The Secretary to the Department of Defence has forwarded for advice the following memorandum:

1. I am directed to ask for the favour of advice upon the following matter brought to notice by the Judge Advocate General which may necessitate an amendment to the Defence Bill:
2. The Australian Military Regulation 494 (S.R. 166/1916) includes several offences which are also offences against the Crimes Act 1914-1915, which are indictable offences and consequently are not punishable on summary conviction (Crimes Act, section 12 (1)).
3. It appears therefore that those parts of A.M.R. 494 creating offences which under the Crimes Act are indictable offences are repugnant to the Crimes Act 1914-1915 and probably therefore ultra vires (Gentel v. Rapps [1902] 1 K.B. 160; Widgee Shire Council v. Bonney 4 C.L.R. 977) unless to the extent to which the Defence Act authorises regulations for the discipline of the Defence Force, it is a special Act from which the Crimes Act, as a general Act would not derogate.
4. A comparison of the provisions referred to below will illustrate the question under consideration:

A.M.R. 494 (v) & (vi) with Crimes Act 1914-1915, sections 25 (1) and 86.

A.M.R. 494 (xxvii) with Crimes Act 1914-1915, section 71.

A.M.R. 494 (xxviii) with Crimes Act 1914-1915, section 71.

A.M.R. 494 (xxii) with Crimes Act 1914-1915, section 71.

A.M.R. 494 (xliii) with Crimes Act 1914-1915, section 72.

A.M.R. 494 (1) with Crimes Act 1914-1915, section 35.

1. The Judge Advocate General has suggested the following amendments to the Defence Act:

A

Section 102 is amended by inserting therein after the words 'this Act' the words 'or against section 25, 29, 35, 47, 48, 71, 72 or 74 of the Crimes Act 1914-1915, or with any conspiracy to commit any offence against this Act or against any section of the Crimes Act 1914-1915 in this section mentioned'.

or B

An amendment similar to the amendment above but in an extended form embracing all offences against the Crimes Act.

In this connection it is pointed out that probably the provision of the new offences proposed in the Crimes Bill would extend the difficulty mentioned above. The effect of the amendments A and B above would be similar to that of section 41 of the Army Act but less extensive.

C

Section 101 is amended by inserting therein after the words 'indictable offences' the words 'and notwithstanding that they are indictable offences under any other Act or law whether of the Commonwealth or otherwise'.

Section 102 is amended by inserting therein after the words 'this Act' the words 'notwithstanding that it is an offence against any other Act or law whether of the Commonwealth or otherwise'.

After section 102 the following section is inserted:

102A Conviction or acquittal of a person by a court-martial of a naval or

military offence which is also an offence against some other Act or law and

whether of the Commonwealth or otherwise, shall not exempt the person in respect of the offence against the other Act or law from prosecution or conviction in a competent court of criminal jurisdiction, but that court, in awarding punishment, shall take into consideration any punishment which the person has undergone under the sentence of the court-martial.

Section 124 is amended by adding at the end thereof the following sub-section: (5) No regulation shall be invalid by reason only that it makes punishable as an offence any act or omission which is an indictable or other offence under any other Act or law.

1. As it is proposed to introduce a Bill to amend the Crimes Act 1914-1915, I shall be glad also if you will consider the question of whether an amendment to the Crimes Act would be feasible, which would overcome the difficulty.
2. As amendments to the Defence Bill may be necessary I shall be glad if you will give the matter urgent attention.

Section 124 of the Defence Act 1903-1918 provides, inter alia, as follows:

(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for securing the discipline and good government of the Defence Force, or for carrying out or giving effect to this Act, and in particular prescribing matters providing for and in relation to:

********

(s) The fixing of penalties for breaches of the regulations, but so that except in the case of a breach of any regulation made under paragraph (ra) no period of imprisonment shall exceed three months and no pecuniary penalty shall exceed Twenty pounds.

Regulation 494 of the Australian Military Regulations is made in pursuance of the power conferred by that section and provides for the punishment by court-martial or civil court of certain offences committed by persons subject to military law. The offences are all punishable on summary conviction. They are, however, so punishable only as offences against the Australian Military Regulations. If any of the offences are also offences against some other law of the Commonwealth there is, in my opinion, nothing to prevent proceedings being taken under that other law in preference to their being taken under regulation 494.

Certain acts might, for example, constitute an offence against paragraph (v) of the regulation and also against section 25 (1) of the Crimes Act 1914-1915. The fact that under section 25 (1) of the Crimes Act the offence is punishable on indictment, whereas under paragraph (v) of the regulation it is punishable on summary conviction, does not, I think, affect the force of either provision.

I am, therefore, of opinion that the fact that certain offences purporting to be punishable summarily under regulation 494 of the Australian Military Regulations are punishable on indictment under certain provisions of the Crimes Act, does not make the regulation repugnant to those provisions of the Crimes Act, and that the regulation is valid.

As regards the proposal to amend the Defence Act by inserting a new section 102A, in the terms suggested by the Judge Advocate General, I desire to point out that such a provision would be in conflict with section 11 of the Crimes Act. The other amendments suggested are, in view of the opinion expressed above, unnecessary.

[Vol. 18, p. 487]