Opinion Number. 1670



Key Legislation

Stamp Act 1894 (Qld): Stamp Duties Act 1898 (NSW): National Security (Wheat Acquisition) Regulations regs 4, 26

The Secretary, Department of Commerce

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

State Stamp Duty on Wheat Board Cheques

The following letter has been received from the Australian Wheat Board:

In accordance with verbal advice received from the Commonwealth Law Authorities, instructions have been issued by my Board to our State Superintendents that cheques drawn and receipts issued by them need not bear State Stamp Duty.

A letter has now been received from the Treasurer, State of Queensland, indicating that he is of the opinion that such documents are liable to State Stamp Duty.

In order to clarify the position, I should be glad if you would obtain the Opinion of the Solicitor-General as to the position in this matter.

The letter from the Treasurer of Queensland is as follows:

In accordance with your request of the 10th May, I attach copy of the letter received from the Queensland Treasury.

I should be glad if you would advise whether cheques and receipts drawn by the State Offices of the Australian Wheat Board must bear State Stamp Duty.

The letter from the Queensland Treasury, a copy of which is attached to the above memorandum, refers to ‘cheques issued by licensed receivers’, but I understand that the only cheques and receipts in question are cheques and receipts drawn and signed respectively by officers of the Australian Wheat Board.

The first question is whether, on the true construction of the Stamp Duties Acts, 1894 to 1930 (Queensland), the duties imposed by the Act are payable by the Commonwealth and its agents. It will be noted that the Act was originally passed before the establishment of the Commonwealth.

In the Commonwealth v. New South Wales (3 C.L.R. 807) the High Court held that the Commonwealth was not liable to pay duty under the Stamp Duties Act 1898 of New South Wales. The first ground for the decision was that on its true construction the Act did not, when passed, require the Crown in right of the State to pay stamp duty, and therefore could not, after the establishment of the Commonwealth, be construed as requiring the Crown in right of the Commonwealth to pay duty. In my opinion, as regards liability to pay duty, the Queensland Act is, and has been since the establishment of the Commonwealth, in all material respects similar to the New South Wales Act of 1898. It follows, in my opinion, that the decision in the case first referred to is applicable to the Queensland Act. I understand that the Queensland authorities recognise this position inasmuch as they do not claim stamp duty on cheques drawn by the Commonwealth Treasury.

The substance of the dispute appears, therefore, to be the question whether the Australian Wheat Board is an integral part of the Government machinery of the Commonwealth, so as to be entitled to the immunity of the Crown in right of the Commonwealth. In my opinion, the answer is clearly in the affirmative.

The Australian Wheat Board is a body corporate with perpetual succession and a common seal. (Wheat Acquisition Regulations, regulation 4). Its members ‘represent’ various private interests as well as the Commonwealth Government. They are, however, appointed by the Minister for Commerce, and hold office during his pleasure. The Board does not control a business undertaking in the ordinary sense, but has been set up to discharge functions which, during war-time at any rate, are essential governmental functions, namely, the general administration of the Commonwealth Government’s scheme for the acquisition and disposal of wheat during the war. Once the wheat has been acquired by the Commonwealth, all acts done by the Board in connexion with the wheat are done by it on behalf of the Commonwealth. Various regulations confer powers and duties on the Board, but regulation 26 makes it clear, I think, that in all matters the Board is subject to any directions of the Minister.

The only moneys handled by the Board are moneys appropriated by Parliament or borrowed by the Minister for its purposes, or received by it from the sale of Commonwealth property.

In my opinion, the regulations as a whole make it clear that, while the Board is, for convenience, created as a separate corporate entity, its operations and finances are of such a character, and are so bound up with those of the Commonwealth Government, as to entitle the Board to the protection of ‘the shield of the Crown’.

It follows that, in my opinion, cheques drawn by, and receipts signed by, officers of the Board within the scope of their duties under the regulations are not chargeable with Queensland stamp duty.

[Vol. 33, p. 296]