The Secretary, Department of Home and Territories, has forwarded me the following communication from Judge Drake-Brockman for advice upon the points raised by him in regard to the proposed abolition of his office and termination of his appointment:

I have the honour to draw attention to two letters received by me in Rabaul, New Guinea–the one (copy attached hereto and marked ‘A’) being unsolicited; the other–a copy–(copy attached hereto and marked ‘B’) upon my request. Perusal of the above-mentioned two letters will, I trust, be sufficient explanation as to why I asked that arrangements be made for me to proceed immediately to Melbourne to confer with Senator the Rt. Hon. F. G. Pearce, P.C., Minister for Home and Territories, and if need be, with the Commonwealth Government. The Minister for Home and Territories has been good enough to grant me an interview on two occasions in connection with the matter, and it would appear that his opinion, apart altogether of course from the legal aspect, is unaltered.

I have the honour, therefore, further to draw attention to Commonwealth Gazette No. 103, 25th November, 1920, at page 2198, wherein it is notified that applications would be received for appointment to certain positions in (late) German New Guinea–the position in question being ‘Judge–Salary £1000 per year, and quarters.’ I would further draw attention to Commonwealth Gazette No. 31–7th April, 1921, at page 626, wherein the Notice of my appointment to the last above-mentioned position appeared in the following words– ‘Karl Edgar Drake-Brockman to be Judge with salary at the rate of £1000 per annum,
with Quarters.’

It would seem that there is no such office as that of ‘Second Judge of the Territory’ mentioned in the two letters (copies attached hereto marked ‘A’ and ‘B’). I take this action, however, as my name has been definitely mentioned in connection therewith.

I would also draw your attention to the ‘Commission’ dated April 18th, 1921, sent to me after I had left Melbourne for Rabaul, almost immediately after my appointment. It will be noted that in the ‘Commission’ use is made of the phrase–’During the pleasure of the Governor-General.’ I did not take exception to this phrase at the time for three reasons:

Firstly, because I did not think that the question would ever be likely to arise; secondly, because the ‘Commission’ was subsequent in date to the Notice in the Gazette concerning my appointment as approved by the Governor-General in Council, wherein no such phrase appeared; and, lastly, because of certain provisions of the Commonwealth of Australia Constitution Act, to which I will hereinafter make more particular reference.

I would, at this stage, make reference to the Judgment of His Honor, Mr. Justice Isaacs (which was the Judgment of the Court) recently delivered in the High Court of Australia in the case Mainka v The Custodian of Expropriated Property.⁽¹⁾ His Honor’s opening sentence was as follows:

This is an appeal from a Judgment of Drake-Brockman, J., as a Justice of the Mandated Territory of New Guinea.

I would also draw particular attention to all the first part of the Judgment, which deals with the question of jurisdiction, and especially to the following two sentences:

The appellate power of this Court under section 73 of the Constitution extends to all judgments, decrees, orders and sentences … of any (other) Federal Court–that is other than itself. The Central Court from which this appeal comes is established by Judiciary Ordinance No. 3 of 1921, and under the law already stated is a Federal Court.

It only remains for me to make reference to The Commonwealth of Australia Constitution Act–section 72 thereof, which deals with the appointment, tenure, etc … of ‘Justices of the High Court and of the other Courts created by Parliament.’

Having regard to the foregoing, it will be readily seen that my services cannot be dispensed with except in accordance with the said section 72 of the Constitution.

In view of the above I have the honour to request that instructions be given to me as to whether I am to return to the Territory of New Guinea at the expiration of the two months leave as from August 26th, 1924, of which I have been notified, or as to the manner in which it is proposed to utilise my services thereafter.

The points raised by the Judge other than that on the Constitutional question have been dealt with in my opinion of even date.

In Mainka v. the Custodian of Expropriated Property, Mr. Justice Isaacs stated that the Central Court was a Federal Court for the purposes of the appellate jurisdiction of the High Court under section 73 of the Constitution.

Section 72 of the Constitution provides that the Justices of the High Court and of the other Courts created by the Parliament shall not be removed except by the Governor-General on an address from both Houses of the Parliament.

The Central Court is constituted under an ordinance of the Territory. The power to legislate for Territories is derived from section 122 of the Constitution which provides that the Parliament may make laws for the government of any territory, etc.

In exercise of that power the Commonwealth Parliament has authorised a subordinate legislature to make laws for the Territory. The laws so made are not subject to the limitations prescribed by section 72. Sections 71 and 72 do not apply to Courts created under legislation for the Territories. An authority for this opinion is to be found in the judgment of the High Court in King v. Bernasconi 19 C.L.R. 629 at page 635. Griffith, C.J., in his judgment stated that Chapter III of the Constitution is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories. He further stated ‘In my opinion, the power conferred by section 122 is not restricted by the provisions of Chapter III of the Constitution whether the power is exercised directly or through a subordinate legislature.’

As Chapter III of the Constitution does not apply to legislation for Territories or the exercise of judicial power therein it does not appear that section 72 can be invoked as prescribing the tenure of a Judge appointed under legislation for a Territory.

I, therefore, advise that the constitutional point raised by Judge Drake-Brockman does not affect the power of the Governor-General to terminate his appointment at pleasure.

[Vol. 21, p. 232]

(1) (1924) 34 CLR 297.