Opinion No. 1484
POSTS AND TELEGRAPHS: TERRITORY OF NEW GUINEA
whether adoption by Territory of New Guinea of postage rates within British Empire different from rates applicable to foreign countries would be LEGALLY OBJECTIONABLE OR contrary to spirit of Mandate
POST AND TELEGRAPH ORDINANCE 1923 (TNG): POST AND TELEGRAPH ACT 1901: MANDATE FOR THE ADMINISTRATION OF THE GERMAN POSSESSIONS IN THE PACIFIC OCEAN SITUATED SOUTH OF THE EQUATOR OTHER THAN GERMAN SAMOA AND NAURU, CONFERRED UPON HIS BRITANNIC MAJESTY FOR AND ON BEHALF OF THE COMMONWEALTH OF AUSTRALIA, CONFIRMED AND DEFINED BY THE COUNCIL OF THE LEAGUE OF NATIONS done at Geneva on 17 December 1920  ATS 2 art 2: COVENANT OF THE LEAGUE OF NATIONS of 28 June 1919
14 February 1931
The Secretary, Prime Minister
The Secretary, Prime Minister’s Department, has forwarded the following memorandum to me for advice:
The rates of postage in respect of the Mandated Territory of New Guinea are prescribed by Regulations made by the Administrator pursuant to the provisions of the Post and Telegraph Ordinance 1923 of that Territory. In general the Territorial rates are similar to the rates prescribed under the Post and Telegraph Act 1901–1923 in respect of the Commonwealth. In the Commonwealth Postal Regulations provision is made, however, for different rates of postage within the British Empire from those applicable to foreign countries. The New Guinea Regulations prescribe a rate of postage for delivery within the Territory of the Commonwealth of Australia, and a higher rate for delivery in all other places.
When the question of enacting postage rates for New Guinea was under consideration in 1926, the Administrator raised the following objections to the adoption in all respects of rates similar to the Commonwealth rates:
- The rates of postage in a large community such as Australia are somewhat more complicated than are necessary for the Territory, also it is desirable that the rates of the Treasury should be as simple as possible in view of inexperienced staff at outstations, and the multiplicity of their duties.
- The Commonwealth rates are preferential in respect of books, catalogues and newspapers printed in Australia, and it is considered that to allow such a preference in the rates of the Territory would be contrary to the spirit of the Mandate.
- Preferential rates as in the Commonwealth on mail matter addressed to certain countries outside the Commonwealth Postal system e.g. British Empire, etc., are also considered to be contrary to the spirit of the Mandate.
It would be appreciated if you would kindly favour me with your views as to whether the adoption by the Territory of New Guinea of postage rates within the British Empire different from the rates applicable to foreign countries would be contrary to the spirit of the Mandate.
The sovereignty over the Mandated Territory is in the Mandatory State and is limited only by the terms of the Mandate.
Article 2 of the New Guinea Mandate provides that ‘the Mandatory shall have full power of administration and legislation over the territory subject to the present Mandate as an integral portion of the Commonwealth of Australia and may apply the laws of the Commonwealth of Australia to the territory subject to such local modifications as the circumstances may require.’
This article confers very full powers on the Mandatory and, although such powers are to a certain extent curtailed by later provisions e.g. in relation to slavery, arms traffic, military training of natives etc., there is no provision against the introduction of preferential postal rates.
It is only in ‘A’ and ‘B’ mandates that provisions are included providing for equal opportunities for the trade and commerce of all the Members of the League of Nations. The Japanese Government urged that the inclusion in the ‘C’ Mandate of a provision ensuring equal opportunity for trade and commerce was required by ‘the fundamental spirit of the League of Nations’ and the interpretation of the Covenant; and in assenting to the issue of the ‘C’ Mandates, they expressly stipulated that their agreement was not to be taken as an ‘acquiescence in the submission of Japanese subjects to a discriminatory and disadvantageous treatment in the mandated territories.’
I am of opinion that there is no legal objection to the adoption of postage rates within the Empire different from the rates applicable to foreign countries and I am further of opinion that, notwithstanding Japan’s objections, such a course would not be contrary to the spirit of the Mandate.
[Vol. 24, p. 930]