DEFENCE FORCES SEPARATION ALLOWANCE: POWERS OF MINISTER IN REGARD TO ADJUSTMENT OF DEPENDANTS' ALLOTMENTS TO COVER REDUCTIONS IN ALLOWANCE: EXERCISE OF MINISTERIAL DISCRETIONS: RETROSPECTIVE OPERATION OF REGULATIONS: DELEGATION OF MINISTERIAL POWERS BY REGULATION
DEFENCE ACT 1903, s. 124 (1) (da): DEFENCE ACT 1915, s.7(l)(a), (2): WAR FINANCIAL REGULATIONS, regs 31, 32(c), 76, 77
The Finance Secretary has forwarded for further consideration a file of papers relative to the adjustment of allotments in regard to Separation Allowance paid to the dependants of members of the Forces. The Crown Solicitor has advised upon certain phases in connection with this matter (Opinions Nos 72 and 138).
The memorandum setting out the points upon which advice is now desired is as follows:
- An Executive Council Minute was obtained early in 1915 (date unknown as file cannot at present be located) authorising the Minister to make deductions from the pay of members of A.I.F.
- The Defence Act was amended by section 7 of No. 3 of 1915 which inserted section 124 (1) (da) empowering the Governor-General to issue regulations authorising the Minister to make deductions from the pay of members of the A.I.F.
- A.I.F. Order 131d, issued with M.O.359 of 22.6.15, promulgated authority contained in the Executive Council Minute as follows:
Provision is also made for-
The deduction from the pay of any officer or member of any Expeditionary Force of such reasonable sums as the Minister thinks fit for the support of any person who in the opinion of the Minister is wholly or partly dependent upon, or has a claim for maintenance against, the officer or member, and the payment of such sums to or for the benefit of any such person.
- Military Order No. 543 dated 2.12.16 amended this to read:
The Minister may authorise the deduction from the pay of any officer or member of any Expeditionary Force of such reasonable sums as he thinks fit for the support of any person who in his opinion is wholly or partly dependent upon, or has a claim for maintenance against, the officer or member and the payment of such sums to or for the benefit of any such person.
- Separation Allowance after embarkation became payable on and after 1.5.15.
- Ministerial approval of the policy of charging against a soldier's account as an increased allotment Separation Allowance payments continued after promotion to a rank which did not carry such grant (or only at reduced rate) and in respect of which rank he was expected to authorise an increased allotment to at least cover the decreased Separation Allowance was given on 18.10.16.
- War Financial Regulation 31 was included in the first issue of War Financial Regulations dated 28.2.17. This reiterates the approval for deduction by the Minister.
- War Financial Regulation 77 dated 15.5.18 purported to make War Financial Regulations retrospective to 1.8.14.
- War Finance Instruction 72A dated 17.5.17 informed Commandants that the Minister had delegated to them power to act on his behalf in respect of War Financial Regulation 31.
- War Financial Regulation 76 dated 22.8.17 purported to give statutory authority for such delegation-retrospective in operation to 1.8.14.
- War Financial Regulation 32(c) was dated 10.10.17 and sought to give specific statutory authority for the policy approved by the Minister on 18.10.16-as above (para.6).
- The questions to be decided appear to be:
- Is the retrospective operation of W.F.R. 32 (c) valid as against individual members of the Forces?
- Does W.F.R. 32 (c) enable the Department to compulsorily make the deduction if the soldier fails to make the amending allotment? If not does W.F.R.31 give this power?
- Does W.F.R.31 validate deductions made under A.I.F. Order 131d?
- Does W.F.R.31 empower the Minister to authorise deductions in classes of cases or must he deal with each individual case?
- Does W.F.R.31 empower the Minister to approve of deductions already made or must he approve before such action is taken?
- Is the power granted by W.F.R.76 to delegate authority under W.F.R.31 valid; if not, can Minister now cover by his approval cases previously dealt with by Commandants? Must he deal with each such individual case or can he approve in globol
War Financial Regulations 31, 32 (c), 76 and 77 are as follow:
31 The Minister may authorize the deduction from the pay of any Officer or Member of any Expeditionary Forces of such reasonable sums as he may think fit for the support of any person who, in his opinion, is wholly or partly dependent upon, or has a claim for maintenance against, the Officer or Member, and the payment of such sums to or for the benefit of any such person.
32(c) If any member of the A.I.F. on whose account Separation Allowance is being paid, is promoted or appointed to a rank carrying a higher rate of pay than that to which he has been previously entitled, and if in consequence of such higher rate being payable to him, Separation Allowance is not issuable to his dependants or is issuable at a reduced rate, the member shall increase his allotment in favour of his dependants, as from the date of his promotion or appointment, by at least the amount of the reduction of Separation Allowance.
76 (i) The Minister may by writing under his hand, delegate any of the powers, functions and authorities conferred upon or vested in him by these Regulations.
(ii) Every delegation under this Regulation shall be revocable at will and no delegation shall prevent the exercise of any power, function or authority by the Minister.
(iii) This Regulation will take effect as from 30th November, 1914. 77 Subject to amendments which were from time to time made in rates of pay and allowances Statutory Rule 1917, No. 49, shall be deemed to have come into operation on the first day of August, 1914.
The Defence Act was in 1915 amended by the insertion in section 124 (1) of the following paragraph:
(da) The deduction from the pay of any officer or member of any Expeditionary Force of such reasonable sums as the Minister thinks fit for the support of any person who in the opinion of the Minister is wholly or partly dependent upon, or has a claim for maintenance against, the officer or member, and the payment of such sums to or for the benefit of any such person;
The section by which this paragraph was inserted also provided as follows:
(2) This section shall be deemed to have commenced on the first day of August One thousand nine hundred and fourteen, and any regulations made in pursuance of this section shall, if the regulations so provide, have effect as from the commencement of this section.
As regards the first question asked in the memorandum submitted for advice, I am of opinion that Statutory Rules 1918, No. 124 [War Financial Regulations, reg. 77], insofar as they purport to make retrospective any of the provisions of the then existing regulations other than those whose retrospective operation is expressly authorised by the Act, cannot be supported as valid. Regulation 32 (c) imposes a duty on members of the Forces, in certain circumstances, to increase their allotments. That duty cannot, in my opinion, be made retrospective by regulation.
As regards the second question, I am of opinion that a failure by a member of the Forces to make the increased allotment provided for in regulation 32 (c) does not enable the Department to make the deduction compulsorily. Nor does regulation 31 authorise such deduction except in accordance with its terms, i.e. there must be a finding by the Minister that a person is dependent on the officer or member, and the determining by him of such reasonable sums as he thinks fit. The regulation, following section 124(1) (da) of the Act, appears to entrust to the Minister a discretion which is exercisable by the Minister only.
As regards the third question, I am of opinion that deductions made by authority of the Minister acting in accordance with Order 13Id-i.e. where the Minister made findings as to dependency and the reasonable sum to deduct-are validated under regulation 31, as made retrospective to 1 August 1914.
As to the fourth question, I am of opinion that regulation 31 contemplated the exercise by the Minister of a discretion in individual cases, and not in classes of cases.
As to the fifth question, I am of opinion that regulation 31 does not empower the Minister to approve payments which have already been made without his authority. Upon this point I concur fully in the opinion expressed in the first three paragraphs on page 3 of the Crown Solicitor's opinion of 10 March last.
As regards the sixth question, it should be pointed out that the Regulations may confer on the Minister power to delegate to any person any power conferred on him by the Regulations except insofar as the Act provides for the exercise of that power by the Minister. In the present case the Act gives power to make Regulations conferring certain power on the Minister. Under such a power it would not be competent to make a Regulation giving the Minister power to delegate that power to someone else.
Further, the Minister not having previously exercised his discretion, in the cases determined by Commandants, I am of opinion that he cannot now exercise it so as to validate deductions made in pursuance of those determinations.
[Vol. 16, p. 150]