Opinion Number. 1097

Subject

REPATRIATION POWER TO GRANT FREE PASSAGE TO FIANCEES OF MEMBERS OF AUSTRALIAN IMPERIAL FORCE: WHETHER REPATRIATION COMMISSION CAN RESTRICT EXERCISE OF POWER

Key Legislation

AUSTRALIAN SOLDIERS' REPATRIATION REGULATIONS 1920, regs 44, 116

Date
Client
The Minister for Repatriation

The Minister for Repatriation has referred to me for advice the following minute together with the file of papers relating to the question raised in the minute:

As I understand the point raised in this file, the Repatriation Commissioners have by a ruling (copy of circular letter on the subject attached) directed that their Deputies shall only pay £32.8.0 towards the passage money of fiancees of members of the A.I.F. journeying from England to Australia. The regulation on the question reads as follows:

116 A Board may grant a free passage to-

  1. the widow or orphan of a deceased soldier, desiring to return to relatives or friends in Australia;
  2. the wife and children of a soldier who has married abroad if she desires to join her husband in Australia; or
  3. the fiancde of a soldier, upon the application of the soldier, provided he furnishes sufficient guarantees for the repayment of the passage-money in the event of proof of marriage not being forthcoming within one month after the arrival of the fiancde in the Commonwealth:

Provided that no assistance shall be granted under this regulation where the application is made after the expiration of two years after the date of the death or discharge of the soldier as the case may be.

As the regulation has been approved by the Executive Council, I shall be glad if the officers of the Attorney-General's Department will advise me as to the competency of the Commission to issue the ruling set out in the attached copy of circular letter which is in conflict with the regulation.

The ruling set out in the circular letter referred to is as follows:

Passages for Fiancees: With regard to these passages, the liability of the Department will remain at £32.8.0.

In the absence of any ruling of the Commission regulation 116 empowers a Board to grant a free passage of any class to any person mentioned in the regulation. Regulation 44 provides as follows:

Subject to these Regulations, applications shall be dealt with in the manner laid down by the Department in its General Orders from time to time.

The ruling quoted above was presumably intended to be in pursuance of that regulation. In my opinion, however, that ruling does not lay down the manner in which applications are to be dealt with by the Board, but purports to prevent the Board from exercising its power under regulation 116 to grant free passages to soldiers' fiancdes. In my opinion the Board, under regulation 116, has power to grant a free passage. The Commission cannot by its ruling enlarge or restrict the power of the Board. That can only be done by amendment of the regulation by the Governor-General in Council.

I am, therefore, of opinion that the Commission was not competent to issue the ruling in question.

[Vol. 17, p. 412]