The Secretary to the Public Service Commissioner has submitted the following memorandum to me for advice:

With reference to the attached copies of correspondence regarding the case of F.L. Le Leu, Cashier, Department of Trade and Customs, South Australia, I am directed to request that the Acting Commissioner may be favoured with advice as to whether it is competent for the Governor-General to direct that an officer should take furlough in the absence of an application for furlough by the officer. In this connection attention is invited to the fact that the only leave for which an application appears to be required by the Public Service Act is leave grantable under section 70 without pay and not to count as service. Sections 68, 69, 70A and 71, which authorise the granting of other forms of leave, do not appear to require that leave shall be dependent upon a request from an officer, and it is assumed that such leave may be approved and an officer directed to absent himself from duty under such approval even though an application for such leave has not been made by him. It may be mentioned that in the larger Departments recreation leave under section 68 of the Public Service Act is not granted subject to application, but is arranged by roster, and officers are required to take their recreation leave at the time determined in the roster.

As regards the claim of Mr Le Leu that furlough upon retirement is due to him as a State right, as decided by the High Court, the Acting Commissioner would be glad to be advised whether the judgment of the High Court in Commonwealth ats. Le Leu⁽¹⁾ can be accepted as being confined to the question of age of retirement and whether no other transferred right is covered by the judgment.

Section 71 confers upon the Governor-General the power of granting furlough to an officer. As a matter of Public Service discipline, I think it is competent for the Governor-General to require an officer to take the benefit of the section whether the officer desires to do so or not.

In the case in question, Mr Le Leu evidently desires to retain his furlough rights until his ultimate retirement. It must be borne in mind, however, that the section does not confer a right upon the officer and in any case his application for furlough upon retirement may be refused.

The decision in the case of the Commonwealth ats. Le Leu was confined to the question of the rights of Le Leu so far as tenure was concerned. It is not an authority for the assertion that the plaintiff has a right to furlough under State law. The sections of the Acts of South Australia which deal with 'furlough' and gratuities on retirement or death are either enabling, or conditional upon the consent of the Governor.

I am, therefore, of opinion that Mr Le Leu cannot establish an undeniable right under State law to receive furlough or pay in lieu thereof.

[Vol. 18, p. 59]

(1)Le Leu v. the Commonwealth 29 C.L.R. 305.