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

Regulation 58 of the Australian Military Regulations 1916 provides as follows: Division 5: Australian Air Corps.

58. Pending the promulgation of a new establishment for the Central Flying School and of regulations therefor such personnel as may be required for the maintenance of existing equipment will be temporarily employed in an Australian Air Corps at rates of pay approved by the Minister and subject to the provision of funds by Parliament. The members so employed will be enrolled under the Defence Act until otherwise provided by law, and will, while so temporarily employed, form part of the Military Forces.

Pursuant to the above regulation the units of the Military Forces at the Central Flying School were disbanded as a whole on 31 December 1919, by Order in Council and a temporary establishment has been maintained since 1 January 1920. An Order in Council appears necessary under the Defence Act to formally authorise the establishment and a Minute for the Executive Council has been prepared in the following terms:

Recommended for the approval of His Excellency the Governor-General in Council that in accordance with the provisions of the Defence Act 1903-1918 and of the Regulations thereunder authority be given to raise, maintain and organise a unit of the Permanent Military Forces to be designated 'The Australian Air Corps' with effect as from 1 January 1920.

A question has however arisen as to the legal measures required to enable the personnel to be detailed for naval flying service. It is desired to call for volunteers for the work and to bring them under the Naval Discipline Act. I shall be glad if you will be so good as to furnish early advice as to whether it will be sufficient to substitute in the above regulation and in the draft Order in Council the words 'Defence Force' in lieu of the words 'Military Forces' and to make a further regulation under the Defence Act applying the naval disciplinary code to the volunteers drawn from the Corps, when serving with the Navy.

There appears to be no provision in the Defence Act 1903-1918 making the Military Forces subject, under any conditions, to the provisions of the Naval Discipline Act, and there is not, I think, any power to make them so liable by regulations made under the Defence Act.

The Defence Act applies both to the Military Forces and to the Naval Forces, and it is, I think, clear that where the Naval Discipline Act is mentioned in the Act it is intended to apply to the Naval Forces only (see sections 86 (2), 90, 103, 106 and 108 (3)).

In my opinion, therefore, if it is desired that members of the Australian Air Corps, when detailed for naval flying service, should be subject to the Naval Discipline Act, it will be necessary to enrol them in the Naval Forces.

There appears to be nothing in the Defence Act or the Naval Defence Act to prevent a person being enrolled both in the Military Forces and the Naval Forces. If thought fit, that course could, therefore, be followed in order to overcome the difficulty.

If that course is adopted, it will, I think, be advisable to amend regulation 58 of the Australian Military Regulations by omitting all words after the words 'Australian Air Corps'. Such an amendment, you will notice, would omit the provisions relating to rates of pay. That is, I think, desirable, as rates of pay should be fixed by regulation.

I would also suggest that the Executive Council Minute recommending the establishment of the Australian Air Corps be in the following terms:

Recommended for the approval of His Excellency the Governor-General in Council that, in accordance with the Defence Act 1903-1918 and the Regulations thereunder, he be pleased to raise, maintain and organise, a unit of the Permanent Forces, to be called 'The Australian Air Corps', and that the said Corps be deemed to have been so raised, maintained and organised on and as from 1 January 1920.

[Vol. 17, p. 6]