The question has been referred by the Assistant Secretary to the Treasury for the opinion of the Attorney-General as to whether the Commonwealth is liable to pay any retiring allowance under section 84 of the Constitution in respect of the services of Mr A., a South Australian public officer taken over by the Commonwealth, from 1.1.1868 to 27.7.1873, i.e. in respect of a period prior to a break in the continuity of Mr A.'s State service.

Accompanying the file are copies of opinions of previous Crown Solicitors of South Australia, the one of Mr C. Mann dated 10 September 1886, the other of Mr J.M. Stuart dated 16 December 1891. From these it appears that in 1882 there was an Executive Resolution of C.S.O. 563/82 to the effect that in computing the amount of retiring allowance payable to an officer under the South Australian Civil Service Act continuous service only would be reckoned. It also appears that the particular case of Mr A. has been referred to the South Australian Government, and that that Government has declined to recognise Mr A.'s claim for the period in question, basing its decision on that arrived at in February 1892 on the occasion of Mr Stuart's opinion, above referred to.

In my view these opinions of South Australian officers and decisions of the South Australian Government, though entitled to great consideration in a matter depending on the interpretation of the State Acts, cannot decide the question, which is one for the Commonwealth Government's decision, and, as the two State Crown Solicitors differ, the whole question requires review.

Under the Constitution section 84 it is provided that 'any such officer', i.e. one transferred to the Commonwealth with a State Department,

. . . who is retained in the service of the Commonwealth 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 if his service with the Commonwealth were a continuation of his service with the State. Such pension or retiring allowance shall be paid to him by the Commonwealth; . . . The Constitution section 70 provides:

In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor ol a Colony . . . shall vest in the Governor-General . . .

The retiring allowance payable by the Commonwealth to Mr A. is by the Constitution section 84 that 'which would be permitted by the law of the State' etc., i.e. by the South Australian Civil Service Act 1874, as amended by the Acts No. 231 of 1881 and 483 of 1890. Section 4 of the Act of 1881, as amended by the 1890 Act, provides:

. . . every officer in the Civil Service ... on being permitted to resign, his office on account of illness, infirmity, age, abolition of office, or any other cause whatever . . . shall, with the consent of the Governor, be entitled to and shall be paid by the Treasurer a sum equal to one month's salary for every year, and a proportionate sum for any period less than a year, that any such officer may have served in the Civil Service . . .

The Act of 1874 section 34 provides: 'All questions as to allowances arising out of this part of this Act shall be decided finally by the Governor'.

Under the Constitution section 70 this power of the Governor to decide these questions vests, as regard the case in question, in the Governor-General (vide State of New South Wales v. The Commonwealth 6 C.L.R. 214 at p. 229). It devolves then upon the Governor-General to finally decide the question whether in calculating Mr A.'s retiring allowance regard is to be had to every year that such officer has served in the Civil Service, or whether the period prior to the break in his service is to be ignored, or, to put it another way, whether the word 'continuously' which does not appear in the material section, is to be read into it.

I think it quite clear that every year in the Civil Service is to count, and that there is no justification for reading in the word 'continuously'. As Mr Mann points out in his opinion, when the draftsman meant continuous service only he expressed it in section 15 of the Act of 1874, and so when he means every year, irrespective of continuity, he leaves out the word 'continuously' in section 32 (vide Payne v. The Queen 7 V.L.R., L.55, and Simpson v. Walker 18 N.S.W. W.N.278, in which under the Victorian and New South Wales Acts continuity of service has been held to be unnecessary).

The previous decision of the South Australian Government, based on Mr Stuart's opinion, turns principally on consistency in departmental practice, based on the Executive Resolution of 1882, and the supposed right of the Governor to exercise an arbitrary discretion in granting or withholding retiring allowance. I cannot agree with Mr Stuart that the State Governor had such an arbitrary discretion, nor that such discretion as he had was properly exercised in 1882 so as to cover questions arising in later years.

I think that the words 'with the consent of the Governor' in section 32 of the Act of 1874, and in section 4 of the Act of 1881, which is in substitution, and the provisions of section 34 of the Act of 1874, are inserted primarily to enable the Governor to make proper deductions from the normal allowance to meet cases of 'misconduct or pecuniary embarrassment', and I think the Act of 1890 section 3 greatly strengthens this construction. I think that the power in the Governor to settle questions extends further to questions as to the length of service to be reckoned. But I do not agree with Mr Stuart that 'no officer has any legal right to be paid anything, any payment being purely discretionary'. I think an officer has a legal right to be paid the full sum unless the Governor in the proper exercise of his power of deciding questions, disallows the whole or part for misconduct or other reason. I think that the principle in Smith v. The Crown 17 C.L.R. 356 applies, and that upon a question arising, and being decided by the Governor, his decision is final, and a court will not inquire whether it was right or wrong. But the decision of the Governor must, I think, be fairly exercised and not arbitrarily (vide Williams v. Giddy [1911] A.C.381).

I do not know what considerations influenced the South Australian Executive Resolution in 1882, but I think, if an officer raises the question he is entitled to have it decided fairly and reasonably by the proper authority, in this case the Governor-General, and I do not think it would be a proper exercise of the Governor-General's power to follow the Executive Resolution of 1882, nor the South Australian Government's decision of February 1892, reiterated in August 1917, if he thinks that that resolution and those decisions fail to carry out the intention of the legislature.

In my opinion the Commonwealth is liable to pay retiring allowance for the period in question.

[Vol. 15, p. 490]