Opinion Number. 897

Subject

DEFENCE FORCES PROSECUTION FOR FAILURE TO PERFORM COMPULSORY TRAINING: WHETHER COURT MAY ENTERTAIN EVIDENCE OF FITNESS FROM PRIVATE MEDICAL PRACTITIONER CONTRARY TO OPINION OF PRESCRIBED MEDICAL AUTHORITY

Key Legislation

DEFENCE ACT 1903, ss. 125, 135, 138 (I) (a): AUSTRALIAN MILITARY REGULATIONS 1916, reg. 371

Date
Client
The Secretary, Department of Defence

The Secretary, Department of Defence, has asked for advice as to whether, in a prosecution of a trainee for failure, without lawful excuse, to attend a compulsory drill, the opinion of a private medical practitioner which is contrary to that of the Area Medical Officer as to the fitness or unfitness of the trainee for training, may be accepted by the court in arriving at a decision.

Section 125 of the Defence Act 1903-1918 provides inter alia that all male inhabitants of Australia who have resided therein for six months and are British subjects (excepting those who are exempted by the Act) shall be liable to be trained as prescribed.

Section 138 (1) (a) provides as follows:

138 (1) The following shall be exempt from the training mentioned in Part XII of this Act, so long as the employment, condition, or status on which the exemption is based is still continuing:

(a) Those who have been reported by the prescribed medical authorities as unfit for any naval or military service whatever;

Australian Military Regulation 371 provides that the medical authorities referred to in section 138 (1) (a) shall be such officers of the Australian Army Medical Corps as may be appointed to the Training Area, or to any unit in the area, in which the person claiming exemption resides, or such other duly qualified medical practitioners as District Commandants may approve.

The file submitted for consideration related particularly to the case of Cadet A.B.C. The facts in C.'s case are as follows:

  1. C. was passed by the prescribed medical authority as 'fit';
  2. He was prosecuted for failing, without lawful excuse, to attend a compulsory drill; and
  3. At the prosecution evidence was given by two private medical practitioners that C. was unfit for training and on that evidence the Magistrate found that C had 'a lawful excuse' and refused to convict.

C. being declared 'fit' is liable to render the personal service required by the Act. If absent from a compulsory drill he is liable to the punishment prescribed by section 135 unless he can show a lawful excuse. It is, in my opinion, for the court to determine on the evidence taken before it whether the trainee had or had not a lawful excuse. If that evidence included that of private medical practitioners as to the fitness or unfitness for training of the trainee then, I think the court, in arriving at a decision, is not only entitled but bound to take that evidence into consideration, and if it thinks fit accept it as against that of the prescribed medical authority.

The decision of the court, in a case such as C. 's, does not, of course, operate as an exemption, which can only be granted by the prescribed authorities, but the trainee is still liable to render the service prescribed by Part XII of the Act.

In my opinion, in a prosecution of a trainee for failure, without lawful excuse, to attend a compulsory drill, the opinion of a private medical practitioner which is contrary to that of the Area Medical Officer as to the fitness or unfitness of the trainee for training, may be accepted by the court in arriving at a decision.

[Vol. 16, p. 102]