The following question has been referred by the Secretary to the Department of Defence for advice:

The Australian Army Pay Corps is a Militia unit, the members of which are at present compulsorily mobilised for war service under the provisions of sections 46 and 47 of the Defence Act.

The question has now been raised whether these men are liable to be retained and compelled to remain on war service after the declaration of peace in view of the wording of section 47 of the Act. Sections 46 and 47 of the Defence Act 1903-1918 are as follows:

46 (1) The Governor-General may, in time of war, by proclamation, call out the Citizen Forces or any part thereof for war service.

1. The proclamation shall state the reason for calling out the Forces.
2. If the Parliament is sitting the reason for calling out the Forces shall forthwith be communicated by the Governor-General to both Houses of the Parliament.
3. If the Parliament is not sitting at the date of the issue of the proclamation, it shall be summoned to meet within ten days after that date.

47 The Citizen Forces or any part thereof shall be liable to be employed on war service from the time of the publication of the proclamation calling out those Forces or any part thereof for war service until the publication of a proclamation notifying that the war services of those Forces or any part thereof are no longer required.

These sections do not limit the liability of the Citizen Forces for service to the declaration of peace. Under section 46 (1) the power to call out the Citizen Forces for war service is granted to the Governor-General 'in time of war'. These Forces are then liable under section 47 ' . . . to be employed on war service . . . until the publication of a proclamation notifying that the war services of those Forces or any part thereof are no longer required'. This last declaration is clearly something different from the declaration of peace which is in section 4 in the definition of 'Time of War' thus expressed: ' . . . a proclamation declaring that the war . . . no longer exists'. Compare also the wording of the War Precautions Act 1914-1916 section 2 (2), which in defining the 'present state of war' includes the period from 4 August 1914 ' . . . until the issue of a proclamation by the Governor-General that the war between His Majesty the King and the German Emperor . . . has ceased'.

By the Defence Act 1918, section 3, amending the Principal Act, section 31, the maintenance of general Permanent Forces is authorised after the time of war and so long as a proclamation remains in force 'that by reason of the recent existence of a time of war it is necessary in the public interest that permanent military forces should be maintained after the cessation of the time of war'. This amendment brings the general Permanent Forces into line with the Citizen Forces.

I think it clear that the Australian Army Pay Corps may be retained and compelled to remain on war service after the declaration of peace and until the publication of a proclamation notifying that the war services of the Citizen Forces or of some part thereof, including this Corps, are no longer required.

As to what 'war service' means see the Defence Act 1903-1918, section 4, definition of 'War Service', which reads:

'War Service'-Means active service, any naval or military service in time of war, and any naval or military service between the issue of a proclamation declaring that by reason of the recent existence of a time of war it is necessary in the public interest that the military forces should be temporarily subject to the Army Act, and the issue of a proclamation declaring that such necessity no longer exists.

'Active Service' under section 4 has a corresponding meaning to that of the same words as used in sub-section (1) of section 189 of the Army Act defining the expression 'on active service'. When, therefore, no part of the force to which the Pay Corps is attached is engaged in operations against the enemy, or in a country occupied by an enemy, or in military occupation of a foreign country, the later words of the definition in section 4 will have to be relied on, if it is desired to further maintain the Pay Corps, and a proclamation will have to be issued 'declaring that by reason of the recent existence of a time of war it is necessary in the public interest that the military forces should be temporarily subject to the Army Act'. After the publication of this proclamation, 'War Service' will continue until 'the issue of a proclamation declaring that such necessity no longer exists'.

I think it clear, therefore, that both the length of time during which the Pay Corps may be maintained, and the 'war service' on which it may be engaged are matters to be fixed by proclamation according as the Governor-General may be advised as to the necessity of the case.

[Vol. 16, p. 53]