Opinion Number. 1424

Subject

BANKING BANKING: EXTENT OF POWER OF COMMONWEALTH TO REGULATE BANKING: POWER TO LEGISLATE FOR REGULATION OF BANKS WITHOUT LEGISLATING IN REGARD TO INCORPORATION OF BANKS: COMMONWEALTH POWER TO REGULATE BANKS ALREADY INCORPORATED UNDER COMPANY LAWS OF STATES: power in respect of BANKS WHICH MAY BE INCORPORATED IN FUTURE

Key Legislation

CONSTITUTION s 51(xiii)

Date
Client
The Secretary, Commonwealth Treasury

The Secretary to the Treasury has forwarded the following memorandum for advice:

  • The Commonwealth Bank has brought under notice the necessity for uniform legislation, in connection with certain phases of banking, which has been made apparent from time to time. The matter has received the careful consideration of the Directors of the Commonwealth Bank, and a memorandum containing a number of suggestions for legislative enactment have been forwarded for the consideration of the Treasurer. I am attaching hereto for your information a copy of the suggestions referred to.
  1. The suggestions made by the Bank do not include the incorporation of banks, and I am directed to ask if you will kindly advise on the following points:
    1. Has the Commonwealth power to legislate for the regulation of banks without legislating in regard to the incorporation of banks?
    2. If the Commonwealth has this power, is there any objection to the principle of the Commonwealth so legislating?
    3. Has the Commonwealth power to regulate the banks already incorporated under the company laws of the States, as well as the banks which may be incorporated in the future?
  2. I am directed to request, further, that you will kindly advise whether all the matters brought under notice in the accompanying memorandum come within the constitutional powers of the Commonwealth conferred by section 51(xiii) of the Constitution.

The answers to the question submitted in paragraph 2 are as follows:

  1. Yes
  2. No
  3. Yes

I have perused the accompanying memorandum referred to in paragraph 3,(1) and I am of opinion that all the matters brought under notice in the memorandum are matters in respect of which the Commonwealth has power to legislate under section 51(xiii) of the Constitution.

[Vol. 23, p. 301]

(1) Memorandum not found.