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

The subjoined extract of a letter received in this Department from Mr A.B. of 'Wittunga', Blackwood, South Australia, is forwarded for favour of advice on the contention raised with regard to its application to the proviso to section 61 of the Defence Act.

I quite understand that no regulations can be made under the Defence Act contrary to the Act. The Act as far as I can see, and others agree with me, nowhere states that 'non-combatant duties' must be carried out under the Military. If this is so, then there should be no difficulty in framing a regulation which will enable the presiding magistrate at his discretion to order that the conscientious objector shall do his quota of service under 'civil control'. I am informed that the do his quota of service under 'civil control'. I am informed that the High Court, failing the existence of such a regulation, has given a ruling, the spirit of which is that until some such regulation is passed, the Act shall be read to mean that all non-combatant duties shall be rendered under the Military organisation. I would be glad to learn whether my contention is correct.

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

Section 61 exempts from service (i.e. service in the Citizen Forces) certain classes of persons, but provides that in certain cases specified in paragraphs (g) (h) and (i) of that section the exemption does not apply to non-combatants.

The persons, therefore, who are in the classes mentioned in those paragraphs must render service in the Citizen Forces, but their service is limited to non-combatant service.

As the Act requires the service to be in the Military Forces under military control, in my opinion, there is no power to pass a regulation allowing persons in the classes mentioned in paragraphs (g), (h) and (i) of section 61 of the Defence Act to render their service under 'civil control'.

[Vol. 15, p. 64]

(1)This opinion is unsigned in the Opinion Book, but it is attributed to Sir Robert Garran.