The Secretary, Public Service Commissioner's Office, forwards the following memorandum asking for advice:

Mr A.B., Chief Electrical Engineer, Postmaster-General's Department, was charged under section 46 of the Commonwealth Public Service Act 1902-1918 with the commission of offences, and a Board of Inquiry appointed under that section has found certain of the charges proved.

Mr B.'s position is classified in Class A of the Professional Division, the limits of which Class are prescribed in Public Service Regulation 113 as£648 per annum minimum to£1,250 per annum maximum, and he is paid a salary of£1,000 per annum.

By Order in Council, notified in Commonwealth Gazette No. 6 of 22 January 1920, at page 74, the Governor-General approved of the rates of salary to be assigned to the position of Chief Electrical Engineer, Postmaster-General's Department, being£900 per annum minimum and£1,100 per annum maximum.

Copy of recommendations approved by the Governor-General fixing the range of salary of the position, and for payment of salary of£1,000 per annum to Mr b. is attached.

Section 46 (5) of the Public Service Act prescribes that upon the recommendation of the Chief Officer the Commissioner may reduce an officer to a lower class or grade and salary or wages.

Reference is invited to the opinion of the Attorney-General of 6 March 1906, that there is power under section 46 to reduce an officer to a lower subdivision within his Class, but it will be noted that there are no prescribed subdivisions of Class A, Professional Division.

It is considered by the Acting Commissioner that the appropriate punishment to inflict upon Mr b. would be reduction of salary from£1,000 per annum to£800 per annum, thus retaining him in Class A, but it is desirable that he should not be allowed to resume duty, after suspension, in the position of Chief Electrical Engineer.

There is at present no other position in Class A in which Mr b. 's services could be immediately utilised, but in order to bring the case to finality the Acting Commissioner proposes to issue an order for the reduction of Mr b. from the position of Chief Electrical Engineer, Class A, salary£1,000 per annum, to the position of Engineer, Class A, salary £800 per annum. Before doing so, however, he would be glad to be favoured with advice upon the following points:

1. Would it be competent for the Acting Commissioner to issue such an order for reduction of salary within a Class;
2. Would such order have the effect in the circumstances explained of vacating the position of Chief Electrical Engineer?

Section 46 (5) gives the Commissioner power to reduce to a 'lower class or grade and salary or wages'. Mr Attorney-General Isaacs advised in 1906⁽¹⁾ that these words included a power to reduce to a lower subdivision within a class or grade.

In Class A there are no subdivisions, but the limits of salary in the class are prescribed to be from£648 to£1250, and by an Order in Council the Governor-General has declared that the limits of salary assigned to the position of Chief Electrical Engineer are from£900 to£1100.

Mr B.'s salary as Chief Electrical Engineer was also, by Order in Council, as from 1 July 1919, increased from£900 to£1000.

It seems to be clear that there is power under section 46 to reduce Mr B., say to Class B and to a salary within the limits of Class B; and I think it follows that if that were done there must be power to reduce him from Chief Electrical Engineer-an office in Class A-to Engineer.

What is proposed is a less punishment than that; namely to reduce him in Class A to a salary of£800, and to the position of Engineer.

The difficulty that is suggested is that such a reduction of salary within Class A, does not necessarily involve the reduction in position from Chief Electrical Engineer to Engineer, and therefore that there is a doubt as to the Commissioner's power to reduce the position.

To this it might be answered that the reduction of salary below the limit of£900 fixed by the Governor-General as the minimum salary of the office does involve the consequence of reduction of positions. This answer would, I think, be conclusive if the Order in Council fixing the limits of the position were based upon some express statutory authority; but I cannot find any such authority in the Public Service Act. Consequently it is difficult to say that the minimum salary of£900 is an attribute attached by law to the office.

I think, however-though not without some doubt-that the proposed course can be supported on the broader ground that the power to reduce class necessarily implies a power to assign to the officer duties of a lower kind-e.g. of a less responsible or more subordinate kind. That is to say, it necessarily implies power to reduce status from the chief of a group to a member of the group under a chief. The name of the office is immaterial; it is merely descriptive; the substantial things are the duties and the status. (The word 'grade', taken by itself, would convey this meaning; but in the context, and in view of its use elsewhere in the Act in relation to the General Division only, it is safer not to rely on it.)

In my opinion, therefore, the action proposed, which is within the limits of the undoubted power of the Commissioner (i.e. only differs from punishment which is clearly within the power of the Commissioner by being lesser in degree) is warranted by the section.

At the same time, it must be admitted that the validity of this action is open to attack by arguments which would not be available in the case of a class reduction.

[Vol. 19, p. 94]

(1) The Public Service Commissioner had asked whether there was power to reduce an officer in salary within his existing class and cited several cases then under consideration, including that of an officer already in the lowest class of his division.

In response to this question the Attorney-General, in an opinion [Vol.5, p. 198J not published in Vol.1, said:

'In my opinion, there is power under the section to reduce an officer to a lower subdivision within his class'.