Fishwick v Cleland [1960] HCA 55; (1960) 106 CLR 186 (10 August 1960)

HIGH COURT OF AUSTRALIA

FISHWICK v. CLELAND [1960] HCA 55; (1960) 106 CLR 186

Papua and New Guinea

High Court of Australia
Dixon C.J.(1), McTiernan(1), Fullagar(1), Kitto(1), Menzies(1) and Windeyer(1) JJ.

CATCHWORDS

Papua and New Guinea - Validity of Union - Trust Territory - Trusteeship Agreement - Constitutional power of the Commonwealth - External affairs power - Power to legislate for territories - Whether territory "acquired by the Commonwealth" - Legislative Council of Papua and New Guinea - Vacancy in membership - Subordinate legislation - Validity of Ordinance - Charter of the United Nations,Chs.XII.,XIII - The Constitution (63 & 64 Vict. c. 12), ss. 51 (xxix), 122 - Papua and New Guinea Act 1949-1957 (Cth) ss. 5-10,36 (1),37 (3), 38 (2A),41, 44 and Fourth Schedule - Income Tax and Social Services Contribution Assessment Act 1936-1959 (Cth) - Income Tax Ordinance 1959 (Papua and New Guinea).

HEARING

Melbourne, 1960, June 6-9;
Sydney, 1960, August 10. 10:8:1960
CASE STATED.

DECISION

August 10.
THE COURT delivered the following written judgment:-
This is a case stated by the parties pursuant to O.XXXV, r. 1, in an action Ordinance 1959 (No. 26 of 1959) of the Territory of Papua and New Guinea is invalid. The action has been constituted in a manner sufficiently strange to call for comment, if not for consideration; but that may be left to the end. (at p193)

2. The argument by which it was sought to reach the desired conclusion took many paths, some of them wide, some of them narrow, sometimes connected and sometimes unconnected. The Ordinance was made by the Legislative Council for the Territory of Papua and New Guinea in purported pursuance of the powers conferred by the Papua and New Guinea Act 1949-1957. The primary argument struck at the root of the legislative power under which the Ordinance was made by denying the constitutional validity of that Act of the Commonwealth Parliament. It was said that, whether the power to make laws in reference to New Guinea arose under s. 122 of the Constitution or under s. 51(xxix) which confers power to legislate with respect to external affairs, the legislative power of the Parliament with respect to the Territory extended no further than to make laws consistent with the Trusteeship Agreement and the Articles of the Charter of the United Nations lying behind it. On that footing it was contended that the Papua and New Guinea Act 1949-1957 is inconsistent with the Trusteeship Agreement and the material Articles of the Charter because the Act provides a form of government for the Territory of Papua and the Territory of New Guinea which continues them in what it calls an administrative union and moreover establishes a Legislative Council for the combined Territories some of whose members are inevitably drawn from Papua. (at p194)

3. We are unable to agree in this argument. In the first place we do not think that the Papua and New Guinea Act 1949-1957 is inconsistent with the Trusteeship Agreement or the material Articles of the Charter. The union of New Guinea with Papua for the purposes and in the manner appearing from the Act is in our opinion quite consistent with the provisions of the Charter and of the Trusteeship Agreement. It may be remarked that in point of fact the Papua-New Guinea Provisional Administration Act 1945 was passed on 3rd August 1945 and came into operation on 30th October 1945 and it was that Act which first placed the Territory of Papua and the Mandated Territory of New Guinea under one Administration. The Charter was signed on 26th June 1945 and came into force on 24th October 1945 and Australia became a member of the United Nations on 1st November 1945 when her ratification was deposited. The Trusteeship Agreement was approved by the General Assembly of the United Nations on 13th December 1946. But apart altogether from this order of events, we think that there is no inconsistency between the provisions of the Charter or of the Trusteeship Agreement and the Papua and New Guinea Act 1949-1957. We have considered with care the provisions of Ch. XII (International Trusteeship System) and Ch. XIII (The Trusteeship Council) and we can find in them nothing that conflicts with the course taken by the Papua and New Guinea Act 1949-1957. (at p194)

4. The Trusteeship Agreement recites that the Government of Australia then undertook to place the Territory of New Guinea under the trusteeship system on the terms set forth in the Agreement. It will be noted that it was Australia who placed the territory under the system. She is described in the agreement as the Administering Authority and she is thereby designated as the sole authority which will exercise the administration of the Territory (art. 2). The expression "administration of the Territory" is not here used in contrast with legislative and judicial powers but covers all governmental authority. In art. 4 there is an example of the narrower use of the word "administration" but that is because of the desire to refer to the executive, the legislative and the judicial powers specifically. Elsewhere "administration" has the wide meaning. When the Trusteeship Agreement speaks of the Administering Authority it is obviously referring to a State externally sovereign which possesses plenary governmental powers to which the Trust Territory is to be submitted but which the State undertakes to exercise for the purposes and in the manner which Chs. XII and XIII of the Charter and the Trusteeship Agreement describe. Article 81 of the Charter, which of course uses general terms, says that the Administering Authority may be one or more States or the Organization itself. Article 4 of the Trusteeship Agreement accordingly provides that the Administering Authority will be responsible for the peace, order, good government and defence of the Territory and for this purpose will have the same powers of legislation, administration and jurisdiction in and over the Territory as if it were an integral part of Australia and will be entitled to apply to the Territory, subject to such modifications as it deems desirable, such laws of the Commonwealth of Australia as it deems appropriate to the needs and conditions of the Territory. Article 5 provides that it is agreed that the Administering Authority, in the exercise of the powers under art. 4, will be at liberty to bring the Territory into a customs, fiscal or administrative union or federation with other dependent territories under its jurisdiction or control, and to establish common services between the Territory and any or all of these territories, if in its opinion it would be in the interests of the Territory and not inconsistent with the basic objectives of the trustee system to do so. Papua clearly enough is a dependent territory within the meaning of art. 5 and what the Papua and New Guinea Act 1949- 1957 does is to establish, or more accurately continue in a revised form, an administrative union between the two territories. By s. 6 of that Act parliamentary approval is given to the placing of the Territory of New Guinea under the International Trusteeship System by means of and upon the terms of the Trusteeship Agreement. By s. 8 it is declared to be the intention of the Parliament that the Territory of Papua and the Territory of New Guinea shall continue to be Territories under the authority of the Commonwealth and the identity and status of the Territory of Papua as a Possession of the Crown and the identity and status of the Territory of New Guinea as a Trust Territory shall continue to be maintained. Then s. 9 provides that the Territory of Papua and the Territory of New Guinea shall be governed in an administrative union to the extent and in the manner provided by or in pursuance of the Act. Section 10 says that for the purposes of the Act the Territory of Papua and the Territory of New Guinea shall be together called the Territory of Papua and New Guinea, a name shortened by the definition in s. 5 to "the Territory". (at p195)

5. It is needless to describe in detail the form of government established for "the Territory". It is enough to say that the executive authority is confined to an Administrator who has the advice and assistance of the Executive Council and who also presides over and is a member of the Legislative Council in which resides power to make laws for the peace, order and good government of the Territory. There is a judicial system which includes a Supreme Court. The Administrator and the Judges are appointed by the Governor-General. So also are the members of the Executive Council, which consists of nine officers of the Public Service of the Territory. The Legislative Council numbers twenty-nine, including the Administrator. Of these, sixteen are official members, being officers of the Territory, three are non-official members who are elected by the electors of the Territory, three are non-official members representing the interests of Christian missions, three are non-official native members and three others are simply non-official members. Except the elected members the Administrator appoints the Legislative Councillors. There are also advisory councils for native matters and native local government councils. The assent of the Administrator to an Ordinance is necessary unless he reserves it for the Governor-General's pleasure. Within six months of the Administrator's giving his assent to an Ordinance the Governor-General may disallow the Ordinance. There is a list of subjects upon which an Ordinance cannot be made without reservation for the Governor-General's pleasure: s. 52. Among the list is any Ordinance which in the opinion of the Administrator may not be fully in accordance with Australia's Treaty obligations or with Australia's obligations under the Trusteeship Agreement. (at p196)

6. We think that the form of government which we have described in outline goes no further than is justified by the authority expressed in the Trust Agreement to "bring the Territory into an administrative union with (an)other dependent territory". No ground exists for reading this in any narrow sense, especially when it is remembered that art. 4 says that the Commonwealth shall have the powers of legislation as if the Territory of New Guinea were an integral part of Australia. We are therefore of opinion that there is no inconsistency between the Act and the Charter or the Trusteeship Agreement. (at p196)

7. But if any such inconsistency could be found we should not think that it went to the legislative validity of the enactment considered as a matter of municipal law. Australia possesses a federal form of government and that of course involves a distribution of legislative powers between States and Commonwealth. A difficulty has been felt in saying under which of the enumerated powers of the Commonwealth Parliament fell the authority to legislate for the government of a mandated territory and of course whatever difficulty has been felt as to a mandate will be felt as to a trust territory. But that is a matter of the constitutional law of Australia, a municipal or domestic matter, and is not, we think, determined by reference to the provisions of the Trusteeship Agreement or of the Charter of the United Nations. It was suggested by the Attorney-General that the "status" of the Territory of New Guinea was not for the judicial power to determine but rather to be ascertained for judicial purposes by inquiry from the Executive Government. We need not pursue the suggestion for we think that it is clear upon the documents and information before us that the Territory is subject to the legislative power of the Commonwealth Parliament. It is the very object of the trusteeship system to place a trust territory under the governmental authority of the State which undertakes to administer the territory in accordance with a Trusteeship Agreement. In the case of a State possessing a unitary system of government that means that the full powers of government are at its service in performance of its obligations under the Trusteeship Agreement. In the case of a federal system the powers which may be exercised must of course depend upon the constitution of the State but that is entirely an internal matter. The Commonwealth Parliament has legislative power in relation to territories conferred by s. 122 of the Constitution. It is a provision framed in terms perhaps not altogether appropriate in expression to the mandatory or trusteeship system but we think it should be construed widely. On the whole it seems preferable to refer the source of power over New Guinea to s. 122 rather than to s. 51(xxix), the legislative power with respect to external affairs. The history of Australia's relation to New Guinea from the outbreak of war on 4th August 1914 to the present time appears to us to support the view that the Territory was placed by the Crown under the authority of the Commonwealth and accepted by the Commonwealth. But if that view be not adopted we think it may be said to be otherwise acquired by the Commonwealth. The word "acquired" should receive no narrow meaning. It is not used in a proprietary sense and in a constitution intended to endure and apply to changing conditions we think it may receive a meaning wide enough to include the acquisition of the power of government over the Territory contemplated by the mandate and the Trusteeship Agreement. After all, at the time when the expression "otherwise acquired" was adopted at the framing of the Australian Constitution the relations of the United Kingdom Government with territories under its jurisdiction included many cases which would not fit into time-honoured categories, as reference to such a book as Hall's Foreign Powers and Jurisdiction of the British Crown (1894) shows. The language of s. 122 is susceptible of a wide enough meaning to cover developing conceptions of the authority of the Crown in right of Australia over territories. From the foregoing it follows that the Papua and New Guinea Act 1949-1957 is a valid law of the Parliament of the Commonwealth of Australia. (at p198)

8. Some grounds were taken for denying that even upon that footing is the Income Tax Ordinance 1959 a valid ordinance. It is of course an ordinance of the Legislative Council of the Territory. The first ground is that at the date when the Ordinance was adopted by that body the Council was not properly constituted for the valid exercise of its powers. The Legislative Council passed the Ordinance on 14th July 1959. On 22nd June 1959 the three elected members had resigned their membership of the Council. As they were non-official members their resignations became effective when received by the Administrator: s. 38(2A). At the time of the passing of the Ordinance the vacancies caused by the resignations had not been filled. Section 36(1) provides that the Legislative Council shall consist of twenty-nine members and because the numbers were reduced by the resignations to twenty-six and there were no elected members, it is contended that the Council was incompetent to exercise its powers and pass the measure. It is a deliberative assembly. The decisions are made by a majority of votes: s. 44. A quorum consists of ten members: s. 41. And a member may be disqualified from voting. That happens where a member is a party to a contract with the Commonwealth or has an interest therein. In such a case he is not entitled to vote where the matter in question relates to the contract: s. 37(3). (at p198)

9. No authority was produced in which a deliberative assembly of such a kind has been held incompetent to perform its duties or exercise its powers because there were vacancies in its membership. To interpret s. 36(1) as making it imperative that the whole membership of the Council must be completely filled and that otherwise its powers are not exercisable would not only be contrary to the inferences to be drawn from the provisions for a quorum, for majority voting and for disqualification for interest; it would be contrary to the general and traditional understanding with respect to the constitution of deliberative legislative bodies. The fact that the vacancies were of the three elected members can make no difference. The objection that because they had resigned and the numbers were reduced to twenty-six the Council was incompetent to act is untenable. (at p199)

10. It was argued also that the Income Tax Ordinance 1959 is inconsistent with the Income Tax and Social Services Contribution Assessment Act 1936-1959. This ground was taken before the Income Tax and Social Services Contribution Assessment Act 1960 (No. 18 of 1960) was passed, an Act in face of which it is almost impossible to advance the argument. It is, however, not an argument that could succeed had that Act not been passed. Apart from all other considerations the two measures deal with entirely different taxes. The Income Tax and Social Services Contribution Assessment Act 1936-1959 concerns a tax imposed as a contribution to the Consolidated Revenue of the Commonwealth of Australia. The Income Ordinance 1959 is concerned with a tax forming a contribution to the revenues of the Territory. The provisions therefore relied upon as a basis for the claim that there is an inconsistency provided no foundation for the argument. The attack on the validity of the Ordinance fails. (at p199)

11. The case should not be disposed of without some reference to the anomalies of procedure which the record disclosed. It appears that the action was instituted by the plaintiff against the Administrator, The Honourable D.M. Cleland, as defendant, who entered an appearance. Why he should be chosen as a defendant is an unanswered question. Then without any amendment of the writ The Territory of New Guinea and the Commonwealth of Australia were added to the heading of the Statement of Claim. How that happened does not appear any more than it appears what juristic person is The Territory of New Guinea. However, to save debate they were made defendants at the hearing. No objection was made to the locus standi of the plaintiff to sue for the relief he claimed, but one may be permitted to doubt whether simply as a taxpayer and employer he could make out any locus standi. (at p199)

12. All three questions in the case stated should be answered No. (at p199)

13. The plaintiff should pay the costs of the case stated. (at p199)

ORDER

Questions answered: (1) No, (2) No, (3) No. The plaintiff to pay the costs of the case stated.