The Secretary to the Naval Board has forwarded for advice the following memorandum:

I am directed by the Naval Board to furnish the following facts for opinion and advice:

1. Ordinary Seaman A.B.C., R.A.N.R. (N.S.W.-Sydney), was prosecuted on 24 February 1922, under section 135 (1A) (a) of the Defence Act, and was awarded 3 days' custody, fined £1 and costs 4s; 7 days' additional custody in lieu of fine and costs.
2. The prosecution took place in a Defence Court which is a court of summary jurisdiction, before the Chief Stipendiary Magistrate.
3. On the expiration of the time allowed, C. was warned that a warrant would be taken out if fine and costs were not paid immediately. Costs and fine not having been paid, application was made to the Court for a warrant for arrest in pursuance of the original order, in accordance with Article 175 (3), R.A.N.R. Regulations 1922.
4. Application for the enforcement warrant for the default penalty was made to the Central Criminal Court and was directed by the Chief Stipendiary Magistrate to the Chamber Magistrate.
5. The warrant could not be obtained, the Chamber Magistrate stating that the Justices Act only authorised the issue of a warrant in such cases where imprisonment was the alternative to fine and/or costs. This, it appears, is the opinion of the Solicitor-General, New South Wales.
6. I am to state that there are really two points at issue, viz.:
1. Is Art. 175 (2) and (3) ultra vires of the parent Defence Act 1903-1918?
2. If not, what procedure or alteration of construction is necessary to enable its enforcement to be made, particularly in relation to the Justices Act (para. 4)?
7. In regard to (a), it appears that the award of the Court on 24.2.1922 presupposed its power to award such alternative penalty, and this contention is strengthened by reference to section 135A, Defence Act.
8. The position disclosed appears to be not so much the actual power of a court (dealing with such a complaint under the Defence Act) to award this particular alternative penalty, but the fact that some rule of court or form of procedure under a N.S.W. State statute (the Justices Act) precludes the issue of an enforcing warrant for a 'default' penalty, where such 'default' penalty is other than imprisonment, even although the particular 'default' penalty was actually specified by another N.S.W. State court under a Commonwealth law.

The reference to Article 175 (3) of R.A.N.R. Regulations 1922 is, I understand, intended as a reference to regulation 121 of the Naval Reserve Regulations (Statutory Rules 1922, No. 165). That regulation provides as follows:

121 Should a trainee fail to pay any fine and/or costs imposed by a Court the magistrate shall be asked to issue a warrant for his arrest for detention in pursuance of the original order.

Section 135A of the Defence Act 1903-1918 provides as follows:

135A. A person liable to be trained under the provisions of section one hundred and twenty-five of this Act shall not be committed to gaol in default of payment of a pecuniary penalty imposed for an offence against the provisions of Part XII or XIV of this Act, or of any costs awarded in proceedings for any such offence, but instead the Court may order that he be committed to the custody of a prescribed authority for such time, not exceeding the time for which the Court could, but for this section, have committed him to gaol in default of payment of the pecuniary penalty imposed or costs awarded, as the Court thinks fit.

In my opinion that section, notwithstanding anything contained in the law of a State, is sufficient authority for the court to issue a warrant of commitment to the custody of a prescribed authority where default is made in payment of a fine imposed or costs awarded in respect of an offence against Part XII or XIV of the Act.

In my opinion, therefore, the questions asked in paragraph (7) of the Secretary's memorandum should be answered as follows:

1. No, but the regulation appears to be merely in the nature of an administrative direction and confers no power to issue warrants;
2. None. It is only necessary to satisfy the court that it has authority, under section 135a, to issue the warrant.

[Vol. 19, p. 229]