Opinion Number. 720

Subject

DEFENCE FORCES POWERS OF COMMANDING OFFICERS TO INFLICT SUMMARY PUNISHMENT IN WARTIME: WHETHER POWERS ARE DERIVED FROM IMPERIAL OR COMMONWEALTH LEGISLATION: SOURCE OF OFFENCES COMMITTED ON ACTIVE SERVICE

Key Legislation

DEFENCE ACT 1903, ss. 55, 108: DEFENCE ACT 1914, s. 10: ARMY ACT (IMP.), s. 46: MILITARY REGULATIONS (GENERAL), regs 235, 236, 273, 286: KING'S REGULATIONS, reg. 487

Date
Client
The Secretary, Department of Defence

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

It is desired that a legal opinion be obtained as to the exact scope of a commanding officer's powers to inflict summary punishment in time of war. Section 55 of the Defence Act reads:

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. CM. Regulation 235 reads:

Members of the Military Forces shall, at all times, while on Active Service, be subject to the Army Act, save so far as is inconsistent with the Act, and shall be liable to be arrested, tried, and punished in the manner laid down in the Army Act, and the Rules of Procedure and Regulations made thereunder.

Section 46 of the Army Act defines the powers of commanding officers under that Act and permits the award of detention by a commanding officer up to a maximum of 28 days. The offences under the Army Act with which a commanding officer may deal summarily are prescribed by King's Regulation 487. Section 108 of the Defence Act, however, reads:

The regulations may authorize the officer commanding any corps or ship to punish offences against this Act or the regulations committed by any member of the Defence Force by a fine not exceeding Five pounds, and also in case of the Permanent Forces by forfeiture of not more than fourteen days' pay, or by confinement to barracks or on board ship for any period not exceeding twenty-one days, seven days of which may be imprisonment, and also in the case of the Citizen Forces by reduction in rank or dismissal.

and CM. Regn. 286 authorises the award by a commanding officer of seven days'
detention and other penalties in pursuance of this section.

CM. Regn. 273, however, specifies the offences with which a commanding officer may deal summarily but these offences are prescribed by C.M.R. 236 which is inoperative at present as it refers only to offences committed when not on active service.

The question which arises for decision appears to be whether the powers granted to commanding officers by section 46 of the Army Act are modified by section 108 of the Defence Act and whether in consequence section 46 of the Army Act is inconsistent with the Defence Act to the extent of any such modification.

In this connection attention is invited to the amendment to section 108 of the Defence Act by the Defence Act of 1914 by which the words 'offences against this Act or the regulations committed by' were inserted after the word 'punish' in that section.

It is thought that the effect of the amendment may be that the limits to a commanding officer's powers prescribed by Defence Act section 108 only apply to offences against the Defence Act and Regulations but the question arises as to whether the Army Act on being applied by section 55 to the Military Forces becomes incorporated with the Defence Act and would therefore be subject to the restrictions applied by section 108.

In this connection it is to be noted that, as neither the Defence Act nor the regulations thereunder prescribe the ordinary military offences nor provide for the punishment of them in time of war, the intention apparently is that the Army Act shall be relied upon in its entirety without restriction for the punishment by commanding officers of offences committed in time of war.

Section 108 of the Defence Act provides that the regulations may authorise commanding officers of corps and ships to punish offences against the Defence Act and the regulations made thereunder.

Section 46 of the Army Act to which the Defence Force is subject when on active service save so far as that Act is inconsistent with the Defence Act provides for the punishment by commanding officers of offences against that Act.

Neither the Defence Act nor the regulations make any specific provision for the punishment of offences on active service nor do they set out what offences may be committed on active service. That is done by the Army Act and it appears that it is only against the Army Act that any military offences can be committed on active service.

Since section 108 of the Defence Act applies only to offences against the Defence Act and the Regulations and all military offences in time of war are offences against the Army Act, I am of opinion that a commanding officer's powers in time of war are governed by the Army Act.

[Vol. 14, p. 369]

  1. This date is attributed. In the Opinion Book this opinion is year dated only, but the dating of adjacent opinions suggests a date in june of 1916.