Opinion Number. 515



Key Legislation

NAVAL DEFENCE ACT 1910 -1912. s. 7

The Minister for Defence

The Minister for Defence asks to be advised on the legal position of the Common-wealth with regard to the matter set out in the following minute by the Secretary, De-partment of Defence:

With regard to the attached papers in which Captain Hughes-Onslow has officially ex-pressed his views on a Board duly constituted by law, the offensive way he refers to certain members of the Board and his official relations with those members are of such a character as to-in the opinion of the Minister-preclude the possibility of satisfactory results in the important work of administering the affairs of the Naval Forces of the Commonwealth.

The papers will show that he was given the opportunity of resigning, but he declined to do so.

By Order in Council he was on the 1st instant relieved of his duties during His Excel-lency the Governor-General's pleasure, and unless section 12 of the Naval Defence Act of 1910 requires that he should be first called upon to show cause, the Minister proposes sub-mitting for the approval of the Executive Council that his services be dispensed with. Be-fore taking such action however, the Minister desires the opinion of the Crown Law Authorities on the legal position, and also as to the liability of the Commonwealth in view of the terms of his appointment which are as follows:-

'His Excellency the Governor-General, acting with the advice of the Federal Execu-tive Council, has been pleased to approve of the appointment of Captain Constantine Henry Hughes-Onslow, R.N.(Retd.), as Second Naval Member of the Naval Board, for a period of two years, with salary at the rate of One thousand pounds (£1,000) per annum, inclusive of all allowances except travelling vice Captain B. M. Chambers, R.N. Dated 15 August, 1912.'

The Minister would be glad of early advice on this matter.

By the Naval Defence Act 1910-1912, section 7, the Governor-General is empowered to appoint a Board of Administration for the Naval Forces, to be called the Naval Board, which Board is to have such powers and functions as are prescribed.

By the Regulations for the Naval Forces, Statutory Rules 1911 No. 32, it is pro-vided that the Naval Board shall consist of the Minister as President, three Naval Members, and a Finance and Civil Member, and the functions of the Board and its sev-eral members are defined.

By Executive Minute approved on 20 November 1912, Captain Hughes-Onslow was appointed Second Naval Member of the Naval Board for a period of two years with salary at the rate of £ 1000 per annum, inclusive of all allowances.

In my opinion, Captain Hughes-Onslow, notwithstanding the fact of his appoint-ment for a term of two years, holds office during the pleasure of the Crown, and his ser-vices may be dispensed with at any time by the Governor-General in Council.

It is a rule of law, founded on public policy, and apparently extending to the civil as well as to the naval and military services, that in the absence of statutory provision the Crown has no power to make an appointment which is not terminable at pleasure, and that an appointment, though expressed to be for a term of years, must be construed as containing a condition that the Crown may dismiss at pleasure. See the decision of the Court of Appeal in Dunn v. The Queen [1896] 1 Q.B. 116, and the unreported case of De Dohse v. The Queen, there cited, decided by the House of Lords; also the decisions of the Privy Council in Shenton v. Smith [1895] A.C. 229 and Gould v. Stuart [1896] A.C. 575.

In this case there is no statutory limitation of the right of the Crown to determine the appointment, and in my opinion the Governor-General in Council without cause assigned may terminate Captain Hughes-Onslow's engagement.

[Vol. 11, p. 403]