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Report No. 58

Position in Commonwealth

8.7. In many countries of the Commonwealth, the position is the same in substance, and the principle of pleasure, co-existing with the safeguards created by statute, has provided up with a rich harvest of judicial decisions, many of which are from the Commonwealth countries.1 cases fully bear out the proposition that the civil servant can be dismissed at pleasure, except in "special cases whereby it is otherwise provided by law".2

The rule of pleasure has been altered in many cases in Australia, and civil servants, as a general, now have rights which were not thought of in earlier days. Gould v. Stuart, 1896 AC 575, an illustration of such a case.

1. For a detailed discussion, see Marshall Legal Relationship between State and Servants, (1966) 15 1CLQ 150, and the judgment of the Australian High Court in Fletcher v. Knott, (1938) 60 Commonwealth Law Reports 556.

2. Inland Revenue Commissioner v. Hambrook, (1950) 2 QB 640 (653); on appeal (1956) 2 QB 958, corresponding to (1966) 1 All ER 807 (811) and (1956) 3 All ER 33.

8.8. On the other hand, Cross v. Commonwealth, (1921) 29 CLR 219, an example of the complete maintenance of the older rule in the case of the Commonwealth military forces, even though the statute itself in that case provided that the commission of an officer should not be cancelled unless a procedure designed to give him a hearing was observed. Knov C.J. held that these words were directory only and that they conferred no legal rights upon an officer.

Structure and Jurisdiction of the Higher Judiciary Back

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