Opinion Number. 706

Subject

PUBLIC SERVICE PUBLIC SERVICE COMMISSIONER: EXPIRY OF TERM OF OFFICE OF COMMISSIONER: POSITION OF DEPUTY: WHETHER ACTING COMMISSIONER CAN BE APPOINTED

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1902, s. 5 (2), (4)

Date
Client
The Secretary, Prime Minister's Department

The Secretary to the Prime Minister's Department has forwarded the following memorandum for advice:

The term of office of Mr D.C. McLachlan as Commonwealth Public Service Commissioner will expire tomorrow, 4th May.

Mr W.B. Edwards was on 5th January last appointed Deputy Commissioner during the absence on leave of the Commissioner. That appointment will terminate with the vacation by Mr McLachlan of his office.

Will you kindly advise me what action is necessary to enable the duties of Commissioner to be discharged pending the appointment of a successor to Mr McLachlan.

Section 5 (2) of the Commonwealth Public Service Act 1902-1913 provides that the Commissioner shall be appointed for a term of seven years, and section 5 (4) authorises the appointment of a deputy of the Commissioner during the absence of the Commissioner and no longer. It is evident therefore that the appointment of the Deputy of the Commissioner expires concurrently with the expiration of the term of office of the Commissioner.

The Act makes no provision for the appointment of an Acting Commissioner, and if any person is appointed as Commissioner he can only be appointed for a term of seven years.

In the absence of a Commissioner, no action under the Act which requires a recommendation of the Commissioner can be taken.

I am of opinion that the only course which can be taken if a Commissioner is not to be appointed within a short time is to pass a short Bill through Parliament giving power to the Governor-General to appoint some person to be Acting Commissioner for such period as the Governor-General thinks fit.

[Vol. 14, p. 322]