The Assistant Secretary to the Treasury has forwarded to me for advice the following communication:

In connection with your Opinion, No. 89 of 1930,⁽¹⁾ on the above subject, I show hereunder copy of a letter received from the Deputy Governor of the Commonwealth Bank, Sydney:

We refer to your letter No. 760/30.2684 of the 28th instant addressed to Mr Biddle, and have to thank you for your advices.

We refer to the opinion as follows as advised by you in respect to the liability of Commonwealth Bank officials under the Victorian Stamps (Unemployment Relief) Act 1930:

Assuming that the methods of payment of salaries of officers of the Bank, and the giving of receipts therefore, are prescribed by or under Regulations made under the Commonwealth Bank Act, the officers of the Bank are in my opinion in the same position as officers of the Commonwealth Public Service in relation to the payment of duty under the Victorian Stamps (Unemployment Relief) Act 1930.

Evidently there is a Treasury regulation in the Commonwealth Service which effectively excludes Commonwealth officers from the effect of the above Act. However, there is no regulation under the Bank Act which prescribes the methods of payment of salaries and the giving of receipts therefor. The only regulation under the Commonwealth Bank Act which appears to have any possible reference to the matter at all is regulation 5 which reads as follows:

The Board shall fix the duties of the officer and servants of the Bank and shall from time to time fix their remuneration.

As also the matter evidently is not specifically covered in the Act proper, it would seem that officers of the Bank are subject to the payment of duty under the Victorian Act referred to unless that Act is in some other way inconsistent with Commonwealth Law.

In the circumstances we feel that it is necessary to again seek the Solicitor-General’s advice and we should be greatly obliged if you would put these advices before him.

As the operation of the Act commences from tomorrow, we trust the Solicitor-General may be able to let us have an early reply without inconvenience.

I shall be glad to receive your early advice in the matter.

In my opinion No. 79 of 1930 dated 16/6/1930,⁽²⁾ I stated that I was of the opinion that the Parliament of Victoria has no power to impose a stamp duty upon the receipt of salary of employees of the Commonwealth.

The Treasury Regulations made under the Audit Act 1901–1926 prescribe the method of making claims for salaries, contingencies, and allowances due to employees of the Commonwealth, and the giving of receipts for same. (See regulations 54 and 55 and Forms 11, 12, 13, 14 and 15.) I do not think, however, that the Treasury Regulations apply to salaries of officers of the Commonwealth Bank.

I can find nothing in the Commonwealth Bank Act 1911–1929 or the Commonwealth Bank Regulations prescribing methods of payment of salaries of officers of the Bank and the giving of receipts therefore.

In the case of Pirrie v. McFarlane 36 C.L.R. 170, the High Court held that section 6 of the Motor Car Act 1915 (Vic.) so far as it prohibited any person from driving a motor-car on a public highway without being licensed for that purpose, was not, in the absence of any provision in a Commonwealth law giving to members of the Defence Force immunity from State laws regulating the use of motor cars, inconsistent with any provision in the Air Force Act or the Defence Act, and consequently was not rendered invalid by section 109 of the Constitution. A member of the Royal Australian Air Force who was not licensed in accordance with the Motor Car Act was therefore guilty of an offence under section 6 of the Act.

As the result of this decision, a regulation was made under the Defence Act 1903–1927 exempting a member of the Military Forces from the requirements of any law of a State as to the obtaining or having any licence or permission for doing any act or thing in the performance of his duties as a member of the Military Forces. (See regulation 201 of the Australian Military Regulations.)

If it is desired that officers of the Commonwealth Bank should be exempt from the liability to pay stamp duty upon receipts for salary, imposed by the Stamps (Unemployment Relief) Act 1930 of Victoria, or any similar law of a State, a regulation to that effect could be made under the Commonwealth Bank Act.

[Vol. 24, p. 641]

(1) Opinion No. 1469.

(2) Opinion No. 1464.