Opinion Number. 901



Key Legislation

ARMY ACT (IMP.), s. 7: ARTICLES OF WAR (U.S.A.), Art.23

The Secretary, Department of Defence

The Secretary, Department of Defence, has forwarded the following memorandum for advice as to whether the law as regards the matter is correctly set out:

The attached copy of a telegram from the Commandant, 5th Military District, is referred for the Minister's information.

With reference to this matter it is absolutely essential that stringent measures be introduced to put an end to the constant breaking of quarantine by returning members of the Australian Imperial Force. The world has had sufficient experience of the results of the present epidemic of influenza, and should this disease be introduced into Australia in a virulent form it can only be attributed to the lack of discipline on board transports whereby troops are allowed to commit flagrant breaches of the quarantine regulations without any retribution falling upon them.

It is apparently impossible to control these men by any ordinary methods of discipline and it therefore becomes essential for the Government to consider whether they are prepared to use force in order to safeguard the interests of the community as a whole; or refrain from any drastic action and allow those interests to be sacrificed to satisfy the selfish desires of a few soldiers.

The Commandant proposes to place a guard over the troops in quarantine, such guard to be armed with ball cartridges and he further proposes that if the necessity should arise and the guard cannot find any other means of preventing these men from breaking quarantine that they should use their rifles even to the extent of inflicting serious bodily harm or killing some member of the Australian Imperial Force while trying to break out.

With regard to the legal aspect of the question I have been in consultation with the Attorney-General's Department by means of the telephone, but have not had any official communication from them in the matter. It would appear necessary that the military guard should not assume or purport to assume any jurisdiction so far as civilians in quarantine are concerned. The guard are to be placed there simply as a military guard, and in connection with a military camp within the quarantine area. Military orders are to be given to all men in that camp stating the limits of the camp and the boundaries over which they are forbidden to pass. Should any soldier then break bounds he will be guilty of disobedience of orders and can be dealt with for this offence quite apart from any offence under the Quarantine Regulations. Should there be a collective attempt to break bounds either with or without violence this will constitute mutiny, and the Department will be justified in taking such steps as may be necessary in order to suppress such mutiny.

It can be clearly seen that if one man or two men attempt to break bounds they can easily be arrested without resorting to force of arms, but if a large number of men combine together to resist or to induce others to resist lawful military authority then it may not be possible to arrest these men and deal with them in due course of law by court-martial. The necessity of the case may be such that it is absolutely essential that immediate and drastic action be taken and if the law of necessity is admitted to arise then there is no doubt that for the public safety there must be a power to take immediate action to meet the needs of the occasion. To wait for the offence to be punished by ordinary courts of law after perhaps irreparable harm has been done would reduce discipline to a farce.

The measures adopted and especially the amount of force employed should properly depend upon the circumstances of the case, and it is impossible to lay down definitely the action that should be taken without knowing all the facts and being present on the spot at the time.

I think however that the Commandant should be instructed to place large notice boards in the camp stating the boundaries of the camp and the fact that an order has been issued prohibiting any person from passing those boundaries and stating further that the guard have been armed with ball ammunition and have been instructed to take such measures as may be necessary to put down any organised attempt to overpower the guard and pass over these boundaries. The Commandant should also be instructed that the men selected for duty with this guard should be picked men of a steady and reliable nature so that no harm is likely to result from the ill-advised or hot-headed action of some irresponsible member of the guard.

Subject therefore to this question being referred to the Attorney-General's Department for legal opinion, I recommend that the following telegram be immediately coded and dispatched to the Commandant, 5th Military District:

Your XI20 January relative guard on quarantine station post notices in camp stating boundaries and also giving definite order no person to pass those boundaries.This order is to be given as a military order quite apart from Quarantine Regulations. Combined disobedience or attempt to upset lawful military authority will constitute mutiny. If possible arrest mutineers and deal with them in ordinary way.If impossible and all other means fail then take such action as necessity of the case demands. Select picked and reliable men as members this guard and place responsible officer in command with full instructions.

I understand that the camp in which the soldiers are confined is a military camp, and that definite orders have been given by the officers to the soldiers not to pass beyond certain clearly marked boundaries. The question is whether if a number of soldiers combine together to resist or to induce others to resist lawful military authority, the use of force would be justified.

The Army Act, section 7, provides that:
Every person subject to military law who commits any of the following offences; that is to say,

  1. Causes or conspires with any other persons to cause any mutiny or sedition in any forces belonging to His Majesty's regular, reserve, or auxiliary forces, or Navy; or
  2. Endeavours to seduce any person in His Majesty's regular, reserve, or auxiliary forces, or Navy, from allegiance to His Majesty, or to persuade any person in His Majesty's regular, reserve, or auxiliary forces, or Navy, to join in any mutiny or sedition; or
  3. Joins in, or, being present, does not use his utmost endeavours to suppress, any mutiny or sedition in any forces belonging to His Majesty's regular, reserve, or auxiliary forces, or Navy; or
  4. Coming to the knowledge of any actual or intended mutiny or sedition in any forces belonging to His Majesty's regular, reserve, or auxiliary forces, or Navy does not without delay inform his commanding officer of the same.

shall on conviction by court-martial be liable to suffer death, or such less punishment as is in this Act mentioned. The Manual of Military Law, 1914 edn, p. 15, states that:

The term 'mutiny' implies collective insubordination, or a combination of two or more persons to resist or to induce others to resist lawful military authority. Mutiny is defined by Simmons, The Constitution and Practice of Courts Martial, 7th edn, p. 77, as 'collective insubordination, or rising against or resisting military authority in combination or simultaneously, with or without actual violence, such acts proceeding from alleged or pretended grievances of a military nature'; and by Winthrop, Military Law and Precedents, 2nd edn, Vol. II, p. 892, as 'an unlawful opposition or resistance to, or defiance of superior military authority, with a deliberate purpose to usurp, subvert, or override the same'.

The combination of a number of soldiers to break out of camp in defiance of the lawful commands of their superior officers would, in my opinion, constitute mutiny, and would justify the use of force to prevent such breaking out. The question of how much force may be used depends upon the circumstances of the particular occurrence, and it is impossible to lay down in advance any general rule as to how much force may properly be employed on a particular occasion.

Clode, Military Forces of the Crown, Vol. II, p. 159, states as follows the question of the use of force to suppress a mutiny:

That the law of necessity is admitted to arise, and may lawfully be used–against persons liable to the Mutiny Act, but without resorting to the forms of it,–cannot be doubted. 'If, said Lord Ellenborough, then Attorney-General, in conducting the prosecution in Governor Wall's case, 'there did exist, in point of fact, a mutiny within His Majesty's garrison which it required the strong arm of power to suppress; if it was a mutiny so enormous in its size, so dangerous in its probable and immediate

consequences, as to supersede the ordinary forms of trial for that or such like offences, I do not stand here to require of you–God forbid I should–that you should conceive this or any other man similarly circumstanced, as being other than not only an innocent, but even a meritorious man, who uses the effective powers with which his situation arms him, or which he has it within his reach to command and use, for the discharge of the trust, and the protection of the interests committed to him'.

And Lord Loughborough, in leaving the case to the jury, expressed the same view: 'As the Attorney-General stated at the outset, undoubtedly the principal fact is the fact of mutiny, aye or no; whether any such mutiny did take place as would put a good Officer, as I said before, a man of common firmness, into such a state of alarm, as would make extraordinary means necessary instantly to quench the fire by overlaying it in the speediest way that he possibly could'. 'If it shall appear to you that there was a mutiny,–if it shall appear to you that there was such a Court-martial as could be had, and that there was reasonable notice to the deceased that he was so and so charged, and was called upon to say how he came to be one of those mutineers, I have the Attorney-General's liberal authority for saying, in this case before us, that if you are satisfied of that, and do not derive from the degree of punishment and the mode in which it was inflicted by the instrument used, a malicious intent to destroy this man, or a wilful disregard of human life, in case you see all the circumstances in that light, you will give the benefit of such a view of them to the prisoner, and acquit him'.

In this connection reference may be made to American law as regards the suppression of mutiny. Article 23 of the American Articles of War of 1874 is as follows:

Art. 23. Any officer or soldier who, being present at any mutiny or sedition, does not use his utmost endeavour to suppress the same or having knowledge of any intended mutiny or sedition, does not, without delay, give information thereof to his commanding officer, shall suffer death, or such other punishment as a court-martial may direct.

Commenting on this Article, which, insofar as it relates to the use of every endeavour to suppress a mutiny, is almost identical with section 7 of the Imperial Army Act (quoted above), Winthrop, Military Law and Precedents, 2nd edn, Vol. II, p. 903, states:

This Article is naturally considered under the two heads of the Suppression of existing mutiny and the Giving Information of intended mutiny. As to suppression–the Article, as is observed by Samuel, makes it a crime to simply 'stand by' while a mutiny is being committed. 'It is', he adds, 'declared the positive and bidden duty of every officer or soldier, under the pain, in case of neglect, of the severest possible punishment, to aid, to the utmost of his ability, in quelling this dangerous and contagious crime.' O'Brien, as apposite to the injunction that the party shall use 'his utmost endeavour', &c, holds that 'every officer is armed' by the Article 'with dictatorial and unlimited powers', and that 'if his measures are stronger than necessary he cannot be punished; the law justifies him.' But this, as a general proposition, cannot be accepted. While, in extreme cases, as above noted, an officer is warranted in employing the most rigorous means–in using a deadly weapon and taking life–for the suppression of a mutiny, he will not ordinarily thus be warranted in a case of mutiny unaccompanied by violence or where less vehement methods will be entirely effectual. The measures adopted, and especially the amount of force employed, should properly depend upon the circumstances of the case, and particularly upon the existing status, whether of war or peace. Means which, in war and before the enemy, would be not only justified but laudable, might in peace be without warrant and criminal, and commanding officers, in employing them, might become liable, for abuse of authority, not only to trial by court-martial but to indictment in a civil tribunal. In a footnote on p. 904 Winthrop adds: Upon the subject of summary proceedings, involving the taking of life, in the suppression of mutiny, Samuel, (p. 268) writes: 'When they are resorted to, it is requisite in every

case, in order to justify the departure from legal forms, that it be clearly made out that the mutiny was flagrant, and that it called for strong and instant measures to put it down; and that the means used were not more violent than needful, and that it was not safe to wait for the trial and execution of the offenders by the ordinary course of military justice'.

I think, therefore, that the use of force to prevent soldiers breaking out of camp would be justifiable, and under certain circumstances extreme force would be justifiable.

It is, however, necessary to point out that the confinement of soldiers in the camps referred to is in substance a provision made for the purpose of assisting in the enforcement of the quarantine law; that the soldiers probably have no objection to military authority qua military authority, and do not desire to override it except insofar as it tends to prevent them from leaving camp; further, that they are soldiers returning from the seat of war, and no doubt anxious to be released so as to join their friends; and that though their action in breaking out of camp would technically be mutiny, the possible consequences of the use of force to prevent them from breaking out of camp are so serious as to render the issue of instructions such as are proposed justifiable only if no other course is available.

[Vol. 16, p. 115]