Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55 (4 May 1938)

This is an appeal from a decision of the Full Court of the Supreme Court of New South Wales given upon a special case stated under the provisions of the Common Law Procedure Act 1899 N.S.W. in an action in which the plaintiff appellant sued the defendant respondent as a nominal defendant on behalf of the Government of New South Wales.

The action in which the special case was stated is an action in which the plaintiff claimed against the Crown £10,000 damages for wrongful dismissal. The special case submitted for the opinion of the court the question whether, in the events which had happened as set out in the case, an action for wrongful dismissal lay against the Crown in respect of what purported to be a dismissal of the plaintiff from his position of a constable of police by the Commissioner of Police on 2nd December 1936, or in respect of what purported to be a dismissal by the Governor in Council on 5th February 1937.

The plaintiff was appointed as a police constable by the Inspector-General of Police under the Police Regulation Act 1899. In 1936 an inquiry into the subject of starting-price betting was held by his Honour Judge Markell as Royal Commissioner. The report of Judge Markell stated that the plaintiff had "framed" a man for a starting-price betting offence and had given false evidence. The Colonial Secretary, who is the Minister in charge of the administration of the police force under the Police Regulation Act, sec. 4, ordered that the plaintiff be suspended from duty, and on 2nd December 1936 directed that he was to be dismissed from the police service. The Commissioner of Police (who by virtue of the Police Regulation Act 1935 has been substituted for the inspector-general) then dismissed the plaintiff. On 5th February 1937, the Governor in Council approved a recommendation that the dismissal of the plaintiff be affirmed. The plaintiff was notified accordingly. These are the two dismissals referred to in the special case.

The Police Regulation Act 1899, sec. 12, provides that rules may be made by the Governor "for the general government and discipline of the members of the police force." It is contended that the provisions of these rules confer upon the plaintiff a right to a formal inquiry before he can be dismissed for any failure to perform his duty or for any misconduct. The Police Regulation (Appeals) Act 1923 establishes a Police Appeal Board which can hear appeals from (inter alia) any decision of the commissioner which involves dismissal. It is contended that the effect of this Act is that the plaintiff can be dismissed only if the procedure laid down by the Act is followed. The defendant, on the other hand, contends that the plaintiff held his office at pleasure and that he can, therefore, be dismissed at any time by the Crown, and that he cannot possibly have an action for damages against the Crown for wrongful dismissal.

It will be convenient first to consider the general law with respect to the rights of persons engaged in the service of the Crown, and next to inquire into the effect of the relevant statutes and rules upon which the plaintiff relies.

The Full Court adopted and applied the law as declared in Ryder v. Foley[1]. It was there held by this court, after an examination of the authorities, that "it is an implied term in the engagement of every person in the public service that he holds office during pleasure, unless the contrary appears by statute." Reference was made to the leading cases of Shenton v. Smith[2] and Dunn v. The Queen[3], which are clear authorities establishing this principle.

This general rule of law was not disputed by the plaintiff, but it was contended that, in this case, the statutory provisions to which reference has been made operated so as to exclude the application of the rule in the case of members of the police force in New South Wales, and it was argued that the case fell within the rule in Gould v. Stuart[4], and not within the rule in Shenton v. Smith[5]. In Gould v. Stuart[6] the Privy Council considered the New South Wales Civil Service Act 1884, which contained provisions relating to the entry of officers into the civil service, their classification, salaries, promotion, superannuation allowances, &c., and also provided a scheme under which an officer could be suspended and his suspension reported to the minister. The Act also provided that if the Minister ordered or confirmed a suspension he should report to the Governor, who, after calling on the officer to show cause or make explanation, might remove the suspension or, according to the nature of the offence, dismiss the officer from the service, or reduce him, &c. These provisions, it was held, being "manifestly intended for the protection and benefit of the officer, are inconsistent with importing into the contract of service the term that the Crown may put an end to it at its pleasure"[7].

The case of Ryder v. Foley[8] was decided upon a Queensland statute which contains provisions which are indistinguishable from corresponding provisions in the legislation of New South Wales. The provision relating to the appointment of constables is contained in sec. 6 of the Police Regulation Act 1899. It provides that the inspector-general (now the commissioner) may, subject to disallowance by the Governor, appoint sergeants and constables of police. (The Queensland Police Act 1863 contains a similar provision in sec. 6.) The Police Regulation Act 1899 also provides in sec. 9 that a certain oath shall be taken by members of the police force. Under this oath every person entering the police force is required to swear that he will well and truly serve the King for a period specified in the form of oath and until he is legally discharged. (This section corresponds to sec. 11 of the Queensland Act.) Sec. 10 of the Police Regulation Act 1899 is as follows: "Every person taking and subscribing such oath shall be deemed to have thereby entered into a written agreement with and shall be thereby bound to serve Her Majesty as a member of the police force and in the capacity in which he has taken such oath, at the current rate of pay for such member, and from the day on which such oath has been taken and subscribed until legally discharged: Provided that—(a) no such agreement shall be set aside, cancelled, or annulled for want of reciprocity; (b) such agreement may be cancelled at any time by the lawful discharge, dismissal, or other removal from office of any such person, or by the resignation of any such person accepted by the inspector-general or other person acting in his stead." (This section corresponds with sec. 12 of the Queensland Act.) Further, the Constitution Act 1902 of New South Wales, sec. 47, provides that, subject to the provisions of the Public Service Act 1902 and of all other enactments relating to the appointment of officers, &c., "the appointment of all public officers under the Government ... shall be vested in the Governor, with the advice of the Executive Council, with the exception of the appointments of the officers liable to retire from office on political grounds," and of minor appointments which by any Act or Order in Council are vested in heads of departments or other officers or persons. (This section is found in the Constitution Act 1869 of Queensland in sec. 14.)

Upon these provisions it was held in Ryder v. Foley[9] that there was nothing in the statute to prevent the application of the general rule, so that appointments of constables were at pleasure.

It has been argued upon this appeal that, in view of the provisions of sec. 26 of the Police Act 1863 Amendment Act 1891 of Queensland, there was really little or nothing to argue in Ryder v. Foley[10]. But that section only provided that nothing in the Act of 1891 should be taken to prevent any members of the police force from being discharged, dismissed or otherwise removed from office in the same manner as if the Act (that is, the Act of 1891) had not been passed. Plainly the section could not affect the construction of the earlier Act (1863) which, as I have pointed out in detail, corresponds very closely with the provisions in the Police Regulation Act 1899 of New South Wales. So far as the statutory provisions to which I have already referred are concerned, it is, I think, not possible to distinguish Ryder v. Foley[11] from the present case.

The next question is whether there are other statutory provisions which bring the present case within the principle of Gould v. Stuart[12]. In the first place, the Police Regulation Act 1899 contains in sec. 12 a provision that the Governor may make rules for the general government and discipline of the members of the police force. Rules have been made by virtue of this authority and all the rules have been placed before the court.

Many of the rules consist of advice and instruction to members of the force. Such rules cannot be regarded as establishing rules of law which confer rights; but it is contended that other rules do confer rights on the members of the force. Reference is made particularly to sec. IV. (1) (m), which provides that "police are admitted to the service in accordance with the provisions of the Police Regulation Acts and upon the following conditions ... (m) They will be liable to punishment or dismissal for disobedience, neglect or omission of duty, incompetency, intemperance, disrespect to any person in authority, insolent or indecorous behaviour, or any words or actions subversive of discipline or calculated to impair the efficiency of, or bring discredit upon the police service, or any misconduct punishable by law or contrary to rules and instructions; and will also be liable to such legal penalty as may be incurred." Other rules, under the heading of "discipline", provide for the making of complaints concerning the conduct of officers and for inquiries into such complaints. Provision is made for departmental inquiries into charges formally made. At such inquiries evidence is taken according to a prescribed procedure in the presence of the member of the force who is charged. Further provisions, relating to "open departmental inquiries", deal with cases where such an inquiry has shown that there is ground upon which a charge against a member of the force may be made. In such circumstances the rules provide that a charge shall be formally made and that the procedure for departmental inquiries shall be followed. It is contended that these rules create legal rights so that members of the force can be dismissed only if the procedure set forth in the rules is followed.

In my opinion the rules do not confer upon the plaintiff the right for which he contends, namely, the right to hold his office unless and until he is dismissed in accordance with the rules set forth. If, according to the true construction of the Act, a constable holds his office only during pleasure, no rule made under the Act can alter the conditions of his tenure of office so as to prevent him from being dismissed at the will of the Crown. Servants of the King hold their offices at the King's pleasure. As already stated, this is a long-established principle of law which remains unimpaired save so far as it is affected by statute. See per Rowlatt J. in Rederiaktiebolaget Amphitrite v. The King[13]:—The government "cannot by contract hamper its freedom of action in matters which concern the welfare of the State. Thus in the case of the employment of public servants, which is a less strong case than the present, it has been laid down that, except under an Act of Parliament, no one acting on behalf of the Crown has authority to employ any person except upon the terms that he is dismissible at the Crown's pleasure; the reason being that it is in the interests of the community that the Ministers for the time being advising the Crown should be able to dispense with the services of its employees if they think it desirable." This rule has been altered by statute in many cases in Australia, and civil servants, as a general rule, now have rights which were not thought of in earlier days. Gould v. Stuart[14] provides an illustration of such a case. On the other hand, Cross v. Commonwealth[15] is an example of the complete maintenance of the older rule in the case of the Commonwealth military forces, even though the statute itself in that case provided that the commission of an officer should not be cancelled unless a procedure designed to give him a hearing was observed. Knox C.J. held that these words were directory only and that they conferred no legal rights upon an officer. Sec. 10 of the Police Regulation Act, which has already been quoted, is plainly based upon a recognition of the rule that, as was said in Power v. The King[16] by the Full Court of New Zealand, and in Power v. The Queen[17] by the Full Court of Victoria, the contract between the Crown and a servant of the Crown is unilateral. The servant is bound to serve, and to continue to serve for the term for which he has undertaken to serve, but the Crown is not bound to continue to employ him and may determine the employment at any moment without cause, that is, simply at will. While the employment continues, the relations are contractual in character (Carey v. Commonwealth[18]). But there can be a contract which is determinable at will (Reilly v. The King[19]).

Under sec. 12 of the Police Regulation Act 1899 rules can be made only for the general government and discipline of the police force. A rule which altered the terms of the appointment of members of the force by giving them rights against the Crown which were inconsistent with their legal position as determined by the true construction of the statute would not be a rule merely for the government and discipline of the force. Any rule which, purporting to be made under sec. 12, conferred upon a member of the force a right to be employed unless his dismissal could be justified would, in my opinion, be inconsistent with the Act and would therefore be invalid.

Further, it is clear that rules may be made under a statute for the purpose of informing public servants of the manner in which the right to dismiss will be exercised by the Crown without conferring any legal right upon public servants to have those rules observed. A striking instance is to be found in the case of R. Venkata Rao v. Secretary of State for India[20]. In that case the statute provided in express terms that appointments to the civil service of the Crown in India were appointments during His Majesty's pleasure. The statute also provided that rules could be made for regulating the discipline and conduct of civil servants. Rules were made which contained provisions for proper departmental inquiry before dismissal and for appeal against dismissal. It was held by the Privy Council that the rules did not limit in any way the legal right of the Crown to dismiss at pleasure. Such rules could coexist with such a right in the Crown. They gave to members of the civil service a solemn assurance that the right to dismiss would not be exercised in a capricious or arbitrary manner, but they did not confer any legal rights.

Thus it is recognized by the highest judicial authority that there is no necessary inconsistency between an officer of the Crown holding his appointment at pleasure, and the existence of rules, either contained in a statute or made under a statutory power, which purport to regulate the manner in which an officer is to be dismissed. Such rules do not legally limit the power or manner of dismissal.

The rules made under the Act in this case do not, however, purport to confer rights upon members of the police force. For example, the rule upon which most reliance is placed, namely, sec. IV. (1) (m), informs the members of the force that they will be liable to dismissal in certain cases. Such a rule does not purport to create any rights. It merely informs and warns members of the force that the power of dismissal may be exercised in the circumstances mentioned. The provisions which led the Privy Council in Gould v. Stuart[21] to the decision that there was no power to dismiss at pleasure were very different indeed. In that case there was a series of statutory provisions which brought the matter of the dismissal of any officer through the Minister to the Governor, and they included provisions which specified in detail what the Governor (the Crown) could do. There are no such provisions in the rules made under the Act in this case.

For these reasons I am of opinion that the failure to observe the rules did not give to the plaintiff any right of action.

The plaintiff also relies, however, upon the Police Regulation (Appeals) Act 1923. This Act provides for an appeal against the decision of the commissioner in the case of dismissals in the same way as in the cases of granting or refusal of promotion, and punishment by way of fine or otherwise. The appeal, however, is given only from the decision of the commissioner. No appeal is given from a decision of the Governor in Council.

If, for reasons which I have stated, the appointment of the plaintiff was, by reason of the provisions of the Police Regulation Act 1899, an appointment at pleasure, then the provisions of the Act of 1923 can have no relevance to this case, unless, indeed, the Act were interpreted as providing not merely for appeals from decisions of the commissioner, but as regulating the whole subject matter of dismissal from the police force. In my opinion, however, the Act cannot be regarded as an Act dealing with this whole subject matter. Under the Act an appeal board is constituted and it has a defined jurisdiction, namely, a jurisdiction to hear appeals from decisions of the commissioner. If, in the present case, the only dismissal of the plaintiff had been the dismissal by the commissioner on 2nd December 1936, and if no action had been taken by the Minister and the Governor in Council, the plaintiff would, in my opinion, have been entitled to demand a hearing before the Police Appeal Board. But in the present case the plaintiff was dismissed by the Governor in Council on 2nd February, and no statute contains any provision for an appeal from such a dismissal.

The plaintiff in this action is suing a nominal defendant on behalf of the Crown. He is not suing the commissioner. Unless he can establish that the Crown wrongfully dismissed him he has no cause of action.

As Griffith C.J. said in Ryder v. Foley[22], "the service" (of the plaintiff) "is terminable at pleasure. How can the exercise of that pleasure be wrongful?" Thus the plaintiff's action must fail.

It is not strictly necessary to answer the question asked as to whether the dismissal by the commissioner was lawful, because that question cannot arise in an action against the Crown for damages for wrongful dismissal by the Crown, but it is perhaps desirable to deal with the whole case sought to be made on behalf of the plaintiff. If the commissioner's action can be attributed to the Crown, as having been adopted or ratified by the Crown, then the foregoing reasoning will apply to show that the dismissal, even if without cause, can give no right of action. If, on the other hand, the commissioner had no power to dismiss and his action was not so adopted or ratified, then the position is that the plaintiff has not been dismissed at all. The dismissal is "by reason of its origin bad and inoperative" (Rangachari v. Secretary of State for India[23]). If, however, the commissioner himself had power to dismiss and exercised that power, but unfairly or wrongfully, the remedy of the plaintiff is not by way of action, but by way of appeal to the Police Appeal Board. I proceed to give my reasons for the opinion that the commissioner had power to dismiss the plaintiff—apart altogether from any rights of the Crown—and that the only remedy of the plaintiff is as stated.

In the first place, the commissioner appointed the plaintiff. Therefore he has power to remove him (Interpretation Act 1897, sec. 30). In the second place, the Police Regulation (Appeals) Act, sec. 6, assumes and recognizes a power in the commissioner to dismiss a constable, because it gives an appeal from any decision of the commissioner involving a dismissal. The result, therefore, is that when the commissioner dismissed the plaintiff he was acting within his powers, subject to the right of appeal given to the plaintiff by the Act of 1923. The dismissal stands as lawful unless the decision of the commissioner is reversed or varied by the Minister after an appeal to the Police Appeal Board. The remedy of the plaintiff for any unfair dismissal by the commissioner is to be found in an appeal to the board and not in an action for wrongful dismissal (Compare Browne v. Commissioner for Railways[24]).

The conclusion that the plaintiff has no right of action for wrongful dismissal whether he was dismissed by the commissioner or by the minister is, I think, placed beyond dispute by the provisions of sec. 8 of the Police Regulation (Appeals) Act, which is as follows: "Notwithstanding anything contained in any other Act, no appeal from a decision, either of the appeal board, or of the Minister (or, save as hereinbefore provided, from the inspector-general), with respect to any member of the police force shall lie or be permitted to any court or tribunal whatsoever, and no writ of prohibition or mandamus or certiorari shall lie in respect thereof." The commissioner, as already explained, now takes the place of the inspector-general. This section prevents an appeal to any court by a member of the force from a decision of the Minister. Similarly it prevents any appeal to any court from a decision of the commissioner. An action in which a constable complains of wrongful dismissal by the commissioner or by the Minister must, in my opinion, be regarded as an appeal to a court from a decision of the commissioner or the Minister when he has been dismissed under such a decision. Upon any other interpretation of sec. 8 the provision would be quite ineffectual. Thus sec. 8 provides a further answer to the plaintiff's claim.

For the reasons which I have given the judgment of the Full Court was right and the appeal should, therefore, be dismissed.

In Shenton v. Smith[25] it was said "that, unless in special cases where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown." The appellant, who was a constable of police, contends that in relation to the police force it is otherwise provided. He bases the contention on the existence of statutory regulations providing a method of laying charges and disposing of them by means of inquiry, report to and action by the commissioner, and upon the existence of a statutory appeal to a board constituted under the Police Regulation (Appeals) Act 1923. No doubt all this was intended to increase the security of members of the police force against dismissal on ill-founded or insufficient grounds. But I doubt whether the regulations are more than administrative for the guidance of the force, and it is clear that the Police Regulation (Appeals) Act 1923 confers a right of appeal against decisions of the commissioner only. Neither rules nor statute appear to me to be directed to the control or restriction of the powers of the Executive Government. In England at common law a police constable did not hold an office in the service of the Crown. But in Australia the police force has been part of the service of the Crown. From that mere fact it follows prima facie that a police constable, like other officers, is liable to dismissal by the Governor in Council, whether with or without cause. There is nothing, in my opinion, to take police constables in the New South Wales force out of the general rule. The appellant received notice of his dismissal from the commissioner, but he gave it under the direction of the Minister, whose action was confirmed by an Order in Council. This, I consider, amounts to dismissal under the power of the Crown.

Appeal from a judgment of the Supreme Court of New South Wales upon a case stated by the parties in an action in that court.

The Police Regulation Act 1899 authorized the Inspector-General of Police (now styled the Commissioner of Police, Act 1935 No. 13), subject to disallowance by the Governor, to appoint constables of police for the preservation of peace throughout New South Wales. Constables so appointed were required to take an oath prescribed in sec. 9, and every person taking and subscribing such oath was deemed to have entered into a written agreement with and was thereby bound to serve His Majesty as a member of the police force until legally discharged, provided that no such agreement should be set aside for want of reciprocity and that such agreement might be cancelled at any time by the lawful dismissal, discharge or other removal from office of any such person.

The Interpretation Act 1897, sec. 30, provides that whenever by any Act power is given to His Majesty or to any officer or person to make appointments to any office or place it shall, unless the contrary intention appears, be intended that His Majesty or the Governor, or such officer or person, shall have power to remove or suspend the person appointed.

The appellant had been appointed a police constable under the Police Regulation Act 1899.

A Royal Commission (see Act 1923, No. 29) had been issued by the Governor of New South Wales and in 1936 the commissioner reported that the appellant and other officers of police had been guilty of serious misconduct. Whereupon the Chief Secretary (the Minister administering the Police Regulation Act) directed the Commissioner of Police first to suspend the appellant and others and then, on 2nd December 1936, to dismiss them from the force. The Deputy Commissioner of Police (See Act 1933, sec. 4 (1)) dismissed the appellant and others accordingly.

On 5th February 1937, the Governor in Council confirmed the dismissal and also passed an executive minute that the appellant and others "and each and every of such members be dismissed from the police force of New South Wales." The action of the Governor in Council was communicated to the appellant by the Commissioner of Police.

The appellant then commenced an action against the respondent, as nominal defendant on behalf of the Government of New South Wales pursuant to the Claims against the Government and Crown Suits Act 1912, for wrongful dismissal. The case was stated in this action and the questions for determination were: Whether an action for wrongful dismissal lies by the plaintiff—the appellant here—against the Crown in respect of either or both of the following acts:—(a) the purported dismissal on 2nd December 1936; (b) the purported dismissal on 5th February 1937.

The appellant as a member of the police force of New South Wales was an officer in the service of the Crown. And it is now well settled that servants of the Crown hold their office during the pleasure of the Crown unless the contrary is provided by law (Shenton v. Smith[26]; Gould v. Stuart[27]; R. Venkata Rao v. Secretary of State for India[28]; Ryder v. Foley[29]).

The statutory power given to the commissioner to appoint and dismiss constables is a delegated power: it is an expeditious way, as O'Connor J. said in Ryder v. Foley[30], by which when necessity arises a constable's services with the Crown might be terminated. But it is an additional authority and in no wise cuts down the right of the Crown itself to dismiss a constable (Ryder v. Foley[31], per Barton J.).

The appellant, however, contends that he did not hold office at the pleasure of the Crown and that he could only be dismissed by a procedure which he claims is provided by the Police Regulation Act 1899 and rules made thereunder and by the Police Regulation (Appeals) Act 1923. The Police Regulation Act 1899, sec. 12, authorized the Governor to make rules for the general government and discipline of members of the police force. Under this power the Governor in Council purported to make rules relating to conditions of service and discipline of the force. They are set forth in detail in the transcript, and I shall not go through them in detail. Somewhat similar provisions have been fully considered by the Judicial Committee in R. Venkata Rao v. Secretary of State for India[32], by this court in Ryder v. Foley[33], and by the Supreme Court of New Zealand in Power v. The King[34]. All these tribunals denied that such provisions affected the tenure of office of constables or conferred any right upon them. The conclusion reached was that the provisions constituted administrative machinery necessary or desirable for the management and discipline of the police force.

The reasons assigned for the conclusion are applicable to the present case and may be found at large in the cases mentioned. But there is an additional provision relevant to this case which is contained in the Police Regulation (Appeals) Act 1923. It, by sec. 6, provides that any member of the police force, if dissatisfied with any decision of the inspector-general (now Commissioner of Police) in regard to the granting or refusal of promotion to him or the imposition upon him of any punishment where such punishment consists of the infliction of a fine, suspension or reduction whether in rank or pay, dismissal, discharge or transfer, may give notice of appeal from such decision to a Police Appeal Board constituted by the Act. The decision of the board and the report and recommendation of the Commissioner of Police must be forwarded to the Minister administering the Act to be considered by him and his decision is final. No appeal by sec. 8 lies or is permitted to any court or tribunal whatsoever and no writ of prohibition or mandamus or certiorari lies in respect thereof. All this is part of the same administrative scheme for the management and discipline of the police force and is, to adopt the words of the Judicial Committee in R. Venkata Rao v. Secretary of State for India[35], "a statutory and solemn assurance that the tenure of office, though at pleasure, will not be subject to capricious and arbitrary action, but will be regulated by rule."

The result is that both the questions stated in the case should be answered in the negative, as they were answered by the Supreme Court, and the appeal dismissed.

Under the combined effect of sec. 6 of the Police Regulation Act 1899-1935 and of sec. 30 of the Interpretation Act 1897 the Commissioner of Police may appoint and dismiss constables of police. Under sec. 12 of the former Act the Governor in Council is authorized to make rules for the general government and discipline of the police force. Under this power rules have been made which provide how charges against a member of the police force should be formulated, notified, inquired into and dealt with. The rules provide for a hearing before an officer who is to draw up his comment and state whether he finds the charge proved or not, and to submit the record to the superintendent or the commissioner. Under the Police Regulation (Appeals) Act 1923 a board is constituted called the "Police Appeal Board." From decisions of the commissioner of a disciplinary nature a constable or other police officer may appeal to this board. In particular an appeal lies against dismissal by the commissioner.

Although the procedure set out in the rules was not followed, the plaintiff appellant was dismissed from the police force, in which he held the rank of constable. This dismissal was directed by the Minister and communicated to him by the commissioner. Afterwards the dismissal was confirmed by the Governor in Council.

The plaintiff complains that he was wrongfully dismissed. He says that the rules, considered with the statutory provisions giving an appeal from dismissal by the commissioner, operate to impose conditions upon his liability to removal from office and that, as these conditions were not observed, his dismissal from the force was wrongful.

In my opinion the short answer to the plaintiff's case is that a final or residuary power of dismissal without cause belongs to the Executive Government and that his removal from office was effected by the Governor in Council. For the purposes of the case, it may be assumed in the plaintiff's favour that the rules and the statutory provisions for appeal do regulate the mode in which the commissioner's statutory power of removal may be exercised and the conditions upon which its exercise becomes finally effective. It is unnecessary to consider to what extent the assumption is valid, though plainly it is open to question whether some at least of the rules relating to charges of a disciplinary kind are not merely directory. But neither the rules nor the Police Regulation (Appeals) Act govern removal from office by the Governor in Council. No statutory provision invests the Governor in Council with a power of removing members of the police force from office. But, on the other hand, none takes it away. In my opinion the power exists. Its existence is due to the simple fact that the police force is in New South Wales a regular service of the Crown. It is a disciplined force in the service of the Crown. Unless statute otherwise provides, either expressly or by implication, those who serve in such a capacity hold office at the pleasure of the Crown. 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.

I do not think that, when a power of appointing and dismissing police constables is given by statute to the commissioner, this is any evidence of a legislative intention to abrogate or exclude the power or removal otherwise residing in the Crown.

This appeal from the Supreme Court of New South Wales is brought to determine whether police constables hold office upon the condition that the Crown has the power to dismiss at pleasure. Such is the condition which ordinarily applies to servants of the Crown: and, to adopt the words of the Judicial Committee in R. Venkata Rao v. Secretary of State for India[36], "the question is: Does the present case fall into the general category defined and illustrated by Shenton's Case2(1895) A.C. 229.; or the more exceptional category defined and illustrated by Gould's Case3(1896) A.C. 575.?"

To support his contention that the case resembles Gould's Case[39], the plaintiff relied upon the rules made in pursuance of the Police Regulation Act 1899. By sec. 12 of that Act the Governor is empowered to make rules "for the general government and discipline" of the members of the police force. Rules were duly made. They consist of twenty sections providing, inter alia, for the distribution and organization of the force, for the enrolment, promotion and discipline of officers and for conditions of service.

It is to be noted that sec. IV. (1) (v), dealing with conditions of service, is mainly set out in descriptive or narrative form. Further, when closely examined, each condition seems rather to emphasize existing legal liabilities and obligations rather than to describe existing rights or to confer new rights. For instance, clause 1 (m) of sec. IV. states that the police are liable to punishment or dismissal in respect of a large number of matters mentioned in the rule. It is not possible to read clause 1 (m) as an exclusive specification of the causes for which punishment or dismissal may be imposed.

Sec. IX. (10) (dealing with discipline) declares that complaints against police officers should be committed to writing so that, if disciplinary action is required or intended, a definite charge will be preferred and such a procedure will be adopted as will enable the officer charged to know what is alleged against him, and to make full answer. But here again the rules refrain from employing language of command and strongly suggest that what is being done is to direct each person concerned how he is to behave and conform himself, not to give any legally enforceable right to the officer charged or to alter the contract or any part of it to which he is a party.

These prima facie conclusions from the rules are greatly reinforced by a consideration of the statute itself. Sec. 9 shows that the service of the constable is the service of the Crown. Sec. 10 makes the oath of office of a constable equivalent to a written agreement to serve the Crown from the day on which the oath has been taken until the officer has been legally discharged from his obligations. Next, sec. 10 (a) provides that the agreement is binding despite "want of reciprocity." By sec. 10 (b), the agreement may be cancelled "at any time" by the lawful discharge of the officer. The "want of reciprocity" referred to in sec. 10 (a) seems to refer to the fact that, while no member of the police force is at liberty to resign unless he gives three months' notice of such intention (sec. 18), the Crown is under no similar or analogous obligation. It seems to follow at once that the Crown may dispense with the services of the officer without any notice whatever.

It is in the setting of the above statutory provisions that sec. 12 (conferring the rule-making power) must be viewed. I think that Mr. Watt was right in arguing that Ryder v. Foley[40] turned to some extent upon the special provisions of Queensland legislation; none the less the conclusion to be drawn from the Act of 1899 is that not only does it fail to remove officers of police from the general category of Crown servants liable to be dismissed at pleasure but it provides practically conclusive evidence that they are included within the general category; further, the special disciplinary rules as to the procedure in case of charges were not intended to (and in fact could not) remove the officers of police from the general category.

Up to this point the plaintiff's case should fail. But attention must be directed to the Police Regulation (Appeals) Act 1923. Sec. 6 thereof gives every member of the police force dissatisfied with the decision of the commissioner a right to appeal to the Police Appeal Board, consisting of a District Court judge. The jurisdiction of the District Court judge includes questions of promotion and questions of punishment, including dismissal. The right of appeal is from the decision of the commissioner. After the Police Appeal Board hears the appeal, it forwards its decision to the commissioner, who transmits to the Minister all the departmental documents, including a report and recommendation of his own. The Minister is thereupon required to consider the matter, and his decision is made final. Sec. 8 provides that no appeal from a decision either of the appeal board or of the Minister or of the commissioner shall be permitted to any court whatsoever.

It is plain that this Act is of fundamental importance in the good government of the police force of New South Wales. The scheme is that while officers are deprived of all redress before the ordinary courts of law, they are given, by way of compensation, a right of access to an independent tribunal, appointed for seven years, well experienced in the exercise of judicial power, and presumably specially acquainted with the administrative problems affecting the force. It seems to contemplate that, in the first instance, the commissioner should himself give a decision and that in respect of all matters of promotion and punishment the jurisdiction of the minister—whose decision is final—should be appellate and not original. In other words, the scheme is that the officers of police who are placed under the jurisdiction of a commanding officer shall be entitled to obtain his decision upon the vital questions of promotion and punishment; and although such decision is made subject to ultimate ministerial control it is expected that the Minister will never intervene until after the appeal board has heard all parties concerned—including the commissioner—and pronounced its decision. Of course, the appeal board's decisions are not made binding upon the Minister. None the less it would be a most serious responsibility for the Minister to refuse to act upon the decision of the appeal board.

Thus, the interposition of the independent tribunal operates as a continuing guarantee to every officer in the police force. Its very existence is calculated to prevent serious injustice to individuals by making the judgment of the political officer subject to the check and safeguard of a public hearing of grievances or charges where all really concerned can be heard. By such means administrative action is controlled by open investigation before a judicial officer. The importance of the public hearing is universally recognized. And, in regard to judicial proceedings proper, Lord Shaw said:—"It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice" (Scott v. Scott[41]).

In the present case the device of direct ministerial intervention set at nought the scheme of the Police Regulation (Appeals) Act. A Royal Commission had inquired into certain matters affecting the administration of the Gaming and Betting Act and the conduct of police officers in relation thereto. It is elementary that under New South Wales law a Royal Commission exists for the purpose of investigation and report. It is not intended to be a substitute for statutory tribunals with jurisdiction over departmental officers, nor can its finding that a charge is proved have the effect accorded to the finding of a court of justice. A Royal Commission may have to embark upon a general investigation and in the course of doing so deal incidentally with dozens of so-called "charges" not specifically referred to in its terms of reference. As a result there is an absence of the safeguards which usually attend a separate investigation of each individual charge, for one case is apt to be confused with another, causing danger of injustice to individuals. When finally a Royal Commission embodies its conclusions in a report, it may choose to make findings against individuals; but such findings can never be judicial findings in the strict sense, they are merely administrative opinions.

However, by reference to the Royal Commissioner's report officers like the plaintiff were deprived of the benefits of the Police Regulation (Appeals) Act 1923. The Minister directed the commissioner to dismiss instead of allowing the commissioner to exercise his own discretion in each case. By these means the commissioner accepted no responsibility for the dismissals. Consequently, when the police officers sought to appeal to the Police Appeal Board the absence of any "decision" of the commissioner was held fatal to the jurisdiction of the board. It is very probable that such a result was never intended by the Royal Commissioner. It is quite possible that, after open inquiry, the appeal board would have reached a conclusion similar to that of the Royal Commissioner, but it is equally possible that it would have reached a different conclusion. In the latter event the final decision would have rested with the Minister, but he would have had the enormous advantage, and the officer of police concerned would have had the enormous protection, of a reasoned decision against dismissal. In my opinion, it is very regrettable that in these cases neither the Commissioner of Police nor the appeal board was allowed to fulfil the functions specified in the Act of 1923 and intended to be exercised in accordance therewith.

But the question remains whether the Police Regulation (Appeals) Act 1923 precludes the Minister or the Executive Government from terminating the plaintiff's services. Does that Act intend that except in accordance with its own scheme of appeals all questions of promotion and dismissal shall be removed from direct political control? The plaintiff is confronted with the difficulty that, prior to the Act of 1923, the Crown had the right of dismissal at pleasure and that it is quite possible that such a right can coexist with the scheme embodied in the Act. On the whole I do not think that the 1923 Act intends to interfere with decisions as to dismissal, providing that the Executive Government chooses to accept primary responsibility. The fact that the Act of 1923 preserves ministerial control only by way of final resort is not sufficient to warrant the inference that the pre-existing power of primary ministerial control by dismissal has disappeared.

Upon the admitted facts the dismissals of 2nd December 1936 and 5th February 1937 were each dismissals by the Minister acting on behalf of the Crown. Although the method of procedure adopted deprived the commissioner of his normal responsibility and stripped the plaintiff of his normal right of appeal to the independent Police Appeal Board, the dismissals were lawful and the judgment of the Supreme Court should be affirmed.

[1] (1906) 4 C.L.R., at pp. 435, 436.

[2] (1895) A.C. 229.

[3] (1896) 1 Q.B. 116.

[4] (1896) A.C. 575.

[5] (1895) A.C. 229.

[6] (1896) A.C. 575.

[7] (1896) A.C., at p. 578.

[8] [1906] HCA 61; (1906) 4 C.L.R. 422.

[9] [1906] HCA 61; (1906) 4 C.L.R. 422.

[10] [1906] HCA 61; (1906) 4 C.L.R. 422.

[11] [1906] HCA 61; (1906) 4 C.L.R. 422.

[12] (1896) A.C. 575.

[13] (1921) 3 K.B. 500, at pp. 503, 504.

[14] (1896) A.C. 575.

[15] [1921] HCA 9; (1921) 29 C.L.R. 219.

[16] (1929) N.Z.L.R. 267, at p. 283.

[17] (1873) 4 A.J.R. 144.

[18] [1921] HCA 54; (1921) 30 C.L.R. 132.

[19] (1934) A.C., at pp. 178-180.

[20] (1937) A.C. 248.

[21] (1896) A.C. 575.

[22] (1906) 4 C.L.R., at p. 436.

[23] (1937) L.R. 64 Ind. App. 40, at p. 53.

[24] (1935) 36 S.R. (N.S.W.) 21; 53 W.N. (N.S.W.) 1.

[25] (1895) A.C., at pp. 234, 235.

[26] (1895) A.C. 229.

[27] (1896) A.C. 575.

[28] (1937) A.C. 248.

[29] [1906] HCA 61; (1906) 4 C.L.R. 422.

[30] (1906) 4 C.L.R., at p. 451.

[31] (1906) 4 C.L.R., at pp. 444, 445.

[32] (1937) A.C. 248.

[33] [1906] HCA 61; (1906) 4 C.L.R. 422.

[34] (1929) N.Z.L.R. 267.

[35] (1937) A.C., at p. 257.

[36] (1937) A.C., at p. 256.

[37] (1895) A.C. 229.

[38] (1896) A.C. 575.

[39] (1896) A.C. 575.

[40] [1906] HCA 61; (1906) 4 C.L.R. 422.

[41] (1913) A.C. 417, at p. 477.

High Court of Australia

Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55 (4 May 1938)

HIGH COURT OF AUSTRALIA