Opinion Number. 433



Key Legislation

DEFENCE ACT 1903-1910

The Secretary, Department of Defence

The Secretary to the Department of Defence has forwarded to me for opinion the following memorandum:

Would you kindly cause this Department to be favoured with an opinion in respect of the following:

  1. The Defence Act 1903-1910 provides that Police Courts throughout the Commonwealth can impose fines for offences against the said Act and Universal Training Regulations thereunder, but the Act does not provide for disposal of such fines.
  2. A Police Magistrate (Colonel Moore) at Brisbane, Queensland, considers that such fines belong to the Commonwealth revenue, but the State Attorney-General of Queensland challenges this view.
  3. In a Sydney case the request of the Military Paymaster for the amount of a fine imposed was refused by a Police Magistrate on the ground that as the Commonwealth did not provide the Court Houses, Police Magistrates, and other Police Court Officials, said fine should belong to the State revenue.

In view of the foregoing would the Attorney-General kindly advise as to:

  1. Whether the fines should be paid into Commonwealth revenue or into the revenue of the State concerned.
  2. If into Commonwealth revenue what procedure should be adopted in the several States to ensure that such fines are so paid.

A copy of the Defence Act, and Universal Training Regulations accompany this application; the latter since first issued have been amended by Statutory Rule several times but not in respect of matter connected with the imposition of fines by Police Courts.

There is no doubt whatever that all fines under the Defence Act 1903-1910 and the regulations thereunder, belong to the Commonwealth and not to the State, which has no claim whatever in respect of them.

The penalties are recovered under a Commonwealth law and in a Court exercising Federal jurisdiction, that is, a jurisdiction derived from the Commonwealth and not from the State.

It is a well-settled rule of law that where a penalty is created by an Act and it is not created for the benefit of a party aggrieved, and the offence is not against an individual, the penalty belongs to the Crown. The offences in relation to universal training are not created for the benefit of a party and are not against any particular individual, but are offences against the Commonwealth as a whole.

The Crown in this connection is undoubtedly the Commonwealth, not the State. In fact, in this connection the State cannot be recognised as having any sovereign rights whatever, as the matter of defence is exclusively within the domain of the Commonwealth.

I wish to point out that the fact that the Commonwealth does not provide the Court House, Police Magistrates, and other Police Court Officials has nothing to do with the case. The question is to whom does the money belong and as to that question there is no doubt as to the answer.

As regards question (a), I am of opinion that the fines should be paid into Commonwealth revenue, and not into the revenue of the State concerned.

As regards question (b), I am of opinion that any procedure which is considered convenient can be adopted. I presume that there is some regular practice as regards fines under the Customs and Excise Acts and a similar practice might be followed as regards fines under the Defence Act.

[Vol. 9, p. 332]