DEFENCE COMPLAINT BY DEFENCE MEMBER TO ‘GOVERNOR-GENERAL AS COMMANDER-IN-CHIEF’: WHETHER function CONFERRED ON GOVERNOR-GENERAL requires exercise of executive power and accordingly IS A matter in respect of which GOVERNOR-GENERAL should obtain advice of Executive Council
Australian Military Regulations reg 194(4): Defence Act 1903: Constitution ss
The Secretary, Department of Defence has forwarded me the following memorandum for advice:
A claim was recently made by an officer of the Permanent Military Forces returning to Australia from Exchange duty in India for travelling allowance for a period of 14 days during which he was detained at Singapore owing to a shipping accident. The officer’s claim was considered by the Military Board which recommended–the Finance Member dissenting–that the claim be paid. The Minister to whom the matter was submitted for decision concurred in the views of the Finance Member of the Military Board and disallowed the claim.
The officer in question has now submitted a complaint for reference to the Governor-General as Commander-in-Chief in accordance with Australian Military Regulation 194(4) (S.R.1927 No.149).
It is noted that under section 68 of the Constitution Act the command in chief of the Naval and Military Forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.
Section 17(f) of the Acts Interpretation Act 1901 states that ‘The Governor-General’ shall mean the Governor-General of the Commonwealth, or the person for the time being administering the government of the Commonwealth, acting with the advice of the Executive Council.
As the Acts Interpretation Act applies to the Defence Act 1903–27 under which Statutory Rule 149/1927 was made it is assumed that submission of a complaint by a member of the Permanent Military Forces to the Governor-General means to the Governor-General in Council. Advice on this point and as to the method of approach to the Governor-General would be appreciated.
I should be glad to be advised also whether the Governor-General as Commander-in-Chief under section 68 of the Constitution Act is to be regarded as the Governor-General in Council, vide section 17(f) of the Acts Interpretation Act.
Sub-regulation (4) of regulation 194 of the Australian Military Regulations is as follows:
If an officer or soldier is dissatisfied with the decision of the Military Board he may require that his complaint be referred to the Governor-General as Commander-in-Chief.
The Acts Interpretation Act provides by section 17 that where in any Act the expression Governor-General is used that expression shall, unless the contrary intention appears be considered as a reference to the Governor-General acting with the advice of the Executive Council. That definition is applicable to the Defence Act by virtue of section 32 of the Acts Interpretation Act and is also applicable to the regulation made under the Defence Act. The question to be decided is whether in the construction of Regulation 194 the contrary intention is established to the effect that the Governor-General acts upon his own discretion and without the advice of the Federal Executive Council.
Section 68 of the Constitution provides that the Command in Chief of the Naval and Military Forces of the Commonwealth is vested in the Governor-General as the Queen’s representative. It would appear that in dealing with the complaints under Regulation 194 the Governor-General is exercising part of his function as Commander-in-Chief as conferred by section 68. It will be noted of course that the Acts Interpretation Act has no effect upon the construction of the Constitution. In Moore’s Commonwealth of Australia, page 163, it is stated in reference to section 68 that ‘the power is essentially executive and belongs to the prerogative. But it is from its very nature exclusive, and it is probably a safe general conclusion that the object of the express grant of powers to the Governor-General or the Governor-General in Council as distinguished from the general grant to the King was to indicate that the power was exercisable through the authority designated alone.’
In Quick and Garran’s Annotated Constitution, page 713, the following note appears:
The command-in-chief of the naval and military forces of the Commonwealth is, in accordance with constitutional usage, vested in the Governor-General as the Queen’s representative. This is one of the oldest and most honoured prerogatives of the Crown, but it is now exercised in a constitutional manner. The Governor-General could not wield more authority in the naval and military business of the country than he could in routine work of any other local department. Of what use would be the command without the grant of the supplies necessary for its execution? All matters, therefore, relating to the disposition and management of the federal forces will be regulated by the Governor-General with the advice of his Ministry having the confidence of Parliament.
Section 61 of the Constitution vests the executive power of the Commonwealth in the Queen and makes it exercisable by the Governor-General as the Queen’s representative. It will be seen that language used in section 61 is similar to that used in section 68. Immediately following section 61 there is a provision for the Federal Executive Council to advise the Governor-General in the government of the Commonwealth.
Even assuming that the function exercisable by the Governor-General under regulation 194 is one conferred on him by virtue of the office of Commander-in-Chief which he holds under section 68 of the Constitution, that function in my opinion requires the exercise of the executive power and is accordingly a matter in respect of which he should obtain the advice of the Executive Council.
[Vol. 23, p. 545]