The Auditor-General has forwarded the following case for opinion:

Public Service Regulation 89 (A) para. (2) provides that, in lieu of leave to officers of less than twenty years' service, who have attained the age of 60 years, the Governor-General may, on the recommendation of the Commissioner, grant to the officer, or in the event of his death, to his dependants, a sum equivalent to the pay for such period of leave.

1. On inquiry as to the section of the Public Service Act under which this regulation is based, the Acting Commonwealth Public Service Commissioner refers me to section 68 (1) of the Act.
2. I shall be glad, therefore, if the Honourable the Attorney-General will favour me with an opinion as to whether the regulation 89 (A) para. (2) referred to is authorised by the provisions of section 68 (1) of the Public Service Act.

Regulation 89A of the Public Service Regulations is as follows:

89A

1. The Governor-General may, upon the recommendation of the Commissioner,grant to any officer of satisfactory service who is not eligible for the furlough prescribed in Regulation 89, prior to his retirement from the Public Service on or subsequent to his attaining the age of 60 years, leave of absence with full pay as follows:

Service of 16 years and under 20 years-5 months

" 12 " 16 " "

" 8 " 12 " "

" 4 " 8 " "

Service of less than 4 1 month

2. Or in lieu of such leave the Governor-General may, on the recommendation of the Commissioner, grant to the officer a sum equivalent to the pay for such period of leave, or, in the event of the death of any officer who was eligible for but had not been granted the leave prescribed herein, may authorize payment to the dependents of such deceased officer of a sum equivalent to the pay of such officer for the period of leave which he could have been granted under this Regulation.

Section 68 (1) of the Act is as follows:

68 (1) Unless otherwise directed by the Minister of his Department the Chief Officer may grant to every officer of his Department leave of absence for recreation for any period or periods not exceeding in the whole eighteen days in each year exclusive of Sundays and holidays and such Minister in cases of illness or other pressing necessity may grant such extended leave not exceeding three months and the Governor-General may grant leave not exceeding twelve months on such terms as may be prescribed.

Section 71 (1), which was added by the Act of 1911, is as follows:

71 (1) When an officer has continued in the Public Service at least twenty years, the Governor-General may grant to him on the recommendation of the Commissioner leave of absence for a period not exceeding twelve months on half pay or six months on full pay. Where an officer not having been granted such leave of absence retires from the Public Service after at least twenty years' service, the Governor-General on the recommendation of the Commissioner may grant such officer six months' pay upon retirement, or upon the death of any officer who has continued in the Public Service for at least twenty years and has not been granted leave of absence under the provisions of this section, the Governor-General on the recommendation of the Commissioner may pay to the dependents of such deceased officer a sum equivalent to six months' salary of such officer. Provided that where an officer has been reduced in position or salary through misconduct, such misconduct shall be taken into consideration in determining whether the whole or any portion of the prescribed leave of absence may be granted or in the event of retirement or death of an officer whether payment may be made under the conditions prescribed herein and as to the terms of such payment.

The principle of the latter portion of this sub-section (prior to the proviso) is that where an officer dies without having himself received the payment due to him under the section the payment is made to his dependants.

Parliament having, by section 68 (1), conferred on the Governor-General the power to grant to officers leave not exceeding twelve months on such terms as are prescribed, and having, by section 71, approved of the principle of payment to dependants where the officer has not received the benefit of the furlough provisions, or leave in lieu, a regulation applying that principle in the case of officers who have been granted leave by the Governor-General under the regulations made under

section 68 (1) of the Act, is, in my opinion, within the powers of the Governor-General.

In addition, it should, I think, be stated that regulations under the Public Service Act stand in a somewhat different position from regulations under other Commonwealth Acts. The Governor-General is invested with the control and government of the Public Service so far as that control and government is not specifically handed over to other authorities, and may, in the exercise of his functions, make any regulation which is of a reasonable nature, and is in general consonance with the principles of the Public Service Act.

I think, therefore, that the regulation in question is a valid exercise of power by the Governor-General.⁽¹⁾

[Vol. 15, p. 240]

(1) This opinion was published in Commonwealth of Australia,Parl.Papers 1917-19,Vol.III,p.1964.