R v Scherger; Ex parte Bridekirk

The applicant for prohibition, who is one John Richard Russell Bridekirk, was born on 25th May 1933. On 25th January 1950, he signed his attestation papers for the purpose of enlisting voluntarily in the R.A.A.F. He was then sixteen years and eight months old. It may not be material but it is a fact that at the time he made his application, viz. on 18th June 1949, his father signed a form consenting to his son being accepted into the R.A.A.F. for a period covering his apprenticeship, viz. three years, and twelve years regular service thereafter. By his oath of enlistment he swore that he would serve his Majesty in the Air Force for a term of not less than three and not more than four years as an apprentice training and twelve years thereafter unless sooner discharged dismissed or removed. He claims that at that time he was irregularly enlisted for two reasons. First of all he was under the age of eighteen, and that made his enlistment inconsistent with reg. 93. In the second place, he enlisted for more than six years, and that was inconsistent with reg. 92. The answer made by the Air Board is that notwithstanding the irregularity of his attestation and enlistment papers, he became a member of the Air Force. By S.R. No. 14 of 1952 which was adopted on 21st February 1952, a new reg. 92 was promulgated replacing the old reg. 92. The material parts of this new reg. 92 consist of sub-reg. (1) and sub-reg. (5). By sub-reg. (1) three periods of service are provided for different circumstances for enlistment in the Permanent Air Force. The regulation states that a person voluntarily enlisting as a member of the Air Force shall, subject to this regulation, engage to serve in the Permanent Air Force in one or other of the periods covering the three respective modes of service. The material one is that contained in sub-cl. (ii) of par. (a) of sub-reg. (1). This provides that where a person is enlisting as an airman apprentice he may engage to serve for a training period not exceeding four years as an airman apprentice and for a period of twelve years commencing at the expiration of that training period as an airman. It will be seen that if this paragraph had been in force in January 1950 when the applicant entered the Air Force the period for which he enlisted would have been within the authority of the regulation and regular. Sub-regulation (5) has a validating effect. It provides that a person who prior to the commencement of this (new) reg. 92 has engaged to serve for one of the periods specified in the regulation shall be bound to serve in the Air Force in accordance with the tenor of his oath of enlistment until he is discharged dismissed or removed from the Air Force. Now clearly enough the applicant falls within this description. Prior to the commencement of the regulation, viz. 25th January 1950, he had engaged to serve for a period specified in the new reg. 92, viz. for a training period of three years and a period of twelve years commencing at the expiration of that training period. On that footing sub-reg. (5) stated that he was bound to serve in the Air Force in accordance with the tenor of his oath of enlistment until he be discharged dismissed or removed from the Air Force. It is on the basis of this validating provision that the Air Board decided that the application under reg. 99 (2) of the present applicant for mandamus should be refused, inasmuch as he was not at the time of making the application a person who was not duly enlisted. It may be noticed that reg. 95, already quoted, is reproduced from s. 38 of the Defence Act 1903-1956 in its application to the Army. Regulation 99 (2) is reproduced from s. 42A (2) of the same Act. The policy of these provisions is to prevent any question of the irregularity of enlistment operating to enable a soldier or airman as the case may be to claim that he does not fall under military or air force discipline. Whatever objection there may be to the regularity of his enlistment he remains a member of the forces unless and until he obtains his discharge. Accordingly in February 1952, when S.R. No. 14 of 1952 was adopted, the applicant was a member of the Air Force. There is no reason therefore why sub-reg. (5) should not operate to validate his membership and prevent the operation of reg. 99 (2) upon his case. On behalf of the applicant, however, various answers were put to this position. In the first place it was said that upon the proper construction of sub-reg. (5) of reg. 92 it did no more than apply to persons who had regularly enlisted and thereby validly engaged to serve for the period stated. That, we think, is not its meaning. It is plainly referring to a de facto engagement operative, though irregular, as a result of the combined application of reg. 95 and reg. 99 (2). It was then said that it was intended at most to cure defects arising from a specification of too great a period in the enlistment. In support of this view it was pointed out that by reg. 15 of S.R. No. 14 of 1952 a reg. no. 93b was introduced, the purpose of which was to authorise the consent in writing of a parent or guardian to the enlistment of a person who is between fifteen and eighteen years of age. It was pointed out that there is no validating or retroactive provision attached to the new reg. 93B. There is some weight in the argument that an inference may be drawn from this that reg. 92 (5) was meant to cure nothing but excess of period in enlistment. But on the whole we think that the natural meaning of the language of sub-reg. (5) of reg. 92 should receive effect. Clearly, according to its natural meaning, the language of sub-reg. (5) suffices to overcome all the defects in the enlistment of a person who falls within its provisions. Then it was said that sub-reg. (5) was outside the power to make regulations. That power is to be found in the combined operation of s. 9 of the Air Force Act 1923-1950, and of s. 3 (3) of the same Act operating upon s. 124 of the Defence Act 1903-1950. Section 3 (3) of the Air Force Act operates to incorporate s. 124 of the Defence Act. The earlier part of s. 124 authorises the making of regulations prescribing all matters which by the Defence Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for securing the discipline and good government of the Defence Force, and in particular prescribing matters providing for and in relation to "(a) The enlistment, appointment, promotion, discharge, and dismissal of members of the Defence Force." Section 9 of the Air Force Act is in very similar terms in relation to the Air Force. Paragraph (a) of s. 124, of the Defence Act, however, is a particular power to prescribe matters providing for or in relation to the enlistment, appointment, promotion, discharge and dismissal of members of the Defence Force which for present purposes includes the Air Force. It must be steadily borne in mind that de facto enlistment both in the military forces and in the Air Force was, under the Defence Act in one case and the Air Regulations in the other case, operative although irregular. With that in mind there seems no difficulty in construing the powers which have been stated as sufficiently extensive to give complete effect to an enlistment which has in fact been made voluntarily by the person making it although irregularly in the first instance. For these reasons it would appear that the Air Board was right in its decision that the applicant was not entitled under reg. 99 (2) to claim that he had not been duly appointed or enlisted.