Legal Opinions

Opinion Number. 1840

Subject

OWNERSHIP BY SHIPPING COMPANIES OF AIRLINES
COMMONWEALTH POWER TO PROHIBIT SHIPPING COMPANIES FROM HOLDING INTERESTS IN INTERSTATE OR OVERSEAS AIRLINES: FREEDOM OF INTERSTATE TRADE

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

CONSTITUTION ss 51(i), (xx), (xxix), (xxxix), 92

I have given consideration to your minute, dated 6th August, in which, at the instance of the Minister for Air, you ask for my advice as to whether the Commonwealth has power to restrain shipping companies from having interests or controlling interests in interstate or overseas airlines.

Opinion Number. 1841

Subject

PETROL, BUTTER AND TEA RATIONING
COMMONWEALTH POWER TO CONTINUE PETROL, BUTTER AND TEA RATIONING UNTIL 31 DECEMBER 1949: SCOPE OF DEFENCE POWER: POSSIBLE REFERENCES BY STATES WITH RESPECT TO PETROL, BUTTER AND TEA

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

CONSTITUTION s 51(vi), (xxix), (xxxvii)

I refer to your request for advice regarding the adequacy of the Commonwealth’s constitutional powers to support the continuance of petrol, butter and tea rationing until 31st December, 1949.

(2)  All three rationing systems would have to depend primarily on the defence power as applied to the transition from war to peace, though in the case of petrol and butter some further support might possibly be derived from the external affairs power. On the whole I would think that petrol rationing would be in the strongest constitutional position of the three.

Opinion Number. 1842

Subject

SUBSIDY TO FARMERS
WHETHER COMMONWEALTH HAS POWER TO PAY SUBSIDY TO FARMERS ON PURCHASES OF SUPERPHOSPHATE: WHETHER PROPOSED SUBSIDY IS A BOUNTY: SCOPE OF COMMONWEALTH’S APPROPRIATION POWER: VALIDITY OF PROPOSED MEASURES TO SAFEGUARD EXPENDITURE UNDER APPROPRIATION ACT: SUBSIDY MADE BY WAY OF GRANTS TO STATES: COMMONWEALTH POWER TO REQUIRE MANUFACTURERS AND DISTRIBUTORS TO FURNISH RETURNS: FALSE STATUTORY DECLARATIONS

AuthorWHITLAM Harry Frederick Ernest | Date
Key Legislation

CONSTITUTION ss 51(iii), 81: PRIMARY PRODUCERS RELIEF ACT 1935 s 8: STATUTORY DECLARATIONS ACT 1911: WHEAT GROWERS RELIEF ACT 1933 s 7

I refer to your memorandum dated 27th August, 1948, concerning a proposal to pay a flat rate subsidy direct to farmers on all superphosphate purchased by them in quantities of one ton or more and asking certain questions in relation thereto. The questions and answers are as follows:

(a) whether an appropriation would be sufficient legislative authority for the proposed scheme:

Opinion Number. 1843

Subject

TERRITORIES: HEARD AND MACDONALD ISLANDS
ACQUISITION BY AUSTRALIA OF TERRITORIES OF HEARD AND MACDONALD ISLANDS: EFFECT OF AUSTRALIAN OCCUPATION OF ISLANDS IN DECEMBER 1947: PROPOSED TRANSFER BY UNITED KINGDOM TO AUSTRALIA OF ITS RIGHTS IN THE ISLANDS: MEANING OF ‘ANY TERRITORY

AuthorWHITLAM Harry Frederick Ernest | Date
Key Legislation

CONSTITUTION s 122

I refer to your memorandum dated 22nd June, 1948, requesting advice whether an exchange of notes between the United Kingdom Government and the Australian Government would be effective to place these Islands under the authority of the Commonwealth and so to attract the provisions of section 122 of the Constitution.

Opinion Number. 1844

Subject

PETROLEUM PRODUCTS
COMMONWEALTH POWER TO CONTROL DISTRIBUTION OF PETROLEUM PRODUCTS: COMMONWEALTH POWER TO REQUIRE PETROLEUM COMPANIES TO ADOPT A POOL DISTRIBUTION AND MARKETING SYSTEM: SCOPE OF DEFENCE POWER: SCOPE OF TRADE AND COMMERCE POWER: FREEDOM OF INTERSTATE TRADE: WHETHER POOL SYSTEM WOULD BE PRACTICABLE

AuthorWHITLAM Harry Frederick Ernest | Date
Key Legislation

CONSTITUTION ss 51(i), (vi), 92

I refer to your memorandum of 13th October, asking for advice on the following questions:

(a) Has the Commonwealth legal power to require the Companies comprising the oil industry to reconstitute Pool Petroleum Pty. Ltd. or other legal entity so that the group of Companies acts as a unit in marketing petrol and petroleum products.

(b) Has the Commonwealth power to require the Companies to enter into an agreement between themselves to achieve the objective named in (a) above.

Opinion Number. 1845

Subject

H0SPITALS
POWER OF COMMONWEALTH PARLIAMENT TO LEGISLATE TO ESTABLISH HOSPITALS FOR EX-SERVICEMEN: SCOPE OF DEFENCE POWER

AuthorMcKENNA N.K. | Date
Key Legislation

CONSTITUTION ss 51(vi), 109

I refer to your request for information as to the constitutional position of the Commonwealth in connexion with the establishment of hospitals for the reception and treatment of mentally afflicted ex-servicemen.

Your question is, in effect, whether the Commonwealth Parliament has constitutional power to provide for the establishment of such hospitals notwithstanding that the provisions of any Commonwealth law on the matter may conflict with State laws dealing with mentally afflicted persons.

Opinion Number. 1846

Subject

BANKING
JOINT OPINION OF J.D. HOLMES AND B.P. MACFARLAN RELATING TO APPEAL TO PRIVY COUNCIL FROM DECISION OF HIGH COURT IN BANK OF NEW SOUTH WALES v COMMONWEALTH (1948): ARGUMENTS PROPOSED TO BE PUT BY COMMONWEALTH ON APPEAL: HIGH COURT’S GROUNDS FOR INVALIDATING s 46 OF BANKING ACT 1947: CERTIFICATE 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’: HISTORY OF DEVELOPMENT OF PROVISION WHICH BECAME s 74 OF CONSTITUTION: CROWN PREROGATIVE TO GRANT LEAVE TO HEAR AN APPEAL AGAINST A DECISION OF THE HIGH COURT ON A QUESTION RELATING TO s 92 OF CONSTITUTION: WHETHER PRIVY COUNCIL MAY DECIDE INTER SE QUESTIONS: POWER OF PRIVY COUNCIL TO VARY ORDER MADE 26 NOVEMBER 1948

AuthorHOLMES J.D., MACFARLAN B.P. | Date
Key Legislation

CONSTITUTION ss 51(xiii), 74, 92: BANKING ACT 1947 s 46: JUDICIARY ACT 1903 ss 23(1), 38A, 40A

We have been supplied with copies of the transcript of the proceedings before the Privy Council1 on an application by the Commonwealth of Australia and Others for Special Leave to Appeal against part of the Order of the High Court of Australia dated the 11th August, 1948.2 There is also included in our brief a copy of the Order in Council dated 26th November, 1948; which so far as material is in the following terms:

Opinion Number. 1847

Subject

WHALING
PROPOSED ESTABLISHMENT OF WHALING INDUSTRY IN AUSTRALIA: POWER OF COMMONWEALTH PARLIAMENT TO LEGISLATE WITH RESPECT TO WHALING AND TO AUTHORISE COMMONWEALTH OR A COMMONWEALTH BODY TO ENGAGE IN WHALING: MEANING OF ‘FISHERIES IN AUSTRALIAN WATERS BEYOND TERRITORIAL LIMITS’: MEANING OF ‘FISHERIES’: MEANING OF ‘FISHERY’ AT TIME CONSTITUTION WAS FRAMED: WHETHER COMMONWEALTH MAY BE GIVEN A MONOPOLY IN WHALING IN AUSTRALIAN WATERS BEYOND TERRITORIAL LIMITS: POWER OF FEDERAL COUNCIL OF AUSTRALASIA WITH RESPECT TO FISHERIES: APPROPRIATION POWER IN CONNECTION WITH WHALING INDUSTRY: MEANING OF ‘PURPOSES OF THE COMMONWEALTH’: WHALING IN AUSTRALIAN ANTARCTIC TERRITORY WATERS: APPLICATION OF STATE LAWS TO WHALING INDUSTRY: SCOPE OF COMMONWEALTH’S TRADE AND COMMERCE POWER

AuthorWHITLAM Harry Frederick Ernest | Date
Key Legislation

CONSTITUTION ss 51(i), (vi), (x), (xxix), (xxxix), 92, 109, 122: WHALING ACT 1935: QUEENSLAND PEARL SHELL AND BECHE-DE-MER FISHERIES ACT 1888 (Federal Council of Australasia): FEDERAL COUNCIL OF AUSTRALASIA ACT 1885 (UK) s 15

The Secretary, Department of Commerce and Agriculture, has forwarded the following memorandum to me for advice:

The matter of the establishment of a Whaling industry in Australia has been receiving the attention of certain interested Commonwealth Departments for some years.

Opinion Number. 1848

Subject

HEALTH SERVICES
RIGHT TO ADMINISTRATIVE AND JUDICIAL REVIEW OF A DECISION BY THE DIRECTOR-GENERAL OF HEALTH TO REVOKE OR SUSPEND THE APPROVAL OF AN APPROVED PHARMACEUTICAL CHEMIST: JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS: INQUIRY BY THE FEDERAL PHARMACEUTICAL SERVICE GUILD OF AUSTRALIA

AuthorBAILEY Kenneth Hamilton | Date
Key Legislation

PHARMACEUTICAL BENEFITS ACT 1947 s 13

I refer to your memorandum dated 20th December, 1948, forwarding copy of portion of a letter dated 22nd October, 1948, received by the Minister for Health from the Federated Pharmaceutical Service Guild of Australia. The Guild asks the question ‘whether an approved pharmacist whose approval has been revoked or suspended by the Director-General of Health has any civil rights to apply to a court of law to adjudicate on the merits of the revocation or suspension’.

Opinion Number. 1849

Subject

BANKING
APPEAL TO PRIVY COUNCIL FROM DECISION OF HIGH COURT IN BANK OF NSW V COMMONWEALTH (1948): JOINT OPINION OF J.D. HOLMES AND B.P. MACFARLAN RELATING TO SEVERABILITY OF s 46 OF BANKING ACT 1947: APPLICATION OF COMMON LAW PRINCIPLES, s 15A OF ACTS INTERPRETATION ACT 1901 AND s 6 OF BANKING ACT 1947 TO SEVERABILITY OF s 46 OF BANKING ACT

AuthorHOLMES J.D., MACFARLAN B.P. | Date
Key Legislation

CONSTITUTION s 74: ACTS INTERPRETATION ACT 1901 ss 2(1), 15A: BANKING ACT 1947 ss 6, 46

THE BANKING ACT 1947
JOINT OPINION

We have been asked to prepare a memorandum of the arguments which we think could be put advantageously for the appellants and of the appellants’ attitude generally on the questions of the severability of Sec. 46(4)–(8), from the remainder of the Banking Act, 1947, in the light of the decisions of the justices of the High Court and of the arguments already put.1