The following minute has been submitted for advice as to whether the issue raised therein should be finally settled by the authorities of the Commonwealth or the State:

Mr A. joined the Western Australian service on 1 March 1896, and was at the date of transfer of the Postal Department to the Commonwealth employed as a labourer at 9s per day. His service was continuous from 1 March 1896 until the date of his retirement on 31 October 1917.

1. The State Under Treasurer declines to certify to the statement of services because the State Governor in Council has decided to disallow A.'s claim for superannuation allowance.
2. The case appeared to be parallel with that of Mr B.C.D., a labourer, whose employment in the opinion of the State authorities was not of a nature to justify the grant of a pension. The Commonwealth Crown Solicitor disagreed with the view of the State authorities and the Treasurer decided to follow the advice of the Commonwealth Law Officers and grant a pension. The Order in Council was drafted by the Crown Solicitor as it was desirable in view of possible litigation that all the facts should be stated therein.
3. These papers were submitted to the Crown Solicitor with the request that, if he were of opinion that A. was entitled to a pension, he would prepare a draft Order in Council as was done in D.'s case.
4. The Crown Solicitor has advised that in his opinion A. is entitled to a superannuation allowance and that the Governor-General in Council-not the State Governor in Council-is the authority to decide the matter in the case of transferred

officers. He also stated that Heffernan's case⁽¹⁾ is in direct conflict with the State view. He has forwarded a draft Order in Council granting the superannuation allowance to Mr A.

5. I recommend that an Order in Council be obtained and that, after approval, a copy, together with the Crown Solicitor's opinion, be forwarded through the Prime Minister's Department for the information of the Premier of Western Australia.
6. The pension payable is £73.3.9 from 1 November 1917, of which £10.14.10 is chargeable to the State and £62.8.11 to the Commonwealth.

The issue referred to is that of whether or not A. is entitled to a pension.

In the case of a previous claimant from Western Australia (B.C.D.) the Crown Solicitor of the Commonwealth advised, contrary to the contention of the Solicitor-General of Western Australia, that a pension was payable. The advice of the Crown Solicitor was acted upon, and a pension paid to D. as a transferred officer under section 84 of the Constitution.

The question decided in Heffernan's case referred to in the Crown Solicitor's opinion was that the discretion as to the amount of gratuity payable under an Act of New South Wales was exercisable by the Governor-General by virtue of section 70 of the Constitution.

The provision of section 70 is that any function which passes to the Executive Government of the Commonwealth by virtue of any provision of the Constitution vests in the Governor-General.

In my opinion this includes not only the question of amount of pension etc. but also the question whether a pension is payable.

I am therefore of opinion that it is for the Commonwealth to decide the question of whether or not a pension is payable.

[Vol. 15, p. 443]

(1)State of New South Wales v. CommonWalth 6 C.L.R.214.