Opinion Number. 1104

Subject

COMMONWEALTH IMMUNITY FROM STATE LAWS BILLS OF LADING ISSUED TO COMMONWEALTH: WHETHER LIABLE TO STATE STAMP DUTY

Key Legislation

CONSTITUTION, s. 114: STAMP DUTIES ACT 1920 (N.S.W.), s. 54 (2)

Date
Client
The Secretary, Department of Defence

The Secretary, Department of Defence, has asked for advice as to the attitude that Department should adopt in view of the refusal of certain shipping companies to execute unstamped bills of lading for goods shipped by the Commonwealth.

Some time ago the question of the liability or otherwise to stamp duty, of bills of lading issued to the Commonwealth, was referred to the Commonwealth Crown Solicitor for advice, and the Commonwealth Crown Solicitor advised that bills of lading issued to the Commonwealth were not liable to stamp duty under a State Act. In this connection he cited section 114 of the Constitution, and also the decisions of the High Court in D'Emden v. Pedder 1 C.L.R. 91 and Municipal Council of Sydney v. Commonwealth 1 C.L.R. 208.

In reply the State Crown Solicitor of New South Wales pointed out that, as far as New South Wales law was concerned, the onus of stamping a bill of lading was thrown not on the person to whom the bill was issued, but on the person by whom it was made or executed-in this case the shipping company, and in this connection he cited Heiner v. Scott 19 C.L.R. 381 and Commonwealth v. New South Wales 25 C.L.R. 325.

In my opinion, having regard to the decision of the High Court in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd 28 C.L.R. 129, reliance cannot now be placed in this matter on the decision of that Court in the case of D'Emden v. Pedder, and the question, therefore, turns on whether the matter is one of taxation of the Commonwealth.

Having regard to the provisions of New South Wales law which impose the onus on the person by whom a bill of lading is issued, I am of opinion that the Commonwealth could not successfully contend that a bill of lading issued to the Commonwealth was not subject to stamp duty.(1)

[Vol. 17, p.438]

(1)But see Opinion No. 1158.