Opinion Number. 1406

Subject

APPLICATION OF STATE LAW TO COMMONWEALTH LIABILITY OF Commonwealth to pay STATE pound fees in respect of horses belonging to Military Authorities: WHETHER FEES ARE TAX: WHETHER COMMONWEALTH BOUND BY STATE LAW: INCONSISTENCY WITH COMMONWEALTH LAW

Key Legislation

IMPOUNDING ACT 1898 (NSW): CONSTITUTION ss 109, 114

Date
Client
The Secretary, Prime Minister

The Secretary, Prime Minister’s Department, has asked for advice as to whether the Commonwealth is liable to pay pound fees in respect of horses belonging to the Military Authorities in New South Wales.

The Impounding Act 1898 of New South Wales provides for the impounding of animals in certain circumstances, and authorises every poundkeeper to demand and retain for his own use certain fees in respect of all animals impounded.

Section 114 of the Constitution provides that a State shall not impose any tax on property of any kind belonging to the Commonwealth. I feel some doubt, however, as to whether a fee for the release of an animal from a pound can be regarded as a tax.

Section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

The view now accepted by the High Court is that State legislation is applicable to the Commonwealth unless it is inconsistent with Commonwealth legislation. (See Amalgamated Society of Engineers v. Adelaide Steamship Co. 28 C.L.R. 129, and Pirrie v. McFarlane 36 C.L.R. 170).

I know of no Commonwealth legislation which is inconsistent with the provisions of the Impounding Act of New South Wales in regard to pound fees, and I am of opinion, therefore, that the Commonwealth is liable for the payment of pound fees under that Act in respect of horses belonging to the Military Authorities.

In my opinion, however, it would be competent for the Governor-General to make a regulation under the Defence Act extinguishing or limiting the liability of the Commonwealth in respect of these fees.

[Vol. 22, p. 952]