TELECOMMUNICATIONS PAPUA NEW GUINEA WHETHER OVERSEAS TELECOMMUNICATIONS COMMISSION HAS POWER TO CONDUCT COMMUNICATIONS BY RADIOTELEGRAPH BETWEEN PAPUA AND NEW GUINEA: WHETHER PAPUA AND NEW GUINEA ARE TERRITORIES ‘UNDER THE AUTHORITY OF THE COMMONWEALTH’ AND ‘TERRITORIES OF THE COMMONWEALTH’: WHETHER PAPUA AND NEW GUINEA ARE SEPARATE TERRITORIES: MEANING OF ‘AUSTRALIA’ IN OVERSEAS TELECOMMUNICATIONS ACT 1946
ACTS INTERPRETATION ACT 1901 s 17(p): OVERSEAS TELECOMMUNICATIONS ACT 1946 ss 5, 34: PAPUA-NEW GUINEA PROVISIONAL ADMINISTRATION ACT 1945
I refer to your minute of 19th March, 1947, raising the question of the power of the above Commission to conduct communications by radio-telegraph between Papua and New Guinea.
Section 34 of the Overseas Telecommunications Act 1946 gives the Commission wide powers in connexion with the operation in ‘Australia’ of radio-telegraph services between ‘any Territories under the authority of the Commonwealth (not being part of the Commonwealth)’.
I understand that it has been suggested that, in view of the operation of the Papua-New Guinea Provisional Administration Act 1945–1946, Papua and New Guinea may not be two separate territories for the purposes of section 34(a)(v). In my opinion there is no substance in this suggestion. The Papua-New Guinea Provisional Administration Act, although it provides for the common administration of the two territories, does not destroy their separate identity as territories.
Two further questions, however, arise, viz:
(1) Whether Papua and New Guinea are ‘territories under the authority of the Commonwealth’ within the meaning of section 34(a)(v); and
(2) Whether Papua and New Guinea are ‘territories of the Commonwealth’ so as to come within the scope of the word ‘Australia’, in the opening words of section 34(a), as defined in section 5 of the Act.
There can be no doubt that Papua is a ‘territory under the authority of the Commonwealth’ and is also a ‘territory of the Commonwealth’.
At the time when the Act was framed, New Guinea was a Territory governed by the Commonwealth under a mandate, and section 17(p) of the Acts Interpretation Act made it clear that New Guinea came within both the expressions referred to above. New Guinea is now, however, the subject of a trusteeship agreement in accordance with the Charter of the United Nations, under which Australia is the administering authority. It is clear, however, in my opinion, that New Guinea is still a ‘territory under the authority of the Commonwealth’. The answer to the question whether New Guinea is still a ‘territory of the Commonwealth’ is not quite so clear, but in my opinion the answer to that question, so far as it affects the meaning of the word ‘Australia’ in section 34, is in the affirmative.
In my opinion therefore, subject to the operation of sections 42 and 74 of the Act, the Commission is empowered to conduct, in Papua and New Guinea, radiotelegraph services for the conduct of public communications between those territories.
I should add that I am not at all sure that what is referred to in the correspondence as the proposed ‘amalgamation’ of the Territories will make any difference to the powers of the Commission. My understanding of the proposal is that, although there will be a permanent common administration of the two Territories, their separate identity will be preserved.
[Vol. 38, p. 23]