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

Article 7 of the Royal Pay Warrant for the British Army makes the following provision:

7. All pay or other pecuniary advantages granted by this Our Warrant which shall not have been claimed within a period of 12 months shall be deemed to be forfeited, unless under such exceptional circumstances as shall be approved by Our Army Council or by an officer duly authorised by them.

(2) Advice is desired as to whether, in view of the provisions of section 124 (d) of the Defence Act and of the Regulations made under that provision prescribing the rates of pay and also of section 12 of that Act, a regulation can legally be made under the Act providing a similar forfeiture in the case of the Defence Force and also providing that any amounts due but unclaimed at the expiration of the period in question may upon the approval of the Minister or a person appointed by him for the purpose be paid to any particular person or class of persons who is or are in the opinion of the Minister or person appointed by him a dependant or next of kin, or dependants or next of kin, of the member or members of the Defence Force to whom any pay would otherwise be due for payment but for the provisions of the regulation, the members forfeiting all right to claim subsequently any amount so paid.

I do not think that power to make the regulation suggested is to be found in paragraph (d) of section 124 (1) of the Defence Act 1903-1918.

I am of opinion, however, that a regulation providing for forfeiture of unclaimed pay may be regarded as prescribing a matter 'for securing the discipline and good government of the Defence Force' (see opening words of section 124).

I see no objection to the making of a further regulation providing for the payment to the dependants or next of kin of the member of the Forces of any unclaimed pay of that member which has been forfeited in the manner provided in the regulations.⁽¹⁾

[Vol. 17, p. 124]

(1) Subsequently the Solicitor-General was asked to advise whether this opinion applied in the case of illegal absentees from the A.l.F. who were discharged by proclamation. In response Sir Robert Garran advised [3 November 1921; Vol.l8, p. I42]:

‘In expressing my opinion of 3 November 1920, I only contemplated the case of the forfeiture of pay
of a person actually serving as a member of the Forces and that opinion must not be taken as applying to pay due to persons who have ceased to be members.

The question as to whether there is power to provide by regulation for such forfeiture was dealt with in [another opinion not found], when I expressed the opinion that moneys due to a soldier at the date of his discharge could not be taken away by subsequent regulation’.