indictment. A modest penalty was imposed if prosecuted summarily, but if prosecuted upon indictment, the maximum penalty was "a fine of any amount or imprisonment for any term, or both". The consent of the Attorney-General or the Minister for Defence was required if an offence was to be prosecuted summarily. The second reading speech by the Prime Minister, Mr Menzies, made it clear that the legislation followed the model in the War Precautions Act "with which most honourable members are already familiar": Commonwealth, Parliamentary Debates, House of Representatives, 7 September 1939, 163 (Robert Menzies, Prime Minister).
8․ In 1941, the Defence Act was amended so as to insert s 73F. This was a penalty provision that related to offences against ss 73, 73A, 73B, 73C, 73D and 73E of the Act. Prior to the amendments, the offence under s 73A (as well as those against ss 73, 73B and 73C), if prosecuted upon indictment, had a maximum penalty of three years' imprisonment. Following the amendment, s 73F provided for a modest penalty if the offence was prosecuted summarily and, if prosecuted upon indictment, "a fine of any amount or imprisonment for any term, or both".
9․ While counsel for Mr McBride correctly pointed out that the National Security Act provision was designed to accommodate breaches of a wide variety of regulations, it is not correct to say that this fact should be used to qualify the significance of the unlimited sentence available under the Defence Act. Section 73F of the Defence Act related to six particular offences in the Act. Most of those involved fraud affecting matters relating to the war effort and it was to those provisions that the Minister for the Army referred in his second reading speech as "serious frauds". For example, s 73C made it an offence to provide food of a quality inferior to that specified in a contract to supply such food to the Commonwealth for use by the Defence Force. Section 73(3) related to obtaining pay belonging to another member of the Defence Force. Section 73A, while not involving what would be characterised as a "serious fraud" in the same way that the other offences might, is an offence provision which, by its terms, can obviously be very serious.
10․ The amendments made in 1941 involved a clear choice to dramatically increase the penalties for particular types of offending, including that under s 73A. Those penalties are to be contrasted with the penalties in other provisions, such as the penalties for resisting the draft (s 75) or refusing to take the required oath (s 76), which remained modest.
11․ Finally, it must be noted that each of the other offence provisions in relation to which the penalty provision, s 73F, applied (ss 73, 73B, 73C, 73D and 73E) were repealed in 2001. Section 73A was repealed and substituted so as to accommodate drafting more suitable for the application of the Criminal Code (Cth). This was done by the Defence Legislation
6
