Opinion No. 1383
assistance for acquisition of homes: power to establish Department or Branch of Public Service to undertake granting of assistance: power to create or utilise branch of Commonwealth Bank for purpose: banking power: ‘banking’
Constitution s 51(xiii)
22 March 1926
I have been asked to advise as to the means by which the Commonwealth may give effect to the policy enunciated by the Prime Minister at the last election in relation to the granting of assistance to manual workers and persons of small means to acquire homes on a basis of repayment extending over a long period of years.
Two courses call for consideration–
- the establishment of a Department or Branch of the Public Service to undertake the granting of assistance for the purposes; or
- the creation or utilisation of a branch of the Commonwealth Bank for the purpose.
As regards the former, I am unable to find in the Constitution any provision authorizing the establishment of a Department or Branch of the Public Service for the purpose named. I think therefore that the adoption of this course is not open to the Commonwealth.
As regards the second course, its adoption depends on the meaning of the word ‘banking’ in placitum (xiii) of section 51 of the Constitution, under which the Commonwealth is empowered to make laws for the peace, order and good government of the Commonwealth with respect, inter alia, to ‘banking other than State banking’.
In the case of the Attorney-General for New South Wales v. the Brewery Employees Union of New South Wales, 6 C.L.R. 469, the High Court held that the meaning of terms used in the Constitution must be ascertained by their signification in 1900.
The question as to the signification which the word ‘banking’ had in 1900 would necessitate consideration of the use of the term in laws prior to the establishment of the Commonwealth. In view, however, of the fact that in Victoria in 1896 legislation was passed providing for the establishment of a Credit Foncier or Advances Department of the State Savings Bank, there is, I think, little doubt that the power of the Commonwealth to legislate as to banking extends to the creation or utilisation of a Branch of the Commonwealth Bank to grant assistance to manual workers and persons of small means to acquire homes on a basis of repayment extending over a long period of years.
[Vol. 22, p. 518]