Opinion Number. 522



Key Legislation

CONSTITUTION, s.68 : NAVAL DEFENCE ACT 1910 -1912. s. 8

The Minister for Defence

The Minister for Defence asks for advice on the question raised in the following minute by the Secretary, Department of Defence:

For many years the Admiral commanding the ships of the Royal Navy on the Aus-tralian Station has, by the Imperial Government, been designated the Naval Commander-in-Chief of the Australian Station.

The Australian Fleet is now composed of ships of the Royal Australian Navy, and its Commanding Officer is Rear-Admiral Sir George Patey, whose services are lent by the British Admiralty for a term of three years.

The question has been raised as to the desirableness of according to the Admiral com-manding the Australian Fleet the title of Naval Commander-in-Chief of the Australian Fleet and the Minister would be glad to know whether there are any legal difficulties in the way. In this connection reference is directed to the Constitution which provides that His Excellency the Governor-General shall be Commander-in-Chief of the Naval and Military Forces and the subject is dealt with in the Annotated Constitution of the Aus-tralian Commonwealth (Quick & Garran), page 713. The Naval Agreement of 1911 (attached) appears to have a bearing on the subject and also section 8 of the Naval De-fence Act 1910.

By section 68 of the Constitution 'The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative'.

By the Letters Patent constituting the Office of Governor-General the holder of that office is declared to be a Governor-General and Commander-in-Chief in and over the Commonwealth of Australia.

In the Colonial Service Regulations, No. 4, it is provided:

4. The Governor is the single and supreme authority responsible to, and representative of, His Majesty. He is, by virtue of his Commission and the Letters Patent constituting his office, entitled to the obedience, aid and assistance of all Military and Civil officers; but although bearing the title of captain-general or commander-in-chief and although he may be a military officer, senior in rank to the officer commanding the troops, he is not, except on special appointment from His Majesty, invested with the command of His Majesty's regular forces in the Colony . . .

Section 8 of the Naval Defence Act empowers the Governor-General to appoint any officer to command the whole or any portion of the Naval Forces.

The title of 'Commander-in-Chief conferred by the Letters Patent and the Governor-General's Commission, in accordance with the Colonial Service Regulations and the practice of the Colonial Office, has relation to Imperial as well as local forces, but is little more than titular.

The command in chief of the naval and military forces vested in the Governor-General by section 68 of the Constitution, is vested in him as the King's representative of the Commonwealth and is exercisable by him in accordance with the principles of responsible government.

The Governor-General in Council has, under section 8 of the Naval Defence Act, power to appoint an officer to command the Naval Forces of the Commonwealth. The designation of such officer may be whatever the Governor-General in Council thinks appropriate; and in my opinion there is no legal obstacle to the designation being 'Naval Commander-in-Chief of the Australian Fleet'.

[Vol. 11, p. 465]