The Comptroller, Department of Repatriation:

The following memorandum has been submitted to me with a request for advice:

The Repatriation Commission desires an opinion on the question of living allowances under the new Act, in the following respects:

1. Could living allowances which have been granted under the Regulations of the old Act be continued on the strength of the provision in section 3 of the new Act?
2. Could new living allowance regulation be passed under section 60 of the new Act, or would it be considered impossible to grant any living allowances in view of the fact that section 60 provides that regulations 'not inconsistent with this Act' may be made, and section 47 precludes the Commission from recommending regulations which would provide for a payment or allowance in the nature of or supplementary to a pension?

The Commission would be deeply obliged if an opinion could be forwarded on this matter on Monday, 28 June 1920.

The proviso to section 3 of the Act of 1920 continues rights, privileges etc. arising under the repealed Act as if they arose under the new Act. The right to living allowances is one arising under regulations made under the Act of 1917-1918. Those regulations expire on the expiration of the Act.

The closing words of the proviso 'as if arising under this Act' in my opinion have the effect of limiting the continuing rights to those which have their analogue in the new Act or the regulations made thereunder.

Unless, therefore, the new Act, or the regulations under it, provide for living allowances, there is no authority for the continuance of such allowances upon the termination of the Act of 1917-1918.

The regulations under which the allowances were payable were framed by the Commission under a power to make recommendations to the Governor-General for the making of regulations providing for the granting of assistance and benefits to Australian soldiers and certain other specified classes of beneficiaries (1917-1918 Act, section 8) and were made by the Governor-General under section 22, which authorised him to make regulations providing for the granting of assistance and benefits to the same classes of beneficiaries as those specified in section 8.

Section 47 of the new Act is similar in terms to section 8 of the old Act but the Commission is debarred from making recommendation for regulations providing for the granting of payments or allowances 'in the nature of, or supplementary to, pensions'. It is clear, therefore, that 'assistance and benefits' without the limiting words above referred to, include periodical payments such as living allowances.

It will be seen that, in neither the 1917-1918 Act nor in that about to commence, is the recommendation of the Commission for the making of regulations a condition precedent to the exercise of the regulation-making power by the Governor-General.

The Governor-General may make regulations which have not been recommended by the Commission or he may disregard the Commission's recommendation and decline to make regulations, and further, he may make regulations which are in excess of the Commission's power of recommendation.

In section 60 of the new Act there is no restriction as to the class of assistance and benefits for which the Governor-General may provide by regulation.

In my opinion, therefore, the Commission is not empowered to recommend to the Governor-General to provide by regulation for the granting of assistance and benefits in the form of living allowances; but the Act authorises the Governor-General to make such provision, and the making of such provision on the lines of the existing allowances would be authority for the continuance of allowances now being paid.

[Vol. 16, p. 480]