The Secretary, Department of External Affairs, has forwarded to me for advice the following letter received from the Acting Consul-General for Germany:

I have been requested to make enquiries concerning the extradition of Fugitive Offenders and Criminals from Australia.

By letter of the 6th of January 1909–08/13259–the Department of External Affairs has informed this Consulate-General that all powers for the surrender of a fugitive criminal are vested in and may in the Commonwealth be exercised and done by the Governor-General.

In all the States except Victoria, the Governor-General has appointed the State Governors to be his deputies in relation to the surrender of criminals.

I therefore assume that an application for extraditions which may be made though this Consulate-General under Article 15 of the Anglo-German Extradition Treaty of May 14th 1872 should in each instance be addressed to the Governor of the State (except the Governor of the State of Victoria) in which the criminal is supposed to be living.

Should, however, the Governor of the State of Victoria, the Government Residents of the Northern Territory, Norfolk Island, the Governor of Papua, and the Administrator of the Mandated Territories of New Guinea and Nauru also having been appointed to be deputies of the Governor-General in such cases, I assume that applications for extradition made through this Consulate-General may be addressed to them.

As far as I am aware all the extraditions from the Commonwealth are governed by the Extradition Act 1903. I shall be obliged if you are in a position to forward to me 3 copies of the Extradition Act and all further publications now in force relating to extraditions from the Commonwealth of Australia and the Mandated Territories.

Thanking you in anticipation.

Section 4 of the Extradition Act 1903 of the Commonwealth provides that all powers vested in and acts authorized or required to be done by a Secretary of State under the Imperial Extradition Acts 1870 to 1895 in relation to the surrender of a fugitive criminal are vested in and may in the Commonwealth be exercised and done by the Governor-General and may in any part of the Commonwealth be exercised and done by any deputy of the Governor-General thereto authorized.

As the Northern Territory is a part of the Commonwealth, the Governor-General could, in my view, authorize the Administrator of the Northern Territory to exercise in the Northern Territory the powers of the Governor-General with respect to the surrender of a fugitive criminal. If, therefore, the Administrator of the Northern Territory be authorized by the Governor-General as his deputy in that behalf, requisitions for the surrender of any fugitive criminal in the Northern Territory should be made to the Administrator.

The Imperial Extradition Acts 1870 to 1895 provide that where an arrangement has been made with any foreign State with respect to the surrender to such State of any fugitive criminals, Her Majesty may, by Order in Council, direct that the Act shall apply in the case of such foreign State (section 2). Section 17 enacts that the Act, when applied by Order in Council shall, unless it is otherwise provided by such Order, extend to every British possession. It is further provided, however, that the requisition for the surrender of a fugitive criminal may be made to the Governor of that British possession.

In section 26 of the Act, the terms ‘British possession’, ‘legislature’ and ‘Governor’ are defined as follows:

The term ‘British possession’ means any colony, plantation, island, territory, or settlement within Her Majesty’s dominions, and not within the United Kingdom, the Channel Islands, and Isle of Man; and all colonies, plantations, islands, territories and settlements under one legislature, as hereinafter defined, are deemed to be one British possession.

The term ‘legislature’ means any person or persons who can exercise legislative authority in a British possession, and where there are local legislatures as well as a central legislature, means the central legislature only.

The term ‘Governor’ means any person or persons administering the government of a British possession, and includes the Governor of any part of India.

Article XV of the Extradition Treaty of 1872 between Britain and Germany provides that the Stipulations of the Treaty are applicable to the Colonies and foreign possessions of Her Britannic Majesty, and that the requisition for the surrender of a fugitive criminal who has taken refuge in any of such colonies or foreign possessions shall be made to the Governor or Chief Authority of such colony or possession.

The Territories of Norfolk Island and Papua are not parts of the Commonwealth and section 4 of the Extradition Act 1903 would not apply with respect to either of these Territories. Section 5 of the Norfolk Island Act 1913 provides that the Acts of the Parliament (except that Act) shall not be in force in Norfolk Island unless expressed to extend thereto. By section 7 of the Papua Act 1905–1924 the Acts of the Parliament of the Commonwealth are not in force in the Territory unless expressed to extend thereto. I can find no provision in any Act or Ordinance which extends the operation of the Extradition Act 1903 to either Norfolk Island or Papua.

By section 8 of the Norfolk Island Act 1913, the Governor-General is empowered to make Ordinances for the peace, order and good government of Norfolk Island. These Ordinances are to be laid before both Houses of the Parliament, and if either House passes a resolution disagreeing with an Ordinance, it ceases to have effect.

With respect to Papua, the Papua Act 1905–1924 provides that there shall be a Lieutenant-Governor of the Territory who shall be charged with the duty of administering the government thereof on behalf of the Commonwealth. An Executive Council is established for the purpose of advising and assisting the Lieutenant-Governor.

Section 29 enacts that there shall be a Legislative Council for the Territory. This Council is to consist of the Lieutenant-Governor and the members of the Executive Council and other members. Section 36 provides that the Legislative Council shall have power to make Ordinances for the peace, order and good government of the Territory. These Ordinances are to be presented to the Lieutenant-Governor for his assent. Certain Ordinances are to receive the Governor-General’s assent.

It would appear that Norfolk Island and Papua are ‘British Possessions’ within the meaning of the Extradition Acts 1870–1895. In this connexion I would point out that section 3 of the Norfolk Island Act enacts that Norfolk Island is accepted by the Commonwealth as a Territory under the authority of the Commonwealth, and section 5 of the Papua Act provides that the possession of British New Guinea is declared to be accepted by the Commonwealth as a territory under the authority of the Commonwealth.

In view of the above definitions in the Extradition Acts 1870 to 1895, I think that Norfolk Island and Papua are British possessions within the meaning of those Acts and that the Acts apply in both Territories. They are, I think, foreign possessions of His Majesty to which the above Extradition Treaty of 1872 would extend.

I am inclined to think that the term ‘Governor’ would apply to the Administrator of Norfolk Island and the Lieutenant-Governor of Papua, and that requisitions under the Treaty should be directed to them with respect to the extradition of criminals from these Territories. As indicated above the Governor-General could not authorize the Administrator of Norfolk Island or the Lieutenant-Governor of Papua to be his deputy for the purposes of the Extradition Act 1903.

With respect to New Guinea, section 4 of the New Guinea Act declares that New Guinea is a territory under the authority of the Commonwealth. Section 6 provides that there shall be an Administrator of the Territory who shall be charged with the duty of administering the Government thereof on behalf of the Commonwealth. Section 13 of the Act enacts that the Acts of the Parliament of the Commonwealth shall not be in force in the Territory unless expressed to extend thereto or unless applied to the Territory by Ordinance made by the Governor-General. By section 14 the Governor-General is empowered to make Ordinances having the force of law in the Territory.

By the Extradition Ordinance 1927 (No. 10 of 1927) the Extradition Acts 1870–1895 are adopted as a law of the Territory. Section 5 provides that the requisition for the surrender of a fugitive criminal may be made to the Administrator. I think, therefore, that requisitions for the extradition of persons from New Guinea should be made to the Administrator of New Guinea.

The Island of Nauru is administered under a Mandate conferred by the Allied and Associated Powers upon the British Empire. By an Agreement entered into between
His Majesty’s Government in London, His Majesty’s Government in the Commonwealth of Australia and His Majesty’s Government in the Dominion of New Zealand, the administration of the Island is vested in an Administrator. The Agreement further provides that the first Administrator shall be appointed for a term of five years by the Australian Government and thereafter in such manner as the three Governments decide.

I am doubtful if Nauru could, in view of the above, be considered to be a ‘British possession’ within the meaning of the Extradition Act 1870 to 1895 or a colony or foreign possession of Her Majesty to which the Extradition Treaty of 1872 between Britain and Germany would apply.

I think, however, that it would be possible for the Administrator of Nauru to make an Ordinance similar to the Extradition Ordinance 1927 of the Territory of New Guinea. In this connexion I would refer to Article 1 of the above Agreement which provides that the Administrator shall have power to make Ordinances to the peace, order and good government of the Island.

[Vol. 26, p. 16]