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

In accordance with Australian Military Regulation 653, the proceedings of the trial by district court-martial of Private A.B., 16th Battalion A.I.F. are forwarded for the advice of the Attorney-General as to whether the proceedings should not be quashed on the following grounds:

1. The court was without jurisdiction, and that therefore the finding, sentence and confirmation are a nullity.
2. The officer who was appointed prosecutor acted as Judge Advocate.

1. In regard to the first ground the third member of the court had not held a commission for two whole years, having received his first commission on 15 August 1914. By section 88 of the Defence Act except so far as is inconsistent with this Act (which includes the regulations: Defence Act sections 4 and 124 (1) (g)) the laws and regulations for the time being in force in relation to the constitution ... of courts-martial in the King's Regular Forces shall apply to courts-martial under this Act.
2. By A.M.R. 581 (2) a district court-martial shall consist of not less than three officers each of whom must have held a commission during not less than two whole years.
3. In regard to the second ground, under the Army Act, section 50 (3) and Rules of Procedure 101B and 19B(ii) the officer who acted as prosecutor is not qualified to act as Judge Advocate. What purports, however, to be the order convening the court does not appoint a Judge Advocate.
4. Attention is invited to paragraphs 4 and 6 of Chapter VIII of the Manual of Military Law.
5. Private B. has not been committed to prison to undergo the sentence of the court, being a patient in hospital during the whole of the period of the sentence, and being still under treatment. If the proceedings of the court are quashed the questions involved will be those of pay and the dismissal from His Majesty's Service.

As regulation 581 (2) was not complied with in constituting the court-martial, the court-martial acted without jurisdiction and its acts are a nullity (see Manual of Military Law, 1914, p. 120, paras 4 & 6).

The court being without jurisdiction, in my opinion, the proceedings should be quashed under regulation 653 of the Australian Military Regulations 1916.

As the proceedings should be quashed on the first ground set forth in the Secretary's memorandum, it appears to be unnecessary to take into consideration the second ground.

[Vol. 15, p. 164]