Legal Opinions

Opinion Number. 1829

Subject

SUPPLY OF ALCOHOL AT COMMONWEALTH DEFENCE ESTABLISHMENTS
SUPPLY AND CONSUMPTION OF ALCOHOL AT COMMONWEALTH DEFENCE ESTABLISHMENTS: WHETHER LICENSING ACT 1932 (SA) APPLIES TO SUPPLY OF ALCOHOL AT COMMONWEALTH DEFENCE ESTABLISHMENTS IN SOUTH AUSTRALIA: COMMONWEALTH POWER TO REGULATE SUPPLY OF ALCOHOL AT COMMONWEALTH DEFENCE ESTABLISHMENTS: WHETHER STATUTORY PROVISION FOR SUPPLY AND CONSUMPTION OF ALCOHOL AT COMMONWEALTH DEFENCE ESTABLISHMENTS SHOULD BE MADE: WHETHER LICENSING ACT 1932 (SA) BINDS THE CROWN: SCOPE OF DEFENCE POWER

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

DEFENCE (TRANSITIONAL PROVISIONS) ACT 1946: LICENSING ACT 1932 (SA) ss 12, 13(5): NATIONAL SECURITY (MUNITIONS) REGULATIONS

Long range weapons establishment: Salisbury Hostel: Consumption of Spirituous Liquors

I refer to your memorandum of the 14th January, 1948, on the above-mentioned subject.

In this matter I have come to the conclusion that the only safe course to follow is to make appropriate statutory provision for the supply and consumption of liquor at the establishment in question.

Opinion Number. 1830

Subject

IMMIGRATION; HOUSING
WHETHER CONSTRUCTION OF HOSTELS IN PORT KEMBLA – WOLLONGONG AREA FOR CERTAIN DISPLACED PERSONS WOULD BE FOR A ‘PURPOSE OF THE COMMONWEALTH’: APPROPRIATION FOR HOUSING FOR DISPLACED PERSONS ADMITTED TO AUSTRALIA: AUSTRALIA’S OBLIGATIONS UNDER AGREEMENT WITH THE PREPARATORY COMMISSION OF THE INTERNATIONAL REFUGEE ORGANIZATION MADE 21 JULY 1947: SCOPE OF THE COMMONWEALTH PARLIAMENT’S POWER TO LEGISLATE WITH RESPECT TO IMMIGRATION: MEANING OF ‘PURPOSES OF THE COMMONWEALTH’ IN s 81 OF CONSTITUTION

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

CONSTITUTION ss 51(xxvii), 81, 83: Agreement between the Commonwealth and the Preparatory Commission of the International Refugee Organization made 21 July 1947 cll 5, 8

I refer to Mr. Welch’s recent telephone enquiry from this Department as to the power of the Commonwealth to construct hostels for certain displaced persons from Europe, to be employed in heavy industries in the Port Kembla – Wollongong Area.

Opinion Number. 1831

Subject

WAR GRAVES
WAR GRAVES OF AUSTRALIANS AND MEMBERS OF OTHER BRITISH COMMONWEALTH FORCES IN NETHERLANDS EAST INDIES: WHETHER PROPOSED AGREEMENT BETWEEN AUSTRALIA AND NETHERLANDS EAST INDIES GOVERNMENT IS WITHIN PROPER CONSTITUTIONAL FUNCTIONS OF AUSTRALIA: WHETHER AUSTRALIA IS MOST APPROPRIATE PARTY TO PROPOSED AGREEMENT: PROVISIONS OF PROPOSED AGREEMENT RELATING TO IMPERIAL WAR GRAVES COMMISSION

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

I refer to your memorandum No. 47/930 of 10th November, 1947.

It is noted that the proposal is that Australia should make an agreement relating to the war graves, in an area outside Australia, not only of Australians, but also of members of forces from any part of the Empire. (I understand, however, that the only British graves in the area apart from those of Australians are graves of members of the United Kingdom forces and a few graves of members of the Indian forces).

Opinion Number. 1832

Subject

BEQUESTS
BEQUEST MADE BY WILL OF DECEASED RECIPIENT OF OLD AGE PENSION TO ‘THE GOVERNMENT’: WHETHER GOVERNMENT IS COMMONWEALTH OR QUEENSLAND GOVERNMENT

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

I refer to your letter of the 23rd December, 1947, addressed to the Attorney-General, asking for his opinion as to the interpretations of the expression ‘the Government’ in the will of above-named deceased. The Attorney-General has referred the letter to me for reply.

The relevant words in the will are as follows:

As I am an old pensioner I leave the rest to the Government.

Opinion Number. 1833

Subject

BANKING
JOINT OPINION OF J.B. TAIT, P.D. PHILLIPS, G. GOWANS AND C.I. MENHENNITT RELATING TO APPROACH TO BE TAKEN BY COMMONWEALTH IN APPLICATION FOR LEAVE TO APPEAL TO PRIVY COUNCIL FROM DECISION OF HIGH COURT IN BANK OF NSW v COMMONWEALTH (1948): CONSIDERATION OF GROUNDS ON WHICH APPEAL TO PRIVY COUNCIL SHOULD BE TAKEN: WHETHER APPEAL SHOULD BE CONFINED TO ISSUE OF INVALIDITY OF s 46 OF BANKING ACT 1947 FOR INFRINGING s 92 OF CONSTITUTION: WHETHER BANKING ACT 1947 SHOULD BE AMENDED PRIOR TO APPLICATION FOR LEAVE TO APPEAL: WHETHER BANKING ACT 1947 SHOULD BE AMENDED TO PROVIDE FOR CONCURRENT JURISDICTION OF HIGH COURT AND COURT OF CLAIMS: WHETHER CERTIFICATE SHOULD BE SOUGHT FROM HIGH COURT UNDER s 74 OF CONSTITUTION: WHETHER DECISION INVOLVES ‘A DECISION OF THE HIGH COURT UPON ANY QUESTION … AS TO THE LIMITS INTER SE OF THE CONSTITUTIONAL POWERS OF THE COMMONWEALTH AND THOSE OF ANY STATE OR STATES’: MEANING OF ‘DECISION OF THE HIGH COURT UPON ANY QUESTION’ IN s 74 OF CONSTITUTION: SCOPE OF BANKING POWER: ACQUISITION OF PROPERTY ON JUST TERMS: SEVERABILITY

AuthorGOWANS Gregory, MENHENNITT C.I., PHILLIPS P.D., TAIT J.B. | Date
Key Legislation

CONSTITUTION ss 51(xiii), (xxxi), 74, 75(iii), 92: BANKING ACT 1947 ss 6, 13–21, 23, 46, Part 4, Div 4

RE BANKING CASE JUDGMENTS

MEMORANDUM OF ADVICE

(1)  Counsel in consultation have considered carefully the effects of the Reasons of Judgment of the Justices of the High Court1 and in the light of these reasons set out the following advice as to the most appropriate steps with regard to an application for leave to appeal to the Privy Council.2

GENERAL PLAN

Opinion Number. 1835

Subject

TERMINATION OF WORLD WAR 2
WHETHER PROCLAMATION REQUIRED TO TERMINATE STATE OF WAR WITH ITALY, ROMANIA, BULGARIA, HUNGARY AND FINLAND: RATIFICATION OF TREATIES OF PEACE: COMMONWEALTH GAZETTE NOTICE OF DEPOSIT OF RATIFICATIONS OF TREATIES OF PEACE: PROPOSED ADVICE TO COMMONWEALTH DEPARTMENTS IN RELATION TO PEACE TREATIESS

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

I refer to your memorandum dated 12th May, 1948, requesting my views whether a Proclamation will be required to terminate the state of war with Italy, Roumania, Bulgaria, Hungary and Finland when the ratifications of the Treaties of Peace with these countries have been deposited.

Opinion Number. 1836

Subject

SHIPPING
SALVAGE BY ROYAL AUSTRALIAN NAVY VESSELS: WHETHER MERCHANT SHIPPING (SALVAGE) ACT 1940 (UK) APPLIES TO AUSTRALIA: POWER OF COMMONWEALTH PARLIAMENT TO ENACT SALVAGE LAW

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

STATUTE OF WESTMINSTER, 1931 s 4: MERCHANT SHIPPING (SALVAGE) ACT 1940 (UK)

I refer to your memorandum dated 8th August, 1947, regarding the above-mentioned matter.

Opinion Number. 1837

Subject

PETROL RATIONING
COMMONWEALTH POWER TO CONTINUE PETROL RATIONING AFTER 31 DECEMBER 1948: DEFENCE POWER: POSSIBLE REFERENCE BY STATES OF THE MATTER OF PETROL RATIONING

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

CONSTITUTION ss 51(i), (vi), (xxix), (xxxvii): NATIONAL SECURITY (LIQUID FUEL) REGULATIONS

I refer to your teleprinter message, No. SY.578 of the 2nd July, 1948, regarding the adequacy of the Commonwealth’s legal powers to continue petrol rationing after 31st December 1948.

Opinion Number. 1838

Subject

EFFECT OF RATIFICATION OF TREATIES OF PEACE WITH PARTICULAR COUNTRIES
EFFECT OF RATIFICATION OF TREATIES OF PEACE WITH ITALY, ROMANIA, BULGARIA, HUNGARY AND FINLAND: WHETHER PROCLAMATION THAT WAR NO LONGER EXISTS MAY BE ISSUED UNDER TRADING WITH THE ENEMY ACT 1939: CUSTOMS PROCLAMATION PROHIBITING TRADING WITH PERSONS RESIDENT OR CARRYING ON BUSINESS IN ENEMY TERRITORY: MEANING OF ‘ENEMY TERRITORY’: WHETHER NOTICES DECLARING CERTAIN COUNTRIES TO BE ENEMY TERRITORY SHOULD BE REVOKED

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

TRADING WITH THE ENEMY ACT 1939 ss 3, 5(1): NATIONAL SECURITY (ENEMY PROPERTY) REGULATIONS: Customs Proclamation No. 498 published 24 July 1940

I refer to your memorandum No. 48/66/42 of 2nd July concerning the effect of the ratification of the Treaties of Peace with Italy, Roumania, Bulgaria, Hungary and Finland.

Opinion Number. 1839

Subject

COMMONWEALTH PUBLIC SERVICE
WHETHER A PERSON WHO ENLISTED IN THE AUSTRALIAN IMPERIAL FORCE IN MARCH 1947 IS A ‘RETURNED SOLDIER’ FOR PURPOSES OF THE COMMONWEALTH PUBLIC SERVICE ACT 1922 AND REGULATIONS: MEANING OF

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

PUBLIC SERVICE ACT 1922 s 7: RE-ESTABLISHMENT AND EMPLOYMENT ACT 1945 s 4: COMMONWEALTH PUBLIC SERVICE REGULATIONS reg 159

I refer to your memorandum dated 19th July, 1948, requesting advice whether X. is a ‘returned solder’ within the meaning of that expression in regulation 159.

(2)  It is stated in your memorandum that X. enlisted in the A.I.F. on 10th March, 1947, and since that date has served on continuous full time military duty.

(3)  The expression ‘returned soldier’ is defined in section 7 of the Commonwealth Public Service Act as including, amongst other persons—