R v Public Service Commissioner (Cth) [1919] HCA 26

orc

HIGH COURT

{HIGH COURT OF AUSTRALIA.} THE KING AGAINST

THE PUBLIC SERVICE COMMISSIONER FOR THE ; : COMMONWEALTH OF AUSTRALIA.

Ex parte O'BRIEN.

H.C. or A, Public Service of Commonwealth—Vacant office—Appointment—Promotion to

1919. eS MeLnourne,

June 5, 10, 1.

Barton, Isaacs and Rich JJ.

higher class—Right of appeal to Board—Officer " affected "—Non-service in each subdivision of class—Eifficiency—Commonwealth Public Service Act 1902- 1918 (No. 5 of 1902—No. 46 of 1918), secs. 23, 42, 50—Mandamus. '

Sec. 23 of the Commonwealth Public Service Act 1902-1918 provides that "(1) No officer shall be promoted from one class to another in the Clerical Ee Division until he has served at least one year in each subdivision of the class from which he is promoted ; and he shall not be promoted in such Division except to fill a vacancy in the class next higher than the class from which he is promoted or to fill a new office": "(3) Notwithstanding anything contained — in this section, on the recommendation of the Commissioner upon a report from — the Permanent Head and with the approval of the Governor-General, an officer may be promoted from any class to the next higher class, although he — has not served at least one year in each subdivision of the class from which he is promoted." Sec. 42 provides that in filling a vacancy in any office regard is to be had to the relative efficiency of the officers from among whom the _ appointment to the office is to be made or, in the event of an equality of efficiency, to their relative seniority. Sec. 50 provides that " Any officer

affected by any report or recommendation made or action taken — under this Act. . . may, in such manner and within such time as may be preseribed, appeal toa Board. . . . The Board shall hear such appeal and transmit the evidence taken together with a recommendation thereon to the Commissioner, who shall thereupon determine such appeal."