OF AUSTRALIA. 191 ' i a' s m x . APPELLANT ; AND * ' . : Pe . ReEsponpDeENr. APPEAL FROM A COURT OF SUMMARY JURISDICTION OF SOUTH AUSTRALIA. ent for military service—Form of oath—Filling in prescribed form— (ov A. opriate words—Defence Act 1903-1939 (No. 20 of 1903—No. 74 of 1939), 1940, 39 (1) (D), 60, 76, Third Schedule+—Australian Military Regulations (S.R. No. 149), regs. 3, 140a, 1400. MeLnounye, Oct, 24. 'a person who was liable compulsorily to serve in the citizen forces Part IV. of the Defence Act 1903-1939 there was tendered the form of Bich, Starke, uth set out in the Third Schedule to the Act, except that in the form tendered MeTiernan JJ. forces therein mentioned were described as " military" forees and the ds "for the term of years" were altered to "until the cessation of \e present time of war," On the person refusing to take the oath as tendered, was charged under see, 76 of the Act for refusing to do so and convicted. that the form tendered was not objectionable, although it was not in recisely the same form as in the Third Schedule, and although it did not limit obligation of the person to whom it was tendered to serve only within Commonwealth of Australia; accordingly, the person had no grounds for to take the oath and was rightfully convicted. removed and that I will resist His Majesty's enemies and cause His Majes- {y's petce to be kept and maintained and t I will in all matters appertaining to my service faithfully discharge my duty, gecording to rellprregre seed H. C. or A. 1940, cs} Sxrren v Prarr. HIGH COURT (1940. under sec. 60 of the Defence Act 1903-1939. Osmond Philip | Pratt, an area officer for the locality in which Skitch was called up for service, on 8th January 1940 tendered to Skitch the following — form of oath :—'" Oath of Enlistment—I Ralph Leslie Skitch swear that I will well and truly serve our Sovereign Lord the King in the - military forces of the Commonwealth of Australia wntil the cessation of the present time of war or until sooner lawfully discharged ' dismissed or removed and that I will resist His Majesty's enemies _ and cause His Majesty's peace to be kept and maintained and that I will in all matters appertaining to my service faithfully discharge { my duty according to law. So help me God!''* Skitch refused to take this oath, and he was thereupon charged by Pratt at a court of summary jurisdiction at Adelaide that " being a person liable to enlist for service in the defence force did refuse to take the oath set out in the Third Schedule to the Defence Act 1903-1939 when tendered . . . by an officer of the military forces pursuant to the provisions of sec. 76 of the said Act." On 17th September 140 Skitch was convicted and sentenced to be imprisoned for six weeks. He appealed to the High Court. Alderman, for the appellant. The oath tendered was not in the form set out in the Third Schedule to the Defence Act 1903-1939. There was no need for the appellant to take the oath at all, because service in the Citizen Forces does not depend on the oath. [He referred to secs. 37 and 38 of the Defence Act 1903-1939.] If it were part of the enlistment, then it should have been prescribed by the regulations. The appellant was a member, not of the military forces, but of the citizen forces (Part IV., Defence Act 1903-1939). [He referred to sec. 78 of the Defence Act 1903-1939.] Sec. 76 of the Act does not apply to the appellant. The appellant has enlisted, although in the information he is charged with failing to enlist. He has done everything save take the oath ; he did not refuse to serve but did refuse to take the oath. The Third Schedule was intended to apply to voluntary enlistment (sec. 37 of the Act). An oath should be prescribed for Part IV., but, as none has been prescribed, then a recruit under Part IV. is not bound to take any oath. In any case it should have limited his service to Australia (sec. 49). The insertion of the words in the form in the Third Schedule was also wrongful. The appellant was to be a member of the citizen forces; therefore it was improper to describe the force as the * Compare form of oath in Third Schedule, supra. The words in the form of oath tendered which do not appear in the schedule are italicized. OF AUSTRALIA. emplated a term of years which would be applicable to either ent military or volunteer forces. the: '. W. Smith, for the respondent. [Ricu J. Will you confine your address to the question whether 'offence was committed ?] appellant answered the description set out in sec. 76 of the ce Act 1903-1939, as he was a member of the defence force 30), and the vital question therefore, was as to the form of 'oath. It was in the proper form, as the appellant's obligation ve arose under sec. 60 of the Defence Act 1903-1939, and the tion as to what is prescribed under sec. 60 is decided by regs. and 140s of the Australian Military Regulations. He has to e in the military citizen forces. The construction of sec. 47 of the Defence Act determines the period of service. It would be bsurd to think that the legislature did not require that men enlisted der Part IV. should take an oath whereas volunteers enlisted der Part XII. in the citizen forces should take an oath (sec. 32a (2)). Sec. 39 (1) (b) of the Defence Act 1903-1939 determines when a soldier in the citizen forces under Part IV. shall be discharged. Alderman, in reply. ¥ _ The following judgments were delivered :— , J. In this case the defendant was charged under sec. 76 the Defence Act 1903-1939 that being a person liable to enlist for ee in the defence force he did refuse to take the oath set out in Third Schedule to the said Act when tendered to him by an is conceded that the defendant was a person who fell within description contained in the section, he being in fact a person o had been called upon by proclamation under sec. 60 of the Act to serve in the citizen forces. It is also conceded that a form of =. tendered to the defendant by an officer and that he refused it. 'The principal question raised is whether the oath which was tendered was in the form set out in the Third Schedule, and two objections were taken to the form tendered. The first objection Was that the insertion of the word " military" in the blank space ippearing in the schedule immediately before the words " Forces — VOL, LXIV, 13 y forces" (sec. 30 of the Act). Furthermore, the oath H- ©. or A. 1940. a Sxrren i Pratr. H. C. or A. 1940. a. Sxircn ca Pratt, Rich J. HIGH COURT defendant's obligation as stated in sec. 60 of the Act was "to enlist and serve as prescribed." What was prescribed appears in 140a of the Australian Military Regulations, which states every person called upon in pursuance of sec. 60 of the Act to en and serve in the citizen forces shall after enlistment, if so requi by notice, serve within the Commonwealth during the time of as a member of the citizen forces. The meaning of the exp "citizen forces" in this clause is defined by reg. 3 of the A tralian Military Regulations (Statutory Rules of 1927, No. 149) as being citizen military forces. I think that it is sufficient if there is inserted in the blank space in question the name of that one of the — three branches of the defence force in which the person taking th oath is to serve and that it is not necessary to indicate in the fom of oath whether he is a member of the permanent forces or th citizen forces. I think, therefore, that the word " military" the correct word to insert in the blank spaces in question. The second objection was that in the form of oath tendered the defendant the words "' until the cessation of the present time war" were inserted in place of the words "for the term of years " which appear in the schedule. The schedule contemplates that the person tendering the oath shall insert in it a correct state- ment of the period for which the person taking the oath is to serve, | and in the defendant's case that period is fixed by sec. 39 (1) (b) of | the Act, which provides that subject to that section a soldier shall be entitled to be discharged, if serving under Part IV. of the Act, when the time of war has ceased to exist. Although the form in the schedule contemplates that the period of service will be capable of being expressed as a term of years, I do not think that the pro- visions of sec. 76 should be held to be inapplicable to a person li the defendant whose period of service cannot be so expressed. The description in the section of the persons to whom it applies is quite general and in terms includes persons called up under sec. 60, and it is difficult to see what reason could exist for distinguishing, when imposing an obligation to take the oath, between persons called up under sec. 60 and other persons who have enlisted or are liable to enlist. I think, therefore, that the person tendering the oath is autho in the case of persons called up under sec. 60, to insert in the form of oath the period of their service as defined by sec. 39 (1) (b). ie second objection therefore fails. A further objection taken is that the form of oath should ioe included words limiting the obligation of the defendant to serving within the Commonwealth: See reg. 140a of the Australian OF AUSTRALIA. itly provided for by sec. 49 of the Act itself, and it is not y to include in the form of oath the words suggested. conviction should therefore be affirmed, but on the question y I am of opinion that in the circumstances the sentence onment should be set aside and that instead the defendant ld be fined the sum of £1. The defendant will be ordered to Ly to the respondent the sum of ten guineas for the respondent's of this appeal. J. Lagree. NAN J. I agree with the order proposed by Rich J. Lo , [ think that there is room for grave doubt as to whether form of oath tendered was appropriate to the defendant's The difficulty has arisen from the failure of the authorities nelude in the regulations under Part IV. a form of oath to be ered to persons called up for service under that Part. Order as indicated in judgment of Rich J. itors for the appellant, Alderman, Reid & Brazel. for the respondent, H. F. E. Whitlam, Commonwealth Solicitor. - 0. J. G. Regulations. In my opinion, however, this matter is H: C. oF A. 1940. — Sxircn Pratt. Rich J.