Opinion No. 1043
POWER TO CONSTITUTE AUSTRALIAN AIR FORCE: APPLICATION OF IMPERIAL LEGISLATION TO FORCE: LEGAL MEASURES NECESSARY TO ESTABLISH FORCE
DEFENCE ACT 1903, s. 33
10 February 1921
The Secretary, Department of Defence
The Secretary to the Department of Defence has forwarded for advice the following memorandum:
I am directed to inform you that it is the desire of the Air Council to proceed (under existing Acts) with the development of the Air Force forthwith to such a degree as is necessary to enable the immediate formation of an Australian Air Force. Pending the passing of the Australian Air Defence Act which is now in draft form and will be introduced next Session, the only legislation at present in existence, dealing with matters entirely peculiar to an Air Force, is the Imperial Air Force Act.
In order that steps may be taken to meet the wishes of the Air Council the Minister would be glad if advice could be furnished on the following points:
- Has the Governor-General power, and if so under which Act, to constitute a Force to be known as the Australian Air Force?
- As the only legislation now in existence dealing with matters peculiar to an Air Force is the Imperial Air Force Act, it is desirable to apply that Act to the Australian Air Force when raised. Can this be done before the passing of the Australian Air Defence Act?
- If the above is possible will you advise the necessary legal measures to be carried out in each case.
Section 33 of the Defence Act 1903-1918 provides that the Governor-General may, subject to the provisions of that Act, raise, maintain and organise in the manner prescribed, such Permanent and Citizen (Naval or Military) Forces as he deems necessary for the defence and protection of the Commonwealth and of the several States. The Governor-General has, I think, power, under that section, to constitute a Force, to be known as the Australian Air Force, as part of the Naval or Military Forces.
There is not, however, in my opinion, any power under that Act or any other Commonwealth law to apply the Imperial Air Force Act to any Force so raised. Such application can, I think, only be effected by Act of Parliament.
As regards the legal measures necessary to constitute an Australian Air Force under the Defence Act the proper course, in my opinion, is for an Order in Council to be issued constituting the Force and for Regulations to be made prescribing the manner in which the Force is to be raised, maintained and organised.
Draft Order constituting the Force is forwarded herewith(1) In the absence of instructions, I am unable to furnish a draft of the necessary Regulations.
[Vol. 17, p. 226]
(1) The draft Order read as follows: ‘ORDER
By His Excellency the Governor-General of the Commonwealth of Australia:
WHEREAS it is enacted by the Defence Act 1903-1918 that the Governor-General may, subject to the provisions of that Act, raise, maintain and organise in the manner prescribed, such Permanent and Citizen Forces as he deems necessary for the defence and protection of the Commonwealth and of the several States:
AND WHEREAS it is desirable that Military Forces, to be called the Australian Air Force, should be raised, maintained, and organised in the manner aforesaid:
NOW THEREFORE I, HENRY WILLIAM BARON FORSTER, the Governor-General aforesaid, acting with the advice of the Federal Executive Council, do hereby order that a Force to be called the Australian Air Force, be constituted as part of the Australian Military Forces:
AND I DO FURTHER ORDER that the said Force be raised, maintained and organised in the manner prescribed by the Defence Act 1903-1918 and the Regulations made thereunder.
GIVEN under my Hand and the Seal of the Commonwealth, at Melbourne, this day of in the year of Our Lord One thousand nine hundred and twenty-one and in the eleventh year of His Majesty’s Reign.
By His Excellency’s Command.
Minister of State for Defence’.