Opinion Number. 902

Subject

REPATRIATION ELIGIBILITY FOR REPATRIATION BENEFITS OF VARIOUS CLASSES OF NAVAL PERSONNEL- LIABILITY TO BE EMPLOYED ON ACTIVE SERVICE OUTSIDE AUSTRALIA DISTINGUISHED FROM ACTUAL ENLISTMENT FOR SUCH SERVICE

Key Legislation

DEFENCE ACT 1903, Part XII: NAVAL DEFENCE ACT 1910, ss. 19, 33: AUSTRALIAN SOLDIERS' REPATRIATION ACT 1917, s. 4 (2) (a)

Date
Client
The Comptroller, Department of Repatriation

The Comptroller of the Department of Repatriation has forwarded, for advice, the following memorandum:

Advice is desired as to eligibility under the Australian Soldiers' Repatriation Act 1917-1918 of naval ratings in view of the varying conditions of service attached to the classes into which the Naval Forces are divided.

File showing the correspondence between this Department and the Department of the Navy is attached for your information. In a memorandum of 28th January ultimo it was advised by the Naval Secretary that the Australian Naval Forces consisted of the following classes:

  1. R.A.N. Sea-going Forces (enlisted men).
  2. R.A.N. Auxiliary Services, composed of-
  3. Permanent Forces

  1. R.A.N. Radio Service (Shore).
  2. R.A.N. Brigade Staff. Citizen Forces
  3. Citizen Naval Trainees (Reserve 'O').
  4. Citizen Forces (Reserve 'M').
  5. Naval Wharf Guard, R.A.N. Brigade.
  6. Minesweeping Section, R.A.N. Brigade.

It is the contention of the Naval Secretary that all naval ratings are liable for service abroad and were enlisted under the same conditions, and he gives his reasons for this contention in his memorandum.

The Naval Secretary also contends that in view of the definition of 'member of the Forces' under the War Pensions Act, members of the Naval Forces who have only seen service in Australian waters, and also those who have held shore positions in Australia, may be quite eligible for pension inasmuch as they were enlisted or appointed for service in connection with naval preparations or operations.

With regard to the classes detailed [above]-

Class (A)-R.A.N. Sea-going Forces (enlisted men): apparently the members of this class would be entitled after discharge to benefits under the Repatriation Act.

Class (B)-R.A.N. Auxiliary Services: different conditions of service exist in the divisions comprising this class. [Table setting out conditions of service in detail omitted.]

In view of the varying conditions of the service which these ratings have seen an opinion is desired as to whether all the classes under Divisions (A) and (B) above referred to, are eligible for benefits under the Repatriation Act.

In my opinion, a member of the Royal Australian Navy to be eligible for benefits under the Australian Soldiers' Repatriation Act, should be covered by the definition of 'Australian soldier' in paragraph (a) of sub-section (2) of section 4 of the Act, which provides as follows:

For the purposes of this Act any person who-

(a) is or has been, during the present war, a member of the Naval or Military Forces enlisted or appointed for or employed on active service outside Australia, or employed on a ship of war;

******** shall be deemed to be an Australian soldier within the meaning of this Act.

In cases where, during the present war, the member is or has been employed on active service outside Australia, or employed on a ship of war, it is, I think, clear that he is eligible for benefits under the Australian Soldiers' Repatriation Act, irrespective of the section of the Naval Forces to which he belongs or has belonged; but in cases where he has not been so employed, his eligibility will, in my opinion, depend on the terms of his enlistment or appointment.

Section 19 of the Naval Defence Act provides that the Naval Forces shall be divided into two branches, namely, the Permanent Naval Forces and the Citizen Naval Forces.

By section 33 of that Act, the whole of the Naval Forces are liable to be employed on naval service either within or beyond the limits of the Commonwealth.

Liability to be employed on active service outside Australia does not, however, in my opinion, necessarily bring a member of the Naval Forces within the definition of 'Australian soldier' in the Australian Soldiers' Repatriation Act. The member must, I think, during the present war have actually enlisted or been appointed for the purpose of serving abroad. If his enlistment or appointment were merely for service in Australia, then he would not, in my opinion, be eligible for benefits under the Australian Soldiers' Repatriation Act.

In other words, he must have enlisted or been appointed with the expressed intention of serving abroad. Thus allotment to or appointment in the Citizen Naval Forces under Part XII of the Defence Act would not, in my opinion, constitute enlistment or appointment for active service outside Australia within the meaning of the Australian Soldiers' Repatriation Act.

[Mr Knowles then applied the above principles to the various branches of the Navy specified in the memorandum from the Department of Repatriation.]

[Vol. 16, p. 121]