The Secretary, Department of Defence, has forwarded, for advice as to whether it is in order, the following proposed amendment of the Commonwealth Military Regulations:

If, in the opinion of the Minister, any member of the Defence Force is or has been negligent or careless in the discharge of his duties, or by his neglect, default, carelessness, non-observance of regulations or incapacity in the discharge of his duties, has caused a loss to the public of any money or goods, and if, in the opinion of the Minister, such member has not in respect of such carelessness, neglect, default, non-observance of regulations or incapacity, committed an offence against the Act or regulations for which he is triable by court-martial, the Minister may, after calling upon such member for an explanation in writing and duly considering such explanation-

1. caution or reprimand such member; or
2. impose upon such member a fine not exceeding Twenty pounds; or
3. order such member to pay to the Department the value of the money or goods, the loss of which was caused by such member's neglect, default, carelessness, non-observance of regulations or incapacity in the discharge of his duties.

2. Any fine inflicted or sum of money ordered to be paid in pursuance of this regulation may be deducted from any pay or other moneys due to the member.

Section 101 of the Defence Act 1903-1915 provides that: 'All offences against this Act, other than indictable offences, shall be punishable on summary conviction'.

Section 102 provides that: 'Any member of the Defence Force charged with any offence against this Act may be tried and punished either by court-martial or by a civil court'.

Section 108 confers on commanding officers a limited power of inflicting summary punishment on members of their corps.

Section 4 provides that: ' "This Act"-Includes all regulations made under this Act'.

It will be seen that the above sections either provide for, or enable regulations to be made for, the punishment in a particular manner of offences against the Act.

The proposed amendment of the Commonwealth Military Regulations provides for what is really punishment in another manner, namely, by the Minister, of members of the Defence Force who in certain cases cause or have caused a loss to the public of any money or goods. The causing of loss to the public is, however, not declared to be an offence.

In my opinion the proposed amendment is inconsistent with the intention of sections 101,102 and 108 of the Act.

I think, however, that a regulation making the causing of loss to a comrade, officer, any regimental mess or bond, any regimental institution or the Government of any money or goods by neglect, default etc. an offence against the Act and punishable as such would be in order.

A draft amendment is forwarded herewith for your consideration.⁽¹⁾

[Vol. 14, p. 79]

(1)Draft amending regulation, implementing Mr Garran's suggestion, omitted.