Legal Opinions

I have been asked to advise as to whether it would be constitutional to provide:

I am in receipt of your letter of 5th January relative to your earlier request for an opinion as to whether there is any legal impediment to action by the Commonwealth Government to nationalise the coal industry if it should desire to do so.

Unfortunately, I have been away from the office for some time in consequence of a surgical operation which took place early in November. I have only within the last few days returned to the office. I regret that there has been considerable delay answering your letter.

The Treasurer has asked a number of questions relating to the constitutional powers of the Commonwealth, in time of peace, with respect to banking and certain other cognate financial matters. To answer these questions has required extensive investigations, not only into some more or less uncharted fields of Australian constitutional law, but also into some branches of the constitutional law of the United States and Canada. It will be necessary to state my opinion at some length.

The Commissioner of Taxation has forwarded the following memorandum to me for advice:

A draft Cabinet minute has been prepared proposing amendments to the Income Tax Assessment Act, one of which is to allow an income tax deduction to all taxpayers residing in certain defined areas of the Commonwealth. The relative part of the draft minute reads as follows:

The proposals contained in this submission are that some measures of relief from taxation should be granted–

I forward herewith, for such action as you consider appropriate, a copy of correspondence with Mrs B. of Sydney on the question of whether Australians have, in law, a nationality as distinct from a British nationality.

For your information, I append a statement of the position as it appears to me.

In his radio reply Dr. C. stated, inter alia, that Australians have no legal nationality and that there is not an Australian nationality as distinct from a British nationality.

We have been asked to advise as to whether it is within the powers of the Commonwealth to legislate with regard to the grant to persons who have been members of the Forces, of preference in employment, whether by the Commonwealth or otherwise, for an indefinite period or for a limited period after the termination of the war.

I refer to the following matters raised some little time ago by the Official Secretary to the Governor-General.

The Minister for Commerce and Agriculture:

I refer to your letter of 9th January, 1945, addressed to the Attorney-General, forwarding copies of papers received by you from the Egg Producers Council and requesting that the Attorney-General should advise on certain questions formulated by the Council concerning the power of the Commonwealth to implement a scheme for the marketing of eggs on an Australia-wide basis in the post-war period.

I refer to your memorandum dated 14th March, 1945, in which you ask for advice as to the Constitutional power of the Commonwealth ‘to prescribe wages and conditions of employment for returned servicemen and women, as part of the Commonwealth’s Preference proposals’.

In reply, I desire to inform you that I do not think the Commonwealth’s power to legislate with respect to defence extends so far. In my view, the Commonwealth has no power to prescribe the terms and conditions of employment of persons merely because they were at one time members of the Forces.

I refer to your memorandum herein dated 4th July, 1945. The question for determination is whether, for the purpose of providing capital funds for housing purposes of the States under the National Housing Scheme, it would be legally in order for the Commonwealth itself to raise the funds required and make from those funds advances to the State Governments on stated terms and conditions regarding repayment.