The opinion (No. 309) given by the Commonwealth Crown Solicitor on 27 June 1919, in the case of the dependants of the late A.B.C, Examining Officer, Fremantle, Western Australia, has been referred by the Treasury to me with the following memorandum:

Will the Secretary kindly advise whether this opinion supersedes previous opinions under the authority of which fixed allowances have not been included in computing the amount of six months' salary in lieu of furlough payable under section 71 of the Public Service Act to dependants of a deceased officer.

(2) In this connection please see Crown Solicitor's opinion No. 303 dated 24 July 1913 in the case of D.E.F., also opinions of the Secretary, Attorney-General's Department dated 11 December 1913 (penultimate paragraph) as to the meaning of the words 'pay' and 'salary' and opinion dated 3 April 1914 in the case of G.H.I.J.'" In C.'s case the Commonwealth Crown Solicitor advises:

In F.'s case I advised on 24.7.13 that the District Allowance paid to Mr F. could be included in the computation of 'pay' in lieu of furlough not taken.

Section 71 of the Public Service Act allows a grant to an officer of six months' 'pay' on retirement where he was entitled to six months' furlough.

The Regulations provide for payments being made to officers who are stationed in places where climatic conditions are severe or the cost of living is high, and these payments are called 'District Allowances' or 'Special Allowances'. The Regulations providing for these allowances were made under section 80 para.(g) of the Act, which, inter alia, provides for the making of regulations 'for regulating and determining the scale or amount to be paid to officers ... for living in localities where the climatic conditions are severe or in places where owing to their situation the cost of living is exceptionally high'.

It is to my mind clear beyond doubt that payment to an officer under a regulation made in pursuance of this provision would be part of the officer's 'pay'.

But in regard to grants to dependants in lieu of furlough, section 71 speaks of a grant of a sum equivalent to six months' 'salary' of the deceased officer instead of to six months' 'pay'.

As Parliament has used the word 'salary' in this case instead of 'pay' it may be considered that something different to 'pay' was meant.

My opinion is that the word 'salary' was used merely as an alternative form of expression, and was not intended to put the grant in lieu of furlough in the case of dependants on a different footing to a grant in lieu of furlough to an officer.

My opinion is, also, that District Allowances and Special Allowances under regulation 168 are, in substance if not actually, parts of the salaries of the officers receiving them. The whole object of their creation is to equalise salaries.

Grants to dependants under section 71 are made by the Governor-General in Council, and I think that, for the purposes of deciding a claim for a grant, the Governor-General in Council may decide any questions of law or fact necessary to be decided to enable a decision to be come to on the claim, and I think that it would be competent for the Governor-General in Council to decide that salary for the purposes of a grant to dependants under section 71 included a District or Special Allowance under regulation 168.

In my opinion a Special Allowance may be regarded as salary in computing the equivalent of six months' salary payable under section 71 of the Public Service Act to the dependants of a deceased Western Australian Commonwealth Officer.

In F.'s case the Commonwealth Crown Solicitor on 24 July 1913 advised, inter alia:

Section 71 of the Public Service Act provides for the granting of furlough on full pay or half pay. It will be observed that the section only once refers to salary and that is in the case of grants to dependants.

In my opinion the word 'pay' has a wider meaning than the word 'salary' and was intended to include both salary and fixed allowances such as District Allowances.

The legal position appears to me to be perfectly plain.

I am of opinion therefore that the District Allowance paid to Mr F. can be included in the computation of pay in lieu of furlough not taken.

In my opinion of 11 December 1913, I advised, inter alia:

Where an officer, who is employed in one capacity only, receives salary and fixed allowances, such as district allowances, his allowances should be taken into consideration for the purpose of ascertaining the rate of his pay within the meaning of section 71, but not that of his salary.

Upon careful consideration, I see no reason to doubt the soundness of the distinction drawn by the Commonwealth Crown Solicitor in the third last paragraph of his opinion of 24 July 1913, and recognised in the paragraph of my opinion of 11 December 1913 quoted above.

The word 'salary' throughout the Act appears to be used in a narrower sense than the word 'pay', and I find difficulty in regarding the two words in this section as synonymous.

[Vol. 16, p. 388]