Opinion:
No. 65
Subject:
PUBLIC SERVANT
WHETHER SALARY CAN BE PAID BY TREASURY BEFORE APPOINTMENT BY GOVERNOR-GENERAL : POWER OF PAYING OFFICERS OF DEPARTMENTS : AUDITOR-GENERAL'S DUTY TO SURCHARGE TREASURER AND REPORT TO PARLIAMENT : RETROSPECTIVE APPOINTMENT
Author:
DEAKIN Alfred
Key Legislation:
CONSTITUTION, s. 67 : A UDIT ACT 1901, ss. 34,42, 51
Date:
16 May 1902
Client:
The Auditor-General
Related Opinion:
Opinion text:

The Auditor-General asks to be advised upon the following questions:

  1. Can civil servants' salaries be legally paid by the Treasury before their appointment by the Governor-General in Council, or the delegated authority, under section 67 of the Constitution?
  2. May an account for salary be paid by a paying officer of a Department under the authority of an authorizing officer duly appointed under section 34 of the Audit Act 1901, provided it 'has been directly sanctioned by the Treasurer' under sub-section (4) of section 34 referred to, and notwithstanding the appointment (for which salary is paid) has not been made by the Governor-General in Council under section 67 of the Constitution?
  3. If such salary may be paid, and is reimbursed by the Treasury, is it nevertheless not the duty of the Auditor-General to surcharge the Treasurer under section 42 (2) (h), and to report to Parliament under section 51 (b) of the Audit Act 1901?

The facts upon which these questions are asked, as stated by the Auditor-General, are that the salaries of his own staff in the Audit Office, Melbourne, are being paid upon the authority of the Treasurer-no intimation having been received of these salaries being authorised by the Governor-General.

My opinion upon the questions as submitted, as applied to these facts, is as follows:
(1) Until appointment has been made in accordance with section 67 of the Constitution, the officers cannot have the status of permanent officers. But, pending such appointment, the ministerial approval of their appointment might give them the status of temporary officers, duly appointed as such by the delegated authority under section 67 of the Constitution, and money appropriated for their salaries could then be legally paid by the Treasury.

When an appointment is made under section 67, it can be made to take effect from a prior date.
(2) The paying officer may pay an account for salary if it has been duly authorised and certified. It is duly authorised if directly sanctioned by the Treasurer and covered by an Appropriation Act, notwithstanding that there may have been no appointment under section 67 (Audit Act, section 34, sub-sections (1), (4)).
(3) It is the duty of the Auditor-General to query any payment which in his opinion is not properly made, but it is not his duty to surcharge the Treasurer until the queries have been answered or further accounts, vouchers, statements, documents and explanations have been rendered, or until a reasonable time for doing so has elapsed (Audit Act, section 42). If the query still remains unsatisfied, and the defect is not cured, it is his duty to surcharge and report.

If a defect existing at the time of payment has been subsequently cured, it would not appear to be the duty of the Auditor-General to report under section 51 (b).(1)

[Vol. 1, p. 475]

(1) This opinion was published in Commonwealth of Australia, Pari. Papers 1903, Vol. II, p. 929.


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