The Secretary to the Treasury has asked for advice with regard to the question raised by the Crown Solicitor in his opinion of 25 October 1917, as to the validity under the Constitution of the procedure adopted with respect to the payment of costs in connection with prosecutions in Tasmania of offences against the Commonwealth Electoral Act and the Defence Act punishable summarily.

The Magistrates Summary Procedure Act (19 Vic. No. 8) [1855] of Tasmania, section 31, provides for the fixing of fees which Clerks of the Peace and other officers are entitled to charge in respect of particular acts or things done or required to be done in connection with proceedings before the court or the institution of such proceedings. Section 32 provides that a Justice or Clerk of the Peace may refuse to do any act or thing in respect of which any fee is payable until the fee has been paid.

Section 33 provides for the payment of the fee by the party on whose behalf or at whose instance the particular act or thing is done or required to be done, but that the Justice may order the defendant to repay the fee to that party. Section 68 of the Judiciary Act 1903-1915 provides that:

The laws of each State respecting the arrest and custody of offenders or persons charged with offences, and the procedure for-

(a) their summary conviction; . . .
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shall apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth committed within that State, or whose trial for offences committed elsewhere may lawfully be held therein.

The payment of fees under the Magistrates Summary Procedure Act is, I think, part of the procedure for the summary conviction of persons charged with offences and is therefore applicable to the case of persons charged in Tasmanian courts with Commonwealth offences.

The Commonwealth is, therefore, in my opinion, liable to pay such fees as are fixed for any particular acts which it requires to be done in connection with the trial of such offences.

I am, however, of opinion that there is nothing in the Judiciary Act or the Magistrates Summary Procedure Act to prevent an arrangement being made with regard to the payment of the fees in such manner as will suit the convenience of the Commonwealth and State authorities.

If these fees are paid in the first instance by the Commonwealth, and the Commonwealth recovers them, the recovery is virtually a reimbursement of expenditure incurred. But if the fees are not paid in the first instance by the Commonwealth but are recovered by the State authorities direct from the defendant, they are not revenues or moneys raised or received by the Executive Government of the Commonwealth within the meaning of section 81 of the Constitution, and I do not think the State authorities are under any obligation to refund them to the Commonwealth.

[Vol. 16, p. 197]