Opinion Number. 949

Subject

GERMAN NEW GUINEA WHETHER ADMINISTRATOR HAS POWER TO AUTHORISE PHYSICAL PUNISHMENT FOR OFFENCES COMMITTED BY NATIVES: POWERS AVAILABLE UNDER MILITARY OCCUPATION: USE OF PUNISHMENT PRESCRIBED FOR SOLDIERS ON ACTIVE SERVICE

Key Legislation

ARMY ACT (IMP.), s. 44; RULES FOR FIELD PUNISHMENT

Date
Client
The Secretary, Department of Defence

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

Prior to Australian military occupancy of the Territory of German New Guinea in 1914, German law permitted flogging of natives to be administered, not only by Government officials but also by white planters and missionaries.

In July 1915 the Administrator was instructed that in accordance with a ruling by the Minister for Defence, flogging of natives was not in future to be permitted. The Native Labour Ordinance was amended accordingly.

A few months later acting upon representations made by the Administrator, that the total prohibition of this form of punishment was allowing natives to get very out of hand and difficult to control, the Minister decided that, provided it was distinctly understood the amount and nature of the punishment was to be awarded by a Government District Officer, after the guilt of the native for the offences indicated (stealing, deserting from employment, offences against women, gross insubordination, arson or assault) had been established, after inquiry by such Officer, flogging might be administered, when authorised by the Administrator.

The Native Labour Ordinance having been amended accordingly, this decision remained in force until 10 March 1919 when Cabinet decided 'that Hogging be not permitted and the possessions be administered in accordance with British traditions'.

Since this ruling the Administrator has permitted no floggings at all, but as imprisonment in 'calaboose' has little fear for the average native some more strenuous form of punishment was desired, to mete out justice to perpetrators of crimes of a severe nature. The Administrator therefore authorised that male natives might, when necessary, be punished in a similar manner to that indicated in Field Punishment No. 1 (page 721, Manual of Military Law).

The point has now been raised whether, in view of the fact that the Territory is in military occupation and this is a punishment authorised for British soldiers when on active service, there is any legal objection to the native inhabitants of such Territory being similarly dealt with when authorised by the Administrator. In this connection attention is drawn to paragraph 353, 'General Effects of Occupation', page 288 of Manual of Military Law.

I should therefore be glad of your opinion on this question.

I have carefully considered the question raised, and am of opinion that there is power to make an Ordinance providing for the imposition on natives of punishment similar to the punishment described in the Manual of Military Law, page 721, as Field Punishment No. 1.

I do not think, however, that, in the absence of such an Ordinance, the Army Act empowers the Administrator to impose such punishment on the natives.

[Vol. 16, p. 322A]