Opinion Number. 284

Subject

LIFE INSURANCE WHETHER COMMONWEALTH HAS POWER TO IMPOSE DUTIES ON STATE REGISTRARS OF DEATHS

Key Legislation

CONSTITUTION, s. 51 (xiv) : LIFE ASSURANCE COMPANIES ACT 1905, s. 4

Date
Client
The Treasurer

Section 4 of the Life Assurance Companies Act 1905 requires (sub-section 2) a State Registrar of Deaths where an application is made to him for a certificate of the death of a child for the purposes of the Act, to write certain words at the foot of the certificate; and contains other directions to the Registrars of Deaths as to the issue of such certificates.

On 29 January 1907, the Prime Minister, at the instance of the Treasurer, wrote to the Premier of Tasmania with reference to certain difficulties experienced by a life assurance company in that State in conforming with the Act, asking him to take the necessary action to secure compliance in Tasmania with the provisions of section 4(2), and inviting his attention to an alleged instance of a refusal by a State Registrar to comply with section 4 (2).

On 20 March, the Premier of Tasmania replied asking to be advised whether it was claimed that the Federal Parliament has the power to pass legislation imposing duties upon State officers, as is done by the section referred to.

The Treasurer asks to be advised upon this question.

The Parliament has power to pass laws as to life assurance, and as to any matters necessary for carrying those laws into effect. There is no doubt of the power of the Federal Parliament in relation to any matter within its legislative sphere, to confer an authority upon State officers (cf. Kentucky v. Dennison 24 How. 108); and whilst it is not claimed that the Federal Parliament can ordinarily impose obligations upon State officers as such, there is in my opinion the qualification that where, in the performance of his functions, a State officer owes a duty to the Commonwealth, he is bound, in discharge of his duty, to obey the Federal Constitution and laws. See Ex parte Virginia 100 U.S. 339; Ex parte Siebold 100 U.S. 387; Ex parte Clarke 100 U.S. 399.

It does not appear however that this question need arise at all in reference to the Life Assurance Companies Act 1905. That Act contains no penal provisions with regard to State officers, and no compulsory proceedings are in contemplation. All that is necessary can be effected, on the lines of the usual harmonious co-operation between Commonwealth and States, by a direction by the State Government to its officers to conform with the requirements of the Act-to which I feel sure that no exception can be taken.

[Vol. 6, p. 100]