7657.
1
PUBLIC RECORD OFFICE
Reference :--
C.O. 885
11 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
MY LORD,
No. 580A.
(SOUTH AUSTRALIA.)
LAW OFFICERS to COLONIAL OFFICE.
(Received July 9, 1869.)
Temple, July 1869.
We are honoured with your Lordship's commands, signified in Sir Frederic Rogers' letter of the 25th June last, stating:
I. That he was directed by your Lordship to transmit to us the copy of a Despatch of the 14th April from the Governor of South Australia, and of the enclosed opinion of the Provincial Law Officers, in which it would be seen certain questions were raised as to the necessity of appointing an officer to administer the Government of that Colony in the absence of the Governor for certain short periods, and as to the payment and apportionment of the Governor's salary during such absence.
That he was desired to annex for reference copies of the Circular of the 20th June 1868, of the Governor's Commission and Instructions, and of the Colonial Regulations; and to call our attention to clause 9 of the Commission, to clause 17 of the Instructions, and to chapter 5, sec. 1, Salaries, of the Colonial Regulations.
3. That a copy of the Colonial Constitution Act, No. 2, 1855-56, was also annexed for reference, but it had been thought unnecessary to transmit us the other Act, 28 of 1866-67, referred to in the opinion of the Provincial Law Officers, inasmuch as it merely augmented the Governor's salary by the annual sum of 1,000.
4. That a question was raised in the Colony of Victoria in 1866, whether Brigadier- General Carey, who administered the Government of that Colony between the date of the recall of Sir Charles Darling and of the arrival of the new Governor, Sir J. H. T. Manners Sutton, was entitled to full salary for the whole of that time, or to half salary only from the date of the embarkation of Sir J. Manners Sutton, according to Rule 104 of the Colonial Regulations.
5. That this question was ultimately referred to, and decided by, the Secretary of State: but copies of two opinions of Mr. McCulloch, the Colonial Attorney-General, upon the relation between the Colonial Act and the Imperial Colonial Regulations, and of the decision of the Secretary of State, as conveyed in a Despatch of the 26th December, 1866, and also of Mr. Labouchere's Despatch of the 2nd September, 1856, were annexed for our information as bearing upon the present case.
6. That it had always been considered that when a salary was affixed by a Colonial law to any office, it rested with the Chief Executive Authority to determine how that salary should be allotted as between officers on leave and acting officers; and that this power was exercised by the Secretary of State by the issue of the "Colonial Regulations," which in this respect were considered to apply to all Governors whatever, and in general to subordinate officers, where responsible Governments had not been established. 7. That, under these circumstances, he was to request that we would favour your Lordship with our opinion upon the following questions:-
1. Whether the South Australian Act, No. 2, 1855-56, leaves Her Majesty or the Secretary of State at liberty to declare, either by Colonial Regulations or otherwise, whether and under what circumstances the salary allotted by law to the Governor shall be divisible between an absent Governor and his locum tenens.
2. Whether the Secretary of State can legally impose the ordinary rule, that during a Governor's absence on leave, or during his voyage to the Colony, previous to the publication of his Commission therein (on which point vide 26 and 27 Vio, tap. 76, sec. 2.), the salary shall be equally divided between him and his locum tenens.
3. Whether the Secretary of State may allow the Governor to receive full salary during the short periods of absence which the Royal Instructions allow him to take without express leave.
4. Whether the right of his locum tenens to salary or half salary commences when the Governor leaves the Colony, or when the locum tenens is sworn in.
5. Whether, supposing the Secretary of State to have no legal power in this respect, he may yet, as a matter of official authority, require Governors and officers adminis- tering (who hold during Her Majesty's pleasure) to divide the emoluments of the office according to the usual rules of the Service.
▲ 20491.-8. 25.-1/87, G. 37.