Opinion Number. 36

Subject

FINANCE
WHETHER MONEYS RECEIVED FOR DISPATCH OF TELEGRAMS, TO BE SUBSEQUENTLY PAID OUT TO CABLE COMPANY AND TO OTHER COUNTRIES, CONSTITUTE REVENUE: WHETHER MONEYS PAID INTO REVENUE IN ERROR CAN BE PAID OUT WITHOUT APPROPRIATION : WHETHER MONEYS PAID INTO TRUST FUND ACCOUNT CAN BE EXPENDED FOR PURPOSES OF FUND WITHOUT APPROPRIATION

Author
Key Legislation

CONSTITUTION, ss. 81, 83 : AUDIT ACT 1901, s. 61

Date
Client
The Treasurer

In Victoria all moneys received for the dispatch of telegrams are credited in the first instance to revenue. Afterwards the proportion due to the Eastern Extension Company and to other countries is paid as a refund of revenue.

In Western Australia moneys similarly received have been paid into a Suspense (Trust) Account. The proportion due to the Company and to other countries is paid out and the balance transferred to revenue.

The Victorian practice is the more convenient as it does not necessitate the keeping of a Suspense Account.

The Right Honourable the Treasurer submits the following questions for my opinion:

  1. Does section 8 3 of the Constitution forbid the Victorian practice?
  2. Is it necessary, if money has been paid into the Consolidated Revenue in error or paid into a Trust Fund account, that a parliamentary appropriation be obtained in order to pay it out?

My opinion upon these questions is as follows:

  1. The moneys due to the Eastern Extension Company and to other countries are not 'revenues or moneys raised or received by the Executive Government of the Commonwealth' within the meaning of section 81, and ought not to be paid to the Consolidated Revenue Fund. If they are so paid, section 83 prevents their being drawn out without parliamentary appropriation.
  2. If money has been paid into the Consolidated Revenue Fund in error, it should not be paid out without an appropriation (see my opinion of 22 June 1901(1) to Customs Department, re refund of duty on wines etc. supplied to the Governor-General). If the money is paid into a Trust Fund account, it may be expended for the purposes of the fund by virtue of section 61 of the Audit Act 1901, without any further appropriation.(2)

[Vol. 1, p. 256]

(1) The opinion, not published [Vol. 1, p. 11], stated: 'But even in that case the duty has been carried to the Consolidated Revenue Fund, and there does not appear to be any authority to refund it except by a regular appropriation'.
(2) This opinion was published in Commonwealth of Australia, Pari. Papers 1903, Vol. II, p. 933.