The Secretary, Department of Works and Railways, asks for advice as to whether an obligation rests on the Commonwealth to grant a gratuity to A.B., formerly employed at the Cockatoo Island Dockyard.

The facts of the case are set out in the following letter from the Premier of New South Wales:

I beg to inform you that Mr A.B., who was employed at Cockatoo Dock up to 30 November 1918, and has now retired, has applied for a gratuity.

Mr B. was first employed in the State Service on 5 August 1891, and had continuous service from that date up to the date of his retirement, in various capacities, as labourer, charge-hand, and foreman. His status was called temporary, and he, with others, was transferred to the Commonwealth Service when the Dock was taken over by arrangement between the Commonwealth and the State. His name is included in the list furnished to the Prime Minister in October 1913.

Mr B.'s case has received the attention of the Crown Law authorities, and the

State Crown Solicitor advises as follows:

The question whether he is entitled to any gratuity depends on whether section 84 of the Constitution applies to the transfer of the Dock as it does to the transfer of a department. It appears that the transfer was not made with the consent of the Governor of the State with the advice of the Executive Council; had that been done I think that the last clause of section 84 would have applied to the matter and as it was not B.'s affair to have obtained Executive Council approval it is probable that the State will be content to deal with the matter on the footing that Executive Council approval was obtained and that section 84 of the Constitution applies to the case so as to preserve B.'s rights existing at the time of his transfer. On this basis I think that B. would be entitled to a gratuity as a permanent officer for the part of his service up to the commencement of the Public Service Act 1895 calculated on the average of his whole salary.

The Assistant Crown Law Officer concurs with this advising and thinks it may be assumed that Mr B.'s services were duly transferred to the Commonwealth and that he should be dealt with on the footing suggested, i.e. either as a transferred officer or as an officer of a transferred department.

My colleague the Minister of Justice agrees with the suggestion made by the Crown Solicitor, that as your Government is concerned with the matter if section 84 applies, the above facts be conveyed to you with a view to the concurrence of the Commonwealth Government therein.

The question whether Mr B. is entitled to receive from the Commonwealth payment of a gratuity provided for in the Civil Service Act 1884 (New South Wales) depends upon whether he is an officer of a department of the Public Service of a State, transferred to the Commonwealth within the meaning of the first paragraph of section 84 of the Constitution or a transferred officer within the meaning of the last paragraph of that section.

Section 69 of the Constitution provides for the transfer to the Commonwealth of certain departments, some by proclamation by the Governor-General and some by the section itself. The Cockatoo Island Dockyard is not included amongst the departments mentioned in the section. Assuming that there is power to transfer to the Commonwealth departments other than those named, it would, in my opinion, require either Commonwealth legislation or some formal act on the part of the Governor-General. It would, therefore, appear that the Dockyard is not a transferred department within the meaning of section 84.

From the State Crown Solicitor's opinion it also appears that the consent of the State Governor to Mr B. 's transfer was not obtained.

As Mr B. is neither an officer of a transferred department nor an officer whose transfer to the Commonwealth has been consented to by the State Governor with the advice of the State Executive Council, I am of opinion that Mr B. is not an officer entitled under section 84 of the Constitution to receive payment of a gratuity from the Commonwealth.

[Vol. 16, p. 343]