Opinion Number. 425



Key Legislation

DEFENCE ACT 1903-1910, ss. 63, 82, 124

The Secretary, Department of Defence

The Secretary to the Department of Defence has referred the following letter from the Secretary to the Department of the Interior of the Union of South Africa to me for any information this Department can furnish on the subject referred to therein:

I am directed by the Minister of Defence to inform you that the Union Government desires to prepare legislation on the subject of defended ports-the bill to include special provision for the Imperial Naval Base at Simon's Town. Mr Smuts would be greatly obliged if you could furnish him with copies of any Acts of the Commonwealth of Australia which deal with this subject and also with any general regulations or instructions made thereunder. Certain general memoranda issued by the Colonial Defence Committee (of which C.D.C. 426M. is the latest) deal with this subject but they do not appear to indicate what is the general practice in the various self-governing Dominions and Colonies as to giving the local Government statutory powers to take extraordinary measures in time of threatened or actual hostilities for controlling water-borne traffic in the harbour and providing for the security of the land defences. In South Africa the Parliament of the late Colony of the Cape of Good Hope passed in 1898 an Act called the Simon's Town Naval Defence Act, but the provisions of this Act do not adequately suffice for the present requirements at that Port and there is no legislation applicable to other South African Ports which would empower the Government to take special measures to assume the control which is normally exercised by the municipal and harbour authorities of a port. The favour of any observations or suggestions which the Honourable the Minister of Defence of the Commonwealth may be willing to furnish on this subject will be greatly esteemed, and would be treated in strict confidence.

There is no legislation that 1 am aware of which specifically deals with the control of water-borne traffic in harbours in time of threatened or actual hostilities.

But both matters referred to in the letter, in my opinion, come within sections 63 and 124 of the Defence Act 1903-1910.

By section 63, the Governor-General is empowered (inter alia) to construct and maintain forts and defence works, to lay down mines, and subject to the provisions of

the Act, to do all matters and things deemed by him to be necessary or desirable for the efficient defence and protection of the Commonwealth or of any State, and by section 124 he is empowered to make regulations not inconsistent with the Act prescribing (inter alia) all matters which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The effect of these sections is that the Governor-General can lawfully do anything that he considers necessary in relation to the matters mentioned either in time of war or in time of peace. He could, if he saw fit to do so, not only lay down mines in a port and regulate its traffic and lighting, but he could if the necessity arose, suspend either the traffic or lighting. He could also do anything thought necessary for the protection of land and other defences. Any regulations issued could be made binding on both civilians and members of the Defence Force, but, in time of peace, civilians could only be punished by the civil courts for breaches of the regulations, and penalties for such breaches could not exceed three months' imprisonment or a fine of twenty pounds.

I desire to point out that section 82 of the Defence Act provides for the punishment of persons unlawfully sketching or photographing forts or other defence works or trespassing thereon.

[Vol. 9, p. 98]