O'Rourke v Miller [1985] HCA 24; 156 CLR 342 (28 March 1985)

HIGH COURT OF AUSTRALIA

JOSEPH ROBINSON O'ROURKE v. SINCLAIR IMRIE MILLER [1985] HCA 24; 156 CLR 342

Police (Vict.) - Administrative Bodies

High Court of Australia
Gibbs C.J.(1), Mason(2), Wilson(3), Deane(4) and Dawson(5) JJ.

CATCHWORDS

Police (Vict.) - Appointment - Termination - Constable - Probationary appointment - Power of Commissioner by regulations to confirm or terminate appointment - Whether power apart from regulations to terminate probationary appointment - Termination of appointment before end of probationary period - Allegation of misconduct during period of probation - Natural justice - Entitlement to be heard before exercise of power to terminate - Entitlement to confront and cross-examine complainants - Police Regulation Act 1958, s. 8(3), (4) - Police Regulations 1979 (Vict.), regs. 212, 1302.

Administrative Bodies - Natural justice - Police probationary constable - Power of Commissioner to confirm or terminate appointment - Allegation of misconduct during period of probation - Whether constable entitled to be heard before exercise of power to terminate - Whether entitled to confront and cross-examine complainants.

HEARING

1985, March 28. 28:3:1985
APPEAL from the Supreme Court of Victoria.

DECISION

GIBBS C.J. The appellant, Mr O'Rourke, was a member of the police force of Victoria with the rank of constable. The question for decision on this appeal is whether his appointment as a constable was validly terminated in September 1982. The appellant began training as a police cadet in Melbourne in February 1979 and, after successfully completing a course of study at the Police Cadet Training Academy, in August 1980 commenced recruit training at the Police Training Academy. On 30 September 1980 he took and subscribed the oath which is required to be taken by any person appointed to be a member of the police force of Victoria: see s.13(1) of the Police Regulation Act 1958 (Vict.) as amended ("the Act"). It does not appear clearly from the evidence on what date the appellant was appointed to be a constable but he conducted his case in the Supreme Court on the assumption that the appointment was made on 30 September 1980 and, in the light of a Police Gazette of 7 October 1982 to which I shall later refer, there seems no reason to doubt that his appointment was made on or about that date. His appointment as a constable was probationary, since by s.8(3) of the Act "any appointment as a constable shall be subject to a period of probation of two years".

2. During the period of probation until 26 March 1982 the appellant's conduct and character were satisfactory. On 26 March 1982 he completed the retention examination which probationary constables are, generally speaking, required to pass and which in fact he passed. That evening he went to a party which had apparently been organized to celebrate the conclusion of the examination. Later in the evening, in company with another policeman, Constable Vukovic, he was walking on his way to a hotel in South Melbourne, when he had an encounter with two girls who were locking up a shop after late-night shopping. On 2 April 1982 a statement was given to the police by one of the girls, Marianne Ryan, the manageress of the shop, complaining of the appellant's conduct on the evening of 26 March 1982. A statement in support was later obtained by the police from Coralie Toohey who had been in the company of Miss Ryan that evening. The statements alleged that shortly after 9.00pm, when the shop was being closed, the appellant had misused his police badge to gain entry to the shop, had used obscene and insulting language to the two girls, both of whom were perfect strangers to him, had acted aggressively and had generally been guilty of drunken behaviour.

3. On 1 July 1982 the appellant was interviewed by Inspector Applebee, who informed him of the nature of the allegations made against him, and questioned him about them. A written record of the interview was signed by the appellant. It shows that the appellant denied that he had been guilty of any improper conduct. He said that he had approached the girls to invite them to join him for a drink and admitted that he had shown them his police authority. The appellant stated in his affidavit, and it was not denied, that at the end of the interview Inspector Applebee told him that he had nothing to worry about. Constable Vukovic was later interviewed by Inspector Applebee and supported the appellant's denial that he had been guilty of any misconduct.

4. On 15 September 1982 the appellant was interviewed by Commander Standfield, the officer in charge of the Internal Investigation Bureau of the police force. Commander Standfield discussed the allegations with the appellant, who denied them and said that he wanted an opportunity to refute them. At the conclusion of the interview Commander Standfield informed the appellant that he was going to recommend the termination of his appointment. He did so, and on 16 September 1982, Mr Hall, a Deputy Commissioner of Police, to whom had been delegated the powers and functions of the Chief Commissioner, caused notification of his decision to terminate the appellant's appointment to be given to the appellant. However, on the following day, Mr Hall saw Sergeants Piper and Woodall who made verbal representations to him in support of the appellant. Later on that day, he interviewed the appellant himself. He repeated the more serious allegations of the girls to the appellant, who denied them. In the course of this conversation Mr Hall said: "Why in the world would these women invent these allegations? Do you know of any reason why they would?" The appellant said, "No" and then said, "I would like you to consider my previous good service as a cadet and as a constable. I would like to be charged before the Discipline Board when these women would have to get into the witness box and it would be their word against the word of Constable Vukovic and myself and I would have to get the benefit of the doubt". After considering the matter Mr Hall informed the appellant that his decision that his appointment be terminated would stand. Mr Hall said in the affidavit which was in evidence at the proceedings:

"I did not reach the decision to terminate the
appointment of O'Rourke lightly. On the one hand I
was aware and I took into account the facts that he
had recently passed his retention examination and
that hitherto his record was satisfactory. Reports
upon his service, conduct and efficiency by
officers in charge of the Police District to which
he had been attached were to his credit and
recommended his retention in the Service. On the
other hand notwithstanding the denials of O'Rourke
and Vukovic in their records of interview and
during my interview with O'Rourke on the
17th September 1982 I accepted as true the
allegations made by Misses Ryan and Toohey. I came
to the conclusion that O'Rourke had in fact
harassed, abused and insulted the two young women
and that he had done so in a drunken state and
without any reasonable cause ... In my opinion the
conduct of O'Rourke on the night of the 26th March
1982 had demonstrated a serious departure from the
conduct appropriate to a member of the Police Force
and that accordingly his appointment should not be
confirmed but should be terminated."

5. The termination of the appellant's appointment as from 18 September 1982 was notified in the Victoria Police Gazette of 23 September 1982. Strangely, in the Police Gazette of 7 October 1982, it was notified that "the appointment of the following members whose probationary periods expired on the dates shown are hereby confirmed" and in the following list the name of the appellant appears opposite to the date 29 September 1982. The reason for what was obviously an erroneous notification in the Gazette of 7 October 1982 was not fully explained but counsel for the appellant did not suggest that this gazettal assisted his submission that the termination of the appellant's appointment was invalid.

6. The appellant obtained from the Supreme Court of Victoria an order nisi to review the decision to terminate his services. The order nisi was returned before Gray J. who held that the Chief Commissioner was empowered to terminate the appointment of the appellant but that in doing so he was obliged to act in accordance with the rules of natural justice and that the manner in which the decision to terminate the appointment was reached did not comply with the requirements of natural justice. Gray J. accordingly made absolute the order nisi and directed that the matter be remitted to the Chief Commissioner of Police to be dealt with in accordance with the judgment of the court. The Chief Commissioner appealed to the Full Court of the Supreme Court from this decision and the appellant cross-appealed, seeking to have it established that the Chief Commissioner had no power in the circumstances to terminate his appointment. The Full Court by a majority (Starke and Murphy JJ., O'Bryan J. dissenting) allowed the appeal and dismissed the cross appeal. From that decision an appeal has been brought to this Court.

7. The first argument advanced on behalf of the appellant was that the Chief Commissioner had no power to terminate the appointment of the appellant as a probationary constable before the expiration of the period of probation, i.e., before 29 September 1982. The appellant's submission was that the only way in which the respondent could have been dismissed before the last day of the probationary period would have been to invoke the procedures provided by Part V of the Act. That Part, which is headed "Inquiries into Misconduct and Penalties", contains a number of provisions under which a member of the police force may be dismissed by the Police Discipline Board (see ss.88(5) and 89) or the Police Service Board (see s.88A). The provisions of the Act itself do not specify what are the consequences of an appointment on probation. Subsections (3) and (4) of s.8 provide as follows:

"(3) Any appointment as a senior sergeant, sergeant
or senior constable shall be subject to a period of
probation of one year and any appointment as a
constable shall be subject to a period of probation
of two years.

(4) Any member of the police force below the rank
of Assistant Commissioner may, subject to and in
accordance with the provisions of this Act and the
regulations, be suspended, reduced in rank,
dismissed or discharged."

The provisions of s.8(4) may be compared with those of ss.9(1) and 112, which give the Chief Commissioner an unfettered power to dismiss a police cadet or a police reservist. It is clear that the Chief Commissioner has no power to dismiss or discharge a constable except in accordance with the provisions of the Act and Regulations.

8. The Police Regulations 1979 (Vict.) do deal expressly with the termination of the appointment of a probationary constable. Regulation 212 appears in Part II of the Regulations, headed "Appointment to Service". That regulation itself is headed "Confirmation of Appointment" and it reads as follows:

"212. Upon the receipt of a report from the
Officer in charge of a Police District to which a
constable is attached during his period of
probation on the service conduct and efficiency of
a constable and after conducting a retention
examination and such other examinations (if any) as
he thinks fit, the Chief Commissioner may -

(a) confirm the appointment of such
constable; or

(b) terminate the appointment of such
constable."

Regulation 1302 deals with the retention examination and is in the following terms:

"1302. A constable shall, before the completion of
his probationary service, pass the retention
examination hereinafter prescribed, failing which
he shall be discharged from the Force.

Provided that where any constable, before
the completion of his probationary service, has
been enrolled with the authority of the Chief
Commissioner in any special course of training at a
university, an affiliated college of the Victoria
Institute of Colleges, a constituent college of the
State College of Victoria, a technical school or
other training establishment controlled by the
Education Department of Victoria, the Chief
Commissioner may, if satisfied with his progress
during such course of training, confirm his
appointment without requiring him to pass the
prescribed retention examination."

9. It was submitted, on behalf of the Chief Commissioner, that the Chief Commissioner has power to terminate the appointment of a probationary constable at any time during the period of probation. This, it was said, is inherent in the nature of probation, which is described in Jowitt's Dictionary of English Law, 2nd ed. (1977), as "suspension of a final appointment to an office until a person temporarily appointed (who is called a probationer) has by his conduct proved himself to be fit to fill it". In other words, probation is a time of testing or trial and a probationer whose conduct, character or qualifications fail to meet the test need not be confirmed in the office to which he was provisionally appointed. It was submitted that a probationary constable whose appointment is not confirmed but terminated is not dismissed or discharged, because refusal to make an appointment to a permanent position at the expiration of a probationary period is not a dismissal or a discharge. In support of this argument reliance was placed on Ex parte Wurth; re Tully (1954) 55 SR(NSW) 47, especially at pp 62-63. However the decision of that case depended on the statutory provisions there under consideration, which differed materially from those now in force in Victoria. The form of oath prescribed by the Act which is to be taken by any person appointed to be a member of the force (including a probationer), and by which a member swears that he will serve "until I am legally discharged", and the use of the word "discharged" in reg.1302, suggest that termination and discharge were regarded as synonyms in the Act and regulations.

10. One difficulty with the submission of the Chief Commissioner is that to say that a constable is appointed subject to a period of probation of two years does not clearly answer the question whether the probationer's appointment may be terminated as soon as he displays what appears to be a deficiency of character or ability, or whether he is entitled to the whole of the probationary period so that he may show that, notwithstanding earlier indications to the contrary, he does in truth measure up to the requirements of his office. From the point of view of policy there would be much to be said in favour of the view that once a probationary constable showed by his conduct that he was manifestly unfit for his position the Chief Commissioner ought to have the power to terminate his appointment although the probationary period still had a considerable time to run, and it would be understandable if the statutes made provision accordingly. But the statutes do not so provide. On the contrary the regulations reveal a different intention. Regulation 212 shows that the discretionary power of the Chief Commissioner, in the exercise of which he may confirm or terminate the appointment of a probationary constable, may not be exercised until he has received a report from the officer in charge of the relevant police district and until he has conducted a retention examination. In the nature of things, it may be expected that those events will not occur until towards the end of the period of probation, but the condition precedent to the exercise of the discretion for which the regulation provides is not the expiration of the period of probation but the receipt of the report from the officer in charge of the police district and the conduct of the retention examination. Regulation 1302, which requires the constable to pass the retention examination before the completion of his probationary service, does not prevent the Chief Commissioner from proceeding to exercise his power under reg.212 until the period of probation has expired. If it appears that the probationer has sat for the retention examination and failed to pass it, and that no further retention examination will be held before the expiration of the probationary period (for example, if the examinations are held at annual or other periodic intervals) the Chief Commissioner could proceed forthwith to exercise his power. It is unnecessary to consider whether in such a case it would be necessary to await the receipt of a report from the officer in charge of the relevant police district - a report which would be valueless since (assuming the case not to be within the proviso to reg.1302) the Commissioner's discretion would be fettered and he would have no power to do other than terminate the appointment.

11. In the present case, Mr Hall expressly said that he was acting pursuant to the Act and reg.212. It is not in dispute that he had received the report from the officer in charge of the relevant police district as required by that regulation or that the retention examination had been conducted. He was therefore entitled to exercise his power under reg.212 when he did. The provisions of s.8(4) do not detract from the force of reg.212. If (as I incline to think) for the purposes of the Act and regulations termination should be regarded as a form of discharge, the Chief Commissioner when acting under reg.212 is acting "in accordance with the provisions of this Act and the regulations" within s.8(4). If, on the other hand, termination is something different from dismissal or discharge, s.8(4) has nothing to say on the matter.

12. The question arises whether the Chief Commissioner's power was to terminate the appointment as from the expiration of the period of probation or whether he could terminate it as from an earlier date. It is clear that if he decided to confirm an appointment the confirmation could be effective only on the expiration of the period of probation, since no power exists to reduce that period below two years. I consider that in this context it must be intended that an exercise of the power to terminate must also be effective only on the expiration of the probationary period. The intention which the regulation reveals is that towards the end of the period of probation, when the conditions specified in the regulation have been satisfied, the Chief Commissioner may exercise his discretion to confirm or terminate the appointment but that his decision in either case becomes effective only from the expiration of the period of probation. If this rule is thought to be inconvenient, no doubt the regulation can be amended.

13. It follows that in the present case Mr Hall was acting within power when he decided to terminate the appointment of the appellant. However his decision took effect only on the expiration of the period of probation, which as I have said appears to have been 29 September 1982, and not from the date specified in the gazette, 17 September 1982. No point that there was error in the date of termination was taken in the order to review or in the notice of appeal to the Full Court or to this Court. The appellant's case was that there was no power, before the expiration of the period of probation, to terminate the appointment and not that, there being such a power, an erroneous date had been fixed. Further, there was no clear evidence at first instance of the date when the period of termination expired. Subject therefore to the second matter which falls for decision the proper course will be to dismiss the appeal and affirm the order discharging the order nisi to review, although it may be necessary for the Police Department to make a financial adjustment reflecting the fact that the date gazetted for the termination was erroneous.

14. It then becomes necessary to consider whether the appellant was entitled to be treated in accordance with the principles of natural justice, and if so whether those principles were observed. I have no doubt that the principles of natural justice did govern the termination of the appellant's appointment. As Lord Reid said in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40, at p 66, there is "an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation". This is true notwithstanding that the office is held on probation: Chief Constable v. Evans [1982] UKHL 10; (1982) 1 WLR 1155; (1982) 3 All ER 141. A person appointed as a probationary constable, who has passed the retention examination, has a natural and reasonable expectation that his appointment will be confirmed unless there is some challenge to his conduct, character or efficiency. When it is alleged that such a person has been guilty of some misconduct which may warrant refusal of confirmation of his appointment, he is entitled to be dealt with in accordance with the rules of natural justice. As the two cases which I have cited show, he must be informed of what is alleged against him and given a fair opportunity to answer those allegations. However, in the present case the appellant was told quite fully what was alleged against him and he was given a full and fair opportunity to state his defence or explanation.

15. It was submitted that the appellant should have been given an opportunity to cross-examine, or at the very least, to confront, the two girls who made the complaints. In support of these submissions we were referred to Barrier Reef Broadcasting Corporation Pty. Ltd. v. Staley (1978) 52 ALJR 493; 19 ALR 425 and Reg. v. Hull Visitors; Ex parte St. Germain (1979) 1 WLR 1401; (1979) 3 All ER 545. Those were cases in which there was a hearing before a tribunal which refused to allow the cross examination of persons who in the one case had given evidence and in the other had made hearsay statements and the decisions depended, as all cases of this kind do, on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal was acting and the subject matter being dealt with: see Russell v. Duke of Norfolk (1949) 1 All ER 109, at p 118. Even when there is a hearing before a tribunal it does not follow that a person affected necessarily has a right to cross-examine witnesses: see National Companies and Securities Commission v. The News Corporation Ltd. [1984] HCA 29; (1984) 58 ALJR 308; 52 ALR 417. Natural justice does not require the application of fixed or technical rules; it requires fairness in all the circumstances.

16. In the present case the Chief Commissioner was not required to hold a formal hearing or to be satisfied beyond reasonable doubt that the appellant had been guilty of the misconduct alleged before he reached a decision to terminate the appellant's provisional appointment. It would be enough if the Chief Commissioner, having given the appellant a fair opportunity to be heard, considered in good faith that the appellant was not fit to occupy the office of constable or that there was a real doubt about his suitability. If in fact the appellant had been charged before the Police Discipline Board and that Board had given him the benefit of the doubt because it was faced with a conflict of testimony between the two girls and the two policemen, it would still have been open to the Chief Commissioner to terminate the appellant's appointment. It is of great importance to the public that persons whose conduct or character is doubtful should be kept out of the police force and the system of probationary appointments is one means of achieving that end. The Chief Commissioner, in exercising his power under reg.212 to terminate the appointment of a probationary constable, has, to use the words of Murphy J. in the Full Court of the Supreme Court, "not only the power but also the responsibility to weed out persons concerning whom he entertains any reasonable doubts".

17. In the circumstances of the present case it was by no means unfair for the Chief Commissioner to make his decision without allowing the appellant to confront or to cross-examine the two girls. No reason had been suggested why the girls, perfect strangers to the appellant, should have concocted their story, and some of the statements made by the appellant himself lent some credence to that story. There was no lack of fairness in the process followed by the Chief Commissioner in the present case and no failure to observe the principles of natural justice.

18. The appeal should be dismissed.

MASON J. I would dismiss the appeal for the reasons given by the Chief Justice.

WILSON J. In September 1980 the appellant was appointed a constable in the police force of Victoria. By virtue of s. 8 of the Police Regulation Act 1958 (Vic.) as amended ("the Act") the appointment was subject to a period of probation of two years. That period, according to an item appearing in the Victoria Police Gazette of 7 October 1982, at p. 548, expired on 29 September 1982. At earlier stages of these proceedings uncertainty has been expressed concerning the date of his appointment as a constable but it is not now in dispute that it was either 29 or 30 September 1980. It is established that he took and subscribed the requisite oath pursuant to s. 13 of the Act on the date last mentioned.

2. On 26 March 1982 the appellant was involved in an incident with two women in South Melbourne, as a result of which the women, both members of the public, made complaints of misconduct against him. These complaints against the appellant were investigated by his superiors in the force over the ensuing months. In the course of those investigations the appellant was interviewed on several occasions. Ultimately, on 17 September 1982, Deputy Commissioner Hall informed the appellant that he had decided to terminate his appointment. Notification of the decision was published in the Victoria Police Gazette of 23 September 1982, at p. 513, in a section headed "Discharges". The item relating to the appellant bore the date "18 September 1982" and gave as the reason for the discharge "Terminated".

3. The appellant, feeling aggrieved by the course of events, secured an order nisi pursuant to the provisions of s. 3 of the Administrative Law Act 1978 (Vic.) calling upon the Chief Commissioner of Police to show cause why the decision to terminate the appointment of the appellant should not be quashed. In substance, two questions were argued on the return of the order nisi before Gray J. in the Supreme Court of Victoria. The first was whether the Chief Commissioner had power under the Act to terminate a constable's probationary appointment at any time during the period of probation. The second was whether, assuming the Chief Commissioner did have that power, the manner in which the decision was reached was fair to the appellant. His Honour answered the first question in favour of the Chief Commissioner and the second in favour of the appellant. The order nisi was made absolute. An appeal by the Chief Commissioner to the Full Court was allowed by a majority (Starke and Murphy JJ., O'Bryan J. dissenting). Murphy J., with whose reasons Starke J. agreed, found it unnecessary to decide whether the appointment could be terminated by the Chief Commissioner at any time during the probation period in exercise of the powers derived by implication from the Act itself. His Honour held that the decision was made in exercise of the power conferred by reg. 212 of the Police Regulations 1979 (Vic.) ("the Regulations"). He then examined in great detail the history of the investigation and concluded that all the requirements of natural justice had been met. O'Bryan J. held that in terminating the appointment the Deputy Commissioner was exercising a summary power which he believed to be derived from the Act enabling the appointment to be terminated at any time during the period of probation. His Honour concluded that the Act did not confer such a power, and for that reason would have dismissed the appeal.

4. The appeal will serve to clarify a point of great importance touching the powers of the Chief Commissioner, namely, his power to terminate the appointment of a constable at any time during the period of probation. The appellant denies the existence of such a power, arguing that upon taking the oath he became a member of the police force with the same security of tenure as any other member of the force, subject only to reg. 212. The appellant concedes that the regulation confers a power on the Chief Commissioner to either confirm or terminate the appointment but says that it is exercisable only at the end of the probation period. On the other hand, the respondent argues that the nature of probation is such that there is to be implied from the power to appoint constables on probation a power to terminate the appointment at any time during the period of probation. Such a power is derived wholly from the Act and is quite independent of the power derived from reg. 212.

5. The Act provides for the appointment of a Chief Commissioner of Police and of one or two Deputy Commissioners (s. 4). A Deputy Commissioner may exercise the powers and perform the functions of the Chief Commissioner (s. 6). At all material times, s. 8 provided as follows:

"(1) The Chief Commissioner may from time to time
appoint so many persons (whether male or female) to
be constables, senior constables and sergeants as
the Governor in Council thinks necessary.

(2) An appointment of a person to be a constable
shall be subject to a period of probation of two
years.

(2A) An appointment of a person to be a senior
constable or a sergeant shall be subject to a
period of probation of twelve months.

(3) ...

(4) Any member of the police force below the rank
of Assistant Commissioner may, subject to and in
accordance with the provisions of this Act and the
regulations, be suspended, reduced in rank,
dismissed or discharged."

The expression "member of the force" applies to every person employed in the police force (s. 3). Section 9 provides:

"(1) The Chief Commissioner may from time to time
appoint so many fit male persons to be police
cadets as the Minister deems necessary and
notwithstanding anything in Part V. of this Act may
dismiss or discharge any police cadet at any time.

(2) Every police cadet so appointed shall be a
member of the force but shall not take the oath
prescribed by section thirteen of this Act and
shall not be capable of exercising the powers of a
constable.

(3) ..."

Section 13(1) provides that any person appointed to be a member of the force shall not be capable of acting in any way as such member until he has taken and subscribed the prescribed oath. Part V of the Act, referred to in s. 9, deals with "Inquiries into Misconduct and Penalties" and contains ss. 87 to 102 inclusive. The Part provides machinery for dealing with members of the force who are charged with an offence as defined by s. 88(1). The term covers any conceivable form of culpable conduct of which a member of the force may be guilty, including disgraceful or improper conduct, negligence or carelessness in the discharge of his duties, inefficiency or incompetence arising from causes within his own control and any breach of the regulations. The Part provides for the dismissal of the member in appropriate circumstances by the Police Discipline Board or by the Police Service Board. The Chief Commissioner does not derive any power to dismiss a member of the force from Part V.

6. Part II of the Regulations deals with appointment as a member of the force. It prescribes minimum age, physical fitness and educational requirements. Regulation 206 requires every candidate who has fulfilled the preliminary requirements to undergo an entrance examination to test general intelligence, competence in English, arithmetic and general knowledge and a medical examination. Then, if successful in the entrance examination, he must be presented before a Board of Selectors which "shall take account of the personality, demeanour, initiative, general suitability and personal history" of the candidate. Regulation 212 provides:

"Upon the receipt of a report from the Officer in
charge of a Police District to which a constable is
attached during his period of probation on the
service conduct and efficiency of a constable and
after conducting a retention examination and such
other examinations (if any) as he thinks fit, the
Chief Commissioner may -

(a) confirm the appointment of such constable; or

(b) terminate the appointment of such constable."

Part IV of the Regulations deals with discipline. It is sufficient simply to note the exhaustive catalogue of offences outlined in reg. 402 most if not all of which can be summed up in terms of par. (a) which provides that a member shall not act in a manner prejudicial to discipline or likely to bring discredit on the reputation of the force. In Pt XIII, reg. 1302, dealing with the retention examination, provides, inter alia:

"A constable shall, before the completion of his
probationary service, pass the retention
examination hereinafter prescribed, failing which
he shall be discharged from the Force."

7. I may say at once that I think the appellant's construction of the Act is correct. I can find no basis in the Act for a conclusion that the appointment of a constable may be terminated in the unfettered discretion of the Chief Commissioner before the period of probation has run its course. On appointment a constable becomes a member of the police force for all purposes save only that his appointment is subject to a period of probation of two years. In this context the word "probation" has the effect of suspending the final appointment until the appointee "has by his conduct proved himself to be fit to fill it" (Jowitt's Dictionary of English Law, 2nd ed., vol. 2, p. 1437). I would add the word "capacity" to "conduct", thereby reflecting more accurately the definition of the term in the Shorter Oxford English Dictionary, 3rd ed., vol. II, at p. 1676, namely:

"2. The testing or trial of a person's conduct,
character, or moral qualifications;".

No necessary conclusion as to the security of tenure that is to be enjoyed by a probationer during the period of probation can be drawn merely from the concept of probation. One must look for indications from the context. If there were no indication to be found in the Act or the Regulations then there would be much to be said for the argument advanced for the Chief Commissioner that it would be an absurd understanding of probation if notwithstanding that a probationary constable clearly demonstrated his unsuitability early in his period of probation that his appointment could not be terminated before the expiry of the period. On the other hand it might be argued that the appointee is entitled to security of tenure during the term in order to prove himself. But these considerations are of no consequence in the present case because the Act in my view is quite clear. The effect of s. 8(4) is to confer on a constable whilst on probation precisely the same security of tenure that is enjoyed by any other member of the police force below the rank of Assistant Commissioner. No constable, whether or not undergoing a period of probation, may be discharged from the police force otherwise than in accordance with the provisions of the Act and the Regulations. The word "discharged" in s. 8(4) is entirely apt in its application to the termination of the appointment of a constable on the expiry of the period of probation. To discharge a person is to release him from an obligation: Jowitt, vol. 1, at p. 619. On appointment a constable is required to take an oath that he will well and truly serve as a member of the police force of Victoria "until I am legally discharged" (Form A, Second Schedule). When a period of probation has run its course a decision not to confirm an appointment will result in the appointee being "legally discharged" from his oath. If the decision is made in accordance with reg. 212 then the provisions of s. 8(4) will be satisfied. They will also be satisfied if during the period of probation a constable is dismissed for proven misconduct by order of a Police Discipline Board in accordance with the provisions of Part V of the Act. There may be other provisions under which the service of a member of the police force may be terminated - see, for example, reg. 1302 - but the conclusion which is inescapable is that the Act and the Regulations provide a code which deals exhaustively with the circumstances in which that result can be achieved. In arguing that he may dismiss or discharge a constable on probation at any time, the Chief Commissioner is asserting the same power as is given to him expressly, in relation to police cadets, by s. 9(1). In my opinion, it is not possible to imply such a power from s. 8 of the Act.

8. Before leaving this topic I acknowledge, without repeating it, the analysis undertaken by O'Bryan J. of the legislative history of the Act and its predecessors. That analysis convincingly demonstrates that the denial to the Chief Commissioner by the present Act of a summary power to dismiss or discharge a constable whilst on probation, a power which he possessed by express provision in respect of all constables in earlier legislation is a deliberate move on the part of the legislature directed to increasing the security of tenure of members of the police force.

9. It is a strange feature of this appeal that the issue with which I have dealt - and which undoubtedly it has been important to the future administration of the police force of Victoria to clarify - is not really germane to the problems raised by the case. That issue has been whether the Chief Commissioner has an implied power under the Act to terminate summarily the appointment of a constable at any time during the period of probation. It has been answered against the Chief Commissioner. But that answer is irrelevant because such a power was not, and was not purported to be, exercised.

10. It is quite clear from the affidavit of Deputy Commissioner Hall that he thought he was acting pursuant to reg. 212. He says:

"Pursuant to the Police Regulation Act 1958 and
Regulation 212 of the Police Regulations 1979 it
was my duty to decide either to confirm or
terminate O'Rourke's appointment as Constable.
During his probationary period a Probationary
Constable is required to demonstrate that he is
suitable for appointment to the Police Force.
Failure to conform to the standards reasonably
required of a Police Officer will result in the
termination of his appointment. In my opinion the
conduct of O'Rourke on the night of the 26th March
1982 had demonstrated a serious departure from the
conduct appropriate to a member of the Police Force
and that accordingly his appointment should not be
confirmed but should be terminated."

It is common ground that the conditions precedent to a decision contemplated by that regulation had been satisfied. The necessary reports on the appellant's service conduct and efficiency had been received and he had successfully passed the retention examination. It is submitted for the appellant that the power conferred by reg. 212 to confirm or to terminate an appointment may be exercised only at the end of the probationary period. I agree that such a decision cannot take effect before the period of probation expires. The Act requires a period of probation of two years and it is plain that the regulation could not authorize confirmation of an appointment before the period had elapsed. I think the context requires the same conclusion to be drawn with respect to a decision to terminate. But this does not mean that the procedures leading to a decision may not be put in train before that time arrives. If that be so, is it to be said that the actual decision, either to confirm or to terminate, will be invalid and of no effect at all if it is made a few days before the actual date of completion of probation? Certainly, it cannot take effect before that date because that is what reg. 212, properly construed in conjunction with the Act, requires. But the regulation does not require that the decision itself wait until that date. It is obviously expedient that the necessary administrative procedures be taken as the probation period nears its end. It would be sheer pedantry, as well as conducive to administrative inconvenience, to find otherwise. It follows that, in my opinion, subject to the appellant's natural justice argument, the decision to terminate the appellant's appointment was made in accordance with reg. 212 and was effective from 30 September 1982.

11. However, the appellant argues that in any event he was entitled to and was denied a hearing in accordance with the principles of natural justice. It is submitted that his appointment was terminated, not because of any assessment by the respondent of his character or competence, but because he was found to have committed an offence. He claims to have had a legitimate expectation that if he passed the retention examination and obtained a satisfactory report from the officer in charge of the police district to which he was attached, his appointment would be confirmed unless he was found guilty of a particular offence. In the light of these premises, his case is that he should have been charged with an offence so that the procedures provided by Part V of the Act could have been followed. Alternatively, the principles of natural justice required in any event that he should have had the opportunity of confronting, and cross-examining, the two women who had complained of his conduct.

12. The argument fails at the outset because the premises on which it is based cannot be sustained. First, his appointment was not terminated because he was found to have committed an offence. The relevant question was not whether he was guilty of an offence but whether on all the information available to the Deputy Commissioner he possessed the qualifications which rendered him suitable for appointment. The appellant had no right to have the judgment of a Police Discipline Board based as it would be on a strict onus of proof in relation to a particular incident substituted for the experienced judgment of his suitability by the Deputy Commissioner. Nor did the mandates of procedural fairness oblige the Deputy Commissioner to subject the civilian complainants to the embarrassment and stress of an inquiry in which they would confront the appellant and submit to cross-examination on his behalf. The argument proceeds on a misconception of the position of a probationary constable. He has no right to confirmation merely because he passes the retention examination and receives a favourable report from his superiors. He has no right beyond the right to expect a bona fide decision by the Chief Commissioner on his suitability to continue as a member of the police force with the proviso that if any material on which that decision might be based is adverse to him then the substance of that material will be made known to him and an opportunity given to him to make his response: see Chief Constable of the North Wales Police v. Evans [1982] UKHL 10; (1982) 1 WLR 1155; (1982) 3 All ER 141. The record here shows that the appellant was interviewed over a period of months by a number of senior police officers. He was fully informed of the conduct complained of and given every opportunity to make his response, which he did. I agree with the conclusion of the Full Court that the procedures followed satisfied the dictates of fairness.

13. The appeal must be dismissed. This is a sad case where alcohol has blighted a promising career.

DEANE J. I am in general agreement with the analysis of the effect of the relevant provisions of the Police Regulation Act 1958 (Vict.) and of the Regulations made thereunder which is contained in the judgment of Wilson J. Unlike Wilson J. however, I have come to the conclusion that, in the circumstances of the present case, the purported termination of the appellant's appointment was ineffective. Since my conclusion in that regard is a dissenting one and is based on my view of the particular facts, I shall confine myself to identifying briefly the reasons which have led me to it.

2. After the appellant had successfully completed the retention examination which he was required to pass before the end of his probationary period (reg.1302), there were but two ways in which his appointment as a probationary constable could lawfully have been terminated against his will. One was by the exercise of the discretionary power to confirm or terminate the appointment conferred by the special provisions of reg.212. The other was pursuant to the ordinary disciplinary provisions applicable to members of the Victoria Police Force generally (Act, Part V, Regulations, Part IV). The ordinary disciplinary procedures, which would have involved the hearing of a charge against the appellant by the Police Discipline Board before his appointment could be terminated, were not invoked. That being so, the purported termination of the appellant's appointment was ineffective unless it was pursuant to the special provisions of reg.212.

3. The Deputy Commissioner (Mr. Hall) states, in his affidavit, that it had been his duty pursuant to reg.212 "to decide either to confirm or terminate" the appellant's appointment as a probationary constable. He does not, however, state that the actual termination of the appointment was pursuant to that regulation and, as O'Bryan J. points out in his judgment in the Full Court of the Supreme Court of Victoria, the evidence indicates that it was not. The procedure for which reg.212 provides is an end of probation review to be made in the light of a "report from the Officer in charge of a Police District to which a constable is attached during his period of probation" (underlining added). While the decision to confirm or terminate under that procedure might be made prior to the date of expiry of the probationary term, the actual confirmation or termination under reg.212 is operative only as from that date of expiry. The purported termination of appointment in the present case was not the result of any routine end of probation review for which reg.212 provides. It was the result of a finding of misconduct consequent upon the making of particular allegations against the appellant. It was intended to operate prior to, and without reference to, the date of expiry of the appellant's probationary term.

4. In my view, it is plain that the basis of the purported termination of the appellant's appointment was the mistaken view for which the Commissioner primarily contended in this Court, namely, that it is of the nature of the probation of a constable that the Commissioner (or his Deputy) was entitled to exercise an independent power "to terminate or not to confirm the appointment of a probationer at any time during the period of probation". Indeed, the notice published under the heading "Confirmation of Appointment" in the Victoria Police Gazette of 7 October 1982 effectively denies any real plausibility to the proposition that the appellant's appointment was in fact terminated pursuant to reg.212. That notice demonstrates that it was recognized that confirmation or termination of an appointment under reg.212 takes effect as from the "Date of Completion of Probationary Period". It also indicates that, no doubt by mistake, the reg.212 procedure was in fact subsequently applied to the appellant at the time when it was applied to the other members of his class and that the appellant's appointment was not terminated as a result thereof.

5. It is not to the point that the appellant's appointment might properly have been terminated by the Deputy Commissioner pursuant to the discretion conferred by reg.212. On the evidence, it was not in fact so terminated but, to the contrary, was purportedly terminated by the Deputy Commissioner in the exercise of a power which he did not possess. It follows that the purported termination was ineffective. It is unnecessary for me to consider whether the purported termination of the appointment was, in any event, vitiated by reason of a failure on the part of the Deputy Commissioner to comply with the applicable requirement of natural justice.

DAWSON J. I agree with the reasons and conclusion of the Chief Justice.

ORDER

Appeal dismissed with costs.