Opinion Number. 1719


commonwealth powers bill commonwealth powers bill: refutation of allegations concerning conduct of Commonwealth’s legal advisers at meeting between legal advisers of Commonwealth and States on 2 december 1942: statement by Sir Robert Garran K.C., sir george s. knowles and professor k. h. bailey

Key Legislation


  1. A memorandum submitted to the Attorney-General for South Australia on 18th December, 1942, by Mr. A.J. Hannan, K.C., Crown Solicitor of that State, describes in terms that make several serious reflections upon the Commonwealth’s legal advisers at a meeting between the legal advisers of the Commonwealth and the States which took place in the early hours of the morning on Wednesday, 2nd December last. As a number of legal opinions connected with the Commonwealth Powers Bill are being tabled in both Houses of the Parliament the three legal advisers of the Commonwealth named by Mr. Hannan wish to place on record a brief statement in reply.
  2. Mr. Hannan makes two imputations against the legal advisers of the Commonwealth. First, that from the Commonwealth Powers (War) Act 1915 of New South Wales (which was taken generally as the model for the present Bill) certain material words were omitted for the purpose of strengthening the case for a permanent transfer of powers. Second, that the Commonwealth legal advisers, when asked, attempted to mislead the legal advisers of the States. Incidentally, Mr. Hannan’s allusions to the late hour at which the conference with the State legal advisers took place are calculated, in the context, to suggest that this was all part of a deliberate plan.
  3. The Bill was sent to the Government Printer at the earliest possible moment after the Drafting Committee of Convention rose. The meeting of legal advisers was provisionally called for 9 p.m. but, owing to a break-down in one of the printing machines, copies of the Bill were not available until nearly midnight. The meeting took place immediately after the copies were received. The reason for haste was that some of the State representatives had arranged to leave Canberra on the following day.
  4. That certain words contained in the New South Wales Act of 1915 were not copied into the Bill is true. We have, however, given full and repeated reasons for our view that these words are in no sense material, and that their omission makes no difference whatever in the legal effect of the Bill. There was certainly no such design as Mr. Hannan imputes.
  5. The Commonwealth’s legal advisers at the joint meeting did mention that the provisions of the Bill were based on the Act of 1915, which they are. They did not for a moment state or suggest that the Bill was a verbatim copy of the 1915 Act, which in several respects it is not. The 1915 Act was readily accessible to all the legal advisers present, had been consulted by some at least of them, and was, we assumed, familiar to them all. We repudiate wholly the suggestion that we attempted in any way to mislead our colleagues.

[Vol. 35, p. 114]