Opinion Number. 338

Subject

COMMONWEALTH PROPERTY WHETHER MAY BE USED FOR ENTERTAINMENT TO WHICH ADMISSION CHARGE MADE : WHETHER MONEYS SO RECEIVED ARE COMMONWEALTH REVENUE

Key Legislation

CONSTITUTION, s. 81 : AUDIT ACTS 1901-1906. s. 2

Date
Client
The Secretary, Department of Home Affairs

The Secretary, Department of Home Affairs, forwards the following minute for advice:

The Minister for Home Affairs instructed me to refer to the Auditor-General the questions set out in my memorandum of the 14th instant, which reads as follows:

'It has already been ruled that all moneys received by way of rent for the use of buildings the property of the Commonwealth must be properly accounted for and paid into the Consolidated Revenue Fund in accordance with the Audit Act 1901 and the Regulations made thereunder.

In the particular case under review it appears that the Echuca Drill Hall which is the property of the Commonwealth and is maintained at Commonwealth expense has been and is being used for a purpose for which it was not intended-that is to say, for the purpose of a skating rink. The particulars respecting its use for other than Defence purposes are fully set out in the accompanying copy of the notes of a deputation received by the Minister for Defence on behalf of the Minister for Home Affairs, who is responsible for the use of all Commonwealth buildings. Evidently the Military Officer in charge of the building does not charge rent for the use of the building for the purposes of a skating rink, but allows a section of the men under his command to provide public entertainments to which admission is charged, and the proceeds are retained by the section referred to for the purposes of maintaining a voluntary band, who in return render good services to the Military Forces at Echuca and to the townspeople. The Minister for Home Affairs desires to be advised by you whether under the Audit Act and Regulations this system of obtaining moneys and retaining the same is correct, or whether such moneys should not have been paid into the Consolidated Revenue Account.'

The Auditor-General has forwarded his reply to the foregoing in the following terms:

  1. 'In reply to your minute of the 14th instant, informing me that the Minister for Home Affairs desired to be advised by me whether, under the Audit Act and Regulations, the system pursued by the Military Officer in charge of the Echuca Drill Hall of obtaining moneys and retaining the same, such as proceeds of entertainments, for the purpose of maintaining the Volunteer Band, is correct, or whether such amounts should not have been paid into the Consolidated Revenue Account, I have to say that I do not know of any provision under the Audit Acts, and Regulations thereunder, which requires such moneys to be paid into the Consolidated Revenue. They would not, in my opinion, come under the definition of "Public Moneys" referred to in section 2 of the Audit Acts.
  2. It is noticed from the copy of the minutes recording the proceedings of the deputation, which waited upon the Minister for Defence on the 12th ultimo, that the Min-ister stated that the Auditor-General had laid down that all moneys received in connec-tion with these Drill Halls must go into the Consolidated Revenue; I do not know what de-cision of mine the Minister refers to. The only opinion I remember giving in the matter has been to the effect that the rents of Drill Halls which are public moneys, must, of necessity, be paid into the Consolidated Revenue, both under the provisions of the Constitution itself, and of those of the Audit Acts. The Public Works Regulation No. 112 also requires that the proceeds from letting shall be collected by the Department concerned and paid to the Receiver of Public Moneys in that Department, and the requirements of the Regu-lation are seen to be carried out by me.
  3. The question of allowing Drill Halls, or other Government property, to be occu-pied or used for purposes such as those followed by the Military Officer at Echuca, appears to me to be one of policy and in the discretion of the Government. I do not see how I can insist upon the proceeds of any moneys, other than rent, being accounted for as Commonwealth Revenue.

Your file returned herewith.'

The Minister desires me to point out that the Officer in Charge of the Echuca Drill Hall did not receive any moneys whatever from the use of the Drill Hall, but a section of the members of the Corps under his command charged for admission to the Drill Hall, and retained the proceeds which, it is understood, were expended on the Voluntary Band; this Band is not recognised by the Department of Defence as a Military Band-that is to say, it is not on the establishment.

I am directed by the Minister for Home Affairs to ask you to be good enough to favour me with your advice and opinion on the following points:

  1. As to whether the course adopted by the section of the members of the Corps in charging for admission to the Drill Hall, which is the property of and maintained by the Commonwealth, is legally justified.
  2. Whether the funds so collected should not legally be considered and dealt with as Commonwealth Revenue.
  3. Generally.

For your information I would point out that, prior to Federation, the Officers of the Victorian Defence Forces had authority to let the Drill Halls in their charge for the pur-poses of entertainment, to retain the rents derived therefrom, and to utilise the moneys so obtained in promoting the efficiency of the Corps under their command. As you are aware, such a procedure is not permissible under the Commonwealth Audit Act and the Regulations made thereunder; also under the Regulations respecting Public Works, all such moneys must pass to the Consolidated Revenue Fund, and all expenditure must be made under Appropriation by Parliament.

The decision arrived at in the case under review will not be confined to the use of one Drill Hall, but will apply to the whole of those Halls in the Commonwealth. The points at issue are practically whether a building the property of the Commonwealth may be used for the purpose of entertainment to which the public are charged for admission, and whether the proceeds of such entertainment may be retained by the promoters of the entertainment.

My opinion upon the questions specifically asked is as follows:

  1. If the authorities allow the members of the corps to have the use of the Hall for the purpose of entertainment, there is nothing illegal in a charge for admission to the enter-tainment being made by those members. Whether the use of the Hall in that way should be allowed is purely an administrative question.
  2. The moneys so received by members of the corps cannot be considered as Com-monwealth revenue. They are not due to the Commonwealth, are not collected by the Commonwealth, and are not public moneys in any sense.

[Vol. 7, p. 151]