The following memorandum has been submitted to me by the Minister for Defence for advice:

The Australian T.B. Destroyers Parramatta and Yarra will be leaving England shortly on their voyage to Australia. Their crews consist largely of members of the Permanent Naval Forces of the Commonwealth, sent to England for the purpose. In addition certain men will be loaned from the Royal Navy.

The Minister will be glad to be informed whether the Defence Acts 1903-1904 apply, especially for purposes of discipline, to these Australians when outside Australian waters, and also to the men lent from the Royal Navy, provided that they have been sworn in under the Acts outside Australia.

Since the memorandum was received the following cablegram has been forwarded to me in connection with the matter:

After consultation with Admiralty it is considered that Commonwealth Defence Act and discipline does not apply to [sic] outside territorial waters and officers and men must proceed either under Merchant Shipping Act which raises difficulties as regards loan of men from Royal Navy or under naval discipline by Admiralty temporarily commissioning vessels as Royal Navy ships and officers and men undertaking to serve for voyage. Arrangements have been made for voyage Canadian cruisers to Canada. Decision on these matters urgent. Tickell⁽¹⁾ in favour of latter course. Admiralty enquire whether Commander would be placed in command of destroyers in Australia and suggest should go independently.

Under the Constitution the Parliament has power to make laws for the peace, order, and good government of the Commonwealth with respect to-

(vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth:

This power, in my opinion, implies power to pass laws having effect outside the territorial limits of the Commonwealth because the Naval Forces must necessarily go outside both for training and for general naval service. It is impossible to conceive of a naval force having power to operate only within territorial waters.

Under the Defence Act 1903-1909, which was passed in pursuance of the power above quoted, members of the Defence Force who are members of the Naval Forces may be required to serve either within or beyond the limits of the Commonwealth for the purpose of training, or in time of war for the defence and protection of the Commonwealth and of the several States (Defence Act 1903-1909, section 48).

The crews of the two T.B. Destroyers Parramatta and Yarra, so far as they consist of the Naval Forces of the Commonwealth, and whether they are serving voluntarily or compulsorily on those vessels, are in my opinion serving for the purpose of training notwithstanding that the purpose is also to bring the vessels to Australia.

I am of opinion therefore that the provisions of the Defence Act 1903-1909 will apply to the members of the Naval Forces who are so serving.

With regard to men who are lent by the Royal Navy, the question is more difficult.

The Defence Act 1903-1909 does not contain any direct provision for the enrolment outside Australia of men as members of either the Naval or Military Forces, and does not appear to have contemplated such enrolment.

But, assuming that it may be necessary for the Naval Forces to operate outside territorial waters, it may be equally as necessary to enrol men outside territorial waters.

I think, therefore, that if men voluntarily enlist outside Australia in any authorised naval force and take the oath of enlistment in any place where the enlistment and oath is not unlawful, they would be held to be subject to the Defence Act-at all events, when serving on a ship of the Commonwealth Naval Forces.

It is quite possible that enlistment and the taking of the oath of enlistment in any force other than a force authorised by the local law, is not lawful in Great Britain.

In view of the opinion of the Admiralty, and of the fact that certain men are to be lent from the Royal Navy, the commissioning of the vessels as Royal Navy ships is probably the best way out of the difficulty.

[Vol. 8, p. 93]

(1) Presumably Captain Frederick Tickell, Naval Commandant, Victorian State Division.