Opinion Number. 1533

Subject

Appropriations Appropriations: treatment of salaries and allowances: consideration by parliament of appropriation for purposes already covered by special appropriation: whether repeal of special appropriation: effect of reduction of salaries in financial emergency

Key Legislation

Financial Emergency Act 1931

Date
Client
The Secretary, Department of the Treasury

The Secretary to the Treasury has forwarded the following memorandum for advice:

  • In connection with the Estimates of Expenditure for 1933–1934, consideration is being given to a proposal to include in the votes for the respective Departments, the amounts shown for ‘Salaries and Allowances’ under the heading of ‘Special Appropriations’ vide page XIV of the Estimates for 1932–1933.
  1. For instance, the salary of the Auditor-General now appearing under the heading of ‘Special Appropriations’, would appear as the first item of Salaries under Audit Office (Prime Minister’s Department). It is proposed to insert either against the items concerned or as footnotes, references to the Acts authorising the Special Appropriations in respect of the items referred to.
  2. The main reason for this proposal is that the Salary votes of the various Departments or Branches of Departments do not show the full cost of Salaries. Moreover, a consistent procedure is not followed at present. For example, in some cases the salary of the principal officer of the Department or Branch is shown in the Salary vote; in other cases the salary of the corresponding officer is shown under the heading of Special Appropriations.
  3. The question arises, however, as to whether there would be any legal objection to this procedure. Unless a deduction is made from the total of the Appropriation, it will involve including in the annual Appropriation amounts which have already been appropriated in special acts.
  4. It is understood that it is the practice in South Australia to include in the Annual Appropriations amounts which are already covered by Special Appropriations.
  5. The procedure has much to commend it and, if practicable, it is proposed to adopt it, but before doing so, I would be glad to have your opinion as to the legal aspect of the question.

In certain Acts of Parliament, appropriations of money are made for specific continuing purposes.

In the cases under notice the appropriations are for the salaries of certain officers or employees of the Commonwealth.

It is now proposed that these appropriations shall be repeated in the annual Appropriation Act passed by Parliament.

The proposed action involves inviting Parliament to consider and either agree to, or refuse, an appropriation of money for purposes already covered by special appropriations.

Certain special appropriations are for salaries which the Constitution requires shall not be altered during the continuance in office of the persons entitled to receive the salaries (e.g. the Governor-General, Judges of Federal Courts). Any purported reduction of such salaries would be non-effective.

The salaries of the holders of certain statutory offices are fixed by the Acts by which those offices are created. Those salaries have been reduced by the Financial Emergency Act, and if the salaries are re-stated at their nominal amount in the Appropriation Act the result would be to remove the operation of the Financial Emergency Act in respect of those salaries unless suitable foot notes are inserted in the Appropriation Act.

The making of a provision by Parliament for the payment to certain officers of specified amounts of salary operating for a period of one year may possibly be held to repeal the permanent appropriations contained in special Acts.

It is suggested that the proposal might be achieved in one of two ways:

  1. the designation of the officer for payment of whose salary special appropriation is made might be shown in its appropriate place in the Estimates under the Department to which the officer belongs, and the amount of his salary omitted from the space opposite the designation. The amount of salary, together with references to the reduction under the Financial Emergency Act and to the Act by which the special appropriation is made could then be shown in a foot note; or
  2. the designation and salary might be shown in their appropriate places in the main text, but in such case a foot note, referable to the amount of salary, might be printed and might be to the following effect:
  3. This amount is fixed and appropriated by (here insert title of Act containing the special appropriation) and is subject to reduction under the Financial Emergency Act to the extent of £ ...

A note to this effect would make it clear that, notwithstanding the inclusion of the amount in the Estimates, the Parliament was not being invited to review the special appropriation. If this second course were adopted, it would appear that from the total expenditure of the Department there should be deducted the amounts provided for in special appropriations.(1)

[Vol. 26, p. 179]

(1) See though Opinion No. 1538, which qualifies this opinion.