Termination of Appointments to Public Offices
| Published date | 01 March 1996 |
| Date | 01 March 1996 |
| DOI | http://doi.org/10.22145/flr.24.1.1 |
| Subject Matter | Article |
TERMINATION OF APPOINTMENTS TO PUBLIC OFFICES
Enid
Campbell*
INTRODUCTION
Persons
employed
within
the
public (that is, governmental) sector are
employed
under
avariety of legal arrangements. Some are
employed
under
contracts of
employment
or
as
independent
contractors. Some are
employed
as
members
of a
government
service
such
as apublic service, apolice service
or
ateaching service,
pursuant
to
detailed
legislative provisions. Afew
may
be
employed
solely
under
the
common
law
relating
to service
under
the Crown. Some are persons
who
have
been
appointed
to public
offices,
that
is positions
which
exist separately from the persons
who
hold
office
and
to
which
particular
powers
and
duties are attached.1Some are
both
members
of a
government
service
and
holders of public offices.2Terms
and
conditions of
employment
within
the
public sector
may
also
be
affected
by
industrial
awards,
awards
made
by
remuneration
tribunals
and
general legislation
on
employment.3
This article is concerned
with
the
law
which
relates to termination of
appointments
to public offices otherwise
than
by
the
death
or
resignation of
the
holder
of the office,4
or
effluxion of a
term
of office. More particularly it is concerned
with
termination of
office
by
removal
from office,
by
abolition of office,
and
by
the
occurrence of
events
which,
by
operation
of law, occasion avacancy
in
or
forfeiture of
the
office.
Attention
is
also given to
suspension
from office,
demotion
in
office
and
transfer from one office to
another. Legal remedies for
wrongful
deprivation
of public office are also examined.
The
law
relating to
tenure
of public offices
has
received little attention
in
standard
texts
on
employment
in
the public sector. This
body
of law,
however,
affects alarge
number
of
individuals
and
sometimes does so
in
ways
which
may
not
have
been
understood
at
the
time
an
appointment
to office
was
made.
Persons
appointed
to
statutory
offices
may
have
been
appointed
pursuant
to
statutory
provisions
which
apparently
accorded
them
considerable security of tenure. The expectations of
such
persons
may
later
be
disappointed
by
the
enactment
of legislation
which
abolishes
the
offices to
which
they
were
appointed,
without
right to
be
compensated
for loss of
*
1
2
3
4
Sir Isaac Isaacs Professor
of
Law,
Monash
University.
The concept
of
public office is
examined
more
fully
below
at 6-9.
See GJMcCarry
...
Aspects
of
Public
Sector
Employment
Law
(1988)
at
24-7
and
142-8.
Eg, anti-discrimination legislation
and
legislation
on
unfair dismissal. See
102
Social
Club
and
Institute Ltd v
Bickerton
[1977] ICR 911;
Barthorpe
v
Exeter
Diocesan
Board
of
Finance
[1979] ICR 900.
The
common
law
on
surrender
of
public offices is
dealt
with
in
Marks
vCommonwealth
(1964) 114 CLR 549.
2
Federal
Law Review Volume 24
office,
or
right
to
be
re-appointed
to the
new
offices
which
may
have
been
created
to
replace
the
offices
which
have
been
abolished.
In
recent years there
have
been
several
Australian
cases of this kind.5
The
powers
of
parliaments
to enact legislation to abolish
statutory
offices
and
to
alter
the
terms
and
conditions of
appointment
to those offices are, generally,
unrestricted6
and
these
powers
cannot, validly,
be
constrained
by
contract.
On
the
other
hand,
parliamentary
powers
in
this
regard
are
not
necessarily
compromised
by
contractual
arrangements
under
which
compensation is
payable
for
deprivation
of
office
by
reason
of legislative action. The extent to which, if
at
all,
the
terms
and
conditions of
appointment
to
statutory
offices
may
be
affected
by
contractual
arrangements
is
one
of
the
questions
which
is considered
in
this article.
EXPRESS
AND
IMPLIED POWERS OF REMOVAL
Statutes
which
confer a
power
to
appoint
persons to offices
or
positions
may
expressly
give to
the
appointing
body
(or some
other
body)
an
express
power
to remove
an
appointee.7The
power
of removal so conferred
may
be
unrestricted,
or
exercisable
only
on
specified grounds.8A
power
of removal
may
also
be
implied. It will
be
implied
if
the
statute
provides
that
appointees
hold
office
at
pleasure
9
or
during
good
behaviour,
though
in
the
latter case the
power
of removal is exercisable only if
there
is
abasis
on
which
misbehaviour
can
be
found.10 A
power
of
removal
is also
implied
if
the
statute
makes
it clear
that
appointees are
deemed
to
be
servants of
the
Crown.
11
In
that
case appointees will
hold
their offices
at
the
pleasure
of
the
Crown
unless there is
something
in
the
statute
which
displaces
that
rule.12 The
appointing
body
may
have
an
implied
power
to
remove
an
appointee
even
if
the
statute conferring
the
power
of
appointment
says
nothing
about
the
terms of office.
An
example
of this
was
seen
in
Palais
Parking Station Pty Ltd v
Shea,13
where
Bray CJ
and
King J
construed
s 5 of the South Australian Lands for Public
Purposes
Act 1914-
1935 as impliedly authorising revocation of
an
appointment
made
thereunder.
The
section
had
authorised
appointment,
by
proclamation of the Governor, of aperson,
or
the
holder
for the time
being
of some specified office, to be,
in
respect of a
purpose
previously
declared
by
proclamation to
be
apublic
purpose,
the
promoter
of
an
undertaking
for the
purposes
of the Act.14 Similarly,
in
Australian National University v
5
6
7
8
9
10
11
12
13
14
See
the
following articles
by
Justice MD Kirby: "Judicial
Independence
and
Justice Staples"
(1989)
No
68 Vic Bar News 18; "The Removal
of
Justice Staples
and
the
Silent Forces
of
Industrial
Relations" (1989)
31
/0
Industrial Relations 334; "The Removal
of
Justice Staples
...
"
(1990) 6
Aust
Bar Rev 1; "Wreckers
at
Work" (1994) 19 Alternative Law
/0
103.
The
federal
Parliament
cannot
abolish
the
office
of
Justice
of
the
High
Court
of
Australia:
Constitution
of
the
Commonwealth
of Australia,
Chap
III.
Eg,
Equal
Opportunity
Act 1984 (Vic), s11.
Eg, Civil Aviation Act 1988 (Cth), s42(1).
Coutts vCommonwealth (1984) 59 ALR 699.
Osgood vNelson (1872) LR 5
HL
636.
On
the
meaning
of
"misbehaviour", see "Parliamentary
Commission
of
Inquiry: Re The
Honourable
Mr
Justice Murphy" (1986) 2
Aust
Bar Rev 203.
Director-General
of
Education
(NSW)
vSuttling (1986) 162 CLR 427.
Ibid
at
442.
(1977) 16 SASR 350.
Ibid
at
359-60
and
367-8.
1996
Termination
ofAppointments
to
Public
Offices
3
Burns,lS aFull
Court
of the Federal
Court
of Australia
held
that,
although
the
Australian
National
University Act 1946 (Cth)
did
not
expressly
empower
the
Council
of
the
University to dismiss professors,
such
a
power
was
implied
in
s23 of
the
Act.
16
This section
empowered
the Council to
appoint
deans, professors
and
others
and
went
on
to
provide
that:
[T]he Council
has
the
entire control
and
management
of
the
affairs
and
concerns
of
the
University
and
may
act
in
all matters concerning
the
University
in
such
manner
as
appears
to it
best
calculated to
promote
the
interests
of
the
University.
The
Court
concluded, however, that,
in
dismissing Professor Burns, the Council
had
not
relied
on
s23
but
on
the
terms of its contract
with
him.
17
There
are
earlier cases
in
which
a
power
to remove from office
has
been
implied
having
regard
to
the
purposes
or
purposes
of the statute conferring
the
power
of
appointment
and
the duties attaching to the office. Smyth vLatham18
was
such
acase.
The
statute
in
question19
empowered
the Commissioners of the
Treasury
to appoint,
from
time to time
and
as
they
deemed
necessary,
paymasters
of exchequer bills
and
certain
other
officers. Paymasters,
the
Court
of Exchequer
Chamber
concluded,
held
their offices
at
pleasure,
rather
than
for life
or
during
good
behaviour.
In
coming to this
conclusion,
the
Court
had
regard
to
the
fact
that
the
power
to
appoint
was
a
power
to
appoint
from
time to time,20
and
that
the
Commissioners
had
an
express
power
to
vary
the
emoluments
of office-holders.
21
The
Court
also considered that,
having
regard
to
the
purposes
for
which
paymasters
were
to
be
appointed,
it
was
clear
that
the
number
of
paymasters
required
at
any
particular time to
perform
the functions assigned
to
them
could
vary.22 The Commissioners clearly
had
the
power
to
reduce
the
emoluments
of
an
office-holder if the services
he
provided
were
nominal. If
they
could
do
that,
the
Court
reasoned, they
could
dispense
with
an
officer's services
when
they
were
no
longer
needed.
23
They
could
do
so
notwithstanding
that
the
instrument
of
appointment
did
not
expressly reserve a
power
of removal.24
The
Court,
it
should
be
added,
rejected the
argument
that, because
powers
to
remove
office-holders
had
been
included
in
many
other
statutes,
it
should
be
inferred
that
Parliament
had,
in
this instance, deliberately
withheld
a
power
of removal.
In
the
Court's
view, express provisions for dismissal of office-holders
and
express provisions
declaring
that
offices
were
held
at
pleasure
had
often
been
included
in
statutes
out
of
an
abundance
of caution.25
The
approach
adopted
in
Smyth v
Latham
was
endorsed
by
the Judicial Committee
of the
Privy
Council
in
Hill v
The
Queen.
26
The statute
in
question
in
that
case
was
one
15
16
17
18
19
20
21
22
23
24
25
26
(1982)
43
ALR 25.
Ibid
at
32
and
37.
The
Court
also
noted
that
the
University
had
not
legislated
under
s27(1)(g)
of
the
Act
on
the
manner
of
appointment
and
dismissals.
(1833) 9Bing 692;
131
ER 773.
48 Geo III c1, s10.
9Bing 692
at
706;
131
ER 773
at
779.
Ibid.
Ibid
at
704, 778.
Ibid
at
706, 779.
Ibid
at
710, 781.
Ibid
at
709, 781.
(1854) 8
Moo
PCC 138; 14 ER 53.
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