The Acting Secretary to the Acting Public Service Commissioner has forwarded the following memorandum for advice:

The Acting Public Service Commissioner desires me to submit the following matter for the favour of advice:

Under section 5 of the Commonwealth Public Service Act 1902-1915, provision is made that each Public Service Inspector shall exercise such powers, duties and authorities of the Commissioner or Inspectors as the Commissioner thinks fit from time to time to assign to him. Inspectors are called upon to report annually to the Commissioner and to make recommendations as to subdivisional promotion of officers in the higher classes of the Professional and Clerical Divisions of the Service, and the Commissioner determines whether or not provision shall be made on the annual Estimates for the purposes of such promotions.

During recent proceedings in the Arbitration Court in connection with the hearing of a plaint by the Professional Officers' Association, the question was raised whether a Public Service Inspector should be compelled to give evidence bearing on his confidential reports to the Commissioner in respect of subdivisional promotion of officers, and it was suggested by the President of the Court that legal advice be obtained, as to an Inspector's position in such a matter. During the hearing of this case Mr Justice Higgins stated that he would later on consider any objection which might be raised by the Commissioner to evidence being elicited from Inspectors, bearing on their reports, because it was admitted by His Honour that to some extent such evidence would touch upon the delicacies of departmental practice. Later on, His Honour indicated that he did not intend to allow the Court to be used for the purpose of forcing the discretion of the Commissioner.

The Acting Commissioner holds the view that it would be opposed to public policy to compel a Public Service Inspector to divulge the contents of reports which have been submitted solely for the information of the Commissioner, and that such reports should be regarded as privileged, and should not be produced in any proceedings under the Arbitration Act. Moreover, it is held that an Inspector should not be compelled to divulge by means of oral evidence the nature of any report or reports made to the Commissioner. In carrying out his functions under the Public Service Act, an Inspector is required to report freely and unreservedly his opinion on any matter remitted to him by the Commissioner for investigation, and these reports are necessarily of a confidential nature.

It should be stated that a Public Service Inspector exercises many of the powers of the Commissioner, and it therefore follows that if the Inspectors' reports are not privileged so far as arbitration proceedings are concerned, the actions of the Commissioner are similarly open to criticism by the Court, and the Commissioner himself could be required to attend and give evidence upon matters being investigated. It is considered that such a course was never contemplated in the framing of the Arbitration (Public Service) Act 1911, more particularly when it is remembered that the Commissioner is a respondent in all cases dealt with under that Act.

The Acting Commissioner will be glad to have the benefit of the Secretary's opinion in the matter as to whether a Public Service Inspector can legally plead privilege on the ground of public interest, or on any other ground.

Section 25 of the Commonwealth Conciliation and Arbitration Act 1904-1915 provides (inter alia) that the President of the Arbitration Court is not bound by any rules of evidence, but may inform his mind on any matter in such manner as he thinks just.

Under this section the President of the Court can exercise an untrammelled discretion as to whether he will permit the production of the documents.

Assuming that the President desires to act in accordance with the rules of evidence relating to the production of documents, I think that the Public Service Commissioner, as head of the Department, can claim privilege in respect of the reports.

Section 8 of the Commonwealth Public Service Act 1902-1917 provides for the furnishing of reports by Public Service Inspectors to the Commissioner as to their inspection together with recommendations for the consideration and determination of the Commissioner.

These reports are confidential official documents passing between the head of a department and his subordinate officers.

Secrets of state, state papers, and confidential official documents, and communications between the Government and its officers are privileged from disclosure and secondary evidence of those documents cannot be given (see Halsbury's Laws of England, Vol. 13, pp. 572 and 573).

In Taylor on Evidence, 10th edn, § 947, it is stated that on grounds of public policy official transactions between the heads of the departments of government and their subordinate officers, and communications relating to state matters made by one officer of state to another in the course of his official duty are treated as secrets of state, and absolutely privileged.

The reports of the Public Service Inspectors to the Commissioner are, I think, documents within these rules.

In my opinion, under the rules of evidence the reports of Public Service Inspectors to the Commissioner are privileged from production in court.

The claim should, I think, be asserted by the Commissioner as the head of the Department and the person to whom the reports are made.

[Vol. 15, p. 331]