The Secretary, Department of Defence, has forwarded me the following memorandum for advice:

With reference to your opinion of 20 July, relative to the above-mentioned subject, I would advert to my letter of 18 March 1920, enclosing a copy of opinion of 15.1.20 by the Crown Solicitor in which he advised that stamp duty was not payable on an insurance policy issued to the Commonwealth. I shall be glad to know whether your opinion regarding bills of lading will apply to insurance policies also.

My opinion of 20 July 1921⁽¹⁾ was on the question of the liability of bills of lading issued to the Commonwealth to stamp duty under the law of New South Wales. On this question the Crown Solicitor of the State of New South Wales had advised that the stamp duty, being imposed on the person who makes or executes the bill of lading, was payable in respect of the bills of lading in question.

The State Crown Solicitor's advice was given upon the Stamp Duties Act 1898 (N.S.W.) and when dealing with the matter in my opinion of 20 July 1921 the fact that that Act had been superseded by an Act of 1920 was through inadvertence overlooked.

The Act of 1920 places the primary liability for stamp duty on bills of lading upon the person by whom the goods are consigned.

In the case under consideration the Commonwealth is the consignor and by the terms of the Act primarily liable to pay the stamp duty. This amounts in my opinion to the imposition of a tax upon the property of the Commonwealth and is within the prohibition contained in section 114 of the Constitution. In so far as the State Act purports to effect such imposition it is invalid.

With regard to insurance policies issued to the Commonwealth-the State Act imposes the liability for duty upon the company or person issuing the policy.

A policy issued to the Commonwealth is in my opinion an 'instrument whereby any contract is made with His Majesty, or any other person or authority on his behalf, and is therefore covered by the first of the General Exemptions in the Second Schedule.

I am accordingly of opinion that policies of insurance issued to the Commonwealth are exempt from stamp duty.

[vol. 18, p. 146]

(1)Opinion No. 1104.