The Public Service Commissioner:

The Public Service Commissioner forwards the following memo for advice:

It being necessary for the protection of the Revenue to appoint a Customs Officer at Penola, South Australia, it is proposed to select for the position Mr A., the Postmaster at the place named.

In course of correspondence, the general question has arisen of appointment of State officers to perform Commonwealth duties. The Commissioner is of opinion that in all cases where officers or others perform Customs (or other Commonwealth dudes) in addition to other work, they should be gazetted as 'Acting Customs Officer' (or otherwise as the case may be) to prevent possible future claims to permanent appointment. In this particular case there may not be any serious objection to the appointment, as the Postmaster is already a permanent Commonwealth officer: but if appointments of the kind are conferred upon State officers, such, for instance, as the Police, complications may hereafter arise by these officers setting up claims that they hold permanent appointments under the Commonwealth.

The Hon. the Minister of the Department for Trade and Customs, on the other hand feels 'sure that it is not necessary to prevent claims on the Department, and it might give rise to legal complications when in an Act like the Customs Act the authority of a Customs officer may come into question', and he thinks 'it might be as well to take the advice of the Attorney-General as to the necessity of hmiting the appointment to Acting Customs Officers'.

Will the Hon. the Attorney-General kindly favour the Commissioner with his opinion on the subject?

Section 35 of the Commonwealth Public Service Act 1902 provides that:

The fact that any person is an officer of the Public Service of a State shall not disqualify him from also executing the duties of an office in the Public Service of the Commonwealth.

Section 36 provides for an arrangement, by the Governor-General with the Governor in Council of a State, for an officer in the Public Service of the State to perform any work or services or execute the duties of any officer in the Public Service of the Commonwealth.

In my opinion, notwithstanding the definition of officer in section 2 (c), the Act shows a clear intention that, as regards permanency of appointment, persons so appointed should be distinct from either permanent officers or temporary employees. To carry out the intentions of the Act, they should be gazetted, not as officers, or as acting officers, but as 'officers in the Public Service of the State of...... appointed to execute the duties of the office of...... in the Public Service of the Commonwealth'. Subject to any arrangement or agreement which may have been made with respect to them with the Governor in Council of the State, persons so appointed will not in my opinion obtain any right to a permanent position on the Commonwealth Public Service.

As regards the capacity of a person so appointed to exercise any statutory powers of an officer, reference must be made to the particular Acts conferring these powers. As regards the Customs Act, he would in my opinion come within the definition of 'officer' in section 4 of that Act, and have the powers conferred by that Act upon officers. He would also, in my opinion, be the person occupying the office (the duties of which he was appointed to execute) within the meaning of section 20 of the Acts Interpretation Act, and the 'holder for the time being of the office' within the meaning of section 33 (2) of that Act.

In the case of Commonwealth officers performing duties in relation to another Commonwealth Department (e.g. Customs) I see no objection to their being gazetted as Acting Officers. The above-mentioned provisions of the Acts Interpretation Act and also of the Customs Act would apply, and would meet the difficulty suggested by Mr Kingston.

[Vol. 3, p. 193]