Legal Opinions

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.

• 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.

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

Memorandum No. 1

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:

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.

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’.

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.

• 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.

• 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.

2. The matters to which my attention has particularly been directed are:
1. the Pharmaceutical Benefits Act 1944;

• 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: