The Acting Secretary, Department of Defence, has forwarded the following memorandum for advice:

With reference to the first paragraph of this office letter of 29.9.16 in which it is stated that the Secretary of State for Colonies considers that the provisions of the Regimental Debts Act 1893 apply to the Australian Imperial Force, now on active service, I shall be glad if you would favour me with an opinion on the following statement:

The course followed by this Department in connection with the adjustment of deceased soldiers' estates is as follows:

On the production of probate or letters of administration District Paymasters may pay to the persons entitled the amounts due to estates of deceased soldiers. Should the amount due to an estate not exceed £100, paymasters are authorised to adjust it without the production of probate or letters of administration, but in the following cases the amount due and a full statement of relative information is handed over to the Public Officer within the State appointed to administer the estates of deceased persons:

1. Where the deceased died intestate and the amount due to the estate exceeds £100.
2. Where the deceased died intestate and though the amount due to the estate does not exceed £100, doubt exists as to the rightful claimant.
3. Where the beneficiary or next-of-kin as the case may be resides outside Australia (this applies to all estates irrespective of the amount due or whether the deceased left a will or died intestate).

Section 10 of the Regimental Debts Act provides that a prescribed notice regarding amounts due to estates of deceased soldiers that are undisposed of shall be published annually for six years, and that any amounts remaining undistributed for six months, after the publication of the last notice, shall be applied towards the creation or maintenance of such compassionate or other fund for the benefit of widows and children or other near relatives of soldiers dying on service or within six months after discharge as may be prescribed.

In regard to undisposed of amounts remaining in the hands of

1. District Paymasters,
2. Curators of Estates of Deceased Persons or Public Trustees, it is desired to know-

1. Whether undisposed of amounts in the hands of Curators of Estates of Deceased Persons or Public Trustees may be reclaimed by the Commonwealth in view of the receipt received from the Curator or Public Trustee under Treasury Regulation 96 (1) being accepted by the Department as full discharge for the amount and in view of State laws regarding the disposal of undistributed estates;
2. To what extent does the Regimental Debts Act apply to such undisposed of amounts remaining in the hands of District Paymasters and Curators or Public Trustees having regard to State laws on the subject;
3. If it be answered that the Commonwealth has a right to dispose of the moneys could they be paid to the Australian Repatriation Fund and if the Commonwealth having the right to dispose of the amounts cannot pay them to the Repatriation Fund, what action would be necessary to enable such course to be followed.

The Regimental Debts Act 1893 in its opening provisions provides for a committee of adjustment to deal in the first instance with the property of a soldier.

After their duties are finished the surplus is paid to the paymaster who is required to deal with the surplus in accordance with section 7 of the Act. He is allowed to pay debts, to pay the surplus to a representative of the deceased, if he knows of one, and if he does not know of such a representative he may, if the amount in his hands does not exceed £100, pay the amount to the persons appearing to be beneficially entitled to the same. In any other case the amount in his hands is to be remitted to the Secretary of State.

Under sections 8 and 9 of the Act the Secretary of State has certain powers with regard to the disposal of the money coming to him, which empower him to pay the amount in his hands to a representative of the deceased, if known to him, or to the persons appearing to be beneficially entitled to the sum.

If the Secretary of State finds no one who appears to be entitled to the money, the unappropriated residue must be dealt with in accordance with section 10 of the Act.

The powers of the Secretary of State in relation to the Australian Forces have been delegated to certain persons in Australia.

The powers and duties of Curators of Intestate Estates or Public Trustees (in the Act referred to as 'official administrators') are set out in section 14 of the Act.

Under that section the official administrator can only intervene when requested so to do, and must administer the property in accordance with the Regimental Debts Act and subject thereto according to the law regulating his office independently of the Act.

Any surplus remaining in his hands must be remitted by him to the person carrying out the duties of the Secretary of State, to be dealt with in accordance with the Act.

As regards the specific questions asked, the answers are, in my opinion:

1. Notwithstanding any law of the State regulating his office, the Curator is required by the Regimental Debts Act 1893 to remit any undisposed or unappropriated surplus in his hands to the person authorised by the Secretary of State to exercise in Australia his functions under the Regimental Debts Act, i.e. the District Paymaster.
2. As regards undisposed amounts remaining in the hands of Curators or Public Trustees, see answer to (a) above, while as regards undisposed amounts remaining in the hands of the District Paymaster, these amounts must be dealt with in accordance with sections 9 (2) and 10 of the Act.
3. The amounts cannot be paid to the Australian Soldiers Repatriation Fund, as that fund is not a fund prescribed under section 10 of the Act. I would suggest that representations be made to the Imperial authorities with a view to the Australian Soldiers Repatriation Fund being prescribed as a fund under section 10 of the Act.

[Vol. 15, p. 56]

1. This opinion is unsigned in the Opinion Book, but it is attributed to Sir Robert Garran.