CO885-(13-15) — Page 1

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19,440.

SIB,

No. 77.

(WESTERN AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

Royal Courts of Justice,

October 29, 1886.

We were honoured with Mr. Bramston's letter of the 12th instant stating that he was directed by you to transmit to us an extract of a Despatch, dated 9th April 1886, with a portion of its enclosures, detailing the circumstances under which the Governor of Western Australia had recently interdicted Mr. Hensman, the Attorney- General of the Colony, from the exercise of his office, and had appointed an acting Attorney-General in his place; and that Mr. Bramston was to invite our attention to the possible invalidity of the interdiction, and, therefore, of acts done by the acting Attorney-General in that capacity.

That on the 25th of March last, Mr. Hensman, in a letter to Sir F. N. Broome, stated that he had the honour to offer to Her Majesty the resignation of his office as Attorney-General. That Sir F. Broome, in reply, accepted his resignation, and at once appointed Mr. Burt to be acting Attorney-General, such appointment being within the Governor's powers if a vacancy had occurred. That Mr. Hensman then explained that he had offered his resignation to Her Majesty, and expected to continue in his office until the Secretary of State had considered the circumstances of the case. That Sir F. Broome, in reply, offered to allow Mr. Hensman to withdraw his resigna- tion, provided that he gave a written undertaking to place his services unreservedly at his (Sir F. Broome's) disposal. That Mr. Hensman did not give such a written under- taking, and that the Governor thereupon interdicted him from the exercise of his powers and functions of Attorney-General and member of the Executive Council of the Colony until Her Majesty's pleasure should be known upon his resignation, adding that the emoluments and advantages of his office would be preserved to him until the date from which the Secretary of State should decide that the resiguation should

take effect.

That on the papers being received in the Colonial Office, the Governor was directed by a telegram (of which a copy was enclosed) to cancel the interdiction, and to grant Mr. Hensman leave of absence, his resignation being accepted, but as taking effect from a date to be fixed thereafter.

That in the meantime, however, Mr. Burt had exercised the functions of Attorney. General, filing informations for the trial of prisoners, and doing other acts, the validity of which might depend upon that of the interdiction issued against Mr. Hensman.

That Mr. Bramston was to enclose a copy of the Letters Patent constituting the office of Governor, dated the 17th of November 1877, of which the 7th Article related to the suspension of officers, a copy of the Royal instructions, dated the 4th of July 1878, of which the 23rd clause was referred to by the Governor in his letter to Mr. Hensman of the 30th of March, and a copy of more recent Royal instructions, dated the 6th of June 1885, which had taken the place of the said 23rd clause.

That it would be observed that in both those instructions the Governor had received the power, in certain cases, to interdict an officer from the exercise of his functions, and that in both instruments the language was the same," instantly, or before there shall be time to take the proceedings herein directed."

That the questions, then, on which you desired to be favoured with our opinion

were:-

(1.) Whether, under the Royal Instructions an order of interdiction was invalid if, as in the present case, it was not issued in connexion with proceedings for the suspen sion of an officer? or

(2.) Whether, having regard to the terms in which the first alternative was men- tioned in the last sentence of the 23rd clause of the instructions, the Governor was empowered by those instructions to interdict an officer under any circumstances which appeared to him, in his discretion, to demand that, in the interests of the service, such officer should instantly cease to exercise the powers and functions of his office? And that in the event of our being of opinion that the Royal instructions did not authorise interdiction except as a part of proceedings for suspension;

20491-43. 25.-11/86.

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PUBLIC RECORD OFFICE

Reference :-

C.O.885

13 PUBLIC RECORD OFFICE, LONDON

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