§ 357. “Any Officer … 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

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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 State358.

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 Governor-General in Council may declare to be necessary.
  • (ii.) The Commonwealth may acquire any property of the State, of any kind used, but not exclusively used362 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 State363 for the value of any property passing to the Commonwealth under this section; if no agreement can be made as to the mode of compensation364, 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 transferred365.
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. 108.

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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