The Secretary, Department of Defence, has asked for my advice upon the following memorandum which has been received from the Commandant 2nd Military District:

1. With reference to your W.13983 of the 31st ultimo I attach hereto charges, supported by Abstracts of Evidence, against Captain A. and Sergeants B. and C.
2. It is considered that as a Court of Inquiry has been held to investigate the cases of supposed looting at German New Guinea that a further preliminary investigation is not necessary, unless demanded by the accused, but the Abstract of Evidence can be handed to the accused; see R.P.8 page 575 Manual of Military Law⁽²⁾. Captain A. does not demand a preliminary investigation.
3. The charges have been framed on the supposition that the accused are under the Defence Act 1903-1914, but can be easily altered if this is not so.
4. The matter has been carefully considered and is one of difficulty and there is certainly grave doubt whether the Naval and Military Expeditionary Force is either under the Defence Act or the Army Act, and whether there exists power to frame a charge or try the accused. This also applies to the courts-martial that have been already held at Rabaul.
5. It appears clear that they are not under the Defence Act for the following reasons:
1. The force was a 'Permanent' one. See S.31(l).
2. They are not included in the Permanent Forces allowed to be raised by the Act. See S.31 (2). S.31 (2) has been amended but the amending Act is dated 21st December 1914 and has not been made retrospective and this force was raised in August 1914 and therefore to come under the Defence Act must be within the Act 1903-1912.
3. To apply the provision of the Defence Act to a Force operating in German New Guinea it would be necessary for the Commonwealth Parliament to legislate extraterritorially; this they can only do with the direct sanction of the Imperial Government. This sanction has been given by S.177 of the Army Act but the Commonwealth Parliament has not availed itself of the leave thus given.
6. If the force has not been raised under the Defence Act it has been raised under His Majesty's prerogative which allows of the raising, in war time and with the advice of his Ministers, of troops for the defence of the Empire. Although the raising of the force was legal it does not necessarily follow that it comes under the Army Act as the power to raise is the common law one while the Army Act is statutory.
7. To bring the force under the Army Act is not without difficulty. It may come within the expression 'Regular Forces' as defined by S. 190(8) but appears to come more under S.177 which clearly differentiates between forces raised in the Colonies and in the United Kingdom. Although it may be argued that this force became a portion of His Majesty's Regular Forces the fact that it was raised by the Governor-General in Australia organised and paid for by Australia, and the sections (see 175, 176, 177) differentiating between Colonial Forces and Regular Forces are strong arguments against this argument.
8. It is submitted that as the question is so important, as if the forces were not under the Army Act, the prisoners dealt with by court-martial would have causes of action against the officers forming the courts, the convening officers etc., that to place the matter on a sound foundation a short Act should be passed making the amendment to Defence Act S.31 (2) retrospective to August 1st 1914 and applying the Army Act to Australian Forces when serving beyond the limits of the Commonwealth.

Section 31 of the Defence Act, as in force at the time when the Expeditionary Force in question was raised, was as follows:

1. The Permanent Military Forces shall consist of officers who are appointed officers of those Forces, and of soldiers, who are bound to continuous military service for a term.
2. No Permanent Military Forces shall be raised maintained or organized except for Administrative and Instructional Staffs, including Staff Corps, Army Service, Medical, Veterinary, and Ordnance Corps, Artillery, Fortress Engineers, and Submarine Mining Engineers.

The Force was bound to continuous military service for a term, and was therefore part of the Permanent Military Forces of the Commonwealth notwithstanding that it was raised for a purpose which had not at the date when the Force was enlisted been sanctioned by Parliament (see sub-section (2) of section 31).

In my opinion, therefore, the making retrospective the amendment to section 31(2) of the Defence Act is not a matter of great moment; but as a Defence Bill is being drawn, a provision to that effect will be included.

As regards the objection contained in paragraph (c), that to apply the Defence Act to the Force serving in German New Guinea would necessitate extraterritorial legislation on the part of the Commonwealth Parliament, and that although leave so to legislate has been given by the Imperial Parliament the Commonwealth Parliament has not availed itself of the leave thus given, it may be pointed out that the Defence Act, in several sections, notably sections 49 and 117, contemplated that members of the Defence Force might serve outside Australia in time of war, and section 55 of the Act provides that:

The Military Forces shall at all times, while on active service, be subject to the Army Act save so far as it is inconsistent with this Act; but so that the regulations may prescribe that any provisions of the Army Act shall not apply to the Military Forces.

In my opinion this section, which is in perfectly general terms, applies the Army Act, not only to Commonwealth Forces which are on active service in Australia, but also (at least since the passage of the amendment to section 177 of the Army Act) to Commonwealth Forces which are serving outside Australia.

The Commonwealth Forces in New Guinea are therefore subject to the Army Act by virtue of section 55 of the Defence Act.

I think, therefore, that the charges should be framed under both Acts. It might perhaps be desirable, in order to place the matter quite beyond doubt, to amend section 55 of the Defence Act by inserting therein after the words 'while on active service' the words 'whether within or without the limits of the Commonwealth'.

[Vol. 13, p. 404]

(1)This date is attributed. The openion is undated in the Openion Book, But appears between two other openions dated 16 April 1915.

(2)6th edn, 1914.