Opinion Number. 498

Subject

FEDERAL JURISDICTION OF STATE COURTS WHETHER COMMONWEALTH HAS POWER TO REQUIRE STATES TO CREATE OR SPECIALLY CONSTITUTE COURTS TO DEAL WITH COMMONWEALTH CASES

Key Legislation

CONSTITUTION, s. 77

Date
Client
The Secretary, Prime Minister's Department

On 9 December 1911(1), I advised that fines under the Defence Act and Regulations belong to the Commonwealth and not to the States.

On 25 October 1912 the Military Commandant in Tasmania wrote a letter to the Secretary to the Tasmanian Crown Law Department as follows:

It has been brought to notice that the Police Magistrate who adjudicates at Beacons-field Court only proceeds there on rare occasions, and that unless there is a civil case to be heard will not attend there solely for the purpose of hearing cadet prosecutions. Assuming that my information is correct, I should be glad to know whether it would be possible for arrangements to be made for the Police Magistrate to proceed to Beaconsfield on occasions when he may be notified that such a case is pending.

I would point out that the present is a critical time for universal training, and that delays have a bad effect on discipline.

On 29 October 1912 the Premier of Tasmania wrote a letter to the Prime Minister, as follows:

In regard to the question of the cost of trial of offenders against Commonwealth laws, I have the honour to forward herewith a copy of a memorandum received by the Sec-retary of the Crown Law Department from the Commandant, Hobart.

2. This raises again part of the question dealt with by you in a letter dated 11 June addressed to the Premier of Western Australia, of which you were kind enough to forward me a copy.

3.1 think this case will show that no such general principle of'financial adjustment be-tween the Commonwealth and the States' can be read into the Constitution.

4. In the particular instance, I have instructed the Police Magistrate to visit Beacons-field, because I am desirous to assist as far as possible in rendering efficient the defence policy of Australia. This means that the State will have to pay travelling expenses, court costs, etc. on purely Federal business, whilst the fines imposed will go into your revenue. You will, I feel sure, recognise that this is unsound, and that unless arrangements are made to meet such cases, I cannot continue to instruct magistrates to put aside their local duties to wait upon the pleasure of the military authorities.

The matter was referred to the Department of Defence, and the following minute was placed on the file by the Adjutant-General:

As this letter from the Premier of Tasmania raises a question of constitutional policy between the Commonwealth and the States it is suggested that it be referred to the Attorney-General's Department.

The Commandant of the 6th Military District has been instructed however not to re-quest the Crown Law Department to make arrangements in future for the visit of a Police Magistrate, but that cases for prosecution must wait for the ordinary sittings of the Court, similar to the procedure in other States.

The file was then returned to the Prime Minister's Department, and the Secretary to that Department has forwarded it to me for advice.

Under Commonwealth law, State Courts of Summary Jurisdiction have been invested with Federal jurisdiction but require to be constituted by a Police, stipendiary,

or special magistrate, or magistrate specially authorised by the Governor-General in order to deal judicially with offences against Commonwealth law.

For the purposes of offences against State law, these Courts may in general be con-stituted by ordinary honorary magistrates.

I understand that the Premier of Tasmania takes up the position that the State is under no duty to make special provision for the constitution of any particular court to enable it to deal with Commonwealth cases, more especially as the fines go to the Com-monwealth, and that where the Commonwealth requires special provision to be made to deal with such cases some arrangement should be made by which the State will be reimbursed any expense to the State occasioned by special provision being made to constitute the court.

Where there is a State court qualified to deal with Commonwealth cases the Com-monwealth is undoubtedly entitled to take advantage of it, but the Commonwealth cannot in my opinion insist on the State creating any particular court or making special provision to enable any existing court to deal with Commonwealth cases.

The question whether the Commonwealth should, under the circumstances, make an arrangement to meet the expense incurred in specially constituting a court to deal with Commonwealth cases appears to me to be a question of policy. If such an ar-rangement were made as regards one State, it would probably have to be made as re-gards all the States.

Also, it would probably be found difficult to lay down a satisfactory working arrangement.

In this connection I desire to call attention to my previous opinion of 22 May 1912(2) in relation to the general question of the burden of expense in relation to the hearing of cases and detention of prisoners under Federal laws. The function of pro-viding and constituting the court is a State function and, although the Commonwealth may not be able to insist on any particular constitution being provided, the expenses in and incidental to the constitution of the court would be State expenditure.

I do not think that an arrangement would be desirable, and the difficulty could probably be got over better by specially authorising selected magistrates to deal with Commonwealth matters in cases where qualified State magistrates are not available for the purpose.

[Vol. 11, p. 83]

(1)Opinion No. 433.

(2)Opinion No. 452.