Legal Opinions

The Secretary, Department of Commerce and Agriculture has forwarded the following memorandum for advice:

The question has arisen as to whether wharf owners can be required, under the Customs Act, to provide premises and facilities on wharves for the inspection of fresh fruit for export.

This Department exercises control over the export of fresh fruit under the Exports (Fresh Fruit) Regulations which prohibit the export of fresh fruit unless the intending exporter complies with certain prescribed conditions.

As to those two draft Bills, I am asked to advise—

(a)  Whether the Immigration Bill is valid.

(b)  Whether the War-Time Refugees Removal Bill is valid as to both classes of persons, and, if it is considered to be valid as to only one class, whether the Bill is severable.

(c)  On both Bills generally.

The prints of the draft Bills given to me are those of 3rd June.

I refer to your memorandum (48/2931) of 3rd May, 1949, in which advice is requested as to the liability of your Department to make payment for office and shed accommodation provided by wharf-owners under section 19 of the Customs Act 1901–1947. In particular, advice is sought whether section 51(xxxi) of the Constitution dealing with the acquisition of property on just terms is applicable to accommodation provided under section 19.

(2)  It will be convenient to set out first the provisions of section 19 of the Act:

I refer to your memorandum (48/5/63) dated 16th June, 1949, and to earlier correspondence regarding the validity of the abovementioned Act and difficulties arising out of the operation of the Act in relation to State laws.

I refer to your memorandum dated 4th May, 1949, regarding the question asked by the Administrator of the Northern Territory as to prohibition of the publication of proceedings of secret sessions of the Legislative Council of the Northern Territory.

Your memorandum dated 25th August, 1949, states the Governor-General in Council has approved the making of an arrangement under section 78 of the Commonwealth Public Service Act 1922–1948 for the performance of duties by George Henry Cooper in the collection of statistics of retail sales in Western Australia. The memorandum requests advice whether the action taken is sufficient.

I refer to your memorandum dated 28th June, 1949, addressed to the Crown Solicitor, in regard to the following questions:

(1)  Is an elected member of the Northern Territory Legislative Council a person who holds an office of profit under the Crown within the meaning of section 44 of the Constitution;

I refer to your memorandum dated 18th October, 1949, regarding the price at which wheat is to be supplied by the Australian Wheat Board for sale in Tasmania.

(2)  Included in your memorandum is the draft of a letter which your Minister had proposed to send to the Board. This letter is drawn on the assumption that, as a matter of law, the relevant legislation implies an obligation on the Board to supply wheat in each State, for sale there, in accordance with the law of the State, at the guaranteed price f.o.r. [free on rail]  main ports.

I refer to your letter dated 30th September, 1949, requesting my advice whether the Australian National University is an authority of the Commonwealth for the purposes of section 5 of the Commonwealth Employees’ Furlough Act 1943–1944.

I agree with the University’s understanding of the position that the Act does not apply.

In consultation with officers of the Department of External Affairs, consideration has been given to the most appropriate manner of ensuring that Australia’s legal title to Heard and MacDonald Islands is established for the purposes of:

(i)  International Law; and

(ii)  Australian domestic law, namely, section 122 of the Constitution which relates to territories placed by His Majesty under the authority of the Commonwealth or otherwise acquired.

(2)  In this consideration, regard has been had to the following points, namely: