The Secretary, Home and Territories Department has forwarded the following memorandum from the Administrator of New Guinea for advice:

The validity of the Regulations made under the Administrator’s Powers Ordinance 1923 has been questioned on the grounds that these Regulations are Legislation and that the Governor-General being himself a delegate has no power to delegate his legislative powers.

As this opinion, if upheld, will render abortive all the Regulations made under that Ordinance, it is essential that the point should be decided as early as possible.

I would ask therefore that the matter be submitted to the Crown Law authority and the decision radioed as soon as possible.

The question was raised in an appeal against a conviction by the District Court heard by Mr. Justice Drake-Brockman in the Central Court. As Mr. Justice Drake-Brockman’s remarks delivered in Judgment may be interesting I enclose copy of that Judgment.

The charge was laid under the Regulations (section 2 sub-section 1(O) of the Maintenance of Public Decency Regulations 1923) and the appeal was from the conviction under the section mentioned.

The Justice’s remarks in paragraph 6 of the Judgment are those to which I would draw attention. I would also refer to the underlined portion of paragraph 5.

You will note that the Judge did not deal with the question of the validity of the Regulations, but switched off onto the question as to whether a crime had or had not been committed under English Common Law. This is rather a pity as it would have been useful to know the reason which might have made his decision otherwise if the Administrator had exercised the powers purporting to be conferred by section 2 sub-section (2) of the Ordinance.

The Judge did not decide the question of the validity or otherwise of the Administrator’s Powers Ordinance 1923, but held that the regulations were not ultra vires as in his opinion they were not inconsistent with the Common Law as applied to the Territory by section 16 of the Laws Repeal and Adopting Ordinance 1921–1923. In paragraph 5 of his judgment, however, the following remarks appear:

I am of opinion that section 2, sub-section (2) of the said Ordinance has no application, because there has been no attempt by the Administrator to exercise the powers thereby purported to be conferred and I will say that if there had been such an attempt my decision might have been otherwise, but for the purposes of this case I need not go into that
matter further.

Section 14 of the New Guinea Act 1920 empowers the Governor-General to make Ordinances having the force of law in the Territory of New Guinea.

By virtue of section 14 the Governor-General is the authority competent to make laws for New Guinea. Subject to the limitations imposed by the Act his powers of legislation are unrestricted, and are of the same nature as the authority conferred by Imperial Statute upon Colonial legislatures, that is to say, the Governor-General has, within the limits specified in the Act, the same legislative authority as the Commonwealth Parliament has and is not merely the delegate of the Commonwealth Parliament.

It is, therefore, competent for the Governor-General to make an Ordinance giving the Administrator power to make regulations dealing with matters specified in the Ordinance, but in my opinion, it is doubtful whether the power so given can legally include the amendment by regulation of existing law.

So far as the Administrator’s Powers Ordinance is concerned, the authority to make regulations is conferred by the opening words of subsection (1) of section 2—

The Administrator may make regulations, not inconsistent with any Ordinance made by the Governor-General for the Territory, for all or any of the following purposes: …

Subsection (2) of section 2 purports to authorise the making of regulations amending or repealing laws enacted by the Military Administration and laws applied by the Laws Repeal and Adopting Ordinance 1921.

The operation of both ‘military’ enactments and applied laws is secured by the Laws Repeal and Adopting Ordinance which is ‘an Ordinance made by the Governor-General’ within the meaning of the opening words of subsection (1) and there is an inconsistency between the two subsections.

In my opinion, subsection (1) is a provision overriding the inconsistent provisions of subsection (2), the latter section being an elaboration of the powers given in the
first subsection.

I am, therefore, of opinion that regulations purporting to amend or repeal the enactments referred to in paragraphs (a) and (b) of subsection (2) are invalid as not being authorised by the Ordinance.

Apart from the question of want of authority, I suggest that the repeal or amendment of Ordinances by regulation is a distinctly undesirable practice to follow, and in view of the facility with which Ordinances may be amended or repealed by other Ordinances, such a practice appears quite unnecessary. The Act contemplates legislation by the Governor-General by Ordinance. Power given to the Administrator to alter the law by regulation derogates from the functions of the Governor-General as laid down in the Act.

[Vol. 21, p. 416]