NAVAL FORCES OF COMMONWEALTH
WHETHER CERTAIN POWERS OF PUNISHMENT ARE TO BE GOVERNED BY IMPERIAL OR BY COMMONWEALTH LEGISLATION: DIFFERENTIATION BETWEEN APPLYING IMPERIAL LEGISLATION TO NAVAL FORCES AND PROVIDING FOR COMMONWEALTH LEGISLATION CONTINUING TO APPLY IN RELATION TO NAVAL FORCES
DEFENCE ACT 1903, s. 108: NAVAL DEFENCE ACT 1910, ss. 5, 36: NAVAL DISCIPLINE ACT (IMP.), s. 56: NAVAL DISCIPLINE (DOMINION NAVAL FORCES) ACT 1911 (IMP.)
The following memorandum has been submitted to me for advice:
Referring to your minute of 6 September 1920, forwarding an opinion by the Crown Solicitor regarding charges against Leading Seaman A.B.C, H.M.A.S. Cerberus, I am commanded by the Naval Board to draw your attention to the suggestion of the Crown Solicitor, contained in the third paragraph, page 3, of his opinion, that there may be some want of consistency between section 108 of the Defence Act and section 56 of the Naval Discipline Act, as applicable to the Naval Forces under section 36 of the Naval Defence Act.
- I am to observe that the matter would appear to depend upon the question whether section 36 of the Naval Defence Act 1910-1918 governs section 5 of the same Act, or vice versa.
Section 36 applies to the Commonwealth Naval Forces, subject to this (i.e. the Naval Defence) Act, the Naval Discipline Acts and the King's Regulations. Section 5 of the Naval Defence Act applies to the Naval Forces, subject also to this (i.e. the Naval Defence) Act, certain sections of the Defence Act, some of which are in conflict with the Naval Discipline Act.
- The Naval Board have heretofore read section 36 of the Naval Defence Act as applying to the Commonwealth Naval Forces the Imperial code of naval discipline, as modified by the terms of the Naval Discipline (Dominion Naval Forces) Act 1911, in its entirety, the provisions of the Defence Act only applying where they are not in conflict with same. In this reading the Board is acting on the advice furnished by the Crown Law Officers in 1912.
- I am to request that the Naval Board may be furnished with further advice in regard to the suggestion by the Crown Solicitor that the legal position is not clearly defined.
The effect of section 36 of the Naval Defence Act is to incorporate with that Act the Naval Discipline Act except so far as it is inconsistent with the Naval Defence Act, while the effect of section 5 of that Act is merely to continue the application in relation to the Naval Forces, subject to the Naval Defence Act but not as part of that Act, of certain sections of the Defence Act.
I am, therefore, of opinion that, in the event of inconsistency between the provisions of the Defence Act which continue to apply by section 5 and the provisions of the Naval Discipline Act which are applied by section 36, the latter will prevail.
[Vol. 17,p.76]