Opinion Number. 1653


compulsory military training
power of commonwealth to implement decision to reintroduce compulsory military training

Key Legislation

Defence Act Part XII, ss 60, 127, 140: National Security Act 1939 s 5(7)(a)

The Secretary, Department of Defence

I am in receipt of your memorandum dated 25th October, 1939, No. 37081, requesting my advice as to the manner in which legal effect may be given to the decision to re-introduce compulsory military training.

The decision is that unmarried men who attain the age of twenty-one years during the year ending on the 30th June, 1940, and were unmarried on the 21st October, 1939, shall be called up under Part XII to undergo continuous training for a period of three months commencing in January, 1940.

It is indicated that section 140 may possibly be called in aid to give effect to this decision. This section authorises the Governor-General to suspend the whole or any portion of the training prescribed by Part XII of the Act. Presumably, it is considered that section 140 would permit of the suspension of training except in relation to the persons whom it is now sought to train.

Section 140 would not, in my view, authorize the issue of a proclamation to suspend training in respect of a particular class of person liable to be trained in the Citizen Forces. All that the section permits is the suspension of the whole or portion of the training prescribed by Part XII, that is to say, by section 127. Under that section, training in the Citizen Forces is, with certain exceptions, to be for sixteen whole day drills. A portion of the sixteen whole day drills could, I think, be suspended in respect of the whole of the Citizen Forces but not in respect of the members of a particular age or conjugal condition.

There is another reason why section 140 does not appear to be sufficient authority for implementing the proposal. As mentioned above, sixteen whole day drills constitute the prescribed training. It will not, therefore, be possible, without an amendment of the law, to carry out the intention stated in your memorandum namely, that training shall be for a period of three months.

In view of the absence of authority under section 140, I have examined other sections of the Act. Section 60 contains sufficient authority for the compulsory training, during time of war, of the men now in question other than those married at the date of the proclamation calling the men up for service.

If, however, it is desired to give full effect to the decision mentioned in the second paragraph of this memorandum, I think that it will be necessary to amend the Act.

I may add that provision for the training in question cannot be made under the National Security Act 1939 in view of the provisions of section 5(7)(a) of that Act.

[Vol. 32, p. 386]