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

After the experience of the late war, it is considered desirable to alter the seniority in the Australian Military Forces of certain officers holding the rank of Colonel and Lieut.-Colonel.

Section 16 of the Act gives power to alter regimental seniority, but there appears to be no power to alter army seniority, other than by regulating the dates of promotion (vide section 19).

The following is submitted as an example:

Before the war the seniority of certain officers was:

During the war:

As a result of war service it is desired that the following shall be the seniority of the four officers concerned:

Smith

Robinson

Brown

Jones

The Minister would be glad of your advice as to the legality of promoting Smith, Robinson and Brown to be Colonels, antedating them to dates prior to 20.4.14 in order to make them senior to Jones, and in the above order of seniority amongst themselves. If this is not legal, the Minister would be glad if you could suggest any other way of arriving at the desired seniority.

Section 19 of the Defence Act 1903-1917 is as follows:

19 (1) The seniority (other than the regimental seniority) of officers in the Active Military Forces in their respective ranks shall be regulated by the date of their appointments, and when appointments are of the same date by their seniority immediately prior to their appointments or in the case of first appointments by the order in which their names appear in the Gazette or Government Gazette of a State or of a Colony which has become a State in which their appointments are notified.

(2) The regimental seniority of officers shall be as prescribed.

It is clear therefore that the seniority of officers in the Active Forces depends on the dates of their appointments.

I am of opinion that the Governor-General may, in promoting an officer, make the promotion retrospective to any date upon which the promotion could legally have been made.

The Act contains limitations on the power of the Governor-General to promote an officer in certain cases until he has passed an examination, e.g. sections 21, 21A. I do not think that after an officer has passed the prescribed examination his promotion could legally be dated as of an earlier date than the date upon which he passed the examination.

Similarly, the Governor-General has certain powers of appointment for distinguished service in time of war. I do not think that this power would extend to enable the Governor-General to appoint as from a date prior to the war an officer whose qualification for appointment consisted in the fact that he had rendered distinguished service during the war. Nor do I think that power exists to make a promotion retrospective so as to take effect as from a date prior to the date upon which the officer was promoted to a rank lower than the rank now proposed. For instance, in the case cited, Robinson was promoted Major as from 1 June 1914. I do not think he could now be appointed as Colonel as from a date prior to 1 June 1914.

It may be that in certain cases retrospective promotion will entitle the officer to pay at the higher rate from a date earlier than the date of actual appointment, but it may be possible to overcome this difficulty by an amendment of any relevant regulations, or, if the regulations so provide, by a direction of the Minister.

I have been unable to find in the Regulations any regulation giving to a senior officer a right of appeal against the promotion of a junior officer by the Governor-General, and I assume therefore that no such right of appeal is given.

If what it is desired to do cannot be done in accordance with this opinion, the only suggestion which I can make is to amend the Act so as to give the Governor-

General specific power in the case of officers who have been engaged on active service either to make retrospective promotions, or else to determine the seniority of those officers as between themselves individually and with officers who have not been engaged on active service.

[Vol. 16, p. 428]