Opinion Number. 1826



Key Legislation


The Secretary, Department of Air

The Secretary, Department of Air, has forwarded the following memorandum for advice:

The abovenamed ex-officer of the R.A.A.F. who held the position of Internal Auditor in the R.A.A.F. Area Finance Office, Adelaide, has appealed against the withholding of R.A.A.F. pay and allowances in respect of the period from 16–29th January, 1946.

2.  The detailed circumstances connected with this matter may be ascertained by perusal of the minutes and enclosures on this Department’s file 163/63/408 which is forwarded herewith for your information. A synopsis of these circumstances, however, is as follows:

(a)  On returning to his unit (the Area Finance Office, Adelaide) on 18.12.45 after a period of special duty in Sydney, the member was given a movement order to proceed to Perth in anticipation of demobilisation on 15.1.1946.

(b)  The issue of the movement order by A.P.O. Adelaide was made consequent on receipt of verbal advice from R.A.A.F. Head-quarters that arrangements had been made for the member’s demobilisation in Perth as from 15th January, 1946.

(c)  On arrival in Perth on 20.12.46 the member proceeded on ‘release to home’. He reported to the personnel depot for discharge action on 2.1.46 but, as his discharge authority had not been received he was ‘released to home’ for a further period. (When a member is released to his home during the demobilisation process, the period from date of release to date of recall is independent of any other types of leave credits which may be due and the member may engage in civil employment during this period).

(d)  The Area Finance Officer Adelaide had arranged for the member to proceed to Peth on the understanding that his discharge would be effected as from 15.1.46 (vide (a) and (b) above) and had anticipated receipt of a discharge and posting authority from R.A.A.F. Head-Quarters in support of such section. However, when this authority came to head on 12.1.46 the effective date of discharge was shown as 31.1.46. After discussion with R.A.A.F. Head-quarters, the Area Finance Officer Adelaide sent a telegram to the member instructing him to report to the Area Finance Office Perth for duty from 14.1.46.

(e)  The member who contemplated his discharge as being effective from 15.1.46 reported to the Area Finance Office Perth and intimated that a mistake must have been made.

(f)  The member did not, in fact, perform any duties in the Area Finance Office Perth but reported on 30.1.46 at 5 Personnel Depot for discharge. The member has been considered by his unit as having been on special leave without pay during the period from 16th to 29th January, 1946.

3.  The member acted in the belief that discharge would be effected on 15th January, 1946 and resumed his civilian occupation. ‘Release to home’ leave was also granted on the assumption that discharge would be effective as from 15th January, 1946. The member was in fact recalled by his unit to perform Air Force duty during the period from 16th to 29th January, 1946 but this duty was not performed. In these circumstances it is considered that the member has no moral or legal entitlement to pay and allowances in respect of the period from 16th to 29th January, 1946.

4.  The opinion has been expressed that alteration of the date of the member’s termination of appointment from 30th January, 1946 to 15th January, 1946 would be completely irregular. It has also been stated that in the absence of an application for leave without pay from the member, he cannot be granted leave without pay in respect of the period from 16th to 29th January, 1946. Even if this be so, however, it is considered that, in this particular case, the provisions of Section 137(1) of the Air Force Act and Air Force Regulation 552A(7) might well be invoked as legal authority for the withholding of pay and allowances in respect of the period in question.

5.  Your opinion as to whether this Department may legally withhold the member’s pay and allowances for the period involved would be appreciated. Your advice, from a legal point of view, might also please be given in respect of the following specific questions which have arisen in this and previous cases under varying circumstances.

(a)  It is possible to ante-date a member’s discharge without his consent? May this action be taken if his consent is obtained?

(b)  May a period of leave without pay be granted to

(i)  an officer and

(ii)  an airman; who, during the period in question, did not perform Air Force duties but who did not apply for such grant?

In my opinion, ex Flying Officer X. is not legally or morally entitled to pay and allowances in respect of the period from the 16th to the 29th January, 1946.

Part V of the Air Force Regulations contains certain provisions relating to leave of absence, most of which appear to be applicable only to members of the Permanent Air Force. So far as I am aware, those Regulations contain no specific provision as to leave of absence relevant to the matter under consideration. As I understand the position, leave of absence was granted to members of the Special Force in accordance with Orders issued by the Air Board in pursuance of the power conferred upon the Board, by regulation 26 of the Air Force Regulations, to control and administer the Air Force, subject to the Regulations and to the policy laid down by the Minister.

It appears that the period of ‘release to home’ leave which was granted to Mr. X. in anticipation of his demobilization on the 18th January, 1946, was the full period of leave of that nature for which he was eligible under the relevant Air Board Order and that Air Board Orders contain no authority for the granting of any additional leave with pay in respect of the period from the 16th to the 29th January, 1946, for which he was not on duty.

In the view I take, Mr. X.’s absence from duty from the 15th to the 29th January, 1946, could not properly be dealt with as ‘absence without leave’ within the meaning of sections 15 and 137(1) of the Air Force Act and regulation 552A(7) of the Air Force Regulations. He was given permission by a responsible officer of the Area Finance Office, Perth, to remain off duty, subject to recall, during that period. In the circumstances of the case I think that Mr. X. must be regarded as justified in acting in accordance with that instruction. He believed that a mistake had occurred, official enquiries into the matter were being made, and I do not think he was under an obligation to enquire into the competency of the officer to give the instruction.

In my view, however, there is no legal objection to the action taken by Southern Headquarters in covering the period in question by the grant to Mr. X. of special leave without pay. Air Board Order A.188, paragraphs 51 and 63, provides that special leave without pay may be granted to officers for a period not exceeding 30 days in any leave year. The Order does not contain any provision requiring the lodging of a formal application by the officer concerned as a pre-requisite to the leave being granted. No doubt it is contrary to normal practice to grant such leave without formal application, but, in a case such as that of Mr. X., where all leave with pay to which he is entitled has been exhausted and a further period of absence from duty is authorised, it appears to me that that period of absence can be covered only by leave without pay.