Legal Opinions

Opinion Number. 1799

Subject

AVIATION
CLASSIFICATION OF AIRCRAFT IN AIR NAVIGATION REGULATIONS: MEANING OF ‘PUBLIC TRANSPORT AIRCRAFT’: MEANING OF ‘AERIAL WORK AIRCRAFT’: MEANING OF ‘PRIVATE AIRCRAFT’: CLASSIFICATION OF COMMONWEALTH-OWNED AIRCRAFT FLOWN BY COMMONWEALTH OFFICERS: DISTINCTION BETWEEN CIVIL AIRCRAFT AND STATE AIRCRAFT IN CHICAGO CONVENTION

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

AIR NAVIGATION REGULATIONS reg 5: CONVENTION ON INTERNATIONAL CIVIL AVIATION done at Chicago on 7 December 1944 art 3

The Director-General of Civil Aviation has forwarded for advice the following memorandum:

The holder of a private pilot’s licence has requested permission to fly his own aircraft for the purpose of carrying his own fish regularly from the coast to Melbourne for sale in the city.

Opinion Number. 1800

Subject

WAR GRAVES
AUTHORISATION OF WORK IN CONNECTION WITH WAR GRAVES: FAWKNER CEMETERY: SCOPE OF DEFENCE POWER: POWERS OF CEMETERY TRUSTEES

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

CONSTITUTION s 51(vi): DEFENCE (TRANSITIONAL PROVISIONS) ACT 1946: NATIONAL SECURITY (GENERAL) REGULATIONs reg 37

I refer to your memorandum No. 47/800 of 8th April, 1947 concerning the proposal to erect concrete kerbings on war graves in the Fawkner civil cemetery.

Sub-regulations (6) and (7) of regulation 37 of the National Security (General) Regulations (as in force under the Defence (Transitional Provisions) Act 1946), so far as they are material, provide:

Opinion Number. 1801

Subject

PROTECTION OF NAMES OF POLITICAL PARTIES
PROPOSAL TO PROTECT THE NAME OF A POLITICAL PARTY: WHETHER THE NAME OF A POLITICAL PARTY MAY BE REGISTERED AS A TRADE MARK: WHETHER LEGISLATION MAY ESTABLISH COPYRIGHT IN THE NAME OF A POLITICAL PARTY: COMMONWEALTH POWER TO LEGISLATE WITH RESPECT TO USE OF THE NAMES OF POLITICAL PARTIES IN CONNECTION WITH FEDERAL ELECTIONS

AuthorEVATT Herbert Vere | Date
Key Legislation

COPYRIGHT ACT 1912: PATENTS ACT 1901: TRADE MARKS ACT 1905

I refer to your letter dated 11th December, 1946, concerning the following resolution carried at a recent meeting of the Federal Executive:

Registration of word ‘Labor’.

Item 32. Victorian Executive—That the Federal Government be requested to amend the Patents Act to provide for the registration of the word ‘Labor’ for political use.

Messrs. Bryan and Stewart moved—That the matter be referred to the Prime Minister for investigation and necessary action. Motion carried.

Opinion Number. 1802

Subject

TERRITORIES: PAPUA AND NEW GUINEA
CONSOLIDATION OF EXISTING LAWS OF PAPUA AND NEW GUINEA:

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

(1)  I am asked to advise on the organization required for carrying out expeditiously the consolidation, amalgamation and revision of the laws of the Territory of Papua-New Guinea. I refer to the consultations which I have had with yourself, with the Administrator, the Principal of the School of Pacific Administration and Dr. X., and also to the interview which your Minister was good enough to give me in association with yourself.

As a result of these discussions the work to be done shapes itself in my mind under three broad heads:

Opinion Number. 1803

Subject

AVIATION CHARGES
PROPOSED CHARGES FOR USE OF COMMONWEALTH AIRPORTS AND AVIATION FACILITIES: COMPONENTS OF PROPOSED ROUTE CHARGES: WAIVER OR REFUND OF CERTAIN CHARGES: COMMONWEALTH’S OBLIGATIONS UNDER AIRPORT LEASES: AIRPORT REVENUE

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

AIR NAVIGATION ACT 1920 s 4: AIR NAVIGATION REGULATIONS reg 110A

(1)  The Acting Minister for Civil Aviation, after considering the views expressed in my submission of the 17th March, 1947,1 on matters arising out of Cabinet consideration of Agendum No. 1278 of 1946, has requested your advice as to the proposition to impose ‘route charges’ for the use of aerodromes and airway facilities on the basis that those charges represent two components.

Opinion Number. 1804

Subject

BORROWING BY COMMONWEALTH
PROPOSED COMMONWEALTH BOND ISSUE: BORROWING BY COMMONWEALTH FOR REDEMPTION OF COMMONWEALTH EXTERNAL LOAN OF 1927 MATURING 1 SEPTEMBER 1957: LEGAL AUTHORITY FOR PROPOSED BOND ISSUE: FINANCIAL AGREEMENT OF 1927: EXECUTIVE POWER OF THE COMMONWEALTH

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

CONSTITUTION s 105A: COMMONWEALTH INSCRIBED STOCK ACT 1911: FINANCIAL AGREEMENT VALIDATION ACT 1929: LOANS REDEMPTION AND CONVERSION ACT 1921: LOANS SECURITIES ACT 1919

(1)  Under a decision of the Loan council, the Commonwealth is to borrow in the United States of America a sum not exceeding thirty-eight million dollars for the purpose of redeeming prior to maturity the Commonwealth of Australia External Loan of 1927 Thirty Year 5 per cent Gold Bonds maturing 1st September, 1957, and for the expenses of borrowing. The Registration Statement filed by the Commonwealth with the Securities and Exchange Commission of the United States contains an undertaking that, as Solicitor-General, I will advise upon the legality of the proposed bond issue.

Opinion Number. 1805

Subject

AVIATION
POWER OF AUSTRALIAN NATIONAL AIRLINES COMMISSION TO PROVIDE INTRASTATE AIRLINE SERVICES AS INCIDENTAL TO INTERSTATE AND TERRITORY AIRLINE SERVICES: SCOPE OF INTERSTATE TRADE AND COMMERCE POWER AND INCIDENTAL POWER: WHETHER AUSTRALIAN NATIONAL AIRLINES ACT 1945 AUTHORISES PASSENGER AND FREIGHT SERVICES TO BE PROVIDED AS INCIDENTAL TO CONDUCT OF MAIL SERVICES: COMMONWEALTH POWER TO LEGISLATE WITH RESPECT TO INTERSTATE AND INTRASTATE TRANSPORT FOR POSTAL PURPOSES: SCOPE OF TERRITORIES POWER: SCOPE AND DURATION OF REFERRALS OF POWER WITH RESPECT TO AIR TRANSPORT GIVEN BY NEW SOUTH WALES, QUEENSLAND, SOUTH AUSTRALIA AND WESTERN AUSTRALIA

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

CONSTITUTION ss 51(i), (v), (xxxvii), (xxxix), 122: AUSTRALIAN NATIONAL AIRLINES ACT 1945 ss 19, 22: NAVIGATION ACT 1912: COMMONWEALTH POWERS ACT 1942 (NSW): COMMONWEALTH POWERS ACT1943 (Qld): COMMONWEALTH POWERS ACT 1943 (SA): COMMONWEALTH POWERS ACT 1943 (WA)

(1)  I refer to your memorandum of 27th March concerning the powers of the Australian National Airlines Commission to engage in certain activities, and to subsequent oral discussions on the subject.

(2)  The memorandum refers to three proposed activities of the Commission:

(i)   The provision, in the course of operating an inter-State air-line service, of transport between points in one State;

(ii)  The provision, in the course of operating a territorial air-line service, of transport directly between points in one State; and

Opinion Number. 1806

Subject

COAL INDUSTRY
POWERS OF JOINT COAL BOARD WITH RESPECT TO COAL MINES OWNED BY NEW SOUTH WALES: WHETHER CROWN IN RIGHT OF NEW SOUTH WALES IS BOUND BY COAL INDUSTRY ACTS: COAL INDUSTRY TRIBUNAL

AuthorEVATT Herbert Vere | Date
Key Legislation

CONSTITUTION covering cl 5, s 51(xxxv): COAL INDUSTRY ACT 1946 s 12: COAL INDUSTRY ACT 1946 (NSW) ss 11, 25

The question has been raised whether the powers of the Joint Coal Board established under the Coal Industry Act 1946 (Commonwealth) and the Coal Industry Act 1946 (N.S.W.) can be exercised in respect of State owned mines in the State of New South Wales.

The Joint Coal Board derives it powers in part from the Commonwealth Act and in part from the State Act.

The powers of the Board stated generally include the taking of such action as, in its opinion, is necessary or desirable—

Opinion Number. 1807

Subject

BANKING AND STATE BANKING
OBSERVATIONS ON MELBOURNE V COMMONWEALTH LITIGATION: VALIDITY OF BANKING ACT 1945: COMMONWEALTH POWER TO REGULATE BANKING BY STATES: COMMONWEALTH POWER TO LEGISLATE WITH RESPECT TO STATE AUTHORITIES: MEANING OF ‘BANKING’, ‘STATE BANKING’ AND ‘STATE BANKING EXTENDING BEYOND THE LIMITS OF THE STATE CONCERNED’ IN s 51(xiii) OF CONSTITUTION: WHETHER ‘STATE BANKING’ INCLUDES TRANSACTIONS OF STATES, STATE AUTHORITIES AND LOCAL GOVERNING AUTHORITIES AS CUSTOMERS OF BANKS: WHETHER ss 18–22 OF BANKING ACT 1945 CONSTITUTE A LAW IMPOSING TAXATION: MEANING OF ‘TAXATION’ IN s 51(ii) OF CONSTITUTION: PARLIAMENTARY PRACTICE WITH RESPECT TO TAXATION LAWS: WHETHER BANKING ACT 1945 APPLIES TO COMMONWEALTH BANK, COMMONWEALTH SAVINGS BANK, STATE BANKS AND STATE SAVINGS BANKS: MEANING OF ‘STATE INSURANCE’: CONSTRUCTION OF s 48 OF BANKING ACT 1945: DRAFT NOTICE UNDER s 48 OF BANKING ACT 1945 SENT ON 1 MAY 1947 TO PRIVATE TRADING BANKS AND ITS EFFECT WHEN BROUGHT INTO FORCE: LETTERS OF 1 MAY 1947 SENT TO STATE AUTHORITIES AND LOCAL GOVERNING AUTHORITIES FOR

Author | Date
Key Legislation

CONSTITUTION ss 51 (ii), (xii), (xiii), (xiv), (xxxi), (xxxv), 55, 81, 107: ACTS INTERPRETATION ACT 1901 ss 15A, 46: BANKING ACT 1945 ss 4, 5, 7, 8, 18–22, 48, 56, First and Second Schedules: COMMONWEALTH BANK ACT 1911 s 7B: COMMONWEALTH BANK REGULATIONS

Opinion Number. 1808

Subject

BANKING AND STATE BANKING
FURTHER OBSERVATIONS ON MELBOURNE V COMMONWEALTH LITIGATION: POSSIBLE ARGUMENT THAT THE BANKING ACT 1945 INFRINGES AN IMPLIED CONSTITUTIONAL RESTRICTION ON COMMONWEALTH POWER TO LEGISLATE TO DESTROY OR WEAKEN THE CONSTITUTIONAL FUNCTIONS OR CAPACITIES OF THE STATES OR THEIR ESSENTIAL GOVERNMENT FUNCTIONS OR NORMAL ACTIVITIES: CONSTITUTIONAL IMPLICATIONS: EARLIER CONSTITUTIONAL PRINCIPLE OF IMMUNITY OF INSTRUMENTALITIES: COMMONWEALTH POWER TO ENACT LEGISLATION DISCRIMINATING AGAINST STATES OR STATE AGENCIES: WHETHER s 48 OF BANKING ACT 1945 DISCRIMINATES AGAINST STATES AND STATE AGENCIES: COMMONWEALTH POWER TO LEGISLATE WITH RESPECT TO CURRENCY AND COINAGE

Author | Date
Key Legislation

CONSTITUTION ss 51 (v), (xii), (xiii), (xxxi), (xxxv), 109: BANKING ACT 1945 s 48: POST AND TELEGRAPH ACT 1901 ss 80, 98: WIRELESS TELEGRAPHY ACT 1905

(1)  In the original observations1 it was assumed, for the purposes of the remarks on section 51(xxxi), that acquisition by the Commonwealth Bank had the same effect as acquisition by the Commonwealth. The Commonwealth, it is felt, could hardly argue otherwise.