Following on the opinion given by me on 26 June last⁽¹⁾, relative to the noncompliance by persons employed in the Commonwealth Public Service with the requirements of the universal training provisions of the Defence Act, the Commissioner desires further advice as to whether in view of the inconvenience caused Departments by the enforced absence of officers through neglect to comply with the provisions of the Defence Act relative to military training such officers could not be brought within the punitive provisions of the Public Service Act if an addition were made to Public Service Regulation 13 in the following terms:

In any case where an officer's absence from duty is due to failure to comply with the provisions of sections 125 to 127 of the Defence Act 1903-1910 and to action taken thereunder, such cause of absence shall not be regarded as a reasonable cause within the meaning of this regulation.

The proposed amendment in my opinion is open to at least three objections:

1. It creates an undesirable legal fiction in that it provides in effect that an officer's absence under compulsion of law is not absence for a reasonable cause;
2. It is opposed in spirit to the provisions of section 134 of the Defence Act; and
3. It offends against the well-known maxim of law nemo debet bis vexari pro una et eadem causa.

As regards the first objection, compulsion of law is none the less a reasonable cause for absence because the compulsion was due to the officer's own default. The default having been committed and the officer having been detained, it is impossible for him to attend at the office; and to say that impossibility is not a reasonable excuse is obviously a fiction.

As regards the second objection, section 134 (1) of the Defence Act provides that: 'No employer shall ... in any way penalize or prejudice in his employment . . . any employee for rendering or being liable to render' the personal service required of him.

The scheme of section 135 and subsequent sections of the Act is by detention in the custody of a prescribed authority to compel the persons who are liable to render personal service under the Act to render that service, and when a person is so detained he is for all practical purposes rendering under compulsion the personal service required by the Act, with perhaps extra service on account of his not having rendered the service voluntarily in the first place.

If therefore a private employer imposed a fine or other penalty on an employee in consequence of the latter having been so detained, the employer would probably be guilty of an offence against the provisions of section 134 of the Defence Act.

Although section 134 is not expressed to bind the Crown, yet I apprehend that in its relations with its employees the Commonwealth should assume the role of a model employer, and should not impose upon its employees conditions which would constitute an offence against Commonwealth law if imposed by a private employer.

As regards the third objection, the Defence Act has provided a penalty for failure to render service. That being so, the imposition of an additional penalty upon a person who, being a Commonwealth public servant, requires to absent himself from his office in order to carry out the penalty imposed on him under the Defence Act, appears to me to contravene the spirit of the maxim above set out. The punishment would purport to be for the offence of being absent without leave; it would really be an additional punishment for failing to render service.

For these reasons, I think that while there is perhaps power under the Public Service Act to make a regulation such as that now suggested, the making of such a regulation is open to grave objection.

[Vol.13, p.338]

(1) Not published in Vol. 1; the openion is dated 23, not 26, june 1914