STATUS OF OFFICERS

Dominion, Volume 11, Issue 275, 9 August 1918, Page 7

STATUS OF OFFICERS

«• . POSITION OF TERRITORIALS DEFINED

IN EXPEDITIONARY FORCE

IMPORTANT JUDGMENT

An important judgment dealing with the status of Territorial oilicers in the Expeditionary force was delivered in the Supremo Court yesterday morning. On the JJcnch were His Honour the Chief Justice (Sir Hubert Stout), His Honour Mn Justice Chapman, and His Honour Mr. Justice Uosking. This was a case in which lieutenant Cyril Jtussell Morris asked for a declaratory judgment as to the status of Territorial officers joining tho Expeditionary .force. He claimed that lie was entitled lo rank as a commissioned offls-ir in the New Zealand Expeditionary force on entering camp. That the Expeditionary force raised under the provisions of the New Zealand Expeditionary forces Act, 1915, and the Military Service Act, 191G, constituted part of the Territorial Force established under Ihe Defence Act, 1909. At the original hearing of Ihe caso Mr. M. Myers, with him Mr. T. Neave, ■ appeared fur Lieutenant Morris, and tho Solicitor-General (Sir John -Salmond, Iv.C.) for the Crown. Mr. Myers contended that tho plaintill was a lieutenant in the Defence " I'orce prior to entering camp, and as he entered camp as an officer, he could not bo compelled to servo in a :ank below that of a commissioned officer. He was directed to proceed to camp as an oiiicer. hi the course of his argument Sir John balmond, K.C., contended that the Deience force, and the Expeditionary I'orce were district branches, with no connection between tho two. There were no olhcers in the Expeditionary force except thoso appointed bv tho GovernorGeneral or the Commander-in-Chief, under Section 11 of Iho Expeditionary forces Act. In his judgment the Chief Justice reviewed the provisions of Section % of the Defence Act, enabling the GovernorGeneral to accept the oiler of .my member i ot the territorial Force for voluntary I sorvico beyond tho Dominion, but ex- ' pressly limiting such service to volun- I teers. His Honour said the main question was really whether an officer holding a commission in tho Defence forces under tho Defence Act, 1909, or any previous Act, or in one of the South African Contingents could be lawfully required lo servo m the New Zealand Expeditionary force otherwise than as an officer of commissioned rank. "The Defence Act, 1009, as amended by the Defence Act, 1912, provides that tho phrase 'Defonco I'orces' means all officers, non-commis-sioned officers, and men in tho Permanent force, tho Territorial! force, and Heserve; and includes any rifle club, and any volunteer body onrolled with tho rorces under tho.authority of llio Governor for special serico within or beyond New Zealand." And Section 32, subsection (a), reads: "% inserting tho words 'tho Permanent Staff' after Iho words 'Permanent Force' in tho definition ol (< 'Defence forces.'" "Tho Statute thus provides for distinct units in. the Defence forces: (1) The Permanent force; (2) the Permanent Man; (3) the Territorial force; (I) tho Kesorve; nnd (5) rihV clubs and volunteers. Tho Defence Act was, according to its title, an Act to make better provision for (he internal defence of New Zealand. New Zealand, as it has been hoid, may, however, be best defended by attacking enemies that have not landed in New Zealand, The Territorial force

was. .ot, however, to servo outside of New,„liOalaml, Section '>2 stating 'Any part oof the Territorial Force shall bo liable, to servo in any part of New Zealand, l)iit no part of Iho Territorial Force- shall bo carried or ordered to go out of New Zealand.' Section 2(i, however, showed that there was a possibility of iSev; Zealand Iroops serving abroad, and lienci; power was taken for members of tho Territorial Force offering their surviees for such a special service. .If a lieutenant offered his services as a lieutenant fuid was so accepted, he would bo, in my opinion, a Houtenant on tho special service. If he was not accepted, then he would not bo in the special service, corps, or force. I un-' derstund this was- tho accented position up to the passing of the Milifarv Servico Act, 11)10, which Act was passed as an Act to make further provision for tho'raising and maintaining of an Expeditionary Force during the present war. By that Act an Expeditionary Forces Act was constituted, aud the Expeditionary Forces Act, 1315, assumed that officers would volunteer for tho Expeditionary Force, and when they so volunteered they apparently jemained officers. If a persou was accepted as an officer he would become an aflieer of tho Expeditionary Force. If not so accepted as an officer, not having enlisted save as an officer, there would bo no enlistment. ,

Iho question arises, what is the meaning of Section 11 of the Expeditionary Forces Act, 1915? That section states: , " '(1) The Governor may, by notice, in the Gazette, appoint to an' Expeditionary Force such officers as ho thinks fit, and may, by the like notice, from time to time attach such officers to any part of that Force or appoint them to any position therein, and may by the like notice promote any such officers, and may by the liko notice (notwithstanding anything to the contrary in the, principal Act) reduce the rank of any such officer or discharge him from tho said Force or from any position held by him therein.

" '(2) Any 6uch appointment, attachment, or promotion may, as the Governor thinks fit, be either on probation or final, and either temporary or permanent.'

. "Subsection 3 of that section only provides for the Governor by warrant delegating his authority to the Officer Commanding tho Expeditionarv Force to appoint officers. The Governor by this section allots or appoints the volunteers to their position, and until.the nosition is allotted to them they must, "in my opinion, be officers, though not officers of the Expeditionary Force. They would be, it appears to me, officers without having a position or standing in the Expeditionary Force. If culled upon to do work or to perform a function which is not usually done by one who is an officer, I am of opinion that tliev would have jo obey. They have no power to compel the Governor or Commandant to appoint them officers. That has to be done by tho Governor or Commandant under Subsection 3. If, for example, a person who volunteered as an officer -was called upon to do sergeant's work, he might still bo deemed and be called an officer, but he could not refuse to perform a sergeant's function." .Having quoted a number of the provisions of the Military Service Act at some length. His Honour concluded his judgment thus:—

In fact, Section 11 of the Expeditionary Force.? Act, 1!)!'), in mv opinion, dominates the position. Tt 'is under that section that officers are appointed, anil the Governor is not limited in his selection. He may create a man an officer who has not been an officer hitherto, and even if a general was called up under the Military Service Act he would have no claim to bo appointed to that high military position or to any military postion. The whole of the appointments must Test, in my opinion, with the Governor. Tho Court is of opinion that the _fivo question contained in the originating summons should bo answered as follow:—A person who is a commissioucd officer in the Defence Forces and becomes .1 member of tho Expeditionary Force has no legal right to any command carrying commissioned rank- in tho said Expeditionary Force, whether he became a member thereof voluntarily or by being called up under the Military Service Act, gnd lie is obliged to accept any position to which he is assigned." Mr. Justice Chapman and Mr. Jusl.ic.j Hosking concurred.