I am in receipt of your memorandum of 23 July 1935 requesting advice as to the necessity for the issue of Commissions to all State Governors authorising them to act as deputies of the Governor-General in extradition cases.

It appears that His Excellency the Governor-General has issued a Commission appointing His Excellency Sir Alexander Hore-Ruthven to be his deputy in New South Wales for the purposes of section 4 of the Extradition Act 1903.

Prior to the issue of the recent Commission, the last such Commission in respect of New South Wales was issued on 29 May 1913. This Commission was addressed to the Governor of New South Wales (by name) and to his successors in office as Governors of that State, and to all persons for the time being administering the Government of that State, and to all persons acting as the deputy of the Governor for the time being of that State during any temporary absence of the Governor from the Seat of Government of the State or from the State. Commissions in similar terms were issued at that time in respect of the other States also.

The question of the sufficiency of the Commission issued to the Governor of New South Wales in 1913 was considered in the case of Ex parte Bradshaw 38 W.N. (NSW) 82. In 1921, Sir Walter Davidson, the then Governor of New South Wales, purported to act in pursuance of this Commission. With regard to the sufficiency of the Commission, Mr Justice James held that the document put in evidence (i.e. the Commission of 1913) conveyed to Sir Gerald Strickland and his successors the powers vested in the Governor-General, and that there was no necessity for each Governor-General to appoint a deputy, as the deputation was made by the Governor-General as such and not in an individual capacity as Sir Thomas Denman.

In view of this decision, it is doubtful whether there is any necessity for the issue of fresh Commissions, when the Governor-General by whom the existing Commissions were issued ceases to hold office.

It appears to me, however, from the language used in section 126 of the Constitution and in the Letters Patent issued under that section by Her Majesty Queen Victoria on 29 October, 1900, that it was contemplated that the Governor-General should exercise a personal discretion in appointing deputies under that section.

It seems desirable, also, that these appointments should be brought under review from time to time.

It is proposed, therefore, when any Governor-General assumes office in the future, to request the Prime Minister’s Department to submit to him for approval and execution fresh Commissions appointing the Governors of the several States to be his deputies for the purposes of section 4 of the Extradition Act.

[Vol. 28, p. 41]