Opinion Number. 194

Subject

COMMONWEALTH OFFICER WHETHER APPROPRIATION OF SALARY CONFERS LEGAL RIGHT TO RECEIVE AMOUNT APPROPRIATED

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1902, ss. 17, 18, 19, 20

Date
Client
The Treasurer

The Treasurer asks for my opinion on the following case:

Does a Parliamentary Vote confer a right on an officer (not in the Administrative Division) to receive the salary voted?

For instance, it is proposed to insert in the Estimates of Expenditure for 1904-5, under 'Post and Telegraph Department, New South Wales'-

One First Class Accountant 1904-5 1903-4
  £650 £550

The officer's salary is now £550. His salary appears in the classification recommended by the Public Service Commissioner at £650.

Would the voting by Parliament of £650 confer any right on the officer to receive more than £550 if the classification were not approved by the Governor-General in Council?

In connection with this subject, attention is drawn to a remark made by Chief Justice Griffith in D'Emden v. Pedder, viz: 'An Appropriation Act does not fix an officer's salary. It merely places a certain sum at the disposal of the Crown for paying a salary. It confers no right on the officer'.

In the case of D'Emden v. Pedder 1 C.L.R. 91, it was argued that the Tasmanian Stamp Act, if construed as applying in terms to receipts given by Commonwealth officers for their salaries, would be inconsistent with the Federal Appropriation Act, by which it was said the officer's salary was fixed. In delivering the judgment of the Court Chief Justice Griffith, referring to this contention, said:

With regard to the last contention it is sufficient to point out that it is not the Appropriation Act which actually fixes the salaries of public officers. They are not mentioned in the Act. Its operation is rather to authorise the payment, for salaries and other purposes, of sums not exceeding those specified in the Schedules to the Act, which include in a lump sum the total anticipated expenditure under the several divisions and sub-divisions. The salaries which it is proposed to pay are specified in the Estimates and voted in Committee of Supply.

The above remarks, although not strictly accurate as regards the details of a Commonwealth Appropriation Act, can be accepted as an authority for saying that the operation of an Appropriation Act is to authorise the payment for salaries and other purposes of sums not exceeding those specified in the Act. The true function of an Appropriation Act is to appropriate moneys, granted by Parliament to the Crown, to the purposes specified in the Act.

The salaries of officers are determined by the Commonwealth Public Service Act 1902, and their rights in relation thereto are to be gathered from that Act (see sections 17,18,19 and 20).

I am of opinion that a Parliamentary vote confers no right on an officer (not in the Administrative Division) to receive the salary voted.

I am also of opinion, as to the specific case mentioned, that the voting by Parliament of £650 will not confer on the officer any legal right to receive more than his present rate of salary.

[Vol. 4, p. 349]