Opinion Number. 713

Subject

COURTS-MARTIAL: DEFENCE FORCES COMMITMENT TO PRISON IN AUSTRALIA OF MEMBERS OF AUSTRALIAN IMPERIAL FORCE SENTENCED BY COURTS-MARTIAL ABROAD: BASIS FOR ISSUE OF COMMITMENT WARRANTS: APPLICATION OF IMPERIAL LEGISLATION TO MEMBERS OF DEFENCE FORCE: POWER OF GOVERNOR-GENERAL TO REMIT OR MITIGATE SENTENCES

Key Legislation

DEFENCE ACT 1903, ss. 55, 86, 115: ARMY ACT (IMP.), s. 177

Date
Client
The Secretary, Department of Defence

The Secretary to the Department of Defence has forwarded for advice the following memorandum:

Recently a number of soldiers of the Australian Imperial Force have been returned to Australia from abroad to undergo sentences of long terms of imprisonment awarded by courts-martial abroad. They have been committed to civil prisons in Australia to undergo their sentences by the warrant of the District Commandants concerned, under the authority of section 115 of the Defence Act and CM. Regn 388, as in the case of soldiers of the Australian Military Forces convicted by courts-martial in Australia.

Except in the case of field general courts-martial, to convene which no warrant is required, the courts-martial which have sentenced these soldiers have been convened, and the findings and sentences have been confirmed, not under powers delegated by the Governor-General in accordance with section 87 of the Defence Act, but under warrants authorised by sections 122 and 123 of the Army Act, and have been held in both British and foreign territory. In all cases, the proceedings of the courts-martial have been forwarded to the Judge Advocate General in London in compliance with Rule of Procedure 98 (A) and the commitment warrants to prisons have been issued in Australia on the information obtained from the record of the finding and sentence of the court entered upon the prisoner's conduct sheet.

The legality of this commitment to prison in Australia of soldiers of the A.I.F., sentenced by courts-martial as above, has been questioned on the grounds that-

  1. the soldiers have been sentenced by courts not convened under the Defence Act, but under the authority of the Royal warrant;
  2. the trials were held outside Australia; and
  3. in the absence of the proceedings, a commitment warrant is not justified by the record of the entry of the finding and sentence on the conduct sheet.

It is recommended that this matter be referred to the Attorney-General's for a ruling.

It would appear, however, that the first and second objections are disposed of by section 55 of the Defence Act which provides that the Military Forces shall at all times while on active service, within or without the limits of the Commonwealth, be subject to the Army Act, (under the provisions of which the prisoners were tried), save so far as is inconsistent with the Defence Act, and by section 115 (1) of the Defence Act which provides for the issue of a commitment warrant in the cases of persons sentenced to imprisonment by a court-martial without limitation as to the place of trial.

In regard to the third objection, it would appear that the official entry on the conduct sheet of the finding and sentence is sufficient information to warrant the issue of a commitment warrant, the findings and sentences having been previously confirmed and promulgated.

As it may be desirable to consider the question of the remission of portion of the sentences passed by courts-martial abroad upon soldiers of the A.I.F. returned to Australia to undergo their sentences, it is recommended that the Attorney-General be also asked to give a ruling as to whether the powers of remission under sections 86 and 87 of the Defence Act and C.M.R. 369 (2) extend to cases of soldiers of the A.I.F. awarded sentences by courts-martial abroad as above who have been returned to Australia to undergo such sentences. Section 55 of the Defence Act 1903-1915 provides that:

The Military Forces shall at all times, while on active service, whether within or without the limits of the Commonwealth, 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. The application of the provisions of the Army Act to the Australian Forces is authorised by section 177 of the Army Act. Section 177 provides that:

Where any force of volunteers, or of militia, or any other force, is raised ... in a colony, any law of . . . the colony may extend to the officers, non-commissioned officers and men belonging to such force, whether within or without the limits of . . . 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; and where any such force is serving with part of His Majesty's regular forces, then so far as the law of . . . the colony has not provided for the government and discipline of such force, this Act and any other Act for the time being amending the same shall, subject to such exceptions and modifications as may be specified in the general orders of the general officer commanding His Majesty's forces with which such force is serving, apply to the officers, non-commissioned officers, and men of such force, in like manner as they apply to the officers, non-commissioned officers and men of the regular forces.

Since the Army Act applies to the Australian Forces save so far as it is inconsistent with the Defence Act, section 177 read as a whole seems to me to imply that any such application is to be made, not with the idea of superseding the colonial provisions, but in order to supplement those provisions.

It would appear, therefore, that any powers of a general nature conferred on the Governor-General or any other authority by the Defence Act would remain untouched by any provisions of the Army Act, so that authorised officers specified in section 115 of the Defence Act could issue warrants of commitment in the cases in question.

In all cases, I think, an Australian force retains its distinctive character of a colonial force and is subject to such laws relating to its government and discipline as the Commonwealth Government determines.

There appears to be no specific provision either in the Defence Act, Army Act, or Regulations as to the information necessary to warrant the issue of a commitment warrant.

The promulgation of the sentence and finding appears to be the most important detail to be complied with.

As the sentence and finding have been promulgated I think the entry on the conduct sheet may be regarded as containing sufficient information to warrant the issue of a commitment warrant.

For the above reasons I am also of opinion that the Governor-General has power under section 86 of the Defence Act to mitigate or remit the sentences in question.

[Vol. 14, p. 351]