Barratt v Howard

Case [2000] FCA 190

FEDERAL COURT OF AUSTRALIA

Barratt v Howard [2000] FCA 190

ADMINISTRATIVE LAW – termination of public office – natural justice – statutory power – bases for termination – whether office held at pleasure – statutory purpose – loss of trust and confidence by Minister in officer’s ability to carry out duties as Secretary of Department – whether sufficient basis for termination – whether fault on Secretary’s part must be demonstrated – whether basis for ministerial belief must be subject of inquiry before recommendation to Governor-General – procedural fairness – legitimate expectation – enforcement of substantive rights – whether particulars of Minister’s assertion required – effect of specific termination provisions relating to misconduct and criminal offences.

Public Service Act 1922 (Cth) s 6, s 25, s 36, s 37, s 56, s 57, s 58

Salemi v MacKellar (1977) 137 CLR 396
National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149
Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Andersen v Umbakumba  (1924) 126 ALR 121
Cooper v Darwin Rugby League (1994) 57 IR 238
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177
R v The Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

PAUL HUNTER BARRATT v JOHN WINSTON HOWARD, MAXWELL WILLIAM MOORE-WILTON and THE COMMONWEALTH OF AUSTRALIA

N1005 OF 1999

PAUL HUNTER BARRATT v JOHN WINSTON HOWARD, MAXWELL WILLIAM MOORE-WILTON and THE COMMONWEALTH OF AUSTRALIA

N1006 OF 1999

BEAUMONT, FRENCH AND MERKEL JJ
10 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1005 OF 1999
N1006 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

PAUL HUNTER BARRATT
Appellant

AND:

JOHN WINSTON HOWARD
First Respondent

MAXWELL WILLIAM MOORE-WILTON
Second Respondent

THE COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGES:

BEAUMONT, FRENCH & MERKEL JJ

DATE OF ORDER:

10 MARCH 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeals be dismissed.

2.        The appellant pay the respondents’ costs of the appeals.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT  AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1005 OF 1999
N1006 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

PAUL HUNTER BARRATT
Appellant

AND:

JOHN WINSTON HOWARD
First Respondent

MAXWELL WILLIAM MOORE-WILTON
Second Respondent

THE COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGE:

BEAUMONT, FRENCH & MERKEL JJ

DATE:

10 MARCH 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

Introduction

  1. In July and August 1999 procedures were initiated under the Public Service…

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AGLC
Barratt v Howard [2000] FCA 190
Case
[2000] FCA 190
Decision Date

CaseChat Overview and Summary

In the case of Barratt v Howard, Mr Barratt, the former Secretary to the Department of Defence, challenged the validity of his termination of appointment. The court was tasked with determining whether procedural fairness was required before Mr Barratt’s appointment was terminated and if the termination power could only be exercised for cause shown. The primary focus was on the interpretation and application of statutory provisions regarding the termination of fixed-term appointments of public service secretaries.

The central legal issues revolved around the procedural requirements before the termination of Mr Barratt’s appointment and the conditions under which the termination power could be exercised. Specifically, the court had to examine whether the statutory framework imposed any obligations of procedural fairness on the decision-makers, such as the Secretary to the Department of the Prime Minister and Cabinet and the Prime Minister. Additionally, the court needed to ascertain if the statutory power to terminate was limited to situations where cause was shown, or if it could be exercised at the discretion of the decision-makers without specific grounds.

The court held that Mr Barratt was entitled to procedural fairness before his appointment was terminated. This included the right to be informed of the reasons for the proposed termination and the opportunity to respond to those reasons. The court rejected arguments suggesting that the absence of explicit procedural requirements in the statute indicated an intent to exclude natural justice. It found that the statutory provisions and the principles of good administration mandated procedural fairness. The court did not find it necessary to address whether Mr Barratt had a legitimate expectation arising from his conduct that would entitle him to procedural fairness.

The appeals were dismissed, and the appellant was ordered to pay the respondents' costs of the appeals. This decision underscored the importance of procedural fairness in administrative actions affecting significant rights, such as employment, even within the context of statutory powers.

Orders

Orders of the court

1. The appeals be dismissed.

2. The appellant pay the respondents’ costs of the appeals.

Background

Background to the litigation

It is common ground that the termination of Mr Barratt’s appointment as Secretary to the Department of Defence was not related to his competence nor to any misconduct on his part. The factual background which follows is based on material not in dispute before the trial Judge.Factual Background Leading to the First Application By instrument of appointment dated 31 December 1997, made under ss 36(1) and 37(2) of the Act, the Governor-General appointed Mr Barratt to the office of Secretary to the Department of Defence for a term of five years commencing on 5 February 1998. At the time of his appointment, Mr Barratt held office as Secretary to the Department of Primary Industries and Energy. He had a long history of senior appointments in the Australian Public Service, interrupted by a term as the Executive Director of the Business Council of Australia, which he held from 1992 to 1996. Following the election of October 1998, in which the Government was returned, there was a Cabinet reshuffle, but all Secretaries of Departments were left in place. At this time the Hon John Moore MP was appointed Minister for Defence. On 21 January 1999, Mr Barratt and Mr Moore met to discuss pending matters and a proposal by Mr Barratt to travel overseas. Mr Moore expressed concern about the travel proposal because Parliament was about to sit and he wanted to progress the pending matters. He asked Mr Barratt whether he thought he could deal with them before going overseas. Mr Barratt said he believed he could, but he would think about whether he should go overseas. At the end of their meeting, Mr Moore said that because he thought the matters were important, he had written Mr Barratt a letter about them. He handed Mr Barratt a letter dated 21 January 1999. The letter opened as follows: “Since becoming Minister for Defence, we have had a number of discussions on issues I believe to be of importance for the Department and on the most appropriate way of dealing with those issues. I thought it might be useful for me to summarise those issues and my expectations in relation to them. Before doing so there is an important general point I would like to make.It is the strong view of the Government that two important fundamentals of the Government/Defence relationship in a democratic society are firstly, the responsibility of the Government to Parliament for the actions of the Department and secondly, in the ultimate, the importance of civilian control of the military.The need for all important matters of policy to be discussed and agreed with the Minister is therefore clear, as is the need for the Minister to be fully and appropriately briefed.I also support the joint approach to most issues which you and the CDF have taken since assuming your respective roles. I believe this to be particularly important in presenting a clear direction to members of the military and the Department and to the general public. However, it is also my expectation that, on occasion, I will receive advice directly from you as Secretary of the Department which may be separate from, contradictory to, or even not discussed with the military branch or generally within the Department. I would particularly (but not exclusively) expect this advice in relation to management, administrative and structural matters in the Department and the military, and personnel matters.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BEAUMONT, FRENCH AND MERKEL JJ
The Public Service Reform Act 1984 introduced a new s 37 which provided for fixed-term appointments of persons who were not officers, to the office of Secretary. It also provided that the Governor-General, on the recommendation of the Prime Minister, upon report from the Chairman of the Board, could terminate the appointment of a Secretary who had a fixed-term appointment with the result that the Secretary became either unattached (from the office, s 37(5)) or retired (from the Service, s 37(6)). By the Prime Minister and Cabinet (Miscellaneous Provisions) Act 1994, s 37 of the Act was amended so as to apply to all Secretaries with fixed-term appointments, and the two methods of terminating a fixed-term appointment became a single power to terminate the appointment to the office, with the automatic consequence of retirement from the Service.Reasons for Judgment on the First Application The learned trial Judge in his reasons for judgment on the first application identified the issues in the case as: 1.Whether the Secretary to the Department of the Prime Minister and Cabinet, before providing a written report to the Prime Minister in relation to the termination of Mr Barratt’s appointment, and/or the Prime Minister before advising or recommending to the Governor-General that the appointment be terminated, was obliged to afford procedural justice, including a reasonable opportunity to be heard. 2. Whether the power of termination may only be exercised for cause shown. On the first issue, his Honour observed that the removal of Mr Barratt from office would only occur in the exercise of a statutory power. That exercise was subject to general law principles governing administrative discretions. The history of the legislation was of little assistance in determining the question of an entitlement to procedural fairness. On the present state of the Act, the effect of a recommendation by the Prime Minister would be to deprive Mr Barratt of his livelihood and possibly adversely affect his reputation. Prima facie, he was entitled to procedural fairness, unless there could be found in the provisions of the Act a legislative intent to exclude natural justice. His Honour rejected an expressio unius argument that the presence of procedural protections associated with ss 56 and 57 and their absence in s 37 indicated the existence of such a legislative intention. Nor was the discretionary nature of the power and the public interest aspect of its exercise sufficient to exclude the duty to extend procedural fairness, which is itself referrable to a general duty of good administration. His Honour referred to s 6 of the Act which he held reflected the same principles as underpin the common law requirements of natural justice. In the event, his Honour concluded that Mr Barratt was entitled to procedural fairness before the Prime Minister made a recommendation pursuant to s 37(11). This involved an entitlement to be told the grounds or reasons upon which a recommendation was proposed and an entitlement to be heard in relation to them. His Honour found no need to decide an alternative case based upon the contention that Mr Barratt had a legitimate expectation arising from conduct apart from the terms of his appointment.

Ratio Decidendi

Legal Principle Established

Established by: BEAUMONT, FRENCH AND MERKEL JJ

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