Opinion Number. 885



Key Legislation

DEFENCE ACT 1903, ss. 12, 13. 39 (3), 124: DEFENCE ACT 1918, s. 4: AUSTRALIAN MILITARY REGULATIONS 1916, reg.401: WAR FINANCIAL REGULATIONS, reg.l

The Secretary, Department of Defence

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

A large number of men joined the Australian Imperial Force on or about the time of the declaration of the Armistice. The signing of the Armistice rendered it probable that their services would never be required, and an order was therefore issued that all these men were to be given fourteen days' leave with pay, and then extended leave of absence from the Australian Imperial Force without pay. They were instructed to return to their civilian life and take up their ordinary civil avocations again, and they were told that they would be called up for duty should the necessity arise in the future.

The position now apparently is that these men intend to make a claim for pay during this extended leave, and I would be glad of your advice on this matter as to the position of the Department. As the question is a pressing one, and the decision must be given immediately so that the men may be discharged if the Department is liable to pay them for the whole period of leave, I would be glad if the matter could be dealt with urgently and a reply forwarded as soon as possible.

Under the Defence Act 1903-1918 the enlistment of a person in the Military Forces creates a contract between that person and the Crown, the terms of which are ascertainable in the attestation paper, the Act, and Regulations thereunder. Section 13 of the Act expressly negativing the creation of a contract by the appointment or promotion of an officer, impliedly recognises the creation of contract by enlistment, and section 12 gives a right of action against the Commonwealth for 'moneys which under his engagement or by any agreement with the Commonwealth are due to him'. This differs from the position in England, where there is no right of action, but even in England the position is thus expressed in Halsbury's Laws of England, Vol. 25, p. 38, para.72:

Enlistment is the acceptance of an engagement in the military service of the Crown, and is in the nature of a contract between the person enlisted and the Crown. It follows, therefore, that the terms upon which a person enlists cannot be altered without his consent.

Under the Defence Act, section 124, regulations may be made prescribing matters providing for and in relation to (a) enlistment, (d) fixing of the rates of pay, and (f) leave of absence. By regulation, therefore, it would have been possible to have prescribed providing for the course sought to be followed.

But in the absence of regulations expressly providing, it is necessary to see what the contract is under the regulations as they exist.

War Financial Regulations, reg.l, provides:

Prior to embarkation, members of the Australian Imperial Force . . . shall be paid at the following rates of pay . . .

Australian Military Regulations 1916, reg.401, provides:

With the approval of the Governor-General, on the recommendation of the Military Board, leave of absence without pay may be granted to any officer or soldier, for any period not exceeding twelve months . . .

The Defence Act, section 39 (3), as amended by the Defence Act 1918, section 4, provides:

(3) When a soldier becomes entitled to be discharged he shall be discharged with all convenient speed, but until discharged he shall remain a member of the Defence Force.

The position is, then, that until discharge, these soldiers are entitled to pay (apart from penal forfeitures and deductions) unless their case comes within regulation 401.

In my opinion regulation 401 is intended to authorise the granting of a benefit, and is not intended to authorise the imposition of a burden. It is true that the regulation does not expressly state that the grant of leave of absence without pay is to be on the application of the soldier, but I think the word 'grant' is sufficient to imply that the thing granted is to be something beneficial and not obligatory. The compulsory 'granting' of leave of absence without pay is only another phrase for expressing a power to suspend the engagement of the soldier. I do not find any such power of suspension, and I think it would be a forced construction of regulation 401 to read it as authorising what has been sought to be done.

I am, therefore, of opinion that a claim by these men for pay during the extended leave compulsorily granted to them would be successful.

[Vol. 16, p. 56]