The Secretary, Department of Defence:

The Secretary, Department of Defence, has forwarded, for advice, the following memorandum:

The following is a copy of a report received from the Commandant, lst Military District:

In connection with prosecutions of senior cadets for failure to carry out their training, it is reported that of a number prosecuted in Rockhampton the majority have had to be detained for home detention as the Police Magistrate refuses to commit trainees under the age of seventeen years to detention at Lytton or where they will be absent from home over night.

(2) Section l35C of the Defence Act gives jurisdiction to Children’s Courts in the matter, while section 6 of the Children's Courts Act I907 limits punishment of children to -

1. Admonishing;
2. Probation

The Magistrate when approached on the matter stated that many Magistrates refused to commit to home detention even, but that he was prepared to do so until threatened with a quashing order, and bases his right to commit to home detention upon section 24 of the State Children Act I911.

(3) In accordance with the provisions of the two Acts mentioned it would appear that trainees in their lst, 2nd and 3rd years, may apparently ?out the Defence Act with impunity, and it is requested that an opinion may be obtained from the Commonwealth Attorney-General as to whether Police Magistrates in Queensland can commit lads tried in the Children’s Court into detention either at
Lytton or home centre. If this cannot be done it would appear that some amendment may be made whereby lads under the age of seventeen years could be committed to such detention.

I would be glad to be informed as to the position of the Department in the matter of punishing senior cadets in Queensland under seventeen years of age who fail to render the personal service required by the Defence Act.

Sub-sections (1), (IA) and (4) of section 135 of the Defence Act 1903-1917 provide as follows:

(1) Every person who in any year, without lawful excuse, evades or fails to render the personal service required by this Part shall be guilty of an offence, and shall, in addition to the liability under section one hundred and thirty-three of this Act, be liable to a penalty not exceeding One hundred pounds.

(1A) Every person who, being a person liable to training under this Part-

1. fails, without lawful excuse, to attend a compulsory drill, or
2. commits a breach of discipline while on parade, shall be guilty of an offence and shall, in addition to any liability under section one hundred and thirty-three of this Act, be liable to a penalty not exceeding Five pounds.

(4) In addition to any penalty imposed, or (where the Court is of opinion that the imposition of a penalty would involve undue hardship) in lieu of imposing any penalty, the Court may, if it thinks ?t, commit the offender to con?nement in the custody of any prescribed authority for such time not exceeding twenty days, as it thinks ?t, or for a time corresponding in duration to the time which, in the opinion of the Court, would be taken up in rendering the personal service required.

Section 135C of the Act provides that:

In places where Children’s Courts exist, offences against this Act committed by cadets under the age of seventeen years shall be prosecuted in such Courts as far as is reasonably practicable.

Under these provisions then the Court has power to commit the offender to con?nement in the custody of any prescribed authority, but when the trainee is under the age of seventeen years the Court should, as far as practicable, be a Children’s Court.

Section 6 of the Cht'ldren’s Courts Act 1907 of Queensland provides, inter alia, that notwithstanding the provisions of any law to the contrary, on the hearing of a charge against any child, it shall not be necessary for the Children’s Court, even if the Court considers the charge proved, to convict such child in respect thereof. It further provides that the Court in lieu of convicting the child may admonish him.

This provision does not, however, prevent the Court from convicting the child if it thinks ?t.

Section 24 of the State Children Act I911 of Queensland provides that if a child is convicted the Court shall not sentence the child to imprisonment but shall follow one of six courses of action laid down in the section.

This provision is, in my opinion, inconsistent with section 135 (4) of the Defence Act, which provides that in certain cases the Court may impose imprisonment. The object of section 135C was to specify the Court before which proceedings might be instituted in such cases, and not to substitute for the punishment laid down by the Defence Act the class of punishment to which the Court is by State law limited.

In my opinion, therefore, trainees under seventeen years of age in Queensland, who fail to render the personal service required by the Defence Act, may be committed, by Children’s Courts in Queensland, to con?nement in the custody of a prescribed authority.

[Vol. 15, p. 474]