The Secretary, Department of Defence, has forwarded the following memorandum for advice:

Herewith is forwarded a report by the Comanding Officer, Royal Australian Naval College, dated 1st September 1914, regarding Mr A.B.C., Director of Studies. The views of the Naval Board appear on Docket 14/0350.

2. Regulation 36 of Statutory Rule 308 of 1913 provides as follows:

The tenure of office of members of the Civil Staff shall depend upon their good behaviour. They may at any time be suspended or removed for misconduct, of which the Naval Board shall be the sole judge.

3. Having regard to the report of the Commanding Officer, Naval College, above mentioned, and also the Naval Board letter to the Commanding Officer, Naval College, dated 13th July 1914, in Docket 14/0251, it is desired to know whether the state of affairs constitutes misconduct within the meaning of regulation 36 and whether the Naval Board have power to terminate the appointment of the Director of Studies. His appointment appears in Gazette No. 52 of 10th August 1912 (page 1406).

Regulation 36 of the Naval College Regulations provides (inter alia) that members of the Civil Staff of the College may be removed for misconduct, of which the Naval Board shall be the sole judge.

Although the Naval Board is sole judge as to whether there has been misconduct, the Board cannot act capriciously nor can they act where there is not sufficient evidence to show that the person in question has been guilty of misconduct.

In the present case the only evidence consists in some correspondence which took place between the Commanding Officer of the College and the Director of Studies.

The Commanding Officer charges the Director of Studies with having overstayed his leave, while the Director of Studies in his letter in reply states that he was not on leave in the ordinary sense of the word, but was absent on duty for the College.

There is no evidence on the file to show why the Director of Studies was in Sydney, nor whether the Director was actually on leave as the Commanding Officer alleges or on duty as he (the Director) alleges.

The evidence being so contradictory, I do not think that there is sufficient evidence upon which anybody could come to the conclusion that the Director of Studies had overstayed his leave.

Until there is evidence before the Board upon which they can decide whether the Director of Studies was on leave or on duty, I do not think that the Board would be justified in coming to the conclusion that the Director has been guilty of misconduct.

From the minutes signed by the different members of the Naval Board, appearing on the file, I think it is clear that the Board has come to the conclusion that Mr C. is temperamentally unfitted for the position of Director of Studies.

Regulation 35 of the Naval College Regulations provides that the Naval Board may, on the advice of the Captain of the College, terminate the engagement of a member of the Civil Staff by giving six months' notice. The Commanding Officer of the College is of the opinion that Mr C. is temperamentally unfitted for the position he occupies, and if he were to recommend to the Board that Mr C.'s services be dispensed with, the Board could then terminate Mr C.'s services by giving him six months' notice.

From the correspondence and papers on the file, in my opinion, there is not sufficient evidence to justify the Naval Board in removing Mr C. on the ground of misconduct under regulation 36, but there is sufficient evidence to justify them giving him six months' notice under regulation 35.

The Commanding Officer of the College in his letter to the Naval Secretary of September 1st reports the Director of Studies for not complying with Articles 865 and 866 of the King's Regulations and Admiralty Instructions.

It seems to be rather doubtful as to how far the King's Regulations and Admiralty Instructions apply to the members of the Civil Staff of the Colleges.

The Naval Defence Act applies the King's Regulations and Admiralty Instructions to the Naval Forces, but it is very doubtful whether the members of the Civil Staff of the College are members of the Naval Forces.

The constitution of the Naval Forces is set out in sections 19, 20 and 21 of the Naval Defence Act, and I do not think that the mere conferring of a relative naval rank on the members of the Civil Staff as set out in regulation 30 of the Naval College Regulations is sufficient to constitute them members of the Naval Forces.

I think it might be advisable to make it clear whether the members of the Civil Staff of the College are to be considered members of the Naval Forces.

[Vol. 13, p. 129]

1. This opinion is unsigned in the Opinion Book, but it is attributed to Mr. garran.