Legal Opinions

Opinion Number. 1717

Subject

commonwealth powers bill
commonwealth powers bill: reference of matter by new south wales: whether alteration of constitution or powers of legislative council of new south wales: whether law respecting the powers of the legislature of new south wales

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

CONSTITUTION ACT 1902 (NSW) s 7A: COLONIAL LAWS VALIDITY ACT 1865 (U.K.) (28 & 29 Vict. c. 63): PARLIAMENTARY BILLS REFERENDUM ACT 1908) (Qld)

  1. In my opinion, a negative answer should be given.(1)
  2. Section 7A of the New South Wales Constitution Act 1902, so far as material, is as follows:
    1. The Legislative Council shall not be abolished nor, subject to the provisions of sub-section (6) of this section, shall its constitution or powers be altered except in the manner provided in this section.

Opinion Number. 1718

Subject

Commonwealth powers bill
commonwealth powers bill: reference of power by victoria: whether victorian reference act requires statutory majority or reservation for king’s assent: whether ‘alteration in the constitution of the Legislative Council or Legislative Assembly’: meaning of ‘constitution’

AuthorBAILEY Kenneth Hamilton, GARRAN Robert Randolph, KNOWLES George Shaw | Date
Key Legislation

VICTORIA CONSTITUTION ACT 1855 (U.K.) (18 & 19 Vict. c. 55) ss I, LX: Constitution (Reform) Act 1937 (Vic) s 4: COLONIAL LAWS VALIDITY ACT 1865 (U.K.) (28 & 29 Vict. c. 63) s 5: CONSTITUTION s 74: AUSTRALIAN STATES CONSTITUTION ACT 1907 (U.K.) (7 Edw. VII c. 7)

There shall be established in Victoria, instead of the Legislative Council now subsisting, one Legislative Council and one Legislative Assembly to be severally constituted in the manner hereafter provided, and Her Majesty shall have power by and with the advice and consent of the said Council and Assembly to make laws in and for Victoria in all cases whatsoever.

Opinion Number. 1719

Subject

commonwealth powers bill
commonwealth powers bill: refutation of allegations concerning conduct of Commonwealth’s legal advisers at meeting between legal advisers of Commonwealth and States on 2 december 1942: statement by Sir Robert Garran K.C., sir george s. knowles and professor k. h. bailey

AuthorGARRAN Robert Randolph | Date
Key Legislation

COMMONWEALTH POWERS (WAR) ACT 1915 (NSW)

  1. A memorandum submitted to the Attorney-General for South Australia on 18th December, 1942, by Mr. A.J. Hannan, K.C., Crown Solicitor of that State, describes in terms that make several serious reflections upon the Commonwealth’s legal advisers at a meeting between the legal advisers of the Commonwealth and the States which took place in the early hours of the morning on Wednesday, 2nd December last. As a number of legal opinions connected with the Commonwealth Powers Bill are being tabled in both Houses of the Parliament the three legal advisers of the Commonwealth named by Mr.

Opinion Number. 1720

Subject

POWERS OF THE SENATE
whether Senate has a right to reiterate a request for the amendment of a money Bill: ‘at any stage’

AuthorBAILEY Kenneth Hamilton, CASTIEAU John Gilbert Buckley, GARRAN Robert Randolph, KNOWLES George Shaw | Date
Key Legislation

Constitution ss 53-57: Excise Tariff (Spirits) Bill 1906: Appropriation Bill 1921: Constitution Act AmendmenT Act 1915 (Vic)

The question has arisen whether, the Senate having at any stage returned to the House of Representatives a Bill imposing taxation with a request for its amendment, and the House having refused the request, the Senate may reiterate or press the same request at the same stage.

Section 53 of the Constitution provides inter alia that:

Opinion Number. 1721

Subject

TAXATION
whether Income Tax Bill 1943 cl 2 contravenes Constitution s 55: ACT NOT TO BE PROCLAIMED BEFORE ANOTHER ACT COMES INTO OPERATION: laws imposing taxation TO deal only with imposition of taxation: ‘TACKING’: ‘DEAL WITH’: EFFECT OF CONTRAVENTION

AuthorBAILEY Kenneth Hamilton, CASTIEAU John Gilbert Buckley, GARRAN Robert Randolph, KNOWLES George Shaw | Date
Key Legislation

Income Tax Bill 1943 cl 2: National Welfare Fund Act 1943: Dairy Produce Export Charges Act 1924: Dairy Produce Export Control Act 1924: Constitution ss 53 para 2, ss 54, 55

  • We have jointly considered the question whether clause 2 of the Income Tax Bill 1943, by providing that the Governor-General may not proclaim the Act before the National Welfare Fund Act 1943 comes into operation, contravenes the rule laid down in section 55 of the Constitution that ‘laws imposing taxation shall deal only with the imposition of taxation’. We are all of opinion that it does not.

Opinion Number. 1722

Subject

National Security
Power of man power authorities to interrogate persons in clubs, hotels etc: power to detain persons: power to cause person to pause in order for authorised person to make known requirement to answer questions or produce documentS

AuthorKNOWLES George Shaw | Date
Key Legislation

National Security (Man Power) Regulations Part III, regs 5, 6, 13

  • The Acting Attorney-General has referred to me for opinion an inquiry made at a recent meeting of the Advisory War Council by the Hon. P.C. Spender regarding the legal power of the man power authorities to conduct ‘raids’ ‘on clubs, hotels, etc., involving the detention of members of the public, frequently behind locked doors, for man power examination’.

Opinion Number. 1723

Subject

CENSORSHIP
CENSORSHIP OF Members of the Australian Military Forces from writing or talking on military matters: COMMUNICATION OF PROHIBITED DEFENCE MATERIAL: COMMUNICATION OF SECRET MATERIAL: legaLITY OF ARMY Order relating to publication of information: BANNING BY Censorship of publication of any articles by or interviews with soldiers which do not conform to the Army OrdeR: RELEVANCE OF DISCIPLINE OF SOLDIER BY ARMY : publication OF articles or interviews without censorship approvAL

AuthorKNOWLES George Shaw | Date
Key Legislation

DEFENCE ACT 1903 ss 73, 73 a: CRIMES ACT 1914 s 79: Regulations and OrderS for the Australian Military Forces para 309: Acts Interpretation Act 1901 s 48: National Security (General) Regulations reg 17

I am in receipt of your memorandum of the 10th August, 1943, advising me that the Acting Director-General of Public Relations (Army) has circularised his deputies in all States instructing them to insist upon observance of an Army Order which forbids members of the Australian Military Forces from writing or talking on military matters for publication by any means whatever, and enclosing copy of a circular which has been sent to newspapers by the Director-General of Public Relations.

Opinion Number. 1724

Subject

Delegation OF FUNCTIONS by the Sovereign
Delegation OF FUNCTIONS by the Sovereign to Counsellors of StaTE in case of partial incapacity or of absence from United KingdOM: proposed amendments BY Government of the United Kingdom: whether request and consent of Australia required

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

Regency Act 193 7 (U.K.) (1 Edw. 8 & 1 Geo. 6 c. 16) ss 2(1),2(2), 6: Statute of Westminster 1931 (U.K.) (22 & 23 Geo. V c. 4) s 4

  • The Government of the United Kingdom proposed to amend section 6 of the Regency Act, in order to remove some practical defects in the provision made by the Act for the delegation by the Sovereign to Counsellors of State, in case of his partial incapacity or of his absence from the United Kingdom, of some of his functions. In my opinion the Act as it stands does not extend to Australia as part of the law thereof. The proposed amendments will likewise not so extend.

Opinion Number. 1725

Subject

PROSECUTION FOR PUBLICATION OF INFLAMMATORY POLITICAL PAMPHLET
Vigilant newspaper of 14 July 1943: pamphlet entitled ‘Rome’s Domination of the Parliamentary Labor Party’: PROSPECTS OF SUCCESS OF PROSECUTION: SEDITIOUS WORDS: ‘SEDITION’: ELECTORAL OFFENCES: PUBLICATION OF untrue or incorrect statement intended or likely to mislead or improperly interfere with elector in or in relation to casting of vote: defamatory libel

AuthorFULLAGAR Wilfred Kelsham, HAM Wilbur Lincoln | Date
Key Legislation

Crimes Act 191 4 s 24D: Commonwealth Electoral Act 1918 s 161(e)

We have before us a copy of The Vigilant newspaper of the 14th July 1943, together with a pamphlet entitled ‘Rome’s Domination of the Parliamentary Labor Party’. The pamphlet consists of an extract from the newspaper. It is unnecessary to set out the contents of either here. We are asked to advise as to the possibility of successfully launching criminal proceedings.

Opinion Number. 1726

Subject

Qualification for election to Parliament
Dame Enid Lyons: receipt of pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: ANNUITY payable during life or until remarriage: disputed elections

AuthorKNOWLES George Shaw | Date
Key Legislation

CONSTITUTION ss 44, 47: SPECIAL ANNUITIES ACT 1939 : Commonwealth Electoral Act 1902 Part XVI

With reference to your minute dated 5th October, 1943, I desire to inform you that section 44 of the Constitution provides that any person who, amongst other things, holds any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth shall be incapable of being chosen or of sitting as a member of the House of Representatives.