Reedman v Hoare [1959] HCA 50; (1959) 102 CLR 177 (16 September 1959)

HIGH COURT OF AUSTRALIA

REEDMAN v. HOARE [1959] HCA 50; (1959) 102 CLR 177

Police (Q.)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Taylor(3) and Windeyer(4) JJ.

CATCHWORDS

Police (Q.) - Sub-Inspector - Servant of Crown - Tenure of office - Common law right of Crown to dismiss at pleasure - Whether right qualified by statute - The Police Acts 1937 to 1948 (Q.), ss. 10, 73.

HEARING

Brisbane, 1959, June 24, 25;
Sydney, 1959, September 16. 16:9:1959
APPEAL from the Supreme Court of Queensland.

DECISION

September 16.
The following written judgments were delivered:-
DIXON C.J. In my opinion this appeal should be dismissed. I do not desire to conclusion. (at p179)

McTIERNAN J. The substantial question in this case is whether the statute called The Police Acts 1937 to 1948 (Q.), the Act upon which this appeal depends, affects the power which the Crown enjoys at common law to dismiss at pleasure a member of the Police Force, appointed and holding office under that Act. By reason of s. 3(iii) the appellant is deemed to have been at all material times a member of the Police Force appointed and holding office under the provisions of the Act. According to the terms of a minute of the Executive Council at a meeting held on 5th January 1950 the Governor in Council approved of his appointment as a sub-inspector of police, in pursuance of the provisions of The Police Acts 1937 to 1948, and according to the terms of a minute of the Executive Council held on 15th February 1951 the Governor in Council approved of the dismissal of the appellant from the Police Force, in pursuance of the provisions of The Police Acts 1937 to 1948. Section 8 of the Act confers power upon the Governor in Council to appoint sub-inspectors and inspectors of police. That section read with ss. 3(1) and 25(1)(b) of The Acts Interpretation Act of 1954 (Q.), is a power not only to appoint such officers but also to remove them from office. Section 73 of The Police Acts provides that: "Save as is herein otherwise expressly provided nothing in this Act contained shall be taken to prevent any member of the Police Force from being discharged, dismissed, or otherwise removed from office in the same manner in all respects as if this Act had not been passed". The appellant referred to the second proviso of s. 10 as an express provision preventing the discharge, dismissal or removal of a constable by the Crown without complying with the conditions contained in that proviso. In order to bring himself within the operation of that express provision, the appellant contended that despite the minute of the Executive Council approving of his appointment to the rank of sub-inspector he never ceased to be a constable of police having the protection of that proviso. It is unnecessary to examine the question whether his appointment as sub-inspector was, as he contends, invalid or, if valid, did not take away his rights as a constable, because it is plain that the provision of the second proviso regulating the discharge or dismissal of a constable upon which he relies applies only to the Commissioner and does not affect the power of the Crown to discharge or dismiss a member of the Police Force at will, without complying with any such conditions as the provision in question imposes upon the Commissioner. (at p180)

2. Another contention advanced by the appellant was that the minute of the Executive Council was really an Order in Council and for that reason s. 75 of The Police Acts required it to be published in the Gazette and laid before the Legislative Assembly. However, the Court was not referred to any statutory provision requiring that the dismissal of a member of the Police Force by the Crown take place by Order in Council. The decision of the Governor in Council that the appellant be dismissed from the Police Force was in itself sufficient. According to the terms of the minute of the decision of the Executive Council, the dismissal of the appellant took effect from the time at which it was made. (at p180)

3. The appellant argued his appeal clearly and temperately. But I think that there is no substance in any of his contentions, and that the appeal should therefore be dismissed. (at p180)

TAYLOR J. As appears from the special case the questions which it raises for our consideration are concerned with the right of the Crown to dismiss, at pleasure, a member of the Police Force of the State of Queensland. The appellant was originally appointed a constable of police on 1st December 1920 pursuant to The Police Acts 1838 to 1912 (Q.) and after the passing of The Police Act of 1937 (Q.) he was, by virtue of s. 3(iii), deemed to have been appointed under that Act. The relevant legislation is now contained in The Police Acts 1937 to 1948 (Q.). At the time of his alleged dismissal he was, however, a sub-inspector of police having been so appointed on 5th January 1950. His dismissal, if it was effective, took place on 15th February 1951 and a notification to the effect that His Excellency the Governor, with the advice of the Executive Council, in pursuance of the provisions of The Police Acts 1937-1948 and on the recommendation of the Commissioner of Police, had been pleased to direct that the appellant be dismissed from the Police Force was published in the Government Gazette on 17th February 1951. (at p180)

2. During argument the appellant, who appeared in person, questioned the validity of his appointment as a sub-inspector in order that he might maintain that at the time of his dismissal he was a constable of police within the meaning of that expression as used in the second proviso to s. 10 of the current Acts but there are several reasons why it is unnecessary to consider this particular question. One of these may be mentioned at once. It is that immediately prior to his appointment as a sub-inspector of police he held the rank of senior sergeant and, if he was not validly appointed as a sub-inspector, his substantive rank immediately before his dismissal was that of senior sergeant. It will be presently seen that s. 10 draws a clear distinction between "sergeants" and "constables" of police and it is plain that the latter expression in the second proviso does not include a reference to sergeants of police nor, indeed, to sub-inspectors of police. (at p181)

3. It is, perhaps, unnecessary in the light of the decisions in cases such as Ryder v. Foley [1906] HCA 61; (1906) 4 CLR 422; Fletcher v Nott [1938] HCA 25; (1938) 60 CLR 55; and Kaye v Attorney-General for Tasmania [1956] HCA 3; (1956) 94 CLR 193 to reassert the general rule that persons in the service of the Crown may, in the absence of some effective restriction by statute or otherwise on the rights of the Crown, be dismissed at pleasure. It should be said at once that this general proposition was not disputed by the appellant. What is contended, however, is that the second proviso to s. 10 of The Police Acts operated to deprive the Crown of its prerogative right to dismiss him at pleasure and, alternatively, that, even if his primary contention is wrong, considerations of justice required that he should be acquainted with the reasons for his projected dismissal and be given an opportunity to show cause before the right was exercised. (at p181)

4. The second contention may be disposed of at once. As an independent argument it assumes that the right of the Crown to dismiss a person in its service is a right to dismiss for cause. It is, of course, nothing of the kind; it is a right to dismiss at pleasure and, accordingly, is not subject to any such condition or restriction as the argument suggested. It may be added that there is no indication in the material before us why the appellant was dismissed and it is not for us to inquire whether it was for some dereliction of duty or not. (at p181)

5. The primary contention requires a consideration of s. 10 and the provisions of that section should be set out in full: "The Commissioner shall appoint so many sergeants and constables of police of different grades as he deems necessary for the preservation of the peace throughout Queensland, and upon sufficient proof of misconduct or unfitness, to be submitted for the approval of the Governor in Council, shall have power to dismiss any sergeant or constable, and all sergeants and constables of whatever grade shall so long as they continue members of the said Police Force have all such powers, privileges, and advantages and be liable to all such duties and responsibilities as any constable duly appointed now has or hereafter may have either by the common law or by virtue of any Statute or Act of Council or Order in Council now or hereafter in force in the State: Provided that every person who is appointed to be a constable, and who has not previously been a member of the Police Force of this State, shall be appointed in the first instance for one year only and may, if the Commissioner considers he is unsuitable for any reason whatsoever to continue in the Police Force, be discharged by the Commissioner at any time before the expiration of one year from the day of such person's first appointment as a constable, and without assigning any reason other than that the Commissioner considers he is unsuitable to continue in the Police Force: Provided further, that every constable who is not discharged before the expiration of one year from the day of his appointment shall, without reappointment, be deemed to be appointed generally and without limit of time, and shall not be liable to be discharged against his own will or dismissed by the Commissioner otherwise than after investigation of a charge of an offence or for unfitness as provided by this Act: Provided, however, that nothing contained in this Act shall prevent any member of the Police Force of the Northern Territory of the Commonwealth of Australia, or any member of the Police Force of any other State of the Commonwealth of Australia, from being appointed a sergeant or constable of the Police Force of the State of Queensland if the Superintendent of Police of the Northern Territory of the Commonwealth of Australia, of the Commissioner of Police of any of the other States of the Commonwealth of Australia, so requests, and such member may be sworn in and shall thereupon be charged with the duties set forth in his oath of office, and shall be a member of the Police Force of the State of Queensland until his appointment is terminated by the Commissioner; but any such officer on being so appointed shall not be deemed to be in the employment of the Commissioner, and shall not be personally entitled to any privileges or gratuity under this Act, or to receive any salary or allowances from the Commissioner except as may be provided for by the authority in whose employment he is." It will be seen that the section vests in the Commissioner the power to appoint sergeants and constables of police. He is also authorized to dismiss any sergeant or constable but he may do so only "upon sufficient proof of misconduct or unfitness" and with the approval of the Governor in Council. In substance these are the relevant provisions of the first paragraph of s. 10. Then follow two provisos. The first deals with the initial appointment of constables and, obviously, it has no application whatever to sergeants of police. Constables, in the first instance, are to be appointed for one year only and, if the Commissioner considers any constable so appointed is unsuitable for any reason whatsoever to continue in the police force, he may at any time within the first year of that person's service discharge him from the police force and he may do so without assigning any reason other than that specified. The second proviso, however, makes it clear that if a constable survives the first year's service he is to be "deemed to be appointed generally" and he "shall not be liable to be discharged against his own will or dismissed by the Commissioner otherwise than after investigation of a charge of an offence or for unfitness as provided" by the Acts. The function of appointing inspectors and sub-inspectors of police is vested in the Governor in Council by s. 8 and it was pursuant to this section that the appellant was appointed a sub-inspector. But s. 8 does not contain any provision with respect to the dismissal of inspectors or sub-inspectors such as are to be found in the first paragraph of s. 10 with respect to the dismissal of sergeants and constables. It should be mentioned that s. 73 of the Acts provides that save as is otherwise expressly provided nothing in the Acts "shall be taken to prevent any member of the Police Force from being discharged, dismissed, or otherwise removed from office in the same manner in all respects as if this Act had not been passed". (at p183)

6. For the purpose of making good his assertion that his dismissal was unlawful the appellant refers to the second proviso to s. 10. For his purposes the material provision is that which provides that a constable who by virtue of its terms is deemed to be appointed generally and without limit of time "shall not be liable to be discharged against his own will or dismissed by the Commissioner otherwise" than after an investigation of the character specified. Initially he says that he is a constable of police and he asserts that he continued to hold this ancient office whether his appointment as a sub-inspector was valid or not. Then, the argument runs, the words "shall not be liable to be discharged against his own will" are quite general and do not constitute a restriction on the power of the Commissioner only. (at p183)

7. The first step in the appellant's contention on this point is sufficiently answered by the fact, already mentioned, that s. 10 itself makes a clear distinction between sergeants of police and constables of police and that the use of the expression "constable" in the second proviso cannot be taken to include a reference to persons who have been appointed as sergeants of police or to some higher rank. Accordingly, it is of no consequence that, and we need not stop to inquire whether, notwithstanding the appellant's appointment as a sergeant and, subsequently, as a sub-inspector, he remained invested with the authority or some of the authority of the office of constable. The further answer may also be made that the second proviso applies only to constables who, having survived their probationary period, are deemed by the terms of the second proviso to be appointed generally and, as already appears, the appellant does not fall within this category. He was appointed a constable of police as early as 1920 and, therefore, could not at any time have been deemed, pursuant to the second proviso, to be appointed generally. (at p184)

8. A no less certain answer may be made to the next step. The second proviso was plainly designed to deal with the position of a constable who had survived his probationary period of one year. Within that period he might be discharged by the Commissioner without assigning any reason other than that specified. But after the expiration of that period he is to be deemed to be appointed generally and may not be discharged against his own will or dismissed by the Commissioner except for cause and after the prescribed investigation. The word "discharge" is a repetition of the expression which appears in the first proviso and the word "dismiss" repeats that which is found in the first paragraph. Both describe functions committed to the Commissioner and the second proviso can be understood only as complementary to those provisions. Firstly it reiterates that the power of the Commissioner, under the first proviso, to discharge a constable during his probationary period comes to an end at the termination of that period and secondly it makes it clear that when the Commissioner no longer has authority to discharge a constable pursuant to the first proviso the latter's appointment is to be general, without limit of time and subject only as far as the Commissioner is concerned, to dismissal in the exercise of the power conferred by the first paragraph of s. 10. (at p184)

9. In my view, these considerations make it manifest that the second proviso to s. 10 was not intended to restrict the right of the Crown to dismiss members of the police force at pleasure. Indeed, it is somewhat inaccurate to say that the proviso was intended to create any restriction at all for it merely appears to reaffirm the full content of the authority conferred upon the Commissioner by the earlier provisions of the section. This view is, in my opinion, in accordance with what I conceive to be the natural meaning of the critical phrase, that is, that the words "by the Commissioner" refer to both "discharged" and "dismissed". Such a view is fatal to the appellant's arguments on the main points raised on the appeal. (at p185)

10. He says, however, that he was actually dismissed two days before the Governor in Council effectively exercised the power to dismiss him. It will be remembered that the Governor in Council directed the appellant's dismissal on 15th February 1951 and on that date the appellant was handed a letter signed by the Commissioner of Police. This letter informed him that the Governor in Council, in pursuance of the provisions of The Police Acts 1937 to 1948 had directed that he be dismissed from the police force. The letter added "The directions as given by His Excellency as outlined above, take effect immediately, and you will take necessary action accordingly, forthwith". But the appellant says that his dismissal by Order in Council did not become effective until two days later when the notification in the Government Gazette was published. In support of this contention he relies upon s. 75 of the Acts which provides that "All Orders in Council . . . made or purporting to have been made under this Act shall be published in the Gazette, and thereupon shall be of the same effect as if they were enacted in this Act and shall be judicially noticed, and shall not be questioned in any proceedings whatsoever". It is, I think, incorrect to say that the appellant's dismissal was effected by an Order in Council published in the Government Gazette but even if what was published might properly be so characterized it was not made nor did it purport to be made under The Police Acts. No authority to dismiss a member of the Police Force is conferred upon the Governor in Council by any provision of the Act and the Order in Council - if, in effect, it was such - could be made only in the exercise of the prerogative powers of the Crown. Again, it may be said that there is nothing in s. 75 to prevent an Order in Council of the supposed character becoming effective before publication in the Gazette; the purpose of that section is to give to such an order, upon publication, the same force as the statute itself and to establish its validity conclusively. (at p185)

11. The further point that the appellant's dismissal was wrongful unless effected by a formal Order in Council published in the Gazette emerged at one stage of the argument but upon the facts as stated it is beyond doubt that the Governor in Council did dismiss the appellant and that his dismissal took effect as from 15th February 1951 (cf. Fletcher v. Nott (1938) 60 C.L.R., at pp. 57, 58 and Kaye's Case (1956) 94 CLR, at p 194) For these reasons the appeal should be dismissed. (at p185)

WINDEYER J. I agree with what my brother Taylor J. has said in his judgment, which I have had the advantage of reading; I shall add only a few words for myself. (at p186)

2. The critical provision of the Act is I think s. 73: "Save as is herein otherwise expressly provided, nothing in this Act contained shall be taken to prevent any member of the Police Force from being discharged, dismissed or otherwise removed from office in the same manner in all respects as if this Act had not been passed." (at p186)

3. The appellant's argument was based on an initial proposition that while he remained a member of the Police Force he continued to hold the office of constable. This I think is, in a sense, correct. Unless members of the Police Force have the duties and the powers that attach to the ancient office of constable the conduct of police duties would be impossible; for The Police Acts themselves do little more than provide for the organization, discipline and government of the force. They presuppose, and in the first part of s. 10 expressly refer to, a body of law, independently existing, concerning the powers, privileges, duties and responsibilities of a constable. (at p186)

4. The wording of ss. 10 and 8 is not altogether harmonious. They respectively authorize the appointment of persons directly to the rank or grade of sergeant and inspector (and sub-inspector) without requiring them to have had previous service as constables. But, in practice, appointments to these positions are, it seems, made by promotion from within the force, so that holders of these ranks were originally sworn as constables. Whether that were so or not, I find it hard to think that, as was suggested in argument for the respondent, a sub-inspector of the Police Force of Queensland is not invested with the legal capacities and duties of a constable. But it does not carry the appellant far that in one sense he was a constable; for, in the provisions of the Act on which he relies, the word "constable" is not used to describe the attributes of an office but rather to designate a rank or grade in the Police Force. (at p186)

5. The appellant's argument, which he put clearly, was that s. 10 contained matter inconsistent with the general terms of s. 73; and that, because of its introductory words "save as is herein otherwise expressly provided", s. 73 was not applicable in this case. But this construction of s. 10 could not be sustained, even if one were to accept the appellant's view that, for the purposes of the section, he continued to be a constable. As I read the section, it relates only to the manner and circumstances in which the Commissioner may discharge or dismiss members of the force for unsuitability, incompetence or misconduct. It does not qualify the right of the Crown to dismiss its servants at pleasure, a right which s. 73 preserves. If the present case had been governed by s. 10, it would be necessary to consider how far compliance with its requirements are conditions precedent to dismissal by the Commissioner and whether breach of them gives a right of action: cf. Cross v. The Commonwealth [1921] HCA 9; (1921) 29 CLR 219 But that question is irrelevant here. (at p187)

6. The appellant's argument depended in part on a distinction which s. 10 appears to make between dismissal and discharge - a distinction which s. 73 also apparently recognizes. I agree that the two words can have different meanings when they are used in collocation. For example, the oath of a soldier or airman on enlistment is to serve for the term of his engagement "or until sooner lawfully discharged, dismissed or removed" (See (1944) 68 CLR, at p 234) There the words have, no doubt, somewhat different applications. Dismissal is a word appropriate in cases of misconduct. Discharge, which is appropriate to the termination of services upon the expiration of the term of the engagement or upon request, or sometimes in invitum, does not necessarily bear any implication of disgrace. But the meanings of dismissal, discharge and removal are not for legal purposes necessarily differentiated. There may perhaps be some room for argument about the effect of s. 10 in cases of some discharges by the Commissioner. But what the appellant complains of is not anything done by the Commissioner under s. 10. He was a sub-inspector, and he was dismissed from the force pursuant to a direction in an Executive Council minute approved by His Excellency the then Governor of Queensland. This dismissal was lawful and the appeal should be dismissed. (at p187)

ORDER

Appeal dismissed with costs.