Opinion Number. 1091



The President of the Senate

The President of the Senate:

The President of the Senate has forwarded me the following memorandum for advice:

On 20 May last the Treasury Department forwarded to this Department copy of a circular relating to new furlough conditions, copy of which is on the file forwarded herewith.

Mr C. Gavan Duffy, who retired from the position of Clerk of the Senate in August of 1920, was on retirement granted an amount equal to six months' full pay. Under the new 'conditions' it appears he would, presuming he had not already had 'leave granted under Commonwealth and State exclusive of recreation and sick leave', be entitled to an extra amount equal to six months' full pay in lieu of furlough.

The file discloses that Mr Duffy was appointed to the staff of the Legislative Assembly of Victoria on 11 July 1868; he was transferred to the Commonwealth Parliamentary service in 1901, and continued in such service until 27 August 1920, without any break of service. His service, therefore, extended over a period in excess of forty years.

On inquiry from the State Parliamentary authorities as to whether Mr Duffy had been granted furlough during his service with the State a reply was received to the effect set out in the letter from the Clerk of Parliaments, Victoria, dated 25 May 1921. Mr Duffy deferred to the statement that the leave referred to in such letter was 'furlough', and claims that such leave was virtually sick leave, granted by the then Speaker of the Legislative Assembly of Victoria (vide his letter of 13 June 1921).

A further letter was then addressed to the Clerk of the Parliaments, Victoria, on the point-copy of such letter and the Clerk's reply of 15 June may be seen on the file.

It appears to me that before making any recommendation on the matter of a further grant in lieu of furlough to Mr Duffy, I must be satisfied as to whether in point of law the leave granted to him in 1892 was 'leave . . . exclusive of recreation and sick leave', or not.

I would be pleased, therefore, if you will favour me as early as possible with your opinion on such point. Would you also kindly return the file when doing so.

Although there is no statutory authority for the grant of pay in lieu of furlough for a period in excess of six months such payment has been authorised under a direction from the Public Service Commissioner, which stipulates, inter alia, that 'not more than twelve months' furlough or its equivalent' shall be granted during an officer's career.

The Clerk of the Parliaments (Victoria) states that Mr Duffy was granted six months' furlough in 1892, during his service with the State. Such grant of furlough would reduce Mr Duffy's right to receive pay in lieu of furlough upon retirement from the Commonwealth service to pay in respect of a period of six months. Such pay he has already been granted.

Mr Duffy now submits that the leave granted in 1892 was not 'furlough'. His application was 'for six months leave of absence on full pay for the purpose of visiting Europe'. He supported his application by the statement that he had completed approximately twenty years' service and that he desired the leave for health and family reasons.

Leave was granted by the Speaker on the recommendation of the Clerk of the Legislative Assembly. The recommendation contains no indication that the leave was required for health reasons but stresses the fact that Mr Duffy had completed nearly twenty years' service, which would in other branches of the service have entitled him to the leave he sought.

The fact that the leave was granted by the Speaker and not by the Governor in Council does not in my opinion affect the question.

I am of opinion that the leave granted to Mr Duffy in 1892 was in the nature of furlough and as such disqualifies him from receiving pay in lieu of furlough on retirement for a further period of six months.

[Vol. 17, p. 396]