R v Jones
[1999] WASCA 194
•8 OCTOBER 1999
R -v- JONES [1999] WASCA 194
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 194 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:68/1999 | 15 JULY 1999 | |
| Coram: | MALCOLM CJ IPP J WALLWORK J | 8/10/99 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowedRetrials ordered | ||
| PDF Version |
| Parties: | THE QUEEN WAYNE RONALD JONES PANTELLIS SALDARIS FREDERICK HENK RUDOLPHY |
Catchwords: | Crown appeals against acquittals upon direction of trial Judge Charges of obstructing member of Legislature Whether that person disqualified from being such a member by virtue of appointment to office of Agent General Whether earlier prospective appointment was validly cancelled by Governor Appointment held at pleasure may be cancelled by exercise of the Royal Prerogative by the Governor "Appointment" to office distinguished from "holding" office Before appointee holds office, he or she cannot be suspended or removed from office by the Governor but the decision to appoint may be revoked or cancelled |
Legislation: | Agent General Act 1895, s 1, s 4, s 51(1)(c) Constitution Acts Amendment Act 1899, s 34 Extradition Act 1870 (UK), s 19 Interpretation Act 1984, s 52 |
Case References: | Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508 Barton v The Commonwealth (1974) 131 CLR 477 Bennett v Commonwealth of Australia [1980] 1 NSWLR 581 Carey v The Commonwealth (1921) 30 CLR 132 Dunn v R [1896] 1 QB 116 Fisher v R (1901) 26 VLR 781 Gould v Stewart [1896] AC 575 Menner v Falconer (1997) 74 IR 472 Parker & Ors v Miller & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998 Re Governor-General and Executive Council of New South Wales; Ex parte Robertson (1858) 11 Moo PC 288 Shenton v Smith [1895] AC 229 Suttling v Director General of Education (1985) 3 NSWLR 427 Sykes v Cleary (1992) 176 CLR 77 Terrell v Secretary of State to the Colonies [1953] 2 QB 482 Washer v British Columbia Toll Highways and Bridges Authority (1965) 53 DLR (2d) 620 Wheaton v Maple (1893) 3 Ch 48 Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 Brown v West (1990) 169 CLR 195 Clydesdale v Hughes (1934) 36 WALR 73; 51 CLR 518 Comeau's Sea Foods Ltd v Canada (Minister of Fisheries and Oceans) [1997] 1 SCR 12 Palais Parking Station Pty Ltd v Shea (1977) 16 SASR 350 Re Warrego Election Petition (1899) 9 QLJ 249 Royse v Birley (1869) 4 LR4CP 296 R v Chapman [1931] 2 KB 606 R v Webster (1975) 132 CLR 270 Sue v Hill (1999) HCA 30 Tonkin v Brand [1962] WAR 2 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- JONES [1999] WASCA 194 CORAM : MALCOLM CJ
- IPP J
WALLWORK J
- Appellant
AND
WAYNE RONALD JONES
- Respondent
- Appellant
AND
PANTELLIS SALDARIS
Respondent
(Page 2)
FILE NO/S : CCA 70 of 1999 BETWEEN : THE QUEEN
- Appellant
AND
FREDERICK HENK RUDOLPHY
- Respondent
Catchwords:
Crown appeals against acquittals upon direction of trial Judge - Charges of obstructing member of Legislature - Whether that person disqualified from being such a member by virtue of appointment to office of Agent General - Whether earlier prospective appointment was validly cancelled by Governor - Appointment held at pleasure may be cancelled by exercise of the Royal Prerogative by the Governor - "Appointment" to office distinguished from "holding" office - Before appointee holds office, he or she cannot be suspended or removed from office by the Governor but the decision to appoint may be revoked or cancelled
Legislation:
Agent General Act1895, s 1, s 4, s 51(1)(c)
Constitution Acts Amendment Act 1899, s 34
Extradition Act 1870 (UK), s 19
Interpretation Act 1984, s 52
Result:
Appeals allowed
Retrials ordered
(Page 3)
Representation:
CCA 68 of 1999
Counsel:
Appellant : Mr R E Cock QC, Ms E L Jenkins & Mr A C Elliott
Respondent : Mr P W Johnston
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : JJ Scudds & Associates
CCA 69 of 1999
Counsel:
Appellant : Mr R E Cock QC, Ms E L Jenkins & Mr A C Elliott
Respondent : Mr J Courtis
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Wojtowicz Kelly
CCA 70 of 1999
Counsel:
Appellant : Mr R E Cock QC, Ms E L Jenkins & Mr A C Elliott
Respondent : Mr J Courtis
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Wojtowicz Kelly
(Page 4)
Case(s) referred to in judgment(s):
Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508
Barton v The Commonwealth (1974) 131 CLR 477
Bennett v Commonwealth of Australia [1980] 1 NSWLR 581
Carey v The Commonwealth (1921) 30 CLR 132
Dunn v R [1896] 1 QB 116
Fisher v R (1901) 26 VLR 781
Gould v Stewart [1896] AC 575
Menner v Falconer (1997) 74 IR 472
Parker & Ors v Miller & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998
Re Governor-General and Executive Council of New South Wales; Ex parte Robertson (1858) 11 Moo PC 288
Shenton v Smith [1895] AC 229
Suttling v Director General of Education (1985) 3 NSWLR 427
Sykes v Cleary (1992) 176 CLR 77
Terrell v Secretary of State to the Colonies [1953] 2 QB 482
Washer v British Columbia Toll Highways and Bridges Authority (1965) 53 DLR (2d) 620
Wheaton v Maple (1893) 3 Ch 48
Case(s) also cited:
Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399
Brown v West (1990) 169 CLR 195
Clydesdale v Hughes (1934) 36 WALR 73; 51 CLR 518
Comeau's Sea Foods Ltd v Canada (Minister of Fisheries and Oceans) [1997] 1 SCR 12
Palais Parking Station Pty Ltd v Shea (1977) 16 SASR 350
Re Warrego Election Petition (1899) 9 QLJ 249
Royse v Birley (1869) 4 LR4CP 296
R v Chapman [1931] 2 KB 606
R v Webster (1975) 132 CLR 270
Sue v Hill (1999) HCA 30
Tonkin v Brand [1962] WAR 2
(Page 5)
1 MALCOLM CJ: These were three appeals by the Crown under s 688(2)(b) of the Criminal Code which provides that an appeal may be made to this Court by the prosecution:
"against any verdict of acquittal on an indictment and any judgment founded thereon when such verdict has been found by direction of the judge or other authority entitled to give directions on law to the jury at the trial."
- Each of the three appeals was such a case.
2 The questions raised by the appeals are:
(1) whether the appointment by His Excellency the Governor ("the Governor") with the advice and consent of the Executive Council on 21 May 1996 of the Hon Clive Edwards Griffiths ("Mr Griffiths") to the office of Agent General of Western Australia pursuant to s 1 of the Agent General Act 1895 for the period 1 January 1997 to 31 December 1998 had the effect of disqualifying Mr Griffiths from being a Member of Parliament from 21 May 1996 or at any material time;
(2) whether the resolution of the Governor with the advice and consent of the Executive Council on 24 December 1996 cancelling the appointment of Mr Griffiths to the office of Agent General for the period from 1 January 1997 to 31 December 1998 had that effect as from 24 December 1996.
3 On 19 April 1999 the respondents pleaded not guilty to an indictment presented in the District Court which alleged that:
"On 15 May 1997 at Perth WAYNE RONALD JONES, PANTELLIS SALDARIS and FREDERICK HENK RUDOLPHY, by force, interfered or attempted to interfere with the free exercise by a member of the Legislative Council, CLIVE EDWARDS GRIFFITHS, of his duties or authorities as such member."
4 The alleged offence is constituted by s 55 of the Criminal Code which provides that:
"Any person who, by force or fraud, interferes or attempts to interfere with the free exercise by either House of Parliament of their authority, or with the free exercise by any member of either House of his duties or authority as such member or as a member of a committee of either House, or of a joint committee
(Page 6)
- of both Houses, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.
Summary conviction penalty: Imprisonment for 2 years or a fine of $8 000."
5 The Crown case at the trial was that on 15 May 1997 the respondents obstructed the entry of Clive Edwards Griffiths into Parliament House. It was said that Mr Griffiths was, at all material times, a member of the Legislative Council. It was said that he was the President of the Council. The Crown case was that by obstructing the entry of Mr Griffiths the respondents interfered with the free exercise of Mr Griffiths' duties or authorities as a Member of Parliament. The evidence was that the respondents linked arms and obstructed a doorway leading into Parliament House. They held the door closed when Police tried to open the door from the inside. A fourth man stepped in to hold the door closed. It was alleged that the respondents Frederick Henk Rudolphy and Pantellis Saldaris were two of the three men who linked arms. The third man was not identified. It was alleged that the man who joined in to hold the door closed was the respondent Wayne Ronald Jones.
6 Under s 34(1)(a) of the Constitution Acts Amendment Act 1899, a person who holds the office of Agent General is disqualified from being a member of the Legislative Council. Section 1 of the Agent General Act provides that:
"The Governor may appoint any person to be Agent General for Western Australia."
7 Section 4 of the Act provides that:
"Every person appointed Agent General whether before or after the passing of this Act, may at any time be suspended or removed from office by the Governor, and shall in any event cease to hold office at the end of three years from the date of appointment, but shall be eligible for re-appointment."
8 Section 60 of the Interpretation Act 1984 provides that a reference to "the Governor" is taken to mean the Governor with the advice and consent of the Executive Council.
9 On 21 May 1996 the Governor with the advice and consent of the Executive Council approved a recommendation by the Executive Council that:
(Page 7)
- "1. Under section 1 of the Agent General Act 1895 to appoint CLIVE EDWARD GRIFFITHS to be Agent General for the State of Western Australia for the period 1 January 1997 to 31 December 1998 (both dates inclusive); and
2. to issue the attached commission."
10 By a commission dated 21 May 1996 as to the appointment of Mr Griffiths as Agent General and addressed to Mr Griffiths, the Governor said:
"Acting under the Agent General Act 1895 and with the advice and consent of the Executive Council, I, the Governor, have appointed you to be Agent General for the State of Western Australia for the period 1 January 1997 to 31 December 1998 (both dates inclusive)."
11 Subsequently, the Governor with the advice of the Executive Council approved of the following recommendation, namely:
"1. to cancel -
(a) the appointment of CLIVE EDWARD GRIFFITHS to be Agent General for the State of Western Australia for the period 1 January 1997 to 31 December 1998 (both dates inclusive) made on 21 May 1996 on Executive Council Minute No. 0491; and
(b) the commission dated 21 May 1996 issued to CLIVE EDWARD GRIFFITHS in relation to that appointment; and
2. under section 1 of the Agent General Act 1895 to appoint CLIVE EDWARD GRIFFITHS to be Agent General for the State of Western Australia for the period 2 June 1997 to 1 June 1999 (both dates inclusive);
and
3. to issue the attached commission."
12 A fresh commission was issued covering the appointment pursuant to par 2 of the recommendation.
(Page 8)
13 Mr Griffiths had been elected as a member of the Legislative Council for a four year term commencing on 22 May 1993.
14 At the end of the Crown case, counsel for the respondents Saldaris and Rudolphy, supported by counsel for the respondent Jones, made a submission that the respondents had no case to answer because, taking the Crown case at its highest, it had failed to prove beyond reasonable doubt that Mr Griffiths was, at the material time, a member of the Legislative Council because the purported cancellation of his appointment as Agent General was beyond power and the original appointment had come into effect on 1 January 1997. It followed that from that time forward and, in particular, at the material time, Mr Griffiths held the office of Agent General and was disqualified from membership of the Legislative Council under s 34(1a) of the Constitution Acts Amendment Act 1899.
15 Both s 4 of the Agent General Act and s 52(1)(a) of the Interpretation Act provide for a power of removal or suspension from office. The learned trial Judge referred to these provisions and said:
"No power is given to cancel the appointment of the person to that office. Exhibit 15 [the Executive Council minute dated 24 December 1996] in its terms refers to His Excellency the Governor being advised to 'cancel the appointment' of Mr Griffiths to be Agent General.
The power to cancel is not the same as the power to suspend or remove. To cancel a minute is to make it void or to annul it. That is not the same as to suspend or to remove a person appointed under the minute, and I agree with that submission made by defence counsel.
It was submitted that the purported exercise of a power to cancel was beyond power. The Agent General Act only gives the Governor the power to suspend or remove the Agent General, not to cancel the appointment of a person as Agent General. The Interpretation Act similarly says that the power to appoint gives power to remove or suspend. It does not say that the person exercising the power may cancel the appointment. I accept that submission as a true statement of the position.
I also accept that it goes without saying that if the Governor had no power to cancel Mr Griffiths' appointment made on 21 May 1996, then as at 15 May 1997 that appointment was valid. Because of s 34 of the Constitution Acts Amendment Act 1899
(Page 9)
- Mr Griffiths was not a member of the legislature, thus the Crown would have failed to prove the necessary element of the charge.
The Crown submitted that the operation of s 52 of the Interpretation Act is confined to circumstances where an appointment has already taken effect. One cannot be suspended or removed from an office until one has taken up the appointment, thus there must be power to cancel an appointment if, for example, it has found that the person was not qualified to hold the appointment or that there was some supervening illness, then the power to cancel must exist. In the Crown's submission that power to appoint must equally confer on the person exercising that power the power to cancel that appointment.
In the Crown's submission Mr Griffiths did not as at 15 May 1997 hold the office of Agent General and was therefore not disqualified from membership of the Legislative Council. He did not hold that office because his appointment on 21 May to that office had been cancelled on 24 December 1996. The central issue is therefore whether His Excellency the Governor had the power to cancel his appointment. The submission was made that the power to cancel 'comes at a point in time before a power to remove or suspend would apply'. I am there referring to argument of counsel.
Mr Elliott submitted that as the words 'a person so appointed' referred to a person who has taken up the appointment, they have no application in this case because Mr Griffiths' Commission dated 21 May was prospective. It did not become effective until the specified date, namely 1 January 1997. Prior to that date the Commission had been cancelled and a new Commission issued effective from 1 June 1997. Therefore at the time at which the offence was committed Mr Griffiths was still a member of the Legislative Council and the accused were able to commit the offence alleged against them.
The Crown accepted that there was no section in the Interpretation Act or in the Agent General Act which said that a power to appoint encompasses a power to cancel. Mr Elliott submitted:
(Page 10)
- 'So much is so trite that it doesn't need spelling out in legislation whereas in the situation of a power of appointment which takes effect, it's useful to spell out these other options to remove or suspend which are open.'
- However, as Lord Mersey said in Thompson v The Minister for Immigration and Ethnic Affairs [1910] AC 409 [at] 420 said:
'It is a strong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity it is a wrong thing to do.'
In my view, there is no clear necessity in a case such as this where the Crown seeks to imply such words to create a criminal liability in the accused. In his reply Mr Elliott put the submission in another form:
'When you view it altogether you either have (a) a valid cancellation and reappointment or (b) an operative suspension of an appointment under which Mr Griffiths did not yet hold office.'
The Crown submitted that there is a distinction between being appointed to an office and holding that office. In this case Mr Griffiths was appointed to the office on 21 May but would not have commenced to hold the office until 1 January 1997. In the intervening period His Excellency the Governor had power to cancel the appointment and did so. That may all be accepted. The issue still remains as to whether or not there is a power to cancel the appointment.
…
As s 52(1)(c) of the Interpretation Act allows the person exercising the power to specify the period for which the person appointed shall hold the appointment, then if the appointment is cancelled before that date, the person never enters into his or her office. All parties agreed that if the minute of 24 December 1996 had allowed the appointment of 21 May to stand, but to have specified as permitted by s 52(1)(c) of the Interpretation Act that the period nominated in that minute be suspended and the appointment to date from 1 June 1997, the provision of s 34 of the Constitution Acts Amendment Act 1899 would have had no effect.
(Page 11)
- If that had been done Mr Griffiths would still have been a member of the Legislative Council at the date of this offence. In other words, the same result could have been achieved by using the power to suspend the appointment made on 21 May until a later date."
16 The learned Judge expressed his conclusion as follows:
"… I cannot accept the Crown's submission that the power to cancel should be implied in s 4 of the Agent General Act and in s 52(1)(a) of the Interpretation Act. I agree with Mr Courtis' submission that if I were to imply the power to cancel an appointment in s 4 of the Agent General Act or in s 52(1)(a) of the Interpretation Act, I would in fact be legislating. All that the court is permitted to do is to interpret the provisions of the legislation. It is not for me to make legislation by adding a word to a statute where the parliament has not chosen to enact that word.
I am strengthened in my opinion by the provisions of s 52(1)(b) of the Interpretation Act 1984. If the Crown's submission is correct, then this provision would be otiose. If the power to cancel was to be implied in s 52(1)(a), then there would seem to be no necessity for 52(1)(b). The appointment of a person could be cancelled and there would be no need to appoint a person to act temporarily in his or her place. In my opinion, it is not permissible to imply the power to cancel in either the Agent General Act or the Interpretation Act.
…
As at 24 December 1996 there was no doubt in my mind that Mr Griffiths had been appointed to the office of Agent General. Unless that appointment was suspended, then according to its terms his commission came into effect on 1 January 1997; thus at the material time he was disqualified from membership of the Legislative Council. The Crown has failed to prove the element that he was a member of the Legislative Council."
17 Following the making of that ruling, the learned Judge directed the jury to bring in a verdict of not guilty.
(Page 12)
Grounds of the appeals
18 The grounds in respect of each of the three appeals were the same. Ground 1 of the grounds of each of the appeals was that:
"The learned trial Judge erred in law in holding that the resolution of the Executive Council on 24 December 1996, purporting to cancel the appointment of Clive Edward Griffiths to the office of Agent General for the period of 1 January 1997 to 31 December 1998 did not have that effect.
Particulars
- On 24 December 1996, in respect of the appointment of Clive Edward Griffiths to the office of Agent General for the period from 1 January 1997 to 31 December 1998, the Executive Council validly exercised its inherent power to cancel any appointment which it was empowered by law to make, and the learned trial Judge should have so found."
"The learned trial Judge erred in law in holding that as at 24 December 1996 Clive Edward Griffiths had been so appointed to the office of Agent General."
20 Ground 3 was that:
"The learned trial Judge erred in law in holding that the only power which the Executive Council could exercise in respect of the appointment of Clive Edward Griffiths to the office of Agent General for the period from 1 January 1997 to 31 December 1998 was a power of removal or suspension as granted by s 4 of the Agent General Act 1895 or s 52(1)(a) of the Interpretation Act 1984.
Particulars
- The learned trial Judge should have held as a matter of law, that the Executive Council could, pursuant to its inherent power, cancel the appointment of Clive Edward Griffiths if such an appointment had not yet taken effect and remained merely prospective."
(Page 13)
- "The learned trial Judge erred in law in considering whether the Agent General Act 1895 or the Interpretation Act 1984 conferred a power upon the Executive Council to cancel the appointment of Clive Edward Griffiths to the office of the Agent General and finding that they did not, when he should have considered whether those Acts prohibited the Executive Council exercising such a power and he should have found that they did not."
22 Ground 5 was that:
"Further and in the alternative to grounds 1 to 4, the learned trial Judge erred in law in not holding that the statutory power conferred upon Executive Council, under the Agent General Act 1895, to remove a person from the office of Agent General, on its proper construction, included the power to cancel such an appointment."
23 Although it was not expressly stated by counsel for the Crown on the appeal, the reference to the "inherent power" of the Governor is a reference to the Royal Prerogative. Chitty, Prerogatives of the Crown (1820) at 3 noted that:
"Though His Majesty alone can call Parliament together, and dissolve its authority, these rights are purely of the executive kind. In a constitutional point of view, however, the legislative power is lodged in the King, subject to the assent of the Houses of Parliament. Laws are said to be enacted 'by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in Parliament assembled.'
As Supreme Executive Magistrate, the King possesses, subject to the law of the land, exclusive, deliberative, and more decided, more extensive, and more discretionary rights and powers. These are wisely placed in a single hand by the British Constitution for the sake of unanimities, strength and dispatch … the King of England is therefore not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from and in due subordination to him.
'By the word "prerogative" we usually understand,' observes Sir William Blackstone, 'that special pre-eminence which the King
(Page 14)
- hath over and above all other persons, and out of the ordinary course of the common law, in right of his Royal Dignity."
24 Chitty, at 75, classified public offices as either judicial or ministerial. The learned author said at 82:
"Offices may be granted at will of which there are many instances; and it is a general common law rule, upon which, however, various exceptions have been engrafted by statute, that the King may terminate at pleasure, the authority of officers employed by His Majesty. Lord Chancellor holds his high situation only during the King's pleasure, and the 12 Judges of the courts of common law formally held them on the same footing; but by legislative provision they and the Vice-Chancellor hold their respective situations during their good behaviour …"
25 The learned author also said at 80:
"With respect to public offices merely of a ministerial nature we may observe that though His Majesty cannot execute them himself, he has an undoubted prerogative right to appoint officers to fill them, who are removable at pleasure; as for instance commissioners of the customs, excise, stamps etc, postmasters and other persons of that description, whether of a higher or lower degree."
26 The general principles stated by Chitty are reflected in the statement in 8 Halsbury's Laws of England (4th Ed) par 1106; 8(2) Halsbury's Laws of England (4th Ed Re-issue 1996) par 902 that:
"Except where it is otherwise provided by statute, all public officers and servants of the Crown hold their appointments at the pleasure of the Crown and all, in general, are subject to dismissal at any time without cause assigned."
27 There are many authorities for this proposition including Dunn v R [1896] 1 QB 116; Re Governor-General and Executive Council of New South Wales; Ex parte Robertson (1858) 11 Moo PC 288; Shenton v Smith [1895] AC 229; Carey v The Commonwealth (1921) 30 CLR 132; Menner v Falconer (1997) 74 IR 472 per Anderson J at 473-474; and Parker & Ors v Miller & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998.
(Page 15)
28 It is well established that the prerogative may be cut down or restricted by statutory provisions: Gould v Stewart [1896] AC 575; Fisher v R (1901) 26 VLR 781; Terrell v Secretary of State to the Colonies [1953] 2 QB 482 at 499 per Lord Goddard CJ; Bennett v Commonwealth of Australia [1980] 1 NSWLR 581; Suttling v Director General of Education (1985) 3 NSWLR 427 at 447; and Washer v British Columbia Toll Highways and Bridges Authority (1965) 53 DLR (2d) 620 at 627.
29 In my opinion, the Agent General appointed under s 4 of the Agent General Act is appointed at pleasure because a person so appointed "may at any time be suspended or removed from office by the Governor". Nothing in s 52(1)(a) of the Interpretation Act qualifies the conclusion that the office of Agent General is one in respect of which appointment is "at pleasure". Consequently, the relevant question was not whether one could find in the statutory provisions an express or implied power to cancel Mr Griffiths' appointment as Agent General. On the contrary, the question was whether there was anything in either the Agent General Act or the Interpretation Act to qualify the general rule that persons appointed to an office such as that of Agent General were appointed and held office "at pleasure". In my opinion, there was nothing in the relevant provisions of either Act to qualify the general proposition that the appointment to office of Agent General was "at pleasure". It follows that, at all material times, the Governor was in a position to terminate, revoke, remove from office or cancel the appointment at any time and without cause.
30 It was submitted on behalf of the respondents that Mr Griffiths' appointment was effective from the date of his commission on 21 May 1996 although his appointment was for the period 1 January 1997 to 31 December 1998. In my opinion, while the date of the decision to appoint and the date of the commission making the appointment were each 21 May 1996, it is apparent that the term of office was not to commence until 1 January 1997. That was the date upon which the term of office was to commence. It was argued on behalf of the respondent Jones that the appointment took effect from 21 May 1996. In my opinion, there is no substance in that argument. There is a clear distinction between the appointment to an office as such, on the one hand, and the commencement of the term of office on the other. Where the appointment is made on a particular date but the term of office does not commence until a later specified date, the appointment takes effect as an appointment, but the appointee does not hold the office until the date upon which the term of office is to commence. Thus, in the period from the date of appointment to the date of commencement of the term of office, the appropriate step to take is to revoke or cancel the appointment. A
(Page 16)
- person can only be removed or suspended from office from and after the commencement date of the term of appointment.
31 In my view, the decision made by the Governor in Council on 24 December 1996 to cancel the previous appointment and the commission dated 21 May 1996 was a proper exercise of the prerogative. Likewise, the decision to appoint Mr Griffiths to be Agent General for the period 2 June 1997 to 1 June 1999 had the effect that Mr Griffiths would not hold the relevant office until 2 June 1997. As a consequence, he was at all material times, including the date of the alleged offence on 15 May 1997, a member of the Legislative Council. He did not become disqualified from being a member of the Legislative Council until the commencement of his term of office as Agent General on 2 June 1997.
32 It follows that, as Mr Griffiths' term of office had not commenced on 24 December 1996, it was not appropriate to remove or suspend him. He did not at that time "hold" the relevant office. It was open to the Governor in Council in the exercise of the prerogative of the Crown to revoke or cancel the appointment in the sense of revoking or cancelling the decision to appoint for a term to commence on some future date.
33 The disqualification of the holder of the office of Agent General from being a member of Parliament is consistent with the disqualification of a person who holds an office of profit under the Crown which is reflected in s 34 of the Constitution Acts Amendment Act 1899. This provision has its parallel in s 44(iv) of the Commonwealth Constitution. These provisions are modelled on a provision of the Act of Settlement 1701 which was repealed and replaced by provisions contained in the Succession to the Crown Act 1707 (UK).
34 In Sykes v Cleary (1992) 176 CLR 77 at 95 Mason CJ, Toohey and McHugh JJ said:
"It has been said that the English provisions give effect to three main considerations or policies. They are:
(1) the incompatibility of certain non-ministerial officers under the Crown with membership in the House of Commons …;
(2) the need to limit the control or influence of the executive government over the House by means of an undue proportion of office-holders being members of the House; and
(Page 17)
- (3) the essential condition of a certain number of Ministers being members of the House for the purpose of ensuring control of the executive by parliament.
The meaning of the expression 'office of profit under the Crown' is obscure. Blackstone defined an 'office' as 'a right to exercise a public or private employment' and to take the 'fees and emoluments thereunto belonging' (Commentaries on the Laws of England, 1st ed (1766, Vol 2 p36). Blackstone had in mind offices to which particular duties were attached and which entitled the holder to charge and retain fees for the performance of the services rendered by the office holder."
35 Section 3 of the Agent General Act provides that:
"The Agent General shall on and after the first day of March 1975 be paid such salary and allowances as are from time to time determined by the Governor."
36 It is clear, therefore, that the office of Agent General is an "office of profit under the Crown". In my opinion, this reinforces the view that the disqualification does not operate until the term of the appointment commences, following which the Agent General becomes entitled to receive such salary and allowances as are determined by the Governor. In the light of the conclusion which I have reached, the Crown is entitled to succeed on each of grounds 1 to 4. In the result, therefore, it is unnecessary to consider ground 5.
37 For these reasons I would allow the appeals and order that there be a retrial in each case.
38 IPP J: I have read the reasons to be published by Malcolm CJ and Wallwork J. I am in agreement with those reasons and have nothing further to add.
39 WALLWORK J: The question for decision in these appeals is whether on 24 December 1996 the Governor on the advice of the Executive Council could validly cancel the appointment of Mr Griffiths as Agent General for the State of Western Australia. The advice of the Executive Council to cancel the appointment was given to the Governor on 24 December 1996. The Governor cancelled the appointment on the same day. His Excellency then appointed Mr Griffiths to be the Agent General for Western Australia for the period 2 June 1997 to 1 June 1999 (both dates inclusive).
(Page 18)
Background
40 The three respondents to these appeals stood trial in the District Court at Perth on a charge of interfering, or attempting to interfere by force with the free exercise by Mr Griffiths of his duties or authority as a member of the Legislative Council. The offences allegedly occurred on 15 May 1997.
41 Mr Griffiths had been elected as a member of the Legislative Council for a four year term commencing on 22 May 1993. It was alleged that on 15 May 1997 the three respondents had linked arms and had obstructed him near a doorway leading into Parliament House. It was said that the three respondents had held a door closed when police officers tried to open it from the inside and that they had prevented Mr Griffiths from going through the door into Parliament House.
42 At the conclusion of the Crown case, and after hearing submissions from counsel for both the prosecution and the respondents, the learned trial Judge held that at the relevant time the Governor did not have the power to cancel Mr Griffiths' appointment. This was because his Honour held that pursuant to s 4 of the Agent General Act 59 Vic No 7, His Excellency only had the power to suspend or remove an Agent General from office and not to cancel the appointment. His Honour further held that because s 34 of the Constitution Acts Amendment Act 1899 disqualified the holder of the office of Agent General from membership of the Legislature, and because at 15 May 1997 Mr Griffiths held that appointment, the prosecution had failed to prove that he was a member of the Legislature at the time of the alleged offence. He therefore directed the jury to acquit the respondents of the charge against them.
The Law
43 Section 4 of the Agent General Act provides that:
"Every person appointed Agent General, whether before or after the passing of this Act, may at any time be suspended or removed from office by the Governor, and shall in any event cease to hold office at the end of three years from the date of appointment, but shall be eligible for re-appointment."
44 It can be seen that pursuant to s 4, the power to suspend or remove the Agent General from office may be exercised at any time. The
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- question is, did s 4 prevent the Governor from exercising the Royal Prerogative to cancel the appointment on 24 December 1996, which appointment the Governor had made earlier on 21 May 1996.
45 In Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508 at 538 Lord Atkinson quoted the Master of the Rolls as having said:
"Those powers which the Executive exercises without Parliamentary authority are comprised under the comprehensive term of the prerogative. Where, however, Parliament has intervened and has provided by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations and provisions contained in the statute, they can only be so exercised. Otherwise, what use would there be in imposing limitations if the Crown could at its pleasure disregard them and fall back on prerogative?"
46 Lord Atkinson also referred to the words of Lord Lindley in Wheaton v Maple (1893) 3 Ch 48 at 64 which were:
"…that the Crown is never bound by a statutory enactment unless the intention of the Legislature to bind the Crown is clear and unmistakable…."
47 In the De Keyser's decision Lord Dunedin said at 526:
"None the less, it is equally certain that if the whole ground of something which could be done by prerogative is covered by the statute, it is the statute that rules."
48 His Lordship continued:
"The prerogative is defined by a learned constitutional writer as 'The residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown'. In as much as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before the Act could be effected by the prerogative, and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that, and by that Act, to the prerogative being curtailed."
49 Lord Atkinson at 539 said:
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- "It is quite obvious that it would be useless and meaningless for the Legislature to impose restrictions and limitations upon, and to attach conditions to, the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions, and by virtue of its prerogative to do the very thing the statutes empowered it to do."
50 At 540 Lord Atkinson said:
"…after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been."
51 In Barton v The Commonwealth (1974) 131 CLR 477 at 488, Barwick CJ said:
"However, the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision, is extremely strong."
52 In the same decision, when speaking of s 19 of the English Extradition Act 1870 Mason J said at 497:
"The section provided an important protection to a fugitive offender who had been extradited pursuant to an arrangement with a foreign state, but it left entirely untouched the Executive power of the Crown to request and to negotiate the surrender by a foreign state of a fugitive offender. This Executive power therefore remained unaffected and undiminished by this statute."
- At 501 his Honour continued:
"It is well accepted that a statute will not be held to abrogate a prerogative of the Crown unless it does so by express words or by implication, that is, necessary implication (see Attorney General v De Keyser's Royal Hotel Ltd (supra). Here, not only is there a conspicuous absence of express words, but the area of operation of the statute, limited as it is to extradition pursuant to treaty, does not extend to the whole of the area covered by the exercise of the prerogative or executive power."
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53 In Chitty, "On the Prerogatives of the Crown", published in 1820, at p 80 it is said with respect to public offices "merely of a ministerial nature":
"…we may observe that though His Majesty cannot execute them himself, he has an undoubted prerogative right to appoint officers to fill them who are removable at pleasure, as for instance, Commissioners of the Customs, Excise, Stamps, etc, Postmasters, and other persons of that description, whether of a higher or lower degree."
54 The above comment is consistent with the proposition advanced for the appellant in this case that there is an accepted doctrine that persons employed in the service of the Crown are ordinarily engaged on the understanding that they hold office at the pleasure of the Crown - Dunn v R [1896] 1 QB 116; Shenton v Smith [1895] AC 229; Carey v The Commonwealth (1921) 30 CLR 132; Menner v Falconer (1997) 74 IR 472 per Anderson J at 473 - 474; Parker & Ors v Miller & Ors, unreported; FCt SCt of WA; Library No 980249; 8 May 1998.
55 Section 4 of the Agent General Act empowers the Governor to suspend or remove an Agent General from office at any time. The section says nothing concerning cancelling the appointment before the Agent General takes up the office.
56 In this case Mr Griffiths' commission of 21 May 1996 read:
"Acting under the Agent General Act 1895 and with the advice and consent of the Executive Council, I, the Governor, have appointed you to be Agent General for the State of Western Australia for the period 1 January 1997 to 31 December 1998 (both dates inclusive)."
57 That appointment complied with s 52 of the Interpretation Act which provides:
"(1) Where a written law confers a power or imposes a duty upon a person to make an appointment to an office or position including an acting appointment, the person having such power or duty shall also have the power -
(a) …
(b) …
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- (c) to specify the period for which any person appointed in the exercise of such a power or duty shall hold his appointment."
58 Mr Griffiths had not commenced to act in the Office on 24 December 1996 when the Governor cancelled the appointment.
59 Lord Atkinson's words that "the thing it empowers the Crown to do can thenceforth only be done by and under the statute" when applied to s 4 of the Agent General Act apply to a suspension or removal from office. They do not encompass the cancelling of a commission before a person takes up the duties of the office. Further the notions of being suspended or removed from office, in my opinion, are not apposite to a person who has not commenced to carry out his or her duties.
60 For the above reasons in my opinion the Governor did have the power to cancel the appointment prior to Mr Griffiths taking up the position. The appeals should be allowed and retrials ordered.
61 It is not necessary to discuss the other arguments which were advanced by counsel for the appellant and the respondents. Neither is it necessary to deal with the respondent Jones' notice of contention.
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