Legal Opinions

The Minister for Home Affairs has asked for advice as to the effect of State laws' reservations as against the Commonwealth in respect of land acquired under the Lands Acquisition Act 1906 and generally.

The reservations are not the same in the case of all grants but it appears to be the general policy of the States to reserve the right to metallic minerals with incidental rights as to mining.

The Minister for Home Affairs asks to be advised as to the constitutionality of the railway rates referred to in the following statement:

In reply to a question asked in the Legislative Assembly, the Premier of Victoria on the 2nd instant stated that-

There appears to be no doubt that-whether action under section 61 of the Property for Public Purposes Acquisition Act 1901 would be enforced by mandamus or not-it is a perfectly valid enabling provision, with which it is lawful for the State Recorder to comply. Cf. a number of American authorities as to the power of Congress to confer authority on State officers: e.g. Kentucky v. Dennison 24 How. 108; Levin v. U.S. 128 F.R. 826; Taylor v. Taintor 16 Wall. 370; Ex parte Virginia 100 U.S. 339; Ex parte Siebold 100 U.S.

The Court of Disputed Returns has declared the recent election of senators for the State of South Australia to be absolutely void in respect of the return of Mr Vardon.⁽¹⁾

The Minister for Home Affairs refers the matter to me for advice as to the procedure to be followed to fill the vacancy in South Australia's Senate representation occasioned by the Court's decision.

The facts material to be stated are as follows:

A question has arisen as to the proper mode of gazetting the assent to the Constitution Alteration (Senate Elections) 1906 passed by both Houses of Parliament at the latter end of last session, and subsequently approved at a referendum. His Excellency has sent a message to the Clerk of Parliaments but it is understood that Mr Blackmore is unable to take upon himself to gazette the assent, as Parliament has no official knowledge of it.

Mr Vardon, whose election to the Senate was declared void by the Court of Disputed Returns (see my opinion of 8 June 1907⁽¹⁾) has sent a communication to the Commonwealth Electoral Officer for South Australia requiring him to hold a new election under section 205, paragraph (iii), of the Commonwealth Electoral Acts 1902-1906, 'to complete compliance with the original writ rendered incomplete by the judgment of the Court of Disputed Returns'.

Section 4 of the Life Assurance Companies Act 1905 requires (sub-section 2) a State Registrar of Deaths where an application is made to him for a certificate of the death of a child for the purposes of the Act, to write certain words at the foot of the certificate; and contains other directions to the Registrars of Deaths as to the issue of such certificates.

The following memorandum has been referred to me for advice:

A question having been raised by the Audit Department as to whether a charge for use of private bridges, etc. by troops on duty should be made in view of section 70 of the Defence Acts 1903-1904,1 would be glad if a ruling can be given.

It has hitherto been considered that the paragraph referred to was intended to apply to bridges, etc. on which the toll is paid to the Government.

I am of opinion-

The Commonwealth Statistician has called the attention of the Minister for Home Affairs to a Statistics Bill introduced into the Legislative Council of Western Australia by a Minister of the State. He points out that the Bill closely follows the Census and Statistics Act 1905 of the Commonwealth, involves the same obligations on citizens of the State, and will lead to a duplication of functions and a confusion of authority, and refers to section 51 (xi) of the Constitution-'Census and statistics', and also to section 109 (inconsistency of laws).

The Premier of South Australia has written to the Prime Minister a letter of which the following is the text: