Opinion Number. 755

Subject

PUBLIC SERVICE
PROCEDURE TO BE FOLLOWED IN APPOINTMENT OF PERMANENT HEAD OF DEPARTMENT: WHETHER PUBLIC SERVICE COMMISSIONER MUST BE INVOLVED

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1902, ss. 5, 42, 44

Date

The following memorandum by the Deputy Public Service Commissioner has been forwarded for advice:

The Deputy Public Service Commissioner desires to invite the attention of the Acting Prime Minister to the notification in the Commonwealth Gazette No. 35 of 16th ultimo of the appointment of Mr J.R. Collins, Assistant Secretary, etc. Department of the Treasury, as Secretary of that Department etc. and to state that the appointment in question has been made in contravention of the provisions of the Commonwealth Public Service Act, which require the recommendation of the Public Service Commissioner to the Governor-General precedent to any such appointment being made, vide sections 5, 42, and 44 of the Public Service Act.

The Deputy Commissioner wishes it to be clearly understood that he does not in any way challenge the wisdom of the appointment in this particular instance, but desires to call attention to the grave precedent which will be established if the provisions of the law governing appointments and promotions in the Commonwealth Public Service are departed from as in the instance under notice.

All previous appointments of Permanent Heads since the Public Service Act came into operation have been made by the Governor-General on the recommendation of the Commissioner, and it is earnestly and respectfully suggested that such action be taken as will place the appointment in this case on a proper basis and that such instructions be issued as will ensure that in any future case of a similar nature the provisions of the law will be observed.

The only sections of the Commonwealth Public Service Act which can possibly have any bearing upon the question of the procedure to be adopted in making the appointment of a Permanent Head are sections 5, 42 and 44. Section 5 contains, inter alia, the following provision: The Commissioner shall submit for the consideration of the Governor-General reports as to any matters requiring to be dealt with by the Governor-General under this Act; Sections 42 and 44 are as follows:

42. Whenever a vacancy occurs in any office and it is expedient to fill such vacancy by the promotion of an officer the Governor-General may on the recommendation of the Commissioner subject to the provisions of this Act-
appoint to fill such vacancy an officer of the Department in which such vacancy occurs regard being had to the relative efficiency, or in the event of an equality of efficiency of two or more officers to the relative seniority, of the officers of such Department; or appoint to fill such vacancy any qualified officer from any other Department whom on the ground of efficiency, or in the event of an equality of efficiency of two or more officers whom on the ground of seniority, it appears desirable so to appoint, if it appears that such appointment would result in the work of such office being more efficiently performed than by selecting an officer from the Department in which such vacancy occurs;

* * * * * * * *

  1. Before an officer is promoted from any office to a higher office in the Administrative or Professional or Clerical Division there shall be submitted to the Governor-General the name of the officer recommended for promotion to such higher office by the Commissioner after report from the Permanent Head and any officer so recommended may be promoted by the Governor-General accordingly. Provided that in every instance where a junior officer is recommended the certificate of the Commissioner be first issued certifying that there is no senior officer available as capable of satisfactorily performing the duties.
  2. If any officer recommended by the Commissioner is not approved by the Governor-General it shall be the duty of the Commissioner after report from the Permanent Head to recommend within a time specified by the Minister some other officer for the office, and such officer if approved of by the Governor-General may be promoted accordingly to such office.
  3. Where the Governor-General does not approve of any officer recommended a statement of the reasons for not approving any such recommendation and for requiring a further recommendation shall within seven days be laid before The Parliament and if the The Parliament is not sitting then within seven days of the next sitting thereof.

Thus section 42 makes provision for the manner in which vacancies are to be filled by the promotion of officers and section 44 provides the procedure which is to be followed when an officer is to be promoted from any office to a higher office in the Administrative, Professional or Clerical Division. Reading these two sections together, it appears that the report of a Permanent Head to the Commissioner is an essential part of the procedure; and therefore that these sections do not contemplate the case when the vacancy to be filled is that of a Permanent Head.

The only other section requiring consideration is that portion of section 5 which is quoted above. That provision is very general in its terms; but it refers to 'reports' not 'recommendations', and from its position and context appears to be descriptive of the general functions of the Commissioner, and not mandatory as to the mode of appointing officers.

I think, therefore, that there is nothing in the Public Service Act which specifically requires the Governor-General to refer to the Public Service Commissioner, either for advertisement or for recommendation, the question of filling vacancies occurring in the position of Permanent Head of a Commonwealth Department.

[Vol. 14, p. 490]