Opinion Number. 1085

Subject

REPATRIATION POWER OF COMMISSION TO GRANT BENEFITS TO CLASSES OF PERSONS FOR WHOM SPECIFIC PROVISION IS NOT MADE: WHETHER AVAILABLE TO RATIFY REGULAR PAYMENTS: WHETHER MONEYS IRREGULARLY PAID ARE RECOVERABLE

Key Legislation

AUSTRALIAN SOLDIERS' REPATRIATION REGULATIONS, regs 179, 183

Date
Client
The Auditor-General

The Auditor-General has forwarded, for advice, the following memorandum:

Certain payments made by the Department of Repatriation, Victoria, were not provided for by regulations under the Repatriation Act. Upon Audit query, however, the Repatriation Commission approved of the payments under Repatriation Regulation No. 179, which reads as follows:

The Commission may grant assistance and benefits to any person who is included in any of the classes of persons specified in section 60 of the Act, but in respect of whom provision is not made in these Regulations for the granting of assistance and benefits applied for.

  1. The Commission considered that, in approving of these admittedly irregular payments under Regulation No. 179, they were acting in accordance with the spirit of such regulation.
  2. I shall be glad, therefore, of the favour of an opinion as to the correct interpretation of Regulation No. 179.
  3. Relative papers are forwarded herewith for your information and return.

In my opinion regulation 179 does not give the Commission power to approve of irregular grants made by other Repatriation authorities. The language of the regulation is clear:

The Commission may grant assistance and benefits to any person who is included in any of the classes of persons specified in section 60 of the Act, but in respect of whom provision is not made in these Regulations for the granting of assistance and benefits applied for.

It clearly implies, in my opinion, that where a case arises which is not covered by any other regulation the Commission may consider it on its merits and grant such assistance and benefits as it thinks fit. The regulation is, I think, intended to cover isolated cases. It certainly does not, in my opinion, authorise the Commission to validate irregularities of other Repatriation authorities and the approval of the Commission does not, therefore, relieve those authorities of the legal consequences of their acts.

Unless acting under a delegation from the Commission under regulation 183, a Repatriation authority granting assistance and benefits not specifically provided for in the Regulations has exceeded its powers and the grant is, in my opinion, bad ab initio.

As regards the person receiving the assistance and benefits, he cannot, in my opinion, be required to refund the amount of the expenditure incurred on account of the irregular grant. It is established law that moneys paid in mistake of law or ignorance of the law cannot be recovered (Brisbane v. Dacres 5 Taunt. 143).

In all cases where grants are made without lawful authority under the regulations it must, I think, be presumed that, in the absence of fraud, they are made in mistake of law or in ignorance of the law.(1)

[Vol. 17, p. 375]

(1)This opinion was published in Commonwealth of Australia, Parl, Papers 1920-21, Vol. III, p. 1118