Opinion Number. 1654


compulsory military training Implementation of decision to reintroduce compulsory military training: supplementary opinion: effect of proclamation: registration of persons liable to undertake training: call-up provisions

Key Legislation

DEFENCE ACT 1903 Parts III, IV, XII, XIV, ss 32A, 46, 47, 59, 60, 125(c), 142(1), 144: PROCLAMATION dated 2 September 1939 under the Defence Act 1903 s 46

The Secretary, Department of Defence

I refer to my memorandum, W.215, dated 30th October, 1939,(1) in connexion with the decision to re-introduce compulsory military training.

In that memorandum I did not give consideration to the provisions of section 46 and 47 of the Defence Act and the Proclamation issued on the 2nd September, 1939, under section 46. Proclamation issued on the 2nd September, 1939, under section 46.

By virtue of those sections and the Proclamation the Active Citizen Military Forces including every person undergoing military training under the provisions of paragraph (c) of section 125 of the Act are liable to be employed on war service (see section 32A(2.)).

Paragraph (c) of section 125 of the Act provides that all male inhabitants of Australia from 18 to 25 years of age who have resided therein for six months and are British subjects shall be liable to be trained in the Citizen Forces unless exempted by the Act.

A person who is liable to be trained under the provisions of section 125(c) of the Defence Act would not appear to fall within the category of ‘those undergoing training’ unless he had attended at least one drill. While this construction might lead to anomalies it is, I think, necessary to interpret section 32A (2.) as being so limited in respect of persons so liable to be trained.

The persons whom it is desired to train during the present financial year are all (unless exempted) liable to be trained under Part XII of the Act and to register under Part XIV. The first step to be taken towards the training of these persons would be to arrange for their registration. In order that they may be registered under Part XIV, the time for their registration would have to be extended by a regulation made under section 142(1.)(b). Probably a regulation applying to this one particular class only could not be made but all persons who have not registered but should have done so would be liable to register although action need not be taken against non-registrants not belonging to this class. The arrangements for registration would necessitate the appointment of places for training where not already effected (see section 142(1)).

An alternative plan to registration under section 142 would be to make regulations under section 144 prescribing times and places for inspection etc. The persons in the particular class under consideration could then be called on to attend etc. in accordance with the provisions of the regulations.

Whichever of these alternative plans is adapted the next step, after a person has registered or furnished the prescribed particulars, would be to allot him to a military unit.

The third step would be to require him to attend a compulsory drill and the final step could then be taken of calling him up for service in pursuance of the proclamation issued under section 46.

In no case, however, could any person who is resident 5 miles or more from a place appointed for training be called on to serve in pursuance of the plan outlined above.

It is to be noted that if the persons in question are to be called up in pursuance of section 46 it appears to be necessary to call in aid the provisions of Parts XII and XIV. Section 46 does not, in my opinion, apply to persons who are liable to serve under section 59. Although sub-section (3.) of section 32A includes in the Military Reserve Forces ‘those liable to serve in time of war under section fifty-nine,’ I do not think that the expression quoted is wide enough to include such persons who have not enlisted, and in respect of whom action has not been taken, in accordance with the provisions of section 60. If the contrary view were held, then it would be possible to interpret the Act as if section 60 and the limitations provided therein were not included in the Act.

If recourse is had to the provisions of Parts XII and XIV in conjunction with those of the proclamation under section 46 I suggest that consideration be given to the question of applying the plan to persons who reach the age of 21 in a period of 12 months ending on the 31st December rather than to those who reach that age in such a period ending on 30th June.

I may add that although the course suggested above appears to be within the powers given by the Act it appears to me to be inconsistent with the design of the Act. It involves the utilization of Parts XII and XIV of the Act as though the training prescribed in Part XII were to be applied to those called up, whereas immediately afterwards Part III (and not Part XII) is applied to those persons. In my view a more satisfactory course from a legal point of view would be to apply the provisions of Part IV to the persons whom it is desired to call up.

[Vol. 32, p. 388]

(1) See Opinion No. 1653.