Opinion Number. 28



The Prime Minister

The confidential circular dispatch of the Right Honourable the Secretary of State for the Colonies states that His Majesty's Government have recently had under their consideration the question of the power of a Colonial Governor to pardon prisoners sentenced by courts-martial held within the limits of his colony; and that they are advised that the powers of pardon conferred by the Royal Instructions on the Governor-General do not apply to the cases of persons sentenced by courts-martial either military or naval.

I am asked by the Right Honourable the Prime Minister to advise:

  1. whether in my opinion the Governor-General's Instructions apply to sentences of courts-martial passed on members of the military and naval forces of the Commonwealth;
  2. whether the dispatch of the Secretary of State means that the State Governors, who have now no military status, and not the Governor-General whom the Constitution makes the Commander-in-Chief, are to have the power of pardoning members of the Commonwealth forces sentenced by court-martial.
  1. By Clause 8 of the Royal Instructions, His Majesty authorises the Governor-General-

    when any crime or offence against the laws of Our Commonwealth has been committed for which the offender may be tried within Our said Commonwealth ... to grant to any offender convicted of any such crime or offence in any Court, or before any Judge, Justice, or Magistrate, within Our said Commonwealth, a pardon.

    I can see no reason for supposing that this power of pardoning offenders does not extend to members of the naval and military forces of the Commonwealth sentenced by court-martial for offences against the laws of the Commonwealth.

    The dispatch of the Secretary of State appears to indicate that His Majesty's Government have been advised otherwise; but it is possible, as suggested by Mr Hunt(1), that the opinion refers only to members of the Imperial Forces, or to colonial troops serving with the Imperial Forces. I would suggest that the Secretary of State be asked to forward a copy of the opinion, or at least a definite statement of its scope and of the grounds on which it was based.

  2. I do not think that the dispatch will bear this construction. The statement that the question under consideration has been as to 'the power of a Colonial Governor' seems to indicate that the question was as to the powers of Colonial Governors generally, and not as to the respective powers of the Governor-General and of the State Governors in Australia.

[Vol. 1, p. 208]

(1) Atlee Arthur Hunt, Secretary, Department of External Affairs.