The Secretary to the Treasury has forwarded a file of papers relating to the case of Mr A.B.C, Clerk, 4th Class, Central Taxation Staff, and has requested advice as to whether the offence for which Mr C. was convicted under section 25 of the Police Offences Act 1915 of Victoria is a criminal offence within the meaning of section 66 of the Commonwealth Public Service Act 1902-1918.

Section 25 of the Police Offences Act provides as follows:
Any person who in on or near any public place or within the view or hearing of any person being or passing therein or thereon-

1. behaves in a riotous indecent offensive threatening or insulting manner; or
2. uses any threatening abusive or insulting words,

shall be liable to a penalty of not more than Five pounds or to imprisonment for a term of not more than one month. Sub-sections (1) and (lA) of section 66 of the Commonwealth Public Service Act provide as follows:

(1) Where an officer is charged with having committed any criminal offence against the law of the Commonwealth or of a State, punishable either on indictment or on summary conviction, he may be suspended by an authorized officer.

(lA) If the officer is convicted of the offence by any Commonwealth or State Court, the Governor-General may (whether the officer has been suspended or not), on the recommendation of the Commissioner, dismiss him from the Public Service, or reduce him to a lower class or grade in the Public Service, or reduce his salary or wages, or otherwise deal with him in such manner as the Governor-General thinks just.

Sub-section (1), for which sub-sections (1) to (Id) were substituted by the Commonwealth Public Service Act 1915 (No. 37 of 1915), originally read as follows:

If an officer is on an indictment or presentment convicted of any offence he shall be deemed to have forfeited his office and shall thereupon cease to perform his duties or receive his salary.

Thus the section has been extended to cases of conviction before courts of summary jurisdiction, but, at the same time, the word 'criminal' has been placed before the word 'offence'.

The question then arises as to the extent to which the word 'criminal' qualifies the word 'offence'.

In the Oxford English Dictionary 'criminal' is defined as: 'Of the nature of or involving a crime; more generally, of the nature of a grave offence, wicked'. A criminal offence is, therefore, an offence in the nature of a crime.

Halsbury in his Laws of England, Vol. 9, p. 232, says: 'A crime is an unlawful act or default which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment'; and in a large number of cases, extending over a period from 1829 to 1896, offences have been treated as crimes or criminal offences in all cases where action may be brought for the infliction of punishment, whether of fine or imprisonment, as distinct from compensation for a wrong done.

In Mann v. Owen (1829) 9 B. & C. 595; Eng. Rep. Vol. 109, p. 222, Littledale J. at pp. 601-2, says: 'A man may, indeed, be guilty of an offence for which the law does not award any punishment. The proper definition of the word "crime" is an offence for which the law awards punishment'.

Then in 1862 in Parker v. Green 2 B. & S. 299; Eng. Rep. Vol. 121, p. 1084 at p. 309 per Wightman J., semble that where a fine is treated as a punishment for offence against good order and rule, the offence is a crime.

Then there are a number of cases commencing with Mellor v. Denham 5 Q.B.D. 467, in which the question as to whether an offence is a criminal offence has been dealt with in connection with certain questions of procedure, such as whether the Court of Appeal had jurisdiction to hear an appeal in the matter, or whether certain interrogatories could be administered. (The Imperial Supreme Court of Judicature Act 1873 provides that no appeal shall lie from the High Court in any criminal cause or matter; and in criminal proceedings certain interrogatories cannot be administered.)

In Mellor v. Denham it was held that contravention of a school board by-law imposing a penalty of 5s on a parent who did not send his child to school was a criminal offence, and that the Court of Appeal, therefore, had no jurisdiction to hear an appeal from the Queen's Bench Division affirming a decision of justices under the by-law.

In R. v. Tyler and International Commercial Company [1891] 2 Q.B. 588, the question at issue was whether an omission by a company to furnish certain returns was a criminal offence, and at p. 598 Kay L.J. says: 'It seems to me that the penalty here is a penalty properly so called. It is inflicted by way of punishment, and not by way of compensation for the breach'.

The same principle was observed in the cases of Adams v. Batley 56 L.J.Q.B. 393, Saunders v. Wiel 61 L.J.Q.B. 597; [1892] 2 Q.B. 321 and Derbyshire County Council v. Derby (Mayor, etc.) 65 L.J.Q.B. 488.

Now in all those cases, from Mellor v. Denham onwards, the distinction is made between civil proceedings and criminal proceedings, but I think that the courts have declared with no uncertain voice what is the meaning of 'criminal' and 'crime'.

In my opinion, therefore, the term 'criminal offence' prima facie means any offence for which punishment is provided by law.

This question then arises: In view of the words 'punishable either on indictment or on summary conviction' in section 66 (1) of the Commonwealth Public Service Act, does the term have that meaning in the section?

Strictly speaking the words quoted are not necessary if the term 'criminal offence' has its prima facie meaning; but although all the terms of an enactment must, if possible, be given some meaning, it sometimes happens that words not absolutely necessary are inserted in a statute in order to make the intention of the legislature quite clear. Although the matter is not free from doubt, I am inclined to the view that that has been done in the case of sub-section (1) of section 66. Before the sub-section was amended in 1915, it did not relate to offences punishable on summary conviction. In my opinion, therefore, the words 'punishable on indictment or summary conviction' were inserted to make it free from doubt that offences punishable on summary conviction were included.

In view of the express and definite judicial pronouncements on the meaning of the terms 'crime' and 'criminal', I do not think that any other construction can be placed on section 66 (1).

I am, therefore, of opinion that the term 'criminal offence' has its prima facie meaning in section 66 (1) of the Commonwealth Public Service Act 1902-1918, and that the offence of which Mr C. was convicted under section 25 of the Police Offences Act 1915 of Victoria is a criminal offence within the meaning of that section.

[Vol. 19, p. 36]