The Secretary, Home and Territories Department, has submitted the following memorandum to me for advice:

Section 12 of the New Guinea Act 1920 provides that the Governor-General may appoint such officers as are necessary for the administration of that Act or for the proper government of the Territory.

Section 8 of the Judiciary Ordinance 1921–1922 provides that the Central Court shall consist of so many Judges as the Governor-General prescribes and that such Judges shall be appointed by the Governor-General in accordance with the provisions of section 12 of the New Guinea Act 1920.

The Minister has decided that the position of Judge held by Mr Drake-Brockman shall
be abolished.

As the Public Service Ordinance of the Territory does not apply to the Judges of the Central Court, it would appear that the only procedure necessary to give effect to the Minister’s decision is to obtain the approval of the Governor-General in Council for the termination of Judge Drake-Brockman’s services.

My Minister would prefer that the Order in Council should refer to the abolition of the office and not to the termination of the services of the officer, but it is presumed that in view of the fact that section 12 of the New Guinea Act refers only to the appointment of officers such a course could not be followed.

I shall be glad to be furnished with advice as to the correct procedure to be followed.

Mr. K.E. Drake-Brockman was appointed as a judge in connection with the administration of the Territory of New Guinea by an order approved of by the Governor-General in Council and published in the Commonwealth Gazette of 7th April, 1921.

This order was promulgated before the passing of the Judiciary Ordinance 1921 which was proclaimed to commence on 9th May, 1921, and was made under section 12 of the New Guinea Act 1920, which reads as follows:

12. The Governor-General may appoint, or may delegate to the Minister or to the Administrator power to appoint such officers as are necessary for the administration of this Act or for the proper government of the Territory.

Section 8 of the Judiciary Ordinance reads as follows:

8. 1. 1 The Central Court shall consist of so many Judges as the Governor-General prescribes, and if there be more than one Judge of the Central Court one of them shall be appointed and designated as the Chief Judge of the Territory.
   2. The Judges of the Central Court, including the Chief Judge, shall be appointed by the Governor-General or his delegate in accordance with the provisions of section twelve of the New Guinea Act 1920.
   3. The Judges of the Territory, including the Chief Judge, holding office at the commencement of this Ordinance shall be deemed to have been appointed Judges of the Central Court in accordance with the provisions of the last preceding sub-section.
   4. The Central Court shall be constituted by the Chief Judge or a Judge of the Territory sitting as such Central Court.

As a consequence of subsection (3) of the section above-quoted Judge Drake-Brockman is deemed to have been appointed as a Judge of the Central Court.

A Chief Judge was also appointed under the same Order-in-Council as that by which Judge Drake-Brockman was appointed, and, as no other judges have been appointed since that order was made, there are at present only two judges of the Central Court including the Chief Judge.

But in accordance with section 8 of the Judiciary Ordinance 1921–1923, the Central Court consists of so many judges as the Governor-General prescribes.

Up to the present date the Governor-General has not prescribed what number of judges are to be appointed, and in order to surmount as far as possible the difficulty referred to in the second last paragraph of your memorandum, which is set out above, I suggest that an order be made by the Governor-General prescribing that there shall only be one judge of the Central Court, and stating that, in view of this, it is necessary to terminate the services of Judge Drake-Brockman.

In this connection it should be noted that, if it is desired to appoint additional judges at any future time, it would be necessary for the Governor-General to prescribe by a further Order-in-Council what alteration should be made in regard to the number of judges which the Central Court should consist of.

The suggested order could also effect the termination of Judge Drake-Brockman’s services, as the power given to the Governor-General under section 12 of the New Guinea Act to appoint officers of the Territory includes the power to remove any officers who may be appointed. (See subsection (4) of section 33 of the Acts Interpretation Act 1901–1918.)

I am forwarding herewith a draft order for these purposes.

[Vol. 21, p. 205]