In your memorandum to the Crown Solicitor dated 1 September, 1949, you requested advice as to whether the Air Navigation Regulations apply to the Trust Territory of New Guinea. In my opinion, they do.

(2)  By reason of section 33 of the Papua and New Guinea Act 1949, the Air Navigation Regulations cannot extend to New Guinea unless the Air Navigation Act itself extends thereto. Section 33(1) is in the following terms:

33.(1.) An Act or a provision of an Act (whether passed before or after the commencement of this Act) shall not, except as otherwise provided by that Act or by any other Act, be in force as such in the Territory or any part thereof unless expressed to extend thereto.

The first question for consideration is whether the Air Navigation Act 1920–1947 is expressed to extend to New Guinea.

The Air Navigation Act.

(3)  The Air Navigation Act 1920 provided that the Act shall commence in relation to the ‘several States and Territories’ on such days as are respectively fixed by Proclamation. ‘Territories’ was defined to mean Territories ‘under the authority of the Commonwealth’ and to include ‘Territories governed by the Commonwealth under a mandate’.

(4)  By Proclamation dated 24th March, 1921, and gazetted on 31st March, 1921, the Governor-General fixed 28th March, 1921, as the day upon which the Act shall commence in relation to the ‘several States and Territories’. There may be some doubt as to whether the proclamation could have validly come into force on a date prior to its publication in the Gazette, but I think it was validly in operation from 31st March, 1921. The Act accordingly applied to the Territory of New Guinea at least from 31st March, 1921, and continues to do so until there is legislative provision to the contrary.

(5)  On 13th December, 1946, the date on which the General Assembly approved of the Trusteeship Agreement, the Territory of New Guinea ceased to be governed internationally under a mandate, and was thenceforth governed under a Trusteeship Agreement pursuant to Chapter XII of the Charter of the United Nations.

(6)  In 1947, Act No. 6 was passed which omitted the definition of ‘Territories’ in the Act, and substituted a definition of ‘Territory’ as follows:

‘Territory’ includes a Territory administered as a Trust Territory by Australia in pursuance of Chapter XII. of the Charter of the United Nations.

(7)  By Act No. 89 of 1947, section 5 was repealed and another section substituted which contained no reference to ‘Territories’ but contains references to a ‘Territory of the Commonwealth’.

(8)  Nothing in the two Acts affected the continued application of the Act to New Guinea, nor did the substitution, in respect of New Guinea, of the Trusteeship Agreement for the Mandate, as New Guinea still remained one of the ‘several States and Territories’ within the general interpretation of the word ‘Territories’, and that it did so is made quite clear by the new definition of ‘Territory’. It may be concluded, therefore, that the Air Navigation Act 1920–1947 is, by virtue of the original proclamation and subsequent amendments in the Act to the references to the Territories, expressed to extend to New Guinea as a part of the Territory of Papua and New Guinea within the meaning of section 33 of the Papua and New Guinea Act.

The Air Navigation Regulations.

(9)  The present Air Navigation Regulations (S.R. 1947 No. 112) were made under the power conferred by section 5 of the Act as first amended in 1947, but were deemed by Act No. 89 of 1947 to be as valid and effectual as if such Act had been in operation when they were made; in other words, they are deemed to have been made under section 5 in its present form.

(10)  The present section confers power on the Governor-General to make regulations for the purpose of carrying out and giving effect to the Chicago Convention, and any other international convention to which Australia is a party (see section 5(1)(a)), or prescribing all matters, inter alia, which are necessary or convenient to be prescribed in respect of air navigation within any ‘Territory of the Commonwealth’ (see section 5(1)(b)(ii)). The expression ‘Territory of the Commonwealth’ was not at that time anywhere defined so as to include the Trust Territory.

(11)  The question has been raised whether the Air Navigation Regulations are in force in the Territory of New Guinea because, it may be argued, New Guinea is not a Territory of the Commonwealth.

(12)  The Regulations in terms apply to air navigation within ‘the Territories’ (reg. 6(2)), and ‘Territory’ is defined in the Regulations to include the Trust Territory of New Guinea.

(13)  So far as the legislative basis of the Regulations is section 5(1)(a) of the Act, the Regulations clearly apply to New Guinea.

(14)  To the extent that the Regulations are based on section 5(1)(b)(ii) of the Act, there is very cogent argument in favour of the application of the Regulations to New Guinea. The Act applies to all Territories, including New Guinea. The saving clause in Act No. 89 of 1947 applies to Regulations (those in question) which are expressed to apply to New Guinea, and thereby evinces an intention that a restricted meaning should not be put on the phrase ‘Territory of the Commonwealth’. This is so because the Act, after approving the Chicago Convention, does no more than give a power to make regulations. If regulations may not be made to apply to New Guinea, the definition of ‘Territory’ in the Act is nugatory; there would be no purpose in making the Act applicable to all Territories if regulations could not be applicable to some Territories.

(15)  Accordingly, I think the phrase ‘Territory of the Commonwealth’ in this context should not be narrowly construed, and should be regarded as applying to the Trust Territory of New Guinea, without the necessity for further legislation.

(16)  However, when next the Act is being amended, opportunity should be taken to modify references to Territories in the Act to ensure that the Act and Regulations apply to all Territories under the authority of the Commonwealth, including Trust Territories.