I am asked to advise whether The Survey Fees Ordinance of 1909 of the Territory of Papua comes within section 41, paragraph 2, of the Papua Act 1905, and, if so, as to what is the effect of the Lieutenant-Governor having assented to the Ordinance. The Ordinance (inter alia) provides that certain survey fees shall be payable in respect of certain applications for land under The Land Ordinance of 1906 (which Ordinance deals with the granting and disposal of Crown lands in Papua), and that if the fees are not paid as prescribed in the Ordinance or the regulations thereunder the land applied for shall not be granted or if already granted may be forfeited by notice in the Gazette.

The Papua Act 1905, section 41, provides (inter alia) that the Lieutenant-Governor shall not assent to any Ordinance dealing with the granting or disposal of Crown lands unless the Ordinance contains a clause suspending its operation until the signification of the Governor-General's pleasure thereon.

Whether or not the Ordinance is one of the kind in contemplation when the prohibition was enacted, it does, I think, come strictly within the category of an Ordinance 'dealing with the granting or disposal of Crown lands', because, in effect, it makes the payment of survey fees a condition to the grant or disposal of Crown lands. I am of opinion therefore that it comes within section 41 paragraph (2) of the Papua Act 1905.

The Ordinance does not contain a clause suspending its operation until the signification of the Governor-General's pleasure thereon.

I am of opinion therefore that the Lieutenant-Governor had no power to assent to the Ordinance and that his assent thereto is invalid and has no legal effect. It follows therefore, in my opinion, that the Ordinance is not operative.

As the assent of the Lieutenant-Governor has no legal effect, there is, in my opinion, nothing to prevent him from treating it as a nullity or from withdrawing or revoking it and reserving the Ordinance for the Governor-General's pleasure. If this is done and the Governor-General assents to it, the measure will, in my opinion, become operative as from the date when a notification that it has received the Governor-General's assent is published by the Lieutenant-Governor within the Territory.

The Ordinance may however have been acted on and regulations may have been issued under it. If by reason of the Ordinance having been acted upon it is necessary to validate it as from the date when it received the Lieutenant-Governor's assent, it will, in my opinion, be necessary to obtain the passing of a validating Act by the Commonwealth Parliament.

A precedent for such an Act is to be found in the Colonial Acts Confirmation Act 1901 (1 Ed. VII, c. 29) which was passed to confirm several Colonial Acts the validity of which was open to doubt by reason of their not having been reserved for the signification of the Queen's pleasure.

[Vol. 7, p. 351 ]

* See also opinion No.373.