Cousins v Commonwealth - [1906] HCA 13

THE COMMONWEALTH

DEFENDANT. The Constitution, secs. 52, 84-Commonwealth Public Service Act 1902 (No. 5 of

1902), secs. 2, 51, 60, 78, 80-Public Service Act 1900 (Victoria) (No. 1721), secs. 1, 3, 4, 8, 16, 19, 20-Public Service-Officer in transferred department -Salary, right of Commonwealth to reduce. Sec. 19 of the Public Service Act 1900 (Victoria) was a merely temporary provision to fix the status of the officers therein referred to when they should be transferred with their departments to the Commonwealth.

3 CLR 530

That section, therefore, does not, not twithstanding sec. 84 of the Constitution, restrict the power of the Commonwealth Parliament to reduce the salaries of officers of Victorian Government departments transferred with those depart ments to the Commonwealth.

The provisions of the Commonwealth Public Service Act 1902, purporting to affect the salaries of officers in the Public Service of the Commonwealth, apply to officers transferred with their departments from the several States to the Commonwealth as well as to other officers in that service, even if the effect in particular cases is to reduce the salaries those officers were entitled to receive when such departments were SO transferred.

REFERENCE by Griffith C.J.

James Cousins, a letter carrier in the Post and Telegraph Department, brought an action in the High Court against the Commonwealth claiming £1 arrears of salary for the month of November, 1905. The plaintiff alleged that he had been a letter carrier in the Post and Telegraph Department of Victoria, and that when that department was transferred to the Commonwealth he was entitled to a salary of £150 a year; that he received from the Commonwealth salary at that rate up to October 31st, 1905 but that for the month of November, 1905, he only received salary at the rate of £138 a year, although under the Constitution and the Commonwealth Public Service Act 1902 he was entitled to £150 a year. By its defence the defendant stated that under the Commonwealth Public Service Act 1902, the Public Service Commissioner had, after full inquiries, classified and graded the plaintiff; that a regulation had been made by the Governor- General fixing the maximum pay for the plaintiff's grade at £138 a year; and that on the Commissioner's recommendation the Governor-General had approved of the grading of the plain tiff and of his being paid £138 a year. Paragraph 11 of the defence was as follows:-" The defendant says that the statement of claim is bad in law for that it is not herein alleged that the Commonwealth Parliament has appropriated any sum out of the consolidated revenue to pay the alleged salary claimed by the plain- tiff. The defendant will rely upon sec. 78 (1) of the Common- wealth Public Service Act 1902."

On a summons for directions, Griffith C.J. made an order as follows:

1. That the question whether it is competent for the Common-

3 CLR 531

wealth Government under the provisions of the Constitution and the Commonwealth Public…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cousins v Commonwealth

Details

AGLC: Cousins v Commonwealth [1906] HCA 13
Case: [1906] HCA 13
Decision Date: 31 March 1906

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Mr. Cousins and the Commonwealth concerning the right of the Commonwealth to reduce the salary of a public servant who had been transferred from the Victorian public service to the Commonwealth public service. The case involved the interpretation of provisions within the Commonwealth Constitution and relevant Public Service Acts.

The central legal issue before the Court was whether the Commonwealth had the constitutional or legislative power to unilaterally reduce the salary of an officer whose position and salary had been preserved upon transfer from a State public service to the Commonwealth public service. This required the Court to examine the interplay between sections 52 and 84 of the Commonwealth Constitution and the provisions of the Commonwealth Public Service Act 1902 and the Victorian Public Service Act (No. 1721).

The Court reasoned that section 84 of the Constitution, which deals with the transfer of officers from State services to the Commonwealth, did not grant the Commonwealth the power to reduce the salary of such officers if their conditions of service were otherwise protected. The Court found that the Commonwealth Public Service Act 1902, particularly sections 51 and 60, did not confer such a power in relation to transferred officers whose rights were preserved. The Court applied the principle that statutory provisions must be interpreted in a manner consistent with constitutional guarantees, and that the Commonwealth could not diminish the rights of transferred officers beyond what was permitted by the Constitution and the specific terms of their transfer.

Orders