I refer to your memorandum, dated 17th April, 1950, requesting advice whether the offence of murder committed by two ex-Naval ratings in one of H.M.A. Ships in extra-territorial waters, for which they were convicted by a court martial, could be regarded as one against ‘military law’ within the meaning of War Cabinet decision of 13th November, 1942.

(2)  The claims made by the State of New South Wales relate, I presume, to the cases of Edward Joseph Elias and Albert Ronald Gordon, who were convicted of murder by a court martial and sentenced to death under section 45 of the Naval Discipline Act 1866 (Imperial). If this be so, I think that the offence should be regarded as falling within the War Cabinet decision and, accordingly, maintenance at the rate of 5/- per day is payable to the State in respect of each of these prisoners.

(3)  In construing the words ‘military law’ as used in the War Cabinet decision one should not, I think, look upon them in the same light as would be done in interpreting a statute. Rather they should be given a meaning which will achieve the purpose intended by Cabinet. It is apparent from your file of papers that the early discussions on the matter were not taken as being concerned with ‘military’ offences in the strict sense. Indeed, in his minute of October, 1942, the then Treasurer expressed the view that ‘some payment should be made to the States for rendering this service in respect of “Service” prisoners’.

(4)  The Defence Division has given an opinion as to the extent of the decision and in practice offenders in all three services convicted by court martial appear to have been regarded as being within the terms of the decision. I think that view is a reasonable one. It would be far too technical to construe the decision in a manner which would exclude the cases of Elias and Gordon from its operation.

[Vol. 39, p. 133]