I refer to your memorandum, dated 28th July, 1950, asking my advice on the request by the Premier of New South Wales for the Commonwealth’s views as to whether the Territory of New Guinea under the Trusteeship System is a part of His Majesty’s Dominions.

(2)  The question arises out of the application of section 103A of the Stamp Duties Act, 1920–1949 of New South Wales, which requires the making of a refund of death duty paid under that Act on ‘personal property situated in any part of His Majesty’s Dominions other than New South Wales’.

(3)  In my opinion, the Territory of New Guinea is not a part of ‘His Majesty’s Dominions’.

(4)  The phrase ‘the King’s Dominions’ has a well-established technical meaning. In the absence of some special statutory definition, it means that territories over which the King has ‘dominion’—a legal word which is derived from the Latin ‘dominium’, and which in the constitutional and international sense may be regarded as a synonym for ‘sovereignty’.

(5)  In my view, the former Mandated Territory of New Guinea was not a part of His Majesty’s Dominions. I have based my opinion, in the past, on the Privy Council decision in Jerusalem-Jaffa District Governor v. Suleiman Murra ((1926) A.C. 321), the High Court decisions in Jolley v. Mainka ((1933) 49 C.L.R. 242) and Ffrost v. Stevenson ((1937) 58 C.L.R. 528), and the statements of numerous international jurists. This view has now received the approval of the International Court of Justice in an Advisory Opinion delivered on 11th July, 1950, which has just come to hand, on the international status of South-West Africa (Advisory Opinion; I.C.J. Reports, 1950, p. 128). In this Opinion the court made clear the international status of South-West Africa, and pointed out that a basic principle of the Treaty of Versailles was that of non-annexation of Germany’s former overseas possessions.

(6)  The question then arises whether the Trusteeship Agreement has altered this position.

(7)  Under the Trusteeship Agreement, made pursuant to the Charter of the United Nations, the Australian Government undertook ‘to place the Territory of New Guinea under the Trusteeship System’ on the terms set forth in the Agreement, and the General Assembly, on its part, approved the terms of Trusteeship in ‘substitution for the terms of the Mandate’. The Agreement specifically provides (Article 4) that the Administering Authority will have the same powers of legislation, administration and jurisdiction in an over the Territory ‘as if it were an integral part of Australia’. The agreement therefore recognizes by implication that the Territory is not a part of Australia.

(8)  I can find nothing in the Charter of the United Nations, or in the Trusteeship Agreement, which purports to operate as a transfer of the Territory to Australia, or to His Majesty. The whole tenor of these instruments is that Australia specifically recognizes that she holds the Territory in trust, and subject to the terms of the Charter and Agreement. This is apparent also from the Preamble to the Papua and New Guinea Act 1949 which states—‘and whereas the Trusteeship Agreement recognizes that Australia has the same powers of legislation, administration and jurisdiction in and over the Territory of New Guinea as it would have if that Territory were an integral part of Australia’.

(9)  Reference may also be made to the assurances given by Australia and other countries to the General Assembly of the United Nations on 12th December, 1946, that the relevant Articles of the respective Trusteeship Agreements did not enable them to annex the Trust Territories. These assurances were contained in the Report of the Fourth Committee and read as follows:

In connexion with the provisions of the Trusteeship Agreements concerning the right of the administering authorities to constitute the Trust Territories administered by them into customs, fiscal or administrative unions or federation with adjacent territories under their sovereignty or control (Article 5(b) of the Trusteeship Agreements for Tanganyika, Cameroons and Togoland under British administration; Article 4 & 2 of the Agreements for Cameroons and Togoland under French administration; Article 5(2) of the Agreement for Ruanda-Urundi; and Article 5 of the Agreement for New Guinea) the Delegations of Australia, Belgium, France and the United Kingdom being the Delegations of States submitting the Trusteeship Agreements for the approval of the General Assembly, wish to give assurance that they do not consider the terms of the articles above-quoted as giving powers to the administering authority to establish any form of political association between the Trust Territories respectively administered by them and adjacent Territories which would involve annexation of the Trust Territories in any sense or would have the effect of extinguishing their status as Trust Territories.

(10)  Whatever was the effect of the dissolution of the League of Nations, nothing done in connexion with it can be considered as a transfer of title in the Territory from the League (if, indeed, it possessed title) to the Commonwealth.

(11)  The Advisory Opinion of the International Court of Justice referred to above proceeds on the general basis that the Trusteeship System has been substituted for the Mandate System, and that the international status of former mandated territories now under the Trusteeship System has not been altered in any way.

(12)  In section 8 of the Papua and New Guinea Act 1949, Parliament has, I think, legislatively recognized that no such alteration was made. In that section Parliament declares that it is its intention that the Territory of Papua and The Territory of New Guinea shall continue to be Territories under the authority of the Commonwealth and the identity and status of the Territory of Papua as a possession of the Crown and the identity and status of the Territory of New Guinea as a Trust Territory shall continue to be maintained.

(13)  In the light of the foregoing, my opinion is that the position of the Territory of New Guinea at the present time, in its relation to His Majesty’s Dominions, is the same as it was when it was a mandated territory, and it is not a part of His Majesty’s Dominions.

(14)  I am of this opinion, notwithstanding a decision by Townley, A.J., (as he was then) of the Supreme Court of Queensland in Chambers that for purposes of ‘The Evidence (Attestation of Documents) Act of 1939’ of that State, the Territory or New Guinea was, on 3rd May, 1949, ‘part of His Majesty’s Dominions’. This decision was given on an application by summons for leave to proceed in an undefended divorce action and was not fully argued, and the case should be distinguished from the present facts.

(15)  The reply to the Premier need not, of course, reproduce the substance of this memorandum. Having regard to the possibility of litigation, I think the Prime Minister’s letter should set out briefly the view of the Commonwealth as to the status of New Guinea. I do not think the Prime Minister is called on at all to furnish reasons, if the view set out in the draft is the Commonwealth’s view. If the Prime Minister cares to add that that is the view which, if called on by a Court, the appropriate Minister of State would express, there would, I think, be no objection to this course.

(16)  A draft of a suitable reply from the Prime Minister to the Premier is attached. In forwarding this draft (if considered satisfactory) to the Prime Minister’s Department, I suggest