- The obligations to be undertaken by Australia under the Charter of the United Nations are substantial and of a continuing character. The desirability is therefore assumed of obtaining some formal expression of approval of the Charter by both Houses of Parliament.
- The possible procedures seem to be:
- an implied approval, implicit in the ordinary motion for printing the Delegation’s Report;
- an express approval, by resolution ad hoc;
- express approval by Act of Parliament.
Legal Opinions
Opinion Number. 1747
Subject
| Date
UNITED NATIONS
PROCEDURE FOR SECURING PARLIAMENTARY ENDORSEMENT OF THE CHARTER OF THE UNITED NATIONS: CONCLUSION AND RATIFICATION OF TREATIES: CROWN’S PREROGATIVE IN RELATION TO EXTERNAL AFFAIRS: FUNCTION OF PARLIAMENT: INTERIM ARRANGEMENTS: QUESTION OF PARLIAMENTARY APPROVAL OF AGREEMENT ESTABLISHING PREPARATORY COMMISSION OF UNITED NATIONS
Key Legislation
CHARTER OF THE UNITED NATIONS AND STATUTE OF THE INTERNATIONAL COURT OF JUSTICE [1945] ATS 1 Chapters XI, XII, arts 43, 45, 55, 56, 73: TREATY OF PEACE (GERMANY) ACT 1919: THE TREATY OF PEACE BETWEEN THE ALLIED AND ASSOCIATED POWERS AND GERMANY done at Versailles on 28 June 1919 [1920] ATS 1 Parts I, X: UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION ACT 1944 s 4: UNITED NATIONS FOOD AND AGRICULTURE ORGANIZATION ACT 1944 s 4: TREATIES OF PEACE (AUSTRIA AND BULGARIA) ACT 1920 s 3
Opinion Number. 1748
Subject
| Date
BANKING
‘BANKING’: ‘BANKING BUSINESS’: WHAT CONSTITUTES ‘BANKING BUSINESS’ FOR PURPOSES OF BANKING ACT 1945
Key Legislation
BANKING ACT 1945: CONSTITUTION s 51(xiii): MONEYLENDERS ACT 1927 (U.K.) (17 & 18 Geo. V c. 21) s 4(3): MONEY LENDERS ACT 1938 (Vic) s 24(2): CO-OPERATION ACT 1923
I refer to your memorandum dated 1st August, 1945, inquiring as to what constitutes ‘banking business’ for the purposes of the Banking Act 1945.
Opinion Number. 1749
Subject
| Date
PRICE CONTROL
CONSTITUTIONAL ASPECTS OF COMMONWEALTH PRICE CONTROL DURING TRANSITION FROM WAR TO PEACE: DEFENCE POWER: DURATION OF WAR-TIME LEGISLATION: ‘CEASES TO BE ENGAGED IN WAR’: ‘STATE OF WAR’: DISTINCTION BETWEEN POWERS WHICH CONSTITUTION GIVES TO COMMONWEALTH PARLIAMENT AND POWERS WHICH PARLIAMENT HAS GIVEN TO GOVERNMENT: FREEDOM OF INTERSTATE TRADE: PREFERENCE TO OR DISCRIMINATION BETWEEN STATES AND TERRITORIES
Key Legislation
CONSTITUTION ss 51(vi), (xxxvii), 92, 99: NATIONAL SECURITY ACT 1939 s 19: TERMINATION OF THE PRESENT WAR (DEFINITION) ACT 1919
- In order to maintain price stability and to avoid both chaotic inflation and chaotic deflation during the transition from war to peace, power is needed to regulate prices on an Australia-wide basis during this transitional period.
- Four questions arise:
- Under the Constitution as it stands, could the Commonwealth exercise the necessary price-fixing powers during this period?
- What price-fixing powers can be exercised by the States?
- Would a ‘reference’ by the States under section 51(xxxvii) meet the situation?
Opinion Number. 1750
Subject
| Date
TERMINATION OF THE WAR
INDUSTRIAL RELATIONS: REFERENCE UNDER NATIONAL SECURITY (INDUSTRIAL PEACE) REGULATIONS: AWARD TO CONTINUE FOR NO MORE THAN SIX MONTHS FROM DATE ON WHICH HIS MAJESTY CEASED TO BE ENGAGED IN WAR: WHETHER HIS MAJESTY WAS STILL ENGAGED IN WAR: CONTINUATION OF STATE OF WAR UNTIL TREATIES WITH ALL COMBATANTS CONCLUDED AND RATIFIED OR DECLARATIONS OF PEACE MADE
Key Legislation
NATIONAL SECURITY (INDUSTRIAL PEACE) REGULATIONS: NATIONAL SECURITY ACT 1939
A reference under the National Security (Industrial Peace) Regulations by the Minister for Labour and National Service of the matter of the rates of wages and conditions of employment for females employed on nursing staffs and domestic staffs of hospitals, etc, came before the Commonwealth Arbitration Court, constituted of His Honour Judge Kelly, today.(1) Mr. T.W. Smith of Counsel appeared to intervene on behalf of the Attorney-General. During the proceedings, His Honour raised the question as to whether His Majesty was still engaged in war.
Opinion Number. 1751
Subject
| Date
UNIFORM COMPANY LAW
COMPANIES: PEACE-TIME CONTROL OF CAPITAL ISSUES: POWER OF COMMONWEALTH TO ENACT UNIFORM COMPANY LAW THROUGHOUT AUSTRALIA: CORPORATIONS POWER: POWER TO CONTROL BEHAVIOUR OF COMPANIES: POWER TO CREATE CORPORATIONS: FORMATION OF COMPANIES : ‘TRADING OR FINANCIAL’: ‘TRADE’: ‘FOREIGN’: VALIDITY OF NATIONAL SECURITY (CAPITAL ISSUES) REGULATIONS PART II
Key Legislation
CONSTITUTION s 51(xx) : NATIONAL SECURITY (CAPITAL ISSUES) REGULATIONS Part II, regs 6, 7, 7A, 9: AUSTRALIAN INDUSTRIES PRESERVATION ACT 1906
The Commonwealth Actuary has forwarded the following memorandum to me for advice:
You will recall that the question of Capital Issues Control after the war was set down for consideration at the Premiers’ Conference and that the item was withdrawn from the Agenda Paper on the advice of the Attorney-General. I understand that Dr Evatt advised the Treasurer, orally, that in his view there were sufficient powers under the Constitution for the Commonwealth to continue the control after the war.
Opinion Number. 1752
Subject
| Date
INCOME TAX
FURTHER JOINT OPINION OF W.K.FULLAGAR AND K.H.BAILEY ON VALIDITY OF PROPOSED UNIFORM FEDERAL INCOME TAX SCHEME: SUGGESTED MODIFICATIONS TO PROPOSED UNIFORM FEDERAL TAX SCHEME
Key Legislation
INCOME TAX ASSESSMENT ACT 1942: INCOME TAX (WAR-TIME ARRANGEMENTS) BILL 1942
Schedule of suggested Amendments2
Income Tax Assessment Bill
Opinion Number. 1753
Subject
| Date
PROPOSED UNIFORM FEDERAL INCOME TAX SCHEME
FURTHER JOINT OPINION OF W.K. FULLAGAR AND K.H. BAILEY ON VALIDITY OF PROPOSED UNIFORM FEDERAL INCOME TAX SCHEME: VALIDITY OF REVISED DRAFT OF PROPOSED NEW s 221 OF INCOME TAX ASSESSMENT ACT 1936: PRIORITY OF COMMONWEALTH AND STATE INCOME TAX: SCOPE OF DEFENCE POWER: SCOPE OF S 99 OF CONSTITUTION: OPERATION OF ss 51(ii) AND 99 OF CONSTITUTION IN RELATION TO GRANTS OF FINANCIAL ASSISTANCE TO STATES: MEANING OF ‘GIVE PREFERENCE TO ONE STATE’: MEANING OF ‘LAW OF REVENUE’: PRIORITY OF INCOME TAX DEBTS IN BANKRUPTCY
Key Legislation
CONSTITUTION ss 51(ii), (vi), 99: BANKRUPTCY ACT 1924 s 84: INCOME TAX (WAR-TIME ARRANGEMENTS) BILL 1942 cll 4, 11, 12, 17
Re Revised Drafts of new s. 221 of Income Tax Assessment Act and of Income Tax (War-Time Arrangements) Bill 1942
JOINT OPINION
We have had submitted to us revised drafts of the new s. 221 which it is proposed to insert in the Income Tax Assessment Act and of the Income Tax (War-Time Arrangements) Bill 1942, and are asked to express an opinion on their validity, further to the joint opinion furnished by us on 26 April 1942,1 with reference of course to an earlier draft of these Bills.
Opinion Number. 1754
Subject
| Date
PROPOSED UNIFORM FEDERAL INCOME TAX SCHEME
FURTHER JOINT OPINION OF E.M. MITCHELL AND A.R. TAYLOR ON PROPOSED UNIFORM FEDERAL INCOME TAX SCHEME: COMMONWEALTH FINANCIAL ASSISTANCE TO STATES: WHETHER SCHEME INVOLVES DISCRIMINATION BETWEEN STATES CONTRARY TO s 51(ii) OF CONSTITUTION: RELATIONSHIP BETWEEN s 96 OF CONSTITUTION AND s 51(ii) OF CONSTITUTION: POSSIBLE DIFFICULTY IN PRACTICAL OPERATION OF PROPOSED SCHEME
Key Legislation
CONSTITUTION ss 51(ii), 96: INCOME TAX BILL 1942; INCOME TAX ASSESSMENT BILL 1942; INCOME TAX (WAR-TIME ARRANGEMENTS) BILL 1942
In re Uniform Income Tax Acts
FURTHER SUPPLEMENTARY OPINION
Opinion Number. 1755
Subject
| Date
PROPOSED UNIFORM FEDERAL INCOME TAX SCHEME
FURTHER JOINT OPINION OF K.M. MITCHELL AND A.R. TAYLOR ON VALIDITY OF PROPOSED UNIFORM FEDERAL INCOME TAX SCHEME: COMMONWEALTH POWER TO MAKE AGREEMENTS WITH STATES FOR COMMONWEALTH TO ASSESS AND COLLECT STATE TAXES: REFERRALS OF POWER BY STATES TO COMMONWEALTH: STATE EXECUTIVE POWER: SCOPE OF DEFENCE POWER IN TIME OF WAR AND PEACE: COMMONWEALTH FINANCIAL ASSISTANCE TO STATES: VALIDITY OF CONDITIONS ATTACHED TO GRANTS OF FINANCIAL ASSISTANCE TO STATES RELATING TO PROVISION OF LOANS TO COMMONWEALTH: VALIDITY OF PROPOSED NEW s 221 OF INCOME TAX ASSESSMENT ACT 1936
Key Legislation
CONSTITUTION s 51(ii), (vi), (xxxvii): INCOME TAX ASSESSMENT ACT 1922 s 11: INCOME TAX ASSESSMENT ACT 1936 s 15, proposed new s 221: INCOME TAX ASSESSMENT BILL 1942: INCOME TAX (WAR-TIME ARRANGEMENTS) BILL 1942 cll 12, 13, 17(b)
JOINT OPINION
IN THE MATTER OF THE INCOME TAX (WAR-TIME ARRANGEMENTS ACT
and
IN THE MATTER OF THE INCOME TAX ASSESSMENT ACT
Proposed new clause two hundred and twenty-one
We have considered the above two proposed Acts and make the following observations.
Income Tax (War-time Arrangements) Act.
Opinion Number. 1756
Subject
| Date
PROPOSED UNIFORM FEDERAL INCOME TAX SCHEME
FURTHER JOINT OPINION OF W.K. FULLAGAR AND K.H. BAILEY ON VALIDITY OF PROPOSED UNIFORM FEDERAL INCOME TAX SCHEME: COMMONWEALTH LEGISLATIVE POWERS SUPPORTING SCHEME: TAXATION POWER: DEFENCE POWER: BORROWING POWER: EXECUTIVE POWER: INCIDENTAL POWER: COMMONWEALTH POWER TO MAKE AGREEMENTS WITH STATES FOR COLLECTION OF STATE TAXES: FINANCIAL ASSISTANCE TO STATES ‘ON SUCH TERMS AND CONDITIONS AS THE PARLIAMENT THINKS FIT’: WHETHER CONDITIONS MAY INCLUDE A CONDITION THAT STATES ABSTAIN FROM EXERCISING A POWER: WHETHER DEFENCE MAY BE A RELEVANT CONSIDERATION TO EXERCISE OF POWER TO MAKE GRANTS OF FINANCIAL ASSISTANCE TO STATES: WHETHER s 96 OF CONSTITUTION IS SUBJECT TO s 51(ii) OF CONSTITUTION: WHETHER PROPOSED TAXATION LAW DISCRIMINATES
Key Legislation
CONSTITUTION ss 51(ii), (iv), (vi), (xxxix), 61, 96: INCOME TAX ASSESSMENT ACT 1922 s 11: INCOME TAX ASSESSMENT ACT 1936 s 15, proposed new s 221: INCOME TAX ASSESSMENT BILL 1942: INCOME TAX (WAR-TIME) ARRANGEMENTS) BILL 1942 cll 12, 13, 17
Further Joint Opinion
Since we furnished to the Solicitor-General on 11th May, 1942, a joint opinion as to the validity of revised drafts of—
(a) proposed new s. 221 of the Income Tax Assessment Act; and