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

I shall be glad if you will advise me, in respect of the various States, if Bills of Lading in connection with goods shipped by a Commonwealth Government Department are liable for Stamp Duty.

The Deputy Chairman of the Oversea Shipping Representatives’ Association referred the matter to the New South Wales Commissioner of Stamp Duties, who advised that he would not ask a Commonwealth Government Department to pay Stamp Duty on a Bill of Lading in connection with goods shipped by it.

It is understood, however, that other States are insisting on the payment of this Stamp Duty. Your advice would be appreciated.

In an opinion dated 4/11/1921,⁽¹⁾ the then Solicitor-General, Sir Robert Garran, advised the Department of Defence on the question now submitted as regards New South Wales duties, and in opinion No. 22 of 1922⁽²⁾ advised the same Department of the same question as regards the other States.

In those opinions, the Solicitor-General took the view that a State Act which purported to impose an obligation on the Commonwealth to pay stamp duty on a bill of lading issued to it would be an attempt to impose a tax on property of the Commonwealth contrary to section 114 of the Constitution, and would therefore be pro tanto invalid.

The opinions referred to made an examination of the stamp duty legislation of each State, and showed that in Victoria, Queensland and South Australia, while the parties to an unstamped bill were made liable to a penalty, the obligation to pay the duty was not imposed specifically on the consignor of the goods. It followed, in the opinion of the Solicitor-General, that, while the penalty in respect of an unstamped bill could not be enforced against the Commonwealth, since this would be equivalent to making the Commonwealth liable for a State tax on Commonwealth property, the penalty could be enforced against any other party to the bill. In New South Wales, Western Australia and Tasmania, on the other hand, the State Acts specifically imposed liability to pay the duty on the consignor of the goods. The duty imposed by these Acts could not apply to bills of lading for goods consigned by the Commonwealth, for such an application would involve a tax on property of the Commonwealth.

While, in my opinion, there is some doubt whether a stamp duty on a bill of lading is a tax on property within the meaning of section 114 of the Constitution, I think the Commonwealth should assume that it is such a tax in the absence of some judicial pronouncement to the contrary. I therefore agree with the opinions of Sir Robert Garran, subject to the question whether there has been any material alteration in the law of any of the States since those opinions were given.

Except in the case of Western Australia, I have been unable to find any material amendment of the law. The relevant provisions of the laws of the other five States are now as follows:

New South Wales Stamp Duties Act 1920–1940, sections 4 and 5, and Second Schedule.

Victoria       Stamps Act 1928, section 56 and Third Schedule.

Queensland       Stamp Acts, 1894 to 1930, sections 26 and 43, and First Schedule.

South Australia       Stamp Duties Act, 1923–1938, section 53 and Second Schedule.

Tasmania       Stamp Duties Act 1931, section 4 and Second Schedule.

As regards Western Australia the law now in force is contained in the Stamp Act, 1921–1931. Under an amending Act of 1913 which has been superseded by the present Act, if a bill of lading was not stamped at or within the prescribed time the party by whom or on whose behalf the instrument was held became liable to pay the duty, as well as to pay a penalty. Under the present Act, however, the corresponding provision applies only to instruments which are capable of being stamped after the execution thereof (sections 39 and 20) and by section 61 it is provided that a bill of lading is not to be stamped after the execution thereof. No specific liability to pay the duty is therefore imposed on the holder of a bill of lading, and the law of Western Australia is similar to that of Victoria, Queensland and South Australia.

My opinion may therefore be summed up as follows, viz., bills of lading for goods consigned by the Commonwealth are liable to be stamped under the law of Victoria, Queensland, South Australia or Western Australia but are not liable to be stamped under the law of New South Wales and Tasmania. If a bill is not stamped under the law of any of the four first-mentioned States, the Commonwealth is not liable to any penalty, but any other party to the bill is liable to the prescribed penalty.

I should add that this opinion is intended for the information of the Department of Commerce, and, if the conclusions expressed herein are communicated to any person who is not in the service of the Commonwealth, it should be made clear that no responsibility is accepted for the correctness of those conclusions.

In addition, the actual text of the opinion should not be made available to anyone not in the service of the Commonwealth.

[Vol. 34, p. 56]

(1) Opinion No. 1158.

(2) Opinion No. 1193.