Opinion Number. 452

Subject

FINES AND PENALTIES WHETHER PROPER FOR COMMONWEALTH TO RETAIN PENALTIES IMPOSED BY STATE COURTS FOR OFFENCES AGAINST COMMONWEALTH LAW : PROVISION BY STATES FOR DETENTION OF COMMONWEALTH PRISONERS : DISTRIBUTION BETWEEN COMMONWEALTH AND STATES OF BURDENS AND FUNCTIONS

Key Legislation

CONSTITUTION, Chapters III, IV, V;s. 120 : DEFENCE ACT 1903-1911 : SURPLUS REVENUE ACT 1910

Date
Client
The Secretary to the Prime Minister

These papers are referred for advice.

The opinion given by me on 9 December 1911(1), as to the right of the Common-wealth to penalties recovered under the Defence Act, is referred to me by the Premier of Western Australia in the following terms:

Although my colleague the State Attorney-General is not prepared to challenge the law laid down in the circular in question, he cannot subscribe to the opinion, there ex-pressed, that the fact that the Commonwealth does not provide the Court House, Police Magistrate and other Police Court Officials has nothing to do with the case and is of opinion that before the fines are paid to revenue any expense the State has been put to should be deducted from the amount.

You will, I am sure, admit that whatever the law, the relations between the Federal Government and the States in this matter are far from equitable. An offence is committed against the Federal Laws and the State has to supply all legal machinery necessary to hear the case. In the event of a fine being inflicted the Federal Treasury retains the money, but should imprisonment of the delinquent result the expense of maintenance and supervision is a charge on the State under section 120 of the Commonwealth of Australia Consti-tution Act.

There can be no doubt that although this duty was cast on the State by the Consti-tution Act it was fully intended that the Federal Government should make good the actual cost because section 120 provides that the Commonwealth Parliament may make laws to give effect to the 'provisions' of the section, and as there is complete machinery for imprisonment in each State the only 'provisions' left are those relating to expense. There is nothing novel about such an idea, and Messrs Quick & Garran in their work on the Con-stitution of Australia, state with regard to this question: 'The Federal Authority will pre-sumably compensate the State Authorities for the expense which they may incur in pro-viding the necessary gaol accommodation and supervision'. (See page 966, par. 469, Prisons.)

I am of opinion, therefore, that we can confidently expect the Commonwealth to make some provision for both the cost of hearing the cases, and the cost of detaining and supervising prisoners under the Federal Laws, and beg to submit the matter for your favourable consideration.

No legal question is raised; the State Government does not challenge the legal advice given by this Department (which as appears from the file, is also concurred with by the Governments of New South Wales and Queensland).

The contention is raised, however, that it is inequitable that the Commonwealth should retain the revenue from penalties imposed for offences against the Common-wealth, while the States maintain the courts in which the cases are heard, and also the gaols in which prisoners are confined.

With regard to this, I may observe that the Constitution, in various provisions, im-poses obligations on the Commonwealth with respect to the States, and on the States with respect to the Commonwealth. It makes State Courts available for the trial of Federal offences and State gaols available for the confinement of Federal prisoners and on the other hand it makes the High Court available for State litigants. Also it provides for a general financial adjustment between the Commonwealth and the States. I would suggest that the provisions of the Constitution must be looked at as a whole; and that the Surplus Revenue Act(2), which regulates the annual subsidy paid by the Common-wealth to the States, must be taken to have been passed having in view the mutual obli-gations imposed by the Constitution.

The Commonwealth incurs the whole expenditure for defence of the Common-wealth and the States, and provides the Federal judiciary for the purposes of the Com-monwealth and the States. The State provides the State Courts and prisons for its own purposes, and makes them available for certain Commonwealth purposes in pursuance of its obligations under the Constitution.

Between the States and the Commonwealth-both of whom represent the same people-there is a distribution of functions and a distribution of burdens; and it appears to me that the suggestion that the adjustment as regards this particular matter is inequitable arises from the error of isolating this particular service and not including it in a general survey of the Federal system as a whole.

[Vol. 10, p. 125]

(1)Openion No.433.

(2)Surplus Revenue Act 1910.

* See also Openions Nos 479,798.