Opinion Number. 470

Subject

SEAT 0F GOVERNMENT WHETHER OFFICERS MAY BE APPOINTED UNDER ORDINANCE TO COMMONWEALTH PUBLIC SERVICE : WHETHER OFFICERS APPOINTED UNDER ORDINANCE FOR LOCAL GOVERNMENT OF TERRITORY MAY ADMINISTER ACTS

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1902-1911, ss. 2. 3, 15, 16 : SEAT OF GOVERNMENT (ADMINISTRATION) ACT 1910. s. 12 : NORTHERN TERRITORY (ADMINISTRATION) ACT 1910, s.4

Date
Client
The Minister for Home Affairs

The following memorandum has been referred to me by direction of the Minister for Home Affairs for advice:

With the object of giving effect to your instructions for the establishment of the Seat of Government at Canberra in the most efficient, expeditious and economical manner, I de-sire to submit that with the exception of those positions for which provision has been made in the Estimates of Expenditure for the current year, all appointments- professional, clerical and general-in connection with the Federal Capital may be exempted from the provisions of the Public Service Act.

My reason for recommending this course is that from time to time it will be necessary to secure without delay the services of highly trained and experienced men, and to dispense with them as the occasion arises. This procedure would be difficult-if not impossible-under the Public Service Act. There can be no guarantee that the work will proceed without interruption, but even so it would be most embarrassing to dispose of a large staff of permanent officers upon the completion of sections of the work. It may so happen that some of them may be provided for under the City Management, but in my opinion it would be unsound to even consider this contingency at the present moment. I should be placed in such a position as would enable me at any time to secure the services of any specially qualified man, and similarly to dispense with services. It is impossible to forecast with any degree of certainty what the staff will consist of; this may only be de-cided as the circumstances arise, and then the appointments must be made. On the other hand it is equally essential that I may have authority to terminate the services of any officer for good and sufficient reason or on the completion of the section of the work upon which he may be engaged or upon the temporary cessation of such work.

With reference to the clerical section, I would point out that the ordinary clerical officer will be of comparatively little use to me. Men will be required who by education and experience under similar conditions already possess the knowledge and zeal which will enable them to discharge intelligently the duty entrusted to them; there will be no time to educate men on the work.

I could elaborate the reasons for my recommendation, but do not consider such necessary, as obviously the work is of a most exceptional character demanding excep-tional treatment.

I therefore will be glad to have the authority of the Minister to ask the Attorney-General for his opinion as to whether an Ordinance may be issued somewhat in the fol-lowing terms:

'The Governor-General may appoint or may delegate to the Minister or the Admin-istrator power to appoint such officers as are necessary for the administration of the Seat of Government Acceptance Act 1909; the Seat of Government (Administration) Act 1910; or for the proper government of the Federal Capital Territory.'

The power to make Ordinances with respect to the Territory for the Seat of Government is contained in section 12 of the Seat of Government (Administration) Act 1910 and is as follows:

12.-(1.) Until the Parliament makes other provision for the government of the

Territory, the Governor-General may make Ordinances having the force of law in the Territory.

(2.) Every such Ordinance shall-

  1. be notified in the Gazette;
  2. take effect from the date of notification, or from a later date to be specified in the Ordinance;
  3. be laid before both Houses of the Parliament within thirty days of the making thereof, or, if the Parliament is not then sitting, within thirty days after the next meeting of the Parliament.

(3.) If either House of the Parliament passes a resolution, of which notice has been given at any time within fifteen sitting days after any such Ordinance has been laid before the House, disallowing the Ordinance, the Ordinance shall thereupon cease to have effect.

There is no general separate administration provided for by Commonwealth law in regard to the Territory, nor is there in any such law any special provision for the appointment of officers for the government of the Territory.

The case is different as regards the Northern Territory, as the Northern Territory (Administration) Act 1910 by section 4(3) makes special provision for the appoint-ment of officers for the government of the Territory.

The power to make Ordinances before set out is a very wide one; but the scope of the suggested Ordinance appears to go beyond it.

Whilst I think that the Act gives power to appoint officers purely for the local government of the Territory, I have much doubt whether it extends to authorise appointments for the administration of the Seat of Government Acts or for the whole of the operations in connection with the establishment of the Seat of Government which are being carried out by the Commonwealth Government out of Commonwealth revenue, and not by the local authorities of the Territory.

On the whole I am of opinion that the Parliament in passing the Seat of Govern-ment (Administration) Act 1910 did not contemplate the passing under it of an Ordi-nance of the nature suggested in the memorandum.

If it is desired to obtain the powers suggested in the Ordinance, I think that the proper way to obtain them would be to introduce a Bill into the Parliament for the purpose.

[Vol. 10, p. 365]