The Secretary, Department of Defence, has forwarded for advice a letter received from the General Officer Commanding the 1st Australian Division of the Expeditionary Forces, which reads as follows:

It will be seen from the enclosed papers that the Governor-General's warrant to convene and confirm courts-martial on officers and soldiers of the Australian Imperial Force is held to be valid only for the voyage from Australia.

Mr Garran informed me that he considered it, unlike those issued to officers commanding troops on transports, would be valid anywhere.

As a question of law affecting the powers of Dominion Governments is involved I think it is a matter which should be settled by constitutional authority, and I recommend therefore that it be brought forward for settlement at a convenient opportunity.

Attached to the letter is the following letter from Colonel C.B. Little, the Assistant Adjutant-General to the Imperial Forces in Egypt:

I think that in the absence of any further particulars, it must be assumed that the warrant issued to you comes within the provisions of section 122 Army Act, notes to paras 4 and 5.

In this case the warrant is legal only for the period of the voyage and becomes inoperative as soon as the troops reach the port of disembarkation.

The footnote at page 492, Manual of Military Law strengthens this opinion as it precludes a Governor from convening or confirming a court-martial held outside the territorial limits of the colony.

See also para. 21, Chapter 5, para. 38, M.M. Law.

I return your opinion.

(The opinion above referred to is an opinion given to General Bridges by Colonel McCay wherein the latter holds that General Bridges is an officer deriving authority immediately from His Majesty, and that his warrant is therefore quite valid.)

The following minute by the Adjutant-General accompanies the papers:

The attached letter from Major-General Bridges raises a question of great importance regarding the powers of a Dominion Government to control its troops while they are on service with the Imperial Forces outside Australia.

Section 177 of the Army Act permits of a colonial Act applying to the forces of a colony when such forces are serving beyond the limits of the colony.

Section 54A of the Defence Act provides that members of the Military Forces while serving with the Imperial Forces outside Australia shall be subject to the Army Act with such modifications and adaptations as are prescribed.

No modifications and adaptations have been prescribed by Regulation except as regards some matters of evidence before courts-martial.

The Australian Imperial Force while on service abroad would therefore appear to be subject to the Army Act exclusively if section 54A of the Defence Act can be taken to emancipate such force from the whole of the operations of the Defence Act while they are abroad.

There appears, however, to be some reason for a contention that while the members of the A.I.F. serving abroad are subject to the provisions of the Army Act the power given to the Governor-General by sections 86 and 87 of the Defence Act to convene courts-martial and to delegate such power should still hold good although in dealing with offences such courts-martial and the persons tried by them would be bound by the Army Act alone.

If this is not the case under the law as it exists at present it is considered that regulations should be issued to adapt the provisions of the Army Act accordingly.

As regards the warrant dated 24.9.1914 which was issued by the Governor-General to Major-General Bridges empowering him to convene and confirm general courts-martial this warrant was issued primarily by virtue of a warrant granted to the Governor-General by His Majesty in pursuance of the Army Act, but also, incidentally, by virtue of all other powers enabling the Governor-General to issue same.

This appears to indicate that apart from the warrant held by the Governor-General under the Army Act, he has a further power presumably under the Defence Act, to issue the warrant.

It is recommended that this matter be referred to the Attorney-General's Department for urgent advice as to whether the warrant issued to Major-General Bridges is now of any effect and, if not, whether after an adaptation of the Army Act by regulation a warrant could be issued which would be of effect in any part of the world and under every circumstance in which the Australian troops may be placed. Section 48 of the Army Act provides that:

48. The following rules are enacted with respect to general courts-martial and district courts-martial:

(1) A general court-martial shall be convened by His Majesty, or some officer deriving authority to convene a general court-martial immediately or mediately from His Majesty ...

By section 122, which, as Colonel McCay points out, is contained in a division headed Supplemental Provisions as to Courts-Martial, it is provided inter alia that His Majesty may, subject to the provisions of the Army Act, by warrant give a general authority to any qualified officer to convene general courts-martial for the trial under that Act of such persons subject to military law as may for the time being be under or within the territorial limits of his command, and to delegate such authority to a field officer.

The Governor-General is a qualified officer, a warrant in the terms of the preceding paragraph having been issued to him on 20 January 1908.

In my opinion it is extremely doubtful whether for the purpose of authorising officers to convene general courts-martial His Majesty has, as Colonel McCay contends, two separate and distinct powers, namely the power contained in section 48(1) of the Army Act, and that contained in section 122. In my opinion section 122 is to be regarded rather as an amplification of section 48-as showing in what manner His Majesty can exercise his powers under section 48 to confer on officers authority to convene general and other courts-martial.

I think, however, that the notes 4 and 5 to section 122 of the Army Act (Manual of Military Law, p. 493⁽¹⁾), upon which Colonel Little relies, must be regarded as being based merely upon the court-martial provisions of the Army Act, and not upon those provisions read in conjunction with section 177 of that Act and section 54A of the Commonwealth Defence Act.

By section 177 of the Army Act it is provided that:

177. Where any force of volunteers, or of militia, or any other force, is raised in India or in a colony, any law of India or the colony may extend to the officers, noncommissioned officers and men belonging to such force, whether within or without the limits of India or the colony; and any such law may apply, in relation to such force and to any officers, non-commissioned officers, and men thereof all or any of the provisions of this Act, subject to such adaptations, modifications and exceptions as may be specified in such law, and where so applied this Act shall have effect in relation to such force, subject to such adaptations, modifications and exceptions as aforesaid . . .

In pursuance of this provision section 54A makes members of the Military Forces voluntarily serving with the Imperial Forces outside Australia subject to the Army Act as if they were part of the Regular Forces, with such modifications and adaptations as are prescribed.

The warrant held by the Governor-General is a warrant to convene general courts-martial for the trial of persons subject to military law who are under or within the territorial limits of his command, or to delegate to any officer under his command, not below the degree of field officer, a general authority to convene general courts-martial for the trial of persons subject to military law who are for the time being under or within the territorial limits of his command.

The Governor-General has issued such a delegation to the General Officer Commanding the 1st Australian Division.

In view therefore of section 177 of the Army Act and section 54A of the Defence Act I am clearly of opinion that the warrant held by the Governor-General empowers him to delegate to a field officer under his command authority to convene general courts-martial for the purpose of trying members of the Commonwealth Forces who are under the command of that officer, irrespective of whether those Forces are serving within Australia, or without Australia with the Imperial Forces.

It is however in my opinion very advisable that any modifications or adaptations which are necessary or desirable to enable the Army Act to be applied to the Commonwealth Forces should be prescribed by regulation.

As regards the minute by the Adjutant-General-there is some doubt as to whether section 54A of the Defence Act has not had the effect of excepting Commonwealth Forces who are voluntarily serving with Imperial Forces outside Australia from the provisions of the Commonwealth Defence Act. If, however, the effect of section 54A is not to except the Australian Forces so serving from the provisions of the Defence Act, the Governor-General may exercise in relation to the Australian Expeditionary Forces the powers conferred upon him by sections 86 and 87 of the Defence Act, and it was for this reason that in the warrant granted to the General Officer Commanding the 1st Australian Division it was recited that the Governor-General was acting not only under the warrant held by him under the Army Act, but by virtue of all other enabling powers.

I am therefore of opinion that the warrant issued to Major-General Bridges is still of full force and effect, except as far as the application of the Army Act may in any particular respects be rendered difficult or impracticable owing to the absence of regulations containing necessary modifications and adaptations of the Act to the Commonwealth Forces.

[Vol. 13, p. 398]

(1) 6th edn, 1914.