The Secretary of the Department of Defence has forwarded the papers relating to field general courts-martial recently held at Rabaul in connection with five members of the Australian Naval and Military Expeditionary Force. The papers are accompanied by a submission from the Adjutant-General the following extract from which is relevant to the question referred for advice:

With regard to the sentences of penal servitude, it is recommended that the papers be referred to the Attorney-General's Department for advice as to whether a sentence of imprisonment with hard labour for the term specified in each case may be substituted for penal servitude which, it is understood, is not a punishment usually awarded in Australia for any criminal offence.

In each of the cases under consideration the sentence was imposed by a field general court-martial and subsequently confirmed by the Officer Commanding the Australian Naval and Military Expeditionary Force.

Section 57 (2) of the Army Act provides that where a sentence passed by a court-martial has been confirmed the authorities mentioned in that section shall have power to mitigate or remit the punishment thereby awarded, or to commute such punishment for any less punishment or punishments to which the offender might have been sentenced by the said court-martial. The authority mentioned in the case of persons undergoing sentences in any colony is 'the officer commanding the forces in that colony'.

I have already advised (vide opinion of 15 September 1914⁽¹⁾ with reference to the position of the Governor-General in relation to the convening of courts-martial under the Army Act) that the words in sub-section (6) of section 122 of the Army Act defining 'qualified officer' as including (inter alia) 'a Governor of any Colony on whom the command of any part of His Majesty's Forces may be conferred by His Majesty' apply to the titular commandership in chief of a Governor, and that therefore the Governor-General of the Commonwealth of Australia is included in section 122 of the Army Act. By a parity of reasoning the authority referred to in section 57 (2) of the Army Act as 'the officer commanding the forces in that colony' would in my opinion include the Governor-General of the Commonwealth of Australia.

Moreover it is specifically provided by section 86 of the Defence Act 1903-1911 that the Governor-General may approve, confirm, mitigate or remit the sentence of any court-martial, and section 88 of that Act provides that except so far as inconsistent with this Act the laws and regulations for the time being in force in relation to the composition, mode of procedure and powers of courts-martial in the King's Regular Forces shall apply to courts-martial under this Act in relation to the Military Forces of the Commonwealth.

I am, therefore, of opinion that the Governor-General may mitigate a sentence imposed by a field general court-martial at Rabaul upon a member of the Australian Naval and Military Expeditionary Force, and that by virtue of section 57 (2) of the Army Act the punishment of 'penal servitude' imposed by the said court-martial may be mitigated by the substitution of 'imprisonment with hard labour' for the term specified in each case.

[Vol.13,p.211]

(1)Opinion No. 560.