Legal Opinions

Opinion Number. 1789

Subject

EXPIRY OF PAPUA-NEW GUINEA PROVISIONAL ADMINISTRATION ACT 1945
DATE OF EXPIRY OF PAPUA-NEW GUINEA PROVISIONAL ADMINISTRATION ACT 1945: ‘AFTER HIS MAJESTY CEASES TO BE ENGAGED IN WAR’

AuthorTIPPING P.J. | Date
Key Legislation

NATIONAL SECURITY ACT 1939 s 19: NATIONAL SECURITY ACT 1946: PAPUA-NEW GUINEA PROVISIONAL ADMINISTRATION ACT 1945 s 17

I refer to your memorandum dated 5th November, 1945, in connexion with the expiration of the Papua-New Guinea Provisional Administration Act 1945.

(2)  Section 17 of that Act reads as follows:

This Act shall continue in operation until a date to be fixed by proclamation, and no longer, but in any event not longer than six months after His Majesty ceases to be engaged in war.

Opinion Number. 1790

Subject

SHIPPING
WHETHER COMMONWEALTH LAWS APPLY TO VESSELS OF THE BRITISH PHOSPHATE COMMISSION TRADING WITH AUSTRALIA, NEW ZEALAND AND NAURU: MEANING OF ‘FIRST PORT OF CLEARANCE’ AND MEANING OF ‘PORT OF DESTINATION’ IN CONSTITUTION COVERING cl 5

AuthorWHITLAM Harry Frederick Ernest | Date
Key Legislation

CONSTITUTION covering cl 5

I am in receipt of your memorandum dated 6th September, 1946, concerning the application of laws of the Commonwealth to vessels of the British Phosphate Commission trading with Australia, New Zealand and Nauru.

By Section V of the Commonwealth of Australia Constitution Act it is provided that all laws of the Commonwealth shall be in force on British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

Opinion Number. 1791

Subject

COMMONWEALTH PUBLIC SERVICE: RETURNED SOLDIERS
VOLUNTEER DEFENCE CORPS: CITIZEN MILITARY FORCES: WHETHER FULL-TIME MEMBER OF VOLUNTEER DEFENCE CORPS IS A ‘RETURNED SOLDIER’ WITHIN MEANING OF COMMONWEALTH PUBLIC SERVICE ACT 1922: MEANING OF ‘MEMBER OF THE FORCES’ AND ‘WAR SERVICE’ IN RE-ESTABLISHMENT AND EMPLOYMENT ACT 1945

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1922 s 7: DEFENCE ACT 1903 s 33: RE-ESTABLISHMENT AND EMPLOYMENT ACT 1945 ss 4, 23(1): VOLUNTEER DEFENCE CORPS REGULATIONS reg 3

I refer to your memorandum No. G41/28 of 1st October, 1946, requesting advice as to whether a person who served in a full-time capacity with the Volunteer Defence Corps may be regarded as a returned soldier for the purposes of the Commonwealth Public Service Act 1922–1946.

Opinion Number. 1792

Subject

BANKING AND INSURANCE
BANKING AND INSURANCE: WHETHER COMMONWEALTH PARLIAMENT HAS POWER TO REGULATE RELATIONS OF EMPLOYERS AND EMPLOYEES ENGAGED IN BANKING OR INSURANCE: MEANING OF ‘BANKING’: MEANING OF ‘INSURANCE’: WHETHER PROVIDENT FUNDS CONSTITUTE ‘INSURANCE’: WHETHER ‘NAVIGATION AND SHIPPING’ INCLUDES SEAMEN’S COMPENSATION: WHETHER PROVIDENT FUNDS MAY BE REGULATED UNDER INCOME TAX LEGISLATION: NATURE OF FUND WHERE CONTRIBUTIONS ARE MADE BY EMPLOYERS ONLY: PAYMENTS AUTHORIZED BY EMPLOYEES TO BE MADE BY EMPLOYERS TO THIRD PARTIES UNDER TRUCK ACT 1831 (UK) AND SIMILAR LAWS

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

CONSTITUTION ss 51(i), (xiii), (xiv), 98: SEAMEN’S COMPENSATION ACT 1911: TRUCK ACT 1831 (UK)

I refer to your memorandum dated 23rd July, 1946. The question whether the banking and insurance powers of the Commonwealth contained in s 51(xiii) and (xiv) of the Constitution are wide enough to authorize legislation to regulated the relations (either generally or in respect of provident funds) of employers and employees engaged in banking or insurance business has never been judicially determined. Some assistance may, however, be obtained from the decisions of the High Court in the case Australian Steamships Ltd. v. Malcolm (19 C.L.R. 298).

Opinion Number. 1793

Subject

RIVER MURRAY COMMISSION
PROPOSAL TO INCREASE CAPACITY OF HUME RESERVOIR: PROPOSAL TO CONFER ADDITIONAL POWERS AND FUNCTIONS ON RIVER MURRAY COMMISSION WITH RESPECT TO PROTECTION OF HUME RESERVOIR CATCHMENT AREA: WHETHER LEGISLATION IS REQUIRED: COMMONWEALTH–STATE AGREEMENTS: COMMONWEALTH–STATE COOPERATIVE SCHEMES: RIVER MURRAY WATERS AGREEMENT: JOINT COMMONWEALTH–STATE AUTHORITY: JOINT COAL BOARD: COMMONWEALTH–STATE COOPERATION IN RELATION TO AIR NAVIGATION

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

COAL INDUSTRY ACT 1946 (Cth): RIVER MURRAY WATERS ACT 1915: RIVER MURRAY WATERS AGREEMENT BETWEEN THE COMMONWEALTH OF AUSTRALIA AND THE STATES OF NEW SOUTH WALES, VICTORIA AND SOUTH AUSTRALIA done on 9 September 1914: COAL INDUSTRY ACT 1946 (NSW)

The Secretary, River Murray Commission has forwarded to me for advice the following communication:

I am directed by the Minister for Works and Housing, who is also President of the River Murray Commission, to seek your advice as to whether it would be possible, constitutionally to give authority to the River Murray Commission to exercise certain powers in respect of the protection of the Catchment Area of the Hume Reservoir.

Opinion Number. 1794

Subject

LAND ACQUISITION DARWIN
WHETHER LAND ACQUIRED UNDER DARWIN LANDS ACQUISITION ACT 1945 MAY BE GRANTED AS FREEHOLD FOR CHURCH PURPOSES: MEANING OF ‘CROWN LANDS’

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

DARWIN LANDS ACQUISITION ACT 1945 ss 3, 6, Schedule: LANDS ACQUISITION ACT 1906: CROWN LANDS ORDINANCE 1931 s 112A(5): CROWN LANDS ORDINANCE 1938: DARWIN LEASES (SPECIAL PURPOSES) ORDINANCE 1946: LANDS ACQUISITION ORDINANCE 1911 s 8

I refer to your request for advice regarding the above matter.

The Assistant Crown Solicitor has advised on the matter as follows:

1.  The question upon which advice is asked is whether freeholds, for church purposes, of parts of the land acquired pursuant to the Darwin Lands Acquisition Act 1945 may be granted. The land was compulsorily acquired by notification of acquisition in the Commonwealth Gazette dated 17/1/1946, for the following purposes—

(a)  the re-planning and development of the Town of Darwin and its environs; and

Opinion Number. 1795

Subject

AVIATION CHARGES
PROPOSED CHARGES FOR USE OF COMMONWEALTH AIRPORTS AND AVIATION FACILITIES: WHETHER PROPOSED CHARGES CONSTITUTE FEES FOR SERVICES: PROPOSED ANNUAL FEES FOR AIRCRAFT OPERATED OTHER THAN ON SCHEDULED SERVICES: PROPOSED CHARGES PAYABLE BY OPERATORS OF SCHEDULED AIRLINE SERVICES: MEANING OF ‘ROUTE CHARGES’: MEANING OF ‘LANDING CHARGES’: WHETHER PROPOSED CHARGES WOULD CONSTITUTE BREACH OF CONTRACTS BETWEEN COMMONWEALTH AND CERTAIN AIRLINE OPERATORS: WHETHER PROPOSED CHARGES WOULD CONSTITUTE BREACH OF TERMS OF AIRPORT LEASES: AUSTRALIAN NATIONAL AIRWAYS: AIRPORT REVENUE

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

AIR NAVIGATION REGULATIONS reg 110A, Pt IX

(1)  Cabinet has approved in principle a proposal by the Minister for Civil Aviation to impose a scheme of charges on users of aerodromes and airways facilities provided by the Commonwealth.

(2)  The Attorney-General has been asked to advise on the legal position, in view of the existence of clauses in certain long-term contracts and leases which provide for the free use of landing grounds, and also to advise, if necessary, as to any alternative proposals for charge to airline operators and others which might be less likely to involve successful challenge through the Courts.

Opinion Number. 1796

Subject

IMMIGRATION
WHETHER HOLDER OF A LANDING PERMIT MAY BE PREVENTED FROM LANDING IN AUSTRALIA: DURATION OF A LANDING PERMIT: POWER TO CANCEL A LANDING PERMIT: WHETHER DICTATION TEST MAY BE GIVEN TO HOLDER OF A LANDING PERMIT

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

ACTS INTERPRETATION ACT 1901 s 33(3): IMMIGRATION ACT 1901 s 3: IMMIGRATION REGULATIONS reg 5

I refer to your memoranda dated 20th and 21st March, 1947, in regard to the action that may be taken under the Immigration Act 1901–1940 to prevent the abovenamed1 landing in the Commonwealth.

(2)  The facts are set out in your memorandum although it is understood that further information discloses that he is described as an Austrian in his passport and not as a German national.

(3)  The questions of law appear to be—

Opinion Number. 1797

Subject

EMPLOYMENT
PREFERENCE TO EX-SERVICEMEN SEEKING EMPLOYMENT: WHETHER COMMONWEALTH EMPLOYMENT SERVICE SHOULD PROVIDE ADVICE TO PROSPECTIVE EMPLOYERS ON WHETHER PERSONS REGISTERED FOR EMPLOYMENT ARE ENTITLED TO PREFERENCE: MEANING OF ‘PERSON ENTITLED TO PREFERENCE’: WHETHER PERSONS SEEKING TO BE REGISTERED MAY BE REQUIRED TO PROVIDE EVIDENCE OF ENTITLEMENT TO PREFERENCE: DUTY OF EMPLOYERS TO GIVE PREFERENCE TO EX-SERVICEMEN: WHETHER s 12 OF RETURNED SOLDIERS AND SAILORS EMPLOYMENT ACT 1919 (NSW) IS INCONSISTENT WITH RE-ESTABLISHMENT AND EMPLOYMENT ACT 1945

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

RE-ESTABLISHMENT AND EMPLOYMENT ACT 1945 ss 24, 25, 27, 48, Pt II Div 2: RETURNED SOLDIERS AND SAILORS EMPLOYMENT ACT 1919 (NSW) s 12

I refer to your memorandum No. 47/27B/679 of the 5th March, 1947, requesting advice on certain questions concerning the effect of the preference provisions of the Re-establishment and Employment Act 1945 on the operations of the Commonwealth Employment Service.

Opinion Number. 1798

Subject

SHIPPING AND SHIP-BUILDING INDUSTRY
COMMONWEALTH POWER TO REGULATE SHIP-BUILDING INDUSTRY IN AUSTRALIA: COMMONWEALTH POWER TO REGULATE COASTAL SHIPPING: COMMONWEALTH POWER TO REGULATE PRIVATE SHIPPING OPERATIONS: COMMONWEALTH SHIPPING AND SHIP-BUILDING AUTHORITY: COMMONWEALTH-OWNED SHIPS: SCOPE OF DEFENCE POWER: TRADE AND COMMERCE POWER: INTERSTATE AND INTRASTATE COASTAL SHIPPING TRADE: COMMONWEALTH SHIPPING BOARD: PROPOSED SUBSIDIES FOR SHIPOWNERS: APPROPRIATION POWER: MEANING OF ‘BOUNTIES ON THE PRODUCTION OF GOODS’: FREEDOM OF INTERSTATE TRADE: MEANING OF ‘UNIFORM THROUGHOUT THE COMMONWEALTH’: MEANING OF ‘ABSOLUTELY FREE’

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

CONSTITUTION ss 51 (i), (iii), (vi), 81, 92, 98: COMMONWEALTH SHIPPING ACT 1923

From time to time I have given to the Cabinet Sub-Committee on Commonwealth Shipping Policy oral advice as to constitutional matters affecting the sub-committee’s recommendations, and have intimated that I intend to furnish a written opinion; this I now do.