DEFENCE sentries: power of arrest and power to fire upon person evading arrest: EXTENT OF POWER UNDER NATIONAL SECURITY ACT OR DEFENCE ACT TO MAKE REGULATIONS EXTENDING POWERS OF SENTRIES
National Security Act 1939 s 13: Defence Act 1903
With reference to your memorandum of 26th October, 1939, I have to advise you that, in my opinion, regulations on the lines suggested in paragraphs 6 and 7 of the minute enclosed with your memorandum could not validly be made under the National Security Act 1939 in view of the provisions of section 13 of the Act. The power of arrest conferred by that section is confined to the same limits as the power of arrest at common law in the case of a breach of the peace. Regulations affording sentries powers in excess of that power could not validly be made under that Act.
I have given consideration to the question whether it would be possible to make regulations under the Defence Act 1903–1939 to the desired effect but I have come to the conclusion that it would not be possible to make under the Defence Act such regulations which would not be inconsistent with the National Security Act and accordingly invalid.
If it be considered essential that legislative authority be provided giving sentries greater powers of arrest and power to fire upon a person evading arrest, it would appear that the only course available is to amend the National Security Act.
[Vol. 32, p. 478]