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

The favour of advice is requested with regard to the following:

1. Men of the Militia Forces who were serving prior to 1 July 1912 are granted pay under the regulations in force at the time of enlistment, i.e. privates continue at eight shil-lings per diem, until the period of service for which they enlisted or re-enlisted has expired (U.T.Reg. 154).

Men enlisted or re-enlisted on and after 1 July 1912 are granted pay at the rates prescribed for trainees, i.e. privates receive 3s. per diem for the first year and if then clas-sified as efficient they are advanced to 4s. per diem.

2. A number of men were enrolled in the 2nd Light Horse (Queensland Mounted In-fantry) on 28 May 1912. They were medically examined and commenced their drills on that date, but through an oversight on the part of the Troop Leaders, they were not actu-ally attested until 18 July 1912.
1. It has been contended that as they were not attested until after 1 July 1912, they can only be paid at the rate of 3s. per diem for the year ended 30 June last.
2. On the other hand, it has been contended that they were actually enlisted on the date on which they commenced duty as soldiers-that is 28 May 1912-the date on which they commenced drill, and that the attestation could be ante-dated to that date. In other words that the 'Oath of Allegiance' be amended by inserting after 'for the term of three years' the following words 'from the 28th May, 1912'.

This has been the practice in the Permanent Forces where recruits are frequently enlisted, e.g. in Melbourne, but not attested until they have been finally approved, poss-ibly three or four days later by the CO. at Queenscliff.

Form of enlistment paper (Militia Forces) is attached. Please also see Manual of Military Law, 1907, p. 188, paragraph 24.

3. In the event of it being decided that the procedure in (b) of paragraph (2) above is not permissible, I shall be glad of advice as to what steps should be taken to secure to the men concerned the higher rate of pay to which they naturally consider they are entitled.

By section 37 of the Defence Act 1903-1912 it is provided that every person enlist-ing in the Active Military Forces (which include the Militia Forces) as a soldier shall take, before an officer or a Justice of the Peace, the oath set forth in the Third Sched-ule, and by section 38 the oath of enlistment binds the person subscribing it to serve in the Defence Forces in accordance with the tenor of his oath until he is legally dis-charged, dismissed, or removed therefrom, or his resignation is accepted. The Form of Enlistment shows that certain questions are put to the recruit before enlistment, and these questions are also put prior to the taking of the oath of allegiance. Until a soldier has definitely bound himself to serve in the Forces he has not enlisted, and as the soldier is not bound until he takes the oath of allegiance, I do not think that a soldier has enlisted until he has taken the oath.

The men enrolled in the Queensland Mounted Infantry not having taken the oath of allegiance until 18 July 1912, in my opinion, they were not enlisted prior to 1 July 1912, and are only entitled to be paid at the rate of 3s. per day for the year 1912-1913.

As the oath of allegiance has been taken by these men, the attestation cannot now be ante-dated. This could only be done at the time the men took the oath.

With regard to the question as to what steps should be taken to secure to the men the higher rate of pay, in my opinion, a regulation could be framed providing that in the case of these men the rates of pay shall be those to which they would have been en-titled if they had been enlisted prior to 1 July 1912.

[Vol. 12, p. 71]