Opinion Number. 865



Key Legislation

DEFENCE ACT 1903, ss. 33, 35, 38, 46, 47: AUSTRALIAN MILITARY REGULATIONS 1916, reg. 1309

The Secretary, Department of Defence

The Secretary to the Department of Defence has forwarded for advice the following memorandum by the Adjutant-General:

With reference to the proposed scheme of voluntarily enlisting men for service in Militia units for home defence purposes I have considered the question as to whether any amendment to the Act is necessary and I am of opinion that sufficient power exists under the Act as it at present stands without any amendment.

  1. Section 33 of the Act reads as follows:
  2. The Governor-General may, subject to the provisions of this Act, raise, maintain, and organize in the manner prescribed such Permanent and Citizen Forces as he deems necessary for the defence and protection of the Commonwealth and of the several States.

  3. Section 35 of the Act reads as follows:
  4. Except as provided in Parts IV and XII of this Act the Defence Force shall be raised and kept up by voluntary enlistment only.

    Part IV of the Act deals with the liability to serve in the Citizen Forces in time of war which is imposed on all male inhabitants of Australia between the ages of 18 and 60 years.

    Part XII deals with the universal obligation in respect of naval and military training.

  5. Section 38 of the Act reads as follows:
  6. The oath of enlistment shall bind the person subscribing it to serve in the Defence Force in accordance with the tenor of his oath until he is legally discharged, dismissed, or removed therefrom, or his resignation is accepted.

  7. Taking these three sections in conjunction with one another it appears that there is ample statutory authority to enlist voluntarily as many men as may be considered necessary in the Citizen Forces.
  8. With regard to the training of these men sections 46 and 47 of the Act confer on the Governor-General power to call out the Citizen Forces in time of war, and such Forces as are so called out for duty are required to serve so long as they may be required.
  9. By a proclamation dated 6 August 1914, the Governor-General called out for service such part of the Citizen Forces as may be notified by their Commanding Officer or by the District Commandant that their services are required.
  10. It appears therefore that there is authority for the voluntary enlistment of men in the Citizen Forces and for the calling up for duty of all men so enlisted.
  11. Australian Military Regulation 1309 lays down the general rule that units of the Militia Forces shall be recruited from those liable to training under Part XII of the Act, but the effect of this is qualified by the statement that this is to be done 'As far as possible'. The use of these words practically allows this regulation to be disregarded but in any event it is only a regulation and can be easily and quickly amended.
  12. Recommended that the matter be referred to the Attorney-General's Department for an opinion.

I agree with the reasoning of the Adjutant-General, and with his conclusion that there is in the Act as it stands at present ample power to enlist men voluntarily for service in Militia units for home defence purposes.

[Vol. 15, p. 462]