Opinion Number. 1102

Subject

CRIMINAL LAW PROPOSED COMMONWEALTH OFFENCE IN RELATION TO DAMAGE TO ANY RAILWAY TUNNEL, BRIDGE, VIADUCT OR OTHER FACILITIES: WHETHER STATE LAW WOULD BE DISPLACED

Key Legislation

CONSTITUTION, s. 109

Date
Client
The Acting Secretary to the Representatives of the Government in the Senate

The Acting Secretary to the Representatives of the Government in the Senate has forwarded for advice the following memorandum:

During the debate in committee of the Senate in connection with clause 35 of the Defence Bill 1921 a question was raised by Senator Elliott as to whether this clause, if given effect to, would override the ordinary criminal law.

Clause 35 of the Defence Bill is as follows:

35 After section eighty-four of the Principal Act the following sections are inserted:

84A Any person who, with intent to hinder or prevent military operations, damages any railway tunnel, bridge, viaduct, culvert, road or path, shall be guilty of an offence.

Penalty: Five hundred pounds or imprisonment for three years.

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The following is the relevant extract from Hansard (vide p. 8232):

Senator Elliott: This is such a serious matter that it may result in persons guilty of a very serious offence escaping with the comparatively light punishment of three years' imprisonment. I suggest that the proposed section might be referred to the Attorney-General for an opinion as to whether, by making this an offence under the Defence Act, we would not be overriding the civil law of the States.

Senator Pearce: I shall have the point raised by the honourable senator looked into.

While the clause was before the Committee I expressed to the Minister in charge of the Bill my opinion that the clause would not have the effect apprehended by Senator Elliott.

In my opinion the proposed enactment will not affect the right, in an appropriate case, to take proceedings under the law of a State.

[Vol.17, p.429]