Opinion Number. 684



Key Legislation

DEFENCE ACT 1903, s. 4: ARMY ACT (IMP.), ss. 48 (9), 49, 189 (1): RULES OF PROCEDURE 1907, rules 20, 21, 106B

The Secretary, Department of Defence

The Secretary, Department of Defence, has forwarded for advice the following memorandum by the Adjutant-General:

With reference to the attached papers relative to a field general court-martial held on board the transport Suevic there is some doubt as to whether it was competent for the O.C. troops to convene a court-martial of that nature.

  1. Section 49 of the Army Act provides that an officer in command of a body of forces on active service may, subject to certain conditions and reservations, convene a field general court-martial for the trial of persons subject to military law.
  2. In regard to this matter it is considered that the expression 'on active service' must be interpreted in the terms of the Army Act and not in the terms of the Defence Act which gives the expression a much wider scope than the Army Act does.
  3. The expression 'on active service' is interpreted by section 189 of the Army Act and I have some doubt whether troops returning from abroad and far removed from the seat of operations are on active service within the meaning of the Army Act though I am inclined to think that they are seeing the men concerned form part of a force which is engaged in operations against the enemy. If this interpretation is placed upon the expression it is thought, however, that even after return to Australia members of the A.I.F. would be on active service and such an interpretation appears to go, perhaps, to a further length than is intended by the Army Act.
  4. It is desired that the opinion of the Attorney-General's Department be obtained on this point.

  5. A further question arises in regard to the composition of the court. Rule of Procedure 106 (B) provides that the convening officer of a field general court-martial if of the rank of field officer must not appoint an officer below the rank of field officer as president unless in his opinion a field officer is not available.
  6. The officer appointed president is not a field officer and no statement is made in the order convening the court that the convening officer was of opinion that a field officer was not available.
  7. In the case of any departure from a similar rule in ordinary courts-martial it is necessary that an opinion of this kind should be expressed by the convening authority in the order convening the court-vide Army Act section 48 (9) and Rules of Procedure 20 and 21.
  8. This expression of opinion was not made by the convening officer in the order convening this field general court-martial but no definite statement is made in Rule of Procedure 106 (B) (i) that this should be done.
  9. It is presumed that in the absence of proof to the contrary that in not appointing a field officer it must be assumed that the convening authority had a bona fide opinion that a field officer was not available having regard to the public service.

  10. In view of the clear instructions on this point in regard to general and district courts-martial referred to above it is recommended that the matter be referred to the Attorney-General's Department for advice on the above point and also whether the proceedings should stand or be quashed.

It is requested that the matter be treated as very urgent.

As regards the first point, section 189 (1) of the Army Act defines 'active service' as applied to a person subject to military law to mean:

. . . whenever he is attached to or forms part of a force which is engaged in operations against the enemy, or is engaged in military operations in a country or place wholly or partly occupied by an enemy, or is in military occupation of any foreign country.

In my opinion members of the Australian Imperial Force while on board a transport returning from abroad are on active service within the meaning of this definition.

For the purpose of the present case it is not necessary to decide whether upon their landing in Australia they would be on 'active service' within the meaning of the Army Act, since they would in any case be on active service within the meaning of the Defence Act, and presumably the penal provisions of that Act would be available in case of need.

As regards the second point, the question whether the Army Act and Rules of Procedure were complied with in the composition of the court-seeing that the Act and Rules do not specifically require that in the case of a field general court-martial the opinion of the convening officer that a field officer is not available should be stated in the order convening the court, I think the convening officer must be presumed to have satisfied himself when convening the court that a field officer was not available. This is in accordance with the legal maxim Omnia praesumuntur rite esse acta, as to which Broom, Legal Maxims, 7th edn, p. 723, says:

Again, where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is, omnia praesumuntur rite et solenniter esse acta donee probetur in contrarium-everything is presumed to be rightly and duly performed until the contrary is shown. The following may be mentioned as general presumptions of law illustrating this maxim: That a man, in fact acting in a public capacity, was properly appointed and is duly authorised so to act; that in the absence of proof to the contrary, credit should be given to public officers who have acted, prima facie, within the limits of their authority, for having done so with honesty and discretion; that the records of a court of justice have been correctly made, according to the rule, res judicata pro veritate accipitur; that judges and jurors do nothing causelessly and maliciously; that the decisions of a court of competent jurisdiction are well founded, and their judgments regular; and that facts, without proof of which the verdict could not have been found, were proved at the trial.

I think, therefore, that the proceedings of the court are not liable to be quashed on either of the above grounds.

[Vol. 14, p. 238]