Opinion Number. 1829

Subject

SUPPLY OF ALCOHOL AT COMMONWEALTH DEFENCE ESTABLISHMENTSSUPPLY AND CONSUMPTION OF ALCOHOL AT COMMONWEALTH DEFENCE ESTABLISHMENTS: WHETHER LICENSING ACT 1932 (SA) APPLIES TO SUPPLY OF ALCOHOL AT COMMONWEALTH DEFENCE ESTABLISHMENTS IN SOUTH AUSTRALIA: COMMONWEALTH POWER TO REGULATE SUPPLY OF ALCOHOL AT COMMONWEALTH DEFENCE ESTABLISHMENTS: WHETHER STATUTORY PROVISION FOR SUPPLY AND CONSUMPTION OF ALCOHOL AT COMMONWEALTH DEFENCE ESTABLISHMENTS SHOULD BE MADE: WHETHER LICENSING ACT 1932 (SA) BINDS THE CROWN: SCOPE OF DEFENCE POWER

Key Legislation

DEFENCE (TRANSITIONAL PROVISIONS) ACT 1946: LICENSING ACT 1932 (SA) ss 12, 13(5): NATIONAL SECURITY (MUNITIONS) REGULATIONS

Date
Client
The Assistant Crown Solicitor

Long range weapons establishment: Salisbury Hostel: Consumption of Spirituous Liquors

I refer to your memorandum of the 14th January, 1948, on the above-mentioned subject.

In this matter I have come to the conclusion that the only safe course to follow is to make appropriate statutory provision for the supply and consumption of liquor at the establishment in question.

The interpretation of the Licensing Act 1932–1945 of South Australia is by no means free from doubt as the Act does not state expressly whether or not it is intended to bind the Crown. In setting out the exemptions from the application of the Act, however, section 13 does expressly grant exemptions in the following terms:

(5)  This Act shall not apply—

i  to the sale or supply of liquor in the Parliamentary refreshment rooms by the permission and under the control of the proper authority; or

ii  to the sale or supply of liquor to any member of the Defence Forces in any canteen established under a permit issued by the proper authority.

It seems to me extremely probable that the High Court would hold that the necessary implication from this provision (s. 13) is that the supply of liquor to other Commonwealth establishments is subject to the provisions of the Act. In this regard, I call special attention to the provisions also of section 12 which prohibits the issue of a licence to any person holding office under or employed by the Government of the State or of the Commonwealth.

I have given some thought to the power of the Commonwealth to confer an exemption from State law in a case such as that under consideration. The matter is fully discussed in Pirrie v. McFarlane, (1925) 36 C.L.R. 170, in which the majority of the Court was clearly of opinion that the Commonwealth could by appropriate statutory provision under the defence power grant an exemption from the licensing provisions of the Victorian Motor Car Act covering members of the Defence Force. Such a power must be exercised with a good deal of caution as shown by the comments of Evatt J. in West v. Commissioner for Taxation (N.S.W.), (1937) 56 C.L.R. 657.

There appears to me, however, to be clear considerations of defence to support a Commonwealth law giving authority for the supply on premises at a Commonwealth defence establishment, by Commonwealth officers, of liquor to persons employed in connexion with the defence project or accommodated in or attending the establishment for the purpose of services rendered in connexion with that project, and also for the consumption of the liquor by those persons under conditions and times to be determined by a Commonwealth authority. A Commonwealth law so expressed would override the inconsistent provisions of the State Act.

The framing of an appropriate statutory provision on the lines suggested is a matter for consideration by the Department of Munitions and the Parliamentary Draftsman, but it appears to be me that the matter could be dealt with by amendment of the National Security (Munitions) Regulations.

It has occurred to me that in the long run the most satisfactory course would be to secure, by agreement with the South Australian Government, an extension of the existing exemption, under section 13(5)(ii) of the South Australian Act, to cover civilian employees at munitions establishments as well as members of the Defence Force. If this could be obtained the Commonwealth regulation proposed above could be regarded as merely a stop-gap, to cover the position until the State Act is amended. I should point out in any case that an amendment of the National Security (Munitions) Regulations would have temporary operation only, inasmuch as the Defence (Transitional Provisions) Act 1946 will expire on 31st December, 1948.

[Vol. 38, p. 29]