Editors --- "Barratt v Howard and Moore-Wilton - Case Note" [1999] AdminRw 19; (1999) 51 Admin Review 49

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Barratt v Howard and Moore-Wilton

Federal Court, Hely J, 19 August 1999

[1999] FCA 1132

Procedural fairness—dismissal of Secretary to a Commonwealth Department

The facts of this case are well known, as they were widely reported in the media at the time of the matter.

It was held that the applicant, Mr Barratt, was entitled to procedural fairness before any recommendation was made by the Prime Minister to the Governor-General, that the applicant's appointment as Secretary to the Department of Defence be terminated. Justice Hely confirmed that procedural fairness may apply as well to administrative decisions, as it does to judicial decisions, and that it is presumed to apply, unless expressly excluded.

It followed that the applicant was entitled to be told why the termination of his appointment was proposed, before the expiration of his five year term as Secretary. Further, he was entitled to a reasonable opportunity to put his case as to why a recommendation to that effect should not be made by the Prime Minister. There was however, no entitlement to an oral hearing.

The reasoning underlying the decision may be summarised as follows:

• the common law position, that a Crown servant held office at pleasure and could be dismissed without reason and without an opportunity to be heard, has been displaced by the Public Service Act 1922 ('Act') (in particular, section 37 which deals with the fixed terms of Secretaries);

• the Act did not displace the very strong common law presumption that procedural fairness is required for early termination of appointment under section 37 of the Act;

• the matter of a recommendation under section 37 is for the Prime Minister's discretion, exercisable having regard to the public interest;

• the relationship between a Minister and his/her Department Head should be one in which the Minister has trust and confidence in the Secretary; and

• political or policy considerations may have a bearing on the selection of a Department Head.

Hely J said that his decision was consistent with the broad policy of the Act, and in particular section 6 (an objects provision), and he referred to procedural fairness being a general duty of good administration (following Attorney-General (NSW) v Quin (1990) 170 CLR 1).