The Comptroller of Repatriation has forwarded the following memorandum asking for advice:

As doubt exists as to the Australian Soldiers' Repatriation Act No. 37 of 1917, I shall be pleased if you will favour me with replies to the following questions:

1. Can a soldier be dealt with prior to his discharge from the A.I.F?
2. Can a wife, as such, be dealt with at all?
3. Can children, other than those of deceased and incapacitated soldiers, be dealt with, and these only under the age of 18 years?
4. Can a widow be dealt with except under special circumstances?
5. Can a dependant not being a child in the sense of (3) or a widow in the sense of (4) be dealt with at all?
6. As following from (1) are the interests of the soldier and his dependants while on service outside the scope of the Act?
7. Can Local Committees use their funds for the benefit of classes other than those set out in the Act?
8. Does the Act give a general power of control over funds raised by private subscription?

As the members designate of the Commission contemplated by the Act are now sitting as a committee to formulate regulations, kindly treat this matter as urgent.

Most of the questions submitted are in substance questions as to whether it is possible to provide for the granting of assistance and benefits to classes of persons other than those specified in paragraphs (a) to (c) of section 22 of the Act. That section gives power to the Governor-General to make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for giving effect to the Act, and in particular for providing for the granting of assistance and benefits-

1. to Australian soldiers upon their discharge from service;
2. to the children, under the age of eighteen years, of deceased and incapacitated Australian soldiers; and
3. where by reason of special circumstances the Commission considers that assistance and benefits should be granted, to the widows of deceased Australian soldiers.

Assistance and benefits can only be granted to classes of persons other than those specified in those paragraphs if regulations providing for the granting of such assistance and benefits would not be inconsistent with the Act and if it would be necessary or convenient for giving effect to the Act to make regulations providing therefor. To determine this question it is necessary to consider the Act as a whole, so as to determine its objects. The Act is designed to make provision for the repatriation of Australian soldiers. By the 'repatriation' of Australian soldiers-used in the sense in which it is used in the Act-I understand is meant the re-establishment of Australian soldiers in the Australian community. The objects of the Act are nowhere distinctly set forth but can only be inferred from sections 8 and 22. Those sections give power to make regulations for providing for the granting of assistance and benefits to certain classes, and by implication negative the granting of assistance and benefits to other classes of persons. I think, therefore, that valid regulations cannot be made providing for the granting of assistance and benefits in the case of any other persons than the classes of persons specified in section 22. It does not of course follow that as regards those classes regulations dealing with other matters affecting those classes may not be made. For instance, for the purpose of repatriation, there may perhaps be required of soldiers while actually on service, information as to their circumstances, dependants, etc., or as to any other matter which is incidental to the granting of assistance and benefits to the classes of persons specified in section 22.

This opinion covers questions (1) to (6) inclusive.

As regards question (7)-section 12 (2) of the Act provides that:

Subject to the regulations, a Local Committee shall have power to raise and control funds for the district for which they are appointed and to disburse those funds within that district.

Except so far as the regulations prohibit such action, I think a Local Committee may disburse its funds for any purpose connected with the repatriation of Australian soldiers, and that unless the regulations so provide it is not subject to the restrictions imposed by implication by section 22 upon the classes of persons to whom assistance and benefits may be granted.

As regards question (8)-section 21 of the Act provides that:

Subject to this Act no person shall, without the approval in writing of the Commission or a State Board (proof whereof shall lie upon the person), invite subscriptions or organize any scheme for raising money for the repatriation of Austra-lian soldiers or for any purpose connected therewith.

Penalty: One hundred pounds.

If unconditional approval is given by the Commission or a State Board to the organising of a scheme for raising money for the repatriation of Australian soldiers, neither the Department nor the Commission has, in my opinion, any control over the moneys so raised. It would, however, be possible to make the grant of approval subject to compliance with conditions imposed by the Commission or the State Board, and in this way to obtain a measure of control over the moneys so raised.

There is, however, not vested in the Commission any power of control of patriotic funds for other purposes than those relating to repatriation.⁽¹⁾

[Vol. 15, p. 361]

(1) The first question on which advice was sought herein: Can a soldier be dealt with prior to his discharge from the A.I.F.? was raised again, in April I920, in the context of a particular case put to the Crown Solicitor for advice. It concerned a naval rating who, on completing an engaggient and wishing to re-enlist, did so, in accordance with naval practice, without receiving a formal discharge.

The Crown Solicitor was of opinion that the rating was . . . eligible, from a legal standpoint, to make application for assistance under the Act, and the granting or refusal of his application would . . . be a matter within the discretion of the proper authority under the Act'.

The Crown Solicitor’s opinion continued: 'The fact . . . that [the rating] contemplated continuing in the Naval Service might form a ground on which the proper authority in its discretion might think fit to reject the application, but would not . . . constitute a legal bar to the granting of the application'.

The Solicitor-General, having been asked by the Chairman of the Repatriation Commission for a ‘definite ruling’, stated [Vol. 17, p. 32; 6 August 1920]:

'I see no reason to depart from my opinion of 1 February 1918, and do not agree with the Crown Solicitor that the power contained in section 22 of the Australian Soldiers' Repatriation Act 1917-1918 empowers the making of Regulations to grant assistance and benefits to a soldier prior to his discharge from the forces'.