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

1. I am directed to ask the favour of advice upon the following matters in relation to the right of an officer who is a graduate of the Military College to resign his commission.
2. Section 17 (1) of the Defence Act provides:

17(1) Except during time of war an officer may by writing under his hand tender the resignation of his commission at any time by giving three months' notice.

3. It is understood that under this provision if in ordinary time of peace an officer so tenders his resignation the resignation will operate at the expiration of three months after tender irrespective of its acceptance by the Governor-General.
4. The question now arises as to the application of this provision in connection with a resignation tendered before the expiration of 'time of war' and within a period of less than three months before that expiration.
5. Advice is desired as to whether in such a case owing to the expiration of the three months' notice occurring after the expiration of time of war, the officer who tendered his resignation in 'time of war' is entitled to have his resignation accepted from the date of the expiration of the period of notice. It would appear from the section of the Act quoted that an officer is not entitled to 'tender' his resignation until after the expiration of time of war, and that therefore his resignation would not operate without its acceptance unless his resignation were tendered after the expiration of 'time of war'.
6. Attention is also invited to the proposed amendment to section 17 of the Defence Act as contained in clause 9 of the Defence Bill and especially to the proviso contained in that clause.
7. An officer who is a graduate of the Military College has tendered his resignation in time of war which has not been accepted, and the expiration of the period of notice will occur after the cessation of time of war-the second proclamation under the definition of 'time of war' (Defence Act, section 4) having been submitted for issue. If the opinion expressed in paragraph (5) above is correct the officer's resignation will not operate without its acceptance and he will not be entitled to resign his commission unless or until the three months have elapsed from the date of his again tendering his resignation after the expiration of 'time of war'.
8. The favour of advice is also asked whether, in the event of an officer who is a Duntroon graduate tendering his resignation after the expiration of time of war and of the amendment contained in clause 9 of the Defence Bill becoming law subsequent to the date of tender but before the expiration of three months from the date of tender, the proviso would then operate in his case to prevent his resignation taking effect except on the approval of the Military Board and his payment of the prescribed amount.
9. It is presumed that a resignation tendered in time of war will not entail the resignation operating without its acceptance even though in the notification of tender the intention is expressed that the resignation should take effect from a date three months after the expiration of time of war.
10. In view of the urgency of the matter I shall be glad if your advice can be given on the questions as early as possible.

In my opinion section 17 (1) of the Defence Act 1903-1918 should be construed as meaning that if an officer gives three months' notice his resignation shall take effect at the expiration of the three months.

I am, however, of opinion that notice given during time of war does not entitle the officer to have his resignation accepted, notwithstanding the termination of the war within three months from the tender of resignation. Section 17 has no application, in my opinion, to a resignation tendered in time of war.

I therefore think that the view expressed in paragraph (7) of the Secretary's memorandum is correct.

[Vol. 18, p. 219]