The Secretary, Prime Minister's Department:

By direction of the Public Service Commissioner, the Secretary to the Public Service Commissioner has forwarded the following memorandum asking for advice:

The following is copy of a communication received from A.B.C, Assistant Investigating Officer, Fourth Class, Clerical Division, Taxation Branch, New South Wales:

I beg to appeal against the appointment to the position of Investigating Officer, Class D, Professional Division, Taxation Branch, Department of the Treasury, advertised as vacant in Gazette No. 65 dated 18.8.1921, of:

1. Mr D.E.F. of Sydney, or any other person not at present in the Public Service; or
2. Any officer in the Public Service in the Clerical Division, Classes IV or V, who is at present senior or junior to me.

This appeal is on the following grounds, viz:

1. As regards (1) above-

In view of my qualifications the certificate required under sub-section (2), section 31 of the Commonwealth Public Service Act cannot be given, viz: That in your opinion there is no officer in the Public Service who is as capable of filling the position to which it is proposed that the appointment shall be made before an appointment can be made of a person not in the Public Service.

2. As r ards (2) above-

That I am the most competent and experienced officer in the classes mentioned.

Section 50 of the Public Service Act provides that an officer may appeal if affected 'by any report or recommendation made or action taken under the Act' and regulation 282 prescribes that an officer in his appeal shall set out concisely the grounds of his dissatisfaction with the action appealed against. It will be seen that Mr C.'s appeal is not based on the ground that he has been affected by a report or recommendation made or action taken under the Act, but merely against 'the appointment' to a certain position of a particular person or any officer in certain classes of the Public Service. His appeal is therefore not against any action taken, but against some possible future action.

The Acting Commissioner would be glad to be favoured with the opinion of the Crown Solicitor as to whether Mr C. 's communication should be regarded as an appeal as prescribed by section 50 of the Public Service Act.

In this connection attention is invited to the decision of the High Court in the case of P.A.I. O'Brien, Clerk, Fifth Class, Taxation Branch, in which it was held that Mr O'Brien was entitled to have his appeal referred to the Board of Appeal. Mr O'Brien's appeal was couched in the following terms:

I beg to apply for a Board under section 50 of the Commonwealth Public Service Act to hear an appeal by me against the appointment of any officer, other than me, to the position of Officer in Charge of the Records Branch, Federal Taxation Staff, Victorian Office. The appeal is brought on the grounds that I am the most efficient officer for the performance of the duties in question . . . While in the case of O'Brien the main question of argument appears to have been whether the appellant was eligible for promotion under section 23 of the Act, it is not clear whether the question now raised, viz. as to the admission of an appeal against possible future action was submitted for the consideration of the Court. Section 50 of the Commonwealth Public Service Act provides:

Any officer . . . affected by any report or recommendation made or action taken under this Act . . . may, in such manner and within such time as may be prescribed, appeal to a Board . . . Provided that in the case of reports or recommendations made by the Commissioner to the Governor-General all such appeals must be taken before the reports and recommendations are dealt with by the Governor-General under the provisions of this Act.

Regulations 281 and 282 of the Public Service Regulations provide:

281 Appeals shall only be considered if made within one month of the date on which the report or recommendation affecting an officer is communicated to him directly, or made known by public advertisement.

An officer, in his appeal, shall set out concisely the grounds of his dissatisfaction with the action appealed against, and shall forward the same to the Chief Officer of his Department in the State, who shall forthwith transmit it, through the Permanent Head, to the Commissioner.

In my opinion section 50 does not on a strict construction give rights to any officer except an officer affected by a report or recommendation made or action taken under the Act. It is only such an officer who can appeal.

In the case of Ex parte O'Brien 26 C.L.R.380, the exact form of the notice of appeal was apparently not considered by the Court, and I do not think, therefore, that the case is an authority for the proposition that an officer may lodge an appeal in advance of the making of a recommendation or the taking of action.

I desire to point out, however, that while an officer is not entitled to appeal in advance of the making of recommendations or the taking of action, regulation 281 certainly appears to contemplate that an officer who is affected by a recommendation made or action taken should be given an opportunity to exercise the rights conferred on him by the section in question.

It should also be pointed out that uniformity in the administration of a statute such as the Public Service Act is highly desirable, and if a practice has existed for many years of admitting appeals which do not come strictly within the wording of section 50 of the Act, it is a question for the consideration of the authority administering the Act as to whether, if the practice is not illegal, it is not more desirable, in the interests of the Commonwealth, that it be continued than that it be changed.

[Vol. 18,p.419]