Opinion Number. 1548

Subject

territory for the seat of government territory for the seat of government: proposal to establish cemetery Trust: finance: establishment of cemetery fund: establishment of trust account

Key Legislation

Solar Observatory Fund Act 1930: Forestry Bureau Act 1930: Audit Act 1901 ss 62A, 62B: Constitution s 81: Cemeteries Ordinance 1933 (ACT) ss 20, 21

Date
Client
The Secretary to the Treasury

The Acting Secretary, Department of the Treasury, has forwarded to me for advice the following communication:

The Secretary, Department of the Interior, has advised that it is proposed to bring into force in the Territory for the Seat of Government at an early date an Ordinance providing for the dedication and management of Cemeteries and has referred for consideration and concurrence the attached copy of the clauses which relate to the proposed financial arrangements connected with the Cemetery Trust.

The proposal to set up a Board of Trustees was actuated mainly by the following considerations:

  1. The control and management of a cemetery by a permanent body corporate having a perpetual succession, subject to control by the Minister in the expenditure of public funds.
  2. The encouragement of the giving of donations by interested persons for the maintenance in perpetuity of graves, vaults and receptacles for human remains.
  3. The permanent conservation of all moneys donated or contributed in trust for any private purpose.
  4. The Trustees should be in a position to guarantee the maintenance of graves from year to year where moneys are expressly contributed by relatives or interested persons.

Alternative proposals which are being considered by this office are:

  1. The establishment of a Cemetery Fund which would be under the sole control of the Trustees and would not form part of the Commonwealth Public Account. Similar funds are the Commonwealth Solar Observatory Foundation and Endowment Fund established under the Solar Observatory Fund Act 1930 and the Forestry Fund under the Forestry Bureau Act 1930–32.
  2. The establishment of a Trust Account under section 62A of the Audit Act to which all fees and charges would be paid.
  3. Bearing in mind–

    1. That fees and charges are to be prescribed by this Ordinance and paid to the Fund or Trust Account;
    2. The provisions of section 81 of the Constitution;
    3. The provisions of section 62A(5) of the Audit Act.

Will you kindly advise whether either of the alternative proposals outlined above can be legally adopted, and whether the proposed Ordinance makes adequate provision to give effect to either proposal if legal.

Authority to enable the Trustees to invest moneys standing to the credit of the Fund (if established) appears desirable.

Section 6 of the proposed Ordinance provides that the Minister may appoint to be trustees of any public cemetery or private burial ground not less than three nor more than twelve persons and that the persons for the time being holding office as trustees shall be a body corporate. Sections 20 and 21 of the Ordinance read as follows:

    1. There shall be paid to the trustees for the maintenance of any cemetery such sums of money as are from time to time appropriate by the Parliament for the purpose.
    2. All fees and charges prescribed under this Ordinance for exclusive rights of burial, grave allotments, or services in connection with a public cemetery, shall be paid to the trustees of the cemetery or to an officer appointed by the trustees for that purpose.
    3. For the purposes of each public cemetery established under this Ordinance there shall be a Cemetery Trust Account and all moneys payable to or received by or on behalf of the trustees shall be paid to the credit of such account.
    4. The Trustees shall, subject to the control of the Minister expend any moneys received under this Ordinance in laying out and ornamenting the cemetery in such a manner as is most convenient and suitable for the burial of the dead and in preserving, maintaining and keeping in a clean and orderly state and condition the whole of such cemetery.
    1. The Trustees shall keep full and particular accounts of all moneys received and expended by them.
    2. Such accounts shall be subject to audit by the Auditor-General for the Commonwealth.
    3. The Trustees shall, in the month of April in each year, submit to the Minister a statement of accounts and a report on the condition of the cemetery as to works, repairs, order and ornament and shall submit any proposals as to any proposed new works, repairs of alterations thereof during the ensuing financial year together with an estimate of the expense which would be incurred in carrying out such alterations.

The amounts to be paid into the Cemetery Trust Account constituted by section 20 of the proposed Ordinance are such sums of money as are from time to time appropriated by Parliament for the purpose, and fees and charges prescribed under the Ordinance for exclusive rights of burial, grave allotments or services in connexion with a public cemetery.

These payments differ from the payments provided for under the Acts referred to in the Acting Secretary”s memorandum.

The Fund established under the Solar Observatory Fund Act 1930 consists of donations to the Fund, investments made out of donations contributed prior to the commencement of the Act, and any other money received by the Trustees for the purposes of the Fund. The Trustees are only empowered to spend the income accruing from investments of moneys constituting the Fund.

The Forestry Fund established under the Forestry Bureau Act 1930–1932 consists of donations and any other money received by the Trustees of the Fund for the purposes of the Fund. Moneys standing to the credit of the Fund may be applied for the furtherance of forestry in such manner as the Minister approves.

These funds are constituted by Acts of Parliament neither of which authorizes the expenditure of any public moneys.

Subsection (2) of section 20 of the proposed Ordinance as now drafted contemplates the prescription of fees and charges for exclusive rights of burial, grave allotments, and certain services in connexion with public cemeteries. In my opinion, such fees and charges must be regarded as “moneys raised or received by the Executive Government of the Commonwealth”, and must, therefore, be paid into the Consolidated Revenue Fund in accordance with section 81 of the Constitution.

I am of opinion, therefore, that the proposal to establish a Cemetery Fund into which such fees and charges shall be paid cannot legally be adopted.

I think that it would be possible for the Treasurer to establish, for the purposes of the Ordinance, a Trust Account in accordance with section 62A of the Audit Act. By subsection (2) of that section the Treasurer is empowered to establish Trust Accounts and to define the purposes for which they are established.

Subsections (5) and (6) of section 62A read as follows:

(5) The following moneys may be paid to the credit of the Trust Account to which they relate:

  1. All moneys appropriated by law for the purposes of any Trust Account;
  2. All moneys received from the sale to any person or Commonwealth Department of any articles purchased or produced, or for work paid for, with moneys standing to the credit of a Trust Account;
  3. All moneys paid by any person for the purpose of any Trust Account; and
  4. Pay due to a member of the Militia Forces and unclaimed in the hands of an accounting officer for three months.

(6) Moneys standing to the credit of a Trust Account may be expended for the purposes of the Account.

If a Trust Account were established under section 62A, I think that any moneys appropriated by Parliament could be paid into the Account–see paragraph (a) of subsection (5) of section 62A. If this course were followed, the fees and charges prescribed by the Ordinance should, as constituting revenues of the Commonwealth, be paid into the Consolidated Revenue Fund. Subsection (4) of section 20 of the Ordinance would, in my opinion, enable the Trustees to expend moneys appropriated and paid into the Trust Account.

I do not think that it is necessary to confer on the Trustees authority to invest moneys standing to the credit of the Cemetery Trust Account if a Trust Account is established under section 62A of the Audit Act for the purposes of the Ordinance. Subsection (3) of section 62A provides that all moneys standing to the credit of any Trust Account established by the Treasurer under the section shall be deemed to be moneys standing to the credit of the Trust Fund. By section 62B of the Act the Treasurer may invest moneys standing to the credit of the Trust Fund in any securities of, or guaranteed by, the Government of the Commonwealth or of any State or on deposit in any bank. The Treasurer would, therefore, be empowered to invest any moneys standing to the credit of the Cemetery Trust Account as provided in section 62B.

[Vol. 26, p. 547]