20876
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PUBLIC RECORD OFFICE
Reference :-
TLC.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No. 141.
(DOMINIONS.)
{DOMINION NAVAL FORCES.]
CASE FOR THE OPINION OF THE LAW OFFICERS AND
MR. ACLAND, K.C. (JUDGE Advocate of THE FLEET).
As Counsel are probably aware, the Commonwealth of Australia and the Dominion of Canada have begun, with the assent of the Imperial Government, to vide and maintain Dominion Naval Forces. The exact status and position of these pro- Naval Forces is still undetermined and will be a matter for discussion at the forth- coming Imperial Conference, and it is for the purpose of carrying on this discussion that the opinion of Counsel is desired upon the questions submitted in this case.
There are, however, certain definite points in the position of these vessels which may be stated with comparative certainty, and which it is thought will be sufficient to enable the Law Officers and Mr. Acland to advise on the questions herein_sub- mitted. These ships are to be maintained and provided at the expense of the Dominion Governments respectively and to be commanded by a personnel appointed by those Governments. For the present the officers and men are mainly lent by the Imperial Navy, but the officers receive separate appointments from the Dominion Governments, and both officers and men in effect enter the service of the Dominion Government for the time being.
It may be assumed that within the territorial waters of each Dominion the ships, officers, and men will be in time of peace entirely under the control and directions of the Dominion Governments, and it is the intention that they shall, wherever they may be, be accorded by His Majesty the status of duly commissioned British ships-of-war and shall bear that character from an international point of view.
The first question upon which an Opinion is desired is :--How far the existing legislation establishing the constitutions of the Commonwealth of Australia and the Dominion of Canada empowers those Governments and Legislatures to create and enforce outside their territorial waters, whether on the high seas or in the terri- torial waters, or on the soil of other portions of the British Empire or of the United Kingdom, a system of discipline for their Naval Forces? It is not considered necessary to discuss this question in the case, because there is annexed hereto a printed memorandum which is in effect an extract from a report of a Departmental Committee which has considered the question in all its bearings. This printed ex- tract, it is thought, sufficiently indicates the statutes and the principal considera- tions to which Counsel's attention should be directed. There also accompany this Case prints of the latest Dominion legislation affecting the subject, namely, The Canadian Naval Service Act, 1910 of which Sections 23 and 48 especially require attention-and The Australian Naval Defence Act, 1910 (see Sections 33, 36, and 42). Both of these Acts will run outside territorial limits if, and so far as, the Dominion Legislature has power to make them do so.
The second question upon which an opinion is desired is as to whether the Dominion Naval Forces, constituted in the manner and under the conditions above indicated, are subject to the provisions of the Naval Discipline Act, 1866, Section 87 of which is as follows:-
Every person in or belonging to Her Majesty's Navy, and borne on the books of any one of Her Majesty's ships in commission, shall be subject to this Act; and all other persons hereby made liable thereto shall be triable and punishable under the provisions of this Act.
Notwithstanding the fact that these Naval Forces will be administered, directed, and commissioned by subordinate Governments, yet, considering that these Govern- ments are the Governments of His Majesty, and that the ships will, in the face of foreign nations, form part of the British Navy, it is at least open to argument that the officers and men in such ships are persons in or belonging to His Majesty's Navy, and that if borne on the books of such ships they are borne on the books of one of His Majesty's ships in commission. The contrary argument, of course, would be
(20574-2.) Wt 90–481. 25. 711. D&S.
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