The Secretary, Department of Defence, has forwarded the following memoran-dum asking for advice:

I shall be glad of the favour of a ruling on the following question:

A soldier of the Australian Imperial Force has been ordered to submit himself to dental treatment in order to render himself fit for active service. The soldier has refused to obey this order. Advice is asked as to whether the order to submit to dental treatment is a lawful one and whether the disobedience of the order constitutes an offence against section 9 (2) of the Army Act for which he may be tried by court-martial.

1. The Attorney-General has already ruled (13.2.11 and 5.10.16⁽¹⁾) that the order to a soldier to submit himself to vaccination is a lawful one as it is clearly issued for the purpose of safeguarding the physical health of the Forces and therefore related to military duty.
2. In the case of dental treatment there is the possibility that failure to undergo treatment may endanger the health of other soldiers through infection though the possibility is small, but on the other hand the health of the individual soldier is seriously affected by his failure to submit to treatment and to such an extent that it may be necessary to discharge him from the Forces as unfit for active service.
3. A soldier is at present under arrest on a charge of disobeying an order to submit to dental treatment and the convening authority is awaiting advice on the question raised before assembling a court-martial for his trial. I shall be glad therefore if you will be good enough to treat the matter as urgent.

The case now submitted differs from that previously submitted in that in the former case the treatment which the soldier was ordered to undergo (namely vaccination) was ordered not only for his own benefit but also as a protection to other members of the Forces. In the present case no doubt the main object of the order would be to increase the physical efficiency of the individual member, and not to safeguard the health of other members.

After careful consideration, I am of opinion that, having regard to the fact that dental treatment is necessary for the purpose of sanitation, and as such makes for the efficiency of the individual member, an order to submit to dental treatment is a lawful order, and disobedience of it constitutes an offence against section 9 (2) of the Army Act.

I desire to state that it should not be regarded as authority for the proposition that any medical or surgical treatment whatever (including such treatment as a major operation) would be a lawful order within the meaning of the Army Act.

[Vol. 15, p. 195]

(1)Opinion No. 740; in each case of ruling was given by Mr. Garran.