Opinion Number. 740

Subject

DEFENCE FORCES COMPULSORY VACCINATION: WHETHER MEMBERS OF DEFENCE FORCE CAN BE COMPULSORILY VACCINATED: POWER OF MILITARY BOARD TO ISSUE NECESSARY ORDER

Date
Client
The Secretary, Department of Defence

On 13 February 1911, I advised that an order of the Military Board directing members of the Permanent Forces to be vaccinated was not contrary to law, and must be obeyed by soldiers.(1)

A similar order was applied to members of the Australian Imperial Force.

Several members of that Force refused to undergo vaccination, were court-martialled, and convicted. The court-martial proceedings were forwarded to the Judge Advocate General, who subsequently advised that the order in question was ultra vires, and that the convictions should be quashed.

The Secretary, Department of Defence, has again referred the matter to me for advice.

The file does not show on what grounds the Judge Advocate General based his decision, but after further careful consideration of this matter, I am of opinion that my previous advising is correct.

[Vol. 14, p. 430]

(1)Opinion not published in Vol.1; although written in l9ll it is ?led in the Opinion Books among opinions written in 1916 [Vol.14, p. 416].

The Secretary, Department of Defence, had asked whether an order issued by the Military Board requiring all memlgers of the Permanent Forces detailed for service at Thursday Island to be vaccinated prior to transfer (on account of the danger of smallpox) was binding, or whether a regulation was necessary to give effect to the Board's order.
In reply Mr Garran, as Secretary, Attorney-General's Department, said:

‘The order is clearly issued for the purpose of safeguarding the physical health of the forces, and therefore relates to military duty, and it is not contrary to law.

In my opinion, it is a lawful command, which the soldiers are bound to obey’.