Opinion Number. 531



Key Legislation

CONSTITUTION, s. 52 : AUDIT ACT 1901-1912, ss. 34, 46 : STAMP ACT AMENDMENT ACT 1913 (W.A.)

The Secretary, Postmaster-General's Department

The Secretary, Postmaster-General's Department has forwarded a copy of the fol-lowing telegram from the Deputy Postmaster-General, Perth, and requested to be advised thereon:

State Treasurer advises that under Stamp Act Amendment Act which came into oper-ation 1st instant it is necessary that stamped receipts be obtained for all payments over £.2 made by Department to claimants other than for salaries or wages. Kindly instruct stamped receipts not hitherto required.

The Stamp Act Amendment Act 1913 referred to in the telegram effects certain amendments of the law of Western Australia as to the exemptions from stamp duty on receipts, given for, or upon the payment of, money amounting to £2 or upwards. Exemption (3)(1), which reads-'Receipt given for the payment of any money to or for the use of or from his Majesty' has now been amended by omitting the words 'or from'. It is presumed that the omission of the words 'or from' from the exception has given rise to the action of the State Treasurer of Western Australia of which the above tele-gram is the result.

By section 34 of the Commonwealth Audit Act 1901-1912 it is provided (inter alia) that:

... at the time of paying any account every accounting officer shall obtain a receipt under the hand of the person to whom the same is payable or under the hand of some per-son or banker authorised in writing by such first-mentioned person for the amount so paid . . .

Section 46 provides that:

No sum shall be allowed in any account to have been duly received or paid without a written voucher for the actual receipt or payment of every sum so claimed to be allowed ...

The Act further specifies a form of voucher and receipt to be used in the payment of public moneys. In D'Emden v. Pedder 1 C.L.R. 91, it was held [p. /09]that the above provisions of the Audit Act as to receipts and vouchers-

. . . relate to the conduct of the departmental affairs of the Commonwealth Govern-ment, and therefore . . . fall within the words of section 52 of the Constitution, by which the Federal Parliament has exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to-'(ii) Matters relating to any depart-ment of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth'.

It was further held [p. 111] that:

. . . when a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control, or interfere with, the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorised by the Constitution, is to that extent invalid and inoperative.

It would therefore appear that the proposed imposition of stamp duty by the State of Western Australia on receipts given in accordance with the provisions of the Com-monwealth Audit Act and in the transaction of the business of the Commonwealth is an illegal interference with the executive power of the Commonwealth.

I am therefore of opinion that stamp duty on the receipts in question cannot be imposed.


  1. See the Schedule to the Stamp Act Amendemant Act 1905(W.A.)