The Secretary to the Treasury has returned my opinion of 1 July 1914⁽¹⁾ upon the above subject, and has asked for further advice, in the following minute:

Attention is invited to that part of the Secretary's opinion dated 1 July 1914 hereunder, reading:

I see no reason, however, why the Order in Council should not in any particular case be expressed to take effect from a date prior to the date upon which it is passed, and notwithstanding that the officer may have died prior to the date of the Order in Council.

Will the Secretary please state whether this is intended to govern a case of an officer called upon to retire. Also, does this opinion overrule the New South Wales practice in the case of officers retired on the ground of ill-health, but who die before the completion of the action enabling payment of a gratuity to be made, viz. that the representatives of the deceased officer have no legal claim for a gratuity (vide Attorney-General Deakin's opinion dated 21 June 1902⁽²⁾, upon the retirement of Commonwealth officers).

In this connection, the Crown Solicitor's opinion, dated 8 October 1908-case of Miss A.B.C., a telephone attendant, Western Australia, and D.'s case of 29 April 1912-that an officer called upon to retire cannot be so retired until the Order in Council is approved and the officer duly notified, or the retirement published in the Gazette, might be mentioned.

I shall be glad if the Secretary will be so good as to cause this office to be furnished with further advice as to the effect of his ruling in the light of the opinions above quoted.

As regards the first question-whether that part of my opinion wherein I stated that I saw no reason why the Order in Council should not in an appropriate case be expressed to take effect from a date prior to the date upon which it is passed, and notwithstanding that the officer may have died prior to the date of the Order in Council, is intended to govern the case of an officer called on by the Governor-General to retire-I desire to point out that the part in question is not intended to cover such a case. A reference to the first question propounded by the Secretary to the Treasury in his minute dated 13 March last-with which I was dealing in the part of my opinion above referred to-will, I think, make it clear that that part related only to voluntary retirements of officers who had attained the age of sixty years. The first question so propounded by the Secretary was-'Should an officer who applies to be retired under section 73 of the Commonwealth Public Service Act but who dies before an Order in Council retiring him has been passed, be considered to have retired?'

As regards the second question now raised-i.e. whether my opinion is to be taken as overruling the New South Wales practice in the case of officers retired on the ground of ill-health, but who die before the completion of the action enabling payment of a gratuity to be made-I desire to state that the opinion should not be taken as overruling that practice. That practice is based on the wording of section 56 of the New South Wales Public Service Act of 1895, which reads as follows:

56. If any officer in the Public Service be at any time found to be unfit to discharge or incapable of discharging the duties of his office, and such unfitness or incapacity, appears likely to be of a permanent character, and has not arisen from actual misconduct on the part of such officer, or from causes within his own control, the Governor may, on the recommendation of the Board, cause the retirement of such officer, and may direct that compensation be granted to him in terms of section sixty hereof.

The practice is to the effect that if the Governor has not exercised his discretion and given a direction under that section before the death of the officer, he cannot do so after his death.

The retirement of officers who have attained the age of sixty years is however not dealt with by section 56 of the New South Wales Act but by section 68.

As regards the latter section, I have, in my opinion of 1 July last, intimated that I regard the approval of the Governor-General as necessary to complete a retirement under that section, and to that extent I disagree with the opinion given by the Crown Solicitor of New South Wales in the case of E.F., Master, Dredge Service (printed opinions Vol. 2, p.288).

I am of opinion, however, that notwithstanding the death, before the making of an Order in Council, of an officer who has attained the age of sixty years, and who has intimated his desire to be retired, the Order in Council may be passed to take effect from a date prior to the date on which it is made. Until the Order in Council is so made, however, no gratuity is payable.

[Vol.13, p. 263]

(1)Not published in Vol.1

(2)Not published in Vol.1