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

With reference to your memorandum of the 20th August, I am directed to inform you that Judge Drake-Brockman has raised the following points in connection with the proposed termination of his appointment:

1. The notice which appeared in Commonwealth Gazette No. 103 of the 25th November 1920 made no reference to the appointment of a Chief Judge and did not stipulate that the appointment would be subject to the Governor-General’s pleasure;
2. The notice of appointment which appeared in Commonwealth Gazette No. 31 of the
   7th April 1921 did not make any reference to the fact that the appointment would be subject to the Governor-General’s pleasure; and
3. Although the Commission which was issued to him on the 18th April 1921 states that he shall hold the said office during the pleasure of the Governor-General, such Commission was delivered to him after he had been notified of appointment and after he had left Melbourne for New Guinea.

Judge Drake-Brockman states that he relied upon the Gazette notice of appointment as governing the conditions under which he accepted the position.

I attach copies of:

1. The Gazette notice calling for applications for the position of Judge;
2. The Executive Council Minute appointing D. S. Wanliss as Chief Judge and K.E. Drake-Brockman as Judge; and
3. The Gazette notice in regard to the appointment of those officers.

The Commission which was granted to Judge Drake-Brockman on the 18th April 1921, contains the words ‘to have, hold, exercise and enjoy the said office during the pleasure of the Governor-General.’

My Minister would be glad to be furnished with urgent advice as to whether any of the points raised by Mr. Drake-Brockman affect your advising of the 20th August as to the power of the Governor-General to terminate the appointment, in the manner proposed therein.

Mr. K.E. Drake-Brockman was appointed as a Judge of the Territory of New Guinea in pursuance of 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.

Since Mr. Drake-Brockman was not appointed for any term of years or ‘during good behaviour’ or generally under any special condition of tenure, the power to appoint under section 12 of the New Guinea Act includes, in my opinion, the power to remove.

This is in accordance with subsection 4 of section 33 of the Acts Interpretation Act 1901–1918, which reads as follows:

(4) Where an Act confers upon any person or authority a power to make appointments to any office or place, the power shall, unless the contrary intention appears, be construed as including a power to remove or suspend any person appointed, and to appoint another person temporarily in the place of any person so suspended or in place of any sick or absent holder of such office or place.

In view of the foregoing, I am of opinion that the points raised by Judge Drake-Brockman do not affect the power of the Governor-General to terminate the appointment of the Judge.

The result appears to me to be the same irrespective of the fact that the words ‘during the pleasure of the Governor-General’ (which were contained in the Commission appointing Mr. Drake-Brockman as a Judge of the Territory) were not included in the Gazette notice calling for applicants for the position of Judge of the Territory nor in the Executive Minute in which the Governor-General in Council approved of Mr. Drake-Brockman’s appointment.

The question whether there is a constitutional objection to the proposed action has been raised in another communication, and I propose to deal with that matter separately.

[Vol. 21, p. 229]