REPATRIATION POWERS OF STATE REPATRIATION BOARDS OVER FUND RAISING FOR WAR PURPOSES: EXTENT TO WHICH EXCLUSIVE RIGHTS CAN BE GRANTED: EFFECT OF PERMITTING ONLY ONE PERSON TO RAISE MONEY IN PARTICULAR MANNER
AUSTRALIAN SOLDIERS' REPATRIATION ACT 1917-1918, s. 21
The Comptroller of the Department of Repatriation has forwarded, for advice, the following memorandum:
In July 1918 the State Repatriation Board, Victoria, granted Mrs A.. Hon. Organiser, Newspaper Depot, Australian Comforts Funds, Melbourne, the sole right of sale of old newspapers throughout Victoria, and the sole right of sale of waste paper in the City of Melbourne.
The Australian Paper Mills Co. Ltd, South Melbourne, lodged a complaint in December last with respect to Mrs A. having been granted 'the sole right to collect and sell waste paper in Melbourne for patriotic purposes'.
The matter was brought under the consideration of the Commission which has approved of the continuance of operations as conducted by Mrs A. as from 1 January to 31 March 1919, provided she called for tenders for the purchase of the paper collected. The decision of the Commission was made subject to qualification if evidence was produced that Mrs A., on account of contracts, was unable wholly to comply with it.
It has since been ascertained that Mrs A. had entered into a contract with the Commonwealth Board Mills for the supply of paper.
The contract, copy of which is enclosed herewith, expires next October.
The Commission now desires to be advised on the following points:
- Had the State Board authority to grant such permission?
- Can any steps be taken to prevent any other party from collecting waste paper whilst the permission is operative?
Section 21 of the Australian Soldiers' Repatriation Act 1917-1918 provides as follows:
21. 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 raise money by any means whatsoever for any patriotic fund or any fund in relation to the war.
Penalty: One hundred pounds.
For the purposes of this opinion I assume that there is no conflict between the exercise of the power by the State Board and the exercise of the power by the Commission.
A State Board has, under section 21, power to grant permission for any scheme for raising money for patriotic purposes, and, if the State Board grants permission to one person to raise money in a particular manner and refuses permission to all other persons desiring to raise money in the same manner, it practically gives the person to whom it grants permission the sole right to raise money in that manner.
The power of approval of the State Board, however, only extends to the raising of money for patriotic funds or funds in relation to the war, and it has no power to prevent persons from raising money for other purposes.
In the case in question Mrs A. was, apparently, given the sole right to collect and sell, for patriotic purposes only, throughout Victoria, old newspapers, and in the City of Melbourne, waste paper, and, provided the State Board did not purport to grant the sole right to make such collections and sales, irrespective of the purposes of the collections and sales, I am of opinion that the State Board had authority to grant that right.
Where one person has been given the sole right to raise money for patriotic purposes in a particular manner, no other person may raise money for any patriotic purpose in the same manner, but there appears to be no power to prevent persons raising money in the same manner for purposes other than those provided by section 21 of the Act.
In my opinion, therefore-
- the State Board had authority to grant to Mrs A. the sole right to collect and sell, for patriotic purposes, old newspapers and waste paper; and
- steps cannot be taken to prevent any other person from collecting, for other than patriotic purposes, e.g. private gain, waste paper whilst the permission granted to Mrs A. is operative.
[Vol. 16, p. 105]