The question is referred by the Secretary to the Treasury. Mr A. has completed twenty-one years' service and is retiring, and has applied for the six months' pay in lieu of furlough under the Commonwealth Public Service Act 1902, section 71.

It appears that prior to his retirement, Mr A. was granted twenty-four days' recreation leave under Public Service Regulation 86, and that the Public Service Commissioner issued his recommendation for the payment to Mr A. in lieu of furlough of six months' pay less twenty-four days. The reason given by the Public Service Commissioner for the deduction is simply the fact that the twenty-four days' recreation leave had been granted during the year in which the pay in lieu of furlough was allowed.

In view of the Attorney-General's decision in [a case considered on 18 Septem-ber and 23 December 1912⁽¹⁾ advice is desired as to whether the fact that leave of absence for recreation leave has been granted during the year prior to retirement is a sufficient reason for reducing the period of six months' furlough or for reducing the payment in lieu of six months' furlough.

I do not think that the recreation leave is sufficient reason for reducing the six months' furlough nor the payment in lieu of six months' furlough.

The case comes within the principle laid down in [the case referred to above]. The six months' furlough provided for in section 71 of the Commonwealth Public Service Act is intended as a reward for long and faithful service of upwards of twenty years. The section is permissive in form, and there is a discretion as to whether the grant should be made, and, if so, the extent up to six months. I do not think that that discretion is limited to cases of misconduct, but I think it should be exercised to disallow the full term only in cases in which there is some definite reason for the disallowance. I do not think that the grant of recreation leave is such a reason, for the Act contemplates recreation leave in each year {vide section 68) as incidental to the year's employment. Section 71 in providing for furlough after twenty years' service is contemplating, in my opinion, an entirely different thing, i.e. a gratuity or reward for long and faithful service, and there does not appear to me to be any more reason for deducting from furlough the period of recreation leave granted during the year than there is for deducting any public holidays occurring during that year.⁽²⁾

[Vol. 16, p. 26]

(1)Opinions Nos 413 and 484.

(2)It appears that the advice given in this opinion was not followed and in consequence the Acting Secretary to the Public Service Commissioner sought comment or further advice. In a short opinion dated l4 November 1919 [Vol.16, p. 299], Sir Robert Garran, as Secretary, Attorney-General's Depart-ment, wrote: