Opinion Number. 1791

Subject

COMMONWEALTH PUBLIC SERVICE: RETURNED SOLDIERSVOLUNTEER DEFENCE CORPS: CITIZEN MILITARY FORCES: WHETHER FULL-TIME MEMBER OF VOLUNTEER DEFENCE CORPS IS A ‘RETURNED SOLDIER’ WITHIN MEANING OF COMMONWEALTH PUBLIC SERVICE ACT 1922: MEANING OF ‘MEMBER OF THE FORCES’ AND ‘WAR SERVICE’ IN RE-ESTABLISHMENT AND EMPLOYMENT ACT 1945

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1922 s 7: DEFENCE ACT 1903 s 33: RE-ESTABLISHMENT AND EMPLOYMENT ACT 1945 ss 4, 23(1): VOLUNTEER DEFENCE CORPS REGULATIONS reg 3

Date
Client
The Secretary, Commonwealth Public Service Board

I refer to your memorandum No. G41/28 of 1st October, 1946, requesting advice as to whether a person who served in a full-time capacity with the Volunteer Defence Corps may be regarded as a returned soldier for the purposes of the Commonwealth Public Service Act 1922–1946.

Section 23(1) of the Re-establishment and Employment Act 1945 provides that the definition of ‘Returned Soldier’ in section 7 of the Commonwealth Public Service Act is amended by adding at the end of the definition the following words: ‘and also includes a discharged member of the Forces within the meaning of the Re-establishment and Employment Act 1945’.

A ‘member of the Forces’ is defined by section 4 of the Re-establishment and Employment Act 1945 to mean certain classes of persons including—

(c) a member of the Citizen Forces who was enlisted, appointed or called up for continuous service for the duration of, and directly in connexion with, the war;

It appears clearly, I think, that a person who served in the Volunteer Defence Corps was a member of the Citizen Military Forces. The Volunteer Defence Corps is a part of the Military Force raised by the Governor-General under section 33 of the Defence Act. The Corps is constituted, by regulation 3 of the Volunteer Defence Corps Regulations, as a corps of the Citizen Military Forces consisting of persons enlisted in those Forces for service in the Corps and members of the Australian Military Forces, employed on full time duty, who are transferred to the Corps.

I am advised by the Secretary, Department of the Army, that all persons who enlisted in the Volunteer Defence Corps took and subscribed an oath of enlistment to serve in the Citizen Military Forces for the duration of the war, or until sooner lawfully discharged, dismissed or removed. It will be observed that this form of engagement did not of itself impose an obligation to render continuous service.

I am also informed by the Secretary, Department of the Army, that, following the entry of Japan into the war, a certain number of members of the Corps were, in pursuance of the Proclamation of 3rd September, 1939, relating to the Citizen Forces, called up to render continuous full time service for the duration of the war. It seems clear that the service which all persons so called up were required to render was service ‘directly in connexion with the war’.

It appears, therefore, that the question of whether a particular person, being a member of the Volunteer Defence Corps, was called up for continuous service for the duration of, and directly in connexion with, the war is a question of fact in each individual case. In my view, any person who was, in fact, so called up is a ‘member of the Forces’ within the meaning of the Re-establishment and Employment Act 1945.

Section 4(2) of the Re-establishment and Employment Act provides that, for the purposes of the Act, a member of the Forces who has ceased to be engaged on war service shall be deemed to have been discharged.

The meaning of ‘war service’ is defined in section 4(1) of the Act. In my view, the service rendered by means of the Volunteer Defence Corps called up for continuous full time service, as stated above, is ‘war service’ of the class described in paragraph (c) of that definition.

In the view I take, therefore, any person who, being a member of the Volunteer Defence Corps, was called up for continuous full time service in that Corps, became, on his ceasing to be engaged on that service, a discharged member of the Forces within the meaning of the Re-establishment and Employment Act 1945, and, accordingly, a ‘returned soldier’ within the meaning of that term as defined in section 7 of the Commonwealth Public Service Act 1922–1946.

[Vol. 37, p. 342]