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Published online by Cambridge University Press: 24 January 2025
In Fishwick v. Cleland, one of the contentions put by counsel for the plaintiff was that the Papua and New Guinea Act 1949-1957 was invalid as inconsistent with the Charter of the United Nations and the Trusteeship Agreement—
The power of the Commonwealth to pass [the Act] depends either upon s. 51 (xxix) of the Constitution or upon s. 122.3 Section 51 (xxix) does not grant power to pass legislation inconsistent with or contrary to a validly existing treaty.... Even if s. 122 does apply, the powers granted by that section are limited by the purposes and prohibitions of the Trusteeship Agreement in the same way as those granted by s. 51 (xxix).... [I]f the Commonwealth relies upon the external affairs power, and relies upon a treaty as feeding that power, it must confine itself, broadly, to carrying the treaty into effect.
[Editors’ Note: The intended scope of this section of the Review is to bring to light points of legal interest which, though not such as to warrant an article or extended comment, should not be permitted to pass unnoticed. With this in mind the Editors invite contributions from readers. Contributions to this section of the Review should be approximately seven hundred and fifty words in length.]
1 (1960) 106 C.L.R. 186.
2 S. 51– ‘ The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth withrespect to:– … (xxix.) External affairs ’.
3 S. 122– ‘The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any Territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquiredby the Commonwealth. …’
4 (1960) 106 C.L.R. 186, 189.
5 Ibid. 190-191.
6 Ibid. 196.
7 (1936) 55 C.L.R. 608.
8 (1936) 55 C.L.R. 608, 687-688– ‘ But it is a necessary corollary of our analysis of the constitutional power of Parliament to secure theperformance of an international convention that the particular laws or regulations which are passed by the Commonwealth should be in conformity with theconvention which they profess to be executing. In other words, it must be possible to assert of any law which is, ex hypothesi, passed solely in pursuance of this head of the“external affairs” power, that it represents the fulfilment, so far as that is possible in the case of laws operating locally, of all the obligations assumed under the convention. Any departure from such a requirement would becompletely destructive of the general scheme of the Commonwealth Constitution, for, as we are assuming for the moment, it is only because, and preciselyo far as, the Commonwealth statute or regulations represent the carrying into local operation of the relevant portion of the international convention, that the Commonwealth Parliamentor Executive can deal at all with the subject matters of the convention. Doubtless this requirement does not necessarily preclude the exercise of wide powers and discretions by the Parliament or the Executive of the Commonwealth, for the international convention may itself con-template that suchpowers and discretions should be exercisable by the appropriate authority of each party to the convention. Everything must depend upon the terms of the convention, and upon the rights and duties it confers and imposes. But the general requirement must be fulfilled or the Commonwealth will be exceeding its lawful domain.’
9 Ibid. 668-670, and especially at 674-675.
10 Ibid. especially at 642-644.
11 Ibid. 657-658; at 658–‘ … the power … must be commensurate with the obligations that the Commonwealth may properly assume in its relations with other Powers or States–.
12 On this point, see Evatt J. in Ffrost v. Stevenson (1937) 58 C.L.R. 528, 599-601. In addition to The King v. Burgess, counsel for plaintiff also cited Ffrost v. Stevenson, Jolley v. Mainka (1933) 49 C.L.R. 242, R. v.Christian [1924] S.A.L.R. (A.D.) 101 and Jerusalem-Jaffa District Governor v. SuleimanMurra [1926] A.C. 321. In Jolle v. Mainka, Evatt J. laid the foundation for the view he was to express on this matter in The King v. Burgess: (1933) 49C.L.R. 242, 284-288. He quoted, inter alia, an official Commonwealth communication of 1909 to the Colonial Secretary-‘ the law advisersof the Government have expressed the view that under sec. 51 (xxix.) of the Constitution, the Commonwealth Parliament has power to make such legislativeprovision as isnecessary to secure the fulfilment of treaty obligations’: ibid. 288. His Honour again stated his views in Ffrost v. Stevenson: (1937) 58 C.L.R. 528, 585-586. Jerusalem-Jaffa District Governor v. Suleiman Murra seems relevant only to the general question of the nature of a mandated territory. In R. v. Christian the South African court was prepared to regard the status of South West Africa as a mandated territory as having significance for issues of municipal law, and Innes C.J.spoke of the terms of the mandate as ‘incorporated in the constitution of the new territory’: [1924] S.A.L.R. (A.D.) 101, 112.The actual decision, of course, was that the Union of South Africa had sufficient internal sovereignty in the territory to sustain a charge of high treason. Reference might also have been made to R. v. Poole; Ex parte Henry (No.2) (1939) 61 C.L.R. 634.
13 (1965) 38 A.L.J.R. 388, 392, 393-394, 395 (per Barwick C.J.), 402 (per McTiernan J.), 408-409 (per Kitto J.), 412 (per Taylor J.), 416, 418-419 (per Menzies J.),423 (per Windeyer J.). See also Airlines of New South Wales v. New South Wales [1964] Argus L.R. 876, 897 (per Windeyer J.).
14 (1965) 38 A.L.J.R. 388, 395.
15 ‘ On the whole it seems preferable to refer the source of power over New Guinea to s. 122 rather than to s. 51 (xxix) ’: (1960) 106 C.L.R. 186, 197.
16 v Mainka. The Custodian of Expropriated Property (1924) 34 C.L.R. 297; Porter v. The King (1926) 37 C.L.R. 432; Jolley v. Mainka (1933) 49 C.L.R. 242; Ffrost v. Stevenson (1937) 58 C.L.R. 528; Wong Man On v. Commonwealth (1952) 86 C.L.R. 125.
17 New Guinea Act 1920: No. 25 of 1920.
18 (1933) 49 C.L.R. 242, 250; italics added.
19 (1960) 106 C.L.R. 186, 197.
20 (1945) 70 C.L.R. 60.
21 Ibid. 69.