Opinion Number. 1650


use of commonwealth legal services
use of the services of Attorney-general’s Department by Commonwealth Bank, Australian Broadcasting Commission and similar bodies

Key Legislation

Commonwealth Bank Act 1911

The Secretary, Department of the Treasury

I refer to your letter of 15th August and previous correspondence concerning the use of the services of this Department by the Commonwealth Bank, the Australian Broadcasting Commission and such bodies.

Concerning the Commonwealth Bank, the position is that shortly after the establishment of the Commonwealth Bank, the whole question whether the Bank should receive the advice and assistance of the Crown Law Department was considered by the then Attorney-General who was, if my recollection is correct, the Honourable Sir William Irvine, KC.

After lengthy consideration and discussion with my predecessor the Attorney-General decided that as the Bank was in some respects a trading corporation it should have its own solicitors for matters which arose in the ordinary course of its business, but that if any matter occurred which involved questions of the constitutionality of the Commonwealth Bank Act the Bank should be entitled to obtain the advice of this Department.

In accordance with this decision the Bank appointed a firm of solicitors as its solicitors; and has on occasions obtained advice from this Department on constitutional questions.

As regards the Australian Broadcasting Commission, the present Chief Justice,(1) when Attorney-General, decided that as the Commission was in some respects engaged in trade it would be preferable that it too should ordinarily have its own solicitors, as it was thought that its interests might not always be identical with the interests of the Commonwealth. In some transactions, however, such as the transfer of land for the purpose of the Commission it was felt that the transaction was not one likely to embarrass the Commonwealth; and it was accordingly decided to allow the Commonwealth Crown Solicitor to act for the Commission. Gradually the class of work performed by the Commonwealth Crown Solicitor for the Broadcasting Commission has been extended, until last year it, with the approval of the late Attorney-General, acted for the Commission in the Arbitration between the Commission and the Australasian Performing Rights Association.

On the other hand, a few months earlier, when litigation had been commenced by J.C. Williamson & Co. and others against the Commission, the late Attorney-General (the present Prime Minister)(2) directed that the Crown Solicitor should not act for the Commission, as it appeared possible that the Commonwealth might possibly apply, later, for leave to intervene in the case.

I think I should point out that, as regards the Commonwealth Bank, one firm has acted as the Bank’s solicitors since about 1913, and has regularly advertised that fact (see Butterworth’s Law List for 1939, New South Wales Section, page 17). The substitution of the Commonwealth Crown Solicitor for that firm as the solicitors of the Commonwealth Bank would probably lead to a protest by that firm–a protest which might possibly be supported by the Incorporated Law Institute of New South Wales.

My own view is that it would be better, in the case of the Commonwealth Bank, to allow the present longstanding arrangement to continue, and in the case of the Broadcasting Commission to allow the Commission to utilize the services of the Crown Solicitor except in the cases where it seems possible that the interests of the Commonwealth and the Commission may not be identical.

If it is desired that any change affecting the work of the Crown Solicitor’s Office be made, it would be necessary for me to submit the matter for the consideration of the Attorney-General.

[Vol. 32, p. 363]

(1) JG Latham.

(2) RG Menzies.