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mentary appropriation; but no such provision is made with regard to payments to the States; and it seems that the necessity for Parliamentary appropriation of these payments was not contemplated.

PROCEDURE.—The procedure in connection with the granting of supply is largely dependent on Standing Orders. The details of procedure differ in many respects in the different Legislatures within the Empire; but the general features are much the same, and it may be assumed that they will be followed in the Parliament of the Commonwealth. The Treasurer will first bring down into the House of Representatives the estimates of expenditure, with a message from the Governor-General (see sec. 56). In Committee of Supply, each vote or resolution in the Estimates, and each item therein, may be discussed, and may be reduced or omitted; but the Committee of Supply cannot increase any grant which has been recommended by the Governor-General. When the grants have been voted by the Committee of Supply, resolutions will be moved in Committee of Ways and Means, to the effect that, towards making good the supply granted, a certain sum be granted out of the Consolidated Revenue Fund. These resolutions having been reported and agreed to by the House, the Appropriation Bill will be introduced and passed, and forwarded to the Senate. (For the Senate's powers in regard to it, see sec. 53.) The Appropriation Act, when duly assented to, will give legal effect to the resolutions of the Committees. Upon a proper warrant from the Governor-General, which will give final validity to a grant of supply, the Treasurer will make the issues to meet those grants out of the Consolidated Revenue Fund. (See May, Parl. Practice, Ch. XXII.; Bourinot, Parl. Procedure, Ch. XVII.)

It is sometimes impracticable, owing to the conditions of Parliamentary business, to deal with the estimates before the financial year begins; and in order to meet the immediate demands of the Public Service, "votes on account" are authorized by Temporary Supply Bills as occasion may require. In the British Parliament, votes on account for the first months of the financial year are now the invariable practice; and they have also been frequently employed in the different Australian Parliaments. In Canada, on the other hand-where the Dominion Parliament meets in January, and the financial year ends on 30th June-they are rarely resorted to. (Bourinot, Parl. Procedure, p. 576.)

PRELIMINARY EXPENSES.-From the day of the establishment of the Commonwealth, revenue will be collected by the Federal Government, and expenditure will be ncurred; but no statutory appropriation can be made until the Federal Parliament has met. During this interval, and for a month after the meeting of Parliament, the necessity for such appropriation is suspended to the extent of any payments necessary for the maintenance of the transferred departments and for the conduct of the federal elections. As to the question whether the expenses of elections for the Senate are to be borne by the Commonwealth, see note, § 74, supra.

Transfer of Officers 351.
352

84. When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department353 shall become subject to the control of the Executive Government of the Commonwealth354.

Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension, gratuity, or other compensation payable under the law of the State on the abolition of his office.

Any such officer who is retained 350 in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State. Such pension or retiring allowance shall be paid to him by the Commonwealth; but the State shall pay to the Commonwealth a part thereof, to be calculated on the proportion which his term of service with the State bears to his whole term of service, and for the purpose of the calculation his salary shall be taken to be that paid to him by the State at the time of the transfer.

Any officer who is, at the establishment of the Commonwealth, in the public service of a State, and who is, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a department transferred to the Commonwealth and were retained in the service of the Commonwealth.

CANADA. Until the Parliament of Canada otherwise provides, all officers of the several provinces having duties to discharge in relation to matters other than those coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces, shall be officers of Canada, and shall continue to discharge the duties of their respective offices under the same liabilities, responsibilities, and penalties, as if the Union had not been made.-B.N.A. Act, sec. 130.

HISTORICAL NOTE.-The clause as drafted and passed at the Sydney Convention, 1891, merely provided that all officers of the transferred departments should become subject to the control of the Federal Executive, and that their existing rights should be preserved. Mr. Gordon moved to add “But the Commonwealth shall not be responsible for any pensions agreed to be paid by the States." This was negatived. (Conv. Deb, Syd., 1891, pp. 801-2.)

At the Adelaide Session, 1897, the draft of 1891 was followed, except that in place of the provision as to existing rights the following words were added: “and thereupon every such officer shall be entitled to receive from the State any gratuity, pension, or retiring allowance payable under the law of the State on abolition of his office." It was pointed out in Committee that different provision was needed for those who were retained and those who were not: also that accruing as well as existing rights ought to be preserved. The clause was postponed, and afterwards an amendment moved by Mr. Barton was agreed to, providing that officers not retained in the service should receive from the State the proper compensation on abolition of office, whilst officers retained should eventually be entitled to a retiring allowance to be paid by the Commonwealth and the State jointly. On Mr. Deakin's motion, words preserving the existing and accruing rights of such officers were added. (Conv. Deb. Adel., pp. 866-70, 1444-51.)

At the Melbourne Session, a suggestion by the Legislative Assembly of Western Australia, to insert the words “unless he is appointed to some other office in the State," was considered, and formally negatived on the understanding that it would be considered by the Drafting Committee. (Conv. Deb., Melb., pp. 990-8.) A re-draft was subsequently adopted, the last paragraph being added (Conv. Deb., Melb., pp. 18991901); and the clause was further verbally amended after the fourth Report.

§ 351. "Transfer of Officers."

OBJECT OF SECTION.-The object of this section is to prevent any hardship to the officers of transferred departments by reason of their change of masters. Many of them would, under the public service laws of their respective States, have become entitled to pensions or retiring allowances; many more, though not yet so entitled, would have inchoate or accruing rights on which they had based legitimate expectations. It was necessary to give the Federal Government an entirely free hand in the organization of the Public Service of the Commonwealth and in the appointment and dismissal of officers; but it was thought fair that the existing and accruing rights of the officers of the transferred departments should be expressly recognized in the Constitution, and that the respective responsibilities of the States and the Commonwealth in this respect should be clearly defined.

Two events had to be provided for the event (which would probably be exceptional) of any such officer not being retained in the service of the Commonwealth, and the event of his being so retained.

(1.) With regard to any officer whose services are not required by the Commonwealth, the refusal of the Commonwealth to employ him is treated as being equivalent to the abolition of his office by the State, so that he will be entitled to claim from the State any compensation payable under the law of the State on such abolition. An exception, however, is made in the event of his being appointed by the State to some other office of equal emolument.

(2.) Any officer retained in the service of the Commonwealth is allowed to carry with him the benefit of the public service laws of his State, so as to preserve "all his existing and accruing rights." His rights of retirement, and of pension or retiring allowance, continue to be governed by the law of the State, as though he were continuing in the service of the State-except that such rights are now rights against the Commonwealth. When such pension or retiring allowance becomes payable, the officer himself looks only to the Commonwealth; but the Commonwealth has recourse against the State for a part thereof, based on the calculation prescribed.

The last paragraph provides for a different class of cases. If, by arrangement between the Commonwealth and a State, any public officer, not belonging to one of the transferred departments, is transferred to the public service of the Commonwealth, he is to have the same rights as if he had been an officer of a transferred department, and were retained in the service of the Commonwealth.

§ 352. "Any Department."

The departments of customs and excise become transferred on the establishment of the Commonwealth; the departments of posts, telegraphs, and telephones, naval and military defence, lighthouses, lightships, beacons and buoys, and quarantine, are to become transferred on a date or dates to be proclaimed by the Governor-General. (See sec. 69.)

By virtue of the legislative powers of the Parliament, other departments which come wholly within the scope of those powers can be taken over from time to timesuch, for instance, as the departments of copyright, patents, and trade marks. In the exercise of its legislative power over matters referred to it by the States, the Federal Parliament may also be able to assume control over other departments. (See s. 51, subs. xxxvii.)

§ 353. "All Officers of the Department."

Where the department transferred is the whole of one of the great political departments-as, for instance, the department of posts, telegraphs and telephones-the interpretation of the term "all officers" presents no difficulty; it evidently includes every officer, whatever his tenure or the nature of his employment, from the permanent head of the department downwards; but not, of course, the political head. When the department ceases to exist as a "State Department," the ministerial portfolio established by the State in connection with it must also cease to exist.

Where the department transferred is a sub-department-as, for instance, the department of quarantine-it seems that only those officers who are exclusively officers of the sub-department will become subject to the control of the Commonwealth.

$354. "Subject to the Control of the Executive
Government of the Commonwealth.”

Every department, on being transferred to the Commonwealth, becomes at once a department of the public service of the Commonwealth, and subject to the provisions of Chap. III. of the Constitution. The appointment and removal of its officers is thenceforth vested in the Governor-General in Council, until other provision is made (sec. 67), and its administration is vested in the Executive Government (secs. 61-64)

§ 355. "Any Such Officer Who is not Retained." The rights of an officer of a transferred department differ accordingly as he is "retained" or "not retained" in the service of the Commonwealth, and it becomes important to define exactly what is meant by these expressions. Is the executive government of the Commonwealth required to make any express declaration of retainer or non-retainer? And if so, when must its choice be made?

It is clear, in the first place, that the Federal Government has an option to retain, or not to retain, any officer; and it is also clear that such option cannot easily be exercised at the actual moment of transfer—at least with regard to the departments transferred at the establishment of the Commonwealth. It would seem, also, that the fact of transfer does not alter the obligation upon each officer to continue, as a servant of the Crown, to perform the duties of his office; though he is subject thenceforth to the control, not of the State, but of the Federal Government. Every officer of the department becomes "subject to the control" of the Federal Government, but every officer is not necessarily "retained in the service of the Commonwealth." Apparently, therefore, the option of retaining or not retaining an officer is one which the Federal Government may exercise within a reasonable time after transfer, and the mere fact that the Government assumes the control and accepts the services of an officer at the outset need not necessarily imply a decision to retain him. On the other hand, acquiescence by the Federal Government for any time longer than was reasonably necessary might fairly be held, in the absence of a definite notification to the contrary, to imply a decision to retain an officer in the service.

In respect of a State officer who is "not retained in the service of the Commonwealth," the Commonwealth has no liability whatever. His only claim for compensation is against the State, which is under a constitutional obligation to treat him as though his office had been abolished by the Government of the State.

$ 356.

"Any Such Officer Who is Retained." The object of this provision is to give to those State officers who are retained by the Commonwealth the same rights which they would have had if they had continued in the service of the State. These rights are of course determined by the laws of the State at the moment of transfer. The words of the Constitution are necessarily general; and it may be that federal legislation—and perhaps State legislation also-will be necessary in order to give full effect to this intention. Questions, for instance, as to past and future contributions to superannuation funds may need further provision. But the general intention of the section is clear; and the rest may safely be left to the sense of justice of the Federal and State Governments.

§ 357. "Any Officer

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in the Public Service of a State."

By the last paragraph of the above section the Federal Government, with the consent of the Government of any State concerned, is authorized to take over State officers not belonging to transferred departments, but who may be required in the service of the Commonwealth. This provision contemplates the creation of new departments of

service which will be absolutely necessary on the establishment of the Commonwealth ; such as those which will be in immediate attendance on the Federal Parliament and the Federal Executive. The officers so taken over are guaranteed the same rights as if they had been officers of departments transferred, and as if they had been retained in the service of the Commonwealth under the earlier part of the section.

Transfer of Property of States58.

85. When any department of the public service of a State is transferred to the Commonwealth

(i.) All property of the State of any kind359, used exclusively in connexion with the department360, shall become vested in the Commonwealth361; but, in the case of the departments controlling customs and excise and bounties, for such time only as the GovernorGeneral in Council may declare to be necessary. (ii.) The Commonwealth may acquire any property of the State, of any kind used, but not exclusively used 362 in connexion with the department; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land, or of an interest in land, taken by the State for public purposes is ascertained under the law of the State in force at the establishment of the Commonwealth. (iii.) The Commonwealth shall compensate the State for the value of any property passing to the Commonwealth under this section; if no agreement can be madeas to the mode of compensation, it shall be determined under laws to be made by the Parliament. (iv.) The Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred 35.

363

CANADA. The public works and property of each Province, enumerated in the third schedule to this Act, shall be the property of Canada.-B.N.A. Act, sec. 18.

HISTORICAL NOTE.-The clause as originally framed at the Sydney Convention, 1891, did not distinguish between exclusive and partial use; and the value was to be ascertained under the resumption laws of the State. The provision for assuming the obligations of the State was contained in the clause providing for the transfer of the departments.

At the Adelaide Session, 1897, the 1891 draft was adopted with verbal alterations. Mr. Wise moved to add "railways," in order to put his views on record; but withdrew the amendment for the present. (Conv. Deb., Adel., pp. 870-7, 1203-4.)

At the Melbourne Session, an amendment of the Legislative Assembly of Western Australia, to restrict the clause to property "exclusively used," was negatived. Mr. Kingston suggested that the vesting should be at the option of the Commonwealth. An amendment of the Legislative Assembly of South Australia, that payment may be made by taking over equivalent part of public debt, was negatived, Mr. Barton promising a redraft. The clause was redrafted, and verbally amended after the 4th Report. (Conv. Deb., Melb., pp. 998-1007, 1901-6 )

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