Opinion Number. 1800

Subject

WAR GRAVES AUTHORISATION OF WORK IN CONNECTION WITH WAR GRAVES: FAWKNER CEMETERY: SCOPE OF DEFENCE POWER: POWERS OF CEMETERY TRUSTEES

Key Legislation

CONSTITUTION s 51(vi): DEFENCE (TRANSITIONAL PROVISIONS) ACT 1946: NATIONAL SECURITY (GENERAL) REGULATIONs reg 37

Date
Client
The Secretary, Department of the Interior

I refer to your memorandum No. 47/800 of 8th April, 1947 concerning the proposal to erect concrete kerbings on war graves in the Fawkner civil cemetery.

Sub-regulations (6) and (7) of regulation 37 of the National Security (General) Regulations (as in force under the Defence (Transitional Provisions) Act 1946), so far as they are material, provide:

(6) Notwithstanding the provisions of any other law, any officer of the Armed Forces in charge of any unit of a Graves Registration Service or any Graves Registration and Enquiry Unit or the Secretary-General of the Anzac Agency of the Imperial War Graves Commission—

(a)  …

(b)  …; and

(c)  may enter or authorize any other person or persons to enter any cemetery and to inspect, maintain or carry out any work in connexion with the grave of any deceased member of the Armed Forces which is or has been maintained at public expense.

(7) In this regulation—

‘Armed Forces’ means any of the Armed Forces, or nursing services or women’s services auxiliary to the Armed Forces, of His Majesty or of any Power which is allied or associated with His Majesty in any war in which His Majesty is engaged;

I assume that the graves in question are those of members of the ‘Armed forces’ as defined in the regulation, and are, or have been, maintained at the public expense. On these assumptions, sub-regulation (6) clearly enables the Secretary-General (or any of the other specified officers) to authorize a contractor and his workmen to enter the Fawkner cemetery and to carry out any work (including the erection of concrete kerbings) on the graves concerned. The fact (if it is a fact) that the performance of the work is contrary to any State law or regulation would not affect the legality of any such action under the regulation.

The question may arise, however, whether the cemetery authorities would be acting unlawfully if they caused the kerbings to be removed after erection. As the reference to ‘law’ in sub-regulation (6) includes a reference to State law (see definition of ‘law’—regulation 3(1)), any action to remove the kerbings in pursuance of a State law would plainly be invalid in view of the fact that regulation 37 operates notwithstanding the provisions of any other law. Regulation 37 does not, however, make it an offence to remove work authorized by Commonwealth law and, in the absence of a provision prohibiting such removal, the Commonwealth’s only remedy would be by way of suit for an injunction. If it is considered that there is a real probability of interference with the kerbings by the trustees, it may be wise to have the regulation amended so as to make any such interference an offence.

I have so far assumed that the relevant provisions of regulation 37 are valid. In my opinion there is little reason to doubt the validity of those provisions as an exercise of the defence power of the Commonwealth.

I should add that, if it is decided to authorize the work without the concurrence of the trustees, it would be advisable to give formal written authority to the contractor. I suggest that the assistance of the Deputy Crown Solicitor, Melbourne, might be obtained in preparing the form of authority.

[Vol. 37, p. 398]