Opinion Number. 1336

Subject

COMMONWEALTH PUBLIC SERVICE power to make regulations prescribing retiring allowances to female COMMONWEALTH PUBLIC SERVICE officers on marriage

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1922 ss 49, 97

Date
Client
The Secretary, Prime Minister

The Secretary, Prime Minister’s Department, has forwarded me the following memorandum for advice:

The Board is in receipt of a communication from the Acting Secretary to the Prime Minister’s Department, advising that the Cabinet on 20th August considered the question of retirement allowance to female officers on marriage (including the Chairman’s memorandum of 3rd August to the Attorney-General) and a minute was recorded that–

Cabinet is of opinion that the previous allowance to female employees resigning on the ground of marriage should be continued.

The Board has again carefully considered the matter and, with every respect to the opinion of the Cabinet, is unable to suggest any means by which, while present statutory conditions operate, its wishes could be met. The Public Service Act does not contain in itself authority for the making of the payments involved, nor does it appear to the Board that section 97 of the Act under which the Board may make Regulations contains any provision which would warrant the making of a Regulation for the purpose in question. While regretting that it must still adhere to its views previously expressed as to the merits of this matter, the Board would suggest that, if the payments are to be made, legislation be passed for the purpose with, if so desired, retrospective effect.

In my opinion the same means are available under the new Act to give effect to the wishes of Cabinet as were adopted under the repealed Act. It is true that the latter Act contained express provision authorizing the making of regulations prescribing ‘the terms upon which the service of female officers may be dispensed with upon their marriage’ and that this provision is not repeated in the existing Act. To the paragraph authorizing the making of the regulations there is a proviso the effect of which is that the regulations so made shall not permit the employment of any married woman except upon a certificate of the Commissioner. The repealed Act contains no direct prohibition of the employment of married women but merely a provision empowering the Governor-General to make regulations specifying the terms upon which female officers who marry may be retired with a limitation that those regulations should not permit the employment of married women.

The regulation made under the power above referred to apparently exceeded that power. It not only prescribed the terms of retirement but declared the offices of female officers forfeited upon their marriage.

In the present Act the position is different. The Act contains a substantive provision (s. 49) to the effect that married women shall be ineligible for employment and that female officers who marry shall be deemed to have retired. There is no specific regulation power to prescribe the terms of such retirement. Such a power is however in my opinion included in the opening words of section 97. The grant of allowances upon marriage to officers covered by section 49 is a matter ‘not inconsistent with the Act which is necessary or convenient to be prescribed for carrying out or giving effect to the Act’.

[Vol. 20, p. 200]