The Secretary, Department of Defence, has forwarded for advice a memorandum by the General Officer Commanding the Australian Imperial Force, as follows:

As the Australian Imperial Force will, at all events from the date of embarkation from Australia, be subject to the Army Act, it would appear necessary that the senior combatant officer on board each ship on which the troops are embarked should be granted a warrant empowering him to convene and confirm district courts-martial held for the trial of a person under his command subject to the Army Act.

From Note 3 to section 122 of the Army Act on page 492 of the Manual of Military Law, 1914, it would seem that the Governor-General holds a warrant to convene and confirm general courts-martial under the Army Act, and that by Note 5 on the same page he can issue a warrant to the senior combatant officer' on each ship to convene and confirm district courts-martial.

Recommend that this be referred to the Crown Law Authorities for opinion as to the issue of the warrants, and if they may be issued, the preparation of the warrants.

A copy of Army Form A5 referred to in Note 5 of the Manual of Military Law above mentioned is enclosed.

In opinions dated 2 June 1902⁽¹⁾ and 18 August 1902⁽²⁾ Mr Attorney-General Deakin advised that the Governor-General was a 'qualified officer' within the meaning of section 122 of the Imperial Army Act.

Subsequently a warrant was issued to the Governor-General empowering him to convene general courts-martial.

By section 123 of the Army Act any officer or person authorised to convene general courts-martial may empower any person under his command not below the rank of Captain to convene a district court-martial for the trial under that Act of any person under the command of such last-mentioned officer who is subject to military law.

I am therefore of opinion that the Governor-General has power to issue a warrant to the senior combatant officer on board each ship on which the members of the Australian Imperial Forces are embarked empowering such officer to convene and confirm district courts-martial for the trial of any persons under their command subject to the Army Act.

I enclose herewith draft form of warrant⁽³⁾, which has, in accordance with Note 5 to the Army Act (Manual of Military Law, 1914, p. 493) been limited in its operation to the period of the voyage.

[Vol.13,p.36]

(1)Opinion No. 68.

(2)Opinion No. 87.

(3)Draft form not in Opinion Book.