Opinion Number. 166



Key Legislation

DEFENCE ACT 1903. ss. 55.86,87.98.106 : ARMY ACT (IMP.), ss. 122,177

The Minister for Defence

The Minister for Defence:

With regard to the legal position of troops raised in the Commonwealth for service abroad with the Imperial Forces, the Minister for Defence asks to be advised upon the following questions:

  1. With regard to troops raised within the provisions of the Defence Act 1903-
    1. Would members of the Defence Forces volunteering to serve in a contingent raised by the Commonwealth Government to augment any of the King's Regular Forces abroad continue subject to this Commonwealth Act, No. 20 and to be also subject to the Army Act 'save so far as it is inconsistent with this Act'? Section 177 of the Army Act seems to provide this.
    2. If so, should they commit an offence while serving in such Forces how are they to be dealt with if required to be tried by court-martial, and how would the sentence of such court-martial be confirmed?
    3. Would the offender be liable to be tried for any offence under the Army Act for which offence there may be no provision in the Commonwealth Defence Act, and would he be liable to the punishments as provided under the Army Act for same?
    4. If so, then under section 98, would sentence of death passed by any court-martial have to be confirmed by the Governor-General before being carried into effect?
  2. With regard to troops raised outside the provisions of the Defence Act 1903 (i.e. raised under the Army Act)-
    1. In the event of members of the Forces volunteering to serve would they, for the time being, require to be discharged from the Defence Forces so far as to free them from the operation of the Commonwealth Defence Act?
    2. Would enrolment and the signing of an Attestation Form (as was done in the case of the Commonwealth contingents) be sufficient for their being properly and duly enlisted under the Army Act?
    3. What provisions could be made to meet cases (such as those quoted) of offences committed against the Army Act before troops leave the Commonwealth after having been enrolled, or during the time when they are returning after warlike operations have ceased, as it does not appear that there are any powers for convening or confirming courts-martial in such cases?

My opinion upon these questions is as follows:

    1. Yes. The Defence Act continues to extend to them by virtue of the first part of section 177 of the Army Act; and they are subject to the Army Act as follows-
      1. when serving with part of the King's Regular Forces-so far as the Commonwealth law has not provided for their government and discipline, and with such exceptions as are specified in general orders by the G.O.C. those Regular Forces (Army Act, section 177);
      2. while on active service-so far as not inconsistent with the Defence Act (Defence Act, section 55). This applies whether they are serving with Regular Forces or not-except that when so serving the application of the Defence Act may be limited as abovementioned by the G.O.C. the Regular Forces.
    2. Persons serving as members of the Defence Force abroad would be dealt with by court-martial under the Defence Act, and the sentence of the court-martial would be confirmed by the Governor-General or his delegate (sections 86, 87).
    3. Offenders would be liable to be tried for offences under the Army Act for which the Defence Act makes no provision, and be liable to the punishments provided by the Army Act, so far as it is not inconsistent with the Defence Act (e.g., section 98). See section 106.
    4. Yes-by the Governor-General or his delegate.
    1. I do not think that discharge from the Defence Force would be absolutely necessary, though it might be desirable. Persons enlisted under the Army Act, though they might also be members of the Defence Force, would not be subject to the Defence Act in respect to their engagement under the Army Act.
    2. Yes.
    3. No provision could be made by Commonwealth legislation. A court-martial could only be convened and its findings confirmed, by a qualified officer holding a warrant under section 122 of the Army Act. The Judge Advocate General in England appears to hold the view that such a warrant could not be issued to the Governor-General; but Mr Deakin has expressed a contrary opinion; see his opinion of 18 August 1902. (1)

[Vol. 4, p. 105]

(1) Opinion No. 87.