Opinion Number. 521

Subject

STATE OFFICERS TRANSFERRED TO COMMONWEALTH WHETHER CONSTITUTIONAL PROVISIONS APPLY TO STATE OFFICERS APPOINTED TO STATE SERVICE SINCE FEDERATION WHERE PART ONLY OF DEPARTMENT TRANSFERRED TO COMMONWEALTH

Key Legislation

CONSTITUTION, ss. 69.84

Date
Client
The Public Service Commissioner

The Public Service Commissioner asks for advice upon the question raised in the following memorandum:

Under the provisions of the Lighthouses Act 1911, power is conferred on the Commonwealth to enter into agreement with the States' Governments for the acquisition of lighthouses, etc. and it is proposed to exercise this power so far as ocean lights are con-cerned, allowing harbour lights to remain as heretofore within the jurisdiction of the States' Governments. No date has yet been fixed for the transfer of lighthouse services to the Commonwealth.

Section 69 of the Constitution Act provides for the transfer to the Commonwealth of certain departments, including that relating to lighthouses, lightships, beacons and buoys. It is not, however, contemplated that the State departments dealing with these matters shall be transferred to Federal control, for the reason that only a section of the lighthouse services is to be administered by the Commonwealth, hence the provisions of section 69 will not be operative.

Upon the ocean lighthouse services being taken over by the Commonwealth it will be-come necessary to take over the lighthouse keepers and other officers who are at present employed by the States in the maintenance of these services, and the question arises whether power exists to enable this to be done to the full extent considered desirable. Sec-tion 33 of the Public Service Act enables officers of the States' Governments to be appointed to the Commonwealth Service, provided such officers were employed by a State at the date of establishment of the Commonwealth; and, subject to the consent of the State Government being obtained, these officers may be considered as transferred officers so far as recognition of period of State service is concerned. It is found, however, that a number of lighthouse employees have joined the State services since 1901, and are therefore ineligible for appointment to the Commonwealth Service under section 33. It is true that power exists under section 34 to appoint these officers to the Commonwealth Service, provided they first resign from the State service, but the adoption of such a course would entail loss of service which counts for furlough, sick leave, etc. and would thus prejudice the interests of the officers concerned, and in addition there are other objections in regard to rates of pay, etc. The total number of employees in the States' lighthouse ser-vices whom it will probably be found necessary to take over is 232, and of this number 128 have entered the States' services since 1901.

It would appear that the provisions of section 84 of the Constitution are sufficiently wide to enable the portion of the lighthouse staffs which it is desired to bring under Fed-eral control to be transferred to the Commonwealth Service, as although the section specifically deals with the transfer of a Department of the Public Service of a State, this might be taken as conferring similar powers in relation to portion of a Department. If this view be correct, the difficulty as to transfer of State officers appointed since 1901 would disappear, and the whole of the officers whether appointed prior to or subsequent to that year, excepting those whom it is intended shall remain under State control, would become automatically transferred to the Commonwealth on the date fixed for taking over the lighthouse services.

The Public Service Commissioner would be glad to be favoured with the opinion of the Attorney-General as to whether sufficient power is given by section 84 of the Consti-tution Act to enable officers of the lighthouses staffs in the several States to be transferred to the Commonwealth Service.

In my opinion section 84 of the Constitution has no application to the case of such lighthouse officers as have been appointed since 1901. The first three paragraphs of that section apply only to the case of Departments transferred to the Commonwealth under section 69 of the Constitution, and the final paragraph only applies to officers who were in the service of the State on 1 January 1901.

[Vol. 11, p. 444]