Introduction to Legal Opinions Volume 3: 1923-45
This third volume of the Opinions of Attorneys-General of the Commonwealth of Australia with opinions of Solicitors-General and the Attorney-General’s Department tells the national story in the period 1923–45 from an important perspective. This introduction highlights some of the key themes which emerge from this publication.
It is interesting to realise that 1923 is early in the development of the Commonwealth of Australia. Advice was still being provided on the arrangements for transferring functions and officers from colonial bodies to the new national government (Opinion No. 1318, 16 February 1923).
But it is the legal and political consequences of the First World War which are a major focus throughout the early years covered by this volume. Australia’s contribution to the First World War had been enormous, and Australians also played a role in negotiating the Treaty of Versailles and establishing the League of Nations. These new international arrangements were a significant issue upon which much legal advice was given, and this advice demonstrates the growing maturity of Australia as it began to grapple with international affairs and their domestic implementation. Australia’s responsibilities in its territories of Papua and New Guinea are a particular focus. Issues included the power of the Commonwealth to control immigration into New Guinea (Opinion No. 1384, 15 April 1926) and the expropriation of German property (Opinions Nos 1405, 7 January 1927, and 1441, 1 November 1928). There are important questions concerning relations within the British Empire, including the implications of the creation of the Irish Free State considered by Attorney-General Littleton Groom in Opinion No. 1317, 15 February 1923. Opinions Nos 1444 and 1446 of 20 May and 22 May 1929 considered Australia’s implementation of the proposed Geneva Convention on Arms and Ammunition, and Opinion No. 1530, 9 March 1933, discussed the regulation of whaling, which was the subject of a 1931 Convention. These issues remain topical today.
Parliament House in Canberra was opened on 9 May 1927, and the movement of much of the Commonwealth government from Melbourne to the new capital was a major task. The Attorney-General’s Department relocated at this time to West Block, close to new Parliament House in Canberra. Advice was given as to the procedure to effect a transfer of a sitting of the Parliament (Opinion No. 1403, 27 March 1926) and a tussle over the allocation of rooms in the new building (Opinion No. 1401, 30 September 1926).
The Great Depression becomes a significant focus for advice from 1929 onwards. In Opinion No. 1456, 3 February 1930, Solicitor-General Robert Garran considers the powers of the Commonwealth Parliament to make laws on unemployment insurance, and subsequent opinions build on this and consider a range of State and Commonwealth measures and their interaction. The issue of Commonwealth Treasury bills to repay State overdrafts is also considered by Garran in Opinion No. 1488, 30 April 1931. However, it is clear that this is still a time in which major decisions were taken without formal written legal advice, presumably on the basis of more informal personal discussions.
Questions concerning marketing schemes for agricultural products – and in particular their relationship to the very difficult section 92 of the Constitution, which provides that ‘trade, commerce and intercourse among the States … shall be absolutely free’ – are the subject of a number of advices throughout this volume. The issues became particularly relevant following the 1936 decision of the Privy Council in James v Commonwealth,1 which held that section 92 applied to the Commonwealth, and that its Dried Fruits Act 1928 was invalid. Opinion No. 1601, 21 August 1936, grappled with this issue in the context of the regulation of therapeutic substances, and Opinion No. 1604, 8 October 1936, considered a draft constitutional amendment to remove a Commonwealth law on the marketing of primary products from the operation of section 92.
In the second half of the 1930s, ominous events in Europe and Asia foreshadowed the Second World War. There are opinions about use of land in New Guinea for defence purposes (Opinion No. 1634, 1 August 1938), control of foodstuffs in time of war (Opinion No. 1645, 20 April 1939), compulsory military training (Opinions Nos 1653 and 1654, 30 October and 2 November 1939), and voting arrangements for members of Parliament engaged in active service at home and abroad (Opinion No. 1656, 16 November 1939).
The Second World War period saw a range of issues arise, in particular the expansion of Commonwealth powers in this time of war. A key issue was the Curtin government’s proposals to give Commonwealth income tax priority over any State tax (Opinions Nos 1696, 24 April; 1697, April; 1699, 1 May; and 1700, 1 May 1942). The Commonwealth legislation was upheld by the High Court in the First Uniform Tax case..2
But there are also advices on other issues arising from the Second World War, such as the application of domestic law to foreign forces (Opinion No. 1706, 26 August 1942), censorship of the reporting of the escape from the Cowra prisoners of war camp (Opinion No. 1733, 9 August 1944), and the role of women in the defence effort (Opinions Nos 1701, 1702 and 1703 of 29 May, 8 June and 10 July 1942).
Advice towards the end of the war foreshadowed important post-war developments. The Pharmaceutical Benefits Act 1944 was considered in Opinion No. 1735, 26 September 1944, and though this Act was found invalid by the High Court in the Pharmaceutical Benefits case,3 this was remedied by a rare successful referendum held on 28 September 1946. There was advice dealing with Commonwealth power to prohibit a bank, without the consent of the Commonwealth Treasurer, from conducting banking business for a State (Opinion No. 1737, 11 January 1945). This prohibition was struck down by the High Court in Melbourne Corporation v Commonwealth,4 a fundamental case on the power of the Commonwealth to regulate State governments within the Australian federal arrangements.
In advice dated 6 August 1945 (Opinion No. 1747) Kenneth Bailey considered the most appropriate procedure for securing parliamentary endorsement of the Charter of the United Nations.
The period covered by this volume saw some major constitutional developments. Prime Minister James Scullin, Attorney-General Francis Brennan and Robert Garran attended the Imperial Conference of 1930, which approved the Statute of Westminster 1931, demonstrating what Garran described as the fact that ‘Britain had in effect renounced the parenthood of her children and stepped down to a senior sisterhood’5 (Opinion No. 1500, 18 November 1931). There was significant delay in Australia’s adoption of the Statute, which occurred with the enactment by the Commonwealth Parliament of the Statute of Westminster Adoption Act 1942.
However, as is often the case in Australia, constitutional change by referendum remained elusive. In the period covered by this volume, six referendum questions were put to the people (in 1926, 1928, 1937 and 1944), but only the referendum held on 17 November 1928 was successful. This inserted into the Constitution section 105A, enabling the Commonwealth to enter into financial agreements with the States. Opinions Nos 1713 to 1719 from 5 December 1942 to 25 February 1943 by Attorney-General Herbert Evatt and others deal with the proposed Commonwealth Powers Bill, which sought to expand Commonwealth powers during and for five years after the Second World War by a referral from the States under section 51(xxxvii) of the Constitution. A proposed amendment of the Constitution in similar terms, which also sought to guarantee freedom of speech and further guarantee freedom of religion, was defeated at the referendum held on 19 August 1944.
This period saw some key High Court decisions in addition to those already mentioned. Pirrie v McFarlane6 demonstrated that important constitutional issues can arise from everyday activities. In that case the High Court held that a member of the Royal Australian Air Force (RAAF) driving along St Kilda Road in an RAAF car on RAAF business was nonetheless required to have a licence under Victoria’s Motor Car Act 1915. This difficult issue of intergovernmental immunity – that is, which State laws apply to the Commonwealth government and which Commonwealth laws apply to the State governments – is a major subject of advice throughout this period. In Huddart Parker Ltd v Commonwealth7 the High Court upheld the use of Commonwealth power to regulate employment relations in connection with overseas and interstate shipping. The Court made it clear that the Australian Constitution was to be understood as a document conferring broad powers on a government with national and international responsibilities. And in Australian National Airways Pty Ltd v Commonwealth8 the Court articulated a fundamental principle of Commonwealth constitutional construction:
... it is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances.
The opinions demonstrate the task of government legal advisers seeking to apply their understanding of basic constitutional principles to emerging issues, to predict the outcomes of any consideration of these by the High Court, and then to incorporate in further consideration the newly expressed, and sometimes surprising, views of the Court.
There is also a wide range of opinions about the machinery of the Commonwealth government. These include an opinion by Attorney-General Francis Brennan on the termination of the appointment of Ministers during a turbulent period in which the Scullin government grappled with the Depression (Opinion No. 1485, 3 March 1931), and an important opinion by Attorney-General John Latham on parliamentary privilege, arising from newspaper articles published in reaction to an increase in the salary of members of Parliament (Opinion No. 1549, 5 November 1933). The complexities of federation are demonstrated by the opinion that grapples with which government is responsible for a tourist boat on the River Murray (Opinion No. 1602, 3 September 1936).
The opinions also provide an insight into the major social issues and changes within the period. There are some developments which did not last, like the penny slot machine for leaving messages on street corners (Opinion No. 1475, 4 November 1930, though perhaps this was the precursor of modern social media). But there are other major scientific and technological developments which did endure, such as the motor car (Opinion No. 1361, 28 November 1924), aircraft (Opinion No. 1609, 24 February 1937 dealt with issues arising from the attempted round-the-world flight of Amelia Earhart), film (Opinion No. 1376, 6 October 1925) and radio (Opinion No. 1350, 11 July 1924), and an advice by Attorney-General Robert Menzies foreshadows the arrival of television (Opinion No. 1642, 20 March 1939). This period also saw significant improvements in health and welfare services (Opinion No. 1677, 20 January 1941). Immigration continued to be a major political and social issue (Opinion No. 1375, 3 September 1925). Censorship was a regular topic of legal advice; Opinion No. 1459, 5 May 1930, considered whether Redheap by Norman Lindsay was ‘indecent or obscene’. The legal position of Australia’s Indigenous people begins to emerge as an issue of growing consideration, including by Solicitor-General George Knowles in Opinion No. 1622, 14 January 1938.
Major legal personalities held the position of Attorney-General in this period beginning with Littleton Groom (1921–25), who had been in the Parliament since 1901 and went on to be Speaker. He was followed by John Latham (1925–29 and 1932–34), who had been a leader of the Melbourne Bar and went on to become Chief Justice of the High Court from 1935 to 1952. Francis Brennan (1929–32) was Attorney-General in the Scullin government during the Depression. Robert Menzies (1934–39), also a leader at the Melbourne Bar, fulfilled the role through the Lyons government, going on to become Australia’s longest-serving Prime Minister. Former Prime Minister William Morris Hughes (1939–41) returned to the role of Attorney-General at the age of 76, and former High Court Justice Herbert Evatt (1941–49) took on the position when the Curtin government came to power. Solicitor-General and Secretary of the Department Robert Garran, who had played such a major role in Federation and the development of the Commonwealth government, retired in 1932 and was succeeded by George Knowles, who remained Solicitor-General and Secretary until 1946. This volume also contains biographies of these outstanding Australians.
1. (1936) 55 CLR 1.
2. South Australia v Commonwealth (1942) 65 CLR 373, although this aspect of the Commonwealth’s takeover of State income tax was subsequently held invalid in Victoria v Commonwealth(1957) 99 CLR 575.
3. Attorney-General (Vic); ex rel Dale v Commonwealth(1945) 71 CLR 237.
4. (1947) 74 CLR 31.
5. Garran, RR 1958, Prosper the Commonwealth, Angus and Robertson, p. 326.
6. (1925) 36 CLR 170.
7. (1931) 44 CLR 492.
8. (1945) 71 CLR 29 at 81, Dixon J.