With reference to the opinion given by me on 13 December 1922⁽¹⁾ the President of the Superannuation Fund Management Board has asked for advice upon the further question raised in the following memorandum:

With reference to the accompanying opinion regarding the question as to the conditions under which Mr A.B.C, Deputy Postmaster-General, Sydney, may become a contributor under the Superannuation Act 1922, the possibility arises that Mr C. may be able to contribute for more than 16 units of pension. For example, assuming that Mr C.'s gratuity is worth 6 units, he may, under section 52 of the Act, contribute for an additional 10 units, making 16 units in all. But he may also, under section 58 of the Act, obtain a pension which is the equivalent of the actuarial value of his superannuation contributions.

It seems clearly the intention of the Act that no employee shall receive more than 16 units of pension notwithstanding that he may be paying for an equivalent in respect of a part of pension.

Assuming that the Superannuation Board considered that it was not desirable to exchange rights of gratuity and refund where it is clear that such exchange would involve a grant of pension in excess of 16 units, has the Board the power to refuse an application for such exchange made in conformity with the provisions of section 58 of the Superannuation Act

Section 58 of the Superannuation Act 1922 is as follows:

58 (1) Any employee who, under any other Act or State Act, has a vested or contingent right to a refund of contributions with or without interest, or a gratuity, or both refund and gratuity, may, at any time within twelve months after the commencement of this Act, apply to the Board to transfer his right to the Board, and upon such transfer he shall be entitled to receive, in respect of his transferred right, a grant by the Board of such rights or pension under this Act for himself, his widow, and children, as is agreed upon between himself and the Board, subject to the actuary of the Board certifying that the new rights are the actuarial equivalent of the transferred right.

(2) Payment shall be made to the Board from the Consolidated Revenue Fund of such sums as would but for this section have been payable to the employee in respect of the right transferred by him to the Board.

The section says an employee may apply to the Board to transfer his right to the Board and upon such transfer he shall be entitled to receive equivalent rights.

I do not think the section can be read as conferring on the Board a discretion to grant or refuse an application. The section is silent as to what the Board may do upon an application being made, but provides as to what shall happen on the transfer, implying that right of the officer to apply is the right to make an effective application, that is an application which the Board must accept, assuming of course that the application is one of the class provided for in the section.

In the present case, therefore, I think that the Board has not the power to refuse an application made in conformity with section 58 of the Act.

[Vol. 19, p. 219]

(1) Opinion [Vol. 19, p. 174] not published