The Secretary, Department of External Affairs has forwarded the following letter for consideration:

We have the honour to inform you that we have been requested to bring under your notice the fact that in consequence of the provisions of the Commonwealth Service and Execution of Process Act not being extended to Papua there are many difficulties in the way of creditors in Australia who wish to recover debts from debtors resident in the Ter-ritory and vice versa. We have had several small debts summonses and also one small debts execution sent to us at different times from Queensland, and creditors here have often wished to take action here against debtors in Australia, but nothing could be done owing to the Act not being in force in Papua. We have also had inquiries on this matter from Victoria.

It is in connection with a Tasmanian case that we have been asked to write and request you to be good enough to have the matter brought under the notice of the Federal authori-ties and ask them to extend the Act to Papua.

We have also requested the Tasmanian solicitors to have representations made from their end.

Trusting that this matter will receive favourable consideration.

Under section 51 (xxiv) of the Constitution the Parliament has power to make laws with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the Courts of the States, and it was under this power that the Service and Execution of Process Act was passed.

As Papua is not a part of the Commonwealth, and its Courts are not Courts of a State, in my opinion section 51 (xxiv) does not enable Parliament to extend that Act to Papua.

The Parliament has power, under its general power of making laws for the govern-ment of a territory to provide that in Papua the provisions of the Service and Execution of Process Act shall apply with regard to the civil and criminal process and the judg-ments of the Courts of a State.

Whether incidentally to its power to make laws for the government of a territory, it has power under section 51 (xxxix) to make provision for the service and execution throughout the Commonwealth of the process and judgments of the Territory of Papua, is a more difficult question. There is no authority precisely in point; but I am in-clined to think that the Commonwealth Parliament has the power, inasmuch as the jurisdiction of the Parliament extends throughout the Commonwealth, and the subject-matter may fairly be considered incidental to the government of a territory.

[Vol. 11, p. 174]

1. Date in Opinion Book Incomplete

2. This Opinion is unsigned in the Opinion Book,but it is attributed to Mr Garran.