OLD-AGE PENSION: INCONSISTENCY
WHETHER DEMAND BY COMMONWEALTH FOR INFORMATION AS TO CIRCUMSTANCES OF PENSION CLAIMANT BINDS STATE SAVINGS BANK: PRESUMPTION OF VALIDITY OF COMMONWEALTH LAWS FALLING WITHIN AN ENUMERATED POWER: INVALIDITY OF INCONSISTENT STATE LEGISLATION
CONSTITUTION, ss. 51 (xxiii), 109: INVALID AND OLD-AGE PENSIONS ACT 1908, s. 28 (2): QUEENSLAND GOVERNMENT SAVINGS BANK ACT 1916
The following memorandum has been forwarded by the Secretary to the Treasury requesting advice:
Will the Acting Secretary kindly advise me whether the Secretary's opinion of 14 November 1910 (attached) refers to Government Savings Banks in Queensland as well as commercial banks. It will be observed that the Crown Solicitor, Queensland, is of opinion that section 28 (2) of the Invalid and Old-Age Pensions Act does not apply to Queensland Government Savings Bank.
Papers herewith.
It is suggested by the Commissioner of the Queensland Government Savings Bank that the opinion given by me on 14 November 1910(1)may possibly refer to commercial banks and not to the Crown'. He states that the Crown Solicitor of Queensland advises that section 28 (2) does not apply to the Queensland Government Savings Bank.
In my opinion the section applies equally to private banking institutions and to those established under State law.
The Commonwealth has express power under the Constitution to make laws with regard to invalid and old-age pensions. Laws validly made by authority of the Constitution bind, so far as they purport to do so, the people of every State considered as individuals or as political organisations called States, in other words, bind both Crown and subjects.
It is undoubted that those who maintain the authority of the Commonwealth Parliament to pass a certain law should be able to point to some enumerated power containing the requisite authority. But . . . where the affirmative terms of a stated power wouldustify an enactment, it rests upon those who rely on some limitation or restriction upon the power, to indicate it in the Constitution. (Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd 28 C.L.R. 129 at 154.)
In my opinion the power of the Commonwealth to legislate with regard to invalid and old-age pensions justifies the enactment of section 28 (2) of the Invalid and Old-age Pensions Act 1908-1919. In so far as the Queensland Government Savings Bank Act 1916 purports to prevent compliance by the Bank with the Commonwealth statute, the State Act is to that extent invalid (Constitution, section 109).
[vol.17,p.120]
(1)Opinion [vol.8,p. 166] not published in Vol.1