COURTS-MARTIAL POWER OF GOVERNOR-GENERAL TO CONVENE AND CONFIRM FINDINGS
CONSTITUTION, s. 68: ARMY ACT (IMP), ss.48,54,122
The papers in this matter are sent to me for advice on the question of the power of the Governor-General to convene, and confirm the findings of, general courts-martial-
- with respect to troops raised in the Commonwealth as colonial troops; and
- troops raised under the immediate authority of and maintained by the British Government for service abroad.
The Deputy Judge Advocate (in a memo with the papers) expresses the opinion that under section 68 of the Constitution, and the Letters Patent constituting the office of Governor-General, the Governor-General as Commander-in-Chief of all the forces in the Commonwealth has power to convene general courts-martial and to delegate that power.
Section 68 of the Constitution provides that "The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative'.
The Letters Patent abovementioned declare 'that there shall be a Governor-General and Commander-in-Chief in and over our Commonwealth of Australia', and authorize the Governor-General to 'do and execute in due manner, all things that shall belong to his said command, and to the trust We have reposed in him, according to the several powers and authorities granted or appointed him by virtue of the Commonwealth of Australia Constitution Act 1900 and of these present Letters Patent and of such Commission as may be issued to him under Our Sign Manual and Signet' etc.
The Commission of the Earl of Hopetoun appoints him to be 'Our Governor-General and Commander-in-Chief in and over Our Commonwealth of Australia, with all the powers, rights, privileges, and advantages to the said Office belonging or appertaining'.
As regards troops raised under the Defence Acts of the several States, general courts-martial may be convened in accordance with the provisions of those Acts. The Commonwealth Defence Bill(1) now before Parliament empowers the Governor-General to convene courts-martial and to delegate that power.
As regards troops not subject to the the local Defence Acts, but raised within the Commonwealth for service abroad, general courts-martial can only be convened, and their findings confirmed, in accordance with the provisions of the Army Act.
Section 48 of the Army Act provides that 'A general court-martial shall be convened by Her Majesty, or some officer deriving authority to convene a general court-martial immediately or mediately from Her Majesty'. Section 54 provides that the findings and sentences of general courts-martial may be confirmed by 'Her Majesty or some officer deriving authority to confirm the findings and sentences of general courts-martial immediately or mediately from Her Majesty'.
Section 122 provides for the issue of warrants under the Royal Sign Manual authorizing any qualified officer to convene general courts-martial, to confirm the findings and sentences of such courts-martial, and delegate the power of convening and confirming. 'Qualified officer' in this section, includes 'a Governor of any colony on whom the command of any body of regular forces may be conferred by Her Majesty'.
I am of opinion that neither the Constitution, the Letters Patent, nor the Commission of His Excellency constitute an authority from His Majesty to convene general courts-martial under the Army Act, or to confirm their findings and sentences. The Governor-General is however a 'qualified officer' under section 122 to whom such an authority may be issued.
[Vol. 2, p. 6]
(1) Enacted as the Defence Act 1903.