Opinion No. 1682
NAVAL ENLISTMENT OF INFANTS
AUSTRALIAN NAVAL RESERVE: ROYAL AUSTRALIAN NAVAL VOLUNTEER RESERVE: ENLISTMENT OF INFANTS: WHETHER CONSENT OF PARENT OR GUARDIAN REQUIRED: CONTRACTS BY INFANTS: ENLISTMENT OF INFANTS IN NAVAL FORCES
NAVAL DEFENCE ACT 1910 ss 10, 25A: NAVAL RESERVE REGULATIONS reg 29: NAVAL VOLUNTEER RESERVE REGULATIONS reg 5
14 May 1941
The Secretary, Department of the Navy
The Secretary, Department of the Navy, has forwarded the following memorandum to me for advice:
- The conditions of enlistment laid down for the Royal Australian Naval Reserve and the Royal Australian Naval Volunteer Reserve include a requirement that a minor, seeking entry to those Forces, must obtain the written consent of his parent or guardian before his application for such entry will receive consideration, and provision is made for the endorsement of such consent on the form of application (vide Form R.A.N.R. 6(D) attached).
- It is presumed that, to render an engagement binding upon a minor, such consent is necessary under the Common Law, for it would appear that there is no statutory obligation to obtain this consent in the case of the Citizen Naval Forces (vide section 25A of the Naval Defence Act, which refers to the Permanent Naval Forces only).
- Several applications have recently been received where, in each case, owing to the father’s absence abroad with the A.I.F., the applicant has submitted a consent signed by the mother only, and doubt has arisen as to whether these applicants can be lawfully accepted for entry to the Royal Australian Naval Reserve.
- Your opinion is requested on the following questions:
- Is the consent of a parent or guardian legally necessary in the case of a minor seeking entry to the Naval Reserve Forces?
- If such consent is necessary–
- Is the consent of either parent acceptable under any circumstances? or
- Is the consent of a mother acceptable, where, under the special circumstances mentioned in paragraph 3 above, it is not practicable to obtain the consent of the father?
Section 25A of the Naval Defence Act is as follows:
- Any person under the age of twenty-one years may, with the consent in writing of his parent or guardian, enlist for service in the Permanent Naval Forces for such period as is prescribed, but that period shall not exceed the time required for him to attain the age of thirty years.
- The enlistment of any person in pursuance of this section shall be binding on him both during his infancy and after he attains his majority.
The enlistment of a person in the Naval Forces is (except as provided in section 10 of the Naval Defence Act) in the nature of a contract between that person and the Commonwealth. At common law, an infant’s contracts are, in general, voidable at his instance, but that rule does not apply to contracts for necessaries or to contracts of service and apprenticeship if they are for the infant’s benefit. I know, however, of no rule of law that a contract otherwise voidable by an infant is not so voidable merely because his parent or guardian consented thereto. At the most, such a consent might be some evidence that the contract was for the infant’s benefit.
There is authority for the proposition that an infant may enlist in the Naval Forces of the Crown. In R. v. Rotherfield Greys (1 B. & C. 345; 107 E.R. 128) the question was considered in relation to a minor who had enlisted in the Marines. Best J. said (at p. 349),:
By the general policy of the law of England, the parental authority continues until the child attains the age of 21 years; but the same policy also requires that a minor shall be at liberty to contract an engagement to serve the State.
Under regulation 29 of the Naval Reserve Regulations, candidates for enrolment in the Naval Reserve must be between 18 and 40 years of age, except in time of war or emergency when any person of any age may engage. Regulation 5 of the Naval Volunteer Reserve Regulations provides that there are no restrictions with regard to the age of entry of persons to the Naval Volunteer Reserve. Nothing is said in either regulation, or elsewhere, so far as I am aware, that consent is necessary in the case of infants.
Disregarding for the moment section 25A of the Naval Defence Act, I think it is clear from the foregoing that an infant may enlist in the Naval Forces. The question must, however, be considered in the light of section 25A. There are two views possible of the effect of that section. The first is that it merely modifies an existing power of enlistment so far as the Permanent Naval Forces are concerned, by requiring certain consent and limiting the period of enlistment. The second is that it confers express power to enlist infants in the Permanent Naval Forces, that, but for its enactment, such a power would not have existed, and that, since the section applies to the Permanent Naval Forces only, there is no power for an infant to enlist in the Citizen Naval Forces.
On the whole, I am inclined to think the former construction of the section is to be preferred for the reason that, as mentioned above, an infant was empowered at common law to enlist in the Naval Forces and, therefore, no statutory provision for that purpose was necessary. Question (i) submitted for advice should, therefore, be answered–‘No’. In view of the answer to question (i) it is unnecessary to answer question (ii).
[Vol. 34, p. 121]