The Secretary, Department of Defence, has forwarded papers dealing with the supply of electricity from the Flinders Naval Depot to the Railway Commissioners for lighting purposes at Crib Point Railway Station.

In connection with the execution of the agreement between the Commonwealth and the Railway Commissioners the Minister for Defence has written the following minute:

I think it is desirable that the action of this and other Government Departments in regard to Agreements involving but small amounts such as this, should be referred to the Solicitor-General for a general opinion upon the matter.

It seems to be very undesirable that these small matters should have to be the subject of Orders-in-Council and all the formalities thereby involved, especially as any variation however trivial of the Agreement would have to be approved by the Executive Council also.

If possible some method should be followed by which this can be avoided.

It is not practicable to give a general opinion as to the proper authority to execute Agreements involving a small sum of money, for that depends on the nature of
the Agreement.

Agreements into which the Commonwealth may enter fall into two classes, as follows:

1. Those executed by the Executive Government.
2. Those executed by the Minister on behalf of the Commonwealth under authority of Statute.

The agreements under class (1) are executed by the Governor-General as the representative of the King, in whom the executive power is vested by section 61 of the Constitution. By that section the executive power extends to the execution of the Constitution and the laws of the Commonwealth. I am of opinion that any agreements which were entered into in execution of the Constitution or the laws of the Commonwealth would, under section 61, be properly executed by the Governor-General in Council. If the agreements do not fall within section 61 they cannot properly be executed by the Governor-General in Council as the Executive Government. I am of the opinion that this case does not come under section 61, as it is not in execution of the Constitution or the laws of the Commonwealth.

There is no provision in the Defence Act authorising the Minister for Defence to enter into contracts of this nature.

Section 64 of the Constitution directs that the Sovereign, through his Ministers, shall administer such Departments of State as the Governor-General in Council may establish.

I am of the opinion that those Ministers would be authorised to make such agreements on behalf of the Commonwealth as are incidental to such administration provided that any money required for the purposes of the agreements was available under appropriation. The question whether any particular agreement is incidental to the administration of a Department is one which can only be decided with a knowledge of the facts.

The agreement in question is one for the supply of electricity to a railway station which is used extensively by personnel of the Defence Department. It is stated that drafts, provisions and parcels for the Depot almost invariably arrive by the evening train, and with the previous poor lighting of the station, very considerable delay and often losses were caused. In addition, loading of lorries, etc., had to be carried out in complete darkness.

By having electricity installed the Naval Depot can be more efficiently administered, and I am of opinion that the agreement to effect such improvement in the administration can, subject to any necessary expenditure being authorised under appropriation, be executed by the Minister administering the Department.

[Vol. 21, p. 160]