R v Public Service Commissioner (Cth) [1919] HCA 26; (1919) 26 CLR 380 (11 June 1919)

HIGH COURT OF AUSTRALIA

The King against The Public Service Commissioner for the Commonwealth of Australia.

Ex parte O'Brien.

H C of A

11 June 1919

Barton, Isaacs and Rich JJ.

H. I. Cohen and Mann, for the prosecutor.

Schutt, for the respondent.

H. I. Cohen, in reply.

The judgment of the Court, which was read by Isaacs J., was as follows:—

June 11

Barton, Isaacs and Rich JJ.

The application is for a writ of mandamus to the Commonwealth Public Service Commissioner commanding him to forward an appeal to the Public Service Inspector for Victoria for hearing by an Appeal Board as required by reg. 283. The material facts are these:—On 18th October 1917 certain vacancies were advertised for clerical positions in the Taxation Branch of the Treasury Department. O'Brien, who is an officer of the Fifth Class, applied for one of those positions, and stated his experience and past services; all of which are undenied. The vacancy he applied for was in respect of an office in the Fourth Class which he had been temporarily filling for two and a half years. Learning unofficially that the Commissioner had made recommendations for filling those and other offices by appointing other officers to them, the applicant sent in an application for a Board of Appeal under sec. 50 of the Act, in which he said (inter alia): "The appeal is brought on the grounds that I am the most efficient officer for the performance of the duties of the position in question."

Mr. Schutt very properly assented to treating the affidavit as if it alleged the applicant's own opinion that that statement is true. If it be true, then no doubt he is "affected" within sec. 50 of the Act; but, having regard to the general purpose of the section, it is not intended that the truth of the allegation shall form the subject of our decision. That is for the Appeal Board. Enough has been shown to "affect" the applicant for the purposes of admitting his appeal. Then, as relative efficiency is the principal test, he has shown a sufficient case for that also.

The main objection raised to his application was that as he had not served at least one year in each subdivision of the Fifth Class he is debarred by sec. 23, sub-sec. 1, from competing. In other words, he is said to be ineligible. But as sub-sec. 3 offers an alternative qualification, namely, such efficiency as will induce the Permanent Head to report and the Commissioner thereupon to recommend in his favour and the Governor-General then to approve of the recommendation, it is clear the Act does not exclude him. And if he is not to have an appeal in respect of a report or recommendation actually made, and which if acted on would shut him out, how is he to establish his efficiency so as to satisfy the third sub-section?

Sec. 50 enables the Appeal Board to hear the appeal and transmit the evidence, with its recommendation, to the Commissioner, who is to determine the appeal. Assuming, as we must, that up to the present moment O'Brien has not had the benefit of a report from the Permanent Head under sec. 23, sub-sec. 3, that, it must also be assumed, is because the Permanent Head, who is charged by the Act with the general working of his Department, has formed the opinion that, having regard to the relative efficiency of his officers, O'Brien should not, and that some one else should, be nominated for the position he applied for. If the Appeal Board agrees with this, they may so recommend; if, on the contrary, they agree with O'Brien, their recommendation will be to that effect, and the Commissioner will have the responsibility of considering whether he approves of it or still adheres to his former opinion. If he agrees with a recommendation in O'Brien's favour, he can, under reg. 16, call for a report from the Permanent Head, and according to that report the provisions of the Act will operate.

There being in the circumstances a statutory right to an appeal and it being denied, the writ of mandamus should issue unless the Commissioner undertakes to forward the appeal.

Unless the Public Service Commissioner undertakes to forward the appeal, order absolute for mandamus. Applicant to have his costs.

Solicitors for the prosecutor, Loughrey & Douglas.

Solicitor for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth.