Opinion No. 864
STATE REPATRIATION BOARDS: EFFECT OF AMENDMENT REMOVING POWER TO SUE: DELEGATION OF MINISTERIAL POWERS TO BOARDS: BOARDS EXERCISING DELEGATED POWER TO SUE IN NAME OF MINISTER
AUSTRALIAN SOLDIERS' REPATRIATION ACT 1917, ss. 5, 5A, 9 (2): AUSTRALIAN SOLDIERS' REPATRIATION ACT 1918, s. 7
14 September 1918
The Comptroller, Department of Repatriation
The Comptroller, Department of Repatriation, has forwarded for advice the following memorandum:
By the Australian Soldiers' Repatriation Act 1918 section 9 of the Principal Act was amended by omitting from sub-section (2) thereof the words 'and may sue and be sued in its corporate name'. An opinion is requested-
- As to whether the omission of these words entirely deprives a State Board of the powers and responsibilities thereby conferred, that is, to sue or be sued in its corporate name.
- If not, is a State Board empowered to take security in its corporate name for moneys advanced by the Department.
Section 9 (2) of the Australian Soldiers' Repatriation Act 1917-1917 is as follows:
(2) A State Board shall be a body corporate with perpetual succession and a common seal, and may hold real and personal property. Prior to the amendment of that sub-section by the Act of 1918 the sub-section read as follows:
(2) A State Board shall be a body corporate with perpetual succession and a common seal, and may hold real and personal property, and may sue and be sued in its corporate name.
In my opinion Parliament, by repealing the words 'and may sue and be sued in its corporate name' must be taken to have intended that the power of a State Board to sue and its liability to be sued in its corporate name, conferred by the Act of 1917, should be taken away.
I would point out, however, as regards the power to sue, that under section 5 of the Act the Minister is given power to sue and is liable to be sued in his corporate name; and under section 5A of the Act he is empowered to delegate any of his powers. I am of opinion therefore that he may, if he thinks fit, delegate to a State Board his power to sue. If such a delegation were given, the State Board would of course sue in the name of the Minister.
[Vol. 15, p. 468]