My advice has been asked as to the correctness of the contention contained in the following letter received by the Acting Prime Minister from the Acting Public Service Commissioner:

In the Commonwealth Gazette of 17 April 1919, notifications appear of the Governor-General having approved of payment of allowances to certain Permanent Heads and Chief Officers.

Section 78 (3) of the Public Service Act provides that:

Payments of money to officers other than for salary or prescribed transfer or travelling allowances or expenses shall be made only under the authority of the Governor-General, while section 5 of that Act provides that:

The Commissioner shall submit for the consideration of the Governor-General reports as to any matters requiring to be dealt with by the Governor-General under this Act . . .

Payment of moneys to officers other than salary provided in the Appropriation Act is therefore a matter requiring a report from the Commissioner.

The approval of the payment of the allowances mentioned was given without reference to the Acting Commissioner, as required by the provision of section 5 of the Act quoted above.

It is hardly necessary to point out that a strict observance of the law for the regulation of Public Service matters generally is essential, and unless the Commissioner is permitted to exercise the functions imposed upon him by the Public Service Act, a very undesirable state of affairs in connection with the Service must arise.

In connection with this matter the Acting Commissioner desires to invite attention to the instructions issued by the Acting Prime Minister, vide papers ... It is assumed that the cases now under notice were dealt with prior to the issue of those instructions, but, in case they were not, the matter is brought under the notice of the Acting Prime Minister for any action considered advisable.

Section 5 of the Commonwealth Public Service Act 1902-1918 provides, inter alia, as follows:

The Commissioner shall submit for the consideration of the Governor-General reports as to any matters requiring to be dealt with by the Governor-General under this Act; Section 78 (3) of the Act provides as follows:

Payments of money to officers other than for salary or prescribed transfer or travelling allowances or expenses shall be made only under the authority of the Governor-General.

It is clear from this provision that the payments referred to by the Acting Commissioner require the approval of the Governor-General, as they are not, in strictness, salary.

In an opinion given on 25 May 1910⁽¹⁾, the Secretary to the Attorney-General's Department advised in the following terms in relation to an honorarium proposed to be paid to an officer of the Clerical Division of the Public Service for certain services which he had performed:

I am of opinion that the Governor-General's authority for payment of the honorarium to Mr A. is all that is legally necessary under the Commonwealth Public Service Act to enable the payment to be made.

The Act and the Regulations, however, appear to contemplate that a report of the Commissioner would in practice be obtained in cases of this nature.

See Act sections 5, 78 (3); and regulation 167. I agree with that opinion.

The question upon which advice is desired in the present case is, in substance, whether, having regard to the position in which officers of the Administrative Division are placed under the Act the report of the Commissioner should be obtained in the case of payments to those officers.

By section 17 of the Act it is provided that:

The officers in the Administrative Division (except in the case of officers paid at a specified rate by virtue of any Act) shall be paid such salaries as may be provided in the Appropriation Act.

Several Attorneys-General have already advised (Mr Attorney-General Higgins, 14 July 1904⁽²⁾; Mr Attorney-General Symon, 13 October 1904⁽³⁾; Mr Attorney-General Isaacs, 19 August 1905⁽⁴⁾) that the Public Service Commissioner has no powers under the Act in relation to the determination of the rates of salaries of officers of the Administrative Division.

I understand that the payments referred to by the Acting Commissioner are payments for extra work performed by the officers concerned by reason of the war. While they are not in the strict sense salary, they are, in my opinion, payments in the nature of salary. In order to be in a position to make to the Governor-General a report as to whether the payments were reasonable, the Public Service Commissioner would presumably be required to conduct an inquiry as to the ordinary work and war work respectively performed by the officers. This course would involve a determination by the Commissioner in relation to the salaries of officers of the Administrative Division for which, as already pointed out above, the Act did not provide.

The portion of section 5 which is quoted above, and upon which the Commissioner relies to support his contention that the proposed payments should have been referred to him for report before being dealt with by the Governor-General, is part of a section which relates in general terms to the offices of the Commissioner and Inspectors. In terms the words quoted cast a duty on the Commissioner, not on the Governor-General. It is only by implication that the section can be regarded as casting on the Governor-General the obligation of referring to the Commissioner for report the papers relating to a proposed payment to an officer.

After careful consideration, I am of opinion that, in the case of a proposed payment to an officer for the performance of additional work in an administrative position, no obligation is cast upon the Governor-General to refer the papers to the Commissioner for a report before approving of the payment under section 78 (3) of the Act.

[Vol. 16, p. 187A]

(1)Not published [Vol. 7, p.456], but the substance of the openion is contained in the three paragraphs quoted.

(2)Not published [Vol. 4, p.270]

(3)Not published [Vol. 4, p.377]

(4)Not published [Vol. 5, p.45]