Opinion Number. 429



Key Legislation

PAPUA ACT 1905, s. 38

The Secretary, Department of External Affairs

The Secretary to the Department of External Affairs has forwarded the following despatch from the Lieutenant-Governor of Papua to me for advice:

I have the honour to request that I be informed whether, in the case of Ordinances which have been passed during my absence on leave, the printed copies which are forwarded to you should be signed by Mr Smith(1) or myself.

There is, for instance, the case of an Appropriation Ordinance which was assented by Mr Smith on May 8th while I was absent from the Territory; it might be argued that Mr Smith should not sign it because he is functus officio, and, on the other hand, that I should not sign it because I did notv*in fact, assent to it.

I should be glad if I might be informed which is the correct procedure.

Section 38 of the Papua Act 1905 is as follows:


  1. An Ordinance passed by the Legislative Council shall not have any force until it has been assented to as hereinafter provided.

  2. Every Ordinance passed by the Legislative Council shall be presented to the Lieutenant-Governor for assent.

  3. The Lieutenant-Governor shall thereupon declare, according to his discretion, but subject to this Act, and to the instructions of the Governor-General, that he assents thereto, or that he withholds assent, or that he reserves the Ordinance for the Governor-General's pleasure.

The main point to be decided is, did Mr Smith when exercising the functions of Lieutenant-Governor declare his assent to the Ordinance in the manner directed by sub-section (3) of that section. If he did so, the assent to the Ordinance is complete, and nothing further is legally necessary. If he did not, the Ordinance has not been assented to, and formal assent would be necessary to give it legal effect.

But assuming that proper assent has been given to an Ordinance, it is highly desirable that any record of such assent on any copy of the Ordinance should be in accord with the true facts of the case.

I am of opinion therefore that the copies of the Appropriation Ordinance should, assuming it to have been legally assented to by Mr Smith, be signed by Mr Smith as of the date on which he declared his assent.

[Vol. 9, p. 150]

(1) Miles Staniforth Cater Smith,Administratior Of Papua.