Opinion Number. 1701

Subject

WOMEN’S AUXILIARY SERVICES WOMEN’S AUXILIARY SERVICES of Army, Air and Naval Services: raising of women’s service as part of defence force: disapplication of provisions of defence act thereto: making of members of Women’s Services members on same footing as male members: implications for pensions and benefits

Key Legislation

AIR FORCE ACT 1923: NATIONAL SECURITY ACT 1940: DEFENCE ACT 1903: ARMY ACT 1881 (U.K.) (44 & 45 Vict. c. 5): NATIONAL SECURITY (WAR PENSIONS AND REPATRIATION BENEFITS) REGULATIONS 1942

Date
Client
The Assistant Secretary, Defence Division, Department of the Treasury

I refer to your memorandum No. 3963 of 21st May, 1942, relating to the Women’s Auxiliary Forces of the Army, Air and Naval Services, and the copy of a memorandum from the Secretary, Department of Air, submitting the proposals of the Department, forwarded under cover thereof. I have also received from the Secretary, Department of the Army, a copy of his memorandum to you containing the views of the Department of the Army.

With reference to paragraph 5 of the memorandum from the Secretary, Department of Air, I think that there is no legal objection to the draft regulation accompanying that memorandum but, in my opinion, the making of that regulation would not confer power to make further regulations under the Air Force Act 1923–1941 prescribing the organization and conditions of service of the Women’s Auxiliary Force. The regulations contemplated, if made under the National Security Act or under the Air Force Act and the National Security Act would be subject to the limitation mentioned in paragraph 4 of the Department of Air memorandum.

I agree with the army contention that there is no provision in the Defence Act 1903–1941, express or implied, which prohibits females from being members of the Defence Force and that it would be competent for the Governor-General, in pursuance of section 33 of that Act, to raise and maintain by voluntary enlistment and to organize, in the manner prescribed by regulations under the Act, a Women’s Service as part of the Defence Force.

I think that the existence of any provision in the Army Act prohibiting the enlistment of women into the British Army would not constitute a legal obstacle to the enlistment of women in the Australian Military Forces, as the Army Act is applied to those Forces only so far as it is not inconsistent with the Defence Act and any provision of the Army Act which is applicable may be modified by regulation under the Defence Act.

With regard to the objections stated in paragraph 3 of the Department of Air memorandum, with the exception of that stated in the final sentence, it would appear to be possible, by regulation under the National Security Act, to provide that such provisions of the Defence Act as it may be desired not to apply to the Women’s Service shall not apply or shall be modified in their application.

The objection stated in the final sentence of paragraph 3 of Department of Air memorandum appears to be a matter worthy of careful consideration if it be decided to make the members of the Women’s Services members of the Defence Force on the same footing as male members. For example, it would appear that their position in relation to pensions and benefits under the National Security (War Pensions and Repatriation Benefits) Regulations (Statutory Rules 1942, No. 215) would be affected.

Having regard to all the matters raised for consideration, however, it appears to me that the simplest and most satisfactory course would be to pass a special short Act on the lines of the Air Force Act 1923 to authorize the making of regulations governing the several Services.

[Vol. 34, p. 405]