Opinion Number. 473

Subject

PUBLIC SERVANT WHETHER COMMONWEALTH LIABLE TO GRANT FURLOUGH : CRITERIA FOR EXERCISE OF DISCRETION

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1902-1911, s. 71

Date
Client
The Prime Minister

Mr A.B., lately a clerk in the Telegraph Branch of the G.P.O. Sydney, retired after twenty-nine years' service. It is stated that he has a clean record. On retirement he was allowed one month's furlough.

Mr Webster, M.H.R. has written to the Prime Minister bringing the case under his notice and contends that every officer, subject to-the disqualifications contained in the Act, is entitled to receive six months' salary when he retires after twenty years of good service.

The following is a minute by the Public Service Commissioner in regard to the matter:

Officers have no legal right to furlough or payment of salary in lieu. The granting of a privilege of this nature is purely permissive, and, as Mr B. was not retired from the Service on the ground of infirmity or through having reached the statutory retiring age, but in effect resigned his position to take up employment outside the Service and was formally retired merely that he might receive a refund of his contributions to the New South Wales Superannuation Fund, it is not considered that any claim to six months' pay in lieu of fur-lough as provided in section 71 of the Commonwealth Public Service Act should be recognised.

The papers have, by direction of the Prime Minister, been forwarded to me for advice.

Section 71 of the Commonwealth Public Service Act inter alia provides that where an officer, not having been granted furlough, retires from the Public Service after at least twenty years' service, the Governor-General, on the recommendation of the Com-missioner, may grant him six months' pay upon retirement. It also provides that, where an officer has been reduced in position or salary through misconduct, such misconduct shall in the event of the retirement of the officer be taken into consideration in deter-mining whether the payment may be made.

Section 71 is permissive in form, but in my opinion Parliament intended that officers whose cases come within the provisions of the section should have the benefit of it, unless their rights have become forfeited by misconduct.

The section does not provide that an officer's reasons for retiring are to be taken into consideration in determining whether or not he is to have the benefit of the section. Nor is the benefit of the section limited to retirement on account of age or infirmity or to retirement in any particular manner.

The section does, I think, confer a right on an officer to have his case considered under it. This right may not be a right enforceable by law, but it should, none the less, be recognised by the Crown.

I am of opinion therefore that the Commissioner's minute is founded on A misap-prehension of the proper construction of the section.

As Mr B. retired after more than twenty years' service, and had not been granted furlough, and had not been reduced for misconduct, I think his case is a proper case for reconsideration.

It is unnecessary for me to advise, as Mr Webster contends, that an officer is, sub-ject to the disqualifications mentioned in the Act, entitled to receive six months' salary on retirement after twenty years' good service, but I desire to say that very strong reasons would be necessary to justify the Crown in withholding a grant under those circumstances.

[Vol. 10, p. 398]

* See also Opinion No. 484.