According to Section 98 of the Commonwealth Defence Act 1903, no member of the Defence Force shall be sentenced to death by any court martial except for four offences:
- desertion to the enemy
- traitorously delivering up to the enemy any garrison, fortress, post, guard, or ship, vessel, or boat, or aircraft
- traitorous correspondence with the enemy.
Significantly, this sentence could not be carried out until it was confirmed by the Governor-General.
While approximately 306 soldiers, including several Canadians, were executed by the British Army during the First World War, this sentence was not carried out by the Australian Army.
After the dreadful bombardments of Pozieres in 1916, absence without leave increased alarmingly and some senior Australian officers argued that Australian soldiers should face the same penalties that applied in the British Army.
However, the general feeling, both at home in Australia as well as of those serving, was against inflicting the death penalty on men who had volunteered to fight in a cause not primarily their own.
The Australian Imperial Force (AIF) instead had to rely on the leadership and example of its officers, the tone and esprit de corps of its men, and alternative penalties, including the publication of lists of offenders in Australian newspapers.
The death penalty was abolished in 1973 by the Death Penalty Abolition Act; however the Commonwealth Defence Act 1903 clause allowing for the death penalty was only officially superseded two years later by the Defence Force Re-organization Act 1975.
Walter Lesley Schwarz with his mother. Schwarz enlisted in the AIF in 1915, but felt he was being discriminated against because of his name. He deserted in England and joined the Royal Fusiliers. He became a lieutenant and won an MC and Bar and was mentioned three times in despatches. In 1921 King George V granted him a pardon. C41542
- Richard Glenister, “Desertion without execution: decisions that saved Australian Imperial Force deserters from the firing squad in World War I”, BA (Hons) thesis, La Trobe University, 1984.
- Peter Stanley, Bad characters: sex, crime, mutiny, murder and the Australian Imperial Force (Sydney: Pier 9, 2010).
- Ernest Thurtle, Shootings at dawn: the army death penalty at work (Melbourne: Victoria House Printing Company, ca.1920).
- Jeffrey Williams, “Discipline on active service: the 1st Brigade, First AIF, 1914–1919”, Litt B thesis, Australian National University, 1982.