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

During the continuance of the Defence (Civil Employment) Act 1918, no office in the Public Service is to be created in the Department of Defence, the Act providing that in lieu of the creation of any such office, there may be created a civil office under section 63 of the Defence Act. If the Governor-General expresses an opinion that any such civil office would but for the Act have been a public service office, it will become a public service office upon the expiration of the Act, the occupant being meanwhile required to comply with the provisions of Part IV of the Public Service Act etc. I shall be glad if you will be so good as to advise as to the form in which the opinion of the Governor-General should be expressed and the time when it should be given.

It is also desired to learn how to effectuate the appointment of a military staff clerk to any civil office, which is created during the continuance of the Act, and which it is contemplated should become a public service office upon the expiration of the Act, provision being made for his removal from the Permanent Military Forces, and from the scope of section 15 (4) of the Defence (Civil Employment) Act.

Section 10 of the Defence (Civil Employment) Act 1918 provides as follows:

1. During the continuance of this Act no public service office shall be created in the Department of Defence, but in lieu of the creation of any such office there may be created a civil office in the Defence Force.
2. Any person appointed to any such office which in the opinion of the Governor-General would but for this Act have been a public service office, shall be required to comply with the provisions of Part IV of the Commonwealth Public Service Act 1902-1917 and the regulations relating to that Part as if he were subject to that Act.

There appears to be nothing in the Act fixing the time at which the opinion referred to in that section is to be expressed. In my opinion, therefore, the opinion may be expressed upon the creation of the office (in the instrument creating the office), or upon making an appointment to the office (in the instrument appointing any person to the office), or at any other time (in a separate instrument).

Draft Orders in Council appropriate to the respective cases are forwarded herewith.⁽¹⁾

As regards the questions raised in the last paragraph of the Secretary's memorandum, I am of opinion that there is nothing in any law of the Commonwealth to prevent the appointment of a person, who but for the Defence (Civil Employment) Act would be a military staff clerk, to a civil office created under the Defence (Civil Employment) Act 1918 which, in the opinion of the Governor-General, would, but for that Act, have been a public service office. I think, however, that, except by amendment of the Act or in the case (mentioned below) of officers, there is no power, while the Act continues in force, to remove such a person from the Permanent Military Forces and from the operation of section 15 (4) of the Defence (Civil Employment) Act.

Under sub-section (3) of section 15 of the Defence (Civil Employment) Act, which provides as follows:

Any military staff clerk who becomes and is deemed to be a person employed in a civil capacity in connexion with the Defence Force shall, during the continuance of this Act, retain such of the rights and privileges, to which he would have been entitled had he continued to be a member of the Permanent Military Forces, as are specified by Regulations made under the Defence Act 1903-1917,

a regulation might be made preserving to such persons who, as military staff clerks held honorary commissions, the right to resign their commissions. Any such person who held an honorary commission, who is appointed to a civil office which under the Act will become a public service office, could then resign his commission and would, I think, then cease to be a member of the Permanent Military Forces and would free himself from the provisions of section 15 (4).

In the case of the person who, as a military staff clerk, was a non-commissioned officer or a soldier, there appears, however, to be no power given to him to resign prior to the termination of his period of engagement; and I am, therefore, of opinion that he cannot be removed from the provisions of section 15 (4).

The question then is how to overcome the conflict between paragraph (d) of section 14 and sub-section (4) of section 15 of the Defence (Civil Employment) Act in cases where such persons are appointed to the civil offices mentioned in paragraph (c) of section 14.

By paragraph (d) of section 14 all persons occupying the offices mentioned in paragraph (c) become, on the expiration of the Act, public servants in like manner as if the offices had been public service offices and they had been appointed to those offices in pursuance of that Act. The words 'that Act' so used mean, I think, the Public Service Act.

If however a person who would but for the Act be a military staff clerk is occupying such an office he, by virtue of section 15 (4), again becomes a military staff clerk and subject to the provisions of the Defence Act and the regulations thereunder relating to the Permanent Military Forces.

There appears however to be no legal objection to a person being a public servant and a member of the Permanent Military Forces at the same time.

In my opinion, therefore, a person, who is subject to section 15 of the Act, who is occupying an office mentioned in paragraph (c) of section 14 at the expiration of the Act, becomes both a public servant and a military staff clerk. If it is then desired that he should no longer be a military staff clerk he could be discharged, in pursuance of the Defence Act, from the Permanent Military Forces.

Otherwise I think the difficulty can only be overcome by amendment of the Act.

[Vol. 18, p. 118]

(1)Draft Orders omitted.