Opinion Number. 1684


national security regulations
extraterritorial operation of national security (military forces) regulations: power of commonwealth to give extra-territorial operation to its legislation

Key Legislation

NATIONAL SECURITY ACT 1939 ss 4, 5, 6: ARMY ACT 1881 (U.K.) (44 & 45 Vict. c. 58) s 187C: EMERGENCY POWERS (DEFENCE) ACT 1939 (U.K.) (2 & 3 Geo. VI c. 62) s 5

The Secretary, Department of Defence Co-ordination

I am in receipt of your minute of the 2nd May, 1941, in which the question is raised whether the National Security Act authorizes the addition of a regulation to the abovementioned in terms of that accompanying my memorandum of the 4th March, 1941, inasmuch as the regulation purports to apply to persons outside Australia.

Reference is made to sections 4–6 of the National Security Act and to section 187C of the Army Act.

In the view I take of the powers conferred by the National Security Act, it becomes unnecessary to consider section 187C. Section 6 also may be disregarded as the only effect of this section is to give an extra-territorial operation to regulations which, in the absence of express provision, they would not ordinarily have. In other words, I regard section 6 as being in the nature of an interpretative provision in no way limiting the otherwise general powers to make regulations conferred by the Act.

Section 4 may, on a first consideration, be thought to throw some light on the question. In my view, however, section 4 has been inserted to make it clear that, notwithstanding the provisions of Acts governing the external Territories, the National Security Act is to extend to those Territories as a law thereof.

Although it may appear from section 5 of the Emergency Powers (Defence) Act, 1939 of the United Kingdom that there are limitations on the power of the Commonwealth Parliament to give extra-territorial operation to its legislation, Parliament has, in my view, this power, and has, in fact, exercised it in section 6 of the National Security Act. It could, of course, deal with any of the matters referred to in section 5 by special Act and give to that Act an extra-territorial operation. The only question is whether Parliament has, in section 5, indicated an intention that the power to make regulations is to be construed as empowering the making of regulations having extra-territorial operation. The matter must, I think, be looked at from the point of view simply as to whether a particular regulation is or is not a regulation for securing the public safety and the defence of the Commonwealth and the Territories or is necessary or convenient for the more effectual prosecution of the war. If the Governor-General in Council considers it necessary for the purposes set out in section 5 to make a regulation having extra-territorial operation, then I think that such a regulation would be within the power to make regulations conferred by that section.

Accordingly, I am still of the opinion that there is no legal objection to proposed regulation 7 of the abovementioned Regulations.

[Vol. 34, p. 145]