Legal Opinions

Opinion Number. 1727

Subject

CONSTITUTIONAL AMENDMENT
WHETHER BILL TO ALTER CONSTITUTION FOR A LIMITED TERM CAN CONTAIN PROVISION FOR THE HOLDING OF ANOTHER REFERENDUM ON CONTINUANCE AT THE EXPIRATION OF THAT TERM

AuthorKNOWLES George Shaw | Date
Key Legislation

CONSTITUTION s 128

I have been asked to advise whether provision could be made in the Constitution Alteration Bill,(1) about to be introduced into the Parliament, for the holding, at the expiration of five years from the cessation of hostilities, of a referendum on the question whether the additional powers being sought by the Bill are to be conferred permanently.

In my view the answer to this question is No.

Opinion Number. 1728

Subject

TAXATION
UNIFORM INCOME TAXATION AND PROPOSALS FOR THE ADOPTION OF ‘PAY-AS-YOU-GO’: QUESTION OF PRIOR CONSULTATION WITH STATES: CESSATION OF WAR : EXPIRY OF TEMPORARY ARRANGEMENTS

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

STATES GRANTS (INCOME TAX REIMBURSEMENT) ACT 1942

  • You will recall that after consultation with you the Treasurer asked me to look into a question concerning the proposed adoption of a plan of ‘pay-as-you-go’ taxation. The Treasurer asked whether, having regard to the Commonwealth’s relations with the States under the uniform income tax legislation, any adoption by the Commonwealth of a ‘pay-as-you-go’ plan should be preceded by some consultation and agreement with the States.

Opinion Number. 1729

Subject

PENSION
ELIGIBILITY OF TORRES STRAIT ISLANDERS

AuthorKNOWLES George Shaw | Date
Key Legislation

INVALID AND OLD-AGE PENSIONS ACT 1908–1943 ss 16, 21(1): WIDOWS’ PENSIONS ACT 1942–1943 ss 6, 14 : MATERNITY ALLOWANCE ACT 1912–1943 s 6(2): ABORIGINALS PRESERVATION AND PROTECTION ACT 1939 (Qld) ss 4, 5(2), 5(3): TORRES STRAIT ISLANDERS ACT 1939 (Qld)

The Commissioner of Pensions has forwarded the following memoranda to me for advice:

Memorandum No. 1

Opinion Number. 1730

Subject

FOOD CONTROL
FOOD CONTROL: WAR CONDITIONS: SHORTAGES IN SOME PARTS OF AUSTRALIA AND SURPLUS STOCKS OF FOODSTUFFS IN OTHERS: REGULATION OF MOVEMENT OF FOODSTUFFS INTERSTATE: FREEDOM OF INTERSTATE TRADE: DISCRIMINATION BETWEEN STATES: NATIONAL SECURITY (FOOD CONTROL) REGULATION

AuthorCASTIEAU John Gilbert Buckley | Date
Key Legislation

CONSTITUTION ss 92, 99

I refer to your memorandum dated 5th January, 1944, seeking advice as to what action would be constitutionally possible to control the movement of foodstuffs from one State to another. From subsequent correspondence it appears that the question has arisen in the following circumstances:

Opinion Number. 1731

Subject

CONSTITUTIONAL AMENDMENT
PROPOSED CONSTITUTIONAL AMENDMENT: CONSTITUTION ALTERATION (POST-WAR RECONSTRUCTION AND DEMOCRATIC RIGHTS) BILL 1944: EXERCISE OF POWERS OF GOVERNOR-GENERAL: REQUIREMENT FOR SUBMISSION OF PROPOSED LAW TO AND APPROVAL OF ELECTORS: QUESTION OF RESERVATION FOR SOVEREIGN’S PLEASURE

AuthorEVATT Herbert Vere | Date
Key Legislation

CONSTITUTION ALTERATION (POST-WAR RECONSTRUCTION AND DEMOCRATIC RIGHTS) BILL 1944: CONSTITUTION ss 58, 128

I have the honour to acknowledge receipt of a letter dated 27th March, 1944, from the Military and Official Secretary to Your Excellency transmitting a copy of a proposed law passed by the Senate and the House of Representatives of the Commonwealth entitled Constitution Alteration (Post-war Reconstruction and Democratic Rights) 1944 and communicating to me Your Excellency’s desire that I should peruse and advise upon the measure.

Opinion Number. 1732

Subject

POLITICAL NAMES
PROPOSAL TO PROTECT USE OF POLITICAL NAMES : PROPOSAL TO PROHIBIT USE OF NAME ‘AUSTRALIAN LABOR PARTY’ AND ASSOCIATED NAMES : COPYRIGHT : TRADE MARKS : POWER TO LEGISLATE WITH RESPECT TO ELECTIONS : INCIDENTAL POWER

AuthorEVATT Herbert Vere | Date
Key Legislation

COPYRIGHT ACT 1905 : TRADE MARKS ACT 1905

With reference to your request that I should give consideration to the possibility of amending the Electoral Act, the Copyright Act or the Trade Marks Act to protect the Australian Labor Party by prohibiting the use, otherwise than by the Australian Labor Party, of the titles ‘Australian Labor Party’, ‘ALP’, or ‘Labor’.

Opinion Number. 1733

Subject

CENSORSHIP
PRISONERS OF WAR CAMP, COWRA: ESCAPE OF PRISONERS: PUBLICATION OF MATTER IN SUNDAY TELEGRAPH: QUESTION OF BREACH OF PRESS AND BROADCASTING CENSORSHIP ORDER: REQUIREMENT FOR SERIOUS DEFENCE SECURITY ASPECT: PROOF OF SERVICE OF DIRECTION ON EDITOR

AuthorKNOWLES George Shaw | Date
Key Legislation

PRESS AND BROADCASTING CENSORSHIP ORDER paras 11(1)(A), 11(1)(B), 11(1)(C), 12A, 12D

The Private Secretary to the Prime Minister (Mr. McLaughlin) has informed me that the Prime Minister desires me to advise on the question as to whether a breach of the Press and Broadcasting Censorship Order is involved in the publication in the Sydney Sunday Telegraph of 6th August, 1944, of a certain matter in relation to the escape of prisoners from the Prisoners of War Camp at Cowra, New South Wales, and to bring under notice any matters which in my view call for consideration in connection with the question of prosecution.

Opinion Number. 1734

Subject

NATIONALISATION OF INTERSTATE COMMERCIAL AVIATION
TRADE AND COMMERCE POWER: POWER TO NATIONALISE INTERSTATE COMMERCIAL AVIATION: EXCLUSION OF ALL PRIVATE AGENCIES FROM INTERSTATE COMMERCIAL AVIATION: FREEDOM OF INTERSTATE TRADE: MONOPOLISATION OF PARTICULAR MEANS OF INTERSTATE TRANSPORT: POWER TO ‘CANALISE’ COURSE OF TRADE WITHIN PRESCRIBED AGENCIES

AuthorKNOWLES George Shaw | Date
Key Legislation

CONSTITUTION ss 51(i), (xxxi), 92

  • I am asked to advise whether the Constitution permits the Commonwealth to nationalise interstate commercial aviation. Such a policy would require the establishment of a Commonwealth instrumentality, with an exclusive right to carry on the transport of persons and goods interstate. In my opinion the Constitution does authorise the carrying out of such a policy.

Opinion Number. 1735

Subject

PHARMACEUTICAL, HOSPITAL AND MEDICAL BENEFITS
VALIDITY OF PHARMACEUTICAL BENEFITS ACT 1944 AND OF COMMONWEALTH HOSPITAL AND MEDICAL BENEFITS SCHEMES : STANDING TO CHALLENGE VALIDITY OF COMMONWEALTH ACT APPROPRIATING MONEYS : SCOPE OF APPROPRIATION POWER : ‘FOR THE PURPOSES OF THE COMMONWEALTH’ : EXTENT OF INCIDENTAL POWERS : POWER TO IMPOSE REQUIREMENTS OF MEDICAL BENEFITS SCHEME ON ALL LEGALLY QUALIFIED MEDICAL PRACTITIONERS

AuthorKNOWLES George Shaw | Date
Key Legislation

PHARMACEUTICAL BENEFITS ACT 1944 ss 8(2), 11(3), 12, 21, 22, 23 : CONSTITUTION ss 51(xxxix), 81, 96

  • Subsequently to the rejection by the electors of the Constitution Alteration (Post-War Reconstruction and Democratic Rights) Bill 1944,(1) the Director-General of Health sought my opinion upon the constitutional validity of certain measures necessary for carrying out the Government’s policy in relation to health and social security.
  1. The matters to which my attention has particularly been directed are:
    1. the Pharmaceutical Benefits Act 1944;

Opinion Number. 1736

Subject

STANDARDISATION OF RAILWAY GAUGES
RAILWAYS: STANDARDISATION OF RAILWAY GAUGES: POWER OF COMMONWEALTH TO MAKE CONDITIONAL GRANTS TO STATES FOR PURPOSE OF UNIFICATION OF GAUGES: USE OF DEFENCE AND/OR TRADE AND COMMERCE POWER TO REGULATE INTERSTATE TRANSPORT: INTERSTATE TRANSPORT: POWER TO REGULATE STATE INSTRUMENTALITIES: POWER TO REGULATE COMMON CARRIERS: VALIDITY OF GRANT CONDITIONAL ON STATE ALTERING ITS LAW

AuthorKNOWLES George Shaw | Date
Key Legislation

CONSTITUTION ss 51(i), (vi), 96, 98

  • My views are desired on the following matters:
    1. Whether the Commonwealth can make conditional Grants to States for the purpose of unification of their gauges analogous to the Federal Aid Roads Grants, the conditions generally being to observe the provisions set out hereunder.
    2. If the States refused to accept the Grant on these terms, whether the Commonwealth can utilise its powers of defence and / or trade and commerce in sections 51 and 98 of the Constitution to regulate interstate transport by: