I have been asked by Brigadier-General Bridges to state in writing the opinion given by me verbally a few days ago to Major White and Major Glassford on the subject of the application of the Army Act to the Australian Expeditionary Force-(a) previous to embarkation, and (b) from the time of embarkation until return to Australia.

1. Previous to embarkation

The soldiers of the expeditionary force are bound to continuous military service for a term and are therefore part of the Permanent Military Forces of the Commonwealth (Defence Act, section 31). I assume that the officers are appointed to be officers of the Permanent Military Forces.

The force is now on military service in time of war, and is therefore on active service (Defence Act, section 4).

It is therefore subject to the Army Act, save so far as it is inconsistent with the Defence Act (Defence Act, section 55).

2. From the time of embarkation until return to Australia

From the time of embarkation until return to Australia, the Expeditionary Force is subject to the Army Act without qualification. See Army Act, section 177, and Defence Act, section 54A; and my opinion of 11 August 1914.⁽¹⁾

My attention has been called to section 188 of the Army Act, and the note thereon in the Manual of Military Law, 1914 edn p. 552.

That section provides that:

Where a person subject to military law is on board a ship, this Act shall apply until he arrives at the port of disembarkation in like manner as if he and the officers in command of him were on land at the place at which he embarked on board the said ship,

subject to a certain proviso.

The question has been raised whether this section in any way cuts down the unqualified application of the Army Act under section 54A of the Defence Act.

In my opinion it does not. The object of section 188 of the Army Act was to extend the application of the Army Act to cases in which it might not be clear otherwise that it would apply.

Where, in virtue of section 177 of the Army Act, the Army Act is applied by a law of a Dominion to a force dispatched from the Dominion, section 188 of the Army Act does not in any way modify the application of the Act. Section 188 therefore does not affect my opinion of 11 August.

[Vol.13,p.25]

(1)Opinion No. 545.