Opinion Number. 745

Subject

DEFENCE FORCES WHETHER COMMONWEALTH HAS POWER, BY REGULATION, TO ESTABLISH AND ADMINISTER ARMY RESERVE AND TO PROVIDE FOR FORMATION OF TERRITORIAL ASSOCIATIONS

Key Legislation

DEFENCE ACT 1903. ss. 32A(3), 33, 52, 124

Date
Client
The Secretary, Department of Defence

The Secretary, Department of Defence, desires advice on the following points:

  1. Does the Defence Act 1903-1915 permit of the Governor-General making regulations necessary to cover the administration of the Australian Army Reserve?
  2. If it does not, what section of the Act precludes this being done and what course is advised to render the making of such regulations permissible?

I understand that what is proposed is the establishment of a Reserve the members of which are to be enrolled voluntarily; that the members are to be liable to certain training annually; and to receive pay as prescribed; also that Territorial Associations are to be established with the object of fostering interest in the Reserve and of undertaking miscellaneous duties.

So long as the members of the Reserve are enrolled voluntarily, I see nothing in the Defence Act to prohibit the establishment of the Reserve. The Reserve would form part of the Reserve Forces. Section 32A(3) which defines the constitution of the Military Forces, is an inclusive definition and does not prohibit the inclusion of other persons in the Reserve Forces. Section 33 authorises the Governor-General, subject to the Act, to raise, maintain, and organise, in 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 section 52 of the Act, the Defence Force is subject to such drill, training, and inspection and to such regulations for the discipline and good government of the Force as are prescribed.

By section 124 wide powers are given to make regulations prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for securing the good government of the Defence Force or for carrying out or giving effect to the Act.

Under this last mentioned section, I think regulations can be made providing for the formation of Territorial Associations, though whether such Associations could, by regulation, be incorporated, sue and be sued, and hold property, is more doubtful.

On the whole, therefore, I am of opinion that the Defence Act 1903-1915 does permit of the Governor-General making regulations necessary to cover the administration of the Australian Army Reserve, so long as the Reserve is maintained by voluntary enlistment only.

[Vol. 14, p. 450]