The Secretary, Department of Defence Co-ordination has forwarded to me for advice the following memorandum:

With reference to your memorandum of the 18th December, the attached statement shows the further action taken in this Department in connexion with this matter up to the present date, and, before the subject is re-submitted for the consideration of the War Cabinet, it is considered necessary that an opinion should be given by your Department as to whether a similar instruction to that issued by the Army Council in the United Kingdom could legally be given in Australia under existing circumstances–vide the last paragraph of the
attached statement.

It would be greatly appreciated if advice could be forwarded accordingly at the earliest possible date.

The Army Council Instruction referred to–No. 241 of 1940, dated 14th March, 1940, reads as follows:

Special Orders for Sentries Guarding Vulnerable Points.

1. Questions have been raised as to the duties and responsibilities of armed sentries guarding vulnerable points, and in order to remove any possible misunderstanding as to their position, it has been decided that all orders for sentries guarding vulnerable points will be amended forthwith to include orders to the following effect:
1. Any person approaching a post will be challenged–

‘HALT WHO GOES THERE’

The sentry must be perfectly certain that his challenge is given in the loudest possible manner–so that even those who may be dull of hearing can have a chance of responding:

‘FRIEND’

2. If a person who is challenged in this way does not halt, he will then be challenged again by the Sentry–

‘HALT OR I FIRE’

3. If a person does not halt after this warning, he will be challenged once again in the same manner. If he does not halt, and if no means are available to stop him, it is then the duty of the sentry to use his rifle and shoot–aiming low to hit but not to kill. The sentry must remember that it is his duty to stop a person from advancing further should he fail to respond to the challenge and warning.
4. If a person can be stopped in any other way, for example, by calling to the guard to assist, then the sentry will not shoot. The sentry must use his intelligence and sense of responsibility as to whether he will shoot or not.
5. At night or in a thick fog, a sentry must not allow himself to be rushed and he must be well on the alert, more so than in daylight, and ready to take such action as is necessary to prevent any person who refuses to respond to his challenge and warning from approaching his sentry post further.
2. Os. C. units or stations who are responsible for issuing orders to sentries guarding vulnerable points will take immediate action to comply with these instructions.

The last paragraph of the statement attached to the memorandum from the Secretary, Department of Defence Co-ordination, is as follows:

It is desired to know if, without making any special legislation on the subject, it is competent for the War Cabinet to approve and the Military Board to issue an instruction, under Regulation 27(1) or other regulation of the Australian Military Regulations, to Army Commands of the nature of the Army Council Instruction No. 241 of 1940.

Sub-regulation (1) of regulation 27 of the Australian Military Regulations is as follows:

27.(1) Subject to the provisions of these and any other regulations made under the D.A., the Military Board is charged with the control and administration of all matters relating to the Military Forces, in accordance with the policy directed by the Minister.

In my opinion, the Military Board is authorized by this regulation to issue orders and instructions to officers and soldiers as to their duties and responsibilities, subject to the condition that they do not conflict with any provision of the Defence Act 1903–1939 or any regulations made under that Act, and also to the condition, necessarily implied, that all such instructions are lawful. That is to say, any such instruction must not only be consistent with, and within the sphere denoted by, the Act and the regulations, but also, in my view, must not be in itself in contravention of any law (including any State law) which is not overridden by Commonwealth law in relation to its application to the forces and the members thereof. In addition any such instruction may not require anything to be done in contravention of any such law.

I am not aware whether the expression ‘vulnerable points’ occurring in the Army Council Instruction regarding the duties and responsibilities of sentries is an expression with a defined meaning or is simply a descriptive term. It seems reasonable to assume that any places in Australia which warrant the description of ‘vulnerable points’ and are guarded by sentries are places or premises to which the provisions of regulations 4 to 7 of the National Security (General) Regulations apply or may be applied.

Section 13 of the National Security Act provides, inter alia, that any person who is found committing an offence against the Act, or who is suspected of having committed, or of being about to commit, such an offence, may be arrested without warrant by a member of the Defence Force acting in the course of his duty as such. The section also provides that a person arrested shall, if not charged within ten days, be released, and, if charged, shall be dealt with according to law.

For the Military Board to authorize sentries to fire, after due warning, upon persons committing, suspected of having committed, or of being about to commit an offence against the National Security Act would amount, in my opinion, to authorizing sentries to exercise powers in excess of the powers conferred upon them by that Act in relation to any such offence. In my view also, regulation 27(1) of the Australian Military Regulations cannot be construed as empowering the issue by the Military Board of any such order or instruction. I know of no other Act or regulation which would authorize the issue of such an order or instruction.

In furnishing this opinion I desire it to be understood that my views are not to be construed as applying to any question of the legality of the Army Council Instruction. In this connexion, it is observed that the Instruction appears primarily to relate to action by sentries in the face of suspected enemy invaders or enemy agents, and the High Commissioner has advised that British civilians have received due warning. As an actual state of aerial war exists within the limits of the United Kingdom and invasion is apprehended, the element of necessity governing military action to meet the situation there would differ from that governing military action in the situation existing in Australia. In the event of the death of a British civilian resulting from the action of a sentry, these factors would presumably receive the consideration of a court called upon to determine the matter of justification.

[Vol. 33, p. 323]