Opinion Number. 1590


AIR FORCE: PETROL STORAGE TANK AT CANTEEN: WHETHER REQUIRED TO BE REGISTERED UNDER STATE LEGISLATION: WHETHER STATE ACT BINDS CROWN: exclusive power OF COMMONWEALTH to make laws with respect to all places acquired by Commonwealth for public purposes

Key Legislation

Inflammable Liquid Act 1915 (nsw) ss 10, 11: Air Force Regulation 16, 30: constitution s 52

The Secretary, Department of Defence

The Secretary, Department of Defence has forwarded the following memorandum to me for advice:

Recently an underground petrol storage tank was installed at the canteen at the Royal Australian Air Force Station, Richmond, New South Wales.

Following this the New South Wales Explosives Department advised that the premises would need to be registered under the New South Wales Inflammable Liquid Act.

The petrol tank is installed for the convenience of members of the Air Force. The canteen which controls it is however administered officially, and is part of air-force organization. It will be noted that registration under the above Act renders the premises liable to inspection by an officer of the State Explosives Department. It is considered that notwithstanding that the tank is installed for the convenience of members, the Committee of Management of the canteen is, under Air Force Regulation 16, not liable to have the premises registered or pay the fee required by the New South Wales Inflammable Liquid Act. If you do not agree that an exemption exists in this case, advice is desired as to how the regulations should be amended to ensure such exemption.

In this connection attention is invited to Air Force Regulation 30 (Statutory Rules 1933, No. 16) and to the following extract from Air Force Orders:

In accordance with Air Force Regulation 30 the Minister has assigned the following duties to the respective members of the Air Board:

(c) Air Member for supply:

(k) canteens and service institutes:

A copy of Air Force Orders dealing with the control of canteens is attached hereto.

Departmental papers are forwarded herewith.

Sections 10 and 11 of the Inflammable Liquid Act 1915 – 1931(N.S.W.), so far as relevant to this opinion, are set out hereunder:

10. Stores or premises may, upon payment of such fees, and subject to such conditions as are prescribed, be licensed or registered for the keeping of inflammable and/or dangerous goods.

11. (1) If any person keeps inflammable liquid on any land … except in a licensed store or registered premises, he and the occupier of the premises … shall be liable to a penalty not exceeding fifty pounds.

It is presumed, for the purposes of this opinion, that the canteen at which the petrol tank is installed is situated on land which has been acquired by the Commonwealth for public purposes and that the canteen is in charge of an airman detailed for the purpose.

It is a general principle of law that the Crown is not bound by a statute unless it appears on the face of the statute that it was intended that the Crown should be bound, and the exemption extends to servants of the Crown acting in the course of their employment (Cooper v. Hawkins 1904 2 K.B. 164).

The Inflammable Liquid Act does not purport to bind the Crown in right either of the State or the Commonwealth, and for this reason I am of opinion that it does not apply in respect of the canteen at Richmond. The person who keeps the inflammable liquid is a servant of the Crown, and the occupier of the premises is the Crown itself (Roberts v. Ahern 1 C.L.R. 406).

Furthermore, section 52 of the Constitution provides that the Commonwealth Parliament shall have exclusive power to make laws with respect to all places acquired by the Commonwealth for public purposes. When the Inflammable Liquid Act was passed by the New South Wales Parliament in 1915, that Parliament had no power to legislate with respect to the station at Richmond and the operation of the Act must be regarded as not extending thereto.

For these reasons the Commonwealth is not required to register its premises under the Inflammable Liquid Act, and no amendment of the Air Force Regulations is necessary. The facts in this instance differ from those in Pirrie v. McFarlane (36 C.L.R. 170) in two respects–first the Act under consideration in that case was expressed to bind servants of the Crown, and secondly, the offence there took place in a public street to which the Motor Car Act validly extended and not on Commonwealth property.

[Vol. 29, p. 41]