The Auditor-General has submitted the following memorandum for advice:

In connection with the payment, as an act of grace, of a gratuity of £200 by the Department of Repatriation to the executor of the late Mr Maurice Copland (formerly Principal of the School of Mines, Ballarat) for services rendered in connection with the vocational training of returned soldiers, an Audit query was raised as to whether the payment of such gratuity should not be specially voted by Parliament in accordance with the procedure usually followed in similar case.

2. The Chairman of the Repatriation Commission replied to the effect that approval of the payment had been given under section 11 (2) of the Australian Soldiers' Repatriation Act, it being considered that such action was within the powers conferred on the Commission under that section.
3. As it was not clear that authority for the payment of gratuities of this nature came within the powers which the Commission could exercise under the provisions of the section of the Act quoted, further advice was sought, and a reply to the following effect received from the Chairman:

... I desire to point out that the Commission under the Act is responsible for the administration of vocational training establishments, and can authorise such expenditure in order to give effect to the vocational training scheme under the Regulations as it considers just and reasonable, provided that the expenditure is within the limitation imposed under section 11 of the Act and within the provision made by Parliament.

4. I shall be glad of the favour of the opinion of the Solicitor-General as to whether it is considered that the payment of the gratuity is correctly covered by section 11 (2) of the Australian Soldiers' Repatriation Act, or whether special sanction by Parliament should be obtained.

The powers of the Commission are such as are conferred upon it by the Act or are prescribed (section 11). Its repatriation powers including the power to deal with regulations are to be found in Part IV. That Part authorises the Commission to

recommend the making of regulations granting assistance and benefits to Australian soldiers. The Regulations have provided the machinery for establishing vocational training for soldiers, and a necessary incident to such training is the paid employment of teachers.

I am informed that the Ballarat School of Mines is an establishment approved by the Repatriation Department for the training of returned soldiers, that the Department pays its proportion of the cost of material used and in the diploma courses pays the fees of the returned soldiers taking those courses. It did not pay the salary of Mr Copland, who was an employee of the School of Mines.

The scope of the expenditure which can be authorised under the Act and Regulations is very wide. The Commission can establish vocational training schools and employ paid teachers in them; and incidentally I think they could pay gratuities either to the teachers at such schools or to the dependants of deceased teachers (cf. Hampson v. Price's Patent Candle Co. 34 L.T.711, where it was held that the directors of a company, incidentally to carrying on the general objects of the company, had power to grant gratuities to their officers; see also Henderson v. Bank of Australasia 40 Ch.D.170, where it was held that a company can, under its general powers, grant pensions to the family of deceased officers).

The principle would appear to be that any payment must be incidental or conducive to the attainment of the authorised object (see Halsbury's Laws of England, Vol.5, p. 286-Companies, paragraph 468).

In this case, the authorised objects are the granting of assistance and benefits to Australian soldiers and their families. I think this would cover the establishment of vocational training schools for the benefit of Australian soldiers etc. and contributions to the maintenance and upkeep of approved establishments utilised by the Department for that purpose.

It would be hard to say that the payment of a gratuity to a teacher at an establishment to be so utilised would be outside the powers of the Commission. This case, however, goes somewhat beyond that, as the gratuity was paid to the executors of a deceased teacher, for whose salary the Department was not responsible.

It is difficult to draw any definite line as to what is or is not incidental to repatriation; but in this case I am inclined to think that the limits have been somewhat stretched, and that the connection with repatriation is so remote that the payment cannot be said to be authorised by the Act as being incidental to repatriation.⁽¹⁾⁽²⁾

[Vol. 18, p. 78]

(1)On receiving this opinion via the Auditor-General the Chairman of the Repatriation Commission requested that the matter be reconsidered in the light of further facts which he now made known.

Responding to this request the Solicitor-General, in an opinion dated 21 December I921 [Vol.18, p.211], stated:

‘My previous opinion was given on the facts as they appeared to be in the case presented. Fu rth e r facts are now adduced, which place the matter in a different light. From the second paragraph o f the President’s [of the Ballarat School of Mines) letter, it appears that the late Mr Copland undertook “ the additional work of the Repatriation Department at the School without remuneration, which added to his duties as Principal . . . ”

From this statement, it appears th a t the salary received by Mr Copland from the State was in respect of his duties as Principal, and th a t in respect of his work for the Repatriation Department he received no remuneration.

A gratuity to a teacher employed and paid by the Department is, in my opinion, incidental to repatriation, and I think th a t a gratuity payable upon the death of a person who served the Department gratuitously is also within the powers of the Commission to grant.

On the facts as presented, I think th a t the payment o f the gratuity was within the authority of the Repatriation Commission’.

(2)The opinions on this matter were published in Parliamentary Papers: the opinion o f 5 October 1921 in Commonwealth of Australia, Pari. Papers 1920-21, Vol.III, p. 1119 and that of 21 December 1921 in Commonwealth of Australia, Pari. Papers 1922, Vol.II, p. 1000.