LIMITATION OF ACTIONS WHETHER COMPLIANCE WITH PRESCRIBED PROCEDURE MAY BE WAIVED: CRITERIA FOR WAIVER
The Secretary to the Department of Defence has forwarded the following memor-andum to me for advice:
With reference to your [memorandum of 29 June 1912](1); containing opinion with re-gard to the suspension of a regulation by Order in Council to meet certain special cases where it was equitable that consideration should be given, I shall be glad if you will kindly advise me on the general question of setting aside any regulation in order to satisfy equity, justice or convenience.
Occasions have arisen in which it was necessary, in order to meet the exigencies of the case, to set aside regulations other than those mentioned in your memo, above referred to, examples of which are [matter omitted].
Though the occasions for taking this authority are of infrequent occurrence, there is in some cases, in addition to considerations of equity, justice and convenience, the further consideration of the possibility of the Government becoming involved in litigation, if the authority which created the regulation were not invited to set it aside to permit of the De-partment taking action as the occasion required.
Strictly speaking, a regulation can only be set aside by repealing it.
But where a regulation requires some step or action to be taken by some person in order to entitle him to make or complete some claim, and such step or action is required in the interests of the Government, it would usually be competent for the Government to waive such step or action, provided the step or action were a matter of procedure only and not an essential element to the claim. The opinion of 29 June 1912 related to a case of this kind.
Cases may arise which are similar to cases provided for by the regulations but are not within the regulations. Such cases, not being within the regulations, cannot of course be dealt with under the regulations. But it does not follow that the cases cannot be dealt with at all. So long as there is nothing in the law to prevent any case of that nature being dealt with, it could be dealt with independently of the regulations. If the case is one of a money payment, the grant can only be made if money has been voted by Parliament for the purpose.
Wherever a case arises which the Government considers would give rise to a legal claim against the Commonwealth, there is, in my opinion, no reason why the Govern-ment would not recognise the claim if it is satisfied that there is a legal claim. But, in the event of such a case arising, it is usual, unless the liability of the Commonwealth is clear, to obtain the opinion of the Law Officers before admitting liability.
This opinion must not be construed as rendering any claim admissible which is clearly contrary to any regulation as in that case no legal claim would arise.
[Vol. 10, p. 310]
(1)Opinion No. 458.