Section 35 of the Defence Act 1903–1949 provides that, except as provided by Parts IV and XII of the Act, the Defence Force shall be raised and kept up by voluntary enlistment only.

Part XII of the Act contains the compulsory training provisions and has been inoperative since the Governor-General’s Order (Gazette 16.1.1930) that all units of the Active Citizen Military Forces become Militia Forces, to be kept up by voluntary enlistment only.

Part IV of the Act deals with the liability of male inhabitants of Australia between the ages of 18 and 60 years to serve in the Citizen Forces in time of war.

Time of war

‘Time of war’ is defined in section 4 of the Act as meaning ‘any time during which a state of war actually exists, and includes the time between the issue of a proclamation of the existence of war or of danger thereof and the issue of a proclamation declaring that the war or danger thereof, declared in the prior proclamation, no longer exists’.

By Proclamation (Gazette No. 61 of 2.9.1939) the existence of danger of war was proclaimed.

By Proclamation (Gazette No. 62 of 3.9.1939) the existence of war was proclaimed.

A proclamation declaring that the war declared in the proclamation of 3.9.1939 no longer exists has not yet been issued. Consequently, a ‘time of war’ within the meaning of the Defence Act still exists.

Territorial Limits of Service

Naval Forces—Section 33 of the Naval Defence Act 1910–1949 provides that members of the Naval Forces may be required to serve for naval training or any naval service either within or beyond the limits of the Commonwealth.

Military Forces—Section 49 of the Defence Act 1903–1949 provides that members of the Defence Force who are members of the Military Forces shall not be required, unless they voluntarily agree to do so, to serve beyond the limits of the Commonwealth and those of any Territory under the authority of the Commonwealth.

Section 49 was overridden by the Defence (Citizen Military Forces) Act 1943 which provided that any member of the Citizen Military Forces may be required to serve in such area contained in the South-Western Pacific Zone as is specified by proclamation. That zone was defined as meaning the area bounded on the west by the 110th meridian of East longitude, on the North by the Equator and on the East by the 159th meridian of East longitude. The operation of this Act is now exhausted, having expired at the end of six months after Australia ceased to be engaged in hostilities in ‘the present war’.

The present position appears to be, therefore, that no member of the Military Forces, whether Permanent or Citizen, may be required to serve beyond the limits of the Commonwealth and Territories unless he volunteers to do so.

Air Force—Section 4 of the Air Force Act 1923–1941 provides that members of the Air Force may be required to serve for training or any air force service either within or beyond the limits of the Commonwealth, with the proviso that no member of the Air Force appointed or enlisted for service within the limits of Australia only shall be required to serve beyond those limits unless he voluntarily agrees so to serve.

The second proviso to section 3(3) of the Air Force Act provides that a person called upon to serve in the Citizen Forces under section 60 of the Defence Act (Part IV) shall not be required, unless he voluntarily agrees to do so, to enlist and serve in the Air Force.

The present position appears to be, therefore, that the Air Force is composed of voluntarily enlisted persons who are liable to serve either within or beyond the limits of the Commonwealth, including the Territories, except in the case of a person who enlists for service only within those limits.

Territories

Note—References to ‘Australia’ and ‘the Commonwealth’ in the Naval Defence Act and the Air Force Act include the Territories of the Commonwealth to which the Defence Act extends. See section 5 of the Naval Defence Act and sections 3(3) and 4(2) of the Air Force Act. Section 5A of the Defence Act extends the application of that Act to the Territories.

PART IV OF THE DEFENCE ACT (SS. 59–61A)—LIABILITY TO

SERVE IN THE CITIZEN FORCES IN TIME OF WAR

In pursuance of the provisions of this Part the Governor-General by several proclamations, the first of which was gazetted on 30th November, 1939, called upon male inhabitants of Australia between 18 and 60 years of age, in the order of the classes specified in section 60(3) to enlist and serve in the Citizen Forces.

So far as this Department is aware, the persons so conscripted have all, except those who may have joined B.C.O.F., been discharged.

The proclamations have not been revoked and the time of war still continues, but it would appear that the operation of these proclamations is exhausted in relation to the persons who were enlisted, served and have been discharged. If fresh action under Part IV be desired, it would appear that fresh proclamations should be issued.

SS. 46 AND 47 OF PART III OF THE DEFENCE ACT—CALLING

OUT OF THE CITIZEN FORCES

Sections 46 and 47 of the Defence Act provide for the calling out, by proclamation, of the Citizen Forces in time of war and for their employment on war service.

By proclamation, gazetted on 2.9.1939, the voluntarily enlisted Citizen Forces were called out and ordered to be employed on such war service as the Naval Board, the Military Board and the Air Board, respectively, directed from time to time.

This proclamation has not been revoked and, by virtue of its terms, would, it appears, still be effective authority for fresh directions, if so desired.

As to territorial limits of service, see above.

British Commonwealth Occupation Force

It is understood that the Australian section of B.C.O.F. is composed of members of the Permanent Military and Air Forces and persons enlisted in the Military Forces or in the Citizen Air Force for a period of engagement of two years.

This Force is an expeditionary force and, in view of the provisions of sections 49 of the Defence Act and section 4 of the Air Force Act, every person in that Force executed an undertaking to serve beyond the limits of the Commonwealth and its Territories, if required to do so.

The statutory authority for raising an expeditionary force is to be found in section 33 of the Defence Act which provides that the Governor-General may, subject to the provisions of the Act, raise, maintain and organize in the manner prescribed such Permanent and Citizen Forces as he deems necessary for the defence and protection of the Commonwealth and of the several States.

By virtue of section 31(2) of the Defence Act, inserted by Act No. 71 of 1949, the military forces included in B.C.O.F., being a military force raised in time of war for service during time of war only or for a specified period, is a part of the Permanent Military Forces though not part of the Australian Regular Army.

In view of the nature of the Force and the undertaking to serve given by members it appears that they could be directed by the Government, through the appropriate Service authorities, to serve in Korea, Malaya or elsewhere beyond the limits of the Commonwealth and its Territories without the necessity of obtaining any additional statutory authority.

As noticed above, members of the Naval Forces are at all times liable to serve wherever required.

[Vol. 39, p. 187]