R v Wilson; Ex Parte Donaldson [1977] FCA 24; (1977) 31 FLR 399 (21 December 1977)

FEDERAL COURT OF AUSTRALIA

THE QUEEN v. WILSON; Ex parte DONALDSON [1977] FCA 24; (1977) 31 FLR 399
Prerogative Writs - Police

COURT

FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
Bowen C.J.(1), Smithers(2) and Blackburn(3) JJ.

CATCHWORDS

Prerogative Writs - Certiorari - Disciplinary tribunal - Power to dismiss from office - Manner of exercise - Delegation of power - Natural justice - Right to hearing - Police (Disciplinary Provisions) Ordinance 1972 (A.C.T.), S. 45.

Police - Disciplinary tribunal - Police (Disciplinary Provisions) Ordinance 1972 (A.C.T.), s. 45 - Police Ordinance 1927 (A.C.T.). On 4th February, 1977, the respondent, who had been the prosecutor at first instance, then a sergeant third class of police in the Australian Capital Territory police force, was convicted in the Canberra Court of Petty Sessions on three charges involving the stealing and taking without lawful authority of certain property of the Commonwealth. On each of the charges he was fined $30. On the same day at about 3 p.m. appeals were lodged in respect of each conviction.

Shortly after midday on the same day the respondent, who had previously been under suspension with pay by reason of a charge of conspiracy against him, received a letter from the Commissioner of Police purporting to dismiss him pursuant to s. 45 (2) (a) of the Police (Disciplinary Provisions) Ordinance 1972.

Section 45 of the Police (Disciplinary Provisions) Ordinance 1972 provides, inter alia: "45 (2) If, upon the hearing of the charge by a court, the officer or member is found guilty of the offence, the Minister may, in the case of an officer, or the Commissioner may, in the case of a member - (a) dismiss the officer or member from the Police Force; . . ."

The judge at first instance (The Queen v. Commissioner of Police; Ex parte Donaldson (1977), 29 FLR 180) held that Mr. Donaldson was entitled to natural justice so that the commissioner's power to dismiss the respondent pursuant to s. 45 (2) (a) could not be exercised until he had been given the opportunity to be heard on the question of the power being exercised against him. The Commissioner of Police appealed against that decision.

Held: (1) The presumption, that the legislature is not to be taken as intending the right to a hearing (required by the rules of natural justice) to be ousted, is not confined to judicial or quasi-judicial proceedings.

(2) As s. 45 confers on the commissioner a number of options as to penalty and thus requires him to exercise judgment as to that which is appropriate in the particular case and the penalty affects the livelihood of a member it is desirable that his power be qualified by the principles of natural justice.

(3) Although some disciplinary matters are dealt with in other provisions of the Ordinance and hearings are there provided for, the silence of the legislature on hearings in s. 45 is equivocal. The presumption raised by the circumstances, that natural justice should be accorded, is not rebutted by the fact that the legislature is deliberately silent on the matter.

(4) If there is power in the Crown to dismiss its servants at pleasure, such a power can be delegated only if the right of delegation is conferred by very clear language.

Durayappah v. Fernando, (1967) 2 AC 337; Commissioner of Police v. Tanos [1958] HCA 6; (1958), 98 CLR 383; Ridge v. Baldwin, [1963] UKHL 2; (1964) AC 40; Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977), 51 ALJR 703; Twist v. Randwick Municipal Council [1976] HCA 58; (1976), 136 CLR 106; and Salemi v. Minister for Immigration and Ethnic Affairs [1977] HCA 26; (1977), 51 ALJR 538, considered.

HEARING

Canberra, 1977, August 18, 19; December 21. 21:12:1977
APPEAL.

The respondent Commissioner of Police appealed against an order making absolute a writ of certiorari. The relevant facts appear from the judgments of the court.

D. H. Hodgson, for the appellant.

T. J. Higgins, for the respondent.
Cur. adv. vult.

Solicitor for the appellant: A. R. Neaves (Commonwealth Crown Solicitor).

Solicitors for the respondent: Higgins, Faulks & Martin.

DECISION

December 21.

The following judgments were delivered.
BOWEN C.J. This is an appeal from a judgment of the Supreme Court of the

Australian Capital Territory given on 3rd June, 1977. The facts are within a small compass. (at p400)

2. On 4th February, 1977, the present respondent, Robert Alexander George Donaldson, who was then a sergeant third class of police in the police force of the Australian Capital Territory, was convicted in the Canberra Court of Petty Sessions of two offences against s. 30 of the Commonwealth Crimes Act 1914, and of an offence against s. 71 of that Act. The charges involved the stealing and the taking without lawful authority of certain property of the Commonwealth. On each of the charges the respondent was sentenced to a fine of $30 to be paid within twenty-eight days and in default of payment, to three days' imprisonment with hard labour. (at p400)

3. Appeals against the convictions were filed on the afternoon of 4th February. (at p400)

4. Approximately at midday on 4th February there was delivered to the respondent a letter from the Commissioner of Police (the present appellant), the material parts of which read as follows:

"To: Robert Alexander George Donaldson A member of the Police Force. (at p400)

5. On 4th February, 1977, you were found guilty of offences against the law of the Commonwealth, to wit, an offence against s. 71 and two offences against s. 30 of the Crimes Act 1914. (at p400)

6. "As a consequence, and acting pursuant to s. 45 (2) (a) of the Police (Disciplinary Provisions) Ordinance 1972, I dismiss you the said Robert Alexander George Donaldson from the Police Force with effect from 12 midday on 4th February, 1977." (at p401)

7. The learned trial judge made absolute the writ of certiorari to quash the decision of the commissioner to dismiss the respondent. The ground on which he made the order was that before making his decision, the commissioner was obliged to afford natural justice to the respondent and by not giving the respondent an opportunity to be heard the commissioner had failed to comply with that requirement. The commissioner has appealed from this judgment. (at p401)

8. Section 45 of the Police (Disciplinary Provisions) Ordinance 1972, so far as it is material, reads:

"45. (1) Where an officer or a member is charged with having
committed an offence against the law of the Commonwealth or of
a State or Territory of the Commonwealth, punishable either on
indictment or on summary conviction -

(a) the Minister may suspend the officer from duty; or

(b) the Commissioner may suspend the member from duty.

(2) If, upon the hearing of the charge by a court, the officer or
member is found guilty of the offence, the Minister may, in the
case of an officer, or the Commissioner may, in the case of a
member -

(a) dismiss the officer or member from the Police Force;

(b) reduce the officer or member to a lower rank; or

(c) reduce the salary of the member.

(3) The Minister may at any time revoke the suspension of an
officer, and the Commissioner may at any time revoke the
suspension of a member, suspended under this section, whether
before or after the conviction of the officer or member.

(4) A person who is suspended under this section shall, unless
the Minister otherwise directs, be paid salary during the period of
the suspension.

(5) Where a person has been dismissed under sub-section (2) of

this section but -

(a) the conviction or finding has subsequently been quashed;

(b) the person has received a pardon;

(c) the conviction or finding has otherwise been nullified; or

(d) the person has been released from prison as a result of an
inquiry into the conviction,

the Minister may re-appoint the person as an officer, or the
Commissioner may re-appoint the person as a member, of the
Police Force." (at p401)

9. In dismissing the respondent, the commissioner purported to act under s. 45 (2) (a). (at p401)

10. It is necessary to deal in some detail with the legislative scheme which regulates the dismissal of members of the police force of the Australian Capital Territory, and which bears upon the terms of employment of such members relating to their dismissal. (at p401)

11. Section 5 (2) of the Police Ordinance 1927 provides: "Every appointment to or in connexion with the Police Force shall be made in writing and, subject to the provisions of this Ordinance relating to the Police Arbitral Tribunal and to industrial agreements, shall be on such terms and conditions as to remuneration and otherwise (not being terms or conditions relating to discharge, dismissal, retirement, or resignation from the Police Force) as the Minister thinks proper, and every person appointed to be a member of the Police Force shall be subject to such regulations for the discipline and good government of the Police Force as are prescribed". The Police Arbitral Tribunal has jurisdiction to hear and determine all matters relating to the remuneration and the terms or conditions of service of members of the police force: s. 5A. (at p402)

12. It is provided by s. 7 (1) of the Police Ordinance 1927, that on taking or subscribing the oath or affirmation a person is deemed to have entered into a written agreement with Her Majesty to serve as a member of the police force, ". . . until the employment of the person as a member of the Police Force is terminated in accordance with a provision of this Ordinance or of the Regulations". (at p402)

13. It is provided by s. 7 (1A) that the agreement shall not be set aside, cancelled or annulled for want of reciprocity. (at p402)

14. Section 7AA (1) prohibits a member resigning from the police force without the written permission of the Minister. That subsection does not apply to certain cases where notice of intention to resign has been given to the commissioner or where the member resigns in order to stand for Parliamentary office. (at p402)

15. Although provision is made for the transfer or retirement of members, there is no provision made in the Police Ordinance 1927 for the dismissal of members. This is despite the terms of s. 7 (1). (at p402)

16. Section 7 (1) was introduced into the Police Ordinance 1927 by amendment in 1958: See Ordinance No. 2, 1958, s. 5. Before 1958, s. 7 (1) contained provisions similar to those which now exist as to the taking of the oath or affirmation being deemed to be the entry into a written agreement with Her Majesty, and that such agreement should not be invalidated for want of reciprocity. However, it was provided in par. (b) that, ". . . the agreement may be cancelled at any time by the discharge, dismissal or other removal from office of any such person or by the resignation of any such person duly accepted". This would appear to give statutory expression to the implied term of the contract of employment between the Crown and the member of the police force, that the member was liable to dismissal at pleasure. (at p402)

17. That provision was replaced in 1958 by the one already quoted which referred to the member's employment being terminated in accordance with the provisions of the Police Ordinance or of the Regulations. By s. 3 of the Ordinance No. 2 of 1958, an amendment was made to s. 5 of the Police Ordinance. Prior to that amendment, the terms of employment of the member were to be such terms as the Minister thought proper. The amendment introduced the exception which still remains in s. 5, that such terms do not include terms of employment relating to discharge, dismissal, retirement or resignation from the police force. (at p403)

18. Prior to 1958 there was also contained in the Regulations, reg. 8, which provided that if a member of the police force was convicted of an indictable offence, (or engaged in any other business or conduct which interfered with the proper performance of his duties), he should forthwith forfeit his appointment as a member of the police force. That regulation was repealed by the Police Regulations No. 3 of 1958. (at p403)

19. From 1958 until 1972, the Regulations gave substance to s. 7 (1) by prescribing a scheme for punishment of a member of the police force guilty of misconduct or of an offence against the Police Ordinance or the Regulations. If a member was guilty of certain specified conduct, he was liable to be punished by the commissioner by caution, reprimand or fine. In the case of serious misconduct the member was liable to be suspended by the commissioner while the matter was referred to the Minister. The Minister was expressly empowered to "dispense with the services" of the offending member, or impose a lesser punishment. Where a member was punished by the commissioner, a right of appeal to the Minister was given: reg. 11. (at p403)

20. A further procedure was available under reg. 11A, whereby the Minister, if he had cause to believe that a member had committed an offence against the Police Ordinance 1927 or against the Regulations could charge the member with the offence. The member was called upon to answer the charge in writing, and if it was denied, the charge was heard by a board of inquiry or a person appointed to hear the charge, in a quasi-judicial proceeding. The board or the person hearing the charge was required to report to the Minister, and the Minister, after considering the report, was empowered to punish an offending member, inter alia, by dispensing with his services. Regulations 11 and 11A were repealed on 23rd November, 1972, by reg. No. 12 of 1972. (at p403)

21. On 23rd November, 1972, the Police (Disciplinary Provisions) Ordinance 1972 came into operation. By Pt II of that Ordinance (ss. 4-17), there is established a Police Appeal Board. Division 1 of Pt III (ss. 18-28) deals with general duties of members of the police force. Division 2 of Pt III (s. 29), provides that the commission of certain specified conduct constitutes a disciplinary offence. Division 3 of Pt III (ss. 30-33) enumerates certain disciplinary powers of the commissioner. Where it appears to the commissioner that a member may have committed a disciplinary offence, he may cause to have served on that member a notice giving particulars of that disciplinary offence, notifying the member that within seven days he may give a written statement to the commissioner in connexion with the alleged offence, and stating that the member is entitled to appear before the commissioner at the hearing of the matter (s. 30(1)). The member is to be given further notice of the time the commissioner is to hear the matter (s. 30 (2)). The commissioner is required to determine whether the member has committed the disciplinary offence, having regard to the matter contained in the member's written statement and any oral evidence of the member given at the hearing (s. 31). Section 32 (1) provides that where the commissioner has determined that the member has committed a disciplinary offence, the determination shall be recorded, and the commissioner may punish the member by reprimand; by fine not exceeding $40; by reduction in rank; by reduction of salary within the limits of salary fixed for the member's rank; or by dismissal. No express provision is made for a further hearing after the determination is made on the question of penalty. Section 30 (3) requires the commissioner to serve notice on the member of the determination and of the punishment imposed. (at p404)

22. Where the member is an officer, different provisions apply whereby penalties are imposed by the Minister on the commissioner's recommendation. (at p404)

23. Part IV (ss. 34-42) of the Ordinance provides for an appeal by way of rehearing to the Police Appeal Board against the commissioner's determination, or against the severity of the punishment, or both. A member is entitled to be legally represented on the hearing of the appeal, and a record of evidence is to be kept. (at p404)

24. Part V of the Ordinance (ss. 43-48) is headed "Miscellaneous". Section 43 provides for an appeal from the Police Appeal Board to the Supreme Court. Section 44 empowers the commissioner to suspend a member (not being an officer), who is charged with a disciplinary offence. The material parts of s. 45 have already been quoted. Sections 46 to 48 are not relevant to the present case. (at p404)

25. The first question raised for determination is whether the respondent was liable to be dismissed at pleasure, pursuant to the exercise of a right of the Crown to dismiss its servants at pleasure. Counsel for the commissioner argued that the Crown's right to dismiss its servants at pleasure was relevant in two ways. First, it was submitted somewhat faintly that s. 45 (2) (a) of the Police (Disciplinary Provisions) Ordinance 1972 was a delegation of that right by the Crown to the commissioner in relation to those servants of the Crown who were members of the police force. Secondly, it was submitted that, even if the commissioner when acting under s. 45 (2) (a) was exercising a different power, in determining whether the commissioner was obliged to afford natural justice, the court should bear in mind the residual power of the Crown to dismiss at pleasure and should hold that natural justice did not have to be given when the commissioner exercised the powers given him by s. 45 (2) (a). Counsel for the commissioner referred to Ryder v. Foley [1906] HCA 61; (1906) 4 CLR 422 ; Fletcher v. Nott [1938] HCA 25; (1938) 60 CLR 55 ; Kaye v. Attorney-General for Tasmania [1956] HCA 3; (1956) 94 CLR 193 ; and Lee v. Fletcher (1967) Tas SR 142 . Counsel for the respondent argued that the respondent was not liable to be dismissed at pleasure. He referred to Gould v. Stuart (1896) AC 575 . (at p405)

26. The general principle is that unless contrary provision is made expressly or by necessary implication by statute, there is to be implied in the contract of employment of the Crown and its servant, a term whereby the Crown may dismiss its servant at pleasure and the servant may not resign from service except with the Crown's consent. Gould v. Stuart (1896) AC 575 is a case where it was held that contrary provision was made. What is the position in the present case? Here the provisions regarding employment are contained in the Police Ordinance 1927. As has been seen, prior to 1958, s. 7 (1) contained a statutory expression of the Crown's power to dismiss at pleasure. When that subsection was amended to provide for termination of a member's employment "in accordance with a provision of this Ordinance or the Regulations", there may well have been a statutory modification of that power. That view derives some support from the amendment of s. 5 of the Ordinance which was made at the same time. While the Police Regulations provided a scheme for the dismissal of members for misconduct, that part of s. 7 (1) which related to dismissal continued to have substance. On the repeal of regs. 11 and 11A of the Police Regulations, the words in s. 7 (1) relating to the termination of employment in accordance with a provision of the Police Ordinance or of the Regulations, no longer had any application to dismissal. I do not find it necessary to decide what is the present position after these amendments of the right of the Crown to dismiss members of the police force at pleasure. (at p405)

27. Assuming, without deciding, that the Crown continues to possess that right, the question arises whether s. 45 (2) (a) of the Police (Disciplinary Provisions) Ordinance 1972 effects a delegation of that right to the commissioner. If there has been such a delegation, the commissioner is entitled to exercise the power on the recording of a conviction of the necessary kind against the member to be dismissed. The question is entirely a matter of the proper construction of the relevant Ordinances. (at p405)

28. The history of ss. 5 and 7 of the Police Ordinance 1927 has been stated. Prior to 1972 those sections dealt in part with the right of the Crown to dismiss members of the police force at pleasure, and modified the harsh effects of the exercise of that power. Those sections were not amended when the Police (Disciplinary Provisions) Ordinance 1972 was enacted. As this particular right of the Crown had been regulated by the Police Ordinance 1927, it would need to be made very clear that a provision of the Police (Disciplinary Provisions) Ordinance 1972 provided for a delegation of that right, where a delegation would, to some extent, withdraw the protection which the Police Ordinance 1927 had hitherto afforded. Indeed, the power of dismissal is but part of the power conferred on the commissioner by s. 45 (2). That subsection confers a disciplinary power on the commissioner in respect of a conviction of a member for an offence and enumerates the penalties which may be imposed, the most serious of which is dismissal. As the power to dismiss under s. 45 (2) (a) is but part of a wider power conferred on the commissioner by the subsection, it becomes apparent that s. 45 (2) (a) is not an independent provision by which the power of the Crown to dismiss members of the police force at pleasure is delegated to him. Rather, s. 45 (2) (a) confers de novo on the commissioner a powe to dismiss in the specified circumstances. (at p406)

29. The second submission of counsel for the commissioner relating to the Crown's power of dismissal at pleasure, is dealt with below. (at p406)

30. I turn now to the question whether natural justice should have been accorded to the respondent. (at p406)

31. The learned trial judge held that, having regard to the nature of the office held, the circumstances in which the commissioner is entitled to exercise his power, and the sanction which is imposed on the member, the member ought to be afforded a hearing before the power of dismissal was exercised. (See Durayappah v. Fernando (1967) 2 AC 337 ). His Honour further held that the legislature should be presumed not to be ousting the member's right to natural justice, unless it made that intention clear by the use of unambiguous language in the Ordinance conferring the power of dismissal on the commissioner. His Honour was unable to find any expression that the legislature intended the member's right to natural justice to be excluded. (at p406)

32. It was argued by counsel for the commissioner on this appeal that to approach the construction of the statutory power under s. 45 (2) (a) with any presumption in mind, was incorrect. It was submitted that those authorities which say that there is a presumption that the legislature is not to be taken as intending that the right to a hearing should be ousted, confine such statements to cases where the donee of the power is obliged to exercise it in judicial or quasi-judicial proceedings. It was said that where the decision was not to be made in the context of a judicial or quasi-judicial proceeding, but was to be made administratively, there was no presumption as to the manner in which the statute conferring the power to make the decision should be construed. (at p406)

33. In Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 CLR 383, at pp 395-396 Dixon C.J. and Webb J., in the course of stating their reasons, with which Taylor J. agreed, said: "For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v. Wandsworth Board of Works [1863] EngR 424; (1863) 14 CB (NS) 180, at p 194; [1863] EngR 424; 143 ER 414, at p 420 , Byles J. said that a long course of authority established 'that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature'. The older authorities ever recur to the lines from Seneca's Medea which apparently were introduced into the subject by Boswel's case [1572] EngR 48; (1583) 6 Co Rep 48b, at p 52a; [1572] EngR 48; 77 ER 326, at p 331 : Quicunque aliquid statuerit, parte inaudita altera, Aequum licet statuerit, haud aequus fuerit; cf. Bonaker v. Evans [1850] EngR 923; (1850) 16 QB 162, at p 171; [1850] EngR 923; 117 ER 840, at p 844 ; Re Hammersmith Rent-Charge [1849] EngR 726; (1849) 4 Ex 87, at p 97; [1849] EngR 726; 154 ER 1136, at p 1140 . The general principle has been restated in this Court with a citation of authority in Delta Properties Pty. Ltd. v. Brisbane City Council [1955] HCA 51; (1955) 95 CLR 11, at p 18 . It is hardly necessary to add that its application to proceedings in the established courts is a matter of course. But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment." (at p407)

34. Although these remarks are confined to cases where a person's rights are affected by decisions taken in a judicial or quasi-judicial proceeding, it should be remembered that at the time they were made, it was a widely-held view that it was only in relation to such proceedings that a person was entitled to be afforded natural justice. It was not until Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 was decided that it was held that a duty to act judicially could be inferred merely from the fact that one person taking administrative action was thereby affecting another person's rights, and that it was not necessary to find such a duty from other circumstances. Previously the "superadded" duty to act judicially was most often found, if it was found at all, in the circumstance that the decision affecting rights was required to be made in judicial or quasi-judicial proceedings. The decision in Ridge v. Baldwin provided the impetus necessary to remove the question of whether natural justice was required to be afforded, from a process whereby the action affecting rights was classified as judicial, quasi-judicial or administrative. (at p407)

35. In deciding Durayappah v. Fernando (1967) 2 AC 337 the Privy Council abandoned this process of classification and in a well-known passage referred to three important matters which the courts should bear in mind when deciding whether or not natural justice is required to be afforded. It was said: "These three matters are: first, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other" (1967) 2 AC, at p 349 . (at p408)

36. The High Court has considered the applicability of the rules of natural justice in several cases since Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 CLR 383 - see Brettingham-Moore v. Municipality of St. Leonards [1969] HCA 40; (1969) 121 CLR 509 ; Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 51 ALJR 193 ; Salemi v. Minister for Immigration and Ethnic Affairs [1977] HCA 26; (1977) 51 ALJR 538 ; Re MacKellar, Minister for Immigration and Ethnic Affairs; Ex parte Ratu [1977] HCA 35; (1977) 51 ALJR 591 ; and Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 51 ALJR 703 . (at p408)

37. In Heatley v. Tasmanian Racing and Gaming Commission, in his reasons for judgment with which Stephen J. and Mason J. agreed, Aickin J. said: "The basic principles concerning the occasions when the principles of natural justice must be complied with are not in doubt and have recently been restated in the House of Lords and in this Court. It has been established at least since Cooper v. Wandsworth Board of Works (1863) 14 CB (NS), at pp 189, 194-195; [1863] EngR 424; 143 ER 414 that the obligation to observe the principles of natural justice attaches whether the authority is judicial or administrative. See also Municipal Council of Sydney v. Harris [1912] HCA 11; (1912) 14 CLR 1, at p 15 . Notwithstanding that, there has been a tendency to hold that there is no such requirement in what are sometimes called 'purely' administrative or executive powers. The decision of the House of Lords in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 , re-emphasized that this distinction does not exist" (1977) 51 ALJR, at p 707 . (at p408)

38. After referring to the fact that the cases were recently reviewed in Twist v. Randwick Municipal Council [1976] HCA 58; (1977) 51 ALJR 193 , Aickin J. then continued with the citation from that case of the following passage from the judgment of Barwick C.J.: "The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal: see Cooper v. Wandsworth Board of Works [1863] EngR 424; (1863) 14 CB (NS) 180; 143 ER 414 , and R. v. Electricity Commissioners: Ex parte London Electricity Joint Committee Co. (1920) Ltd (1924) 1 KB 171, at p 205 . But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power. But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation decided what opportunity should be afforded, the court, being bound by the legislation as much as is the citizen has no warrant to vary the legislative scheme. But if it appears to the court that the legislature has not addressed itself to the appropriate question, the court in the protection of the citizen and in the provision of natural justice may declare that statutory action affecting the person or property of the citizen without affording the citizen an opportunity to be heard before he or his property is affirmed is ineffective. The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice. In my opinion, this statement of relevant principle is in accord with the authorities, including particularly the case of Wiseman v. Borneman (1971) AC 297 ' " (1977) 51 ALJR, at p 194 . (at p409)

39. The weight of authority is against the contention advanced by counsel for the commissioner. The presumption that the legislature is not to be taken as intending that the right to a hearing (required by the rules of natural justice) should be ousted, is not confined to judicial or quasi-judicial proceedings. In any particular case it still remains necessary to interpret the particular legislative provisions. In provisions dealing with administrative action, it may, in the nature of things, be more often found that the presumption has been rebutted. (at p409)

40. The question remains in the present case - Is the commissioner obliged to afford a hearing when exercising the power of dismissal under s. 45 (2) (a)? If one pays regard simply to the terms of s. 45 (2) (a) itself, it would seem that the general rule requiring natural justice to be afforded would apply. The nature of the office or position affected, the circumstances in which the commissioner is empowered to act and the variety of sanctions which he may impose, appear to me to point in favour of a requirement that natural justice be afforded. (at p410)

41. Dealing with the office or position of the respondent, it is a significant office or position and it is his means of livelihood. As has already been mentioned, counsel for the commissioner argued that there was a power in the Crown to dismiss at pleasure, which ran parallel to the power conferred on the commissioner by s. 45 (2) (a). It was submitted that the fact that the respondent was liable to be dismissed at pleasure meant that little weight should be given to his office or position. This latter submission does not appear to me to be sound. The fact that the right in question was terminable at will was not regarded as lessening the force of the rule requiring natural justice in Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 51 ALJR 703 . Assuming as I do for the purpose of this discussion that the right to dismiss at pleasure continued in the Crown, the fact is that it was not exercised. Until the exercise of that power, the respondent was entitled to continue in the enjoyment of his office. The statutory power conferred upon the commissioner has to be interpreted as empowering him to interfere with an existing office or position. (at p410)

42. The commissioner is entitled to act upon a conviction being recorded against a member. This is a fact which can be objectively determined and which does not require any subjective assessment as would a power to act, e.g., on misconduct or unfitness being shown. However, convictions for offences against the law of the Commonwealth or of a State or Territory can be imposed with respect to a range of conduct involving very wide degrees of heinousness. No doubt s. 45 (2) was enacted because the conviction of a member of the police force for whatever offence will be of serious concern to the commissioner, indeed to the community, but the wide range of penalties for which the subsection provides indicates that the commissioner will have to exercise his judgment carefully in deciding what, if any, penalty to impose in any particular case. (at p410)

43. The sanction imposed bears the nature of a penalty and affects the livelihood of a member and this points to the desirability of the power being qualified by the principles of natural justice. (at p410)

44. Upon these considerations I presume that the legislature intended the power conferred on the commissioner by s. 45 (2) (a) to be qualified by the principles of natural justice. In my view, even in the most extreme case, as for example where a member has been convicted of an offence involving the taking of bribes or of a conspiracy to pervert the course of justice, it would be appropriate to give the member some opportunity to be heard before being dismissed. Presumably in such a case the member would already be under suspension pursuant to s. 45 (1), and that suspension could be continued until dismissal. It might be contended, for example, that rather than being dismissed under s. 45 (2) and possibly re-instated under s. 45 (5) if an appeal against the conviction was successful, the suspension should continue until the appeal was disposed of. The member should have an opportunity to make such a contention. Thus I would presume that the legislature intended the power itself to be qualified by natural justice. (at p411)

45. Is there any context which would throw light on the interpretation of this provision? It does appear from the terms of the Police (Disciplinary Provisions) Ordinance 1972, that the legislature at least directed its mind to the question of a hearing. Extensive provision is made for a code of procedure which includes the right to make representations and to bring appeals, in respect of disciplinary offences. However s. 45 (2) is included in a part headed "Miscellaneous" and has no antecedents in the way Pt III could be said to have had in regs. 11 and 11A (now repealed) of the Police Regulations. If one examines carefully the way in which a disciplinary offence has been defined, it appears that s. 45 (2) was deliberately framed so as to cover a different field. (at p411)

46. Section 29 of the Ordinance provides:

"A member who -

(a) contravenes or fails to comply with a provision of the last
preceding division;

(b) contravenes or fails to comply with the general orders and
instructions;

(c) is guilty of disgraceful or improper conduct, either in his
official capacity or otherwise;

(d) is negligent or careless in the discharge of his duties;

(e) acts in a disorderly manner or in a manner unbecoming a
member of the Police Force;

(f) acts in a manner that is prejudicial to the good order and
discipline of the Police Force;

(g) acts in a manner that brings discredit to the reputation of the
Police Force; or

(h) is, while on duty, under the influence of intoxicating liquor or
drugs,
is guilty of a disciplinary offence and is subject to punishment in
accordance with the next succeeding Division." (at p411)

47. The fact that a conviction has been recorded against a member may mean that he has committed a disciplinary offence if his conduct was such as to attract one of the paragraphs of s. 29, or even because, having been convicted of an offence he has acted in a manner that brings discredit to the reputation of the police force (s. 29 (g)). Nevertheless, although there will be some such overlap, the draftsman in framing s. 29 and s. 45 obviously intended the sections to operate from different bases. An illustration of this is that a breach of Divn 1 Pt III which prohibits members of the police force from engaging in certain conduct, is punishable only as a disciplinary offence. A breach is not punishable on indictment or summary conviction, and is thus not within the ambit of s. 45. (at p412)

48. It follows that if the draftsman had the code laid down in respect of disciplinary offences in mind when framing s. 45, consideration must have been had to the provision for a hearing before action was to be taken under s. 45 (2). The legislature's silence on this question is thus deliberate, yet nevertheless equivocal. Silence might mean that no hearing need be provided, or that the common law principles of natural justice should apply and that a hearing of some sort should be provided. (at p412)

49. In Salemi v. Minister for Immigration and Ethnic Affairs [1977] HCA 26; (1977) 51 ALJR 538 both Barwick C.J. and Gibbs J. took the view that it may be possible to draw from a deliberate legislative silence an inference that the legislature did not intend the grant of power to be qualified in any way. That, however, must depend on the circumstances surrounding the grant of power in every case. The remarks of Barwick C.J. and Gibbs J. must be read in the light of the facts in Salemi's case where the party asserting a right to natural justice was a prohibited immigrant and in their Honours' view was without any right of residence which could be protected by natural justice. There, in their Honours' view, the circumstances surrounding the grant of power suggested that the power was not intended to be qualified by natural justice, and the fact that the legislature was silent on the provision for a hearing supported that suggestion. (at p412)

50. In this case, the circumstances suggest that natural justice should be afforded and the presumption thus raised is not rebutted by the fact that the legislation is deliberately silent on the matter. (at p412)

51. Had the legislature set up an elaborate code of procedure with which action under s. 45 (2) had to comply, it would be more difficult for the court to supplement that procedure than where, as here, there is a bare grant of power unhedged by any legislative safeguards. (at p412)

52. I can find no other indication in the Police (Disciplinary Provisions) Ordinance 1972 to suggest that the legislature intended to exclude the principles of natural justice. It follows that in my opinion the commissioner was obliged to give the respondent an opportunity to be heard before dismissing him under s. 45 (2) (a). I make no comment on what form that hearing should take. (at p412)

53. It was not argued that if the commissioner was obliged to give the respondent a hearing before dismissal, certiorari would not go to quash the commissioner's decision. (at p412)

54. I would dismiss the appeal with costs. (at p412)

SMITHERS J. This is an appeal from an order of Franki J. making absolute a writ of certiorari directed to the respondent to the effect that a decision of the appellant to dismiss the respondent was quashed. (at p413)

2. The decision of the appellant was taken pursuant to s. 45 (2) (a) of the Police (Disciplinary Provisions) Ordinance 1972. Section 45 of the Ordinance is to be found in Pt V of the Ordinance which is headed "Miscellaneous". It provides: "(2) If, upon the hearing of the charge by a court, the officer or member is found guilty of the offence, the Minister may, in the case of an officer, or the Commissioner may, in the case of a member - (a) dismiss the officer or member from the Police Force; . . ." (at p413)

3. It appears that on 4th February, 1977, the respondent then a sergeant third class of police in the Australian Capital Territory police force was convicted in the Canberra Court of Petty Sessions on three charges, one of stealing certain property of the Commonwealth, and two others of taking property without lawful authority; in one case out of the control of the Commonwealth and in the other out of the custody of the Commonwealth. On each of the charges the appellant was fined $30. On the same day at about 3 p.m. appeals were lodged in respect of each conviction. (at p413)

4. Shortly after mid-day on the same day, 4th February, 1977, the respondent who had previously been under suspension with pay by reason of a charge being preferred against him of conspiracy, received a letter, signed by the appellant Mr. Wilson, the Commissioner of Police, which omitting formal parts, reads as follows:

"To: Robert Alexander George Donaldson
A member of the Police Force. (at p413)

5. On 4th February, 1977, you were found guilty of offences against the law of the Commonwealth, to wit, an offence against s. 71 and two offences against s. 30 of the Crimes Act 1914. (at p413)

6. "As a consequence, and acting pursuant to s. 45 (2) (a) of the Police (Disciplinary Provisions) Ordinance 1972, I dismiss you the said Robert Alexander George Donaldson from the Police Force with effect from 12 midday on 4th February, 1977. (at p413)

7. "You are directed to forthwith deliver to the stores clerk at Police Headquarters, Canberra City, all accoutrements, clothing and other property supplied to you for the execution of your office as a member of the Police Force." (at p413)

8. The decision of the learned judge rested upon his conclusion, after a review of the relevant authorities, that the respondent was entitled to natural justice so that the commissioner's power to dismiss the respondent pursuant to s. 45 (2) (a) could not be exercised until the respondent had been given an opportunity to be heard on the question of the power being exercised against him. (at p413)

9. It was said on behalf of the appellant that the reasoning by which the learned judge reached this conclusion involved acceptance by him of the proposition that unless it was made unambiguously clear by the terms of the Ordinance that in the circumstances the respondent was not entitled to be heard before the commissioner exercised his power under s. 45 (2) then as a matter of law he should be held to be so entitled. (at p414)

10. The appellant contended that although such a proposition was well founded where the powers to be exercised are judicial or quasi-judicial it was not applicable where administrative or executive powers were concerned. He contended that the powers conferred on the commissioner by s. 45 (2) were not judicial or quasi-judicial and accordingly the learned judge had been in error in coming to his conclusion by applying to them the proposition set out above. (at p414)

11. The learned judge relied in particular on the decision of the High Court in Twist v. Randwick Municipal Council (1977) 51 ALJR, at p 194 and the statement by the Chief Justice therein that: "The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal . . . But the legislature may displace the rule and provide for the exercise of such power without any opportunity being afforded the affected person to oppose its exercise . . . However, if that is the legislative intention it must be made unambiguously clear." (at p414)

12. However, since the decision in Twist's case the High Court had occasion to return to the subject in Salemi v. Minister for Immigration and Ethnic Affairs [1977] HCA 26; (1977) 51 ALJR 538 . In that case the court considered the Minister's power of deportation under s. 18 of the Migration Act 1958 (Cth). The Minister had made an order for the deportation of the plaintiff Mr. Salemi who was a prohibited immigrant without affording him an opportunity to be heard in opposition to the making of that order. It was the plaintiff's submission that before exercising his power to order the deportation of a prohibited immigrant the Minister should accord to him natural justice in the form of a hearing, first informing him of the grounds on which he, the Minister, was considering ordering deportation. (at p414)

13. Barwick C.J. speaking of a power conferred by statute said: "Of course, the Parliament is not bound to provide that natural justice be accorded. It may enact a power which it intends should be exercised by its donee without regard to the demands of natural justice. In such a case, the courts cannot override the intention of the Parliament. It is not necessary that that intention should be expressly stated. Prima facie, the courts will conclude that the Parliament does not intend injustice or to authorize it. However, mere silence on the part of the Parliament does not mean that the courts are therefore free to import the obligation to accord natural justice. It still remains for the courts to find what I have called the qualification of the power by construing the statute taking into consideration all the elements to which I have referred. It is most important, in my opinion, that the courts do not transgress the line dividing the judicial from the legislative function. To do so is to weaken both functions which ought for the health of society to retain their mutual independence" (1977) 51 ALJR, at p 541 . (at p415)

14. It seems clear that in construing a statute conferring a power of making decisions affecting the property or personal rights of individuals the notion that Parliament is presumed to intend the power to be exercised fairly may legitimately play a part. One could conclude from this that in any case in which the statute contained no unequivocal express or implied provisions indicating that natural justice is or is not to be extended to the subject this notion would decide the matter in favour of the subject. However, this is not universally the case - Salemi's case [1977] HCA 26; (1977) 51 ALJR 538 illustrates this well enough. (at p415)

15. Accordingly the decision must be found by general considerations arising from the context and policy of the whole statute. This kind of problem is comparable to that discussed by Dixon J. as he then was, in O'Connor v. S.P. Bray Ltd. [1937] HCA 18; (1936) 56 CLR 464, at pp 477-478 . There the problem was whether a statute, which was silent on the point so far as its express provisions were concerned, conferred private rights of action upon a person injured as the result of a breach of standards of conduct required by the statute. The learned judge said: "The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument. Sometimes it almost appears that a complexion is given to the statute upon very general considerations without either the authority of any general rule of law or the application of any definite rule of construction. An illustration may be found in a comparison of the decision and reasoning in Phillips v. Britannia Hygienic Laundry Co. (1923) 2 KB 832 with those in Monk v. Warbey (1935) 1 KB 75 . Perhaps in the end, a principle of law will be acknowledged as the foundation of the cases." (at p415)

16. In Salemi's case [1977] HCA 26; (1977) 51 ALJR 538 in the examination of the Migration Act the justices who concluded that the power of deportation conferred by s. 18 thereof was not qualified by a requirement that natural justice be accorded to the person affected pointed out a number of considerations which were treated as supporting that view. They noted that the legislation was concerned with a national interest of paramount importance which could be prejudiced by regard to fairness and which could not be hedged around with principles that the judiciary are wont to consider; the power was to be exercised according to government policy for which ultimately there was responsibility to Parliament rather than to some principle of justice; a prohibited immigrant could have no lawful or legitimate expectation of natural justice and no claim to the consideration of his personal circumstances; and in the exercise of the power the Minister is not required to determine any question, or to form any satisfaction or opinion before making the order, the matter is left entirely to his discretion. (at p416)

17. The power conferred on the appellant does not exist in circumstances to which comments such as these apply. The interest of the community in the purity of the police force is a vital one but its protection does not involve secrecy, security and action of the same order as does the safety of the nation. In any particular case the appellant in exercising the power would in a broad sense reflect government policy but he would do so by reference, inter alia, to the quality of blameworthiness on the part of the respondent as assessed by him. Also, the respondent was not without legitimacy. He lawfully held an office and employment of great value to him. It has been said that the rules of natural justice are in a broad sense a procedural matter - see Commissioner of Police v. Tanos (1958) 98 CLR, at p 396 . In Salemi's case Stephen J. said: "What the present plaintiff seeks initially is no more than the observance of proper procedure. To require that the Minister should, in exercise of his powers under s. 18 observe the rules of natural justice involves no encroachment upon the breadth of his discretionary power to order deportation. Instead it merely ensures that he will bring to the exercise of that power a due observance of long-established patterns of procedural fairness. To do so will not fetter the exercise by the Minister of the power conferred upon him by s. 18; it will, on the contrary, positively assist him towards a fair and just exercise of that power, precisely such an exercise as the legislature must be taken to have intended" (1977) 51 ALJR, at pp 556-557 . (at p416)

18. What is claimed for the appellant in these proceedings is a discretion under s. 45 (2) as wide, subject to bona fides, as that of the Minister in deportation proceedings under s. 18 of the Act. But the following observations may be made: (a) No doubt the primary object of s. 45 (2) is the preservation of the purity of the police force. It is essential to the public and the police force that persons unworthy to exercise the powers and duties of police officers or members should not be permitted to do so. But it is consistent with this object and indeed conducive to it that it be pursued with fairness to those whose interests are at stake. (b) The exercise of the power requires the appellant to make a judgment as to whether the member should be dismissed or reduced in rank. It is necessarily implied that the judgment is to be made according to principle. The interests of the community in the integrity of the police force are to be balanced against an assessment of the merits and demerits of the member concerned. It is impossible to infer from the grant of the power that it could be exercised capriciously, or carelessly, or on personal grounds, or indeed in any other way than upon an assessment of all the matters that a wise and just administrator would take into account. If this be conceded then a quasi-judicial process is seen to be involved. (c) There is no prejudice to the police force as such if natural justice is extended. The statute has provided for suspension under s. 45(1) before the process under s. 45 (2) arises. Delay involved in giving the member an opportunity to be heard is thus unimportant. (d) If the commissioner is to perform his duty under s.45 (2) fairly the matters to be taken into account would not only be the fact that the member had suffered a conviction, but also the nature of the offence, the circumstances under which it was committed and its relevance to the duties of the police force. No doubt also the length and quality of service would be relevant. Unless the member is heard there is a real possibility that relevant matters may not be brought to the notice of the most conscientious commissioner. (e) The extreme diversity in the seriousness of the event giving rise to the commissioner's power should be noted. The severe punishment within the commissioner's powers arises not only in respect of heinous crime but of petty crime. Where rights are at stake in such an uncertain situation a right to be heard is very important. (at p417)

19. One turns therefore to the three considerations referred to in Lord Upjohn's speech in the decision of the Privy Council in Durayappah v. Fernando (1967) 2 AC 337 : first, the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. The office held by the respondent was valuable indeed, of paramount value to him and his status was that of a person with rights to continuity in that status and office. Secondly, the circumstances and occasion in which the appellant claims to be entitled to exercise the power against the respondent. Those circumstances are discussed above and would appear to involve the appellant in a duty to make judgments as to the appropriateness of the course to be taken by him according to some principle. Thirdly, the sanction which the appellant was entitled to impose upon the respondent was in its nature a sanction of great severity and calculated to work a great hardship. (at p417)

20. It is to be seen therefore that consideration of the factors specified by Lord Upjohn supports the view that on its proper interpretation the Ordinance requires that before exercising the appellant's power under s. 45 (2) the respondent should be heard: cf. the principles applied by the High Court in Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 51 ALJR 703 . (at p418)

21. But the appellant referred the court to Divn 3 of Pt III of the Ordinance and pointed out that although in relation to consideration of the guilt or innocence of a member of the police force on a charge in respect of a disciplinary offence, procedural provisions ensuring natural justice to the member are provided in s. 30 of the Ordinance, no such provisions appear in s. 32 which empowers the commissioner to (a) dismiss the member, (b) reduce the officer to lower rank, or (c) reduce the salary of the member. (at p418)

22. It is said on its proper interpretation s. 32 empowers the commissioner to make his recommendation without giving the member an opportunity to be heard on the matter. And it was urged that s. 45 (2) should be seen to reflect a similar legislative approach, namely that when the basis for the exercise of the imposition of the sanction had been established, the power to choose and impose the sanction was in the absolute discretion of the commissioner without giving the member an opportunity to be heard therein. (at p418)

23. It is unnecessary to express a view as to whether s. 32 should be interpreted as urged by the appellant. It is enough to observe that under s. 32 the sanction is imposed by the commissioner after he himself has heard and determined the charge and under Pt IV of the Act the sanction as well as the determination is subject to a right of appeal to the Police Appeal Board. (at p418)

24. Under s. 45 (2) the relevant offence is heard and determined by a court in proceedings of which the commissioner will normally have no personal knowledge and there is no right of appeal from the commissioner. (at p418)

25. When in the light of the foregoing it is necessary to answer the question whether it is the legislative intention that the powers of the appellant under s. 45 (2) may be exercised only after according to the respondent a right to be heard it may be said (a) that consideration arising under the three factors specified by Lord Upjohn point to an affirmative answer; (b) the legislative objects pursuant to which the power was conferred are not prejudiced by an affirmative answer; (c) the exercise of the power involves the formulation of opinions and judgment of the merits of alternative courses akin to judicial process; and (d) every considerations of justice and fairness require such an answer. (at p418)

26. Having regard to the reconsideration of the subject in Salemi's case [1977] HCA 26; (1977) 51 ALJR 538 it may be said that the likelihood that Parliament intends to act fairly is a matter distinctly relevant to the interpretation of a statute conferring on an authority power to affect the rights of a person. (at p418)

27. It was said however that notwithstanding the provisions of the relevant Ordinances the respondent as a servant of the Crown was subject to dismissal at pleasure. For reasons expressed in the judgment of Bowen C.J. which I have had the opportunity of reading and with which I agree, I do not find it necessary to decide whether the respondent was so subject to dismissal. His dismissal was not effected pursuant to the residual right of the Crown to dismiss its servants at pleasure. (at p419)

28. The power of the commissioner which was exercised was conferred upon him by the relevant Ordinance independently of such a residual right. If there is such a right it plays no part in the construction of the Ordinance. (at p419)

29. Having regard to the foregoing observations I am of opinion that s. 45 (2) should be interpreted as enacting that the powers conferred on the appellant may be exercised only in accordance with the principles of natural justice and therefore only after according to the respondent an opportunity to be heard. (at p419)

30. Accordingly the appeal should be dismissed with costs. (at p419)

BLACKBURN J. I concur in the reasons for judgment of the Chief Judge and I have nothing to add.

ORDER

Order accordingly.