Scope Of High Court Case

That Status For Wide Scope Of High Court Case

From a Staff Correspondent Melbourne, June 7 \By the time the six judges of the High Court of Australia \settled down today to their supremely important task of the exact status of the dual Territory of Papua (an old salian territory ) and New Guinea (a Trust territory), they before them masses of books and documents which indicated cope of the inquiry.

nds from the Treaty which ::ed the League of Nations ne end of World War I (and ave NG a “C” Class Man :rough the Mandates system, Id War II administration of Territories in 1942-45, the iion of the United Nations ,tion for the League of the creation of the Trustee mcil to take over the Man stem, the Charter of the Nations, the Trusteeship nt between UNO and Aus le Papua and New Guinea the Australian Parliament, > which created the P-NG ve Council, to latter’s Tax dinance of 1959. ?r words, it appears that the ich of the High Court is give close scrutiny to the the machinery and process bich the dual Territory was and now is administered, ish, probably, is to prevent her embarrassing challenge *-NG Administration, ligh-ranking procedure never was even dreamed of who, in June, 1959, initiated ititutional attack upon the :ation Ordinance. (For the how it occurred, see next

:t Application to Court

ligh Court action has been ’ described as an appeal to Bench of the High Court decision of the Territory’s Court. It is not. The Court’s decision of July, 5 not appealed against, be . R. Bunting would not con l action which challenged [ity of the Papua and New ict. action was initiated by Mr.

Ish wick, on behalf of the inea Taxpayers; and this is now gone straight to the >urt, thus by-passing the ’s Supreme Court. It asks Tax Ordinance of 1959 be d on the following grounds: Papua and New Guinea )/ 1949-57, under which the lative Council was created,

went beyond the powers con ferred on Australia by the UN Charter and the Trusteeship Agreement with Australia. Con sequently — (2) There was no power given to Australia to create a legislative union between Australia and Papua. (3) The Legislative Council, when it passed the Tax Ordinance, was not properly constituted, be cause the three elected members, provided for in its constitution, had resigned. (4) The legislation conflicts with Commonwealth law, which gives exemption from taxation to residents of the dual Territory.

The Commonwealth Attorney - General, Sir Garfield Barwick, QC, appeared In person to defend the Commonwealth Government and the New Guinea Administration and the Acts under challenge, and he had with him Mr. A. F. Mason.

The case for the NG Taxpayers was

presented by Mr. J. D. Holmes, QC, with Mr. D. Mahoney and Mr. W.

Deane, and instructed by Mr. Dudley Jones, of Rabaul. Mr. M. W. Fish wick also was present. Both Mr.

Mason and Mr. Mahoney were be fore the Supreme Court in Port Moresby in the taxpayers’ challenge there in July, 1959.

Attorney-General's Challenge

At the commencement of pro ceedings, Sir Garfield Barwick chal lenged the jurisdiction of the High (Continued on page 145)

Court in this case on a number of

grounds;

• New Guinea was not an entity that could be sued in courts. • The Administrator of the Territory was not a “Federal officer”. • The question of the constitution of the Legislative Council could only come be fore the High Court on appeal from the Supreme Court of Papua and New Guinea. • The High Court had no “original juris diction” to deal with matters relating the status of the Territory to the Com monwealth. • If it had, the case could not be re solved according to evidence put to the court. A certificate of the facts by a Minister of State was required.

It appeared that this objection

arose more or less from the fact

that the application to the High

Court had been made directly, in stead of by way of appeal from a decision of the Territory’s Supreme Court.

The Court decided that argument on Sir Garfield’s submissions re garding jurisdiction should be re served, and Mr. Holmes proceeded with the main issues.

Meanings of Words and Phrases It was apparent that the argu ment and submissions of learned counsel will occupy some days.

The judges appeared to be deeply interested in the issues raised. There were lengthy discussions, for ex ample, over the significance of the phrase, in the United Nations’

Agreement with Australia, that the Territory of New Guinea “shall be administered as if it were an in tegral part of Australia”, whereas in other agreements with other nations the phrase used is “as an integral part of Australia”.

There was interest also in certain verba! changes in the Charter under which the Trusteeships were created compared with the document which created Mandates under the League Of Nations, (Over)

Interpretation of these phrases could affect the application of the Papua and New Guinea Act.

There appeared to be also much interest in the way in which Aus tralia’s authority over New Guinea, conferred by Sec f ion °f the Aus tralian Constitution (the external affairs authority”) was affected or modified by the acceptance by Aus tralia of the Agreement with the United Nations. . . - The arguments and submissions of Mr. Holmes occupied most of June 6 and June 7.

The findings of the Court, either way, could have an important bear ing upon the future government of New Guinea.

The six judges who are hearing the application are Sir Owen Dixon (Chief Justice) and Justices McTiernan, Fullagar. Kitto, Windeyer and Menzies.

There were some very interesting exchanges between Bench and Bar.

For example: Mr. Justice Windeyer: It seems to me that the chain of events (?r circumstances which gave Australia title (over New Guinea) was broken.

It seems that New Guinea, in De cember, 1946 (when it was formerly handed over to Australia as a Trust Territory) was in the hands of the United Nations, not because of any thing done by the League of Nations, but because Australia, as the authority which had occupied the country militarily in 1942-46, had placed it there.

Mr. Holmes said that the supervis ing body (the League of Nations) had virtually gone out of existence during World War II; but the authority (Australia) which had accepted certain national obliga tions from that body, continued to honour them and, in pursuance thereof, handed the Territory over to UNO after the war.

Mr. Holmes added: It could be submitted, perhaps, that at that stage Australia was in possession of New Guinea, after the Japanese occupation, as a conqueror, and had an international right to retain possession. However, I am not making that submission. Australia, in 1945-46, chose instead to con sider herself bound by the Condi tions of the League of Nations Man date, and to accept UNO as the suc cessor of the League of Nations.

Could There Be Privy

Council Appeal?

I asked Sir Garfield Barwick: In a case of this kind, can there be an appeal from the Full Bench of the High Court to the Privy Council 9 (In other words, is not the Full Bench the final arbiter in any Con stitutional issue of this kind 9) Sir Garfield replied: “Your question cannot be answered authoritatively.

I do not think I should venture any view to you.”