Ryder v Foley
6 October 1906
422 HIGH COURT
[1906.
H.C. OF A.Parliament left it perfectly open whether the deportation of the
| 1906.islander was to be to the island whence he came, or to some other |
R o b teljies
place. However that may be, we have only to determine whether
V.
B r e n a n .the power to deport does not in itself include the power of
choosing the place of deportation and the means of deportation
U’Coiinor J.
in order that the exercise of the power shall be effectual. Apply ing the principles that I have alluded to, it is clear to my mind that, the power to exclude and the power to deport being in the Commonwealth Parliament, the power of deciding what shall be an effective form of deportation must rest with them. They have the right, if they wish, to leave the question of the mode or place of deportation to the discretion of the government. For these reasons I am of opinion that the magistrate was right in his conclusion, and was justified in making the order that he made, and that it was within the power of the Commonwealth to j^ass the Act under which he adjudicated.
Appeal dismissed.
iFJilyy
Director of
Public Works
Solicitor, for the appellant, A. W. Bale.
16ALD43
Solicitors, for the respondent. Chambers A McNah.
Foil
Kaye v
N. G. P.
Aftomey-
Genenu (Tas)
(1956194
CLR193
[HIGH COURT OF AUSTRALIA.]
RYDER .................................................................
A ppellant ;
(N ominal Defendant),
FOLEY .
Re.spondent.
Plaintiff.
ON APPEAL FROM THE SUPREME COURT OF
H. U. OF A.
QUEENSLAND.
1906.
Police officer— 'Penure o f office— Who may dUmm—“ Qovernmenl,” meanin// of—
B r is b a n e ,
Wrongful dismisial.
Oct. 3, 4, 6.
By sec. 6 of the Police Act 1863 it is provided that the Commissioner of
Griffith C.J., Police “ shall appoint fit and proper persons to fill such vacancies as may here
■ Barton and
| O'Connor JJ.after occur among the sergeants and constables of the police force, and upon |
4 C.L.H.J OF AUSTRALIA.
423
sufficient proof of misconduct or unfitness to be submitted for the approval of C. OF A.
the Government shall have power to dismiss any sergeants and constables, and 1906.
all sergeants and constables of whatever grade shall, so long as they continue
members of the force, have all such powers, privileges, and advantages, and
R y d e r
V.
be liable to all such duties or responsibility as any constable duly appointed
F o ley .
now has or hereafter may have either by common law or by virtue of any
Statute.”
Ildd, that the word “ Government” means the Executive Government acting through the Minister responsible for the carrying out of the provisions of the Act, and that the expression “ submission to the approval of the Govern ment ” means submission to the approval of the Crown acting througli the proper responsible Minister, whoever be may be.
Held further, that under the section a constable holds office during pleasure, and that, as his office is of that tenure, an action for wrongful dismissal will not lie against the Government.
Decision of the Supreme Court: Foley m. Ryder, (1906) St. R. Qd., 225, eversed.
Appeal from an interlocutory judgment of the Supreme Court of
Queensland.
The plaintiff sued the defendant (as nominal defendant on behalf of the State Government) for wrongful dismissal from his office as a con.stable of police at Charters Towers, claiming that the eatise of the dismissal was the report of an inquiry held into tlie circumstances surrounding tlie death of a man, at wliich iiKjuiry no charge was preferred against the plaintiff, nor was he ever heard in his own defence or given any opportunity to call witnesses. The Crown replied that he was dismissed by the Commissioner of Police upon sufficient proof of his misconduct and unfitness, approved by the Government; and gave as par ticulars : that the magistrate found at the inquiry that plaintiff had with other constables combined in insubordination and had given evidence on oath to support false charges against superior officers; and that this proof of his misconduct had been sub mitted to the Home Secretary and Commissioner of Police and approved as sufficient for dismissal. Chubb J. made an order to set down for liearing before the Full Court the questions of law: —(1) Whether the submission for tlie approval of the Home Secretary constituted a “ submission for approval of the Govern m ent” witiiin the meaning of sec. 6 of the Police Act 1863:
424 HIGH COURT
[1906.
| H. | 0. OF A.(2) Whether “ sufficient proof ” witliin the meaning of sec. 6 of | |
|
R y d ercharge were first made against plaintiff and he were heard
| V. | thereon. The Full Court answered both questions in the nega |
F o ley .
tive, holding that “ Government ” meant the Governor in Council, not the Home Secretary, and that the right to be heard was an e.ssential incident of natural justice: Foley v. Ryder (1).
From this decision the defendant appealed to the High Court.
Police Act 1863; but the only real question arising there under is whether the Government approved the Commissioner’s disini.ssal of the plaintiff. There was no necessity for the Com missioner to hold a judicial inquiry. The Crown can dismiss its servants at pleasure; this is an implied term iinderstood in the contract of employment of all public servants: Shenton v. Sm ith (2); Dwnn v. The Queen (3). The Police Act 1863 does not cut down this power. In Gould v. Stuart (4) it was held that the words of the Civil Service Act (N.S.W.), had expressly cut down this power. The police are expressly excluded from the Queens land Civil Service Act 1863, which has similar provisions. The power of dismis.sal in sec. 6 is only an additional power to dis miss constables, vested in the Commissioner. I t would be absurd to find the Commissioner and inspectors and .superintendents di.smissable by the Crown at will, while constables could only be dismi.ssed after a judicial inquiry and other strict formalities, The approval of the Home Secretary, the responsible l\Iinister, was the approval of the Government; and further, the Govern ment has ratified and adopted the act of the Home Secretary by supporting his decision and defending the present action.
Feez and SJtand (with them Lukin), for the appellant. immaterial. The real questions are whether the Crown could dismiss the constable at will, and, if not, whether the Com missioner of Police could dismiss him. I t would be futile to proceed with this case while these vital questions are left out standing. The questions submitted were framed upon sec. 6 of the
(1) (1906) St. R. Qd.,225.(3) (1896) 1 Q.B., 116, at p. 118.
(2) (1895) A.C., 229, at p. 234.
(4) (1896) A.C., 575.
4 C.L.R.] OF AUSTRALIA.
425
[. C. OF A.
The power, under sec. 6 of the Police Act 1863, to appoint includes also the power to remove or suspend : Acts Shortening
1906.
Act 1867 (31 Viet. No. 6), sec. 17, which .states the common law.
R y d e r
V.
The Crown’s power to dispense with a constable’s services at
F o ley .
pleasure has not .since been altered; Police Act Amendment Act 1891, sec.s. 11, 25, 26. I t is true that every man, before a decision in a judicial proceeding is given against him, is entitled to be heard ; Bonalcer v. Evans (1). A public servant should perhaps not be di.smi.ssed with the brand of ini.sconduct unless after in- (juiiy : Adams v. Young (2) ; but mere dismissal is very different. If plaintiff’s contention is right, Parliament could not dismiss policemen by cutting down the estimates and refusing to vote their .salaries. No action can lie for damages for the lo.ss of an office tenable only at will.
T’here is no right to be “ heard and represented ” at an inquiry held by a person who has full discretion to appoint and di.smi.ss : Marquis Abergavenny v. Bisitop o f Llandaff {A)\ 2'eatherv. Poor Law Commissioners (4); Osgood v. Nelson (5); R. on the prose cution of Freeman v. Arndel (6). There was sufficient evidence before the Commissioner to justify him in exercising his dis cretion to dismi.ss plaintiff; he need not hold a judicial inquiry, .so long as he was reasonably satisfied in his mind that misconduct was shown. The contract of service between the constable and the Crown is unilateral, not m utual; it is binding only upon him~Police Act 1863, sec. 11, 12, 15—and may be cancelled at any time by disini.ssal; Green v. The Queen (7), following Power V. The Queen (8), decisions on similar sections in the Victorian Police Act 1864 (No. 257, sec.s. 9, 10, 11). There was no contract between plaintiff and the Crown binding the Crown only to dis- mi.ss him under the procedure of .sec. 6. The discretion of dismissal given to the Commissioner was not to act as a judicial officer in conducting inquiries and hearing the proof of charges, hut to act on emergencies to keep the service pure. Sec. 6 is a disciplinary section; it has none of the express words nece.ssary to take away the Crown’s prerogative right of dismissal.
(1) 16 Q.l!., 162.
Cockhiiri), C.J.
(2) 19 N.S.W .L.R., 67.(6) 3C.L.R., 557.
(:i) 20 Q.B.l)., 460.
| (7) 17 V.L.R., 329 ; 13 A.L.T., •29, |
(4) 19 L.J.M.C., 70.
at p. 30.
(5) 10 H. & S., 119, lit p. 155, pe.r
(8) 4 A .J.R ., 144.
VOL. IV.
28
426 HIGH COURT
[1906.
| H. | C. OF A.The “ approval ” by tlie Government of the Commissioner’s | |
|
R yderbrought: Buron v. Denman (1). The jierson to approve on
V.
| F o ley . | behalf of the Government is the Minister a t the head of the department, the Colonial Secretary. The Court will not inquire into the inner workings of the Ministry and the administrative departments of Government, once the ministerial head of a depart ment has conveyed the wishes of the Government: R. v. Tootit (2); R. V. Davenport (3). As it would be idle to proceed where plaintiff has no cause of action, we ask for a stay of proceedings. |
[They referred to Grant v. Secretary o f State fo r In d ia (4).]
E. A. Douglas and R. J. Douglas, for the respondent. The questions are whether the prerogative has been exercised, and whether the constable has been properly dismissed under the Act.
[B a r to n J.—Is this a question of prerogative ? The question is one of contract, into which a right to dismiss at pleasure was always imported; Shenton v. Sm ith (5).]
That case depended on the position of a Crown Colony, not an independent Colony with representative government. The Crown cannot introduce this question of prerogative dismissal a t this stage of the case; they set up no defence apart from a dismissal under the Act, and no dismissal by the Executive Government is set up, but only dismissal by the Home Secretary. Plaintiff is entitled at least to his salary until he is dismissed b}'’ the Execu tive Government, which has not yet been done. A constable can only be removed for just cause duly proved. His office is in the nature of a freehold : Willcoch’s Office o f Constable, pp. 19-20 ; Burns’ Justice o f the Peace (18G9 ed., L, 1033). Under the second part of sec. 6 of the Police Act 1863, constables are given all the old common law and statutory rights, as well as duties and liabilities.
[G r if f it h C.J.—That only gave them the common law power of arrest, and immunity; not a freehold office.]
(1 ) 2 Kx., 167.
(4)
2C .P.1) . , 44,5.
(2) 4 Qd. .S.C.R., 96.(5) (1895) A.C., 229.
(3) 4 Qd. S.C.R., 99.
4 C.L.Ii.J OF AUSTKALIii.
427
A constable has at least the right to be heard in his defence before dismissal. Under the Queensland Police Act 18-55 (19
Viet. No. 24), dismi.s.sal was by justices after inquiiy, with an
R y d er
V.
appeal to the Governor in Council. The power of dismissal under
F o ley .
sec. (i of the Police Act 1863, was clearly conditional upon a judicial j)roceeding : the Clommissioner was placed in the position of the justices in holding the incjuiry there prescribed. The Civil Service Act 1803, which provides for dismissal in sec. 14 in similar terms, was passed the same day as the Police Act. Under the Civil Service Act the power of dismis.sal was closely safeguarded: cf. Gould w. Stuart (1); s.c. nub nom., Stuart v. Gould (2); yet the Police Act, passed the same day, is supposed to take away from the police their old .safeguards against arbitrary dismis.sal, and conserve these rights to civil servants. The constable serves under a statutory contract that he will not be dismissed for mis conduct without due inquiry.
The proceedings on the impiiry held by the magistrate were originated under sec. 25 of the Police Act 1891 (55 Viet. No. 32), and under the regulations governing such imjuiries the Commis sioner must receive the report from the officer conducting the impiiry, and, if .satislied that the constable charged with miscon duct was guilty, may fine or dismiss him.
[G r if f it h C.J.—That, like sec. 6, seems only to give an
additional power of dismissal to the Commissioner ; it does not
limit the Crown’s power.]
The jiroceedings were undoubtedly commenced under the Police Acts, and such proceedings must be a judicial inquiry if any charge of misconduct is to be considered. The words “ sufficient proof ” in sec. 6 postulate a proper (juasi-judicial inquiry, at which natural justice reejuired that plaintiff should not be con demned unheard: R. v. Cheshire Lines Committee (3); Strachan V. Strachan (4). Dismissal subjects the officer to a severe loss of property, including rights to superannuation and gratuities. No person should be subjected to a lo.ss of property without being heard. I ’liere is a tenure of office as between the constable and the Crown, and there was always a right to be heard before dis-
(1) (1896) A.C., 575.(:p L.R., 8 Q.B., 344.
(2) 16 N.S.W. L.R., 13-2.
(4) 5 Q.L.J., 45.
428 HIGH COURT
[1906.
| H. | C. OF A. missal; tliat right can only be taken away b}' express enactment, | |||
|
V.
| F o ley . | E.c parte Ramsay (1). |
[G r if f it h C.J.—Grant v. Secretary o f State for In d ia
(2 )
seems indi.stinguishable.]
Tliat case turned upon regulations; it had nothing to do with statutoiy provisions. The Police Act 1863, took away the power to dismiss at will in the case of constables. Parliament could refuse to vote the paj^ for constables, and abolish tlieir office ; but this does not weaken their safeguard against arbitrary dismis.sal. Even where tlie misconduct occurred in the sight of tlie per.son dismissing a constable, he should be called on to show cau.se against ch^irges preferred: R. v. Sm ith (3).
[G r if f it h C.J.—No action can lie against the Crown for
exercising its volition and effecting revocation of this office,
which is at most a conditional fee.]
Such volition must be exercised in the terms laid down by the A ct; misconduct niu.st be .satisfactorily proved to the Coniniis- sioner upon judicial inquiry, and the aj^pioval of the Crown niu-st precede dismissal: Rroirne v. 'The Queen (4); Forav v. 'The Queen (.5); Public Service Act (Viet.) 1883 (No. 773), secs. 81 82; Sm ith v. 'The Qaeen (6). The police do not .serve on a semi-military tenure; that depends on War Office regulations, and is never similar to those tenures regulated by Statute
Mitchell 'The Queen Ql)] D unn
v. 'Tlte Queen {8).
Adam s v.
Vouny {9} .sums up the case for plaintiff.
“ Government ” in sec. 6 means the Governor in Council. The Home Secretary is not the Executive Government, and it was not pleaded that he exerci.sed the Government’s jiowers.
[G r if f it h C.J.—The Governor is not consulted in every administrative act. The plea assumes the Home Secretary as the proper authority signifying the approval of the Government. How can you inquire into the inner workings of the Executive ?]
(1) 18 Q.B , 173, a tp . 190.(6) 3 App. Cas., 614.
(2) 2 C.P.D., 44.5.(7) (1896) 1 Q.B., 121 (»).
(3) 5 Q.H., 614.(8) (1896) 1 Q.B., 116. at p. 119.
(4) 12 V.L.R., 397 ; 8 A.L.T., 28.(9) 19 N.S.W .L.R., .32.5, at p. 327.
(5) 16 V.L.R.. 510 ; 12 A.L.T., 54.
4 C.L.H.] OF AUSTRAL FA.
429
The Court cannot in-e.sunie tliat the Horae Secretary has an
C. of a .
̂
1906
unlimited power to exerci.se the functions of the Executive.
Under the Police Act 18.50, the power of dismissal clearly rested
R yder
V.
with the Governor. Under the Act of 1852 the Governor in
F oley .
Council reviewed the orders of the justices. The 1863 Act therefore, in speaking of the “ Government,” intended to reipiire the approval of the full Executive authority, and not that of the departmental head of tlie police force. Under the 1891 Act, sec. 5, the power to retire officers for old age is reserved to the Governor in Council; the power of dismi.s.sal is much greater than that of retirement, and was meant to be equally safeguarded, [They referred to: Salkeld v. Johnson {\)', Police AU (N.S.W.) 1862, sec. 5; Police Act (Viet.) 1865, sec. 6; Hardatstle on later- jjretation of Statutes, 3rd ed., 130).]
Feez, in reply.
C'ur. adv. valt.
G R it 'F iT H C.J.
The (piestion for decision in this case arises in
a somewhat unusual form. The action is brought by the plain- tiffi against the Government, the appellant being the nominal defendant, for damages for wrongful dismissal from the service of the Government in which he was employed in the capacity of a police constable. The statement of claim alleges that in accord ance with the provisions of the Police Act 1863 the plaintiff was duly appointed a constable of police and so on, and that he was employed and served the Government as a constable of police until he was wrongfully dismissed as thereinafter .set out. Tlien it is alleged that various proceedings took place, the result of which was that the Government on 3rd April 1905 wrongfully dis missed the plaintiff from the service. The plaintiff further alleges that he was dismissed without an opportunity of defend ing himself upon a charge of misconduct. The defence admits the employment under the Police Act 1863 and the Police Amendment Act 1901, but denies the wrongful dismis.sal, and pleads further that the Commissioner of Police upon sufficient proof of mi.sconduct and unfitness of the plaintiff, which was submitted for the approval of the Government, dismissed the
(1) ‘2 E.y., 256, at p. 273.
430 HIGH COUllT
[190C,
H. C. OF A. plaintifF from liis service under and in pursuance of the pro
visions of tlte Act, and not otherwise. Particulars of tliat defence
R y d e r
were asked for and given, from which it appeared that, at an
V.
F olky .intpiiiy held before the dismissal complained of, it was alleged that
the plaintiff and other constables named had combined together
Griffith C.J,
for the purpose of supporting each other in acts of insubordina tion ; that an inquiiy was held into that m atter; that the evidence taken before the Commission ap^Jointed to hold the inquiiy was submitted to the Commissioner of Police ; that he submitted it to the Home Secretaiy, who approved of the evidence as being sufficient proof of misconduct and unfitness on the part of the plaintiff; and that thereupon the plaintiff was dismissed. Ghuhh J. then under the jii’ovisions of Order XXXIV., Rule 2, directed two (juestions to be stated for the opinion of the Court. That rule provides :—“ If it appear to the Court or a Judge either from the statement of claim or defence or reply or otherwise that there is in any action a question of law which it would be con venient to have decided before any evidence is given or anj^ question or issue of fact is tried or before any reference is made to a Referee or an Arbitrator, the Court or Judge may make an order accordingly and may direct such question of law to be raised for the opinion of the Court either by special case or in such other manner as the Court or Judge may deem expedient and all such further proceedings as the decision of such question of law maj' render unnecessary may thereupon be staj-ed.” The questions were—(1) “ Whether the submission for the approval of the Home Secretary (as alleged in the defence and particulars de livered in this action) constitutes a siibmi.ssion for the approval of the Government within the meaning of sec. 6 of Th,e Police Act 1863; (2) Whether sufficient proof within the meaning of sec. 6 of The Police Act 1863 (as alleged in the said defence and particulars) affords a defence to the action unle.ss a charge were first made against the plaintiff and the plaintiff heard thereon.” These questions were argued before the Full Court, which was of opinion that a submission for the approval of the Home Secretary was not a submission for the approval of the Government within the meaning of sec. 6. They were also of opinion that there could be no sufficient proof within the
4 C.L.K.] OF AUSTRALIA.
431
meaning of the section unle.ss the plaintiff first had a charge made
H. C. OF A.
1906.
again.st him, and wa.s lieard afterwards upon it.
That decision,
of course, leaves the case as one merely for the as.sessment of
R y d er
V.
damages. The defendant has now appealed to this Court, and F o ley .
before this Court a further point is taken that the statement of
Griffith C..7.
claim itself discloses no cause of action. I t appears from the report in the Queensland Law Journal that that point was argued, apparently briefly, before the Full Court, but the Judges do not advert to it in tlieir judgments. I apprehend that the proper way to deal with the present case is to treat it as if the facts alleged in the particulars of defence had been set out in the defence, and the defence had been demurred to. I t is not disputed that, if on the argument of a demurrer to a defence it appears tliat the statement of claim discloses no cause of action, the Court must give judgment for the defendant, notwithstanding that it thinks the plea bad, and that is tlie rule which I think should be applied in dealing with this case. Before us the ques tion whether the action will lie lias been very fully discus.sed, and we are bound to expre.ss our opinion upon it.
Now, the plaintiffs case is founded upon the provisions of sec. 6 of the Police Act 1803, which has been already mentioned. That Act comsohdated and amended the laws relating to the police force. It is a complete code of law for the police force. There are no other laws—all previous laws, all of which are enumerated, and all other regulations under previous Acts, being repealed. The Act authorizes the Governor in Council to appoint a Com missioner of Police, who is to have charge and superintendence of the police force, under the direction of the Colonial Secretary, who is now called the Home Secretary. The Governor in Council may appoint inspectors and sub-inspectors of police. Sec. 6 deals with the appointment of sergeants and constables, and provides ;— “ The Commissioner of Police shall appoint lit and proper persons to fill sucli vacancies as may hereafter occur among the sergeants and constables of the police force and upon sufficient proof of ini.sconduct or unfitness to be submitted for the approval of the Government shall have power to dismiss any sergeants and con stables and all sergeants and constables of whatever grade shall so long as they continue members of the said force have all sucli
432 HIGH COUllT
[1906.
| H. | C. OF A. power.s privileges and advantages and be liable to all sucdi duties | |
|
R y d e rhereafter may have either by the Coinmon Law or by virtue of
| F o ley .any Statute or Act of Council now or liereafter in force in the | V. |
Colony.” I will deal, first, very briedy, with the point taken that
Griffith C.J.
the submission of tlie proof of misconduct for the approval of the Government must be a submission to the Governor in Council. That was the view which commended itself to the learned Judges of the Supreme Court. This Statute clearly recognizes the exist ence of the Governor in Council, and makes provision tha t certain things shall be done by the Governor in Council. This particular act is to be a submission for the approval of “ the Government,” so that, if the contention for the plaintiff was right, it is obvious that the legislature used different words when they intended the same thing. The word “ Government ” is not a term of art, and I think it is difficult to hold it to be synonymous with Governor in Council, when one lias regard to the manner in which the Executive Government of the country is carried on under the system which we call Constitutional Government. The Crown, tha t is, the head of the Executive Government, in whose name everything is done, does not act in person ; it acts through responsible officers, to whom the powers of Government are delegated, and, as a matter of fact, ninety-nine hundredths of the work of the Executive Government is done by tliose responsible officers on their own individual responsibility without consulting the Governor in Council. In England it is well known to everyone who knows anything of the manner in which the English Government is conducted tha t a very small proportion of the matters is ever submitted, or required by law to be submitted, for the approval of the Sovereign with the advice of his Privy Council. Nearly all the ordinary matters of adminis tration are dealt with by the responsible Ministers. Some matters are required by law to be done by the Sovereign in Council, just as in Australia under the Australian Constitutions certain matters are required to be done by the Governor with the advice of his Executive Council. As to those matters tha t are not expre.ssly so required to be done it appears to me that the ordinary and proper inference to be drawn is that the .system that was intended to be
4 C.L.H.] OF AUSTRALIA.
433
introduced here on the estabJi.shrnent of respon.sible government
II. C. OF A.
1906.
wa.s the Engli.sh sy.stein, and that acts of government may be per
formed by the proper responsible Minister, whoever he may be.
R yder
V.
Tliat i.s how the mattei’ appears to me, apart from any argument
Fo l ey .
tliat has been raised about the word “ Government ” being
Griffith C.J.
synonymous with Governor in Council.
I do not see my way to
liold tliat they are synonymous.
The word “ Government,” as I
said, is not a term of art. I think the expression “submission for tlie approval of the Government ” merely means submission for the approval of the Crown acting through the proper responsible Minister, whoever he may be. In this Act it is expressly stated that the Home Secretary is to be the responsible Minister under whose direction the Commissioner of Police is to act. I think, therefore that there is nothing in that point.
With respect to the other point, that the Commissioner of Police shall have power to dismiss sergeants and constables upon sufficient proof of misconduct or unfitness, I agree with the learned Judges of the Supreme Court in thinking that, if that is a condition of the tenure of office of sergeants and constables, the person accused must have an opportunity of being heard before he can be deprived of his office. But the question remains whetlier that is a condition of the tenure of his office, in other words, whether this section is in reality a section relating to the tenure of office of sergeants and constables, or whether it is a provision standing by itself or enacted alto intitiUi ? In the ConstitiUion Act LS67, wliich is a re-enactment of the original Constitution, sec. 14 provides:—“ Tlie appointment of all public offices under the Government of the Colony hereafter to become vacant or to be created whether such offices be salaried or not shall bo vested in the Governor in Council with the exception of the appointment of the officers liable to retire from office on political grounds which appointments shall be ve.sted in the Governor alone. Provided always that this enactment shall not extend to minor appointments which by Act of the legislature or by order of the Governor in Council may be vested in heads of departments or other officers or persons within the Colony.”
The exercise of the sovereign power may therefore in any case be delegated by Statute or by Order-in-Council.
I regard sec. 0,
434 HIGH COURT
[1906.
| H. | C. OF A.not a.s a section dealing with tlie tenure of office of constables, | |
|
R y d e rConstitution, as vesting this power of appointment, with tlie
V.
F o ley .correlative right of dismissal, in the Commissioner of Police,
subject to the qualification that be shall not exercise the power
Griffith C.J.
of dismissal, which is only given to him in the case of misconduct or unfitness, without consultation nor without the approval of the Executive head of his department, and I regard the section as having nothing to do with the tenure of office of the constable as between himself and the Crown. I t is necessary, therefore, to consider what is the nature of the tenure of office of a constable, irrespective of the section. With respect to the tenure of office of constables and officers in the Public Service, the general rule is stated in the case of Shenton v. Smith. (1), to be that in the absence of a special contract, “ servants of the Crown hold their offices during the pleasure of the Crown; not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service. If any public .servant considers that he has been dismissed unjustly, his remedy is not by a law-suit, but by an appeal of an official or political kind ” —-that is by appeal to his superior officer, or to Parliament it necessary. The only other case that I think it neces.sary to refer to is that of D unn v. The Queen (2). That was a case in which a man had been employed in the public service a t a salary, and an officer of the Crown, who n^as Commi.ssioner and Consul- General of the Niger Protectorate in Africa, had engaged him for three years certain. The service terminated before the expiration of that time, and he presented a petition of right. Lord Esher M.R. referred to the previous case of De Dohse v. The Queen, which has not been reported, but which was decided in the House of Lords by Lords Halshury L.C., BLackhurn, Watson and Fitzgerald, and quoting from his own judgment in the Court of Appeal said (3) :—“ I t is .said that it was lawful to make such an engagement with him (the suppliant) for .seven yeai’s, because the engagement offered and proposed was not an
(1) (1895) A.C.. 229, at pp. 2.34, 235.
(2) (1896) 1 Q.B., 116.
(3) (1896) 1 Q.B., 116, at p. 118.
4 C’ L.R.] OF AUSTRALIA.
435
engagement of military service, it being admitted in argument
H. C. OF A.
1906.
tliat, if the engagement w'-as for military service as a soldier,
whether as officer or private, it is contrary to public policy that
R y d er
V.
any such contract should be made. Now, whether that doctrine
F o ley .
with regard to the Crown is confined to military service or not
Griffith C.J.
need not be decided to-day, but I do not at all accept the sug gestion that it is so confined. All service under the Crown itself is public service, and to my mind it is most likely that the doctrine wdiich is said to be confined to militaiy service applies to all public service under the Crown, because all public service under the Crown is for the public benefit.” Then he goes on to ,sjvy;—“ That case came before the House of Lords; and it seems to me that Lord Watson in his judgment almost in terms decides that what I tliought would probably turn out to be the right view on the subject is correct. He says :—‘ In the first place it appears to me that no concluded contract is disclosed in the statements contained in this petition of righ t; and in the second place I am of opinion that such a concluded contract, if it had been made, nurst have been held to have imported into it the condition that the Crown has the power to dismi,s.s. Further, I am of opinion that, if any authority representing the Crown were to exclude such a power by expre.ss stipulation, that would be a violation of the public policy of the countiy and could not derogate from the power of the Crown.’ Anything more distinct and gejieral than that there could not be. I t .seems to me tliat the rule, as laid down by the Hou.se of Lords, is in consonance with what I suggested to be the tnie rule in the Court of Appeal. The case of Shenton v. Sm ith (1) appears to me to be really erpially conclusive of the matter.” Lord Herschell was of the same opinion. Lord Justice K ay, adverting to the contention that tliis was a doctrine which applied only to the inilitaiu' service, .said (2);—“ I do not concur in that view. I t seems to me that the continued employment of a civil servant might in many ca.ses be as detrimental to the interests of the State as the continued employment of a military officer.”
It appears to me to result from these authorities that it is an implied term in the engagement of eveiy person in the Public
(1) (1895) A.C., 229.
(2) (1899) 1 Q.B., 116, a tp . 120.
436 HJGH COURT
[1906.
H. C. OF A. Service, that lie liold.s office durino- pleasure, uiiles,s the contrary
appears by Statute. It is not disputed in the present case that
tlie Governinent could dismiss the plaintiffi at pleasure.
Indeed,
R y d er
V.
F o dey .that he holds office at pleasure is shown by the admitted fact,
that if Parliament did not vote his salary he could be summarily deprived of office. As I have just said, it i.s not disputed that the Governor in Council, i.e., the Executive Government, could dis miss him at a moment’s notice, but it i.s contended tha t that can not be done by the Commissioner of Police. I agree that the Commissioner of Police of his own motion cannot do it, but the plaintiff in this case complains that theGovernment have dismi.s.sed him, and, as it is conceded that the Government can dismiss liim at will, how can it be said that the statement of claim di.scloses any cause of action ? I do not know any instance in which a person who holds office during pleasure could bring an action for wrongful dismissal. The foundation of the wrongful dismissal is the wrongful refusal to retain him in the .service, but the service is terminable at pleasure. How can the exercise of that pleasure be wrongful ? I t may be sugge.sted perhaps tha t there would be .something in the nature of a special action against the Commis sioner of Police for doing something detrimental to the plaintiff’s character, but when that (piestion arises it will be time enough to determine it. I think it will be found that the attem pt has been made once, and unsucce.ssfully.
Griffith C.J.
For these reasons I am of opinion that the statement of claim discloses no cause of action. What then ought to be done ? T'he formal position is that the (piestions submitted to the con.sidera- tion of the Supreme Court were irrelevant, because, whichever way they are decided, the plaintiff is ecpially unable to succeed in the action. As I .said before, I think the matter should be treated as if it were a demurrer to a bad plea. The statement of claim itself di.sclosing no cause of action, following the rule of practice laid down in Order XXXVIII. as to what is to happen upon the decision of a (juestion of law, I think tha t the proper order to make will be that all proceedings in tlie action be stayed.
B a r to n J. The judgment appealed from is in sub,stance a decision with regard to (luestions of law stated by CIluII) J. on
4 C.L.R.]
OF AUSTRALIA.
the pleadings.
Tliose questions arise upon the interpretation of H- L. of a
the Police Act 1868, and of the .statement of claim, particularly
in paragraph 8, which says :—“ Under and in accordance with the
rydkk
V.
provisions of The Police Act 1868 the plaintiff on or about the F olkv.
third day of December 1890 was duly appointed a constable of
Barton J.
police and entered the service of the said Government and was employed by and served the said Government thereafter as a constable of police upon the terms and .subject to the conditions inter alia that the said Government would pay to the plaintiff a certain yearly salary and that the plaintiff would jiay to the .said Government the sum of two pounds per centum per annum upon tlie .said salary to be invested by the .said Government so as to form portion of a fund called the ‘ Police Superannuation Fund ’ and that the said Government would retain the plaintiff in their service and employment until such .service and employment .should be determined in the manner prescribed by law as .set forth in The Police Act 1868 and Rules made thereunder.” The contract so .set forth, if we read it according to the plaintiff’s interpretation, is such a contract as no civil servant of the Crown could make, unle.ss he were expressly authorized by Statute. For that proposition I think the ca.se of Grant v. Secretary o f State for In d ia (1) is in point. The claim is accuratel}' de.scribed in the head-note, which .says;—“In an action against the Secretary of State for India the claim stated that plaintiff accepted a commission in the military service of the East India Company upon the basis and faith of the custom.s, laws, regulations, and provisions of the company’s service, which were (amongst others) that an officer entering the service should continue therein so long as he was physically and mentally efficient—and that, before the removal of any officer from any appointment, he .should be made acquainted in writing with the accu.sation preferred against him and should be siim- moned to make his defence, having a reasonable time allowed him for that purpose, and that the plaintiff was compelled to subscribe to a military fund to provide for widows and orphans of officers, and that if he had continued in the service his widow would have been entitled to an allowance out of a fund called ‘ Lord Clive’s Fund.’ That after the Indian forces had been
(1) -2 C.IM)., 44.i.
438 HIGH COUJIT
[1906.
| H. | C. OF A. transferred to tlie Crown he, wliile in the performance of military | |
|
R y d e rperform any duties which were or might be required of him,
| F o ley .was, without any charge of misconduct, called upon to retire | V. |
from the service, in pursuance of a general order made by the
Barton J.
Governor General of India with the sanction of the defendant, by which order unemployed officers ineligible for employment by reason of clear misconduct, or proved physical or mental in efficiency &c., might be required to retire upon a pension ; and, upon his declining voluntarily to retire, he was compulsorily placed upon the pension-list; and the fact of his removal to the pension-list was notified in the usual way by a general order of the Comniander-in-Chief published in the Gazette:— Held, on demurrer, that the claim disclosed no cause of action, for the Crown, acting by the defendant, had a general power of dismissing a military officer at its will and pleasure, that the defendant could make no contract with a military officer in derogation of such powers; and the customs, regulations, &c., relied on by the plaintiffi must be taken to be always sulqect to it, and incapable of superseding it, and further, tha t the publi cation in the Gazette was an official act under the authority of the Crown, for which the defendant could not be responsible in an action for libel.” Grove J., in giving judgment, after stating the material part of the statement of claim, said ( 1 ) “ I am of opinion that the East India Company, and afterwards the Crown, had the absolute power to dismiss or compel retirement of an officer in the Indian army; that the power in the nature of Crown Prerogative, conferred upon the East India Company, being for the public benefit, the safety of the realm, and possibly the exi.stence of the Indian empire, could not be waived by contracts with officers; that the relation of an officer to the East India Company and to the Crown is not in the nature of an ordinary contract; and, further, that the allegations and facts set out in paragraph 2 of the statement of claim do not, as stated, con stitute a binding contract by which the East India Company abandoned or excluded their power of removal or dismissal at will, as I regard such statement as consistent with the customs,
(1) 2 C.P.U., 445, at p. 453.
4 C.L.K.] OF AUSTRALIA.
439
lawH, regulations, and provisions being general regulations for
H. C. OF A.
1906.
the ordinary management of the forces, subject to be changed, if
nece.ssity or the better discipline or efficiency of the forces should
R y d e r
V.
so require.” If the principle is the same with regard to military
F oley'.
and with regard to civil servants, as I shall show presently that
JUrton J.
it is, tliat case applies, and unless there is something in this Statute which authorizes a difference in the ordinary terms of employment between civil servants and the Crown, the case is to be determined upon the principles ordinarily regulating such matters, and it is only upon clear authority on the face of the Statute that the plaintiff can be exempted from the liability to dismis.sal at the pleasure of the Crown. Does tliis Statute autliorize such a contract ? If not, there is no cause of action. Now, the Police Act 1863 contains three sections wliich throw a
great deal of light upon this question—-secs. 11,12 and 15.
Sec. 11
sets out the form of oath of service whicli has to be taken alike by the Commissioner, the inspectors, sub-inspectors, sergeants and constables. None of them can hold office until they take this oath and it is an oath to serve, “ without favor or affection malice or ill-will for the period of . . . and until 1 am legally discharged ” &c. The next section says :—“ Every person taking and subscribing such oath shall be deemed to have thereby entered into a written agreement with and shall be thereby bound to serve Her Majesty as a member of the said force and in the capacity in which he shall have taken such oath at the current rate of pay for such member and from the day on which such oath shall have been taken and subscribed until legally dis charged. Provided that no such agreement shall be set aside cancelled or annulled for want of reciprocity. Provided also that such agreement may be cancelled at any time by the lawful discharge dismissal or other removal from office of any such person or by tlie resignation of any such person accepted by the Commissioner of Police or other person acting in his stead.”
Both by his oath and his agreement every member of the force from the highest to the lowest is bound to serve on the terms there laid down, and he cannot by himself terminate his service. I t may be terminated at any moment by the other party—that is
the Crown, by its officers.
There is the further section—sec. 15,
440 HIGH COUllT
[1906.
H. C. OF A. ^vlucli provides :— No constable or other member of the police
*®*̂*̂’ force shall be at liberty to resign his office or withdraw from the
H ydkk
duties thereof unless expressly authorized in writing so to do by
V.
F ot.ev .the Commissioner of Police or the officer under whom he may be
placed or unless he shall give to such officer three months’ notice
Barton J.
of his intention so to resign or withdraw and any constable or other member who shall so resign or withdraw without such previous permission or notice shall upon conviction in a summary way before any two Justices of the Peace for every such offence forfeit a sum not exceeding twenty pounds.” One would think that these sections would scarcelj" be in need of any judicial interjjreta- tion—they are so clear. Thej' are clear that the contract is en tirely a unilateral one, that, as long as a man remains in the service as a member of the police force, he is bound by it, and it can only be determined either by cancellation in the terms set out in the section by the Commissioner, acting for the Crown, or by the Commis.sioner being willing to accept his resignation. But there has been judicial interpretation of it in Victoria in the case of Power V. The Queen (1) decided in 1878, upon the Victorian Act of 18().5. I t may be as well to premise that the sections there mentioned compare with the sections in the Police Act in this waj’:—>Sec. 9 in the Victorian Act is the equivalent of sec. 11 in the Queensland A c t; .sec. 10 in the Victorian Act is the equivalent of .sec. 12 in the Queensland Act; and sec. 11 in the Victorian Act is the ecjuivalent of sec. 15 in the Queensland Act. Now, in g iv in g judgment in that case, Barry J., speaking of the policeman suing, said (2);—“ His rights depend on the nature of the contract under which he served. IMembers of the police force enter into an engagement to serve by taking and subscribing an oath, which is set out in the Police Regula tion Statute 1865, No. 257, .sec. 9.” His Honor read sec. 10 of that Act, which is .section 12 of the Queensland Act, and then went on to ,say :—“ We are of opinion that the evidence adduced at the trial of the petitioner having taken and subscribed the oath required was sufficient. The verdict found for him on the first and tifth issues will therefore be undisturbed.” He then makes further reference to issues which it is not necessary to
(1) 4 A J.R ., 144.
(2) 4 A..J.R., 144, at p. 14.j.
4 C.L.H.]
OF AUSTRALIA.
repeat, and proceeds:—“ We are of opinion that the agreement
f C. OF A.
1906.
created b}' the Statute includes a concurrence between the
parties. By it the petitioner promised to serve as long as it
R y d e r
r.
would please Her Majesty to employ. On this condition his
F o ley ,
promi.se was accepted. But tliis does not include a mutuality or
Barton J.
reciprocity of contract and liability. There is in fact but one contracting party, that is the petitioner. Nothing can be clearer than tliat the engagement entered into is unilateral only, not mutual. I t binds him to serve, but does not oblige Her Majesty to retain him in her service beyond the period which circum stances may render neces.sary. The circumstances which create the necessity may be various, and while the members are not allowed to exercise the privilege of withdrawing from the force when they please without cau.se assigned or becau.se at some critical emergency some distasteful duty may be allotted to them, tiiey cannot insist on being retained should the social condition of the country render it expedient to reduce certain of the effective members of the force, or should Parliament decline to vote salaries for more than a number deemed sufficient for the maintenance of the public peace. We are of opinion, therefore, that no such contract exists as to entitle the petitioner to main tain this suit on the first or second counts.” I entirely approve of that conclusion, and I should like to mention that the case was subsecpiently approved by the same Full Court in the case of Green v. The Queen (1). Those thi'ee sections in the Queens land Act—11,12 and 15—being apparently abundantly clear, the (piestion is how do they affect the construction of sec. 0, which apparently has not its ecpiivalent in the Victorian Act. I t may be said that sec. 6 taken by itself is ambiguous. That is the best that can be said for the plaintiff’s view of that section. Are we to construe the doubtful section so as to obscure the sections that are otherwise clear ? That would be an inversion of the principles of construction. But if we use what is clear to remove the doubt as to the ambiguous, we take the correct course. In The State o f Tasmania v. The Commonwealth o f Australia and State of Victoria (2) in giving judgment—I mention that case, not merely to cjuote my judgment, but because it puts the matter
(1) 17 V.L.R., 329 ; 13 A. L T ., 29.
(2) 1 C.L R., 329, at p. 357.
VOL. IV.
29
HIGH COURT
[1906.
| H. | C. OF A.in a form, wliich I think applicable to the present case—I | |
|
R y d erTyndal C.J. delivering the unanimous opinion of the Judges in
| V. | the House of Lords said “ No rule of construction can require |
F o ley .
that when the words of a Statute convey a clear meaning . . . _
Barton J.
it shall be necessary to introduce another part of the Statute, which speaks with less perspicuity, and of which the words may be capable of such construction as by possibility to diminish the efficacy of the other provisions of the Act.” In the case before the High Court to which I am now referring the question was as to the construction of secs. 89, 92 and 93 of the Constitution. 1 said (2);—“ Applying those expressions to these sections I should say they amount to th is : Seeing that sec. 89 has an absolutely clear meaning, the rules of construction do not require us to introduce another part of the Statute which speaks with less perspicuity, and to apply that part to the construction of sec. 89. That would have the effect of diminishing the clearness of sec. 89, and appears to me to be an absolute inversion of the rule which is applicable in such a case. Hardeastle, in his work on the Interpretation o f Statutes (3rd ed.), p. I l l , says:—‘ I t is only when, as the Court said in Ptdm ers Case (3), “ any part of an Act of Parliament is penned obscurely, and other passages can elucidate that obscurity, recourse ought to be had to such context for that purpose.’ ” (In other words, while recourse cannot be had to sec. 6 to make secs. 11, 12 and 1.5 less clear, the clearness of those last sections can be called in to remove any apparent ambiguity in sec. 6.) Then I go on to say, “ This cannot apply to the raising, by means of such obscurities, of constructions from which the plain language itself is free. I t is not by raising obscurities in sec. 93 that we can diminish the plain meaning of the words in sec. 89. On the other hand, if sec. 93 can be read as in any way obscure, then it is clear tha t under the opinion expressed in Palm ers Case (3) recourse can be had to sec. 89 to clear up that obscurity.” That is to say, if sec. 6 itself is ambig uous, the clear sections which I have referred to can be read for the purpose of making sec. G clear. Now, repugnance is to be
(1) 2 Dow. & CL, 480, at p. 500.
(2) 1 C.L.R., 329, at p. 357.
(3) 1 Leach., 355.
4 C.L.U.J OF AUSTRALIA.
443
avoided, and it .seein.s to me tiiat upon the plain construction, a.s
4̂- C. of A.
I liave said before, of sec. 11 and the other .sections in that line there ^ 9 ^
is a statutory provision which affirms the Crown’s right to dismiss
R y d er
V.
the plaintiff; and that statutory provision would be rendered pracF o ley .
tically nugatory as regards sergeants and constables, but not as
Barton J.
regards the Commissioner, the inspectors, and the sub-inspectors, if we adopted the construction contended for by the appellant. Any such construction that we give to sec. 6 would necessitate some thing in the nature of a judicial proceeding, before the contract could be determined. In taking the course I indicated in the case I have last cited we bring the three secs. 0, 12, and L5 into harmony by holding that sec. 0 does not make a statutory con tract shorn of the ordinary term that the Crown can di.smi.ss at pleasure. One may pause here to refer to the case of Shenton v. Smith (1). In the judgment it is said :—“ I t lias been argued at the bar that a Colonial Government stands on a different footing from the Crown in England, with respect to obligations towards persons with whom it has dealing.s. Their Lordships do not go into the ca.ses cited for proof of that proposition, for they are ([uite different from this case, and neitlxer principle nor authority has been adduced to show that in the employment, and dismis.sal of public servants a Colonial Government stands on any different footing than the Home Government. I t appears to their Lord ships that the proper grounds of decision in this case have been expressed by Stone J. in the Full Court. They consider that, unless in special cases where it is otherwise provided, .servants of the Crown hold their offices during the pleasure of the Crown ; not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well under stood throughout the public service. If any public servant con siders that he has been dismissed unjustly, his remedy is not by a law-suit, but by an appeal of an official or political kind.” That pas.sage seems to be quite sweeping in its application to all classes of public servants whether civil or otherwise. But the matter is put entirely beyond doubt in the case of B u n n v. The Queen (2), which shows that there can be no distinction in this respect between civil and military service, and that the right to
(1) (1895) A.C., 229, at p. ‘234.
(2) (1S90) 1 Q.B., 116.
444 HIGH COUllT
[1906.
| H. | C. OF A dismiss at pleasure lias not been at all contined to the question | ||
|
R y d er
V.
F o ley .to me that it is the public interest ■which has led to the term which
I have mentioned being imported into contracts for employment
Barton J.
in the service of the Crown. The cases cited shew th a t such employment being for the good of the public, it is essential for the public good that it should be capable of being determined at the pleasure of the Crown, except in certain exceptional cases where it has been deemed to be more for the public good tha t some re striction should be imjiosed on the power of the Crown to dismiss its servants.” And K ay L.J. (2) says :—“ I think tliat a general
principle has been established by the cases on the subject.
Some
of those were no doubt cases of military service. I t was argued that in such cases otlier considerations applied, and tliat it was essential for tlie advantage of the State that the Crown should have the right of dismissal at pleasure, but that the same con siderations did not apply to the civil service. I do not concur in that view. I t seems to me that the continued employment of a civil servant might in many ca.ses be as detrimental to the interests of the State as the continued employment of a military officer. I t is impo.ssible not to see that in remote places on the frontiers of our territory the question of peace or war might depend on the action of a civil servant on the .spot; and it seems to me that there is as much ground for the possession by the Crown of an unrestricted ricjlit of dismissal in the case of civil service as there is in the case of military .service.” What, then, is the reading of sec. 6 which would bring it into harmony with secs. 12 and 1.5 ? I drop sec. 11 because tha t i.s simply a section embodying the oath. I t is a reasonable construction of .sec. (> to .say that it is not intended to give sergeants and constables any peculiar privilege by way of tenure. First there i.s notliing at all to show an intention to cut away the Crown’s power of dis missal. There is nothing to show that the authority given to the Commi.ssioner is not merely an additional one, and unle.ss it i.s shown that this was not intended, the section will be .so read. That is to .say, the right given to the Commissioner is
(1) (1896) 1 Q.B., 116, at p. 119.
(2) (1896) 1 Q.B., 116, at p. 120.
4 C.L.U.] OF AUSTRALIA.
445
H. C. OF A.
not to take away the power of
the Crown to dismiss, and that
1906.
power would be left standing in
addition to the power given
to tlie Commissioner, unless there is plain indication other wise. I think it is the most probable view of the intention of
R y d er
V.
F o ley .
Parliament to ,«ay th is : In its earlier part sec. 6, as to the
Barton J.
appointment of fit and proper persons as sergeants and con stables, is obviously directory to the Commissioner. Is it not a fair interpretation, and one that avoids any possibility of conflict with secs. 12 and 15, to hold that the authority to dismiss is also coupled with a direction to submit to the Govern ment the reasons for his action in the shape of tlie proof he has found sufficient, so that the Government may approve or other wise of what he has done ? That is a check on hasty action by the dejjositary of a delegated power, and keeps tlie Government in a position to correct any such hasty action, if, on considering the evidence submitted, it thinks the person should be reinstated or have any amends made to him. Thus a proper sense of re sponsibility in the Commissioner is also .secured. But all this is a purely administrative plan, and does not involve any judicial proceeding at all, nor do I think any judicial proceeding was intended. It would be strange if the sergeants and constables were placed in such a favoured position as that, while the Com missioner, the inspectors and sub-inspectors are left outside the pale. They are clearly subject to be dismissed at pleasure. Fir.st, The Civil Service Act 1863, assented to on the same day as the Police Act, exempts from its provisions by sec. 1 “ officers, con stables and other members of the police force.” That includes the Commi.ssioner, the in.spectors and sub-in.spectors. Secondly, they are not included in sec. 6, which is limited to sergeants and constables. But in the third place they are within secs. 11 and 12, and therefore within the principle illustrated by Power v. 'The Qmen (1). And, apart from secs. 11 and 12, it cannot be pretended that there is any express provision to exempt them from the principle of Shenton v. Sm ith (2), so that the Commis sioner and in.spectors and sub-inspectors may be dismissed at w ill; but, it is argued, that the sergeants and constables are not to be dismissed without having the protection which their .superior
(1) 4 .4.J.R., 144.
(2) (1895) A.C., 229.
446 HIGH COURT
[1906.
| H. | C. OF A.officer.s lack of a cliaroe, inquiiy, defence and finding in a judicial | |
|
R y d erthat this Act intends the whole of the members of the police
V.
F o ley .force to be placed on the same footing in this respect, that for Barton J.obvious reasons of policy applicable to such a force, they are all
from the highest to the lowest liable to dismissal a t pleasure in that public interest for the protection of which the Crown’s ]\Iinisters are responsible. I see nothing to bind the Commis sioner to stay his hand until the Government has approved. The section i.s, in my judgment, not framed with an object for the fulfilment of whicli that delay would be essential. The proceeding not being a judicial one, the next inquiry to my mind is, what is a sufficient submi.ssion for the approval of the Government? The Commissioner has himself no jiower to bring documents before the Executive. Even if the words “ the Government ” are to be read to mean “ the Governor in Council”—which is at least doubtful—the Commissioner has done all that an officer could do by way of submitting the evi dence, when he has handed it or forwarded it to the Minister of the Crown responsible for the Police Department. In the exercise of his judgment it is competent for that Minister to obtain an Order in Council approving of the proof as sufficient (for it is the proof which is to be submitted for that purpose); but if the ]\Iinister does not choose to take the matter further, and merely contents himself with giving his own official approval of the proof, still the Commi.ssioner has in that case done all tha t the section directs him to do, and I do not see tha t such a state of things can po.ssibly give the dismissed .servant a cause of action. By reason of the frame and character of the .section, as being part of an administrative j^lan or scheme, it is as a check upon the Commissioner, and not as a privilege to the constable that the provision has been devised. Arguments were addressed to us founded on other Statutes with the view of bringing this case within the decision in the ca.se of Gould v. Stuart (1). That is a case which the Judicial Committee of the Privy Council held to be one of those referred to in Shenton v. Smith. (2) as exceptions to the general rule. The principal of those Statutes cited to us
(1) (1896) A.C., 575.
(2) (1895) A.C., 229.
4 C.L.li.]
OF AU8TKALIA.
on that case was the Police Act of 1858, 16 Viet. No. 33, of which
H. C. OF A.
1906.
it is sufficient to say tiiat, while some of the provi.sions might
give foundation to an argument in favour of the exception, it was
R t d e r
V.
repealed by sec. 1. of the present Police Act, which doe.s not subF o lev .
stitute similar provisions for those referred to. Further argu
Barton J.
ments were based on the provisions of the Civil Service Act 1863 passed concurrently with the Act now in question, and parts of that Act certainly strongly re.semble the provisions of Part III. of the Civil Service Act 1884 (N.S.W.), on which the Judicial Com mittee rested their decision in Gould v. Stuart (1). But then these portions of the Queensland Civil Service Act 1863 are not at all reflected in the Police Act, and I cannot find, either in that or in the Amending Act of 1891, a body of provisions, or any pro visions, dealing with the question of suspension and dismissal upo)i judicial principles. Sec. 25 of the Amending Act is avowedly for conferring a power to make certain Rules under the provisions of sec. 7 of the Principal Act, and in turning to that section I find tliat such rules are to be, and must be regarded as, purely discijilinary, and I cannot see how it can be argued that the enactment of sec. 25 of the Amending Statute gives to sec. 6 of the Principal Act a force and meaning that its words were clearly not intended to bear originally.
On the whole case, then, I think the plaintiff ha.s no cause of action, and that, indeed, his statement of claim does not disclose one. I agree as to the manner in which the case should be treated upon this conclusion.
O’Connor J. As this case came before the Supreme Court of Queensland it was to obtain a decision as to the .sufficiency of the defence. As the matter has been argued before us the principal contention has been that, as the plaintiff has shown on the record that he has no cause of action, it is not necessary for the defendant to make any defence, and, although that point was not expressly raised in the form of the questions, it was apparent on the record as the case comes before us. That being so, it ivould be a futile proceeding to answer the questions formally put, even if our answer was to be in favour of the plaintiff, if
(1) (1896) A.C., 575.
448 HIGH COURT
[1906.
| H. | C. OF A.when the case went to trial it would be necessary to hold that | |
|
R y d e rto consider the main question which was submitted in aroumeiit
V.
on behalf of the defendant, namely, whether or not the plaintiti’s pleading discloses any cause of action. Before I deal with that
F o ley .
O’Connor J.
I shall make one or two observations as to tlie decision of the Supreme Court on the questions expressly stated for our con sideration. I entirely agree in the view of their Honors of the Supreme Court, that if the plaintiff had a right under sec. 6, to demand that there should be a sufficient proof of his misconduct before he was dismissed, then he had a riglit to be lieard before the Commissioner who was to determine that (question. If tlie Act has given him a right to demand that such proof shall be given, he is entitled on his part to be present, and put the matter to proof in an} ̂manner that lie thinks fit. Whetlier the section does give that right is the matter for our consideration. The Supreme Court also decided that the word “ Government ” in the section must be read as meaning “ Governor with the advice of the Exeoutive Council.” I cannot assent to tliat reading. Tlie expression “ Governor with tlie advice of the Executive Council,” is used all through tlie Act in other sections. I t is a term with a well-known statutory and constitutional meaning. When the word “ Governor ” has been used dealing with the same subject matter in different sections of the same Act, prim d facie, the word was intended in all the sections to have the same meaning— Governor with the advice of the Executive Council. In fact the word “ Government ” has no technical meaning in the sense in which it is used in sec. G. I t is a popular expression, and it must be taken to be used, prim d facie, in the popular sense ; but when we find it contra-distinguished in sec. 6 from the other expression in the Act—“ Governor with the advice of the Executive Council,” it appears to me that it must mean something less than “ Governor and the Executive Council,” and the only meaning that can be put on it in the connection in which it stands is tlie Government, that is to say, the administration as represented by some Minister, who acts for the Government generally in the particular matter in question. I t means, therefore, in this section, in my opinion,
| the Minister who has charge of the Police Department. I pass |
4 C.L.U.J OF AUSTRALIA.
449
away from that, because, whatever our answers may be upon
H. C. or A.
1906.
those two (juestions, if we decide tliat the plaintiff has no cause
of action, then it becomes unnecessary to consider tlie terms or
R y d er
V.
the sufficiency of the defence.
F o ley .
The plaintiffs claim rests entirely upon a contract, and he must make out that tlie Crown has been guilty of a breach of .some contract in dismissing him. We .start with the assumption, which is the foundation of the plaintiffs case, that the plaintiff has been dismissed by the Covernment. The question as to whether that dismi.ssal is wrongful or not depends upon whether the terms of the contract, under which the plaintiff was emplojmd, entitled the Government to dismiss him as they did. I t is unncessary for me to repeat the authorities that have already been cited, because the principles of the law to be applied to the case of an employe in the Public Service have been definitely settled for many yeai-s, and the statement of those principles will be found in the cases of Slientun v. Smith ( 1 ) Da v n v. Tim Queen (2); and Gould y .S fiuu i (d). The result of those authorities is this:— Tliat ill every case it must be taken to be a condition of service with the Crown that the Crown has the right to put an end to the service at any time, and in any manner that it thinks fit. There is however establislied by Gould v. Stuart (S) this qualiti- catioii that the Crown may by Statute, or in any other way, alter the terms of the contract, so tliat it becomes, not a contract giving the Crown the right to dismiss at pleasure, but a contract to dismiss only after certain formalities have been observed. In the case of Gould v. Stuart (3) it was held that the ordinary form of contract between the Crown and the public servant had been altered to the extent of giving a right to the civil .servant to demand that his dismissal should take place only after the observance of certain formalities, and Mr. Douglas very jiroperly admitted that this case really turned upon the question—Was it apparent .from this S tatu te—the Police Act 1803—that the ordinary incident which I have referred to as a part of the contract betvv'een the public servant and the Gov'ernment, had heen altered by the terms of the Statute ? Now, the terms of
O'Connor J.
(I) (189.1) A.C., -229.
(2) (1896) 1 Q.H., 116.
(3) (1896) A.C., 575.
450 HIGH COURT
[1906.
C. OF A.tlie contract are contained in .secs. 11 and 12 of tlie
Police Act
1906.18()3. I need not refer in detail to them ; they liave been read
R vdkr
already b}’ my learned brother, Mr. Justice Barton, and I would
V.
F o lev .only observe that the form of contract with the police i.s stated
in the Act itself. When the Act was passed, constituting the
O’Connor J.
police force of Queensland as one Police Force under one head, taking awa}^ aKsolutely all local control by benches of magis trates, then for the first time, the oath of service was embodied in the Act, and it is precisely the same as that under which a soldier undertakes to serve the King. One can well understand that, the police foi’ce being in it.self a quasi m ilitary organiza tion, the form of contract should be the same in both cases, There is also a significant clause in sec. 12, Avhich may throw a good deal of light upon the nature of the contract,—the proviso that no such agreement shall be set aside, cancelled or annulled for want of reciprocity. That section would be meaningless if there Avere reciprocity in the contract—if there was a right on the part of the constable to demand that his dismissal should not take place except under the conditions laid down in sec. (i. The clause would apj^ear to strongly support the contention that it was intended that the contract should be the same as is ordinarily entered into by the public servants of the Crown with the Government, entirely unilateral—-a contract enabling the Govern ment to put an end to it at any time they might think fit.
Kow, before dealing with sec. 6 upon which Mr. Douglas has relied, it will be well to revert to the necessity for some such provision in an Act of this kind. Under sec. 14 of the Constitu tion Act, which is the .same here as in all the other States of Australia, all appointments to the public service must be made either directly or by duly constituted agency by the Governor with the advice of the Executive Council; but the provi.so enacts that the section shall not extend to appointments, which by the Act of the legislature, or by the Governor in Council, may be vested in heads of departments or other officers or persons within the Colon}’. Therefore every appointment, no matter how small it may be, must be made, either by the Governor with the advice of the Executive Council, or by some officer, who is by Order in Council deputed or who is by Statute authorized, to make such an
4 C.L.K.J
OF AUSTRALIA.
H. C. OF A.
appointment.
And, in constituting a police force it was obviously
necessary to give powers of appointment eitlier to the Commis1906.
sioner, or some Chief Officer of police either by Order in Council,
R y d er
l\
or by Htatute. I t was necessary, therefore, that sec. 6 should be
F olev .
passed for that purpose. I t was also necessary that the power
O’Connor J.
tf) appoint should include the power of di.smissal. Sec. 6 provides expressly what would otherwise be implied that constables “ shall so long as they continue members of the said force have all such powers privileges and advantages and be liable to all such duties and responsibility as any constable duly appointed now has or hereafter may have either by the Common Law or by virtue of all}’ Statute or Act of Council now or hereafter in force in the Colony.” I t therefore became necessary to provide some expedi tious way by which, when the necessity arose, the constable’s service should be terminated, so that those powers, privileges, and duties, which the common law imposes, and which a great many Statutes impose upon a constable, should not remain vested in an individual who was unfit to perform police duty. I t was also fitting that the officer who exercised this power of dismissal should be directed to have before him sufficient pi’oof of misconduct before he dismissed a constable, and that a record should be made of the proof so that the Government might satisfy themselves as to what had been done. The section, from the point of view whicli I have been adverting to, is therefore necessary and usual as a provision for the administration of the Police Act, having regard to the terms of the Constitution. Thus if we give the words of the section their natural and ordinary meaning, it was merely intended to place in the hands of the Commissioner the power to appoint constables, the power to dismiss them for mis conduct or unfitness, with the additional obligation of keeping a record of the reasons for the Commissioner’s action.
I t is urged, however, that the section has another meaning— that it not merely imposes a duty on the Commissioner to the Government, but it imposes a duty upon the Commissioner to the constable to require sufficient proof of misconduct before the constable is dismissed. In other word.s, that it gives the con stable the right to I’equire, before he can be dismissed, that cex’tain formalities shall be gone through, and that he should
452 HIGH COUllT
[1906.
| H. | C. OF A.have an opportunity of being heard in his own behalf. It is | |||
|
V.
F o lev ,has been cited to us, and I think only one can be found, in which
the ordinary terms of contract between the public servant and
O’Connor J.
the Government, giving the public servant the right to have some certain formalities complied with before dismissal, is the case of Gould v. Stuart (1). In the New South Wales Statute which was under consideration in that case elaborate provisions are made for the making of the complaint, the liearing, the adjudication, the statement of the result to the Government, and the action which the Government are to take upon the report. These sections clearly and in express language give tlie right to a hearing before dismissal, and lay down the procedure which is to be followed. But sec. 6 simply enables the Commi.ssioner to make appointments and to make dismissals, and the enactment relating to sufficient proof is merely incidental. I t would seem very unlikely that the well-known incident of dismissal at pleasure, which attaches to all contracts between public servants and the Government, would be .so materially altered without some more formal and direct language than that which i.s used in the section under consideration.
Now, there is one consideration of considerable weight in deter mining whether this section was intended to so alter the ordinary form of contract between the public servant and the Government. The Commissioner and the commissioned officers of the police force hold tlieir offices upon the usual terms of public service. They have no right of demanding sufficient proof of misconduct, or a hearing before dismissal, and it is unlikely that, if it was intended to give this right to constables, it was not given to the officers commanding them.
Without going any more into detail as to the bearing of the section upon the rest of the Act, I have come to the conclu sion that it, putting it in the strongest way for the plaintiff, is capable of being read in two ways, either as giving the right which is claimed to the constable, or as being merely part of the necessary machinery for the administration of the powers of the
(1) (1896) A.C., 575.
4 C.L.R.] OF AUSTRALIA.
45.3
H. C. OF A.
Government by tlie Coniinissioner.
In iny opinion the whole
1906.
meaning and purpose of the Act is inconsistent with holding that
the object of the section was any other than merely administra
R y d er
V.
tive, and that it would he contrary, not only to the general F o ley .
provisions of the Act, but to the express provisions of the later
O’Connor J.
Act of 1891, to hold that .sec. (i gives any right to the constable to an inquiry before dismissal. Mr. Douglas in a very forcible argument .sought to draw from the history of police legislation reasons in .support of his contention founded upon an analogy which he said existed between the present office of constable, and the old office of constable at common law. That office, no doubt, is what is called a freehold office, and could not be put an end to except upon a charge of misconduct which the con stable had a right to answer. I was rather impre.ssed by that argument at first, but after looking into the Statutes it appears to me that it has no foundation. The earliest of the Police Acts (J noted to us was the Act of 1838, which authorized the police magistrates of the towns to nominate and appoint local police, and to swear them in for the purpose of preserving the peace within their localities. That Act gave express power to the justices to appoint or dismiss from employment any constable whom tiiey considered unfit to remain in the service, who was negligent in the performance of his duty, or otherwise unfit for the office; but under that Act there was certainly no power on the part of the constable to demand an iinjuiry. Then came the Act 1() VTct. No. 53, the Police Act 1852, by which the Inspector- General was authorized to appoint all chief and other constables for the metropolitan distiict and the constables for the mounted patrols, gold escorts, and gold police. In all other districts it was left to the several benches of magistrates to appoint chief and other constables for such districts respectively, thus preserving to a certain extent local control of the police. Now, the only section bearing upon the right of the constable to an inquiry before dismissal under that Act is section 9, which sets out the acts which make a constable liable to be proceeded against before the magistrates for misconduct. I t was provided in that section, reading it in the most favourable way to Mr. Douglas’s contention, that as part of the punishment the constable might be dismissed
454 HIGH COURT
[190G.
H. C. OF A.
by the magistrate, and that dismissal was subject to an appeal
1906.to the Government. Tliat, of course, is quite a different thing
Kydek
from the creation of a freehold office giving the right to the con
V.
F oj.ev .stable to demand an inquiry before dismissal for misconduct.
The provision there evidently was in aid of the enforcement of
O'Connor J.
the performance of police duties by giving the magistrates that power as part of the punishment which miglit be inflicted upon the constable; but after all the main answer to all these argu ments which have been urged from the history of the Police Act is the form and structure of the Act of 1803 itself, which swept away all local supervision, and placed the whole of the police force under one central control in the hands of the Govern ment, and provided in detail for its management. That is the Act which we have to construe, and it is that Act, and that Act only, in which we are to find the rights, if there are any rights, which are now claimed on behalf of the constable by Mr. Douglas. I pointed out that that Act contains no such right—that it con tains no departure from the ordinary contract of service between civil servants and the Government by which tlie Government have the right to dismiss at any time they think fit, and for any reason that they think fit, with or without an opportunity to the constable to show cause, as they may deem advi.sable. Under these circumstances, it appears to me that the plaintiff' has no cause of action against the Government. I therefore agree that the appeal must be upheld.
Appeal allowed; order ap>pealed fro m dis charged; all proceedings in the action to be stayed.
Solicitor, for the appellant, Hellicar, Crown Solicitor.
Solicitors, for the respondent, Morris A- Fletcher for S. N.
Johnson, Charters Towers.
N. G. P.
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