Jarratt v Commissioner of Police NSW & Anor

[2004] HCATrans 547

[2004] HCATrans 547

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S593 of 2003

B e t w e e n -

JEFFREY THOMAS JARRATT

Applicant

and

COMMISSIONER OF POLICE FOR NEW SOUTH WALES

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2004, AT 2.17 PM

Copyright in the High Court of Australia

MR D.R. CAMPBELL, SC:   If the Court pleases, I appear with my learned friend, MR R.D. GLASSON, for the applicant.  (instructed by Verekers)

MR R.C. KENZIE, QC:   May it please the Court, in this matter I appear with my learned friend, MR P. GINTERS, for the respondents.  (instructed by Crown Solicitor’s Office (NSW))

McHUGH J:   Yes, Mr Campbell.

MR CAMPBELL:   As this Court said in Sanders v Snell, it has long been held that the repository of statutory power should afford procedural fairness to those whose livelihood is affected by the exercise of that power unless excluded by plain words or necessary intendment.  It was accepted that Mr Jarratt ‑ ‑ ‑

McHUGH J:   The problem though is you run up against the principle that has been in existence since Dunn’s Case in 1896.

MR CAMPBELL:   Your Honour, the reason that I am predicating my remarks the way I do is that we say that the central question becomes whether the Act which removed him – that is, section 51 of the Act – evinced the intention to exclude the procedural fairness rules, not whether it evinces an intention to exclude the common law prerogative.  The collision, which we say that is applicable in this case, is that between the more recent procedural fairness cases on the one hand and the more archaic “at pleasure” cases on the other.  Our central submission, your Honour, really is that this was not an “at pleasure” removal at all, but a statutory disposition under the Act.

McHUGH J:   Well, there is a lot of case law against you, Mr Campbell.  You are going to have to turn those over, are you not?

MR CAMPBELL:   Well, we say that the question which is posed here has not been looked at in that the Act requires a process before the removal can take place.  It is not an “at pleasure” removal.  It is a process which says that at any time subsequent to a recommendation and an approval, the removal can occur.  We say that as a result there is a displacement of the old cases, if they are still apposite in this era, and that the Act prevails ‑ ‑ ‑

McHUGH J:   Well, Justice Brennan seemed to think that, by implication, they were still available in Suttling’s Case 162 CLR when that was decided.

MR CAMPBELL:   That is true, your Honour.  That is some time back.  There has been some movement since then, of course.  The House of Lords has looked at the question in the Scottish cases, which were referred to by his Honour Justice Heydon in Kelly.

McHUGH J:   Well, I referred to the cases and the criticism of them at some length when I was on the Court of Appeal in Suttling’s Case.  I thought there was an open question then, but in the High Court Suttling was decided on a different ‑ ‑ ‑

MR CAMPBELL:   Different question.

McHUGH J:   Yes.

CALLINAN J:   In my view in Sanders v Snell ‑ ‑ ‑

MR CAMPBELL:   I saw that your Honour had a different ‑ ‑ ‑

CALLINAN J:    ‑ ‑ ‑Mr Kenzie would be home and hosed, but that view did not find any favour at all.

MR CAMPBELL:   Although it is a different question really ‑ ‑ ‑

CALLINAN J:   I know, but it has got some elements in common to ‑ ‑ ‑

MR CAMPBELL:   I accept what your Honour says, but the real question, we say, that gives rise to the issue of leave is that there is – at least it is a debatable question whether there is a collision between the procedural fairness cases ‑ ‑ ‑

McHUGH J:   Look, there is no doubt whatever that there is an important point of principle, but it may be that it would be decided adversely to you and that a grant of special leave may not do you much good in the long run.  Certainly, it is an important question and given the development of natural justice, particularly over the last 25 years, it could well be the case that the Court would overrule what was said in Shenton v Smith, Dunn’s Case, Ryder v Foley, Fletcher’s Case in 1938 and so on.  What do you say about us adjourning this application for special leave into the Full Court as a whole to be heard in Canberra by the whole Court and argued as if it was an appeal?

MR CAMPBELL:   We would have nothing to say against that proposition.

CALLINAN J:   You would say, “Thank you very much”.

MR CAMPBELL:   Well, at the moment Mr Jarratt’s $600,000 poorer, in short, your Honour, and this is his last shot at it.  He should have every opportunity to – given that is an important – and it affects thousands of public servants throughout the country.

McHUGH J:   Of course it does.  I think, if I remember rightly, in Suttling’s Case back in 1985 I expressed five reasons why those cases should be followed.

MR CAMPBELL:   You did.  And Professor Hogg has picked up that and agitated it even more fervently in his last edition.

McHUGH J:   Of Liability of the Crown?

MR CAMPBELL:   Yes.

McHUGH J:   Yes.

MR CAMPBELL:   And the Canadian cases have gone that way.  I know there are differences, but ‑ ‑ ‑

McHUGH J:   Well, they had always been to that effect, had they not?

MR CAMPBELL:   We say that this is a case where it is not just – this is not one of those statutes that uses the words “at the pleasure” and purports to have the dismissal pursuant to the Crown prerogative.  It is the exercising of a statutory power, and the question is whether that prerogative is imported into the statute or that part of the statute.

McHUGH J:   What is the theory of the case against you, that the Crown had the right to remove your client without notice or cause, subject only to complying with the procedures in section 51?

MR CAMPBELL:   We do not concede the “without notice or cause”.  We say that there certainly is a requirement to give notice, and we say that there was ‑ ‑ ‑

McHUGH J:   I was saying was that the case against you?

MR CAMPBELL:   Yes, it was.

McHUGH J:   Yes.

MR CAMPBELL:   It is not suggested that procedural fairness was accorded.  In fact, it was conceded, according to her Honour in her Honour’s reasons for decision.  It is not suggested that though it was said to be on performance grounds there was any basis for the making of that decision.

McHUGH J:   Well, you should not be like the man who came back for his hat.

MR CAMPBELL:   No, your Honour, I am not going to – I will take what I can get.

McHUGH J:   Maybe we might ask your ‑ ‑ ‑

MR CAMPBELL:   I will take the best odds I can get, your Honour.

McHUGH J:    ‑ ‑ ‑opponent.  Now, Mr Kenzie, there are some very important questions involved in this case.  The point has been lurking for a very long period of time.

MR KENZIE:   Yes, your Honour.  We have not come here today to attempt to argue that the important – the points that are identified in I think paragraph (1) and (2) of our friend’s submissions, which include the question of the continued existence of the right to dismiss the “at pleasure” principle, the interaction between that principle and principles flowing from Kioa and Annetts, and possible implications that flow from that concerning the onus, are not important questions and, in an appropriate case, would not attract a grant of special leave.  We have not come here to waste your Honours’ time arguing that.

There is a real issue here in relation to the question of whether, notwithstanding the fact that there was considerable discussion about those aspects, that this case is a suitable one for the purpose of agitating those.  Your Honour, having heard what your Honour has put to our friend, could I say this.  If your Honours thought at the end of the submissions today that there was anything in the notion that this case would be a suitable vehicle, then we could not be heard to say that the course of action suggested by the court would not be appropriate.  We could have nothing really to say about that.

We do have some submissions as to whether in any event this case would be a suitable proceeding in which to assume that those matters are going to necessarily require ventilation, because a proper analysis of the decision will reveal that although those issues, and many of them, were discussed –and, indeed, the Court of Appeal ultimately expressed views about them, including views about the existence of the principle and including views about onus – at the end of the day the Court of Appeal has attended to the task that it had to attend to in the proceeding, and that was to actually come squarely to grips with the construction of the statute, which was accepted on all hands, and certainly by the Court of Appeal as primary.

Fundamentally, your Honours, it is our submission that it would not matter, of ultimately for the purposes of considering the construction placed by the Court of Appeal on the provisions, whether you approach this matter, whether the High Court proceeded on the basis that the principles had changed or been affected by Annetts, the canvas had changed, so that the principles in Annetts and Kioa were applicable, or whether they had not changed ‑ ‑ ‑

McHUGH J:   But you dispute that they were applicable.  But why are they not applicable to the statute?  Is this not just an application of what Sir Owen Dixon said in Commissioner of Police v Tanos, based on Cooper v Wandsworth Board, that you take a statutory power to be given subject to the rules of natural justice.

MR KENZIE:   Yes.

McHUGH J:   Unless there are plain words of necessary intendment.

MR KENZIE:   Quite so, your Honour.  We are not here to suggest that the principles in Annetts and Kioa would not be principles relevant of course in the statutory context; they are.  But what is at stake here is whether the words of the statute, as construed by the Court of Appeal as it had to do, render it relevant as to whether you would ultimately change the canvas and apply, or apply Kioa and Annetts, or whether you look at it from the background of the consideration of the common law principles or prerogative in relation to dismissal at pleasure.  At the end of the day you run up against the terms of the statute, and if the proper construction of the statute is that – and the words are intractable – and they provide the basis – they support the Court of Appeal’s conclusion, which was that the steps could take place at any time, as the statute says ‑ ‑ ‑

McHUGH J:   Well, I appreciate that, but ordinarily one would read that subject to the rules of natural justice.  Well, I think the prevailing theory is that it is the common law that provides the rules of natural justice.  The statute is supplemented by the common law.  Justice Brennan holds the contrary view that you find natural justice implied by the statute, but I think the majority view is that it is the common law that provides the rules of natural justice.

MR KENZIE:   Yes, your Honour, yes.

McHUGH J:   Now, why do you not read section 51 subject to that common law rule?

MR KENZIE:   Because the common law rule, as expressed in Annetts and Kioa, is itself subjected to the clear ‑ ‑ ‑

CALLINAN J:   Well, you say section 51 defines completely what would otherwise be the contract of employment?

MR KENZIE:   What it does is it deals completely with the question of the process of removal from office in a relevant sense, as so found by the Court of Appeal.  The Court of Appeal said that section 51 provided – the Act was not a Code in relation to everything that happened to an appointee, an office holder, but it relevantly defined the position in relation to the removal from office.  It relevantly said that that could take place at any time, and those words “at any time” were – and section 51(1)(a) was construed by the Court of Appeal in such a way as if you applied the principles in Annetts and Kioa you would get the conclusion that of course principles of natural justice are incorporated, subject to clear words of the legislation, and here they are.  This Act went out of its way to provide a regime at the end of the day which – it had these characteristics ‑ ‑ ‑

CALLINAN J:   You say that the rules of natural justice cannot contradict provisions which deal completely and expressly with the situation.

MR KENZIE:   That is right.  We do not deny, and never could deny the applicability of principles for the incorporation of natural justice in an appropriate statutory context.  The question is how is this statute to be properly interpreted, because that is the task, and when you properly interpret it how can you incorporate the principles of natural justice and accommodate it with the interpretation given – properly, in our submission – by the Court of Appeal.

McHUGH J:   But, Mr Kenzie, if the “dismissal at pleasure” principle was not lurking in the background, I doubt if it would occur to any common lawyer to read section 51 as excluding the rules of natural justice, given the view that the courts have taken about that principle.

MR KENZIE:   With respect, your Honour, that is one of the reasons that we took the liberty of referring your Honour, not only to the older cases in relation to the Crown “dismissal at pleasure” principles, but the decision of the High Court in O’Rourke v Miller, because in O’Rourke v Miller that is exactly what this Court did.  It picked up a statute that provided that the Commissioner could dismiss a police cadet at any time – no other words – and contrasted it clearly with the provisions that it had to construe in that case, and had no doubt, four members of the High Court had no doubt, that these words, in a context where the Act otherwise may apply to principles of natural justice, four members of the Court had no doubt that the conclusion – which was the same conclusion reached by the Court of Appeal – was completely correct.

McHUGH J:   I appreciate that, but that is 20 years ago - 19 years ago O’Rourke was decided.  After all, the world changed dramatically in 1964 with Ridge v Baldwin and natural justice has been up and running and running very fast for the last 40 years.

MR KENZIE:   Yes, your Honour.

McHUGH J:   It certainly has probably strengthened very considerably since 1985.  Look at cases like Ainsworth, look at Annetts.

CALLINAN J:   It certainly ran a long way in Sanders v Snell.

MR KENZIE:   No doubt it did, but of course Sanders v Snell – and the important thing about Sanders v Snell is that it was a statute that provided for a ministerial decision in relation to the administration of a business, in general terms.  What the Court said in Sanders v Snell was, in our respectful submission, unexceptional in ‑ ‑ ‑

CALLINAN J:   But the Minister was not even the employer, was he?

MR KENZIE:   No.

CALLINAN J:   He was one removed.

MR KENZIE:   True, but there were not the words that you find in section 51(1)(a).

McHUGH J:   There is another point you have to deal with, and that is the point in Coco’s Case, where this Court said if Parliament was going to interfere with fundamental rights, it has to say so in terms.  That is the same notion that has been picked up by the Lords, and Lord Hoffmann has said much the same thing.  So why should one not read this statute as subject to that principle; that is to say if Parliament wants to exclude the rule of natural justice it had better say so clearly, because it is only when Parliament’s mind is specifically directed to fundamental rights that it is then forced to make a decision, and say so expressly.

MR KENZIE:   Your Honour, this regime is relevantly comprehensive.  The Court of Appeal did not simply construe section 51(1)(a) without regard ‑ ‑ ‑

McHUGH J:   No, they went with 53 and ‑ ‑ ‑

MR KENZIE:   They looked at the rest of the statutory regime, and it had a number of characteristics.  Those characteristics included a clear and comprehensive dealing with the relationship between contract and appointment, and at every point along the way Parliament was careful to completely subject the contractual principles, including the creation of contractual regimes and the right to get a fixed term contract.  At every point along the way in the relevant part, what Parliament has done is to say, “We know that we are erecting a system of contract for senior officers here, but each of these provisions we expressly subject to the appointment provision”, which is section 51(1)(a).

In other words, what Parliament has done and what the Court of Appeal recognised was that it had gone out of its way to do that, and against that background to say “the Governor on the recommendation of the Commissioner” can terminate at any time, and then the legislation went on to deal comprehensively with what the consequence of that was, and the consequence was not that an officer got, as it were, turfed out without more ‑ ‑ ‑

McHUGH J:   But the point is do you read the statute as saying the “executive officer may be removed from office at any time” after being given natural justice?  You say no.  But why should those words not be read into it?  I mean the common law supplies them.

MR KENZIE:   Your Honour, because ‑ ‑ ‑

CALLINAN J:   Because of the history of the special situation of a high official in government ‑ ‑ ‑

MR KENZIE:   Indeed.

McHUGH J:   There you are.  That is what I said to you earlier.  If that principle had not been lurking in the background, one would not get this case off the ground.

MR KENZIE:   But, your Honour, could I put this ‑ ‑ ‑

McHUGH J:   From your point of view.

MR KENZIE:   But could I put this.  Let us assume, for the purposes of the debate, that the matter is ventilated before the Full High Court, and the High Court determines that really then there needs to be a fresh look at the question and, indeed, properly understood, the position is not as enunciated in the list of authorities that your Honour has already mentioned.  Let us make those assumptions for the purposes of the debate.  That, to use the language of Justice Kirby back at the time of the debate in Suttling, your Honour, will not alter the canvas on which this Act was drawn.

McHUGH J:   No, but what it may do, if there is a decision favourable to Mr Campbell’s client, is that Parliament has to face up to abolishing the rules of natural justice; as the Federal Parliament has done in Part 8 of the Migration Act.  They have said specifically, “The rules of natural justice don’t apply”.  Well, sometimes you have to pay a political price for that.  If governments want to abolish the rules of natural justice so far as they apply to public servants, well they may have to pay a political price for it.

MR KENZIE:   All true and accepted, your Honour.

CALLINAN J:   The real question here, Mr Kenzie, seems to be whether the government has in fact done that or not.

MR KENZIE:   That is right.

CALLINAN J:   Really, I must say with Justice McHugh, I think that is a question for the Full High Court.

MR KENZIE:   Your Honour, I concede, and did at the outset, that if the Court regards this case as a vehicle for examining that question, then I have ‑ ‑ ‑

McHUGH J:   It is not merely that question.  Even if those cases were not there, and you were looking at it on a fresh canvas, but you were talking about problems for government if they did not have such a power, the point would still be there; and it is an important point.

MR KENZIE:   Well, your Honour, all that we can say is that the canvas was the canvas, and that canvas was, right or wrong, the authorities of this Court.  What Parliament was acting on was that canvas, and that is the canvas against – on the basis of which those words “at any time”, and the rest of the statutory scheme, are required to be interpreted.  If that is the proper approach - and that is the approach that the Court of Appeal took – if that is the proper approach, recognising that good or bad or ugly that was the canvas - it might be altered in the future but that was the canvas – if that is the right approach then this case would not be a proper vehicle because it would be a simple case of statutory construction and would be able to be resolved ‑ ‑ ‑

CALLINAN J:   I think about 80 per cent of our work is now statutory construction of one kind or another, Mr Kenzie.

MR KENZIE:   Yes.  Well, yes.  And the only further relevance of that is of course this statute has since been amended in light of Justice Simpson’s judgment.  But I cannot put more, your Honour.

McHUGH J:   Yes.

MR KENZIE:   If it is a vehicle, then the underlying questions are important, we would never contend it to the contrary.  We submit it is not really a vehicle because at the end of the day it was simply a matter of ‑ ‑ ‑

McHUGH J:   There is only one answer, you see.

MR KENZIE:   Yes, your Honour.  Thank you.

McHUGH J:   This application will be adjourned into the Full Court to be heard in Canberra and argued as if it was an appeal.  The result may be, Mr Campbell, that you may be granted special leave and the appeal allowed or there may be a refusal of special leave, or there may be a grant of special leave and the appeal dismissed.  The costs of today’s proceedings will be costs in the application.

AT 2.39 PM THE MATTER WAS CONCLUDED