The Chairman of the Repatriation Commission has forwarded for advice the following memorandum:

1. Section 60 of the Australian Soldiers' Repatriation Act 1920-1921 empowers the Governor-General to make regulations (inter alia)-

prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect to this Act. and regulation 7 of the Regulations empowers either the Commission or a Deputy Commissioner to appoint a person to be a trustee of a pensioner under certain circumstances.

2. The question has been raised as to whether the provisions of regulation 7 are entirely within the scope of the Act.
3. Acting under regulation 7 the Commission gave instructions to Deputy Commissioners that in cases of pensions granted to children and other youthful dependants, the trustee should as a rule be the guardian unless such person for the sake of convenience desires the pension to be paid to some other person and that in respect of children who are being maintained in a reformatory or similar institution some responsible official of the institution should as a rule draw the pension.
4. The method of appointment of a trustee is by the issue of documents in the Forms H and J of the Regulations. It has been the established practice to pay all children's pensions to the trustee who is usually the parent or guardian. The question, however, arises as to whether the child has in itself the right to the pension and whether the payment to and receipt of a trustee are a sufficient discharge and satisfaction of the obligation to pay the pension in respect of such child.
5. In an opinion dated 13.11.1918⁽¹⁾ relative to the question of authority of this Department to control soldiers' children, the Acting Solicitor-General stated:

In my opinion the Commonwealth authorities have no power to take control of these children, except insofar as their legal guardians may be willing to submit them to such control . . .

* * * * * * * *

... I do not think that the Department has any power to assume control over children whose guardians do not wish to give them up, or to retain control if a guardian demands back his or her child or declines further assistance.

6. If a child is being ill-treated or neglected by the parents or guardian it seems clear from the above-mentioned opinion that the Commission has no power to remove a child without the consent of the parents or guardian but the Commission would be glad of advice as to whether in the event of the child being placed under new guardianship the pension in respect of the child might be paid to any trustee other than the parents or former guardian, as for example, to the representative of an institution. This last question is in relation to a proposal of the Red Cross Society of New South Wales to establish a hostel for the care of neglected children of deceased and disabled Australian soldiers. The Society whilst fully realising that the matter is one coming within the jurisdiction of the States has decided to proceed with the proposal in a private manner. The suggestion has been made that in cases where absolute neglect is proved the Repatriation Department should stop payment of the child's pension but upon the guardian relinquishing the custody of the child and permitting his or her admission to the proposed hostel, the pension should be made available to the official representative of the hostel in the interests of the child.
7. The Commission would be glad of your advice on the several points raised.

The object of the provisions of the Australian Soldiers' Repatriation Act 1920-1921 relating to pensions is, I think, to provide for the maintenance of the pensioners. Any regulation, therefore, which aims at ensuring that a pensioner will enjoy the full benefits of the pension is, in my opinion, 'necessary or convenient to be prescribed for giving effect to the Act'.

Regulation 7 provides for the appointment of a trustee where, inter alia, a pensioner is under the age of sixteen years, and for the payment of the pension to the trustee who is required to disburse the pension for the benefit of the pensioner. Regulation 7, in my opinion, is necessary to give effect to the Act and is, therefore, intra vires the Act.

The intention of the Act inferred from its provisions considered in their entirety is that pensions granted to children should result in their obtaining benefit from them. Where payment to the children direct (which is not in all cases even practicable) would not carry out the intention of the Act, a regulation providing for payment of pensions to trustees would, in my opinion, be equivalent to payment to the children and would not, therefore, be inconsistent with the Act.

In my opinion, therefore, the payment to and receipt of a trustee are a sufficient discharge and satisfaction of the obligation to pay the pension payable to a child.

As regards the question raised in paragraph (6) of the Chairman's memorandum I am of opinion that there is no legal objection to some person or authority, other than the parent or guardian, being made the trustee of a child under regulation 7.

[Vol. 18, p. 335]

(1)Opinion No. 878.