Transfer of Officers351.

84. When any department352 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 retained355 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.

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Any such officer who is retained356 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 officer357 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. 1899–1901); and the clause was further verbally amended after the fourth Report.

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