COMMONWEALTH IMMUNITY FROM STATE LAWS STATE LAW PROHIBITING DEALINGS IN BANK ACCOUNT OF DECEASED PERSON WITH CERTIFICATE FROM STAMP COMMISSIONER: WHETHER APPLICABLE TO COMMONWEALTH SAVINGS BANK: STAMP DUTY ON WITHDRAWAL FORMS USED IN SAVINGS BANK BUSINESS
CONSTITUTION, s. 109: COMMONWEALTH BANK ACT 1911, s. 44: STAMP DUTIES ACT 1898 (N.S.W.), Second Schedule: STAMP DUTIES (AMENDMENT) ACT 1914 (N.S.W.). Schedule 1: STAMP DUTIES ACT 1920 (N.S.W.), Second Schedule
The Secretary to the Treasury has submitted to me for advice the following letters from the Governor of the Commonwealth Bank:
I forward herewith a copy of the New South Wales Stamp Duties Act No. 47 of 1920, which was assented to on 31 December last.
I shall be glad if you will draw the attention of the Solicitor-General for the Commonwealth to section 122 (3) which specially applies to this Bank.
It appears to us that this section is apparently ultra vires, as it clashes with section 44 of the Commonwealth Bank Act. I shall be glad, therefore, if you will obtain the Solicitor-General's opinion on the following points:
- Is section 122 of the New South Wales Act No. 47 of 1920 applicable to the Commonwealth Bank of Australia?
- Does this section override section 44 of the Commonwealth Bank Act under which the Governor of the Bank has power to allow withdrawal of amounts deposited with the Savings Bank Department not exceeding £100 without production of probate of will or letters of administration?
- Does section 122 of the New South Wales Act apply to amounts in excess of £100?
- We enclose copy of letter of 14th instant received from the Commissioner of Stamp Duties exempting payments to the Public Trustees of balances of deceased persons' Savings Bank accounts up to £50 from the production of the certificate required under section 122 (1), the inference being that the certificate must be produced in all other cases before payment can be made.
- Stamp Duties Act No. 27 of 1898-Exemption: 'Any receipt given by depositors on receiving deposits from any savings bank'.
Act No. 3 of 1914-Draft payable on demand-Exemption: '[Draft or cheque payable on demand] drawn on the Government Savings Bank or the Savings Bank of New South Wales in respect of a deposit in any such bank'. This whilst specially naming the banks to which the exemption applies, omits the Commonwealth Savings Bank, but as our withdrawal forms are in the nature of a receipt (specimen Form C.S.B. No. 10 herewith) and as the Act 1914 No. 3 did not repeal 1898 No. 27, the exemption under the last-mentioned Act continues to apply to our Savings Bank, but both these Acts have been repealed by the new Act, vide page 60 and the exemptions now provided are: Page 64, Bill of Exchange (c): 'Cheque or order payable on demand drawn on the Government Savings Bank of New South Wales in respect of a deposit in the Savings Bank Department of such bank' and again, vide page 74, Receipt (i): 'Any receipt given by depositors on receiving deposits from the Government Savings Bank of New South Wales'.
The opinion of the Solicitor-General is desired as to whether our Savings Bank withdrawal forms are now subject to stamp duty.
I would bring under the notice of the Right Honourable the Treasurer this change in the State law from which it would appear to be the deliberate intention of the State legislature in omitting the Commonwealth Savings Bank from the exemption and specially mentioning the Government Savings Bank to prejudice, if it has the power to do so, our Savings Bank business by penalising our Savings Bank depositors of whom there are in this State at the present time 202,000 to the advantage of the Government Savings Bank, the depositors in which are specially exempted from stamp duty on withdrawals.
[Second letter] Reverting to my letter of 15th instant, I desire to bring under the notice of the Right Honourable the Treasurer a further instance of how our Savings Bank depositors will be penalised by the new Act, if we are bound by the provisions, whilst the State Government Savings Bank is specially exempted.
The Act provides that declarations be each stamped 2s 6d and it affects a large number of our Savings Bank customers, as it is our practice to require declarations in support of every application for a new passbook, in cases where books have been lost by the customer, and declarations are also required in connection with claims for payment of deceased persons' balances, one of the exemptions being (vide page 61): Affidavit or Declaration: 'Required under any Act or regulation for the time being in force for the management of the Government Savings Bank of New South Wales'.
I shall be glad if you will also refer this matter to the Solicitor-General, as well as the other matters mentioned in my previous letter, for his opinion as to whether, in the instances given, the Act can be enforced against the Commonwealth Savings Bank, as if so, it will entail expense to our Savings Bank customers which customers of the Government Savings Bank of New South Wales are specially exempted from. Section 122 of the Stamp Duties Act 1920 of New South Wales is as follows:
122 1. Where any shares, stock, debentures, money on fixed deposit, or any other property except money on current account at any bank, stand in the books in New South Wales of any corporation, company, or society carrying on business in New South Wales, in the name of any deceased person, either alone or jointly with any other person as owner, no dealings with any such shares, stock, debentures, money on fixed deposit, or property shall be registered, recorded, or otherwise given effect to by such corporation, company, or society having notice of the death of the deceased without the production of a certificate in the prescribed form of the Commissioner to the effect that the same has been included in the account lodged in accordance with this Act, or that the same does not form part of the dutiable estate of the deceased.
- Any corporation, company, or society to which this section applies which acts in contravention of this section, shall incur a fine not exceeding fifty pounds.
- This section shall apply to the Commonwealth Bank of Australia and the Government Savings Bank of New South Wales, and moneys on deposit in the Savings Bank Department of the former bank and in the latter bank, shall not for the purposes of this section be deemed to be money on current account.
- Any administrator who omits to give notice of the death of the deceased to any such corporation, company, or society within one month after his death shall be liable to a fine not exceeding twenty pounds.
As there is no Commonwealth law with which section 122 of the New South Wales Act conflicts in so far as general banking business of the Commonwealth Bank is concerned that section applies to the general banking business.
The section also applies to Savings Bank business in cases where the amount in question exceeds £100. It does not apply to Savings Bank business where the amount does not exceed £100 as the New South Wales provision is in such cases in conflict with section 44 of the Commonwealth Bank Act.
With regard to the question of the liability of withdrawal forms used in Savings Bank business, I am of opinion that, as the Regulations governing this business prescribe the formalities to be observed in connection with withdrawals (e.g. the completion and signature of the proper withdrawal form-regulation 50) a requirement under State law that the forms should be stamped imposes an additional obligation which is in conflict with Commonwealth law.
Similar considerations apply to the liability to stamp declaration forms used in connection with Savings Bank business. If declarations are required by regulation
under the Commonwealth Bank Act any State law requiring those declarations to be stamped is in conflict with Commonwealth law and pro tanto invalid.
[Vol. 17, p. 440]