Opinion No. 1039
DISCRETION TO WITHHOLD PAYMENT OF WAR GRATUITY: WHETHER MINISTER HAS POWER TO WITHHOLD PAYMENT WHERE DISCRETION IS VESTED IN PRESCRIBED AUTHORITY
WAR GRATUITY ACTS 1920, ss. 3, 8 (1)
17 January 1921
The Secretary to the Treasury
The Secretary to the Department of the Treasury has forwarded for advice the following memorandum:
Under the War Gratuity Act (section 8) the prescribed authority may withhold any war gratuity payable under the Act. In this connection the question has now been raised whether the Minister also may withhold a gratuity, or whether the gratuity must be paid if the claimant is entitled to it under the Act and the War Gratuity Board does not withhold it. Will you please be good enough to furnish advice on this matter.
There appears to be nothing in the War Gratuity Acts 1920 to compel the Minister to pay any war gratuity. Section 3 of the Act merely authorises him to pay. He is not, however, in my opinion, authorised to exercise his discretion as regards the withholding of payment of any war gratuity. Section 8(1) of the Act provides as follows:
The war gratuity payable under this Act shall not be claimable or recoverable by any person as a matter of right, but shall be deemed to be a free gift by the Commonwealth in recognition of honourable services during the war with Germany and her Allies, and may in any case be withheld or deferred or subjected to terms and conditions as the prescribed authority, having regard to the interests or deserts of the claimant, thinks just and proper.
In view of that provision, I am of opinion that, although no action can be taken against the Minister if he fails or refuses to pay any war gratuity, it is clearly the intention of the Act that the prescribed authority alone is to have the power to withhold or defer payment or impose conditions on the payment of war gratuity.
[Vol.17, p. 206]