Opinion Number. 750

Subject

COURTS-MARTIAL SENTENCE OF IMPRISONMENT AND DISCHARGE WITH IGNOMINY: WHETHER REMISSION OF SUCH DISCHARGE AFTER BEING PUT INTO EFFECT REVIVES OBLIGATION TO SERVE UNDER TERMS OF ENLISTMENT

Key Legislation

AUSTRALIAN MILITARY REGULATIONS 1916, reg. 338 (I)

Date
Client
The Secretary, Department of Defence

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

A number of members of the A.I.F. were tried by general court-martial on charges arising out of the mutiny at Liverpool in February 1916. They were convicted on 20th March 1916 and sentenced to varying periods of imprisonment up to three years and to be discharged with ignominy from His Majesty's Service. The proceedings of these courts were confirmed by the Governor-General on 10th April 1916.

By warrant dated 16th October 1916, the Deputy of the Governor-General remitted portion of the sentences of imprisonment and the discharge with ignominy.

Previous to this remission the Commandant in pursuance of the sentence of the court issued discharge certificates to the men concerned under A.M.R. 338 (1).

Information is desired as to whether the remission of the discharge with ignominy entails the men's liability to service under the conditions of their enlistment or whether having been discharged they are no longer members of the Military Forces and cannot be called upon for service in the Australian Imperial Force.

The sentences passed by the general court-martial on 20 March 1916, came under the review of the Governor-General as the confirming authority. The Governor-General could then have remitted the discharge with ignominy, but on 10 April 1916, the sentences were confirmed.

The sentences were then carried out and the men discharged with ignominy. So far as the sentences were carried out, I do not see how that part of the sentences can be remitted.

The order of the court in that respect has been put into operation, and the remission by the confirming authority cannot undo what has been done.

The soldier voluntarily engaged in his enlistment to serve for a certain period unless sooner lawfully discharged. He has now been discharged, and the effect of that discharge is to put an end to his obligations under his enlistment.

His obligations being at an end, it is not open to the military authorities after the lapse of some months to revive those obligations, previously entered into voluntarily, without the sanction of the person discharged.

In my opinion, upon their discharge the soldiers in question were no longer members of the Military Forces, and upon the remission of the discharge these men cannot be compelled to serve in the Australian Imperial Force.

[Vol. 14, p. 461]

  1. Date in Opinion Book Incomplete.
  2. This Opinion is unsigned in Opinion book, but it is attributed to Mr. Garran.