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

With reference to your opinion of 4 November⁽¹⁾ relative to the abovementioned subject in which an opinion was given regarding the liability of the Commonwealth for stamp duty under the New South Wales Act, I shall be glad if you will advise me of the position of the Commonwealth in the other States in order that District Finance Officers may be advised.

BILLS OF LADING

The position in Victoria as regards bills of lading is set out in the Stamps Act 1915 (see section 56 and the Third Schedule). Under this Act every party to a bill of lading is liable to a penalty unless the bill is duly stamped.

Although the Commonwealth, as a party to a bill of lading, cannot be proceeded against, as this would, in my opinion, be equivalent to making the Commonwealth liable for a State tax on Commonwealth property, the other party or parties are liable to a penalty, if such a bill is not stamped before execution. Thus in Victoria the fact that the Commonwealth is a party to a bill of lading does not render that bill exempt from stamp duty. In Queensland and South Australia the payment of stamp duty on bills of lading where the Commonwealth is one of the parties is governed by the same principles as in Victoria.

In Queensland the law on the subject is found in the Stamp Acts 1894-1918 (see sections 26 and 43 and First Schedule) and in South Australia in the Stamp Act 1886 (section 36) and the Stamp Act Amendment Act 1902 (Second Schedule).

In Western Australia and Tasmania as in the case of New South Wales the liability for stamp duty is placed on the consignor. The result is that, where the Commonwealth is the consignor, the bill of lading is exempt from stamp duty for the reasons mentioned in my opinion of 4 November 1921 which dealt with the same matter in regard to the position in New South Wales.

The law in Western Australia is found in:

1. the Stamp Act 1882, section 43, amended by the First Schedule of the Stamp Act Amendment Act 1902;
2. the Schedule of the Stamp Act Amendment Act 1905, amended by section 2 of the Stamp Act Amendment Act 1906;
3. section 9 and the Schedule of the Stamp Act Amendment Act 1913.

In the Schedule of the 1913 Act in the case of an 'instrument of any other kind' the liability for stamp duty is placed on 'the party thereto by whom or on whose behalf the instrument is held'.

Since a bill of lading is signed by the shipowner or his agent and handed to the consignor or his agent, it follows that it is the consignor or his agent who is liable for the stamp duty.

The law in Tasmania is found in the Stamp Duties Amendment Act 1892, section 6 and the Schedule (2), which places the liability for stamp duty on the consignor.

It is to be noted that, since in no case is the liability placed specifically on the carrier (i.e. the shipowner or his agent), stamp duty would in every State be payable by the consignor on a bill of lading, if the Commonwealth was in the position of carrier in regard to the bill.

INSURANCE POLICIES

In Victoria and South Australia there appears to be no stamp duty on insurance policies but in lieu thereof there is a stamp duty on the insurer's licence to carry on business.

In Queensland and Western Australia both the insurer and the person insured are liable for the stamp duty on such policies of insurance as require it (see section 47 of the Queensland Stamp Acts 1894-1918 and section 69 of the Western Australian Stamp Act 1882).

Thus although stamp duty must be paid on policies of insurance issued to the Commonwealth in Queensland and Western Australia, the Commonwealth cannot be proceeded against for non-payment for the same reason that applies to the case where the Commonwealth is a party to a bill of lading. Consequently legal action would only be successful if taken against the person or company issuing the policy.

In the case of foreign policies of insurance, the Queensland Stamp Acts 1894-1918, section 46 places the liability for stamp duty on the 'person or company receiving such policy', so that if the Commonwealth were 'the person or company receiving such policy' referred to, that policy would be altogether exempt from stamp duty.

The Stamp Duties Acts of Tasmania do not specifically make insurance policies subject to stamp duty, but the Stamp Duties Act 1882 (see section 4 and Schedule) places a duty on all deeds which are not subject to ad valorem duty under the Act. This duty must be paid 'by the person causing the same to be prepared', thus making the person or company issuing the policy liable, whether the policy is issued to the Commonwealth or otherwise.

[Vol. 18, p. 273]

(1)Opinion No. 1158.