The Secretary, Prime Minister’s Department, has forwarded for my advice the following memorandum:

The Chairman of the Committee that has been appointed by the Commonwealth Government to enquire into the question of the amalgamation of the Administrations of the Territories of Papua and New Guinea (the Hon. F. W. Eggleston) has addressed a communication to the Minister, in which the following passage appears–

I think that the legal position under the Mandate should be carefully considered and that we should be fortified by the best legal authorities. Naturally I have my own opinions on legal matters, but in view of the opinions expressed in most of the official documents, we must be prepared for criticism and act most carefully. I suggest, therefore, that the Solicitor-General be asked to advise on certain questions I shall draw up. He will speak with great authority, but I would suggest also that a lawyer who has been in close touch with these affairs for many years like Mr. P. D. Phillips should be asked to give his opinion. If the Solicitor-General is not available perhaps a joint opinion from Professor Bailey and Mr. Phillips could be obtained.

The questions upon which Mr. Eggleston suggests that advice should be given are stated in a memorandum submitted by him, a copy of which is attached.

I am to request that you will be good enough to favour me with advice upon the matters raised by Mr. Eggleston.

A copy of the terms of reference to the Committee is attached, for your information.

The memorandum submitted by Mr. Eggleston is as follows:

I. Would an amalgamation of the Mandated Territory of New Guinea and the Territory of Papua be a breach of the terms of the Mandate?

In reference to this it is pointed out that by Clause 2 of the Mandate it is provided that the Mandatory shall have full powers 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 circumstances may require.

The Mandates for other powers contain a clause not in the New Guinea Mandate. ‘The Mandatory shall be authorised to constitute the Territory into a customs fiscal and administrative union with the adjacent territories under his own Sovereignty or control; provided always that the measures adopted to that end do not infringe the provisions of this Mandate.’

(See The British Mandate for East Africa.)

The presence of this clause in the East African Mandate and its absence from the New Guinea Mandate creates the inference that in the absence of this clause amalgamation is not in accordance with the Mandate from which it is absent.

Apart from this, however, it is hard to see how the Mandate as drawn prohibits amalgamation. The Mandatory according to clause 22 of the Covenant contemplates the fact that the Mandate territories can be best administered under the laws of the Mandatory as integral portions of the Territory. This is expressed in Clause 2 of the Mandate already quoted.

It is submitted that the words ‘Administration as an integral portion of the Commonwealth’ could justify an absorption into the whole political system. The use of the word territory in Clause XXII of the Covenant is a strong confirmation of this view. State administration is necessarily territorial in its range and scope, the word ‘integral’ has the meaning that the administration over the combined territory of the Mandatory Government and the territory subject to it is one. It means that such administration can be unified over the whole area.

It must now be considered whether other sections of the Mandate carry the matter any further. The mandate cannot be regarded as a logically consistent document. It will be noted in the first place it seems to be assumed that laws are to be definitely applied to a territory different from the Commonwealth; whereas if the two are ‘integrated’ the laws of the Commonwealth would apply without specific application.

Again the interpretation suggested must be viewed in relation to the circumstances. When a Peace Treaty or in fact any international settlement is being made it is often undesirable to be definitive and words of uncertain import are used when precision would attract opposition. Mr. Eggleston was present when the words of Article XXII were being drafted and knows that precision was not desired. The circumstances are, therefore, important and should control the interpretation.

The facts are that the Government of the Mandate territory is subject to certain specific qualifications. These qualifications limit the use by the Mandatory of the territory which he takes under his sovereignty. A Mandatory power may adopt whatever policy it deems desirable to the non mandated territory, but it must carry out the terms of the Mandate as far as the Mandate territory is concerned. This, of course, conflicts with the idea of an integrated whole. It may be, of course, that the Mandatory would carry out the same policy in relation to its own territory as it is required to do in relation to the mandated territory.

It is necessary, therefore, to see what the qualifications in the Mandatory’s administration are–

They are–

1. Article 2. The Mandatory shall promote to the utmost the material and moral wellbeing and the social progress of the inhabitants of the territory.
2. Article 3. The Mandatory shall see that the slave trade is prohibited and that no forced labour is permitted, except essential public works and services, and then only for adequate remuneration.
3. Article 3. The traffic in arms and ammunition is controlled, etc.
4. Article 3. The supply of intoxicating spirits and beverages to the natives is prohibited.
5. Article 4. The military training of the natives otherwise than for the purpose of internal police and local defence shall be prohibited.
6. Article 4. No military or naval bases shall be established or fortifications erected in the territory.
7. Article 5. The Mandatory shall ensure in the territory freedom of conscience and the free exercise of all forms of worship, and shall allow all missionaries, natives and any member of the League of Nations to enter into, travel and reside in the Territory for the purpose of prosecuting their calling.
8. Article 6. Annual Reports must be made to the satisfaction of the Council, containing full information in regard to the territory, and indicating the measures taken to carry out the obligations assumed under Articles 2, 3, 4 and 5.

These conditions are all qualifications on the authority of the mandatory power, and they mean that so far as the Mandate territory is concerned certain special conditions are required. There is nothing extraordinary about having laws applicable to certain parts of a territory and not others, but there are, of course, certain types of law the application of which would seriously affect the Government of the combined territory, and there are other laws which by their very nature cannot be applied to a limited part of a whole. Military laws might be classed among the former and liquor restrictions among the latter. A Mandatory holding a small area under Mandate, might organise its own territory for military purposes so as to cover the Mandate Territory and render Article 4 nugatory. Again it would be almost impossible to have effective liquor restrictions in a Mandate territory and none in the territory administered with it. These points are brought out so as to suggest that it must be considered whether any of the conditions imposed in Articles 2 to 5 render a joint administration impossible. If it did it is assumed that the mandate would prevail. If a separation of administration is necessary for the purpose of securing adherence to these conditions, this would seem to be a bar to amalgamation. In such case the phrase about administration as an integral portion of territory is deprived of a good deal of its meaning. When the Select Committees of the House of Lords and House of Commons enquired into the amalgamation of Kenya and Tanganyika etc. it was agreed by the Committee that though the clause in the Mandate for East Africa contained the clause set out above permitting the Mandatory to create an administrative union, the proposal for amalgamation then under consideration would require an amendment of the Mandate.

II. Can the consent of the League Council to an amalgamation or an amendment of the Mandate permitting an amalgamation, make such an amalgamation valid?

Attention is drawn to the fact that under Clause XXII it is provided in the penultimate paragraph that:

The Degree of authority control or administration shall if not agreed upon by the Members of the League be explicitly defined in each case by the Council.

It may be questioned whether under this clause the Council of the League can give permission in the Mandate or by amendment to an amalgamation or administrative union, which in effect destroys the identity of the Mandated area.

It will also be seen that the consent of the Council of the League is required for any modification of the terms of the present Mandate. This raises the question whether it having been advised that an amalgamation is contrary to the terms of the present Mandate, the consent of the Council could validate such an amalgamation. This is a general question depending to a certain extent on the relation of the Council to the Allied and Associated Powers and the relation of the Council to the Mandated and Mandatory Powers. The draftsmanship is vague, and in particular the Clause provides for the consent of the Council to any modification as if the modification could be made by other parties, subject to their consent. The authority who is to make the modification is not defined. Advice is desired on this point and as to whether, if there is any doubt, the Commonwealth would be safe in relying on a resolution of the Council.

III. Will amalgamation affect the rights of the Commonwealth in relation to its control of Papua?

In the case of Papua and New Guinea there is practically no difference in the policy of the two territories as to practically all the provisions of the Mandate. Even in defence there has up to the last year or two been no difference, but Port Moresby is now being fortified. The question then arises, would an amalgamation affect in any way the conduct of policy in Papua? It would be almost impossible when reporting to the Mandate Commission to separate the one territory from the other, and then the Commonwealth as Mandatory would be reporting for territory not under its Mandate.

It appears to have been the fear of the British settlers in Kenya that their policy would be reviewed by the Mandate Commissions which made them hostile to amalgamation. There is undoubtedly more freedom in a Power dealing with a territory unfettered by a Mandate, and the Mandate Commission if it does not act judicially and with discretion may cause trouble and even disaffection. This has not been the result so far, and so far as we can see there would be no embarrassment to the Commonwealth in reporting in such a way as to cover Papua. Except in the matter of defence. The defence article is curious. It absolutely forbids fortifications and military or navel bases, and prohibits the military training of the natives, except for internal police and local defence of the Territory. It does not actually prohibit organisation of air defence. The League of Nations would, of course, expect the Mandatory to defend the territory if it were attacked, and such an attack would be virtually, if not definitely a breach of the covenant. But the prohibition of fortification and bases is absolute.

In case of an amalgamation or administrative union the power of the Mandatory to fortify the non mandated territory would be unimpaired, but if the preparations were carried right up to the border it could hardly be said that the obligations of the Mandatory in this respect were being honoured in the spirit.

There may be other matters which suggest that it would be undesirable to subject the non mandated territory to the scrutiny of the League of Nations.

IV. Can a form of association or joint management be devised which would obviate any legal objections such as have been discussed?

It seems a reasonable interpretation of the Mandate which confers on the Mandatory the authority to administer the Mandate territory as an integral part of the territory of the Mandatory that the latter could adopt any form of administration he thought fit to instal, whether in conjunction with other territory or not. It is a consideration of the limitation of authority in Articles II–V which throw doubt on this interpretation, and which suggest that the terms are really ambiguous. If this is the case it seams right to direct attention to various forms of association and ask whether forms can be devised which will get rid of the difficulties which have been suggested. There are, of course, many degrees of union or association, and some varying forms will be suggested to see whether or not they conflict with the Mandate, even if most strictly interpreted.

The word amalgamation used in the terms of reference seems to contemplate a complete union under one authority with one service, political head and assembly. It is the absolute character of this union which raises the questions that have been considered in an extreme form. Other degrees of union or association may be suggested as follow:

1. The union may be complete, but separate accounts may be kept for the two territories, and expenses which cannot be separated may be divided as a fixed basis, e.g. a population basis corrected by an allowance for area or territory under control.
2. The two territories may be treated as separate political units with separate laws and institutions, but all managed by the one service which adopt a scientific ratio of charges for each service. A common analogy to this would be the management of a number of Companies by one secretariat.
3. The two territories may be treated as quite separate, each having their own service, but there could be complete inter-changeability between the two services.
4. The two territories may be treated as quite separate and have different services, but the supreme authority and his staff may be the same for both.
5. The two territories may be quite separate, but have a common tariff and free trade between them with a division of customs revenue on a rational basis between them.
6. The two territories be amalgamated, but by a fundamental law, say an Act of the Federal Parliament, the qualifying conditions in Articles II–V of the Mandate be applied to the Mandate area. It might also be necessary to assess the relevant financial position of the two territories and for the Commonwealth to make a grant so as to make up the weakness of the weaker territory.

These alternatives suggest themselves to the writer, others could be imagined. It is desired to know whether these would be subject to any legal objections of the nature discussed in Part I.

After discussing the legality or otherwise of full and complete union of the two Territories ‘the absolute character’ of which ‘raises the questions considered in an extreme form’, Mr. Eggleston’s memorandum concludes by enumerating six other degrees of union or amalgamation. I think that if it is accepted at the outset that the central feature of the sixth of these other forms must necessarily be the basis of any scheme of union, absolute or otherwise, consideration of the question becomes less difficult. That is, any scheme must have, as its foundation, the enactment of some fundamental law. Both the act of amalgamation and the establishment of some form of government must be effected by the enactment of legislation. Only the Parliament of the United Kingdom or the Commonwealth Parliament has power to enact such legislation. It may be assumed that the legislation would be enacted by the latter Parliament, but in any case it is apparent that the legislation would not confer on the body established sovereign power to govern the Territories and would therefore be a fundamental law therein.

So long as it is possible to do so I think it may also be assumed that the fundamental law would, as regards New Guinea, contain all the guarantees required by the Mandate.

The questions for consideration are, therefore, is it possible for the fundamental law to contain all these guarantees. If not, it is unnecessary to consider the matter further. If so, would the enactment of a fundamental law amalgamating the two Territories but containing all guarantees and safeguards necessary to comply with the requirements of the Mandate be incompatible with the Mandate.

I will also assume, for the purposes of this Opinion, that the fundamental law will permit to be done in Papua all that the Mandate forbids in New Guinea, and will not require to be done in respect of Papua anything that the Mandate requires to be done in respect of New Guinea.

Articles 3 to 6 of the Mandate are as follow:

Article 3.

The Mandatory shall see that the slave trade is prohibited, and that no forced labour is permitted, except for essential public works and services and then only for adequate remuneration.

The Mandatory shall also see that the traffic in arms and ammunition is controlled in accordance with principles analogous to those laid down in the convention relating to the control of the arms traffic, signed on the 10th September, 1919, or in any convention amending the same.

The supply of intoxicating spirits and beverages to the natives shall be prohibited.

Article 4.

The military training of the natives, otherwise than for purposes of internal police and the local defence of the territory shall be prohibited. Furthermore, no military or naval bases shall be established or fortifications erected in the territory.

Article 5.

Subject to the provisions of any local law for the maintenance of public order and public morals, the Mandatory shall ensure in the territory freedom of conscience and the free exercise of all forms of worship, and shall allow all missionaries, nationals of any State member of the League of Nations, to enter into, travel and reside in the territory for the purpose of prosecuting their calling.

Article 6.

The Mandatory shall make to the Council of the League of Nations an annual report to the satisfaction of the Council, containing full information with regard to the territory, and indicating the measures taken to carry out the obligations assumed under articles 2, 3, 4, and 5.

So far as the provisions of Articles 3 and 5 are concerned, I must confess that I am unable to appreciate any difficulties which might arise under a unitary form of government which would not exist under the present system if the Administration of Papua were to adopt a policy at variance with the provisions of the two Articles. The memorandum indicates that it would be impossible to have effective liquor restrictions in the Mandate territory and none in the territory administered with it. I am able to appreciate certain difficulties of policing such inconsistent law, particularly in the vicinity of the border, but I am unable to appreciate how the amalgamation of the Territories and the substitution of one Administration for two could make these difficulties more acute than under the present system. Rather, I should think the policing of the law would be facilitated. In several of the Australian States the State is divided into districts for the purposes of liquor laws, and different laws are in force in different districts.

Nor do I see any greater difficulty so far as fortifications and military or naval bases are concerned under a single administration than now exists. Let it be supposed that, during the period of the last war, Papua had been fortified along the whole of the border. Surely it cannot be contended that the mandate over New Guinea given to the Sovereign of whose dominions Papua is a part ought to be construed as requiring the removal of those fortifications. Nor, in my opinion, ought it to be construed as preventing the erection of fortifications anywhere on Papuan soil irrespective of whether the mandate territory is or is not administered as an integral part of Papua.

As to the annual report required by Article 6 to be submitted to the League of Nations, it is obvious that this question is largely dependent upon the methods of administration adopted. As I shall endeavour to show later, the two Territories can never be wholly united as a single entity. The boundary between them must always be there, and, so long as the necessary accounts and records are kept on a system that will readily lend itself to allocation, I foresee no greater difficulty in presenting a report to the League of Nations concerning New Guinea without touching upon the administration of Papua than would be the case in reporting on, for example, the activities, earnings and costs of the Postmaster-General’s Department in any given Australian State. What form of accounts and records should be kept is not a matter with which I am presently concerned. I merely express the opinion that it is possible to keep accounts and records in such a way as to enable an adequate report to be made as required by Article 6 and, that being so, Article 6 does not constitute a barrier to amalgamation.

I am, therefore, of the opinion that it is possible for any law of the Commonwealth Parliament amalgamating the two Territories to maintain in respect of New Guinea the guarantees required by Articles 3 to 6. This would apply also to the second paragraph of Article 2 requiring the Mandatory to promote the material and moral well-being and social progress of the inhabitants.

Turning now to the question of whether amalgamation would be contrary to the intention of the Mandate, it is noted that the principal ground for apprehension in Mr. Eggleston’s memorandum is that, whereas other Mandates, the example given being East Africa, contain a clause permitting the Mandatory to constitute the territory ‘into a customs, fiscal and administrative union or federation with adjacent territories under his own sovereignty or control’, there is no similar clause in the New Guinea Mandate. The explanation of this clause, however, is to be found in the fact that Mandates are divided into three classes known as A, B, and C, and the inclusion of a clause of this nature in
B Mandates which do not confer the ‘full power of administration … as an integral portion of’ the Mandatory indicates, in my opinion, that the power to amalgamate in respect of C Mandates is not only present but wider.

Article 22 of the Covenant of the League of Nations, after reciting that the government of former German colonies inhabited by ‘peoples not yet able to stand by themselves’ should form a sacred trust of civilization, and that the best method of giving effect to this principle is to entrust the tutelage of such peoples to advanced nations, states that the character of the Mandate must differ according to the stage of development of the people and certain other circumstances. The Article then goes on to distinguish between the A Mandates whose independence should provisionally recognized subject to the rendering of administrative advice and assistance by the Mandatory, the B Mandates, where the Mandatory must be responsible for the administration, and the C Mandates which ‘can be best administered under the laws of the Mandatory as integral portions of its territory’.

In accordance with this article Mandates were conferred on certain powers in respect of certain territories. Those relating to B Mandates contained the limited clause already mentioned relating to amalgamation. Those relating to C Mandates contained no such clause but, following the wording of Article 22, contained the wider power to administer as an integral portion of the territory of the Mandatory.

New Guinea is a C Mandate which the Principal Allied and Associated powers agreed should be conferred on His Britannic Majesty, to be exercised on his behalf by the Government of the Commonwealth of Australia.

The first paragraph of Article 2 of the Mandate in respect of New Guinea reads:

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 circumstances may require.

If Australia had a unitary instead of a federal form of government, the power of administration and legislation over the territory as an integral portion of the Commonwealth would, in my opinion, have fully justified the Commonwealth in treating New Guinea for all purposes as part of Australia–subject only to qualifying any legislative or administrative act so as not to conflict with the provisions of the Mandate. Such a simple procedure was not, however, available to a federal government which legislates for and administers the Commonwealth in a restricted field as to subject matter. A federal government has necessarily to devise a particular method of governing those territories which do not form portion of a State and in which no State law would be in force.

It is therefore natural that the Commonwealth applied to New Guinea a system similar to those applied to other Territories under the control of the Commonwealth. But there is, in my opinion, nothing in the Mandate which requires such a system. The Commonwealth Parliament could, I consider, have enacted all laws necessary for New Guinea and administered those laws through one of its own Departments of State. As Latham C.J. said in Ffrost v. Stevenson (58 C.L.R. 528 at p. 551) ‘It is clear that, subject to the limitations imposed by the mandate relating to safeguards provided “in the interests of the indigenous population” the Commonwealth of Australia is legally omnipotent in the Territory of New Guinea.’

The present systems of government in both New Guinea and Papua are the creations of the Commonwealth Parliament. Parliament could destroy both systems if it so desired and, in my opinion, pass laws applicable in both New Guinea and Papua and entrust the administration of those laws to, e.g., the Prime Minister’s Department. Or it could delegate the power to legislate for both Territories to the Executive.

In my opinion it necessarily follows that Parliament could also establish a body or bodies situate in Papua or New Guinea constituted in any manner which Parliament thinks fit, and delegate to that body or those bodies both the power to legislate for and to administer both Territories. To all intents and purposes such an action would be an amalgamation of the two territories. In my opinion, however, the Commonwealth could not actually make the two territories one, for whilst Papua is part of His Majesty’s dominions (in popular parlance, ‘belongs to the Commonwealth’), New Guinea is not and never can be so long as the basic principles of Article 22 of the Covenant are observed. (See per Evatt J. in Jolley v. Mainka (49 C.L.R.) 242) and per Latham C.J. and Evatt J. in Ffrost v. Stevenson 58 C.L.R. 528). Whilst, however, the boundary between the two territories must always be there and whilst they will continue to be regarded in international law as having a status quite distinct from one another, I am of the opinion that for all other purposes they may be amalgamated and placed under the control of a single legislative and executive body, and with a single judicial system, subject always to the legislation creating the amalgamation complying with the provisions of the Mandate as to guarantees with respect to New Guinea. I also feel that the accounts for the two territories should be kept separately, with provision for the allocation of central costs on such basis as appears most equitable. Not only is this highly desirable for the purposes of the annual report to the League but it would also, I suggest, be more in keeping with the spirit of the Mandate.

Mention might also be made of the view taken by Evatt J. in both the cases noted that the Commonwealth’s power to legislate for New Guinea is derived from section 51 (xxix) of the Constitution (external affairs power). This power is ‘subject to the Constitution’ whereas the power conferred by section 122 to legislate for territories (including Papua) has consistently been held by the High Court to be plenary. If this view prevailed the difference between the two powers, although slight, would have to be kept in mind when enacting legislation. In my opinion, however, the views of Latham C.J. and Starke J. that the power to legislate for New Guinea is derived from section 122 should be accepted as law unless and until the contrary is decided.

In the view I have taken, consideration of the other questions does not appear to be necessary.

[Vol. 32, p. 168]