Opinion Number. 1121



Key Legislation

CONSTITUTION, ss. 2, 68: ARMY ACT (IMP.), s. 122: KING'S REGULATIONS (IMP.), paragraph 519

The Secretary to the Federal Executive Council

In reply to your letter of 25 August I desire to inform you that I have considered the question whether the Commission of Sir William Irvine as Deputy of the Governor-General is sufficient authority for him to sign the Orders for the return of deserting British soldiers to Singapore.

In my opinion, having regard to the provisions of sections 2 and 68 of the Constitution, the first paragraph of the Letters Patent constituting the office of Governor-General, and the provisions of section 122 of the Army Act, and the fact that the Governor-General is a qualified officer under that section and holds a warrant under that section, and paragraph 519 of the King's Regulations, it would be competent for the Governor-General to sign the Orders in question.

Paragraph 519 of the King's Regulations is as follows:

At a station abroad, when there is no doubt as to the identity of the soldier, he should be removed as soon as possible to his unit, if serving at the station, and there dealt with for his offence; but if, where a person in custody has been committed as a deserter on his own confession, the confession is false, and evidence to prove the falsity is available, he should not be removed from prison, but be proceeded against under Section 152 of the Army Act. Where the confession appears to be true, but no sufficient evidence is immediately available, the officer having power to convene a court-martial to try the case may, at his discretion (i) order the man to serve as a soldier with some corps at the station, until evidence can be obtained; or (ii) send him to his corps under arrest; or (iii) if he is unfit for service as a soldier, or if for any other cause it is undesirable to retain him as a soldier, furnish him with a protecting certificate (A.F.B. 129), and discharge him from custody. But in case (iii) the decision must be arrived at either before the person committed is taken over into military custody, or at the latest before he performs military duty as a soldier. A medical examination should therefore, when possible, be made before receiving over the person, in order that the O.C. may be fully informed of the case.

As the issue of the Orders has been approved by the Federal Executive Council their signature by the Deputy of the Governor-General is valid in view of the provisions of paragraph (4) of the Commission issued to the Deputy.

I desire to point out however that I understand A. one of the persons mentioned in the Orders has escaped from custody, so that the first recital of the Order in his case is not correct. Under these circumstances possibly the Executive Council would not desire that the issue of that Order should be proceeded with at the present time.

[Vol. 18, p.12]