Opinion Number. 1868

Subject

AUSTRALIAN NATIONAL UNIVERSITYWHETHER AUSTRALIAN NATIONAL UNIVERSITY IS A COMMONWEALTH AUTHORITY FOR PURPOSES OF COMMONWEALTH EMPLOYEES’ FURLOUGH ACT 1943: FACTORS RELEVANT TO WHETHER A STATUTORY BODY IS A COMMONWEALTH AUTHORITY

Author
Key Legislation

AUSTRALIAN NATIONAL UNIVERSITY ACT 1946 ss 23, 24: COMMONWEALTH EMPLOYEES’ FURLOUGH ACT 1943 s 5

Date
Client
The Registrar, Australian National University

I refer to your letter dated 30th September, 1949, requesting my advice whether the Australian National University is an authority of the Commonwealth for the purposes of section 5 of the Commonwealth Employees’ Furlough Act 1943–1944.

I agree with the University’s understanding of the position that the Act does not apply.

The Australian National University Act 1946–1947 indicates that the University is not directly under Ministerial control and that the power to carry out its functions and purposes is to be vested in the Council of the University. The University may therefore be described as an independent statutory corporation.

It is not always easy to ascertain whether a statutory body is an authority of the Commonwealth. Regard must be had to its dominant characteristics and some of these may point towards its connexion with the Government while others are directed towards independence. Having regard to sections 23 and 24 in particular, I think it clear that the University is eventually to be an independent statutory corporation with complete power to control its officers and servants. Meantime the Interim Council has had conferred on it certain of the powers of the Council including the control of officers and servants.

An authority of the Commonwealth for the purposes of the Commonwealth Employees’ Furlough Act should, I think, have a closer legal relationship with the Executive Government of the Commonwealth than the University appears to have. Accordingly, I agree with the University’s understanding of the position that the Commonwealth Employees’ Furlough Act does not apply to it.

[Vol. 38, p. 408]