DEFENCE FORCES: INCONSISTENCY DECEASED ESTATES OF MEMBERS OF AUSTRALIAN FORCES: WHETHER COMMONWEALTH LEGISLATION PROVIDING FOR APPLICATION OF UNCLAIMED PROCEEDS OVERRIDES INCONSISTENT STATE LAW OF ESCHEAT
CONSTITUTION, ss. 51 (vi), 109: DECEASED SOLDIERS' ESTATES ACT 1918, ss. 7, 9
The following memorandum has been forwarded to me for advice:
I append hereto copy of a memorandum received by the District Paymaster, Brisbane, from the Public Curator, Brisbane, and would be glad of an expression of an opinion thereon as to whether the Deceased Soldiers' Estates Act 1918 overrides State escheat-
- In estates handed to the Curator prior to the introduction of the Common-wealth legislation;
- In estates handed to the Curator subsequent thereto.
With reference to previous correspondence regarding unclaimed money in the estate of the deceased soldier, I have to advise that the question has arisen as to whether the Deceased Soldiers' Estates Act 1918, passed by the Commonwealth Parliament and assented to on 25 December last, overrides State escheat. The Crown Law Office here advises that this State will not be prepared to admit that the Act in question is of full effect in opposition to all rights of the Crown qua Government of Queensland, as in certain cases the rights of the Crown in regard to this State in respect of bona vacantia will probably be insisted on.
With reference to estates in which the relatives of the deceased cannot be found and where the Public Curator is taking out the administration, I have to advise that the balance at credit in these estates will be held by this Office until claimed.
Section 109 of the Constitution provides that when a law of a State is inconsist-ent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.
The Deceased Soldiers' Estates Act 1918 is an Act passed under the defence power of the Commonwealth and relating to the disposition of the military estates of deceased soldiers.
The question of the validity of the Act as being within the legislative power of the Commonwealth Parliament is not free from doubt but I incline to the opinion that the Act is a valid exercise of the legislative power of the Commonwealth, and as such must be accorded the supremacy over State laws provided in the section of the Constitution above quoted.
With regard to money or other property in the hands of a Curator, it will be seen that section 7 of the Act provides for the repayment or redelivery of the money or property to the prescribed officer of the Commonwealth only in cases where the money or property has previously been paid or delivered to the Curator in pursuance of that section. The Act contains no provision whereby a Common-wealth officer can require delivery to him of property in the hands of a Curator who became possessed of the property otherwise than in pursuance of the Act.
[Vol. 16, p. 222]