject also to the Constitution, people in the service of the Crown held their offices during the pleasure of the Crown. This was an implied term of their appointment or engagement 8. This Court held

in Fletcher v Nott9 that the rule applied to members of the police force of New South Wales. Dixon J said 10: ‘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’.

7 It is no longer appropriate to account for the rule in terms redolent of monarchical patronage 11. The rule has a distinct rationale in its application to the armed services, but in its application to the public service generally it is difficult to reconcile with modern conceptions of government employment and accountability. Perhaps it could be justified, if justification be sought, by reference to the need of the executive government to retain the overall capacity to alter the size and structure of the public service, or to respond to political exigencies, without contractual inhibition 12. Yet most ordinary contracts of employment cannot be made the subject of an order for specific performance, and, at common law, a wrongful dismissal is ordinarily effective to bring the employment relationship to an end, even if the employee does not accept the repudiation of the employment contract, and even though there may be a liability to pay damages to the employee 13.

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 Baldwin16, 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...