The Acting Secretary to the Public Service Commissioner has forwarded for opinion the following memorandum:

Section 64 of the Public Service Act provides that:

If an officer occupies for the purpose of residence the whole or part of a building belonging to or occupied by the Commonwealth, the Governor-General may direct that a fair and reasonable sum as rent therefor be deducted from such officer's salary, and the amount of such sum not exceeding ten per centum on the salary of such officer shall be fixed by the Governor-General on the recommendation of the Commissioner . . .

Certain officers have for some time past occupied for the purpose of residence houses erected by the Commonwealth at Canberra, and a deduction has been made from their salaries therefor at the rate of ten per cent per annum. The Acting Minister for Home and Territories has directed that from 1 January 1922 the rent of such houses shall be increased to amounts exceeding ten per cent of the officers' salaries.

The officers concerned are attached to the Department of Works and Railways, and have requested that the increased rent be not charged. The Permanent Head has forwarded the request to the Acting Commissioner for consideration, stating that it has always been the practice of that Department to charge the officers on a ten per cent basis, and, although no definite undertaking was given to the officers concerned, they fully expected that rate to apply to the cottages they occupied.

I forward herewith copy of an opinion on the subject given by the Crown Solicitor, dated 4.10.21. Attention is invited to the view expressed that section 64 of the Public Service Act would not operate to prevent the Commonwealth as a landlord from letting to an officer as a tenant any property owned by the Commonwealth at such rent as might be agreed upon between the parties.

If this opinion is to be accepted as a correct interpretation of the law, it would appear that the question as to rental charge, where an officer is occupying a building belonging to the Commonwealth solely as a tenant, is not one that comes within the province of the Public Service Commissioner, but is a matter for agreement between the Minister administering the Department who controls the building and the officer occupying it.

The opinion was sought without reference to the Acting Commissioner, who was thus not given an opportunity to set forth his views in the matter.

In this connection reference is invited to the statement in the Crown Solicitor's opinion that 'in cases where properties were so let, the occupation of the property would be the occupation of the tenant, and not that of the Commonwealth'.

Section 64 of the Public Service Act, however, is not limited to cases of occupancy of a building by the Commonwealth; it provided that 'If an officer occupies for the purpose of residence the whole or part of a building belonging to . . . the Commonwealth' a fair and reasonable rent not exceeding ten per cent of the officer's salary may be charged.

The officers in question are occupying for purposes of residence buildings belonging to the Commonwealth, and while they are permitted to occupy the buildings the Act appears to preclude a charge exceeding ten per cent of salary.

Attention is also invited to the advising of the Crown Solicitor that no amendment of the Public Service Act is required in order to allow of the Commonwealth charging a greater rental than ten per cent of an officer's salary. This apparently conflicts with the view of the Parliamentary Draftsman as expressed in the Public Service Bill now before Parliament, in clause 96 of which provision is proposed that where a building has been acquired or erected by the Commonwealth solely for the purpose of residence of the officer without an incidental obligation of supervision or general control by the officer over personnel or property, the officer occupying such premises shall pay such rent and be subject to such conditions of occupancy as are determined by the Minister in charge of the Department controlling the premises.

It would therefore appear that there has been doubt as to whether the present law gives power to make the charges contemplated by the Acting Minister for Home and Territories, and that there is a difference of opinion between the Parliamentary Draftsman and the Crown Solicitor as to the necessity for amendment of the law.

In the circumstances stated, the Acting Commissioner would be glad to be favoured with the opinion of the Attorney-General in the matter.

Section 64 of the Commonwealth Public Service Act 1902-1918 is, I think, conclusive as regards the sum which may be deducted from an officer's salary as rent for a building, belonging to the Commonwealth, occupied by the officer for the purpose of residence. The section does not, however, in my opinion, prevent the Commonwealth leasing a building to an officer on such terms as are mutually agreed upon.

The Commonwealth and the officer would then stand in the ordinary relation of landlord and tenant and the Commonwealth would have power, in my opinion, to charge such rent as it thinks fit, and as the officer is agreeable to pay. The fact that the officer may practically have no alternative to renting the building does not, I think, affect the position.

In so far, therefore, as the Crown Solicitor's opinion of 4 October 1921 means no more than is expressed above-and I think it does not-I am of opinion that the Crown Solicitor has correctly interpreted the law in this matter.

[Vol. 19, p. 14]