Opinion Number. 1042

Subject

COMMONWEALTH IMMUNITY FROM STATE LAWS
STATE STAMP DUTY: WHETHER DECLARATIONS MADE UNDER INVALID AND OLD-AGE PENSIONS LEGISLATION ARE SUBJECT TO DUTY: MEANING OF 'STATUTE' IN STATE ACT

Key Legislation

INVALID AND OLD-AGE PENSIONS ACT 1908: STAMP DUTIES ACT 1920 (N.S.W.), Second Schedule

Date
Client
The Secretary to the Treasury

The Secretary to the Treasury has submitted the following memorandum for advice:

It has come under notice that under the New South Wales Stamp Duties Act 1920 declarations made under statute require payment of 2s 6d stamp duty by the person making the declaration.

  1. A declaration in Form 3 under the Invalid and Old-age Pensions Regulations has already been received with stamp duty (2s 6d) paid. Another case has come under notice in which a Justice of the Peace in New South Wales refused to take a declaration unless the duty was paid.
  2. I shall be glad if you will kindly advise me whether declarations provided for under the Invalid and Old-age Pensions Act 1908-1920 and Regulations are liable to this stamp duty. A copy of the New South Wales Act is enclosed for reference and return.
  3. Will you please furnish me with the desired advice at your earliest convenience, as it will be necessary to instruct various officers in New South Wales performing duties under the Invalid and Old-age Pensions Act.

I am clearly of opinion that any provision of State legislation purporting to impose stamp duty on declarations made for the purposes of the Invalid and Old-age Pensions Act 1908-1920 and the Regulations thereunder is invalid and that payment of the duty cannot legally be demanded.
That portion of the Second Schedule to the New South Wales Stamp Duties Act 1920 to which the Secretary to the Treasury has drawn my attention reads: 'Affidavit or Declaration made under statute-2s 6d'. The statutes referred to are, in my opinion, State statutes and any attempts to impose stamp duty on declarations under the Invalid and Old-age Pensions Act have probably been made under a misapprehension of the application of the words quoted.

[Vol. 17, p. 221]