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.
Decisions
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
O'Rourke v Miller [1985] HCA 24
Case
[1985] HCA 24
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by a probationary police constable, O'Rourke, against the Commissioner of Police (Victoria) concerning the termination of his appointment. O'Rourke's appointment was terminated before the end of his probationary period, following allegations of misconduct during that time.
The central legal issues before the Court were whether the Commissioner possessed the power to terminate a probationary constable's appointment apart from the specific regulations governing such terminations, and whether O'Rourke was entitled to natural justice, including the right to be heard and to confront and cross-examine his complainants, before the exercise of this power.
The Court held that the Police Regulation Act 1958 (Vic) and the Police Regulations 1979 (Vic) provided a comprehensive framework for the appointment and termination of constables, including probationary constables. While the regulations empowered the Commissioner to confirm or terminate a probationary appointment, the Court found that the power to terminate was not unfettered and was subject to the principles of natural justice. However, the Court determined that in the context of terminating a probationary appointment based on misconduct, the requirements of natural justice did not extend to a right to a formal hearing or to confront and cross-examine complainants. The Court reasoned that the termination of a probationary appointment was not punitive in nature but rather an assessment of suitability for permanent service, and that the regulations provided sufficient procedural safeguards.