Opinion Number. 742

Subject

DEFENCE FORCES WHETHER PERSONS EXEMPT FROM SERVICE ARE REQUIRED TO REPORT WHEN CALL-UP PROCLAMATION IS ISSUED: ENROLMENT OF EXEMPT PERSONS FOR RECORD PURPOSES

Key Legislation

DEFENCE ACT 1903, ss. 59, 60, 61: WAR SERVICE REGULATIONS 1916, reg. 6 (1)

Date
Client
The Acting Secretary, Department of Defence

The Acting Secretary, Department of Defence, has fowarded the following memorandum for advice:

War Service Regulation 6(1) states:

Upon the issue of a Proclamation by the Governor-General under Section 60 of the Defence Act calling upon a class of persons to enlist and serve, all persons liable for enlistment under that Proclamation shall attend at such times and places as may be notified by the military registrar or assistant military registrar of a sub-district by notices exhibited at Post-offices and other authorized places or by notice in the public press or by notice posted to the person's last known place of abode. An opinion is desired as to whether, in view of section 61A of the Defence Act, it is essential that persons specified in section 61 of the Act, who come within the provisions of any proclamation, must report and submit an application for exemption.

Section 59 of the Defence Act 1903-1915 provides that all male inhabitants of Australia (excepting those who are exempt from service in the Defence Force) who have resided therein for six months and are British subjects and are between the ages of eighteen and sixty years are, in time of war, liable to service in the Citizen Forces.

Section 61 sets out the persons who are entitled to exemption from service in time of war.

Section 60 provides that it is lawful for the Governor-General by proclamation to call upon all persons liable to serve in the Citizen Forces to enlist and serve as prescribed.

Reading these three sections together, the proclamation can only call up for enlistment those who are liable for service.

In my opinion, persons totally exempt from service under section 61 of the Act are not required to enlist under a proclamation made by the Governor-General under section 60 of the Act. If it is desired that a record should be kept of the persons in a class called up for service, who are exempt under section 61, in my opinion, a regulation could be made under the War Precautions Act requiring those persons to attend before a military register for enrolment. A draft(1) of such a regulation together with amendments of existing regulations desired by the Military Secretary is forwarded herewith.

[Vol. 14, p. 436]

(1)Draft not found