Opinion No. 1378
DEFENCE: EFFECT OF HIGH COURT DECISION IN PIRRIE v M c FARLANE: WHETHER OBLIGATION TO COMPLY WITH STATE LAW MAY BE AVOIDED BY REGULATION UNDER DEFENCE ACT
PIRRIE v M c FARLANE (1925) 36 CLR 170: Motor Car Act 1915 (Vic) s 6: Defence Act 1903: Air Force Act 1923 s 3(3)
13 January 1926
The Secretary, Department of Defence
The Secretary, Department of Defence, has forwarded me the following memorandum for advice:
- I am directed to forward herewith for the favour of your advice the question arising out of the recent High Court judgement in Pirrie v. McFarlane.
- Under this judgment a member of the Royal Australian Air Force while driving an Air Force car in the course of Air Force duty was bound by the provisions of s. 6 of the Victorian Motor Car Act 1915.
- Judgment not only entails the licensing of motor drivers in the Air Force, but affects many other matters in the administration of the Naval, Military and Air Forces in a very unsatisfactory manner.
- Mr. Justice Isaacs in his dissenting judgment points out a number of matters, such as registration of cars, in which the administration of the Defence Force will be prejudiced by the judgment, but the judgment affects also such matters as types of construction of vehicles (e.g. width of tyres and nature of brakes), conditions governing which may vary in different States; construction and State inspection of buildings, drillhalls, etc. and the marching of soldiers on parade through the streets without permission, also restrictions imposed by the laws of the State would operate on war service.
- It appears clear from the judgment that the Commonwealth has power to pass legislation which would override the State law in regard to its operation in Defence matters, and as the present Defence Acts already empower the making of such a regulation, it is desired to consider the question of the making of a regulation in general and comprehensive terms to provide against the necessity of compliance with the restriction of State laws as to licences, etc. by members of the Naval, Military or Air Force in the performance of their duty as such.
- The question of the making of such a regulation is one of policy and I shall be glad of your advice in order that the matter may be submitted for the Minister’s consideration, together with a suitable draft regulation or regulations applicable to each of the Services of the Defence Force.
- The Judge Advocate General has suggested the following regulation in regard to the Military Forces:
- for any member of the Military Forces to have any licence or other permission for the doing of any act in the performance of his duties as a member of the Military Forces; or
- to register any animal, vehicle or vessel belonging to the Commonwealth and appropriated to the use of the Military Forces of any part thereof.
It shall not be necessary, under any law of any State—
I agree that the present obligation of the Department to comply with State law may be avoided by a regulation under the Defence Act 1903–1918.
The regulations under that Act are applied (with such modification and adaptations as are prescribed) to the Air Force (see Air Force Act 1923, section 3, subsection (3)).
I have some doubt whether regulations made under the Defence Act 1903–1918 after the commencement of the Air Force Act 1923 apply to the Air Force. Unless they do so apply the proposal now suggested will have no effect as regards the Air Force. I would point out further that there is no power under the Air Force Act to make regulations other than for the purpose of modifying or adapting the applied regulations.
So far as the Naval and Military Arms of the Defence Forces are concerned, the following draft regulation is suggested as a basic for the consideration of your Minister.
A member of the Military (Naval) Forces shall not be required under, or by reason of any law of a State,
- to obtain or have any licence or permission for doing any act or thing in performance of his duties as a member of the Military (Naval) Forces; or
- to register any animal, vehicle, vessel or article belonging to the Commonwealth and appropriated to the use of the Military (Naval) Forces.
[Vol. 22, p. 422]