The Secretary, Department of Defence, has forwarded the following case for opinion:

1. Section 116 of the Defence Act prescribes:

'116. Any member of the Defence Force sentenced to be imprisoned for any naval or military offence may, if the Governor-General by regulation or otherwise directs, be imprisoned in any place appointed by the Governor-General instead of in a prison'.

2. U.T. Regulation 117A (S.R. 134 of 15 May 1913) which was made in pursuance of section 116 of the Defence Act, provides that:

'Persons liable to be trained in the Citizen Forces, under Section 125 of the Defence Act, who are sentenced to imprisonment by a Court-martial or a Civil Court for offences against Parts XII and XIV of the Act, or who are awarded imprisonment in default of payment of a pecuniary penalty imposed for an offence against those parts of the Act, shall, in lieu of imprisonment in a civil gaol, be imprisoned in a detention barracks or other institution or place authorised in that behalf by these Regulations'.

3. Section 135 (8) of the Defence Act:

'(8) A person liable to be trained under the provisions of paragraphs (a) and (b) of section one hundred and twenty-five of this Act shall not be committed to gaol in default of payment of a pecuniary penalty imposed for an offence against the provisions of this section, but the Court may order that, in default of payment of the pecuniary penalty imposed, the person shall be committed to the custody of any prescribed authority for such time, not exceeding the time for which the Court could, but for this sub-section, have committed the person to gaol in default of payment of the pecuniary penalty imposed, as the Court thinks fit'.

With regard to (1) and (2), it has been contended that the failure of a member of the Defence Force (which under sections 30 and 32A of the Defence Act include those undergoing training under section 125 (c)) to pay the pecuniary penalty imposed for an offence against the Act, does not constitute a 'naval or military offence' within the meaning of section 116 of the Act, and that therefore that portion of Universal Training Regulation 117A which prescribes that:

'Persons . . . who are awarded imprisonment in default of payment of a pecuniary penalty imposed for an offence against those parts of the Act, shall, in lieu of imprisonment in a civil gaol, be imprisoned in a detention barracks or other institution or place authorised in that behalf by these Regulations'

is ultra vires, particularly as section 135 (8) of the Act specially limits detention, in lieu of payment of a pecuniary penalty, to Junior and Senior Cadets. Favour of advice as to this is requested.

In section 4 of the Act 'Naval or Military Offence' is defined to mean 'any offence against this Act, the Army Act, or the Naval Discipline Act'.

In my opinion a default imprisonment suffered by a member of the Defence Force for non-payment of a pecuniary penalty imposed for an offence against the Act cannot be regarded as a sentence of imprisonment for a naval or military offence within the meaning of section 4, and therefore it is not competent for the Governor-General by regulation or otherwise to direct the imprisonment of such a person in any place other than a prison.

Default imprisonment in connection with offences under the Defence Act is, as a general rule, governed by State law, except so far as exceptions are created by Commonwealth law. See Defence Act 1903-1912, section 135 (8).

[Vol. 12, p. 174]

(1)This opinion is unsigned in the Opinion Book, but it is attributed to Mr Garran.