Opinion Number. 436

Subject

DEFENCE FORCES WHETHER OFFICER COMMANDING ANY CORPS OR SHIP' INCLUDES COMMANDING OFFICERS AND OFFICERS UPON WHOM COMMAND DEVOLVES

Key Legislation

DEFENCE ACT 1903-1911, s. 108

Date
Client
The Secretary, Department of Defence

Two questions are raised on the file:

  1. The power to make regulations depending upon the meaning of the words 'the officer commanding any corps or ship' in section 108 of the Defence Act; and
  2. The meaning of 'Commanding Officer' in the regulations.

I agree with the Crown Solicitor that under the Act the regulations cannot confer authority to punish on anyone but 'the officer commanding any corps or ship'.

But I do not think that in order to be a commanding officer within the meaning of section 108 or the regulations an officer need be specifically appointed to be Commanding Officer. In my opinion any officer actually in command of a corps or ship is a Commanding Officer and can exercise the powers of punishment under that section if so authorised by the regulations, whether he holds the command by virtue of his office or it devolves upon him by reason of circumstances. For instance if the regulations authorised the officer in command of a ship to exercise powers and punishments, a subaltern upon whom the command devolved by reason of the death of the Commander could exercise those powers without any special appointment.

'Corps' is not defined in the Defence Act; but in my opinion it would extend to any unit which in the ordinary military sense could be called a corps, such as a company or detachment, acting independently under the command of an officer.

I am at present inclined to think that paragraphs 279 to 282 of the Commonwealth

Military Regulations do not extend the definition of 'officer commanding a corps' further than is warranted by section 108 of the Act; but until some particular case arises in which the validity of those paragraphs is challenged it is not necessary to advise definitely on that question.

[Vol. 9, p. 370]