INCOME TAX STATUTORY EFFECT GIVEN TO OPINION OF COMMISSIONER: WHETHER FORMING OF OPINION IS FUNCTION OF COMMISSIONER THAT CAN BE DELEGATED
INCOME TAX ASSESSMENT ACT 1915, ss. 3. 7. 50A
The Naval Secretary has forwarded for advice the following memorandum:
With reference to sections 88 and 89 of the Naval Discipline Act, which read as follows:
His Majesty's land forces, when embarked on board any of His Majesty's ships, shall be subject to the provisions of this Act to such extent and under such regulations as His Majesty, His heirs and successors by any Order or Orders in Council, shall at any time or times direct.
(Note: The regulations under this section are contained in Imperial Orders in Council of 4 February 1879 and 30 June 1890, and recited in Chapter XXXV of the King's Regulations and Admiralty Instructions.)
All other persons ordered to be received or being passengers on board any of His Majesty's ships shall be deemed to be persons subject to this Act, under such regulations as the Admiralty may from time to time direct.
(The regulations made under this section are contained in Article 739 of the King's Regulations and Admiralty Instructions.),
I am directed by the Naval Board to request that an opinion may be given as to whether these sections and the Regulations made thereunder can be applied to His Majesty's ships provided and maintained by one of His Majesty's Dominions (e.g. the Royal Australian Navy), and whether persons, who by these [provisions] would be subject to the Naval Discipline Act if on board one of His Majesty's ships of the Royal Navy, would similarly be subject to that Act if on board one of His Majesty's ships of the Royal Australian Navy.
- It is observed that section 36 of the Commonwealth Naval Defence Act applies the Naval Discipline Act and the King's Regulations and Admiralty Instructions to the Naval Forces of the Commonwealth, subject to the Naval Defence Act, etc. and no modifications of the sections of the Naval Discipline Act or of the Regulations referred to above have been made under section 36 of the Naval Defence Act. Sections 19 to 21 of the Naval Defence Act define the Naval Forces as the 'officers and seamen' and do not include the ships and vessels belonging to the Naval Forces.
- It would therefore appear that it can be argued that-
- The Naval Discipline Act and the Regulations made thereunder apply only to the Naval Forces and not to other persons mentioned in the Act;
- The term 'Naval Forces' used in section 36 of the Naval Defence Act includes only members of the Naval Forces and not the vessels belonging thereto, and therefore sections 88 and 89 of the Naval Discipline Act do not apply to members of the Military Forces and other persons when embarked in His Majesty's Australian ships.
- It is further observed that it would apear that a similar situation in regard to the Military Forces was recognised in 1917 when section 117 A of the Defence Act was added to that Act.
- Should it be ruled that sections 88 and 89 of the Naval Discipline Act do not apply to His Majesty's Australian ships, and that there is no power at present given to the Commanding Officers of those ships for the proper control of persons, not members of the Naval Forces, who may be embarked in those ships, the Naval Board request that a Bill to amend the Naval Defence Act may be prepared for presentation to Parliament, on the following lines:
The Principal Act (i.e. the Naval Defence Act 1910-1918) is amended by inserting a new section 44C as follows:
44C. A person, not being a member of the Naval Forces, when embarked on board any of His Majesty's ships whether such ship is provided and maintained by the Imperial Government or by the Government of one of His Majesty's Dominions shall be subject to this Act and to the Naval Discipline Act and the regulations made thereunder.
Sub-section (1) of section 1 of the Naval Discipline (Dominion Naval Forces) Act 1911 of the United Kingdom provides, inter alia, as follows:
1(1) Where in any self-governing dominion provision has been made (either before or after the passing of this Act) for the application to the naval forces raised by the dominion of the Naval Discipline Act, 1866, as amended by any subsequent enactment, that Act, as so amended, shall have effect as if references therein to His Majesty's Navy and His Majesty's ships included the forces and ships raised and provided by the dominion, subject, however-
(a) in the application of the said Act to the forces and ships raised and provided by the dominion, and the trial by court-martial of officers and men belonging to those forces, to such modifications and adaptations (if any) as may have been or may be made by the law of the dominion to adapt the Act to the circumstances of the dominion, including such adaptations as may be so made for the purpose of authorising or requiring anything, which under the said Act is to be done by or to the Admiralty or the Secretary of the Admiralty, to be done by or to the Governor General or by or to such person as may be vested with the authority by the Governor General in Council.
Sub-section (2) of that section provides as follows:
(2) This Act shall not come into operation in relation to the forces or ships raised and provided by any self-governing dominion, unless or until provision to that effect has been made in the dominion.
Section 36 of the Naval Defence Act 1910-1918 provides as follows:
36. The Naval Discipline Act and the Naval Discipline (Dominion Naval Forces) Act 1911 and the King's Regulations and Admiralty Instructions for the time being in force in relation to the King's Naval Forces shall, subject to this Act and to any modifications and adaptations prescribed by the regulations, apply to the Naval Forces.
In my opinion this section applies the Naval Discipline Act to the Commonwealth Naval Forces in the manner contemplated by section 1 of the Naval Discipline (Dominion Naval Forces) Act 1911, and consequently the Naval Discipline Act has effect as if references therein to His Majesty's Navy and His Majesty's ships included the Forces and ships of the Commonwealth.
As references to His Majesty's land forces (section 88, Naval Discipline Act) do not include the Commonwealth Military Forces an amendment of the Naval Defence Act on the lines suggested appears to be necessary and a Bill for that purpose will accordingly be prepared.
[vol. 17, p. 104]
(1)This date is attributed. In the Opinion Book this opinion is year dated only, but it appears immediately following an opinion dated I2 October I920.
(2) This opinion is unsigned in the Opinion Book, but it is attributed to Sir Robert Garran.