Legal Opinions

1. We are asked to advise whether the draft Bills for the Income Tax Assessment Act 1942 and the Income Tax (War-Time Arrangements) Act 1942 are in any respect ultra vires, and generally on the constitutional aspects of the proposals for uniform income taxation for the duration of the war and one year thereafter.

We wish to suggest some minor modifications in the two Bills, but subject to those modifications, and perhaps even without them, both measures are in our opinion valid, and would be upheld by the Courts.

With reference to your memorandum of 9th March, the expression ‘member of the Naval, Military or Air Forces of the Commonwealth’ in the Post and Telegraph Rates (Defence Forces) Act and in regulation 139A of the Telephone Regulations must, I think, be read in the light of section 30 of the Defence Act 1903–1941, which is as follows:

30. The Defence Force shall consist of the Naval, Military and Air Forces of the Commonwealth, and shall be divided into two branches called the Permanent Forces and the Citizen Forces.

In our first joint opinion we advised upon the validity of the draft (War Time Arrangements) Bill on the assumption that it might not be permissible to legislate directly and in terms to exclude the States from their right to impose a State Income Tax. That precise point was for the time being left in abeyance. For the purposes of our previous opinion we accepted that assumption but we were careful to state that we expressed no opinion one way or the other for or against the validity of such assumption.

1. I entirely agree with the Prime Minister’s analysis of the political pros and cons of the taxation proposals as stated in P.M. 53. The only matter which I was anxious about was the legal aspect, as it would be possible for any of the six states to challenge the legislation in the High Court.

I refer to your memorandum No. 3963 of 21st May, 1942, relating to the Women’s Auxiliary Forces of the Army, Air and Naval Services, and the copy of a memorandum from the Secretary, Department of Air, submitting the proposals of the Department, forwarded under cover thereof. I have also received from the Secretary, Department of the Army, a copy of his memorandum to you containing the views of the Department of the Army.

I refer to your memorandum of 5th June, 1942, enclosing a draft Bill to make provisions for the retirement of females from the engineering industry at the conclusion of the present state of war, and asking my advice as to its validity.

The provisions proposed to be included in the Bill constitute, in my opinion, a purported regulation of industry. The Constitution confers on the Commonwealth no direct power to legislate with respect to the regulation of industry.

With reference to your memorandum of 1st June, since writing my memorandum of 30th April⁽¹⁾ I have, in another connexion, further examined the position of the Australian Women’s Army Service, in the light of further information furnished to me.

With reference to your memorandum of 28th April, 1942, asking me to draft regulations to amend the National Security (Apple and Pear Acquisition) Regulations, I forward herewith twenty copies (including the Reader’s copy) of draft amending regulations.

The Acting Chairman, Tea Control Board, has submitted for advice a claim by D. and J. Fowler Limited for payment under regulation 44 of the National Security (Prices) Regulations of the value of certain tea claimed to have been under the Company’s control in the Netherlands East Indies on 28th February last, the date on which the Minister for Trade and Customs issued a notice requisitioning all tea in the possession or under the control of that company.

Regulation 44(1)–(3) of the National Security (Prices) Regulations reads as follows:

In reply to your memorandum dated 5th June, 1942 (1542/W42/2258) I desire to inform you that, by international law, the armed forces of a foreign nation are not subject to the laws of this country (see Maxwell, The Interpretation of Statutes, 8th edition, p. 130). Consequently, any law providing for the compulsory insurance by an employer of his employee is not binding on such forces.

[Vol. 34, p. 520]