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 suppliers, are contrary to section 92 of the Constitution and invalid and that there is no power in either the Commonwealth or a State Parliament to enact a scheme of rationing, whether by Act or by Regulations, which involves the determination of where and in what quantities petrol may be sold by the petrol companies in Australia.
Legal Opinions
Opinion Number. 1870
Subject
| Date
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
Key Legislation
CONSTITUTION s 92: LIQUID FUEL (RATIONING) REGULATIONS regs 5(3), 8
Opinion Number. 1871
Subject
| Date
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
Key Legislation
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 memorandum but, for purposes of record, it would be convenient if I mention the principal points of your memorandum.
(3) Mrs. X. arrived in Australia on 5th December, 1913. Her husband died in July, 1932, and she left for England with her four children on 10th January, 1933, returning to Australia on 10th June, 1948, where she has since resided.
Opinion Number. 1872
Subject
| Date
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
Key Legislation
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 favour an exchange of notes as the most appropriate method of dealing with the transfer to Australia of the sovereignty in the abovementioned Islands.
Opinion Number. 1873
Subject
| Date
ALTERATION OF CONSTITUTION
MEANING OF ‘ABSOLUTE MAJORITY’ OF A HOUSE OF PARLIAMENT IN s 128 OF CONSTITUTION
Key Legislation
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 following phrases:
(i) The proposed law … must be passed by an absolute majority of each House of the Parliament;
(ii) … if either House passes any such proposed law by an absolute majority;
(iii) If … the first-mentioned House … again passes the proposed law by an absolute majority.
Opinion Number. 1874
Subject
| Date
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’
Key Legislation
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 obligations of the former provisional administration. The problem appears to concern not only rights and obligations which accrued before 1st July, 1949, but also the effect after that date of contracts of the provisional administration which were not completely performed at that date.
Opinion Number. 1875
Subject
| Date
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
Key Legislation
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 and powers of that Department.
Opinion Number. 1876
Subject
| Date
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
Key Legislation
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 claims arising out of the 1939–1945 War (See Treaty Series 1949, No. 11).
Opinion Number. 1877
Subject
| Date
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
Key Legislation
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 the long service leave in the coal mining industry under the Award of the Central Reference Board.
Opinion Number. 1878
Subject
| Date
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
Key Legislation
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, the Senate may amend the Bill so as to increase from 5/- to 10/- the weekly endowment for the first child;
2. Whether, having regard to the first paragraph of sec. 53, the Bill is one which may properly originate in the Senate.
Proposed laws
Opinion Number. 1879
Subject
| Date
IMMIGRATION
DEPORTATION OF PROHIBITED IMMIGRANT UNDER IMMIGRATION ACT: MEANING OF ‘PROHIBITED IMMIGRANT’: WHETHER CERTIFICATE OF EXEMPTION WAS ‘ISSUED’ UNDER THE IMMIGRATION ACT: MEANING OF A PERSON ‘LIABLE TO BE PROHIBITED FROM REMAINING WITHIN THE COMMONWEALTH’: WHETHER DEPORTATION MAY BE EFFECTED UNDER WAR-TIME REFUGEES REMOVAL ACT
Key Legislation
IMMIGRATION ACT 1901 ss 3(gg), 4, 5: WAR-TIME REFUGEES REMOVAL ACT 1949 ss 3, 4, 5
The Secretary, Department of Immigration, has forwarded the following memorandum for advice:
X. arrived in Australia from Italy in July, 1936. He was convicted at Townsville in November, 1939, on a charge of demanding money with threats and making threats and sentenced to six months imprisonment on each charge. The letters written by him indicated that he was a member of the Black Hand Gang. The convictions brought X. within the scope of the deportation provisions of the Immigration Act and an order for his deportation was issued in January, 1940.