Sometimes, a territory isn’t actually a territory.
In 1914, the shot heard round the world brought an infant Australia into its first major war. Five years later, the Commonwealth government found itself in possession of its first territory gained by bloodshed, German New Guinea.
In 1919, the League of Nations granted the Commonwealth government a ‘mandate’ over New Guinea, a former German possession. Australia was also given partial control over German Nauru. The following year, the New Guinea Act 1920 (Cth) was passed.
New Guinea was ‘external’ to Australia in two ways. It was also external geographically, although that wasn’t unique, as it bordered Papua. But, unlike Papua, it was obtained through war. This created a question: should New Guinea even be governed under section 122 of the Australian Constitution, and the blank cheque that it gives the Commonwealth government?
When it came to governing the two external colonies, there were two groups: one that supported assimilation and one that supported gradual independence. The first was by far the dominant camp.
In R v Bernasconi (1915), covered in the previous article, Justice Isaacs outlined the argument of the assimilationists:
“[A territory] is in a state of dependency or tutelage, and the special regulations proper for its government until, if ever, it shall be admitted as a member of the family of States, are left to the discretion of the Commonwealth Parliament.”
Apparently, Justice Isaacs didn’t realise the irony in using the word ‘state’ in reference to a ‘territory.’
Although this was prior to the New Guinea Act, his reference to “Germans or Polynesians” foreshadowed the acquisition of New Guinea.
Justice Evatt offered the first argument against it in his judgment in Jolley v Mainka (1933). He believed that section 122 was about the “gradual approach of the acquired territory towards inclusion,” so it didn’t apply to the mandate. By now, the League of Nations mandate was the core of the gradual independence camp.
His Honour relied on the external affairs power of section 51(xxix), which allowed the mandate to operate via the New Guinea Act 1920 (Cth). Evatt’s argument was the inverse of the section 122 argument because it saw New Guinea as “an integral portion of the Commonwealth; but its development is to be not towards, but away from, absorption by the Commonwealth.”
However, he came to the same conclusion as the other judges. Even relying on the external affairs power, the mandate was still about gradual development, albeit development away from Australia, not towards.
Justice Evatt’s stance was radical, but he wasn’t entirely alone. Justice Starke, like the other members of the court, agreed that the mandate was “otherwise acquired by the Commonwealth” to establish absolute jurisdiction, or ‘plenary power,’ over the territory, although that form of acquisition was a novel one.
Despite relying on section 122 to establish jurisdiction over the territory, he agreed that this was “subject to and during the subsistence of the mandate.” Although more subtle than Justice Evatt, he appeared to agree that the possession was meant to be temporary, as opposed to assimilation.
At this point, it should be noted that only the jurisdiction over New Guinea was being tested, because as Justice Starke pointed out, its acquisition is different from land outright annexed through war, granted to the Commonwealth by the monarch, as was the case with Papua, or surrendered to the Commonwealth by a state. Nonetheless, it was “otherwise acquired by the Commonwealth” under section 122.
When the United Nations renewed Australia’s mandate over New Guinea after World War II, the government faced a problem with the territory.
Only New Guinea was governed under a mandate, while Papua was a pre-existing territory. Neither of the doctrines identified by Justice Evatt applied to both territories. And an arbitrary straight line doesn’t reflect the reality of its inhabitants.
The Commonwealth's solution was to unite the two, with the condition that the new territory of Papua and New Guinea adopt the mandate’s requirement for eventual independence. The Papua and New Guinea Act 1949 (Cth) formalised this agreement.
Evatt, now the Attorney-General, had the last laugh. He was in the minority in the High Court, but now his reliance on the mandate agreement was adopted into law. In Jolley v Mainka, despite relying on a different constitutional power, he still agreed with the judges who applied section 122.
Now, the creation of the United Nations, where Evatt served as the President of the General Assembly, allowed Evatt to place greater importance on the external affairs power.
It was clear that Papua New Guinea, in the words of Evatt in 1933, would move “not towards, but away from, absorption by the Commonwealth.” This was finally achieved in 1975, 42 years after Jolley v Mainka.
The section 51(xxix) argument remains in the minority to this day, with support from Justices Murphy and Kirby in particular.
Chief Justice Barwick, the former Attorney-General and Minister for External Affairs, speaking for a unanimous court in Teori Tau v Commonwealth (1969), accepted that while there was debate over which power applied, the same outcome occurred.
Justice Starke's approach is the more accepted approach today, although many lawyers and academics, including George Williams, Sean Brennan, and Andrew Lynch, prefer Evatt’s approach.
With the High Court currently considering a case to overturn Teori Tau, it is possible that a judge may comment on the earlier statement by Chief Justice Barwick. If so, this author’s bet is on Justice Edelman.
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