I refer to your memorandum of 29th December, 1949, concerning the necessity for legislation to enable the enforcement by and against the present administration of Papua and New Guinea of rights and obligations of the former provisional administration. The problem appears to concern not only rights and obligations which accrued before 1st July, 1949, but also the effect after that date of contracts of the provisional administration which were not completely performed at that date.

(2)  The provisional administration was not a juristic person, nor is the present administration a juristic person. In my opinion the juristic person to whom belonged the rights and liabilities which are spoken of as belonging to the ‘provisional administration’ was the Commonwealth of Australia, or, perhaps, in the case of rights and obligations arising in connexion with the government of Papua, the King in right of the Territory of Papua (see Faithorn v. Territory of Papua (60 C.L.R. 772, per Dixon J. at p. 792, and the recent High Court case of Gow v. Provisional Administration of the Territory of Papua-New Guinea and the Commonwealth, per Latham C.J.).¹

(3)  In my opinion neither the change in the machinery of government of the two Territories affected by the Papua and New Guinea Act 1949 nor the change in the international basis of the Commonwealth’s authority over New Guinea from the mandate to the trusteeship agreement affected the continuance of rights and obligations of the King or the Commonwealth under or arising out of contracts or torts.

(4)  The position as regards procedure, and as regards the law which may be relied on by a citizen as abrogating the Crown’s immunity from suit, is not, however, entirely clear. The Claims by and against the Government Ordinance, 1911 of Papua provides for claims on behalf of or against ‘the Territory’. The expression ‘the Territory’ still means the Territory of Papua (Ordinances Interpretation Ordinance 1949, section 49). A suit against the Territory of Papua is in effect a suit against the King in right of the Territory of Papua but it may not be easy to say whether a right which arose under the joint provisional administration is exclusively a right of or against the King in right of Papua, without any connexion with the government of New Guinea.

(5)  The Claims by and against the Administration Ordinance 1927–1931 of New Guinea provides for suits on behalf of or against ‘the Administration’. The expression ‘the Administration’ now appears to mean the Administration of the Territory of Papua and New Guinea (Ordinances Interpretation Ordinance 1949, section 55), but nevertheless the Ordinance is in force only in New Guinea, and would seem to be appropriate only to claims arising in relation to New Guinea as distinct from Papua. Here again a difficulty would arise in identifying claims by and against the provisional administration with a particular Territory. Not only as regards matters which arise under the provisional administration, but even as regards claims by or against the present administration arising out of things done by that administration itself, it may be difficult to determine whether appropriate action can be taken under either of the existing Ordinances. For example the Administration might enter into a contract for the purpose of stores not intended specifically for one Territory rather than the other.

(6)  I am therefore of opinion that the two existing Ordinances should be repealed and that a new Ordinance should be made making similar provision for claims by and against the Government of the Territory of Papua and New Guinea. The Ordinances should contain a provision to the effect that a claim by or against the King or the Commonwealth arising out of any act, omission or transaction which took place before 1st July, 1949, in or in connexion with the civil government of the Territory or any part thereof shall, for the purpose of the Ordinance, be deemed to be a claim by or against the Government of the Territory of Papua and New Guinea.

(7)  In my opinion such a provision would be within the power to make ordinances for the peace, order and good government of the Territory, and would be valid. It would cover not only matters which arose under the provisional administration but also any outstanding matters which arose under the earlier separate administrations. It would not, however, bring in matters arising out of the military government of the Territory during the war.

(8)  Before coming to the conclusion that the matter in issue could be provided for by ordinance, consideration was given to the question whether express Commonwealth legislation would be necessary. The view was reached that there was no greater need for Commonwealth legislation than there was for enabling claims to be made by and against the Government or Administration of the Territories as was done in the Ordinances of 1911 and 1927. However, as the Crown Law Officer seems to have regarded it as necessary to provide for the present matters by Commonwealth Act, I should like to have a further statement of his reasons for this view, and also of his views as to the legal basis of jurisdiction generally by and against the Commonwealth in the Territories.

(9)  I suggest that, after giving further consideration to the whole matter in the light of this memorandum, you give instructions to the Parliamentary Draftsman for the drafting of the necessary ordinance.

[Vol. 39, p. 40]

¹ (1949) 23 ALJR 578.