Legal Opinions

The Public Service Commissioner asks to be advised on the following matter:

A question has arisen whether the approval by the Executive Council of the creation or abolition of offices (section 41) which is conveyed by Executive Minute, can be considered as an Order in Council within the meaning of section 76, and if not, what distinction is usually drawn between an Order in Council and an Executive Minute.

Section 76 of the Commonwealth Public Service Act 1902 provides as follows:

The Auditor-General:

The Auditor-General asks to be advised on the following question:

Is it necessary for the authority of the Governor-General to be obtained under the provisions of section 78 sub-section (3) of the Commonwealth Public Service Act 1902, in cases where payments of money to officers are made from penalties and forfeitures recovered under any Customs Act, and which moneys are paid under the direction of the Minister as provided in section 264 of the Customs Act 1901?

Section 264 of the Customs Act 1901 is as follows:

The Prime Minister:

Regulation 41 of the Commonwealth Public Service Regulations provides as follows:

Officers not to take part in Politics.

41. Officers are expressly forbidden to publicly discuss or in any way promote political movements. They are further forbidden to use for political purposes information gained by them in the course of duty.

The Chairman, Select Committee of the Senate on the case of Major J, W. M. Carroll:

The Select Committee of the Senate appointed to inquire into and report upon the case of Major Carroll have asked for my opinion as to whether the Committee have power to compel any person within the Commonwealth to give evidence by statutory declaration.

The Chairman, Select Committee of the House of Representatives on Electoral Act Administration:

The Chairman of the Select Committee of the House of Representatives on Electoral Act Administration asks my opinion on the following question:

What protection can be offered to witnesses in respect of anything that may be said by them before a select committee of the House of Representatives?

I am of opinion as follows:

The Comptroller-General of Customs:

It appears that in February 1904 certain tea was transferred from New South Wales to Queensland, and on analysis in Queensland was found to be adulterated with 'lie-tea'.

It appears that the tea was originally imported into New South Wales under the old State tariff (presumably before the passing of the Customs Act 1901) and was not then analysed.

By a Queensland Order in Council made under the Queensland Health Act o/1900 (gazetted 4 June 1903) iie-tea' is declared to be an injurious ingredient in tea.

The Prime Minister asks for my opinion on the point whether the power of legislation conferred on the Parliament by section 51, sub-section (xxxii) of the Constitution is sufficient to authorize the passing of a law to compel the State railway authorities to carry members of the Defence Forces from place to place as required at rates to be fixed by the Government of the Commonwealth.

With reference to my opinion of 19 July 1904⁽¹⁾, the Comptroller-General of Customs asks to be further advised:

On 11 July 1904 the Secretary, Postmaster-General's Department referred to the Secretary of this Department a question from the Deputy Postmaster-General, Western Australia, as to whether telegrams from a mining company might, upon a subpoena from the President of the State Royal Commission sitting at Boulder, be produced to the Commission.

A memorandum dated 2 August 1904 by the Chief Electoral Officer has been submitted to me for advice.

The memorandum relates to regulation 14 of the Regulations of 19 October 1903, under the Commonwealth Electoral Act 1902, and apparently raises the following questions: