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Wednesday, October 05, 2005

Peter Doone denied natural justice

Across the Tasman a case has come out of the High Court of Australia which mirrors the case of Peter Doone. In fact, the similarities in terms of process, facts and procedure are scary. All seven High Court justices found in favour of the Deputy Commissioner after he won his case at his trial, only to be overturned at the appeal court. Here's what happened (the applicant is the Deputy Commissioner of New South Wales):

The applicant began his career in the New South Wales Police Service on 14 October 1967 as a probationary constable. On 5 February 1997, he was appointed a Deputy Commissioner for a term of three years. This appointment was renewed for a further term of five years on 5 February 2000 by instrument of appointment recorded in a Minute of the Executive Council approved by the Governor. On 28 April 2000, the applicant and the first respondent entered into a contract of employment ("the contract").
On the evening of 5 September 2001, the applicant received at his house a copy of a press release issued on that day at 6.10 pm. This stated that the Commissioner had recommended the termination of the contract of the applicant "on the grounds of performance". The Governor in Council acted on 12 September. In the meantime, on 10 September, the applicant received a copy of a document signed by the Commissioner and stated to have been prepared in order to assist the consideration of a compensation determination by the Remuneration Tribunal. The evidence of the applicant, which was not tested in cross-examination, was that none of the matters respecting the adequacy of his performance described by the Commissioner in that document had been raised with him, nor had he been given any opportunity to make comments, observations or submissions on those matters. The Commissioner did not give evidence.
The decision of the Chief Justice - Gleeson CJ

The issues concern the application of the requirements of natural justice to the removal of Mr Jarratt ("the applicant") from the office of Deputy Commissioner, Field Operations and Development, within the Police Service of New South Wales, and the consequences of a failure to comply with those requirements.

The applicant was appointed (in fact, re-appointed) to the office of Deputy Commissioner on 5 February 2000 for a term of five years. He was removed on 12 September 2001, with effect from 14 October 2001. The removal was by the Governor of New South Wales, acting under s 51 of the Police Service Act 1990 (NSW ("the Act") upon a recommendation of the Commissioner (pursuant to s 51(1)(a)) submitted with the approval of the Minister for Police (pursuant to s 51(1A)). The removal was said in a media release from the Commissioner to be on the ground of "performance", by which was obviously meant non-performance. The applicant complained that he was given no opportunity to be heard on the substance of any criticisms of his performance before a recommendation was made that he be removed. Whatever room there might have been for factual argument about that matter, no such argument was advanced on behalf of the respondents in these proceedings. Rather, their case was simply that the applicant was not entitled to such an opportunity.
What about the fact that Police Officers are employed 'at pleasure'?

To say that an office is held at pleasure means that whoever has the power to remove the office-holder may exercise that power at any time, and without having to provide, either to the office-holder, or to a court examining the decision to remove, any justification of the decision. No period of notice, and no justification or cause for removal, is required by law. No fault or incapacity of the office-holder, or other compelling circumstance, need be shown. The corollary has generally been taken to be that such an officer has no right to be heard before removal. In Ridge v Baldwin, Lord Reid gave as the explanation that, if the person with power to remove is not bound to give a reason to the office-holder, then there is nothing for the office-holder to argue about, and if a court cannot require the person to give a reason to the court, then there is no way in which the court can determine whether it would be fair to hear the officer's case before taking action. That explanation may call for further examination. Lord Reid also pointed out that, as a practical matter, when an office-holder is removed, a reason will commonly be given. The facts of the present case illustrate why that is so. The removal of a Deputy Commissioner of Police is a public event. The applicant was not removed without explanation. The public were told that the applicant's performance was unsatisfactory. This was bound to have an adverse effect on the applicant's reputation. In its nature, it is a charge that a person might wish to answer. Any answer the applicant gave would almost certainly have gone before the Minister, and the Governor, and would probably have become public. The Governor-in-Council would act on the Minister's advice, but, in the circumstances of a case such as the present, it would be wrong to assume that there could be no purpose in giving the office-holder an opportunity to be heard. Furthermore, in Malloch v Aberdeen Corporation, Lord Wilberforce pointed out that the rigour of the "at pleasure" rule may make it all the more important, in some circumstances, for a person whose career, or pension rights, may be affected, to have an opportunity to state his or her case. His Lordship went on to say that, while courts will respect the right, for good reasons of public policy, to dismiss without assigned reasons, this should not prevent them from examining the statutory framework and the context to determine whether there is a right to be heard.
And further:

Logic does not dictate that it is the necessary corollary of a power to remove an office-holder without assigning a reason that the office-holder should be denied the possibility of being heard. Of course, to conclude that the requirements of natural justice must be complied with leaves open the question of the practical content of those requirements in a given case. It is possible to imagine circumstances in which the public interest might demand peremptory removal of a senior police officer, or in which such an officer might have nothing that could possibly be said in his or her defence. In argument in Ridge v Baldwin (a case about a chief constable of police who was denied natural justice) some colourful examples were given: a chief constable who assaults the chairman of a watch committee; or a chief constable who is seen "drunk in the gutter". Such, however, is not the present case.
Further on in his judgment:

The precise question to be asked is whether the exercise of the power of removal conferred by s 51 of the Act is conditioned upon the observance of the rules of natural justice.
What form of natural justice did he want?
The...applicant says he was entitled was an opportunity to be heard by the Commissioner on the question whether he should be removed from office. His assertion that he was not given any such opportunity has not been contested in the proceedings...It was announced to the public that the applicant was removed because of his failure to adequately perform his duties.
Yep. All he wanted was to be heard. He was denied that chance. The Chief Justice concluded that the trial judge was right to conclude that
the power conferred by s 51 is conditioned upon observance of the requirements of natural justice and that, since there was no attempt to argue that those requirements were observed in the present case, the applicant's removal from office was invalid.
Now we know here that not only was Peter Doone never given the chance to be heard, the Prime Minister actually went behind his back; undermined him in the media; and created a position where he felt he couldn't be heard. It seems to me he thought the decision had already been made. His fate was sealed. Further to that, he was accused of being drunk when he wasn't and the SST defamed him as a result of the Prime Ministers's undermining.

The situation with Doone's employment is quite similar (click on P for Police Act and see section 3). The Commissioner is employed 'at pleasure'. We know from this Australian case that this means nothing in terms of procedural fairness.

I hope Doone's lawyers are still working on this. I have taken the liberty to email them this case.

Natural Justice? Helen Clark wouldn't know how to spell it.

Doonegate index.
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Posted by Gooner | 10/05/2005 08:31:00 pm


Blogger Antarctic Lemur said...

I hope his lawyer does something about this.

10/05/2005 10:01:00 pm  
Anonymous Anonymous said...

I heard that the earth is hollow and thats where the UFO's come from, only the government won't allow Peter Doone to reveal his secrets.

10/05/2005 10:20:00 pm  
Blogger Antarctic Lemur said...

Good for you anonymous.

If you're living in Auckland try ringing this number: 09 367 0000

It's not to late - Community Mental Health Services can still help you.

10/05/2005 10:39:00 pm  

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