Opinion Number. 1722


National Security Power of man power authorities to interrogate persons in clubs, hotels etc: power to detain persons: power to cause person to pause in order for authorised person to make known requirement to answer questions or produce documentS

Key Legislation

National Security (Man Power) Regulations Part III, regs 5, 6, 13

The Acting Attorney-General
  • The Acting Attorney-General has referred to me for opinion an inquiry made at a recent meeting of the Advisory War Council by the Hon. P.C. Spender regarding the legal power of the man power authorities to conduct ‘raids’ ‘on clubs, hotels, etc., involving the detention of members of the public, frequently behind locked doors, for man power examination’.
  1. I have not felt myself authorised to require detailed reports from the man power authorities as to the practice they have followed in conducting ‘raids’. In these circumstances it would be plainly improper for me to express any opinion which could be construed as saying, or implying, that the man power authorities have, or have not, legal power to do what in fact they have recently done. I am not in a position to answer that question. It may, however, be sufficient for the present purposes if I draw attention both to the extent of the legal powers possessed by the man power authorities under the National Security (Man Power) Regulations and also to the limitations which the law places on those powers.
  2. In order to secure that the resources of man power and woman power in Australia shall be organised and applied in the best possible way to meet the requirements of the Defence Force and the needs of industry in the production of munitions and the maintenance of supplies and services essential to the life of the community, wide powers of acquiring information and giving directions are entrusted to the man power authorities, including, of course, the Minister. They may determine the occupations which shall carry exemption from military service (reg. 6); they may declare ‘protected undertakings’ with special consequences relating to the persons employed therein (regs. 5, 13 and 14); they may regulate the engagement of employees generally (reg. 13); and they may direct any person to accept any specified employment (reg. 15). For the purpose of facilitating the exercise of these powers, provision is made for the registration and identification of all persons in Australia who are or may be capable of useful employment (Part III). The powers to interrogate persons and require them to supply information about themselves are given as incidental to, and as a means for securing the proper exercise of, the functions above described.
  3. For present purposes the immediate relevant powers seem to be those conferred by regulations 17 (and by paragraph (c) in particular), 45 and 51. Regulation 17, as amended by regulation 9 of S.R. 1943 No. 23, empowers the Minister or the Director-General, by order or by particular direction, to require any person in Australia of either sex to furnish particulars, in specified manner and at specified times, about himself, and about changes in his place of residence or employment or otherwise, or ‘to attend at such place as the Director-General, or any person thereto authorised by him, requires for the purpose of being interviewed by any person’. It is, I think, contemplated that directions under this regulation will be in writing. Regulation 60 permits any direction to be served by post; but I do not think that this regulation makes it unlawful to effect personal service of such a direction. Regulation 45 imposed on the person who is for the time being responsible for the custody of an identity card the duty of producing that card when so required by any one of certain classes of authorised persons, including any National Service officer. This regulation, in my opinion, plainly contemplates oral demand, and, in conjunction with it, should be read regulation 58(b): ‘a person shall not obstruct any person in the exercise of his duties under these Regulations’. Regulation 51 provides that for the proper carrying out of the registration provisions, any person, when required by (inter alia) a National Service officer, shall, within any time specified, answer such questions and furnish such documentary or other evidence as it is within the power of the person to answer or furnish.
  4. The question necessarily arises whether the officers authorised to make the demands for information referred to in these Regulations may, if necessary, detain persons in any place where they may happen to be, as long as may be reasonably necessary for the purposes of making the demands concerned. The common law is clear that any person who prevents another, without legal justification, from exercising his ordinary legal right to leave the place in which he is commits the civil wrong of false imprisonment. But it is also clear that, in order to constitute an imprisonment, the deprivation of liberty must be complete. To interpose, at an exit from a room, a reasonable delay for the purpose of enabling an authorised officer to exercise his powers under the Regulations in respect of persons wishing to leave the room would not, in my opinion, constitute an imprisonment of the persons in that room. The same result could, I think, be reached by approaching the same matter from the other end–i.e. the officer’s powers. There must, in my opinion, from the power to require persons to answer questions or to produce documents, be implied power to require them to pause in their ordinary occupations for long enough to enable the officer to make his requirements known. In that view, the regulations I have quoted would afford legal justification, within the common law rule, for such a delay as I have considered above.

[Vol. 35, p. 209]