The Secretary to the Treasury has forwarded me the following minute for advice:

Mr A.B. Inspector 2nd Class, Customs Department, New South Wales, was retired from the service without gratuity as from 22 July 1920, and was granted a refund of his contributions to the New South Wales Civil Service Superannuation Fund with interest thereon amounting in all to £50.6.10.

1. Mr B. was granted two months' leave of absence which terminated on the date of his retirement. During this period he proceeded to England where he was employed in a temporary capacity by the Department of Trade and Customs in connection with investigation work as from 24 July 1920, and he has been continuously employed there since that date.
2. Upon representations by the Customs Department the Public Service Commissioner has concurred in Mr B.'s reappointment to the service; and, in order that there shall be no break in Mr B.'s service, he has been granted leave of absence for 23 July 1920 under Public Service Regulation 85.
3. The papers have been forwarded to this office with a view to an Order in Council being obtained cancelling the approval given to Mr B.'s retirement from the service.
4. The Public Service Commissioner stipulates that Mr B. should be required to refund the amount of superannuation contributions paid to him on retirement.
5. The recommendations of the Public Service Commissioner will of course be acted upon; but the question that arises is, what will be the effect of the cancellation of the retirement? Will Mr B. be restored to his old status notwithstanding that he was retired without gratuity?
6. Had Mr B. remained in the service until he reached the age for retirement, or until he retired on the grounds of ill-health, he would have been entitled, under section 62 of the New South Wales Act 1895 and section 84 of the Constitution, to a gratuity of one month's pay for each year of service (a fortnight's pay in respect of temporary service) and a refund of his superannuation contributions. His action in requesting permission to be retired without gratuity enabled him to receive a refund of his superannuation contributions and interest, but he lost his right to the gratuity.
7. If the action taken by the Governor-General in Council of retiring Mr B. without gratuity and approving of refund of superannuation contributions and interest can be annulled, and Mr B. restored to the position in which he was prior to his retirement, it would seem that his right to a gratuity can be also restored.
8. The question also arises as to whether it is necessary that Mr B. refund the amount of superannuation contributions. So far as can be gathered from printed opinions of the New South Wales law authorities, it would seem that officers who received their refunds of contributions when retired in 1896, were not expected to refund the amounts when they were reappointed to the service some months later; but in those cases possibly a refund of contributions may have restored a right to pension which the officers had when they were retrenched. If repayment is made by Mr B., the amount will have to be reinvested, and Mr B. will become entitled on retirement later on to an increased payment.
9. In order that the exact position may be ascertained, I suggest that the papers be referred to the Attorney-General's Department for an expression of opinion-
1. as to whether, in view of the fact that the Governor-General has retired Mr B. without gratuity and has authorised payment of superannuation contributions and interest, the Governor-General has power to annul the whole of the proceedings for good and sufficient reasons;
2. assuming that the answer to (a) is in the affirmative, will the effect of such annulment be to replace Mr B. in his old status including the restoration of his right on retirement to a gratuity under section 84 of the Constitution and the New South Wales Public Service Act 1895; and
3. should he be required to refund the amount of superannuation contributions and interest which has been paid to him.
10. In this connection the case of Mr C.D.E.F., Postmaster-General's Department, Victoria, might be mentioned. While Mr F. was an officer of the Victorian service he was retired on the grounds of permanent mental infirmity on the certificate of the Government Medical Officer. Mr F. unexpectedly recovered, and as it was considered that he should not suffer as the result of what turned out to be a mistake on the part of the medical officer, the action taken in respect of his retirement and grant of pension was cancelled and he was restored to exactly the same status that he occupied prior to his retirement, notwithstanding that for several months a pension had been paid. This matter was of course adjusted later on.

In my opinion the Governor-General has power with the concurrence of the officer concerned to cancel the Order in Council effecting the officer's retirement, but I do not think that such cancellation can have effect to revive the officer's rights, as a transferred officer, against a State Government unless the State Government has also concurred in the proposed reinstatement.

There is no indication in the file that the concurrence of the Government of New South Wales was obtained in this instance.

The superannuation contributions were, it is assumed, those required under the New South Wales Act of 1895 in respect of the benefit that Act provides.

As it now appears that Mr B. cannot, upon his reinstatement in the Commonwealth service, claim also reinstatement in his rights under the State Act, he should not, in my opinion, be required to refund his contributions.

[Vol. 18, p. 383]