WHETHER COMMONWEALTH HAS POWER TO TAKE CONTROL OF CHILDREN OF DECEASED OR INCAPACITATED SOLDIERS: POWER TO GRANT ASSISTANCE AND BENEFITS: EXTENT OF STATES' RESERVE POWERS WITH RESPECT TO CHILDREN
CONSTITUTION, ss. 51 (vi), (xxii), (xxxix), 107, 108: AUSTRALIAN SOLDIERS' REPATRIATION ACT 1917, ss. 8, 22: AUSTRALIAN SOLDIERS' REPATRIATION REGULATIONS, regs 8A, 9, 49, 50, 51, 57
The Comptroller, Department of Repatriation:
The question has been referred by the Comptroller of the Department of Repatriation for advice as to what, if any, power the Repatriation Department possesses to take control of children of deceased or incapacitated members of the Australian Imperial Force. In the ?le submitted there are various suggestions, including the establishment of a soldiers' children's hostel, and the boarding out of children with their mothers or others under the supervision of Commonwealth inspectors.
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; but I think the Repatriation Department has power to grant assistance and bene?ts to such children, and to withhold such assistance and bene?ts in cases in which proper use is not being made of them.
The Constitution, section 51 (vi), gives power to make laws with respect to defence, and section 51 (xxxix) with respect to incidental matters, and I think that the granting of assistance and bene?ts to the children of soldiers is a valid exercise of these powers (vide Farey v. Burvett 21 C.L.R. 433; and Australian Steamships Limited v. Malcolm 19 C.L.R. 298).
The Australian Soldiers’ Repatriation Act 1917-I918 in sections 8 (b) and 22 provides for regulations on the subject, and regulation 9 authorises the Minister to maintain homes, hostels, etc. for the bene?t of soldiers or their dependants, and regulations 49, 50, 51, 57 and 8A authorise other bene?ts, which include the making of payments for the care and education of the children. Under this I think it is quite competent to the Repatriation Department to establish a hostel, or to pay to the children’s parents or others, money for their care and education, and while the children are inmates of the hostel, or while the other bene?ts are being accepted by their guardians for them, I think the Department could exercise control over them. But 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.
The Constitution, section 51 (xxii), gives power to make laws with respect to-
(xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:
This express power with respect to infants is limited to matters in relation to divorce and matrimonial causes. The inherent jurisdiction over infants exercised by the King as parens patriae is left with the States, in which reposes the residuum of plenary power not speci?cally given to the Commonwealth, and the powers of the States and the State laws are preserved by sections 107 and 108.
The respective States have legislation designed to provide for children who have no guardians, or whose guardians are unable to provide for them, and although Federal legislation cannot override these State laws, it would be competent to theFederal authorities to make arrangements with the States, if so desired, to act together in the granting of bene?ts.
As regards cases in which parents might agree to the Commonwealth Department exercising control or supervision in consideration of the bene?ts to be derived, it should be borne in mind. that a parent may recover his or her child, notwithstanding an agreement to the contrary, unless he may be held to have ‘abdicated such right by a course of conduct which would make a resumption of his authority capricious and cruel towards the children’: Goldsmith v. Sands 4 C.L.R. 1648, at p. 1652. See also Barnardo v. McHugh  A.C. 388; In re Warren 13 A.L.T. 121.
[Vol. 16, p. 28]