Opinion Number. 478

Subject

COMMONWEALTH BANK WHETHER INSTRUMENTALITY OF COMMONWEALTH : WHETHER SUBJECT TO STATE STAMP DUTY : WHETHER FUNDS AND PROFITS MAY BE APPLIED TOWARDS SUPERANNUATION CONTRIBUTIONS : EXTENT OF POWER TO DIRECT MANNER OF EXECUTING INSTRUMENTS BY ATTORNEY AND USE OF COMMON AND OFFICIAL SEALS . EXTENT OF REGULATION-MAKING POWER OF GOVERNOR OF BANK AND OF GOVERNOR-GENERAL IN COUNCIL

Key Legislation

COMMONWEALTH BANK ACT 1911, ss. 24. 28. 29. 30, 32. 63

Date
Client
The Treasurer

The Treasurer desires advice on the following communication of the Governor of the Commonwealth Bank:

I have the honour to request that you will be good enough to refer to the Attorney-General for his opinion on the following matters in connection with the Commonwealth Bank of Australia:

Superannuation Fund

Clause 32. May the Governor in terms of this clause set apart portion of the funds of the Bank or of the profits of the Bank from time to time to make contributions on a fixed scale to the Superannuation Fund which it is proposed shall be established in connection with the Bank?

Common Seal

Clauses 28 and 29. Can any attorney appointed under clause 24 be authorised by the Governor to affix the official seal of the Bank, or to execute on behalf of the Bank, any deed or document to which the Bank is or may be a party, and such seal duly affixed by such attorney, and which is duly executed on behalf of the Bank by such attorney under his seal in pursuance of the power for that purpose contained in any such instrument of appointment to have the same effect as if it were under the common seal of the Bank?

A certificate to be endorsed on any such deed or other document, and signed by any such attorney to the effect that at the date of affixing the said official seal to or executing the said deed or other document he had not received notice of the revocation of any such instrument of appointment.

Any official seal to be kept in the custody of the person authorised to use the same, and the official seal shall not be affixed to any document except by the person authorised to use same. [sic](1)

Bank Regulations

As these will be numerous will it be necessary to have them all submitted to the Gover-nor in Council, and if so would it be possible to divide them up into two classes, one deal-ing with the general government of the Bank, and the other with the internal working as regards books and forms, etc., the latter to be subject to the Governor's direction, and not to be submitted to the Governor in Council?

Stamp Duties

The New South Wales Government are imposing stamp duties on cheques drawn on the Bank and on receipts of sums of money for over £2, exempting therefrom trans-actions on the State Savings Bank and the New South Wales Savings Bank, but not the Commonwealth Bank. Will it be necessary to request them to include the Commonwealth Bank, Savings Bank Department, in the exemptions, or would it be better to pass an Act exempting Savings Bank transactions of the Commonwealth Bank from stamp duties throughout the whole of the States?

  1. Superannuation Fund
  2. Section 32 of the Commonwealth Bank Act 1911 provides that the Governor may, with the consent of the Treasurer, make rules, not inconsistent with the Act or Regu-lations, (inter alia) to provide a superannuation fund.

    Section 30 of the Act provides that the net profits of the Bank are to be paid in equal shares to the Reserve Fund and the Redemption Fund.

    Contributions to a superannuation fund are part of the ordinary expenses of the Bank, and can be legally set apart before the net profits of the Bank have been ascertained.

    In my opinion, the Governor has power, with the consent of the Treasurer, to set apart portion of the funds or profits of the Bank from time to time to make contri-butions to the superannuation fund.

  3. Common Seal
  4. I am of opinion that, in any instrument appointing an attorney, the Bank can give directions as to the method by which the attorney is to execute deeds on behalf of the Bank including the seal to be used. It can therefore require the attorney to use an official seal (other than the common seal of the Bank) specified in the instrument and can give directions as to the custody and use of such official seal. I do not suggest that the attorney could be relieved from signing on behalf of the Bank, as a deed executed by the attorney should be signed as well as sealed. The instrument appointing an at-torney could also give the attorney directions as to any certificate he is to endorse on any deed executed by him on behalf of the Bank. The common seal of the Bank can only be affixed on the authority of the Governor, and his express authority should be given and recorded whenever it is necessary to affix it to any document.

    I wish to point out that in typing or framing the questions under this head some words have evidently been omitted and, consequently that the points upon which my opinion is desired are not quite clear. If the opinion expressed does not give the infor-mation required the questions could be reframed and resubmitted.

  5. Bank Regulations
  6. Section 32 of the Act provides that:

    The Governor may, with the consent of the Treasurer, make rules, not inconsistent with this Act or the regulations made by the Governor-General thereunder, for any of the fol-lowing purposes:

    1. the good government of the Bank,
    2. the classification of the officers of the Bank,
    3. to provide a superannuation fund, and
    4. any matter necessary or convenient to be provided for carrying on the business of the Bank.

    Section 63 of the Act provides that:

    The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular for making provision for the issue, inscription, transfer, transmission, and redemption of inscribed stock of the Bank, and all matters incidental thereto.

    In my opinion, regulations dealing with the government of the Bank and with the internal working as regards books and forms may be made by the Governor of the Bank and need not be submitted to the Governor-General in Council.

    The only regulations which require to be submitted to the Governor-General in Council are those which come within section 63 of the Act.

  7. Stamp Duties
  8. Before advising definitely on the questions arising under this head, I should like to have information supplied to me showing exactly what the New South Wales Govern-ment is doing and the exact facts, including specimens of documents, of each trans-action in respect of which stamp duties are claimed.

    I desire to say however that in my opinion the Commonwealth Bank is an instru-mentality of the Commonwealth, and that a State law would not be effectual to compel the Bank to affix a duty stamp on any document or receipt given by the Bank to a cus-tomer or to compel a customer to affix a duty stamp to a document required by the Bank and which operated merely as between the Bank and the customer.

    As regards Savings Bank deposits and withdrawals I think the Bank should disre-gard any stamp duty laws of the States as being inapplicable until the High Court has determined otherwise.

    At the same time it would be advisable to submit a full statement of the facts of the transactions with specimens of documents in respect of which stamp duties are sought to be enforced in order that the matter may be more closely looked into.

[Vol. 10, p. 458]

(1) See Comments under(b) Common Seal,second paragraph.

(2)This opinion is unsigned in the Opinion Book, but it is attributed to Mr Hughes.

* See also Opinions Nos 504,508.