PUBLIC SERVICE WHETHER DESIGNATION OF OFFICE IN APPROPRIATION ACT HAS EFFECT OF CONFERRING TITLE NOT PROVIDED FOR BY PUBLIC SERVICE ACT: PURPOSE OF APPROPRIATION ACT IN RELATION TO PUBLIC SERVICE
COMMONWEALTH PUBLIC SERVICE ACT 1902: APPROPRIATION ACT 1918-19, s. 3
The Comptroller-General of Customs has asked for advice on the following memorandum from the Federal Analyst:
In the attached memo, dated 23rd ultimo from the Acting Secretary, Public Service Commissioner, it is stated that there is a 'Commonwealth Serum Laboratory' and also 'a Commonwealth Laboratory' in the Defence Department.
The official designation of the former is given on page 166 of the Estimates 1918-19 as 'Serum Institute'. The 'Chemical Adviser', Department of Defence (Estimates pages 101-2) is provided with a laboratory, undesignated. It is usually known officially as the Defence Department Laboratory. In connection with the proposed arsenal, there is a Superintendent of Laboratories (Estimates page 106), but the laboratories have not yet materialised.
Under Appropriation Act, the Estimates for 1918-19, page 175, Div. 104, specifically provide for and designate:
- The 'Commonwealth Laboratory'.
- The position of 'Director'.
- The position of 'Chief Analyst, Central Staff.
In the Award of the Arbitration Court in the case of the Professional Officers' Association, the Departmental Analysts in the various States (who are not under my control, as is alleged by the Acting Secretary in his memorandum) are designated 'State Chief Analyst', and an analyst for the Central Office is designated 'Chief Analyst' (Award, page 66).
As an officer of my staff is designated under the Award as 'Chief Analyst, Central Office' and is provided for on the Estimates (page 175) under that title, it is considered that the arguments and opinion reached by the Acting Commissioner, in relation to his proposal to designate me as 'Chief Analyst' would not appear conclusive.
In view of the specific designation under the Appropriation Act for 1918-19 of the office of 'Director, Commonwealth Laboratory', it is recommended that the favour of an expression of opinion from the Secretary, Attorney-General's Department, should be obtained as to my right to the title under which the principal officer of the Commonwealth Laboratory is expressly designated in the Act mentioned.
In accordance with the practice of this office, the papers were referred to the Public Service Commissioner for his comments. The Secretary to the Public Service Commissioner advises as follows:
The claim of Mr A. is that, his position having been provided for in the Appropriation Act No. 42 of 1918 as 'Director' under the heading of 'Commonwealth Laboratory', he has a right to that designation.
In the Acting Commissioner's view, the Appropriation Act is an instrument for providing funds for various purposes, including the payment of salaries of public servants, but is not an Act for the regulation of the Public Service, for which express purpose Parliament has passed the Commonwealth Public Service Act 1902-1918.
The only designation of a position in the Public Service is that accorded it under the Public Service Act, and such designation cannot be altered except by action taken under that Act.
I agree with the Acting Commissioner that the Appropriation Act is an instrument for providing funds for various purposes including the payment of salaries of public servants. The Appropriation Act 1918-19 is an authority by Parliament to the Executive to expend the moneys voted 'for the purposes and services expressed in the Second Schedule'. In that Act provision is made for a Commonwealth Laboratory, and for the employment of a 'Director', Professional Division, Class A, salary £750 per annum. In the Appropriation Act for the previous year, provision was made for an office known as the Analyst's Office, the chief position in which was that of 'Analyst', Professional Division, Class A, salary £750.
There may be some question whether the appropriation of money for the purpose of a Director of a Commonwealth Laboratory may legally be utilised for the payment of a person in the capacity or under the designation of Analyst or Chief Analyst, but that question does not appear to have been raised in the case submitted for opinion.
The only question upon which I have been asked to advise is in substance whether the provision in the Appropriation Act confers on Mr A. a right to the title of Director.
Although the provision in question is an authority by Parliament to employ an officer as Director, it does not, in my opinion, confer on the officer hitherto employed as Analyst, a right to the designation in question. Such a right can only be conferred upon the officer by action under the Public Service Act.
[Vol. 16, p. 165]