Legal Opinions

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81
1833
BANKING
JOINT OPINION OF J.B. TAIT, P.D. PHILLIPS, G. GOWANS AND C.I. MENHENNITT RELATING TO APPROACH TO BE TAKEN BY COMMONWEALTH IN APPLICATION FOR LEAVE TO APPEAL TO PRIVY COUNCIL FROM DECISION OF HIGH COURT IN BANK OF NSW v COMMONWEALTH (1948): CONSIDERATION OF GROUNDS ON WHICH APPEAL TO PRIVY COUNCIL SHOULD BE TAKEN: WHETHER APPEAL SHOULD BE CONFINED TO ISSUE OF INVALIDITY OF s 46 OF BANKING ACT 1947 FOR INFRINGING s 92 OF CONSTITUTION: WHETHER BANKING ACT 1947 SHOULD BE AMENDED PRIOR TO APPLICATION FOR LEAVE TO APPEAL: WHETHER BANKING ACT 1947 SHOULD BE AMENDED TO PROVIDE FOR CONCURRENT JURISDICTION OF HIGH COURT AND COURT OF CLAIMS: WHETHER CERTIFICATE SHOULD BE SOUGHT FROM HIGH COURT UNDER s 74 OF CONSTITUTION: WHETHER DECISION INVOLVES ‘A DECISION OF THE HIGH COURT UPON ANY QUESTION … AS TO THE LIMITS INTER SE OF THE CONSTITUTIONAL POWERS OF THE COMMONWEALTH AND THOSE OF ANY STATE OR STATES’: MEANING OF ‘DECISION OF THE HIGH COURT UPON ANY QUESTION’ IN s 74 OF CONSTITUTION: SCOPE OF BANKING POWER: ACQUISITION OF PROPERTY ON JUST TERMS: SEVERABILITY
GOWANS Gregory, MENHENNITT C.I., PHILLIPS P.D., TAIT J.B.
18 August 1948
CONSTITUTION ss 51(xiii), (xxxi), 74, 75(iii), 92: BANKING ACT 1947 ss 6, 13–21, 23, 46, Part 4, Div 4

RE BANKING CASE JUDGMENTS MEMORANDUM OF ADVICE (1)  Counsel in consultation have considered carefully the effects of the Reasons of Judgment of the Justices of the High Court1 and in the l...

82
1840
OWNERSHIP BY SHIPPING COMPANIES OF AIRLINES
COMMONWEALTH POWER TO PROHIBIT SHIPPING COMPANIES FROM HOLDING INTERESTS IN INTERSTATE OR OVERSEAS AIRLINES: FREEDOM OF INTERSTATE TRADE
BAILEY Kenneth Hamilton
18 August 1948
CONSTITUTION ss 51(i), (xx), (xxix), (xxxix), 92

I have given consideration to your minute, dated 6th August, in which, at the instance of the Minister for Air, you ask for my advice as to whether the Commonwealth has power to restrain shipping comp...

83
1841
PETROL, BUTTER AND TEA RATIONING
COMMONWEALTH POWER TO CONTINUE PETROL, BUTTER AND TEA RATIONING UNTIL 31 DECEMBER 1949: SCOPE OF DEFENCE POWER: POSSIBLE REFERENCES BY STATES WITH RESPECT TO PETROL, BUTTER AND TEA
BAILEY Kenneth Hamilton
18 August 1948
CONSTITUTION s 51(vi), (xxix), (xxxvii)

I refer to your request for advice regarding the adequacy of the Commonwealth’s constitutional powers to support the continuance of petrol, butter and tea rationing until 31st December, 1949. (2...

84
1842
SUBSIDY TO FARMERS
WHETHER COMMONWEALTH HAS POWER TO PAY SUBSIDY TO FARMERS ON PURCHASES OF SUPERPHOSPHATE: WHETHER PROPOSED SUBSIDY IS A BOUNTY: SCOPE OF COMMONWEALTH’S APPROPRIATION POWER: VALIDITY OF PROPOSED MEASURES TO SAFEGUARD EXPENDITURE UNDER APPROPRIATION ACT: SUBSIDY MADE BY WAY OF GRANTS TO STATES: COMMONWEALTH POWER TO REQUIRE MANUFACTURERS AND DISTRIBUTORS TO FURNISH RETURNS: FALSE STATUTORY DECLARATIONS
WHITLAM Harry Frederick Ernest
03 September 1948
CONSTITUTION ss 51(iii), 81: PRIMARY PRODUCERS RELIEF ACT 1935 s 8: STATUTORY DECLARATIONS ACT 1911: WHEAT GROWERS RELIEF ACT 1933 s 7

I refer to your memorandum dated 27th August, 1948, concerning a proposal to pay a flat rate subsidy direct to farmers on all superphosphate purchased by them in quantities of one ton or more and aski...

85
1843
TERRITORIES: HEARD AND MACDONALD ISLANDS
ACQUISITION BY AUSTRALIA OF TERRITORIES OF HEARD AND MACDONALD ISLANDS: EFFECT OF AUSTRALIAN OCCUPATION OF ISLANDS IN DECEMBER 1947: PROPOSED TRANSFER BY UNITED KINGDOM TO AUSTRALIA OF ITS RIGHTS IN THE ISLANDS: MEANING OF ‘ANY TERRITORY
WHITLAM Harry Frederick Ernest
06 October 1948
CONSTITUTION s 122

I refer to your memorandum dated 22nd June, 1948, requesting advice whether an exchange of notes between the United Kingdom Government and the Australian Government would be effective to place these I...

86
1844
PETROLEUM PRODUCTS
COMMONWEALTH POWER TO CONTROL DISTRIBUTION OF PETROLEUM PRODUCTS: COMMONWEALTH POWER TO REQUIRE PETROLEUM COMPANIES TO ADOPT A POOL DISTRIBUTION AND MARKETING SYSTEM: SCOPE OF DEFENCE POWER: SCOPE OF TRADE AND COMMERCE POWER: FREEDOM OF INTERSTATE TRADE: WHETHER POOL SYSTEM WOULD BE PRACTICABLE
WHITLAM Harry Frederick Ernest
25 November 1948
CONSTITUTION ss 51(i), (vi), 92

I refer to your memorandum of 13th October, asking for advice on the following questions: (a) Has the Commonwealth legal power to require the Companies comprising the oil industry to reconstitute Po...

87
1845
H0SPITALS
POWER OF COMMONWEALTH PARLIAMENT TO LEGISLATE TO ESTABLISH HOSPITALS FOR EX-SERVICEMEN: SCOPE OF DEFENCE POWER
McKENNA N.K.
09 December 1948
CONSTITUTION ss 51(vi), 109

I refer to your request for information as to the constitutional position of the Commonwealth in connexion with the establishment of hospitals for the reception and treatment of mentally afflicted ex-...

88
1846
BANKING
JOINT OPINION OF J.D. HOLMES AND B.P. MACFARLAN RELATING TO APPEAL TO PRIVY COUNCIL FROM DECISION OF HIGH COURT IN BANK OF NEW SOUTH WALES v COMMONWEALTH (1948): ARGUMENTS PROPOSED TO BE PUT BY COMMONWEALTH ON APPEAL: HIGH COURT’S GROUNDS FOR INVALIDATING s 46 OF BANKING ACT 1947: CERTIFICATE FROM HIGH COURT UNDER s 74 OF CONSTITUTION: WHETHER DECISION INVOLVES ‘A DECISION OF THE HIGH COURT UPON ANY QUESTION … AS TO THE LIMITS INTER SE OF THE CONSTITUTIONAL POWERS OF THE COMMONWEALTH AND THOSE OF ANY STATE OR STATES’: HISTORY OF DEVELOPMENT OF PROVISION WHICH BECAME s 74 OF CONSTITUTION: CROWN PREROGATIVE TO GRANT LEAVE TO HEAR AN APPEAL AGAINST A DECISION OF THE HIGH COURT ON A QUESTION RELATING TO s 92 OF CONSTITUTION: WHETHER PRIVY COUNCIL MAY DECIDE INTER SE QUESTIONS: POWER OF PRIVY COUNCIL TO VARY ORDER MADE 26 NOVEMBER 1948
, HOLMES J.D., MACFARLAN B.P.
01 January 1949
CONSTITUTION ss 51(xiii), 74, 92: BANKING ACT 1947 s 46: JUDICIARY ACT 1903 ss 23(1), 38A, 40A

We have been supplied with copies of the transcript of the proceedings before the Privy Council1 on an application by the Commonwealth of Australia and Others for Special Leave to Appeal against part ...

89
1847
WHALING
PROPOSED ESTABLISHMENT OF WHALING INDUSTRY IN AUSTRALIA: POWER OF COMMONWEALTH PARLIAMENT TO LEGISLATE WITH RESPECT TO WHALING AND TO AUTHORISE COMMONWEALTH OR A COMMONWEALTH BODY TO ENGAGE IN WHALING: MEANING OF ‘FISHERIES IN AUSTRALIAN WATERS BEYOND TERRITORIAL LIMITS’: MEANING OF ‘FISHERIES’: MEANING OF ‘FISHERY’ AT TIME CONSTITUTION WAS FRAMED: WHETHER COMMONWEALTH MAY BE GIVEN A MONOPOLY IN WHALING IN AUSTRALIAN WATERS BEYOND TERRITORIAL LIMITS: POWER OF FEDERAL COUNCIL OF AUSTRALASIA WITH RESPECT TO FISHERIES: APPROPRIATION POWER IN CONNECTION WITH WHALING INDUSTRY: MEANING OF ‘PURPOSES OF THE COMMONWEALTH’: WHALING IN AUSTRALIAN ANTARCTIC TERRITORY WATERS: APPLICATION OF STATE LAWS TO WHALING INDUSTRY: SCOPE OF COMMONWEALTH’S TRADE AND COMMERCE POWER
, WHITLAM Harry Frederick Ernest
13 January 1949
CONSTITUTION ss 51(i), (vi), (x), (xxix), (xxxix), 92, 109, 122: WHALING ACT 1935: QUEENSLAND PEARL SHELL AND BECHE-DE-MER FISHERIES ACT 1888 (Federal Council of Australasia): FEDERAL COUNCIL OF AUSTRALASIA ACT 1885 (UK) s 15

The Secretary, Department of Commerce and Agriculture, has forwarded the following memorandum to me for advice: The matter of the establishment of a Whaling industry in Australia has been receivi...

90
1848
HEALTH SERVICES
RIGHT TO ADMINISTRATIVE AND JUDICIAL REVIEW OF A DECISION BY THE DIRECTOR-GENERAL OF HEALTH TO REVOKE OR SUSPEND THE APPROVAL OF AN APPROVED PHARMACEUTICAL CHEMIST: JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS: INQUIRY BY THE FEDERAL PHARMACEUTICAL SERVICE GUILD OF AUSTRALIA
BAILEY Kenneth Hamilton
19 January 1949
PHARMACEUTICAL BENEFITS ACT 1947 s 13

I refer to your memorandum dated 20th December, 1948, forwarding copy of portion of a letter dated 22nd October, 1948, received by the Minister for Health from the Federated Pharmaceutical Service Gui...

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