The Secretary to the Treasury has forwarded the following memorandum for advice:

On 6 March 1916 A.B., Lightkeeper, Rottnest Island, W.A., applied for permission to retire on a pension on the grounds of infirmity. Satisfactory medical evidence has been produced that Mr B. is incapable from infirmity to discharge the duties of his situation, and that such infirmity is likely to be permanent.

1. The Public Service Commissioner has recommended to the Governor-General that Mr B. be permitted to retire accordingly as from 30 June 1917.
2. Mr B. joined the State Service of Western Australia on 4 May 1883 and his service has been continuous to 30 June last. He therefore has rights to pension on retirement under the Western Australian Superannuation Act 1871.
3. The amount of pension payable is certified by the Commonwealth Auditor-General and the State Under Treasurer to be £122.19.4, of which £112.11.4 is stated to be payable by the State and £10.8.0 by the Commonwealth.
4. It appears, however, that only a portion of the lighthouse service of the States was taken over. The officers who were brought over from the States are not therefore officers of transferred Departments, and the total amount of the retiring allowances which may be payable will have to be borne wholly by the Commonwealth.
5. A difficulty, however, has arisen, owing to the Government of Western Australia not having considered it necessary to obtain the consent of the Governor in Council of the State to the transfer of those officers who were in the State Service at the establishment of the Commonwealth, the reason given being that 'the status of transferred officers is defined in the Constitution Act'.
6. These officers are, therefore, not 'transferred officers' within the meaning of section 84 of the Constitution, and it would appear that until such consent is given, any rights which would have been preserved by section 84, had such consent been given, cannot be recognised.
7. In view, however, of the fact that the pension if granted would be wholly payable by the Commonwealth, a way out of the difficulty may perhaps be found under the provisions of the Commonwealth Public Service Act.
8. Section 34A of the Public Service Act provides:
1. Any officer of the Public, Railway, or other Service of a State, whether appointed thereto before or after the commencement of this Act, shall be eligible for appointment to a position in the corresponding division in the Public Service of the Commonwealth.
2. The provisions of section sixty-one of this Act shall apply to-
1. any person appointed to the Public Service of the Commonwealth by virtue of this section, and
2. any person appointed to the Public Service of the Commonwealth, whether before or after the commencement of this section, by virtue of the provisions of either of the last two preceding sections whose service with the Commonwealth is continuous with his service with the State.
9. This section was assented to on 19 December 1913, and it is understood is the authority under which the lighthouse keepers were transferred to the Service of the Commonwealth.
10. Section 60 (b) of the Commonwealth Public Service Act provides:

(b) where any officer in the Public, Railway, or other Service of a State is transferred to the Public Service of the Commonwealth, every officer so transferred,

shall preserve all his existing and accruing rights and shall be entitled to retire from office at the time and on the pension or retiring allowance which would be permitted by the law of the State from which he was transferred if his service with the Commonwealth were a continuation of his service with such State.

Section 61 of the Public Service Act provides:

For the purposes of this Act service in the Public, Railway, or other Service of a State by any person who becomes an officer in the Public Service of the Commonwealth shall be reckoned as service in the Public Service of the Commonwealth.

I recommend that the Attorney-General's Department be asked for an opinion as to whether Mr B. can be granted a pension under the Western Australian Superannuation Act 1871 and the Commonwealth Public Service Act 1902-1913, in respect of his State and Commonwealth Public Service which has been continuous from 4 May 1883 to 30 June 1917.

Under section 60 (b) of the Public Service Act an officer in the Public, Railway, or other Service of a State who is transferred to the Commonwealth preserves all his existing and accruing rights, and may retire at the time and on the pension or retiring allowance which would have been permitted by the State, if his service with the Commonwealth were a continuation of his service with the State.

In order to benefit under this section the officer must be a transferred officer. I think that this term implies something in the nature of a 'transfer' to which the State is a party, and does not apply to the case where an officer simply leaves the State Service and is appointed to the Commonwealth Service-notwithstanding that there may be substantial continuity, and that his eligibility to the Commonwealth Service may have depended on his previous State service.

Mr B. was not so transferred, and consequently is unable to claim a pension under that section.

Sections 34A and 61 of the Public Service Act also deal with the position of officers who join the Commonwealth Service from the State Service.

These sections do not relate to the question of existing or accruing rights or to pensions or retiring allowances under State Acts, but, apart from extending the area of State servants who may be appointed to the Commonwealth service, only provide that for the purposes of the Commonwealth Act service in the State shall be deemed service in the Commonwealth, e.g., regarding furlough, the number of years of service in the State is to be taken into account for the purposes of furlough under the Commonwealth Act.

In my opinion, Mr B. not being a transferred officer, is not entitled to a pension under the Western Australian Superannuation Act on his retirement.

[Vol. 15, p. 283]

(1)This Openion is unsigned in the Openion Book, but it is attributed to Sir Robert Garran.