Trower v Commonwealth [1924] HCA 27; (1924) 34 CLR 587 (27 June 1924)

HIGH COURT OF AUSTRALIA

Trower Plaintiff; against The Commonwealth Defendant.

H C of A

27 June 1924

Isaacs A.C.J., Gavan Duffy and Starke JJ.

Wassell (with him Fahey and Murray Graham), for the plaintiff.

Macgregor (with him McGill), for the defendant,

The Court delivered the following written judgment:—

June 27

Isaacs A.C.J.,

Gavan Duffy and Starke JJ.

The point argued was that referred to in the report of the former judgment in this action[1], namely, whether the plaintiff has, under sec. 60 of the Commonwealth Public Service Act 1902-1911, a larger right than under sec. 84 of the Constitution.

For the plaintiff, it was contended (1) that sec. 60 (b) of the Act did not, as does the Constitution, contain, with respect to officers, the limitation "who at the establishment of the Commonwealth"; (2) that sec. 60 (b), construed as free from that limitation, was valid and operative; and (3) that the plaintiff had, under State law at the time of his transfer to the Commonwealth Service, a right to remain in the Service until he reached sixty-five years, or unless his service was terminated in manner prescribed by the Queensland Public Service Acts (Consolidated) 1896-1920. It is unnecessary to enter upon the first two points argued, because the third, which is essential to the plaintiff's case, is in our opinion not tenable. His appointment to the Commonwealth Service was not under the Commonwealth Public Service Act, of which sec. 60 is a part. That Act was passed under the powers contained in chapter I. of the Constitution. The plaintiff was appointed under the provisions of Ordinance No. 6 of 1913, made by the Governor-General in Council in pursuance of the powers conferred by the Northern Territory Acceptance Act 1910 and the Northern Territory (Administration) Act 1910. Those Acts were passed under the powers contained in sec. 122 of the Constitution, portion of chapter VI. Not only does sec. 60 of the Commonwealth Public Service Act not apply to the plaintiff of its own force, but the ordinance under which his appointment was made, and by the terms of which he is bound, contains affirmative provisions inconsistent with such application. By sec. 4 of the ordinance the term "Public Service," unless the contrary intention appears, is declared to mean the Public Service of the Northern Territory. Sec. 6 provides that "Nothing in this ordinance ... (b) shall affect the right of the Governor-General to dispense with the services of any person employed in the Public Service." This declaration standing at the threshold, so to speak, of the regulative provisions of the ordinance, is an express reservation of the power of the Crown, acting by the central administration, to control the personnel of the Public Service of the Territory. Then, and always subject to that reservation, ministerial—really departmental—powers are given to regulate the Service. In this instance the Governor-General in Council dispensed with the services of the plaintiff under the ordinance. That, in view of the power reserved, is in our opinion fatal to the plaintiff's claim.

This question having been disposed of, the Court now formally pronounces judgment. Judgment will be entered in the action for the defendant.

Judgment for defendant with costs.

Solicitors for the plaintiff, Hobbs, Curnow, Flemming & Caine.

Solicitors for the defendant, Chambers, McNab & McNab, for Gordon H. Castle, Crown Solicitor for the Commonwealth.

[1] (1923) 32 C.L.R., at p. 591.