The Secretary, Department of Home and Territories, has forwarded me the following memorandum for advice:

By direction, I am forwarding herewith copies of communications (two) recently received from Dr J.A. Gilruth, in which he raises the question of his 'present or prospective official position' and puts forward the view that he 'still holds the position of Administrator' of the Northern Territory.

I am also enclosing the relevant portions of the Departmental file relative to the original appointment and subsequent reappointment of Dr Gilruth to the office referred to.

It will be seen therefrom that his original appointment commenced on 25 March 1912, and terminated on 24 March 1917, that he was appointed to be Acting Administrator as from 25 March 1917, and that he was subsequently reappointed as Administrator as from 11 July 1917.

The Order in Council, approved on 11 July 1917, specified the term of the last-mentioned appointment to be 'for the duration of the present war and for six months thereafter'.

In a memorandum dated 10 July 1917 the then Minister for Home and Territories (Mr Glynn) placed on record particulars of the conditions of the proposed appointment as communicated by him to Dr Gilruth on that date, of which the following is an extract:

Term: The duration of the present state of war and six months thereafter. Six months' leave of absence to be granted and to be (unless otherwise mutually arranged) contemporaneous with the six months after the cessation of the present state of war, a fact of which, as in the case of the duration of war legislation, a proclamation would be evidence.

These and other of the particulars recorded in Mr Glynn's minute were officially communicated to the Government Secretary, Darwin, on 16 July 1917, but were not specified in the notification relating to the appointment published in the Commonwealth Gazette of 2 August 1917.

Dr Gilruth's letter of 11 August 1921 indicates that he was called to Melbourne on official business in February 1919, and that he left Melbourne for England on 31 July 1919, on six months' leave.

In the course of a minute, dated 25 June 1919, the then Minister (Mr Glynn) recorded the following statement:

Dr Gilruth's term expires six months after 1 June, being the date arranged in lieu of the declaration of peace in consequence of his early departure, and, on 25 November 1919, the Department of Trade and Customs, which had commissioned Dr Gilruth to undertake certain inquiries whilst abroad, was advised by the Acting Secretary, Home and Territories Department, that payment of the 'allowance of £500 per annum' had been made to Dr Gilruth 'to 30.11.19 inclusive' and it was added: 'Dr Gilruth's appointment ceases on that date and no further payments will be made by this Department'.

On 25 June 1920, Mr George Shaw, Solicitor, of Melbourne, forwarded to this Department, with the permission of Dr Gilruth, a copy of observations addressed by the latter to the Right Honourable the Prime Minister on 24 June 1920, in connection with the report of the Royal Commissioner on the Northern Territory (1919-1920).

A copy of this document is enclosed herewith, and attention is invited to the marked portion thereof reading as follows:

and finally that, in order not to embarrass the Government, I voluntarily agreed to the termination of my last appointment, as at the end of November 1919, instead of waiting till six months after the formal declaration of peace as provided in my agreement with Mr Glynn.

In the circumstances, I am directed to ask for the favour of your advice as to whether the arrangement entered into by Mr Glynn and Dr Gilruth, of which evidence is to be found in the former's minute of 25 June 1919, and the latter's letter of 24 June 1920, may be regarded as having lawfully effected the termination of Dr Gilruth's appointment as Administrator on 30 November 1919.

Sub-section (1) of section 4 of the Northern Territory (Administration) Act 1910 is as follows:

The Governor-General may appoint an Administrator for the Territory. The Administrator shall be appointed by the Governor-General by Commission under the seal of the Commonwealth, and shall hold office, subject to good behaviour, for five years.

Dr Gilruth's first appointment was by Commission dated 25 March 1912, and terminated in accordance with the above section on 24 March 1917.

On 25 March 1917, he was appointed Acting Administrator during the pleasure of the Governor-General.

By the Acting Administrator Ordinance 1917 (No, 4 of 1917) the Acting Administrator was vested with the powers of the Administrator under the Act.

On 11 July 1917, the appointment of Dr Gilruth as Administrator subject to the provisions of the Northern Territory (Administration) Act 1910 was approved by the Executive Council. The appointment was expressed to be 'for the duration of the present war and for six months thereafter'. It does not appear that this appointment was made by Commission as required by the Act, but, in my opinion, the appointment was not invalidated by that omission. The limitation of tenure above quoted must, however, in view of the mandatory provision of section 4 that the Administrator on appointment shall hold office, subject to good behaviour, for five years, be treated as non-effective. Accordingly the appointment was one for five years, subject to good behaviour, that is to say, subject to the appointment being terminated by the Governor-General on the ground of the misbehaviour of the holder.

The Administrator could, of course, tender his resignation of his appointment, which would become terminated upon the acceptance of the resignation.

There is not on the file any written tender of resignation by Dr Gilruth. There is a minute by the Minister, dated 25 June 1919, stating that: 'Dr Gilruth's term expires six months after 1 June, being the date arranged in lieu of the declaration of peace in consequence of his early departure'.

There is also, in some written observations by Dr Gilruth dated 24 June 1920, a statement that: 'I voluntarily agreed to the termination of my last appointment as at the end of November 1919'.

I do not think that the tender of resignation need necessarily be in writing or in any particular form; but it is not clear from the file that there was in fact a tender of resignation. Mr Gilruth's contention, as set out in his letter of 11 and 17 August 1920 [sic], apparently is that there was a conditional arrangement for his resignation, which has not been carried out.

But, whether there was in fact a tender of resignation or not, there is nothing on the file to indicate that there was any acceptance of resignation-or any action whatever by the Governor-General in Council to terminate the appointment.

In the circumstances, it appears that the arrangement mentioned in the last paragraph of the above memorandum cannot be regarded as having lawfully effected the termination of Dr Gilruth's appointment on 30 November 1919, such date being prior to expiration of the statutory period of five years.

[Vol. 18, p.55]