The Secretary to the Department of Defence has forwarded for advice the following memorandum:

I am directed to ask the favour of your opinion in connection with the provisions of the Defence Act regarding compulsory training of the Citizen Forces and the suspension of that training.

2. Section 127 of the Defence Act provides that the training in the Citizen Forces shall be sixteen whole day drills or their equivalent of which not less than eight shall be in camp with the exception of trainees allotted to certain technical corps where the prescribed training is longer.
3. Section 140 of that Act provides that in time of war the Governor-General may suspend in any year the whole or portion of that training.
4. Section 130 of the Act provides that the Citizen Forces from eighteen to twenty-five years shall receive pay as prescribed while training under Part XII of the Act. The conditions and rates of pay are set out in Financial and Allowance Regulations 339 and 340 (Statutory Rule No. 31 of 1917).
5. Advice is desired on the following:
1. If the Governor-General should issue now in time of war a proclamation under section 140 suspending the training of the Citizen Forces for the year ending 30 June 1921, would that proclamation of suspension continue to operate after the expiration of time of war should this occur prior to 30 June 1921?

In this connection it is desired to invite attention to the fact that the whole of the prescribed training for the year is possible of completion prior to the termination of time of war if the training for the year were not suspended.

2. Do the provisions of the Act make it compulsory for the Commonwealth Government for every year not in time of war to provide facilities for training the Citizen Forces serving under Part XII for the full period of annual training prescribed in the Act, or has the Government power to provide facilities for training for portion only of the prescribed period and to give the trainees leave of absence from the remaining portion of the prescribed training?

The question of the training of the Citizen Forces is largely affected by the amount of funds that may or may not be available to cover the expenditure incurred by the holding of camps of continuous training and the payment of trainees for their services. It is not desirable to reduce the rates of pay already provided by the regulations.

6. Should the Government have power to give leave of absence as above suggested, it is presumed that the trainees would not be entitled to receive pay for which they have been granted leave of absence.

Section 140 of the Defence Act 1903-1918 provides as follows:

140. The Governor-General may, in time of war, by order published in the Gazette, suspend in any year the whole or any portion of the training prescribed by Part XII of this Act, and all persons liable to be trained under that Part in that year shall not be required at any subsequent time to undergo the training so suspended.

In my opinion that section does not limit the power of suspension to training to be performed in time of war, but merely determines the period during which the power may be exercised.

In other words if in time of war the whole of the training is suspended in any year, the suspension would, I think, continue for the remainder of that year even though the time of war ceased in that year.

Question (a) should, therefore, in my opinion, be answered in the affirmative. Question (b) and the questions arising therefrom, may be enumerated as follows:

1. Is it compulsory for the Commonwealth Government, where training is not suspended, to provide facilities for training under Part XII of the Act?
2. In the absence of suspension, may a portion only of the prescribed training be conducted and the trainees be granted leave of absence for the remainder of the prescribed period?
3. If such leave of absence may be granted, may the pay of members be withheld for the period of leave?

Section 125 of the Act provides, inter alia, that all male inhabitants of Australia who have resided therein for six months, and are British subjects, shall be liable to be trained as prescribed as follows:

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(c) From eighteen to twenty-five years of age, in the Citizen Forces.Section 127 provides, inter alia, that the prescribed training in the Citizen Forces shall be, in each year ending the thirtieth day of June, sixteen whole day drills or their equivalent of which not less than eight shall be in camps of continuous training. In the case of the Artillery and Engineers and units of the Army Service Corps allotted to those arms, the period prescribed is twenty-five days of which seventeen shall be in camps of continuous training.

Section 133 of the Act provides as follows:

133. At the termination of each annual training in the Senior Cadets and Citizen Forces, each member shall be classified by the officer appointed in that behalf as 'efficient' or 'non-efficient'. Those who are classified as non-efficient, either for failure to attend during the prescribed period, or because they have not attained a sufficient standard of efficiency.shall be required to attend an equivalent additional training for each year in which they are non-efficient.

There appears to be no express obligation on the Commonwealth Government to provide facilities for training under Part XII, and there is, therefore, nothing to compel the Commonwealth Government to enforce in their entirety the compulsory provisions of the Act. The liability of the trainees would, however, in my opinion remain.

The trainees could not, I think, under such circumstances, be marked 'efficient' under section 133, and, having regard to the provisions of section 140 of the Act, there is, in my opinion, no power to provide by regulation that trainees should be marked 'efficient' for any year in which the provisions of Part XII were not enforced.

As regards question (b) (2), I am of opinion that the course suggested by that question would amount to a partial suspension of training, and, in view of section 140, would be ultra vires.

Question (b) (2) being answered in the negative, it is unnecessary to consider question (b) (3).

[Vol. 17, p.68]