Legal Opinions

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111
1869
TERRITORIES: HEARD AND MACDONALD ISLANDS
ACQUISITION OF SOVEREIGNTY UNDER INTERNATIONAL AND DOMESTIC LAW: ESTABLISHMENT OF AUSTRALIA’S LEGAL TITLE TO HEARD AND MACDONALD ISLANDS: MEANING OF ‘ANY TERRITORY PLACED BY HIS MAJESTY UNDER THE AUTHORITY OF’ THE COMMONWEALTH: MEANING OF ‘ANY TERRITORY … OTHERWISE ACQUIRED BY’ THE COMMONWEALTH
, BAILEY Kenneth Hamilton
17 December 1949
CONSTITUTION s 122

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 I...

112
1870
RATIONING: LIQUID FUEL
VALIDITY OF LIQUID FUEL (RATIONING) REGULATIONS IN RELATION TO BULK SUPPLIERS: WHETHER CONTRARY TO FREEDOM OF INTERSTATE TRADE: SEVERABILITY OF PROVISIONS RELATING TO BULK SUPPLIERS
BAILEY Kenneth Hamilton
10 January 1950
CONSTITUTION s 92: LIQUID FUEL (RATIONING) REGULATIONS regs 5(3), 8

My attention has been drawn to an opinion expressed by Mr. G.E. Barwick, K.C., to the effect that the Liquid Fuel (Rationing) Regulations of the Commonwealth, as applied to petrol in the hands of bulk...

113
1871
AGE PENSION
ELIGIBILITY FOR AGE PENSION: REQUIREMENT TO HAVE BEEN CONTINUOUSLY RESIDENT IN AUSTRALIA FOR A PERIOD OF NOT LESS THAN 20 YEARS: WHETHER APPLICANT SATISFIES REQUIREMENT: MEANING OF ‘CONTINUOUSLY RESIDENT’: MEANING OF ‘OCCASIONAL ABSENCES’: EX GRATIA PAYMENT
LYONS L.D.
10 January 1950
SOCIAL SERVICES CONSOLIDATION ACT 1947 ss 20(2)(c), 21

In your memorandum dated 27th September, 1949, advice is requested whether Mrs X. is residentially qualified for an age pension. (2)  The facts and law are set out in some detail in your mem...

114
1872
TERRITORIES: HEARD AND MACDONALD ISLANDS
TRANSFER OF SOVEREIGNTY IN HEARD AND MACDONALD ISLANDS FROM UNITED KINGDOM TO AUSTRALIA: ACQUISITION OF SOVEREIGNTY IN HEARD AND MACDONALD ISLANDS BY AUSTRALIA BY OCCUPATION: MEANING OF ‘[TERRITORY] OTHERWISE ACQUIRED BY COMMONWEALTH’: REGISTRATION WITH UNITED NATIONS
, BAILEY Kenneth Hamilton
07 February 1950
CONSTITUTION s 122

I refer to your memorandum dated 29th January, 1950, conveying the text of a telegram from the External Affairs Officer, London in which he states that the Commonwealth Relations Office still seems to...

115
1873
ALTERATION OF CONSTITUTION
MEANING OF ‘ABSOLUTE MAJORITY’ OF A HOUSE OF PARLIAMENT IN s 128 OF CONSTITUTION
BAILEY Kenneth Hamilton
07 February 1950
CONSTITUTION ss 7, 128: COMMONWEALTH ELECTORAL ACT 1918 s 135(12)

(1)  The question is asked as to the meaning of the expression ‘absolute majority’ (thrice occurring) in section 128 of the Constitution. (2)  The words appear in the f...

116
1874
TERRITORIES: PAPUA AND NEW GUINEA
ENFORCEMENT AGAINST PRESENT ADMINISTRATION OF PAPUA AND NEW GUINEA OF RIGHTS AND OBLIGATIONS OF FORMER PROVISIONAL ADMINISTRATION OF PAPUA AND NEW GUINEA: WHETHER ANY NEW ENFORCEMENT LEGISLATION SHOULD BE BY WAY OF AN ORDINANCE OR A COMMONWEALTH ACT: WHETHER PROVISIONAL ADMINISTRATION OR PRESENT ADMINISTRATION IS A JURISTIC PERSON: MEANING OF ‘THE ADMINISTRATION’
, BAILEY Kenneth Hamilton
16 February 1950
PAPUA AND NEW GUINEA ACT 1948: CLAIMS BY AND AGAINST THE GOVERNMENT ORDINANCE 1911 (Papua): INTERPRETATION ORDINANCE 1949 ss 49, 55: CLAIMS BY AND AGAINST THE ADMINISTRATION ORDINANCE 1927 (NG)

I refer to your memorandum of 29th December, 1949, concerning the necessity for legislation to enable the enforcement by and against the present administration of Papua and New Guinea of rights and ob...

117
1875
BANKING
WHETHER COMMONWEALTH BANK OF AUSTRALIA MAY CONDUCT HIRE-PURCHASE BUSINESS: WHETHER HIRE-PURCHASE BUSINESS IS ‘BANKING’ WITHIN MEANING OF s 51(xiii) OF CONSTITUTION: SCOPE OF BANKING POWER: FUNCTIONS AND POWERS OF COMMONWEALTH BANK: FUNCTIONS OF INDUSTRIAL FINANCE DEPARTMENT OF COMMONWEALTH BANK: WHETHER HIRE-PURCHASE BUSINESS IS MONEYLENDING: WHETHER HIRE-PURCHASE TRANSACTIONS IN RELATION TO CHATTELS CONSTITUTE MORTGAGES OR BILLS OF SALE: MEANING OF ‘INDUSTRIAL UNDERTAKINGS’: PROCEEDINGS TO RESTRAIN CONDUCT OF HIRE-PURCHASE BUSINESS BY COMMONWEALTH BANK: ATTORNEY-GENERAL’S FIAT
BARWICK G.E., MITCHELL R.E.
21 February 1950
CONSTITUTION s 51(xiii): COMMONWEALTH BANK ACT 1945 ss 95, 96, Part X

The Commonwealth Bank Act, 1945, makes provision in Part X for the establishment of an Industrial Finance Department of the Commonwealth Bank of Australia and by ss. 95 and 96 specifies the functions ...

118
1876
INTERNATIONAL LAW: BILATERAL AGREEMENT
AGREEMENT BETWEEN AUSTRALIA AND NETHERLANDS FOR SETTLEMENT OF CLAIMS ARISING OUT OF WORLD WAR 2: WHETHER AGREEMENT COVERS CLAIMS BY PRIVATE INDIVIDUALS FOR CONTRACT DEBTS AGAINST COMMONWEALTH: WHETHER COMMONWEALTH SHOULD PAY CLAIM FOR CONTRACT DEBT AGAINST COMMONWEALTH NOT COVERED BY AGREEMENT: MEANING OF ‘ENEMY ACTION OR ACTS OR OMISSIONS’: INTERPRETATION OF INTERNATIONAL AGREEMENTS
LYONS L.D.
24 February 1950
Exchange of Notes constituting an Agreement between the Government of the Kingdom of the Netherlands (on behalf of the Government of Indonesia) and the Government of Australia concerning the Final Settlement of all Claims arising out of World War 2 done at Canberra on 12 August 1949 [1949] ATS 11 cl 6(i)

I refer to your memorandum, dated 11th April, 1949, in regard to the application to the abovementioned claim of the Agreement between the Australian and Netherlands Governments for the settlement of c...

119
1877
COAL MINING INDUSTRY
COMMONWEALTH–STATE AGREEMENTS: LONG SERVICE LEAVE IN COAL MINING INDUSTRY: COMMONWEALTH LEGISLATIVE SCHEME FOR FINANCING LONG SERVICE LEAVE IN COAL MINING INDUSTRY: COMMONWEALTH FINANCIAL ASSISTANCE TO STATES: PROPOSED AGREEMENT BETWEEN COMMONWEALTH AND NEW SOUTH WALES FOR FINANCING LONG SERVICE LEAVE IN COAL MINING INDUSTRY: MEASURES TO STRENGTHEN VALIDITY OF PROPOSED AGREEMENT: WHETHER PROPOSED AGREEMENT SHOULD BE SET OUT IN LEGISLATION
BAILEY Kenneth Hamilton
29 March 1950
CONSTITUTION s 96: STATE GRANTS (COAL MINING INDUSTRY LONG SERVICE LEAVE) ACT 1949: RE-ESTABLISHMENT AND EMPLOYMENT ACT 1945 s 104

I refer to your memorandum, dated 27 January, 1950, and to subsequent discussions between our respective Departments, regarding the legality of a proposed agreement with New South Wales for financing ...

120
1878
POWERS OF THE SENATE
POWER OF SENATE TO AMEND SOCIAL SERVICES CONSOLIDATION BILL TO INCREASE CHILD ENDOWMENT: INTERPRETATION OF s 53 OF CONSTITUTION: MEANING OF ‘PROPOSED LAWS’: WHETHER NON-COMPLIANCE WITH REQUIREMENTS OF s 53 OF CONSTITUTION AFFECTS VALIDITY OF A LAW: WHETHER QUESTIONS ARISING UNDER s 53 OF CONSTITUTION ARE MATTERS OF PARLIAMENTARY PROCEDURE: MEANING OF ‘CHARGE OR BURDEN ON THE PEOPLE’: WHETHER AN APPROPRIATION CONSTITUTES A ‘CHARGE’ ON THE PEOPLE: WHETHER s 53 OF CONSTITUTION APPLIES TO PROPOSED LAWS THAT ORIGINATE IN THE SENATE: WHETHER SOCIAL SERVICES CONSOLIDATION BILL APPROPRIATES MONEYS: NATIONAL WELFARE FUND: DEBATES OF THE CONSTITUTIONAL CONVENTIONS OF 1891 AND 1897-98 IN RELATION TO SENATE’S POWER TO AMEND BILLS
, GARRAN Robert Randolph
13 April 1950
CONSTITUTION ss 53, 81: NATIONAL WELFARE FUND ACT 1943 s 136: SOCIAL SERVICES CONSOLIDATION ACT 1947: SOCIAL SERVICES CONSOLIDATION BILL

In relation to the Social Services Consolidation Bill, introduced in the Senate, I am asked to advise— 1.  Whether, having regard to the third paragraph of sec. 53 of the Constitution, th...

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