The Secretary to the Navy Office has submitted the following memorandum for advice:

I am commanded by the Naval Board to forward herewith, for your information, copy of a letter received from Messrs Malleson Stewart & Company, Solicitors, 46 Queen Street, Melbourne, acting on behalf of Mr A.B. of 27 Prince's Terrace, St Kilda Road, Melbourne, formerly a Chief Engine Room Artificer in the Royal Australian Navy, who claims compensation in respect of his removal from the Naval Depot, Williamstown, to the Royal Australian Naval College, Jervis Bay, in July 1916.

1. Chief E.R.A. B. was a pensioner from the Royal Navy, who was engaged in the United Kingdom by the Commonwealth Naval Representative, for service in the Royal Australian Navy, and executed an engagement to serve for a period of five years from 15 June 1912. The Naval Representative, London, informed B. on entry that he was required 'for duty in the Torpedo School Tender stationed at Melbourne', and his Agreement Form, which is attached, contains a notification to this effect on page 2. This meant that Chief E.R.A. B. could be called upon to serve at the Naval Depot (then at Williamstown) or in any ship which might be employed as gunnery tender to the Naval Depot.
2. fl., on arrival in Australia, was appropriated to the Naval Depot, Williamstown, and took up his duty at that establishment in accordance with the terms of his agreement.
3. In July 1916, the services of a Chief E.R.A. of fl. 's standing were found necessary at the R.A.N. College, Jervis Bay, and in view of the fact that a state of war then existed, Chief E.R.A. fl. was appropriated to the position. In this connection, I am to observe that any pensioner of the Royal Navy may be called upon, by the Admiralty, in war or other emergency, to serve in the Forces in any part of the world, and as the Naval Board were at the time acting in Australia on behalf of the British Admiralty, the Board considered that they had power to transfer fl. to the College, apart from any existing agreement. The Board have no doubt that had they considered it necessary to apply to the Admiralty at the time, for covering approval, this approval would have been immediately given.
4. If Chief E.R.A. B. had been called upon by the Admiralty for service in any part of the world, they would have recognised no liability in the matter of personal expenses, other than the cost of his passage to and from the port at which he was to be stationed.
5. The Board would be obliged to receive an opinion as to whether the agreement entered into by Chief E.R.A. B. with this Department, on his entry on 15 June 1912, viz. that he was to be employed in the Torpedo School Tender stationed at Melbourne only, should have been honoured, or whether it is considered that the change in circumstances arising out of the war justified the Board in removing him, on behalf of the Admiralty, to Jervis Bay, under the conditions appertaining to the acceptance of a pension by a member of the Naval Forces.

Section 20 of the Naval Defence Act 1910-1918 provides that the Permanent Naval Forces shall consist of officers who are appointed officers of those Forces and seamen who have enlisted or engaged as members of those Forces and who are bound to continuous naval service for the term of their enlistment or engagement.

The agreement into which Chief Engineer Room Artificer B. entered on 15 June 1912, for service with the Royal Australian Navy states (inter alia) that the term of his engagement shall be five years and that he shall 'be subject as regards naval discipline to the Acts and Regulations governing the Commonwealth Naval Forces'. Section 36 of the Naval Defence Act 1910-1918 provides that:

The Naval Discipline Act and the Naval Discipline (Dominion Naval Forces) Act 1911 and the King's Regulations and Admiralty Instructions for the time being in force in relation to the King's Naval Forces shall, subject to this Act and to any modifications and adaptations prescribed by the regulations, apply to the Naval Forces.

It would appear, therefore, that B. on entering into the agreement for service with the Royal Australian Navy became a member of the Permanent Naval Forces without however affecting his claims and obligations as a pensioner of the Royal Navy.

Sections 31 and 33 of the Naval Defence Act 1910-1918 provide as follows:

31 The Permanent Naval Forces are liable to continuous naval service, and shall at all times be liable to be employed on any naval service, including active service, and the defence and protection of the Commonwealth and of the several States.

33 Members of the Naval Forces may be required to serve for training or any naval service either within or beyond the limits of the Commonwealth.

Unless, therefore, there is anything in the agreement to exclude the application of sections 31 and 33 of the Naval Defence Act, it would appear that B., during the term of his engagement with the Royal Australian Navy, was liable to be employed on any naval service, including active service, and could be required to serve either within or beyond the limits of the Commonwealth.

The agreement contains the following declaration, which occurs immediately before the signature of B.:

The foregoing conditions are clearly understood by me.

I hereby certify that I accept these conditions and agree to serve in the Royal Australian Navy for five years from this date (for duty in Torpedo School Tender stationed at Melbourne).

It appears from the memorandum that the Naval Representative in London informed B., at the time of his employment, that he would be required for duty in the Torpedo School Tender stationed in Melbourne. This intention is expressed in the portion of the agreement quoted above. It also appears that B. was, in fact, appropriated to the Naval Depot at Williamstown, Melbourne, and was retained at that Depot until July 1916, a period of approximately four years from the date of his engagement. In July 1916, owing to the exigencies due to a state of war, his services were required for duty at the Naval College, Jervis Bay.

The reference in the agreement to B. being engaged 'for duty in Torpedo School Tender stationed at Melbourne' is, in my opinion, a description of the duty which, at the time of his engagement, it was intended B. should perform, and which in fact he did perform until after the outbreak of war. There is, however, nothing in the agreement which excludes the general application of the Naval Defence Act; on the contrary B. expressly binds himself to be 'subject ... to the Acts and Regulations governing the Commonwealth Naval Forces'.

I think, therefore, that it was within the powers of the Naval Board, in time of war, to employ B. on any active service and to require him to serve at such place as the Naval Board thought fit in the exigencies of war. It follows, therefore, that the Naval Board were, in the exigencies of war, justified in transferring B. from the place where pursuant to his agreement he had been serving until the emergency arose which in the view of the Naval Board required his services being utilised elsewhere.

[Vol. 18, p. 279]