HIGH COURT OF AUSTRALIA

                                                         Ffrost

                                                           Vs.

                                                      Stevenson

                             (Latham C.J., Rich, Dixon, Evatt and McTiernan JJ.)

                                                   13 August 1937

Latham C.J.

1. This is an appeal from a judgment of the Full Court of the Supreme Court of New South Wales
refusing to make absolute a rule nisi for writs of habeas corpus, prohibition or certiorari to a
stipendiary magistrate of the State of New South Wales and refusing also to exercise certain powers
conferred on the court by sec. 19 of the English Fugitive Offenders Act 1881.

The stipendiary magistrate made an order for the return of one Ffrost in custody to New Guinea,
there to stand his trial upon a charge of unlawfully killing one Mul Mul contrary to the provisions of
sec. 103 of the Criminal Code of the State of Queensland in its application to the Territory of New
Guinea. Ffrost was arrested and brought before the magistrate on 11th January 1937 upon a
provisional warrant, issued under sec. 18 (5) of the Service and Execution of Process Act 1901-
1934, and the proceedings were adjourned. An original warrant for the arrest of Ffrost was issued in
New Guinea on the same day. Ffrost was again brought before the magistrate on 25th January 1937.
The magistrate then indorsed the original warrant, which had by this time been forwarded to
Sydney, in the manner required by the Fugitive Offenders Act 1881 (44 & 45 Vict. c. 69), sec. 13,
which section is in Part II. of that Act.

The magistrate agreed with a contention that the Fugitive Offenders Act was not applicable, but held
that the Federal Service and Execution of Process Act was applicable. A further indorsement was
made on the original warrant in accordance with sec. 18 of the latter Act. Thus, when the magistrate
made his order, the warrant bore indorsements which satisfied the requirements of both of the Acts
mentioned.

On 26th January the magistrate ordered that Ffrost be returned to New Guinea. The order of the
magistrate is in the following terms:--"I therefore order Galfred Mervyn Collins Ffrost to be
returned to the Territory of New Guinea and for that purpose to be delivered into the hands of Henry
James Stevenson, Warrant Officer of the New Guinea Police Force, bringing the warrant."

Ffrost obtained an order nisi returnable before the Full Court of the Supreme Court. Upon the return
of the order nisi the Full Court refused to make it absolute and refused also to order under sec. 19 of
the Fugitive Offenders Act that the prisoner be not returned. The Full Court held that the Service and
Execution of Process Act was not applicable to the case but that the Fugitive Offenders Act was
applicable.

2.
Both the Fugitive Offenders Act and the Federal Service and Execution of Process Act, Part III.,
authorize, in cases where they are applicable, the arrest in one jurisdiction (to use a general term) of
a person charged in another jurisdiction with an offence, and the return of that person to the latter
jurisdiction, there to stand his trial. The Fugitive Offenders Act, Part I., authorizes such return as
between different parts of His Majesty's dominions. Part II. provides a more simple procedure for
such return as between British possessions to which that part has been applied by Order in Council
made under sec. 12 of the Act. Such an order may be made in the case of a group of British
possessions to which, by reason of their contiguity or otherwise, it may seem expedient to His
Majesty to apply Part II. of the Act. Under sec. 36 the Act can be applied also to a place out of His
Majesty's dominions in which His Majesty has jurisdiction as if such a place were a British
possession. Orders in Council have been made which treat New Guinea as a place out of His
Majesty's dominions within the meaning of sec. 36 and which apply Part II. of the Act to a group
including the Commonwealth of Australia and New Guinea. It is necessary to determine whether, in
view of the exceptional position of New Guinea as a mandated territory, these orders are effective to
bring Part II. of the Act into operation in this case.

The Constitution, sec. 51 (xxiv.), confers power upon the Commonwealth Parliament 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. Part III. of the Act deals with the execution in
one State of the criminal process of another State. It is clear that sec. 51 (xxiv.) does not authorize
legislation with respect to the return of accused persons as between the Commonwealth and a
territory of the Commonwealth. Sec. 28 of the Act, however, provides that the Governor-General
may make regulations for applying the provisions of the Act, with or without modifications, as
between States and territories of the Commonwealth, and sub-sec. 1A provides that for the purposes
of the section "Territories of the Commonwealth" includes any territory governed by the
Commonwealth under a mandate. Regulations have been made in pursuance of this provision. It is
necessary to determine whether the Commonwealth Parliament has power to enact sec. 28 so far as
it applies to mandated territories.

If the Fugitive Offenders Act should be held to be applicable as between the Commonwealth and
New Guinea and if the Service and Execution of Process Act, sec. 28, and the regulations should
also be held to be so applicable, it will become necessary to determine whether the Acts can stand
together, or whether the Federal Act (in its application as between the Commonwealth and New
Guinea) is repugnant to the Fugitive Offenders Act so that, under the Colonial Laws Validity Act
1865, it is void and inoperative to the extent of the repugnancy. If both Acts are applicable, or if
either one of the Acts is applicable, it must then be decided whether the order made by the
magistrate can be supported either under both Acts, or under the Act which is held to be applicable.

3.

The first question which arises is whether the Fugitive Offenders Act is applicable as between the
Commonwealth of Australia (including the State of New South Wales) and New Guinea.

The Fugitive Offenders Act, sec. 36, provides that "it shall be lawful for Her Majesty from time to
time by Order in Council to direct that this Act shall apply as if, subject to the conditions,
exceptions and qualifications (if any) contained in the Order, any place out of Her Majesty's
dominions in which Her Majesty has jurisdiction, and which is named in the Order, were a British
possession, and to provide for carrying into effect such application."
Two Orders in Council were made on 12th October 1925 under the Fugitive Offenders Act. The first
recited that New Guinea was a place out of His Majesty's dominions in which His Majesty had
jurisdiction and provided that on and after 1st November 1925 the Act should apply to New Guinea
as if that Territory were a British possession, with certain qualifications which are not material for
the purpose of this case. This Order also provided that "for the purpose of Part II. of the said Act the
said Territories of New Guinea and Nauru shall, with the Commonwealth of Australia, Papua and
Norfolk Island, be deemed to be one group of British possessions." The second Order in Council
recited that the Act had been applied to New Guinea by the first Order in Council as if it were a
British possession, and that it was desirable by reason of the contiguity of the dominions, colonies
and territories mentioned in the Order that Part II. of the Act should apply to them. As already
stated, sec. 12 of the Act provides for the application of Part II. in such a case. The Order then
provided that Part II. of the Act should as from 1st November apply to a specified group of British
possessions and territories including the Commonwealth of Australia and New Guinea.

There is no doubt that His Majesty has jurisdiction in New Guinea. If New Guinea is a "place out of
His Majesty's Dominions," sec. 36 authorizes the application of the Act, and sec. 12 authorizes the
inclusion of New Guinea in a group with the Commonwealth of Australia.

But if New Guinea is a British possession within the meaning of the Fugitive Offenders Act, that Act
cannot be applied as between the Commonwealth and New Guinea, because sec. 39 provides that all
territories and places which are under one legislature shall be deemed to be one British possession
and one part of His Majesty's dominions. Both the Commonwealth and New Guinea are under the
Commonwealth Parliament (See McArthur v. Williams[1]). Part II, applies only as between one
British possession and "another British possession," which are in the same group (see sec. 13), not
as between two parts of "one British possession."

As already stated, one of the Orders in Council made under the Fugitive Offenders Act recites that
New Guinea is a place out of His Majesty's dominions in which His Majesty has jurisdiction. This
recital, however, cannot, in my opinion, be relied upon as conclusively establishing the alleged fact
which it recites. An Order in Council purporting to be made under an Act cannot give itself validity
by including in its terms an allegation that a necessary condition precedent is satisfied. It is true that
sec. 31 of the Act provides that every Order made for the purposes of the Act shall, while it is in
force, have the same effect as if it were enacted in the Act. But even such a provision cannot
authorize the making of an order if conditions precedent are not satisfied. Sec. 31 gives statutory
effect to the order if it is made for the purposes of the Act; it does not provide that any statement
which has been inserted in the order, for example, in a recital, is to be conclusively taken to be true:
See Institute of Patent Agents v. Lockwood[2]--a case which goes as far as any case can go in
giving effect to such a provision as sec. 31. But even in that case, if the rules in question had not
been made by the proper body and had not related to a particular subject-matter, they would have
been invalid: See Minister of Health v. The King (On the prosecution of Yaffe)[3]. Thus if, for
example, an order were made under sec. 36 purporting to make the Fugitive Offenders Act
applicable in relation to Russia, where His Majesty has no jurisdiction, the order would simply be
inoperative. So also, if New Guinea is not a place which is out of His Majesty's dominions, the
order in relation to New Guinea is ineffective.

Courts are required to take judicial notice of the extent of His Majesty's dominions (See cases cited
in Halsbury's Laws of England, 2nd ed., vol. 13, p. 621). The law treats such a question as one not
to be determined in cases of doubt by particular courts upon such evidence as particular litigants
may choose to submit, or upon an examination by particular courts of documents which are possibly
ambiguous in their terms. Whether a particular territory is or is not within His Majesty's dominions
is to be conclusively determined, in any case of doubt, by a formal statement made by a Minister of
the Crown in response to a formal inquiry by a court (Duff Development Co. v. Kelantan
Government[4]). A recital in an executive order made under a statute cannot be regarded as being
such a formal statement within either the ordinary rules of evidence or the special provisions of the
Foreign Jurisdiction Act 1890, sec. 4, which provides a statutory procedure whereby a court may
obtain from a Secretary of State a statement which shall be conclusive evidence of the existence or
extent of any jurisdiction of His Majesty in any foreign country.

The magistrate in the present case did not obtain any authoritative information as to whether New
Guinea was or was not a place outside His Majesty's dominions. The court is supposed to take
judicial notice of the fact, whatever the fact may be, but in this case, unfortunately, the court has not
the advantage of having any conclusive statement before it and this court cannot in these
proceedings take fresh evidence. The court must therefore do the best it can to reach a conclusion
upon the question upon such material as is available. Though conclusive evidence is wanting, there
is, I think, sufficient evidence to make it possible to determine the question.

Consideration of the provisions of the Treaty of Peace with Germany shows, I think, that mandated
territories did not become possessions, in the ordinary sense, of the mandatory powers. There has
been much difference of opinion among jurists as to the question of sovereignty in relation to such
territories. Professor Quincy Wright of the University of Chicago in his work Mandates under the
League of Nations (1930) refers (p. 319) to fifty juristic discussions in which the question has been
examined. There have been many discussions of the subject since. I doubt whether any light can be
thrown upon the question to be decided by this court by considering the applicability to mandated
territories of a conception which is itself so uncertain and so disputable as that of sovereignty.
Authorities of the highest standing differ among themselves as to whether or not the conception of
sovereignty is applicable, in what sense it is applicable, and, if it is applicable, as to where
sovereignty resides. The grant of mandates introduced a new principle into international law. The
Peace Treaty in art. 22 of the Covenant of the League of Nations refers to former German colonies
and territories as having "ceased to be under the sovereignty of" Germany. By art. 119 of the Peace
Treaty Germany renounced in favour of the five Principal Allied and Associated Powers "all her
rights and titles over her oversea possessions." The Principal Allied and Associated Powers granted
mandates to certain powers in respect of those oversea possessions. The League of Nations then
defined under art. 22 of the Covenant "the degree of authority, control or administration to be
exercised by the mandatory." In the case of "C" mandates, including the mandate for New Guinea,
the mandatory power, which is the Commonwealth of Australia, has full powers of "administration
and legislation over the territory subject to the mandate as an integral portion of its territory" (Art. 2
of the mandate). This provision is in accordance with the terms of art. 22. In the original draft of the
covenant the relevant provision of art. 22 provided that the territories in respect of what are now
known as "C" mandates were granted "can be best administered under the laws of the mandatory as
if integral portions of its territory." But on the suggestion of the Japanese delegate the word "if" was
omitted (See Wright, op. cit., p. 42). It is clear that it was intended that, in the case of "C" mandates,
the fullest powers of government should be conferred upon the mandatory power. In the case of "A"
mandates, on the other hand, art. 22 provided that the existence of the communities in question "as
independent nations can be provisionally recognized subject to the rendering of administrative
advice and assistance by a mandatory until such time as they are able to stand alone." The
distinction between this provision and the provision applying to "C" mandates, that they are to be
administered as integral portions of the territory of the mandatory, is very marked, and, accordingly,
some authorities have contended that sovereignty resides in the mandatory under a "C" mandate. On
the other hand, it has been urged that sovereignty resides, first, in the five Principal Allied and
Associated Powers, or, secondly, in the League of Nations, or, thirdly, in the communities which
inhabit the mandated territories. It is, in my opinion, impossible to adopt any one of the three latter
propositions in the case of New Guinea.

It is clear that, subject to the limitations imposed by the mandate relating to safeguards provided "in
the interests of the indigenous population," the Commonwealth of Australia is legally omnipotent in
the Territory of New Guinea. It is obvious that the five Principal Allied and Associated Powers,
whose partnership has long since been dissolved, cannot make any law for New Guinea or do any
executive or judicial act in New Guinea. It is hardly necessary to say that the same proposition is
true with respect to the League of Nations. The functions of the League of Nations in relation to
New Guinea are completely specified in art. 22 of the Covenant and are limited to the receipt of an
annual report from the mandatory and the examination by a permanent commission of the annual
report, the commission being entitled to advise the Council on any matter relating to the observance
of the mandate. The only governmental organization existing in New Guinea is that which is
provided by the Commonwealth. To say that sovereignty resides in the unorganized natives who
inhabit the country is to state a meaningless proposition.

New Guinea is being administered, as it was intended to be administered, as an integral portion of
the territory of the Commonwealth and there is no other power, organization or body which is able
to perform any governmental act in New Guinea. It might, therefore, be contended that in substance
the Commonwealth has full sovereignty in New Guinea. It is true that the New Guinea Act 1920
recites conquest by Australian forces, surrender to those forces, renunciation of all rights by
Germany, and occupation by the Commonwealth; but the mandate is recognized by the Act itself to
be the source of the governmental powers of the Commonwealth. The position of a mandatory in
relation to a mandated territory must be regarded as sui generis. The Treaty of Peace, read as a
whole, avoids cession of territory to the mandatory, and, in the absence of definite evidence to the
contrary, it must, I think, be taken that New Guinea has not become part of the dominions of the
Crown. This prima facie conclusion is reinforced by the recital in one of the Orders in Council made
under the Fugitive Offenders Act on 12th October 1925 that New Guinea is a place out of His
Majesty's dominions in which His Majesty has jurisdiction. This recital, as I have already said,
cannot be regarded as conclusive evidence, but it is, I think, some evidence of the fact which it
recites.

It is possible for His Majesty to have complete legislative, executive and judicial powers in a place
which is not within his dominions. In R. v. Crewe (Earl); Ex parte Sekgome[5] the Court of Appeal
considered whether the Bechuanaland Protectorate was a country out of His Majesty's dominions.
The territory had never been acquired by settlement or ceded to or annexed by His Majesty. But His
Majesty exercised complete jurisdiction in relation to all governmental matters within the territory
of the Protectorate. It was held that this fact did not bring the Protectorate within His Majesty's
dominions. This case shows, therefore, that the fact that His Majesty has complete and exclusive
governmental authority in New Guinea is not enough to show that New Guinea is a place within His
Majesty's dominions.

Art. 257 of the Treaty of Peace, dealing with government property in the former German colonies,
provides as follows: "All property and possessions belonging to the German Empire or to the
German States situated in such territories shall be transferred with the territories to the mandatory
power in its capacity as such and no payment shall be made nor any credit given to those
Governments in consideration of this transfer."
This article therefore contemplates the transfer of the territory to the mandatory in its capacity as a
mandatory power. The intention of this provision must be taken to have been to provide for the
transfer of the territory to the mandatory, but only in its capacity as a mandatory. The mandatory, as
a kind of international trustee, receives the territory subject to the provisions of the mandate which
limit the exercise of the governmental powers of the mandatory. Thus the article quoted, while
recognizing that the territory is actually to be transferred to the mandatory, emphasizes the
conditions and limitations upon governmental power which constitute the essence of the mandatory
system. Thus the title under which the territory is to be held as a mandated territory is different from
that under which a territory transferred by simple cession would have been held. The article shows
that the intention was to achieve a transfer of a territory without making that territory in the
ordinary sense a possession of the mandatory.

A territory which is a "possession" can be ceded by a power to another power so that the latter
power will have complete authority in relation to that territory. Such a cession by a mandatory
power would be quite inconsistent with the whole conception of a mandate. A mandated territory is
not a possession of a power in the ordinary sense.

The conclusion which I have thus reached is that New Guinea is a place out of His Majesty's
dominions in which His Majesty has jurisdiction, so that the Fugitive Offenders Act has been
properly applied to it by the Order in Council made under sec. 36 of that Act. I do not think it
necessary to deal in detail with the argument based on the provision of sec. 39 of the Act to the
effect that the Order makes New Guinea a British possession, and that then sec. 39 operates to make
New Guinea one British possession with the Commonwealth because both New Guinea and the
Commonwealth are under one legislature. The result of these provisions is, it is argued, that, in the
case of New Guinea, the Order applying the Act itself makes the Act inapplicable. In my opinion
this argument is not well founded. Sec. 39 relates only to places which are "within Her Majesty's
dominions." Therefore it does not apply to New Guinea. The Order made under sec. 36 does not
purport to make New Guinea a British possession. It only operates to make the Act applicable as if
it were a British possession.

Thus the Fugitive Offenders Act applies as between Australia and New Guinea. The New Guinea
warrant was indorsed by the magistrate as required by the Fugitive Offenders Act and he therefore
had jurisdiction to make the order which he made. There is, therefore, no ground for applying the
remedies of prohibition, certiorari or habeas corpus.

4.

The difficulty which arises in the present case arises not from any want of jurisdiction in the
magistrate under the Fugitive Offenders Act but from the fact that the magistrate, after hearing
argument, reached the conclusion that he had no power to act under the Fugitive Offenders Act but
that he had power to act under the regulations made under sec. 28 of the Service and Execution of
Process Act. The New Guinea warrant bore an indorsement which satisfied the provisions of the
Service and Execution of Process Act, and, if the Act applied, the magistrate had jurisdiction under
that Act to order the return of Ffrost to New Guinea.

New Guinea is not a State of the Commonwealth, and the Commonwealth Parliament, therefore,
cannot use the power conferred by sec. 51 (xxiv.) of the Constitution for the purpose of securing the
service and execution in a State of civil or criminal process of the courts of New Guinea. Therefore,
sec. 28 in relation to New Guinea must be justified, if at all, under some other legislative power than
that conferred by sec. 51 (xxiv.). It therefore becomes necessary to ascertain the source of
Commonwealth legislative power with respect to New Guinea.

What I have already said shows that it can be held that a territory has been acquired by the
Commonwealth, in the capacity of a mandatory power, without also holding that His Majesty in
right of the Commonwealth possesses sovereignty over the territory in the sense in which such
sovereignty would have been possessed if the territory had simply been ceded to His Majesty.

Sec. 122 of the Constitution is in the following terms: "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 acquired by the Commonwealth, and may allow the representation of such territory in
either House of the Parliament to the extent and on the terms which it thinks fit."

By the concurrence of the Principal Allied and Associated Powers, the Council of the League of
Nations, the Governor-General acting as the representative of His Majesty, and the Commonwealth
Parliament expressing its will in the New Guinea Act 1920, the Territory of New Guinea has been
placed under the authority of and has been accepted by the Commonwealth. The act of the
Governor-General as the King's representative (secs. 2 and 61 of the Constitution) was the step
which placed the Territory under such authority. Thus, in my opinion, the Territory of New Guinea
is a territory which has been placed by the King under the authority of the Commonwealth and
which has been accepted by the Commonwealth, so that sec. 122 became applicable in relation to
the Territory.

If, however, this should be regarded as doubtful, the Territory can at least be regarded as a territory
"otherwise acquired by the Commonwealth." The provisions of sec. 122 should not, in my opinion,
be limited by a doctrine that territory can be acquired only by conquest, occupation, or cession
involving an annexation. The words "otherwise acquired" are words of wide significance (See per
Starke J. in Jolley v. Mainka[6]), and, appearing as they do in a Constitution, should be interpreted
in a liberal sense so as to apply to new methods of acquisition falling short of the acquisition of
complete sovereignty, as complete sovereignty is understood in some one or other of the many
controversial theories of sovereignty which are familiar to international jurists. The Territory of
New Guinea does belong to His Majesty "in right of the Commonwealth of Australia" so far as a
mandated territory can belong to any power (Mainka v. Custodian of Expropriated Property[7]). It is
not a British possession but it is a territory in respect of which the Commonwealth Parliament has
exclusive power to make laws by virtue of sec. 122 of the Constitution.

Thus I am of opinion that the Territory is not in His Majesty's dominions, but that it is a territory
which has been placed by His Majesty the King under the authority of the Commonwealth and has
been accepted by the Commonwealth, or, alternatively, that it is a territory which has been otherwise
acquired by the Commonwealth. Therefore, under sec. 122 the parliament may make laws for the
government of New Guinea. In my opinion the source of the authority of the Commonwealth
Parliament to make laws for the Territory of New Guinea is to be found in sec. 122 and not in sec.
51 (xxix.), the power to legislate with respect to external affairs. The latter power was validly
exercised in order to bring New Guinea under the governmental authority of the Commonwealth, as
Evatt J. stated in Jolley v. Mainka[8], but then sec. 122 operates, and it is this latter section which, in
my view, is the source of the power to make laws for New Guinea. If it were held that sec. 51
(xxix.) is the source of that power, then it appears to me that it would be difficult to avoid overruling
the decisions in Buchanan v. The Commonwealth[9], R. v. Bernasconi[10] and Porter v. The King;
Ex parte Yee[11]. In these cases it was held that laws passed by virtue of sec. 122 of the Constitution
were not subject to the limitations imposed by the parts of the Constitution which treat the
Commonwealth not as a complete and self-contained governing agency, but as part of a Federal
system in which the Commonwealth is one element and the States are other elements. The existence
of the States and of the constitutional limitations inherent in the Federal system is, according to
these decisions, quite irrelevant in relation to the exercise of any power by the Parliament under sec.
122. If the legislative power of the Commonwealth with respect to the territories were held to
depend upon the provisions of sec. 51 (xxix.) it would follow that sec. 55 would be applicable to
laws passed under that power--contrary to Buchanan's Case[12]--that trial upon indictment of any
offence must be by jury--contrary to Bernasconi's Case[13]--and that the judges of courts in the
territories must have a life tenure--contrary to Porter's Case[14]. It appears to me, for the reasons
which I have given, to be quite possible to apply sec. 122 to New Guinea without holding that the
Territory of New Guinea has been annexed by or ceded to His Majesty so as to become a British
possession.

5.

The next question which arises is whether, even if sec. 122 of the Constitution applies to New
Guinea, the legislative powers of the Commonwealth Parliament include a power to bring into
operation the Service and Execution of Process Act as between the Commonwealth and New Guinea.
It has been argued that any law made under a power to make laws for the Commonwealth is prima
facie enforceable only in the Commonwealth, while any law made under a power to make laws for
New Guinea is prima facie enforceable only in New Guinea. Thus, it is said, a law passed under sec.
122 cannot authorize the arrest of a person in New South Wales, and it is contended that there is no
other relevant legislative power. These objections do not appear to me to be sound in their
application to the subject matter under consideration.

As I have already said, sec. 51 (xxiv.) of the Constitution cannot be relied upon to support the law in
question, because New Guinea is not a State. There is, however, another relevant provision in the
Constitution in sec. 51 (xxix.), under which the Parliament has power to legislate with respect to
external affairs. According to the foregoing reasoning New Guinea is a place which is outside of His
Majesty's dominions and, though it is a territory under the authority of the Commonwealth, it is not
itself a part of the Commonwealth, though the Commonwealth is authorized to govern New Guinea
as an integral portion of the Commonwealth. Thus the relations between New Guinea and the
Commonwealth form part of the subject of external affairs. Provisions for reciprocal surrender of
persons charged with criminal offences constitute one of the most ordinary forms of legislation with
respect to external affairs. Therefore, under sec. 51 (xxix.) of the Constitution, the Commonwealth
Parliament has power to legislate for the peace, order and good government of the Commonwealth
with respect to the surrender by the Commonwealth to New Guinea and the acceptance in the
Commonwealth from New Guinea of such persons. Under sec. 122, for reasons already given, the
Commonwealth Parliament has power to legislate for the peace, order and good government of New
Guinea with respect to the surrender by New Guinea to the Commonwealth and the acceptance in
New Guinea from the Commonwealth of such persons. By a combination of these powers, the
Commonwealth Parliament is able to authorize the making of regulations providing for the
application of the Service and Execution of Process Act as between New Guinea and Australia.
There is, therefore, power to confer upon a magistrate all the powers given to him by the relevant
part of the Service and Execution of Process Act.

As at present advised, I think that this legislation can also be justified under sec. 52 (iii.) of the
Constitution as Commonwealth legislation operating in Australia. This provision gives power to the
Commonwealth Parliament to make laws for the peace, order and good government of the
Commonwealth with respect to matters declared by the Constitution to be within the exclusive
power of the Parliament. Sec. 122, relating to the government of territories, does not use the word
"exclusive," but the effect of sec. 122 is that the Parliament has exclusive power, by virtue of the
Constitution, to make laws for the territories to which the section applies. By the operation of sec.
52 (iii.) in relation to sec. 122, the Commonwealth Parliament would appear to have power to make
laws for the Commonwealth with respect to the government of New Guinea. In view, however, of
my opinion that sec. 51 (xxix.) authorizes sec. 28 of the Service and Execution of Process Act in its
application within the Commonwealth, it is not necessary to reach a concluded opinion upon the
suggestion mentioned.

6.

I have thus reached the conclusion that the Fugitive Offenders Act is applicable in this case and also
that the Service and Execution of Process Act is applicable. It is suggested, however, that the latter
statute, which is a Federal statute, is repugnant to the former statute, which is an Imperial
enactment, within the meaning of sec. 2 of the Colonial Laws Validity Act 1865. If this be so, then
the Federal Act is void and inoperative to the extent of the repugnancy. My brother Dixon in his
reasons for judgment examines the differences between the two Acts, and, without repeating in
detail the various points to which he draws attention, it is sufficient for me to say that I agree with
his conclusion that the two Acts provide two different systems applying to the same subject matter.
Does it follow that the Acts are repugnant? After careful consideration I am not satisfied that they
are repugnant. They provide, I think, merely different methods of dealing with the same matter, and
the application of both methods does not result in any conflict. The Crown may proceed under
either Act as it thinks proper. Even if two separate applications were made to two magistrates, and
one made an order for return under the Fugitive Offenders Act and the other made an order for return
under the Federal Act, there would be no conflict. Each order would operate only by rendering
lawful an arrest, detention and conveyance of the accused person which would otherwise be
unlawful. Any person acting under either order would be protected. The fact that another person
acting under another order would also have been protected is immaterial. The orders only authorize
and empower action. In ordinary criminal practice there may be several warrants in existence for the
arrest of the same person under different statutes of the same State or under the statutes of several
States. The fact that one warrant exists does not make the others invalid.

The case appears tome to be quite different from that of Union Steamship Co. of New Zealand Ltd.
v. The Commonwealth[15], where it was held that there was repugnancy between the Imperial
Merchant Shipping Act and the Commonwealth Navigation Act. The Merchant Shipping Act 1894
contained provisions relating to the engagement and discharge of seamen. If those conditions were
satisfied the seaman and his employer were bound by an agreement for service or discharged from
that agreement, as the case might be. The Navigation Act, dealing with the same subject matter,
required the fulfilment of additional conditions before a valid agreement was created, on the one
hand, or discharged on the other hand. There was necessarily a conflict between these two systems
of control. In the case of discharge, for example, the effect of the Merchant Shipping Act was that
the parties were released from the mutual obligations arising from the agreement for service if a
certain procedure was followed. The effect of the Navigation Act was that the parties should not be
so released unless certain fees were paid which were not required to be paid by the Merchant
Shipping Act. It was plain that the Acts conflicted. It is impossible that there should at the same time
both be and not be a discharge of the same agreement between the same persons. No such position
exists in the present case. Powers to arrest, detain and convey a person may exist in several
authorities without conflict.

It is objected, however, that a conflict in procedure arises if both Acts are held to be applicable
because, if, as in this case, an order does not specify the Act under which it is made, a prisoner is
not in a position to know what procedure he should follow and what precisely his rights are if he
desires to apply for a discharge of the order or to appeal from either the order or a refusal to make
an order of discharge. Sec. 19 of the Fugitive Offenders Act, as pointed out in detail by my brother
Dixon, specifies certain grounds upon which application may be made for a discharge of the order
and also specifically gives a right of appeal to a superior court. Sec. 18 (4) of the Service and
Execution of Process Act provides for an application for the discharge of the order to the magistrate
granting the order or to any judge of the State, and the grounds upon which such application may be
made are not quite in the same terms as those which appear in sec. 19 of the Fugitive Offenders Act.
Further, there is no general provision in the Federal Act for a right of appeal to a superior court.
Statutory Rule No. 147 of 1930, which was made under sec. 28 of the Service and Execution of
Process Act, provides that if the prisoner has not been returned within three months from the date of
the order a justice of the High Court shall have power to review the order by way of rehearing.
There is no such provision for review in the case of an order made under the Fugitive Offenders Act.

I agree that where the magistrate has not by the terms of the order which he makes made it quite
clear that he is exercising a jurisdiction under one or other of the Acts, the prisoner is in a position
of some difficulty. But it is open to him to resolve the difficulty by making applications for
discharge under both Acts. The rights in relation to appeal are not the same under the two Acts, but
the only result, an inconvenient result, I agree, is that two appellate proceedings may be necessary in
order to get an order set aside. The prisoner has more than one avenue of review open to him. He
does not by following one course preclude himself from adopting the alternative course. There
would be no conflict between decisions of different tribunals dealing with separate applications or
appeals under the respective Acts. The decisions would be decisions limited to the consideration of
the order in relation to a different Act in each case. A final order that a prisoner should not be
returned by virtue of the provisions of one Act would not be inconsistent with an order that he
should be returned by virtue of the provisions of the other Act. These considerations show that there
are procedural inconveniences in the co-existence of the two Acts and that it might be advantageous
to exclude the application of one of them in the case of mandated territories, but, in my opinion,
they do not show that the Federal statute is repugnant to the Fugitive Offenders Act.

7.

There is only one further matter which requires consideration. Both the Fugitive Offenders Act (sec.
14) and the Service and Execution of Process Act (sec. 18 (3) (a)) provide that the order for the
return of the apprehended person may be made by warrant under the hand of the magistrate making
it, and may be executed according to its tenor. It is suggested that the order to be made should be in
the form of a warrant. The order made in this case was not in that form. The point was not argued in
the appeal and it is not among the grounds of appeal. There is, I think, more to be said for this
contention in relation to the Fugitive Offenders Act than in relation to the Service and Execution of
Process Act. Reg. 2 of the regulations under the Service and Execution of Process Act (as enacted by
Statutory Rule No. 147 of 1930) appears to me to draw a distinction between a warrant and an order
in the detailed provisions for review of the order for the return of the prisoner who has been arrested
by virtue of the warrant. Regs. 4a and 4b provide that a justice of the High Court shall have
jurisdiction to review the order for the return by way of rehearing. Reference is made to the
evidence given "on the making of such order." It is provided that, upon the review of the order, the
justice may affirm or vary the order, or quash the order and substitute a new order in its stead, and it
is then provided that the order as affirmed or varied, or in the event of an order being substituted,
the order substituted shall be executed according to its tenor as if it had been made by the justice of
the peace or the judge. These provisions are to be read as if they were inserted in the Act after sec.
18 (4). In my opinion they show that the order for the return of the prisoner may be made by order
and need not necessarily be made by warrant. The justice of the High Court is authorized to make an
order, not to issue a warrant. "Review of an order" is a clear and readily intelligible phrase. "Review
of a warrant" would be an unusual phrase. There is not, I think, sufficient reason for holding that the
order made by the magistrate, at least under the Service and Execution of Process Act, must
necessarily assume the form of a warrant. If, however, a warrant is necessary, the order would be a
sufficient justification for the issue of a warrant.

As to the merits of the application for the discharge of the order, I agree with the view of the Full
Court that no sufficient reason has been shown for discharging the order.

Thus in my opinion the order made was made with jurisdiction under both the Fugitive Offenders
Act 1881 and the Commonwealth Service and Execution of Process Act 1901-1934.

Rich J.

It is unnecessary to detail the story of the control of the Mandated Territory of New Guinea by the
Commonwealth. It is enough to state that German New Guinea was taken and occupied by the naval
and military forces of Australia and that Germany renounced in favour of the principal Allied and
Associated Powers all her rights over her overseas possessions, undertaking to recognize and accept
the measures taken by such powers for the purpose of carrying her renunciation into effect. New
Guinea was then assigned by the League of Nations to "His Britannic Majesty for and on behalf of
the Government of the Commonwealth of Australia." It is well established by the decisions of this
court that in relation to the Mandated Territory the Commonwealth has sufficient legislative power
fully to justify the New Guinea Act 1920 (Mainka v. Custodian of Expropriated Property[16]; Jolley
v. Mainka[17]). Whether that legislative power arises under sec. 122 of the Constitution or under
sec. 51 (xxix.), as the judgment of Evatt J. in the latter case maintains, I can see no reason for
limiting it in such a way as to leave without support sec. 28 (1) and (1A) of the Service and
Execution of Process Act 1901-1934. After all, it is a legislative power exercisable by the Parliament
of Australia and the government of the territories whether mandated or not is to be carried on in
conjunction with the general government of the Commonwealth, consisting as it does of six States
as well as the territories. I cannot see why a power to legislate for the administration of criminal
justice of the territories should not carry with it as an incident authority to apprehend fugitive
offenders within the States. But in any case I am clearly of opinion that the Orders in Council of
12th October 1925 are valid and efficacious to apply the Fugitive Offenders Act 1881 on the footing
that New Guinea is a possession and a member of a group to which Australia also belongs. The
juridical status of New Guinea is such as to make it within the province of the Imperial Executive to
declare that it is outside His Majesty's dominions for the purpose of that Act and to apply it
accordingly. It results, therefore, from what I have said so far, that, under the Commonwealth
power, by means of sec. 28 of the Service and Execution of Process Act 1901-1934, provision has
been made for the return of offenders, and under the Imperial statute another provision has been
made. The two provisions closely resemble one another although they are not identical. If there is a
repugnancy between them, of course the Federal statute must give way under the Colonial Laws
Validity Act 1865 (Union Steamship Co. of New Zealand Ltd. v. The Commonwealth[18]). In the
present case the proceedings culminating in the order for the apprehension and return of the
offender to New Guinea have been conducted with what might fairly be called ambiguity. The
warrant was indorsed so as to comply with the Fugitive Offenders Act, but the magistrate in making
his order preferred, according to his reasons, to act under the Commonwealth provision. Apparently
under the Imperial statute a warrant is necessary, and no such warrant has been made out or signed
by the magistrate. Under the Federal provision the form of order is not prescribed, and it seems that
it would be good, if good according to the law of the State where it is made. In New South Wales
magistrates may give effect to their decisions by minute or order. In the present case the order, apart
from its formal expression, could be justified, in my opinion, under the Fugitive Offenders Act.
There is nothing to prevent the magistrate making out a warrant pursuant to his order and signing it.
I do not think that, simply because he has not taken this step and has refrained from doing so
because of reliance on the Service and Execution of Process Act 1901-1934, we should bring up the
proceedings upon certiorari and quash them. The difficult question of repugnancy could only arise
through persistence in refusing to put the order in a form giving it a clear validity under a statute
which is certainly in force, whether the Commonwealth provisions are or are not excluded because
of repugnancy with it. In these circumstances I think that no certiorari or prohibition should go. In
the view the Supreme Court took of the matter, secs. 38A and 40A of the Judiciary Act 1903-1934
applied. In disposing of the proceedings our order should treat them accordingly and not as appeals.

Dixon J.

The appellant unsuccessfully sought from the Supreme Court relief against an order of a magistrate
directing that he should be returned in custody to the Mandated Territory of New Guinea to answer
a charge of manslaughter.

In making the order, the magistrate professed to act under the provisions of the Commonwealth
Service and Execution of Process Act 1901-1934. Sec. 28 of that Act empowers the Governor-
General to make regulations for further applying the provisions of the Act, with or without
modifications, to the service and execution in any State or part of the Commonwealth of the civil
and criminal process of the courts of the territories of the Commonwealth. The expression
"Territories of the Commonwealth" includes any territory governed by the Commonwealth under a
mandate (sec. 28 (1A)). "Court" is defined in sec. 3 to include any judge or justice of the peace
acting judicially, and, although this description of the functions of a magistrate granting a warrant of
apprehension is very unhappy, the context and subject matter of the enactment seem to require the
adoption of an interpretation that will cover the issue by magistrates of warrants of apprehension.

Regulations have been made applying the provisions of the Act to New Guinea among other
territories (Statutory Rules 1925 No. 105; 1930 No. 147; 1931 No. 27; 1931 No. 44). They are
applied subject to some modifications the effect of which, so far as material, is to give to a justice of
this court power to review an order for the return of a prisoner if the order is such that he is or may
not be required to be returned within three months.

The Act deals, of course, with much else besides the return to a State or a territory of persons
charged with offences, but the present case is concerned only with that subject. So much of that
subject as relates to the return from Australia of persons accused of offences against the laws of
New Guinea and vice versa is covered also by the Imperial Fugitive Offenders Act 1881, Part II. of
which has been applied by two Orders in Council dated 12th October 1925. Sec. 36 of the Fugitive
Offenders Act 1881 provides that it shall be lawful for the Sovereign from time to time by Order in
Council to direct that the Act should apply as if, subject to the conditions, exceptions and
qualifications (if any) contained in the Order, any place out of the King's dominions in which the
King has jurisdiction, and which is named in the Order, were a British possession, and to provide for
carrying into effect such application.

One of the two Orders in Council, after reciting this section, goes on to state that New Guinea and
Nauru are places out of His Majesty's dominions in which His Majesty has jurisdiction and proceeds
to order that the Act shall apply as if those territories were British possessions, subject to certain
provisions, one of which is that for the purpose of Part II. of the Act, the Territories of New Guinea
and Nauru shall, with the Commonwealth of Australia, Papua and Norfolk Island, be deemed to be
one group of British possessions. The purpose of the second Order in Council appears to be to make
a still larger group, so as to include New Zealand, Western Samoa, Fiji, the Gilbert and Ellice
Islands and the British Solomon Islands.

In reciting that New Guinea and Nauru are places out of His Majesty's dominions, the first Order in
Council adopts the view that, because these territories are held under mandate, they do not form part
of the dominions of the Crown properly so called, but are a special example of the class of place
subject to the King's jurisdiction or authority although not British possessions.

Sec. 31 of the Fugitive Offenders Act 1881 provides that an Order made for the purposes of the Act
shall, while it is in force, have the same effect as if it were enacted in the Act. The nature and extent
of the authority claimed by the Crown in and over a territory is primarily a matter for the executive
(Cp. The Fagernes[19]). These two considerations appear to me to be a complete answer to the
contention that the attempt to deal with New Guinea under sec. 36 is ineffectual and void because,
in contemplation of law, it is a territory forming part of the dominions of the Crown. In his
judgment in Jolley v. Mainka[20] Evatt J. has examined the position of New Guinea in a manner
showing clearly the difficulties that, in any case, exist in treating the Mandated Territory of New
Guinea as part of the dominions. The provisions of the Commonwealth Constitution relating to
territories are the chief source of embarrassment in dealing with New Guinea, not the question
under which description it should be classified among the kinds of place where the authority of the
British Crown runs. For, having regard to the interpretation which sec. 122 of the Constitution has
received in Buchanan v. The Commonwealth[21], R. v. Bernasconi[22], Porter v. The King; Ex parte
Yee[23] and Wall v. The King; Ex parte King Won and Wah On [No. 1][24], different consequences
may be produced by referring the New Guinea Act 1920-1935 to some legislative power other than
that contained in sec. 122. Further, it may possibly be said that sec. 122 implies that none of the
other powers conferred on the parliament by the Constitution is to be taken to authorize the
government or control of territories outside the Commonwealth; in other words, that it alone is the
source of power to govern territories. But I do not think that any such question is involved in, or
very much affected by, a decision that the Order in Council under sec. 36 of the Fugitive Offenders
Act 1881 is valid. In the present case I do not think it is necessary to decide more.

The reason why the question whether New Guinea has been validly dealt with under sec. 36 is
important is to be found in the definition of "British possession" contained in sec. 39. Under that
definition "all territories and places within Her Majesty's dominions which are under one legislature
shall be deemed to be one British possession and one part of Her Majesty's dominions," and "the
expression legislature where there are local legislatures as well as a central legislature, means the
central legislature only" (See McArthur v. Williams[25]). Accordingly, as the Parliament of the
Commonwealth exercises a legislative power over New Guinea, if it were a part of the Crown's
dominions, there would be much to be said for the view that it formed part only of one possession,
namely, the Commonwealth and its territories. From that it would follow that the Fugitive Offenders
Act 1881 could not apply to authorize the surrender of prisoners as between New Guinea and
Australia; for, on the assumption made, they would be no more than different places in the same
possession and not different possessions. It was suggested that this result followed even if sec. 36
applied. The suggestion was based upon the view that when an Order in Council under sec. 36
directed that the Act should apply to a place out of His Majesty's dominions in which the Crown had
jurisdiction as if it were a British possession, then that place should be considered a territory or
place within His Majesty's dominions for the purposes of the definition. The consequence would be
that if a central or a superior legislature had authority over it as well as over some other territory,
both territories would combine to form one possession. Two errors are, I think, involved in this
view.

In the first place, the definitions in sec. 39 are to be used for the purpose of ascertaining the
meaning and operation of the terms in the body of the statute. It is an error to use a provision in the
body of the statute, such as sec. 39, for the purpose of giving a new application to a definition. It
was not meant that the definition thus transmuted by the application of a provision out of the body
of the statute should then be applied in order to change the operation of another such provision. In
other words, in interpreting the enactment the order of approach is, first, to find the prima facie
meaning of the terms and for that purpose to rely upon the definition clause, and then to bring that
knowledge to the construction of all the provisions of the statute.

The other error consists in a departure in thought from the exact course prescribed by sec. 36. The
section says that the Order in Council may direct that the Act shall apply as if the place to which it
relates were "a British possession," not "a territory or place within His Majesty's dominions," and
this latter is the expression found in the definition clause. The description "a British possession"
means a place under one legislature including all parts under a central legislature if there are local
legislatures also. Thus the Act is to be applied upon the assumption that the place is, so to speak, an
entire and complete British possession, not a part of one.

The Orders in Council are, in my opinion, effectual to apply Part II. of the Fugitive Offenders Act
1881 to Australia and to the Mandated Territory of New Guinea for the purpose of the reciprocal
surrender of offenders.

As the Fugitive Offenders Act 1881 is an Act of the Imperial Parliament extending to Australia and
New Guinea, any law of the Commonwealth found repugnant to its provisions, or to an Order made
under its authority, must be, to the extent of the repugnancy, void and inoperative. Sec. 2 of the
Colonial Laws Validity Act 1865 applies to laws made under the Commonwealth Constitution
(Union Steamship Co. of New Zealand Ltd. v. The Commonwealth[26]). It provides that any colonial
law which shall be in any respect repugnant to the provisions of any Act of Parliament (that is, of
the United Kingdom) extending to the colony to which such law may relate, or repugnant to any
order or regulation made under authority of such Act of Parliament, or having in the colony the
force and effect of such Act, shall be read subject to such Act, order or regulation, and shall, to the
extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

Thus the existence of the Imperial Fugitive Offenders Act 1881 and its application to the Mandated
Territory bring into question the validity of the attempt made by Statutory Rules 1925 No. 105 and
Statutory Rules 1930 No. 147 to apply as between New Guinea and Australia so much of Part III. of
the Service and Execution of Process Act 1901-1934 as deals with the apprehension in one place of
a person who is charged with an offence against the laws of another. I proceed to consider this
question, namely, whether the attempt to apply to New Guinea that portion of Part III. of the Service
and Execution of Process Act is repugnant to the Fugitive Offenders Act 1881.

The provisions dealing with the apprehension in one place of persons charged with offences against
the laws of another place are contained in sec. 18 of the Federal Act. Sub-sec. 1 (a) of sec. 18 relates
specifically to the case of apprehension for offences, and sub-secs. 2, 3, 4 and 5 provide machinery
for that as well as other cases. The general plan of these provisions closely resembles that of Part II.
of the Fugitive Offenders Act 1881. But they differ in a number of respects. Some of the differences
could scarcely produce very substantial consequences. There are matters, however, in relation to
which one set of provisions prescribes or authorizes a course widely varying from that to be pursued
under the other. In particular, as a result in part of the Judiciary Act 1903-1934 and in part of the
regulations, the rights of appeal or review are different.

Of the minor differences it will be sufficient to mention the following. The Commonwealth
provisions do not (vide last part of sub-sec. 1 and sub-sec. 3) but the Imperial Act does (vide secs. 13
and 14) give (a) specific directions that the magistrate indorsing the warrant shall be satisfied that it
was issued in the place whence it comes by a person having lawful authority and that the offence it
charges is there punishable by law; (b) specific directions that the magistrate before whom the
prisoner is brought when apprehended shall be satisfied of the due authentication of the warrant, of
the authority of the person issuing it and of the identity of the prisoner. When an order for the return
of a prisoner is made under the Imperial Act, the order directs (See sec. 14) that he be "conveyed by
sea or otherwise into the British possession in which the warrant was issued, there to be dealt with
according to law as if he had been there apprehended." An order made under the Commonwealth
provisions does not include that direction. After an order for his return has been made, a prisoner
may apply for his discharge, if under the Imperial Act, to a magistrate or to the Supreme Court of a
State or of New Guinea, as the case may be (See sec. 19, sec. 39 (4) and McArthur v. Williams[27]).
Under the Commonwealth provisions, after a magistrate has ordered the prisoner's return, the
application must be to some judge of the State (See sec. 18 (4)). Under each set of provisions an
order may be made upon the application either for the discharge of the prisoner or that he shall be
returned only after the expiration of a named period, or any other order may be made that seems
just. The magistrate before whom he is brought in the first instance may exercise the same powers.
But the two sets of provisions do not express in the same terms the grounds upon which the tribunal
may so act. Under the Commonwealth provisions it is enough that the charge is of a trivial nature,
that the prisoner's return is not sought in good faith, or that for any reason it would be unjust or
oppressive (sec. 18 (4)). Under the Imperial Act (sec. 19) it must appear that it is unjust or
oppressive or too severe a punishment, and it must so appear either because of the trivial nature of
the offence, or because of his return not being sought in good faith in the interests of justice, or
generally having regard to the distance, to the facilities of communication and to all the
circumstances of the case.

The more important differences in the operation of the two sets of provisions lie in the consequences
which ensue when a return has been ordered and the prisoner has not secured his discharge under
one or other of the powers just described. If he has unsuccessfully applied to the Supreme Court of a
State and his application has been considered in banco, then, being a prisoner dealt with under the
Imperial Act, he may apply to this court for special leave to appeal, but, except for such an appeal
by special leave, the order of the Supreme Court in banco is final. The superior court under sec. 19
is the Supreme Court because it fulfils the requirement of the definition contained in sec. 39; it has
the like criminal jurisdiction to that which is vested in the High Court of Justice in England. But
under the Commonwealth provisions a very different position arises. In the first place, a prisoner
whose return to New Guinea has been ordered as under their authority may apply to a justice of the
High Court to review the order, if it does not require his return within three months. The review is
expressed to be by way of rehearing and the powers intended to be given to the justice, extend to
confirming, quashing or varying the order (Statutory Rule 1930, No. 147).

In the next place, the order of the magistrate for the return and the order of the judge of a State
refusing a discharge would alike be made in Federal jurisdiction and, accordingly, an appeal would
lie to the High Court under sec. 73 (ii.) of the Constitution as affected by sec. 35 (1) (b) and sec. 39
(2) (b) and (c) of the Judiciary Act 1903-1934. It may be a question whether sec. 39 (2) and its sub-
paragraphs govern an authority which is given by a Federal statute to State courts for the first time
and does not otherwise exist (Cp. Seaegg v. The King[28] and Adams v. Cleeve[29]). But it is
unnecessary for the purposes of this case to distinguish between appeals from magistrates as of right
and by special leave. It is enough that under sec. 73 (ii.) of the Constitution and sec. 35 (1) (b) of
the Judiciary Act 1903-1934 an appeal may be brought from the magistrate's order by special leave.
If his order were made under the Imperial Act no direct appeal from it would lie direct to this court
unless the words in sec. 73 (ii.) of the Constitution, "court of any State from which at the
establishment of the Commonwealth an appeal lies to the Queen in Council", received the
interpretation contended for in Kamarooka Gold Mining Co., No Liability v. Kerr[30], an
interpretation which so far this court has shown no disposition to place upon them (Cp. Parkin and
Cowper v. James[31]). Perhaps it should be added that, if a justice of the High Court acted under
Statutory Rule 1930 No. 147, an appeal from his order would probably lie as of right to the Full
Court under sec. 73 (i.) of the Constitution. For apparently the authority it was intended to confer
falls under the description of original jurisdiction rather than of appellate.

The right of appeal from orders for the return or for the discharge of prisoners is not the only matter
in which consequences of some importance would flow from the differences between the two sets of
provisions. A prisoner apprehended under the Imperial Act may apply for his discharge if he is not
conveyed out of the possession within a month of the order for his return (sec. 17). If he is not
prosecuted within six months of his arrival in the possession to which he is returned or if he is
acquitted, he may ask the Governor of that possession to send him back free of cost and the
Governor is authorized to do so (sec. 18). The Imperial Act allows a prisoner held under an order
for his return to be sent by one of His Majesty's ships, and requires the master of a ship belonging to
a British subject bound to the place to which the prisoner is to be returned to afford him and the
person having him in custody a passage, subject to conditions that are laid down by the statute (sec.
27). The Imperial Act provides for the retaking of a prisoner who escapes (sec. 28); and it also
authorizes the removal of a prisoner from the jurisdiction to which he has been returned to another
jurisdiction for the purpose of his trial, if he may be tried in that other jurisdiction (sec. 35). None of
these consequences flows from apprehension and return under the Commonwealth provisions,
which contain no similar sections or clauses.

In my opinion the application of the Commonwealth provisions to the reciprocal return of prisoners
between Australia and New Guinea is repugnant to the Imperial statute and to the Orders in Council
bringing the Mandated Territory of New Guinea under the operation of that statute and grouping it
with Australia. It may be that the test of repugnancy under sec. 2 of the Colonial Laws Validity Act
1865 is not the same as the test of consistency under sec. 109 of the Commonwealth Constitution
(Cp. Union Steamship Co. of New Zealand Ltd. v. The Commonwealth[32]). If it were the same,
Hume v. Palmer[33] would be sufficient authority for this conclusion. But, taking a narrower test of
consistency or repugnancy, it appears to me that the co-existence of the two sets of provisions I have
described would produce an antinomy inadmissible in any coherent system of law. It must be borne
in mind that the judicial officers in whom the rival enactments respectively repose powers,
authorities or functions, are laid under a duty to execute them. It would not be open to a magistrate,
if a prisoner was brought before him after apprehension under the Imperial Act, to refuse to deal
with him at all. He could not simply abnegate his authority under that statute. It is his duty to act
under the statute. In the same way, if the Commonwealth provisions were also in force, he would
fall under a duty to exercise the powers, authorities and functions which would proceed from them.
Up to the point of the apprehension of the prisoner and his being brought before the magistrate, the
procedure prescribed by the two sets of provisions is almost identical; so nearly so that if both were
valid, the magistrate would be called upon to exert both authorities simultaneously. But, as appears
from the examination made of the rival provisions, at this point the divergence begins. If the
magistrate made an order for the return of the prisoner it would be subject to two varying courses of
appeal and review and would involve somewhat different consequences in many other respects,
accordingly as it was considered an order under the Commonwealth provisions or considered an
order under the Imperial Act. I think that this must amount to a repugnancy, and, of course, it is the
Commonwealth provision which, to the extent of the repugnancy, must give way. I have not
overlooked the fact that in Lorenzo v. Carey[34] this court decided that Federal jurisdiction might be
conferred upon a court already possessing State jurisdiction upon the same subject matter, and so
decided notwithstanding that the appeals lying from the exercise of each jurisdiction were not
necessarily the same. Nor have I overlooked the observation made in the judgment of the court that,
when Federal jurisdiction is given to a State court and the State jurisdiction belonging to it is not
taken away, their Honours saw no difficulty in that court exercising either at the instance of a
litigant[35]. It has always appeared to me that, once the conclusion was reached that Federal
jurisdiction was validly conferred, then under sec. 109 it was impossible to hold valid a State law
conferring jurisdiction to do the same thing, whether subject to no appeal or subject to appeal in a
different manner or to a different tribunal or tribunals, or otherwise producing different
consequences. If the observation I have mentioned is to be pressed to such an extent, it can, I think,
be justified only by the special nature of the legislative authority arising from sec. 77 (ii.) and (iii.)
of the Constitution as the court interpreted those paragraphs.

For these reasons I think that the regulations which seek to apply to New Guinea the provisions of
the Service and Execution of Process Act 1901-1934 (Statutory Rules 1925 No. 105; 1930 No. 147;
1931 No. 27; 1931 No. 44) are void for repugnancy in so far as they would otherwise make
applicable sec. 18 (1) (a) of that Act to the reciprocal return of offenders between Australia and the
Mandated Territory of New Guinea. The magistrate's order, therefore, cannot be supported under the
Commonwealth legislation.

In this view it is unnecessary to consider the correctness of the opinion expressed in the Supreme
Court to the effect that, apart from any repugnancy to the Imperial statute, no power resided in the
Commonwealth Parliament to legislate for the service and execution of process as between the State
and territories. It becomes a question irrelevant to the decision of the case. Further, of all territories
a mandated territory is the last to choose for the purpose of examining the general powers of the
Parliament to make laws, operating within a State, with reference to the administration of justice in
a territory. I shall not embark upon the question, but I do not wish my not doing so to be regarded as
implying agreement with the view expressed in the Supreme Court.

The ground upon which the order of the magistrate was finally supported by the decision under
appeal was that, notwithstanding the reliance by the magistrate on the Service and Execution of
Process Act, the order he avowedly made under that Act was a sufficient exercise of the authority
conferred upon him by the Fugitive Offenders Act 1881. I am unable to agree that his order
amounted to a valid exercise of his authority under the Imperial Act. In stating the differences
between the two sets of provisions, I have already described the variation in those which govern the
duty of the magistrate up to and including the making of his order. In the Imperial Act there is
present, and in the Commonwealth provisions there is absent, an express requirement that he should
be satisfied on oath (a) that the warrant was duly authenticated as directed by that Act; (b) that it
was issued by a person having authority to do so; (c) that the prisoner is the person named in the
warrant. The order to be made is of a somewhat different tenor. The criteria laid down for the
exercise of the magistrate's discretion to discharge a prisoner or name a time for his return vary,
although it is true that the variation is not wide. Before an order made in the intended exercise of a
supposed power can be upheld as an order validly made under another power, all the conditions
attending the lawful exercise of the one must be identical with the conditions supposedly prescribed
for the exercise of the other. The legal foundation of an order under the one must be the same as that
intended for an order under the other. But the features I have mentioned all combine to deprive the
legal basis of an order properly made under the Imperial Act of that identity with the basis intended
by the Commonwealth provisions which is necessary.

There is a further consideration which, in my opinion, is fatal to the order of the magistrate as an
order resting upon the Imperial Act. The order is not made as a warrant. It appears to be a minute or
memorandum signed by the magistrate made as under the Justices Act 1902-1931 N.S.W.. Now I
think that the Imperial Act requires a warrant. It is true that sec. 14 says that "such order for return
may be made by warrant under the hand of the magistrate making it" and does not say that it must
be so made. The point, however, of the permissive "may" is in allowing it to be under hand. For at
common law a warrant is "a precept under hand and seal to some officer" &c. (Jacobs' Law
Dictionary, s.v. "Warrant"); and Jervis' Act required a seal for a warrant to apprehend (11 & 12 Vict.
c. 43, sec. 3). Sec. 17 of the Fugitive Offenders Act 1881 speaks of the date of the warrant and of
"the person holding the warrant." Sec. 26, in its not unimportant second paragraph, which continues
process in force notwithstanding the death of the person signing a warrant or indorsement, or his
ceasing to hold office, includes in its enumeration a warrant, a summons, a subpoena and process,
but not an "order." Sec. 27 speaks of "the authority signing the warrant." Sec. 28 refers to an escape
from the custody of a person acting under "a warrant issued or endorsed" under the Act. Sec. 33
speaks of a "warrant previously issued for his return." For the operation of all these provisions a
warrant is necessary and the Act appears to me to mean that there shall be a warrant for the return of
the prisoner.

For the reasons I have given I think that the order of the magistrate is bad and would at common
law be liable to quashing on certiorari. Sec. 146 of the Justices Act 1902-1931 N.S.W. provides that
no conviction or order of a justice shall be removed by any writ or order into the Supreme Court.
But in Evans v. Donaldson[36] this court decided that the section does not apply to orders made by
justices in the exercise of a jurisdiction independent of the Justices Act.

In my opinion the appeal should be allowed and the order of the Supreme Court discharged. In lieu
thereof the order nisi for a writ of certiorari removing the magistrate's order should be made
absolute and the magistrate's order should be quashed.

Evatt J.
This matter comes to the court pursuant to special leave to appeal granted on April 27th last after
the appellant had unsuccessfully applied to the Full Court of the Supreme Court of New South
Wales to make absolute a rule nisi for a writ of habeas corpus, prohibition or certiorari.

The material facts leading up to the magistrate's order for the return of the appellant to the
Mandated Territory of New Guinea are fully set out in the judgments delivered in the Supreme
Court and I shall deal immediately with the main heads of this very important case.

The Full Court of New South Wales was of opinion, first, that secs. 28 (1) (b) and 28 (1A) of the
Commonwealth Service and Execution of Process Act, which the magistrate had adjudged applicable
to the case, were invalid; but second, that the order of the magistrate could be regarded as warranted
by the terms of the Fugitive Offenders Acts 1881, an Imperial Act.

I.

Inter-se Question Involved.--Sec. 28 (1) (b) of the Service and Execution of Process Act 1901-1934
provides that the Governor-General may make regulations for applying the provisions of the Act to
the "service and execution in any State or part of the Commonwealth of the civil and criminal
process of the courts of the territories of the Commonwealth". Sec. 28 (1A) provides that, for the
purpose of sec. 28, territories of the Commonwealth include any territory governed by the
Commonwealth under a mandate. Pursuant to sec. 28 (1) (b) and sec. 28 (1A), the provisions of the
Service and Execution of Process Act were extended by regulation to the service and execution in
any State or part of the Commonwealth of the civil and criminal process of the courts of New
Guinea.

The Full Court of New South Wales was of opinion that sec. 28 (1) (b) of the Service and Execution
of Process Act and the regulations by which that Act has been made applicable to the service and
execution in any State of the civil and criminal processes of the courts of the Territory of New
Guinea, are "ultra vires and invalid." Thus it was held that the Commonwealth Parliament has no
constitutional authority to authorize the arrest of a fugitive offender within a State for the purpose of
his being returned for trial in any territory of the Commonwealth (whether mandated or territory
proper). In effect the Supreme Court decided that, within the boundaries of the States, the
Commonwealth Parliament and Executive have no lawful power either under sec. 122 or sec. 51
(xxix.) or sec. 51 (xxiv.) to interfere with personal liberty for the purpose of the mutual rendition of
offenders as between any Commonwealth territories and the States concerned.

In the opinion of the Supreme Court, sec. 122 of the Constitution, which gives the Parliament power
to legislate for "territories", does not extend to "the enforcement of executive acts done in that
territory outside the boundaries of the territory and within the States". Further, in its opinion, sec. 51
(xxix.) did not authorize the legislation and sec. 51 (xxiv.) is in terms limited to the service and
execution of the civil and criminal process and judgments of the States and has no relation to
"territories."

By implication and, I think, expressly, the Supreme Court ruled that, as between the Commonwealth
and the State of New South Wales, any such interference with liberty within the borders of New
South Wales must be authorized by the legislature of the State to the exclusion of the
Commonwealth. In deciding that sec. 28 (1) (b) and sec. 28 (1A) of the Act were invalid, the
Supreme Court determined a question as to the limits inter se of the constitutional powers of the
Commonwealth and the States. But the effect of secs. 38A and 40A of the Judiciary Act is to
deprive the Supreme Courts of jurisdiction to determine any such question, so that the Full Court
should have refrained from addressing itself to the question of the validity of the two provisions of
the Service and Execution of Process Act and proceeded no further with such portion of the cause
which was before them.

In Jolley v. Mainka[37] I expressed the opinion that the general power of the Commonwealth
Parliament under sec. 51 (xxix.) to legislate within the borders of the Mandated Territory of New
Guinea did not give rise to any contest of constitutional power between Commonwealth and State.
The reasons expressed for such conclusion were that "neither the New Guinea Act nor the
ordinances thereunder made operate outside New Guinea itself, and the States are in no way
concerned or affected." The position is very different when an attempt is made to exert the
legislative power of the Commonwealth within the area of a State. Whether the present attempt was
valid or invalid, any decision as to the Commonwealth's constitutional authority to act in such a way
involves a question as to the lawful boundary within each State of the constitutional powers of the
Commonwealth. This was pointed out on the application for special leave to appeal to this court, but
the court was of the opinion that the most convenient course was to bring the whole cause up by
granting special leave. The Judiciary Act makes it imperative to maintain a strict demarcation of
functions between the Supreme Court and this court.

II.

Legal Status of New Guinea.--It remains for this court to determine the correctness of the opinion
expressed in the Supreme Court as to the validity of secs. 28 (1) (b) and 28 (1A). In the present case
it is unnecessary to determine this question in relation to the territories proper of the
Commonwealth, because we are concerned only with the return of an offender to the Mandated
Territory of New Guinea which, in my opinion, is neither Commonwealth territory properly so
called nor any part of the King's dominions, possessions or territories. The question of the validity
of the provisions of the Service and Execution of Process Act so far as they relate to the Mandated
Territory necessarily involves an investigation of the legal basis of the Commonwealth's jurisdiction
over such territories. Similarly the lawful application to such Territory of the Imperial Fugitive
Offenders Act 1881 is based upon the constitutional theory recited in the Orders in Council relating
to New Guinea, that it is a place outside the King's dominions but in which the King has
jurisdiction. The latter theory was elaborated and justified in my judgment in Jolley v. Mainka[38].
As to the material provisions of the Service and Execution of Process Act, the Supreme Court (albeit
in excess of its jurisdiction) considered that it was impossible to regard them as laws validly passed
under sec. 122 for the government of New Guinea because, in relation to the arrest and return of
persons like the appellant, they operated outside the Territory and within the borders of these States.
As I do not think it is correct to base the Commonwealth's jurisdiction over New Guinea on sec.
122, I refrain from expressing any opinion upon that portion of the Supreme Court's judgment
which may come before this court for review in another connexion.

As the constitutional basis of Australia's government of New Guinea has to be examined, I think
that it is necessary for me to add something to what I said in Jolley v. Mainka[39]. The opinion I
there expressed to the effect that the Territory is not a place within or belonging to the King's
dominions has been acted upon by the Supreme Court so far as the Fugitive Offenders Act is
concerned. But the reasoning by which that opinion was reached seems to me also to require the
conclusion that sec. 51 (xxix.), and not sec. 122, is the source of the Commonwealth's legislative
power to govern New Guinea in pursuance of its executive power and international duty to carry out
the obligations imposed on it by the terms of the mandate.

In any analysis of the legal and constitutional basis of the government of the Mandated Territory the
primary duty of English courts is to attend to the objects and purposes of the mandates system, to
avoid "a quibbling interpretation" and "a merely pedantic adherence to particular words", "to
discover and to give effect to all the beneficent intentions" embodied in the instrument (The
Blonde[40]). Lord Sumner stated the principle of approach not only with eloquence but with
authority. I think that the courts of the mandatory power in particular should never overlook the
supreme significance of the international duties and obligations which such power has assumed, not
only towards other members of the League of Nations but also towards ex-enemy powers who, prior
to the War of 1914-1919, possessed absolute sovereignty over the mandated territories. So long ago
as 1921, one authority referring to the mandatory system pronounced the warning that if the words
"a sacred trust for civilization are to be ignored then the mandatory system is a fraud from
beginning to end, merely a new method of imposing imperialistic will upon subject people" (The
Mandate for Mesopotamia, by Lee (1921), p. 17).

In a previous discussion of the status of New Guinea from the point of view of international law, I
suggested that it was unnecessary to make dangerous generalizations as to sovereignty over or in
relation to territory, and that it was far preferable to consider each question of power and
jurisdiction as a particular problem (The British Dominions as Mandatories, vol. 1, A.N.Z.I.L., p.
27). But such a course cannot be followed in relation to Australia's constitutional system which is
part of municipal as distinct from international law. Further, the municipal courts cannot possibly
ignore the questions of international law which are incidentally involved in the determination of the
status of a mandated territory, and, as the Privy Council case of Croft v. Dunphy[41] illustrates, there
is often a very close relationship between the two.

The interaction of questions of municipal and international law is well shown in the case of R. v.
Crewe (Earl); Ex parte Sekgome[42], where the English Court of Appeal was called upon to
consider the status of the Bechuanaland Protectorate. The affidavit of the Secretary of State for the
Colonies stated that the Protectorate

was a foreign country within which His Majesty had power and jurisdiction by treaty, grant, usage,
sufferance or other lawful means, within the meaning of the Foreign Jurisdiction Act 1890, and the
territory of the Protectorate was foreign territory under His Majesty's protection; that it had never
been acquired by settlement, or ceded to, or conquered, or annexed by His Majesty or any of his
Royal predecessors, nor had His Majesty or any of his Royal predecessors recognized the same as,
nor was it, part of his dominions but he had power and jurisdiction within the same[43].

One question was whether the Protectorate was a "foreign dominion of the Crown" within the
meaning of the Habeas Corpus Act 1862, which precluded the issuing of a writ of habeas by an
English court "into any colony or foreign dominion of the Crown where Her Majesty has a lawfully
established court or courts of justice having authority to grant and issue the said writ." Vaughan
Williams and Kennedy L.JJ. held that the Protectorate was not a "foreign dominion of the Crown."
Vaughan Williams L.J. said that the prohibition of the issue of a writ of habeas corpus applied "only
to the territorial dominions of the Crown," the word "dominion" meaning "territorial dominion, and
not dominion in the sense of power"[44]. He added that "Bechuanaland Protectorate is under His
Majesty's dominion in the sense of power and jurisdiction, but is not under his dominion in the
sense of territorial dominion"[45]. Vaughan Williams L.J. then dealt with the interpretation of the
Foreign Jurisdiction Act 1890, stating that the expression "out of Her Majesty's dominions" in the
Foreign Jurisdiction Act meant "outside Her Majesty's territory"[46]. The last observation is
particularly appropriate to the case of the Mandated Territory.

Kennedy L.J. pointed out that "the protected country remains in regard to the protecting State a
foreign country; and, this being so, the inhabitants of a protectorate, whether native born or
immigrant settlers, do not by virtue of the relationship between the protecting and the protected
State become subjects of the protecting State"[47].

The above observations are applicable to the Mandated Territory of New Guinea.

The decision of the Court of Appeal was approved by the Privy Council in the case of Sobhuza II. v.
Miller[48]. The relevance to the present case of the principles it lays down is obvious. It is quite
fallacious to infer from the fact that in pursuance of its international duties under the mandate the
Commonwealth of Australia exercises full and complete jurisdiction over the territory as though it
possessed unlimited sovereignty therein, either that the territory (a) is a British possession, or (b) is
within the King's dominions, or (c) has ever been assimilated or incorporated within the
Commonwealth or its territories.

In the case of Jolley v. Mainka[49] I gave reasons for the conclusion that the Mandated Territory of
New Guinea is "not part of, but outside, His Majesty's dominions". The decision of the Privy
Council in Jerusalem-Jaffa District Governor v. Suleiman Murra[50] is also based upon the
conclusion that the mandated territory there in question is not within the King's dominions although
the mandate under consideration belonged not to class "C" but to class "A." In their recent work on
Constitutional Law, Wade and Phillips said that "mandated territories are not part of the British
dominions. They are former enemy colonies, the administration of which is entrusted to the British
Crown by the League of Nations which supervises the carrying out of the mandates by means of a
Permanent Mandates Commission" (p. 377). In another work Keir and Lawson distinguish between
various territories including "mandated territories which, though subject in a greater or less degree
to its control, are not in the strictest sense annexed to its dominions, and the dominions and Crown
colonies, which are integral parts of the Empire" (p. 405).

Therefore it can be stated that despite certain differences of opinion as to such questions as
sovereignty in relation to the mandated territories, every recognized authority on international law
accepts the view that the Mandated Territory of New Guinea is not part of the King's dominions.
Over and over again this fact has been recognized by the leading jurists of Europe including many
who have closely analyzed such matters in relation to the organization and administration of the
League of Nations.

III.

Australian Interpretation.--The one exception of the whole current of authority is the judgment of
Isaacs J. in Mainka v. Custodian of Expropriated Property[51], where it was asserted that the
Mandated Territory of New Guinea is territory "belonging to the King in right of the
Commonwealth of Australia." But the assertion that the Mandated Territory is portion of the King's
dominions--for I cannot understand how it can belong "to the King in right of the Commonwealth
of Australia" unless it is part and parcel of the King's dominions--is quite opposed to all recognized
authority in international law. If this conclusion of Isaacs J. cannot be supported, it at once suggests
itself that the reason upon which the conclusion is based needs re-examination.

Isaacs J. seems to have impliedly accepted the theory that sovereignty over and in relation to the
mandated territory is vested in the mandatory power. But, as Bentwich has said, the Permanent
Mandates Commission, the organ of the League of Nations, has acted upon "the governing principle
that sovereignty has not been acquired and has seen to it that the principle is honoured" (The
Mandates System, p. 20).

This supervision by the Permanent Mandates Commission is of significance, for that body

has been constantly at pains to maintain the character of a trust on behalf of the League of Nations
which characterises the B. and C. mandates, and to call in question any assertion of sovereignty over
the mandated territory which may slip into any document or instrument issued by the mandatory.
Thus when it was stated in the preamble to a treaty made in 1926 between the Union of South
Africa and Portugal that the Government of the Union of South Africa "subject to the terms of the
mandate, possesses sovereignty over the territory of South West Africa" a question was raised by the
commission. The Union of South Africa did not at first satisfy the comment of the Commission, and
the question was raised a second time when the report of the territory was considered by the
Permanent Mandates Commission in 1927; and the distinction between territories under sovereignty
and territories subject to a mandate was emphasized (Bentwich, The Mandates System, p. 96).

The disputes between the Permanent Mandates Commission and the Union of South Africa were
satisfactorily settled, the result being that "the commission has gained its point which, though it may
appear formal, involves a principle of great importance" (British Year Book of International Law
(1931), p. 151).

Dealing with the proposal of South Africa to assimilate or incorporate the Mandated Territory of
South West Africa into the Union as a fifth province thereof it has been said:--

The definite purpose of the Union Government is to erect South West Africa into a fifth province of
the Union which would mean definitely a complete assimilation of native policy to that in the
Union, which now adopts the principle of a colour bar excluding natives from skilled work. It is
clear that such unification would run counter to the terms of the mandate, and that strictly speaking
it should be possible only if the mandated territory is first advanced to the rank of freedom from
mandate. Whether it would be possible to achieve a position in which the League could hold that it
could thus abandon the purpose of advancing native interests by the mandatory system must remain
undecided but clearly any such result would be unjust to Germany, which was deprived of South
West Africa on the plea that her administration there subjected the natives in the interest of the
Europeans, a policy not in essentials different from that of the Union Government of 1928
(Wheaton's Elements of International Law, 6th ed. (1929) (Keith), vol. 1, p. 110.)

Similarly, in regard to the question of treaties, Professor Keith states that "as mandated territories
are not colonial possessions, treaties made by the mandatories do not apply to them save if that is
specially mentioned" (Wheaton's Elements of International Law, 6th ed. (1929) (Keith), vol. 1, p.
110).
Professor Wright pointed out in this connection that the Council of the League has recognized that
as a consequence of the mandatories' want of sovereignty the latters' treaties do not automatically
extend to mandated territory (Mandates under the League of Nations, p. 449).

The question of the national status of the inhabitants of mandated territories was determined by the
Council of the League of Nations in April 1923 in accordance with the following four principles:--

1.

The status of the native inhabitants of a mandated territory is distinct from that of the nationals of
the mandatory power and cannot be identified therewith by any process having general application.

2.

The native inhabitants of a mandated territory are not invested with the nationality of the mandatory
power by reason of the protection extended to them.

3.

It is not inconsistent with paragraphs 1 and 2 above that individual inhabitants of the mandated
territory should voluntarily obtain naturalisation from the mandatory power in accordance with the
arrangements which it is open to such power to make, with this object, under its own law.

4.

It is desirable that native inhabitants who receive the protection of the mandatory power should in
each case be designated by some form of descriptive title which will specify their status under the
mandate.

Amazing cynicism has been employed by Dr. Baty, who characterizes art. 22 of the Treaty of
Versailles as a page out of "a University extension lecture" (British Year Book of International Law
(1921-1922), p. 119).

But can it be doubted that the general principle of the mandate is reasonably plain? According to
Brierly, the trust is the governing principle of the new institution of the mandate (British Year Book
of International Law (1929), p. 217). Brierly quotes from an account of the conception of the
private trust adopted by M. Pierre Lepaulle, who adds that "the only possible theory is that the
rights of the trustee have their foundations in his obligations; they are tools given to him in order to
achieve the work assigned to him. The trustee gets all the tools necessary for such end, but only
those" (British Year Book of International Law (1929), pp. 218, 219).

The view of Corbett quoted by me in Jolley v. Mainka[52] is that the mandated territory is "never to
be incorporated" within the territory of the mandatory power (British Year Book of International
Law (1924), p. 135). If so, the phrase in art. 22 of the treaty "as integral portions of its territory"
suggests that "as" is an equivalent of "as it were." The accepted conclusion as to the nationality of
the native inhabitants shows clearly that the territory is no part of the territory of the mandatory
power, and the conclusion is quite consistent with the provision in art. 127 of the Treaty of
Versailles, by which the inhabitants must be accorded the diplomatic protection of the mandatories.
The accepted position as to the binding effect of treaties and the proprietary rights of the mandatory
power also illustrates the same general principle. Under sec. 122 of the Commonwealth
Constitution, the territories proper of the Commonwealth are regarded as being on the road to a
closer and more intimate relationship with the Commonwealth constitutional organization. But so
far as concerns alteration in the status of a mandated territory, Professor Wright states:--

Thus it appears that the only probable manner of changing the status of a mandated territory is
through action of the League by amending article 22 by admitting a mandatory community to its
membership or by otherwise recognizing the latter's independence. Thus the League of Nations
seems competent and alone competent to change the status of territories now under Article 22
(Wright, Mandates under the League of Nations, pp. 505, 506).

I shall make only one further quotation from the long list of writers on international law who have
discussed this matter, viz., van Maanen-Helmer, who says: "The mandated territories do not belong
to the mandatory powers" (The Mandate System, p. 106).

As a matter of international law it would seem to be fairly clear that, in relation to the Mandated
Territory, Australia is given so much power and jurisdiction as is necessary for her to govern the
territory. The power and jurisdiction is ample, but the supreme principle is that Australia is unable
to treat the territories as part of its own dominions, but is subject to international duties of an
onerous kind including the duties of not attempting to alter or derogate from the status of the
territory under mandate. Except for the case of Mainka v. Custodian of Expropriated Property[53] it
follows that sec. 51 (xxix.) is the appropriate source of the Commonwealth's legislative power to
arm itself with sufficient authority to enable it to fulfil its international duties in relation to New
Guinea. If, for instance, all the nations concerned agreed that certain islands in the Pacific should be
internationalized, but that the Commonwealth should act as the sole authority to administer the area,
so that no suggestion could be made that such islands were Commonwealth territories properly so
called, the legislative power included by sec. 51 (xxix.) would, in my opinion, be ample to authorize
Commonwealth legislation for the purpose of giving effect to the system of international rights and
duties. Thus the Commonwealth has sufficient power, not only internationally to undertake the
performance of international duties, but constitutionally to arm itself with power to carry out those
duties.

IV.

Analysis of sec. 122.--I cannot understand why it is desired or how it is possible to have recourse to
sec. 122 of the Constitution as the foundation of the Commonwealth's legislative authority in
relation to the Mandated Territory. Sec. 122 enables the Parliament to make laws for the
government of three classes of territories. The first class consists of territories surrendered by a
State to, and accepted by, the Commonwealth. Obviously such territory will be portion of the King's
dominions, i.e., a British possession. The second class consists of territories placed by the King
under the authority of, and accepted by the Commonwealth. Presumably this refers to a territory the
disposition of which is in the King's power, because the legal act of the Commonwealth which is
contemplated is indicated by the very words "accepted by" which, in the case of a territory
surrendered by a State, refer unambiguously to incorporation within the territorial possessions of the
Commonwealth. That the Mandated Territory of New Guinea does not come within the second class
seems to me to be proved inferentially but clearly by the fact that it is not, and is now admitted not
to be, any part of the King's dominions, possessions or territories. Further, it is not possible to apply
the words used in the second part of sec. 122 to the acts-in-law which took place in relation to the
Mandated Territory of New Guinea. In Mainka v. Custodian of Expropriated Property[54], Isaacs J.
said that "the mandate was made on 17th December 1920." But the authority issuing the mandate
over New Guinea was the Council of the League of Nations and the recitals showed clearly that the
authority accepting the mandate was the King "to be exercised on his behalf by the Government of
the Commonwealth of Australia." Isaacs J. says that the Treaty of Peace Act 1919 was the relevant
authority for the "acceptance of the mandate by His Majesty"[55]. But the Imperial Act of 1919
merely authorizes measures for the carrying out by the King of the terms of the Treaty of Versailles,
and it has no bearing upon the legal authority either for accepting the mandate or governing the
territory. No Order in Council has ever been issued under the Act in relation to the Mandated
Territory of New Guinea. Indeed, the Treaty of Versailles made no provision for nomination of a
specified mandatory power, the intention being that such function should be performed subsequently
by the League of Nations. The irrelevance of the Treaty of Peace Act was fully appreciated by Sir
John Salmond, then legal adviser to the Government of New Zealand, which based the Government
by New Zealand as mandatory power over Western Samoa upon the Foreign Jurisdiction Act 1890,
an Order in Council duly issuing thereunder. If the second portion of sec. 122 of the constitution
was applicable to the territory it should be possible immediately to answer the questions: (a) when
did the King obtain his primary authority over New Guinea? (b) when did the King place the
territory under the authority of the Commonwealth? and (c) when did the Commonwealth accept
such territory from the King? Such questions have not been answered and, in my opinion, they are
unanswerable, because no legal transactions of the character mentioned by the second part of sec.
122 ever occurred. The New Guinea Act correctly assigns the authority of the Commonwealth over
the territories to the action of the Principal Allied and Associated Powers in nominating it as
mandatory, and sec. 5 of the Act gives statutory authority to the Governor-General not to accept the
territory from the hands of the King but to accept the mandate so soon as it issued to the
Commonwealth from the Council of the League of Nations. In other words, the greatest care was
taken by the Commonwealth advisers to protect the international status of the Commonwealth as
such and to this end the King, acting through his Commonwealth Ministers, accepted the mandate
directly from those who in the eyes of international law had power to grant it. The process adopted
also avoids any basis for the suggestion that in the first place the King, acting through his advisers at
Westminster, became the mandatory power and subsequently, or even simultaneously, the King
placed the Mandated Territory under the authority of the Commonwealth. All the documents show
that whatever authority was obtained by the Commonwealth in relation to New Guinea was by
original grant to itself (the Commonwealth being of course identified with the King in right of the
Commonwealth). It would have been entirely inconsistent with the new status of the
Commonwealth if its right or title or claim to govern was regarded as derivative from the King
acting through his advisers at Westminster.

The above analysis may at first sight appear to be of technical importance only, but it is vital to our
constitutional system that absolute precision on these matters should be maintained. It will be
dangerous to hold that, somehow or other, when and by what means it is impossible to say, sec. 122
picked up the Mandated Territory within its grasp. It is a fundamental part of the British
constitutional system that acts-in-law of the King of the kind mentioned in sec. 122 can be
immediately ascertained and the day on which the act takes place can never be left to speculation.

The third and last portion of sec. 122 refers to territories "otherwise acquired by the
Commonwealth." It is to this part of sec. 122 that the judgment of Isaacs J. in Mainka v. Custodian
of Expropriated Property[56] assigns the status of the Mandated Territory, i.e., it is "territory
belonging to the King in right of the Commonwealth of Australia." Presumably, therefore, it is
territory "otherwise acquired by the Commonwealth." Of course it is theoretically possible to apply
a definition of "acquisition" which is sufficiently wide to include the Mandated Territory. But
"acquisition" in relation to territorial additions or gains usually denotes that the authority acquiring
possesses full territorial dominion. In internationallaw, "acquisition", in relation to the territory and
boundaries of a State, is practically a term of art and there are well-ascertained methods of acquiring
such territory. Further, sec. 122 strongly suggests that the territories acquired by the Commonwealth
have become part and parcel of the King's territorial possessions and dominions, i.e., a portion of his
Empire.

For my part it is impossible to believe that the acceptance by the mandatory power of its
international trust--"sacred trust"--in the interests of those who are "not yet" able to stand by
themselves in the modern world is to be regarded as a new mode of "acquisition" of territory by the
mandatory power. I think that it is not right for the courts of the mandatory power to hold that the
very evil which it was the object of the mandatory system to prevent, namely, acquisition by means
of cession or annexation, has been achieved by the terms of the mandate. In my view, the terms of
the mandate entirely contradict the idea of acquisition, cession or annexation.

Any doubt as to whether the Mandated Territory of New Guinea can be treated as a territory within
the meaning of sec. 122 of the Constitution seems to me to be resolved by the fact that sec. 122
postulates that any and every territory included within it may be accorded representation in either
house of the Parliament. Thus, if it is a territory proper, the Commonwealth may allow it
representation within the framework of the Commonwealth parliamentary system to the extent and
on the terms which Parliament thinks proper. Admittedly, the territory is not within the King's
dominions, so that birth within the territory does not create the status of British subject. Yet, by sec.
42 of the Constitution, every member of each house must take an oath or affirmation of allegiance
to the King. I should have thought that this fact is in itself sufficient to demonstrate that all
territories which are governed under sec. 122 alone must necessarily be British possessions and part
and parcel of the King's dominions.

Further, even by the court which decided it, the case of Mainka v. Custodian of Expropriated
Property[57] has not been regarded as accurately defining the constitutional status of the Mandated
Territory. Thus, Isaacs J. expressly held that the Central Court was a Federal court within the strict
meaning of sec. 73 of the Constitution[58]. Subsequently, in Porter v. The King; Ex parte Yee[59],
Isaacs J. does not recede from this position, but he stresses his own opinion that the Central Court
of the Mandated Territory was regarded as a Federal court "not by reason of Commonwealth
legislation simply--as in this case--but because of the effect of the Imperial Act, authorizing the
mandate as expressed and therefore treating the Territory as an integral portion of the
Commonwealth"[60]. But in the same case Starke J., who had expressed agreement with Isaacs J. in
Mainka v. Custodian of Expropriated Property[61], declared that there were "some incautious
expressions" used in the judgment in that case[62]; and he said that the appeal to the High Court
from the Central Court of the Mandated Territory was not based upon sec. 73 of the Constitution,
holding that the government of the Territory of New Guinea was organized under the New Guinea
Act "coupled with the Treaty of Peace, the mandate and the Imperial Act, 9 & 10 Geo. V. c. 33."

Accordingly one is necessarily left in some doubt as to the precise basis upon which the court in
Mainka's Case[63] decided in favour of the jurisdiction of the High Court to hear an appeal from
the Central Court of the Territory of New Guinea, that being the only question in the case which
involved any consideration of the constitutional status of the Territory. At any rate, two of the three
justices who had decided Mainka's Case[64] agreed that sec. 122 could not be regarded as
constituting the sole basis for the constitutional government of the Territory, and each called in aid
an Imperial statute, though for very different purposes. Similarly, none of the judges who decided
Jolley v. Mainka[65] regard sec. 122 as the sole source of the constitutional power of the
Commonwealth to accept the mandate.

V.

The Argument of Inconvenience.--It may not be necessary for this court to determine finally
whether the Mandated Territory is a territory within the meaning of sec. 122 of the Constitution
until an attempt is made (if ever it is) to give it representation in the Parliament. For the reasons
which I have given here and elsewhere, I am satisfied that in sec. 51 (xxix.), the "external affairs,"
lies the source of the Commonwealth legislative power, and that this source is at least as ample as
that which is available if sec. 122 alone is applied. But, during the present case, it has been
suggested that if sec. 51 (xxix.) of the Constitution was the source of the power, several decisions of
this court as to the territories either could not or might not be deemed applicable to the Mandated
Territory.

The argument of inconvenience is sometimes weighty, but a careful consideration of the three cases
mentioned will show that they have a very remote bearing upon the question whether sec. 51 (xxix.)
authorizes the exercise of legislative power in relation to the Mandated Territory. In Buchanan v.
The Commonwealth[66], the court was concerned with a territory proper, the Northern Territory. It
was held that sec. 55 of the Constitution, which provides that laws imposing taxation shall deal only
with the imposition of taxation, did not affect the operation of the Commonwealth Act which made
provision for the acceptance and general government of the Northern Territory and which
incidentally imposed certain taxation. But Buchanan's Case[67] affords no support for the argument
that, if legislative power to govern New Guinea under the mandate is to be assigned to the "external
affairs" power of the Commonwealth, sec. 55 would or might invalidate general laws imposing
taxation in a similar way. The fact that sec. 55 does not apply to taxation laws applying solely within
a territory proper does not prove that it does apply to taxation laws imposed in a non-British
territory by virtue of sec. 51 (xxix.). Indeed, in Buchanan's Case[68], Barton J. emphasized the fact
that sec. 51 (ii.) of the Constitution and inferentially sec. 55 also related to laws of taxation
applicable only within that part of the Commonwealth which comprised the six States. Obviously,
this reasoning would result in a similar decision being pronounced in the case of the Mandated
Territory, although its government rests upon sec. 51 (xxix.).

In R. v. Bernasconi[69] it was held that sec. 80 of the Constitution which requires a trial on
indictment of any offence against any law of the Commonwealth to be by jury, has no application to
offences committed within a territory proper (i.e., under sec. 122). The case related only to a
territory proper, viz., Papua. Griffith C.J. made some general observations as to chapter III. of the
Constitution (dealing with the judicature) considering that such chapter could have no application
whatever to the territories comprised within sec. 122.

Bernasconi's Case[70] gives rise to several comments. It cannot be denied that the constitutional
guarantee contained in sec. 80 has been construed so narrowly that it has become very easy to evade
the principles it was intended to safeguard (See R. v. Archdall & Roskruge; Ex parte Carrigan and
Brown[71]). It seems to have escaped the attention of all concerned in Bernasconi's Case[72] that on
its very face sec. 80 postulates that the right of trial by jury extends to trials on indictment of
offences against Commonwealth laws, not only where the offences have been committed within any
State, but also where they have been committed outside these States. It would seem plain that the
latter group of offences must include offences committed within the Commonwealth's own
territories (properly so called). If so, sec. 80 must be regarded as being applicable to such territories
in relation to offences against any "law of the Commonwealth." If Bernasconi's Case[73] is to be
regarded as deciding that, for the purposes of sec. 80, a "law of the Commonwealth" does not
include a law applicable only to a territory, such reasoning will apply, at least equally, to the
legislative power exercised under sec. 51 (xxix.) solely in relation to the Mandated Territory. If, on
the other hand, a "law of the Commonwealth" does include a law passed under sec. 122 though
relating solely to a territory proper, Bernasconi's Case[74] was wrongly decided and, the at first
sight surprising generalization that no part of chapter III. of the Constitution can have any
application to territories under sec. 122 is destroyed. Moreover, the result of the second hypothesis
might well be that sec. 80 applies in relation to the territories proper which are a definite part of the
Commonwealth's constitutional framework but not in relation to places outside the King's
dominions which are governed solely as the result of the Commonwealth's performing some
international duty, where such duty may be terminated by subsequent international arrangement and
where the inhabitants, not being subjects of the King, cannot be regarded as inheriting or otherwise
entitled to the benefits of British legal institutions and must discover their guaranteed rights in the
international instrument under which they are governed. In principle there is far less reason for
applying sec. 80 to a territory so governed than to the Commonwealth's own territories where
British institutions may be regarded as far more applicable.

Bernasconi's Case[75] need not be discussed further but I have said enough to show that it can
hardly be used with safety by those who would suggest that it is more convenient to assign the
Commonwealth's jurisdiction over the Mandated Territory to sec. 122 rather than to sec. 51 (xxix.).

In Porter's Case[76] a minority of the court held that the legislative power of the Commonwealth in
relation to the territories proper being based solely on sec. 122, cannot be used to impose upon the
High Court any duty to hear an appeal from the courts of the territories. But the majority held that,
under sec. 122, the High Court can be given jurisdiction to entertain an appeal from the Supreme
Court of the Northern Territory, although the latter is not a Federal court within the meaning of sec.
71 of the Constitution.

Higgins J. put the point very clearly when he stated that sec. 73 is not the sole and exclusive
measure of the appellate jurisdiction of the High Court[77], but the decision does not assist the
argument that it is only by resort to sec. 122 that the appellate jurisdiction of this court from courts
of the Mandated Territory can be supported.

Isaacs J., who wrote the judgment in Mainka v. Custodian of Expropriated Property[78], does not
regard such appellate jurisdiction as resting upon sec. 122. The minority in Porter's Case[79]
thought that it was sec. 122 which created the difficulty. There is probably less, and certainly no
greater, difficulty involved if the Commonwealth's legislative jurisdiction over the Mandated
Territory rests on sec. 51 (xxix.).

VI.

--Applicability of Fugitive Offenders Act.--On October 12th 1925, the King made two Orders in
Council under the Fugitive Offenders Act 1881. By the first Order it was provided that the Act
should apply to New Guinea and Nauru "as if those territories were British possessions." This Order
in Council was authorized by sec. 36 of the Act which expressly enables His Majesty by Order in
Council to direct that the Act should apply as if any place out of His Majesty's dominions in which
His Majesty has jurisdiction were a British possession.

On the same day, a second Order in Council, conveniently called a "grouping Order," was made
pursuant to sec. 12 of the Act. It directed that Part II. of the Fugitive Offenders Act should apply as
between the group of British possessions and other places named in the Order. The places included,
inter alia, the Commonwealth of Australia, New Zealand and the Mandated Territory of New
Guinea. The appellant contends that inasmuch as sec. 39 of the Act so defines the phrase "British
possession" that all territories and places within the King's dominions "which are under one
legislature" shall be deemed to be one British possession--and, as the Parliament of the
Commonwealth admittedly exercises a legislative jurisdiction over the Mandated Territory of New
Guinea as well as over the Commonwealth, the Commonwealth and the Mandated Territory are to
be regarded for all the purposes of the Act, including sec. 12, as one British possession and one part
of the King's dominions; therefore the grouping Order which treats the Commonwealth and the
Mandated Territory as separate places or possessions, is invalid, to that extent at least.

I am of opinion that this argument is fallacious. In the first place the analysis which has been made
both here and in Jolley v. Mainka[80] shows that the Mandated Territory is a place out of the King's
dominions in which the King has jurisdiction. Therefore the first Order in Council was validly made
under sec. 36. Undoubtedly the effect of making such Order in Council is that the Act applies to the
Mandated Territory as if, contrary to the fact, it were a British possession. The second Order in
Council is authorized by sec. 12 and it treats the Mandated Territory as if it were a British
possession separate from the Commonwealth of Australia. But the interpretation section so far as it
defines "British possession" confines itself to "British possession" proper. The appellant suggests
that, as New Guinea is to be deemed a British possession by virtue of sec. 36, therefore the
interpretation section has to be applied as if it were and also had been a British possession and
portion of the King's dominions. But in defining "British possession," the interpretation section (sec.
39) must be regarded as speaking in advance of all other provisions in the Act. As a consequence
sec. 39 makes it not only possible, but necessary, to write down in advance of all attempts to
interpret the Act a list of all places which are deemed included in the connotation "British
possession." Thus, the Dominion of New Zealand is such a possession, and, but for the qualification
as to places under the one legislature, each State of the Commonwealth would be a separate
possession. As a result, the definition of "British possession" makes it necessary to treat as a unit
various British possessions which are governed by one legislature, even if only so governed for
limited purposes. But it is obvious that the Mandated Territory would not be included in such a list,
and it is only, so to speak, subsequently, and as a result of sec. 36, that it is treated as a British
possession at all.

The effect of sec. 36 is to treat a place outside the King's dominions as one separate and independent
unit for the purposes of the Act. In the present case, the incidental or accidental fact that the agency
by which the King exercises jurisdiction over New Guinea is the King's Commonwealth does not
result in the inclusion of New Guinea among the list of British possessions which is fixed and
predetermined as a result of sec. 39.

The result is that the Fugitive Offenders Act was available and applicable to the return of the
appellant to the Mandated Territory from the Commonwealth of Australia.

VII.
Validity of the Service and Execution of Process Act, secs. 28 (1) (b) and 28 (1A).--It being
established that the Mandated Territory is a place outside the British Empire and outside the
Commonwealth itself, the part of the Service and Execution of Process Act which is now challenged
by the appellant provides for the mutual rendition of fugitive offenders between the Commonwealth
and the Territory. Why are not such provisions, so far as they provide for constraint within the
Commonwealth and the States, to be regarded as laws for the good government of the
Commonwealth in respect of "external affairs" (sec. 51 (xxix.))? That subject matter is an extremely
wide one. Even the narrowest interpretation of it would include arrangements for the mutual
execution of process as between the Commonwealth and countries external to it. The Mandated
Territory being such a country, it would seem to be quite immaterial that it is the Commonwealth
Parliament which happens to have legislative jurisdiction within the borders of the Mandated
Territory itself. Obviously, the Commonwealth can provide for mutual rendition as between itself
and any other territory under mandate, e.g., Western Samoa, and also as between such territory
under mandate and New Guinea. It would be passing strange if it could not act similarly as between
itself and New Guinea. If such a legislative jurisdiction is lawful it is very conveniently exercised by
applying as between the Territory and the Commonwealth such provisions as are identical with, or
analogous to, those in force as between the States proper.

VIII.

Decision of the Privy Council.--So far as can be ascertained, the only reason for the Supreme Court's
denying such legislative power under sec. 51 (xxix.) lay in the suggestion of the appellant that the
recent decision of the Privy Council in Attorney-General for Canada v. Attorney-General for
Ontario[81] may possibly be regarded as requiring some qualification of this court's recent
judgment in R. v. Burgess; Ex parte Henry[82]. But such an argument depends upon a failure to note
the important differences between the Constitutions of Canada and of Australia. Unquestionably, the
recent decision of the Privy Council in the case of the Labour Conventions (Attorney-General for
Canada v. Attorney-General for Ontario[83]) is not only quite consistent with R. v. Burgess; Ex parte
Henry[84] but strongly supports it. In R. v. Burgess; Ex parte Henry[85], McTiernan J. and I
expressed our definite opinion that, in pursuance of its powers to legislate in respect of "external
affairs," the Commonwealth Parliament is endowed with authority to pass laws giving effect to
treaties and conventions without reference to the State parliaments, provided that such
Commonwealth laws are made for the purpose of carrying out the terms of the International Treaty
or Convention which has been ratified by the Commonwealth Executive. The question being one of
fundamental principle we stated our views elaborately, holding that if power exists to carry out the
Air Convention it exists equally to carry out the International Labor Conventions made within the
framework of the International Labor Organization. Latham C.J.[86] gave an impressive list of
subjects--including labour matters--as to which the Commonwealth had become a party to
conventions and treaties, and in relation to all of which the Commonwealth Parliament had
undoubted power to pass legislation which will effectively carry into law throughout Australia the
terms of the conventions.

In its recent decision the Privy Council[87] denied the right of the Parliament of the Dominion of
Canada to pass laws for the purpose of carrying out certain international labor conventions
throughout Canada unless the subject matter of the conventions was otherwise within the
competence of the Dominion Parliament as a subject already specified in sec. 91 of the Canadian
Constitution. But it is necessary to understand the method by which the court reached this
conclusion. Under the Canadian Constitution the subject of legislating for the performance of treaty
obligations is dealt with by a special section, viz., sec. 132, which is entirely separate from sec. 91,
dealing with the general powers of the Dominion Parliament. By the very terms of sec. 132 the
power of the Dominion Parliament to legislate for the carrying out of treaty obligations is confined
to those obligations which bind Canada as a part of the British Empire. It does not extend to the
obligations of Canada entered into upon its own international responsibility. The Privy Council held
that the obligations entered into by the Dominion of Canada to carry out certain of the Labour
Conventions, although they were internationally binding on Canada, were

not obligations of Canada as part of the British Empire, but of Canada, by virtue of her new status
as an international person, and do not arise under a treaty between the British Empire and foreign
countries. This was clearly established by the decision in the Radio Case[88], and their Lordships do
not think that the proposition admits of any doubt[89].

Thus the judgment of the Privy Council shows that sec. 132 was worded too narrowly to include
within its scope treaties and conventions made by Canada otherwise than as portion of the Empire,
and that, although Canada is competent to act as a separate unit in international affairs, and so to
enter into treaties and conventions which bind her, sec. 132 is too rigid to permit of legislation to be
passed by the Dominion alone for the purpose of carrying out the obligations arising under such
treaties and conventions. It is to be noted that the labour conventions entered into by Canada were
not excluded from sec. 132 because their subject matter was outside the list of subjects ordinarily
within Dominion competence, but solely because of Canada's having entered into the conventions as
a separate and independent member of the International Labour Organization.

Sec. 91 of the Canadian Constitution was also relied upon by those affirming the competence of the
Dominion Parliament, but that section gives the central authority no power to pass "treaty legislation
as such"[90]. Indeed, the very fact that sec. 132 was concerned with legislation to carry out treaty
obligations of a specified character suggested that there alone was to be found the full expression of
the Dominion Parliament's jurisdiction over "treaty legislation as such."

Under the Commonwealth Constitution the legal position is quite different and distinct. Owing to
the recognition between the years 1867 (when the Canadian Constitution was accepted) and 1901 of
the growing importance and self dependence of the dominions in relation to treaties and
conventions, the Australian Constitution included among the specific list of subject matters assigned
to the Commonwealth the subject of "external affairs," a phrase which embraces imperial and inter-
dominion and foreign affairs. It is most fortunate that the subject matter was mentioned so broadly,
because, owing to the phraseology adopted in sec. 132 of the Canadian Constitution, the power of
Canada to carry out its international obligations has been held to be so seriously impeded that,
unless Canada deliberately chooses to confine her treaty activities to cases where she will act as part
of the Empire, it will often be necessary to obtain provincial, as well as Dominion, legislation to
make such treaties fully binding throughout Canada. Providing, however, that Canada accepts
international obligations as part of the Empire, sec. 132 imposes no restrictions whatever upon the
subject matters to which such obligations may relate. They may include labour and industrial
matters, and conventions as to such matters may be carried into full force throughout Canada by
virtue of sec. 132. Sec. 51 (xxix.) is the authority possessed by the Commonwealth Parliament to
pass treaty legislation. Just as with sec. 132 of the Canadian Constitution, sec. 51 (xxix.) contains
no limitations as to the subject matter of such treaties. But, unlike sec. 132 of the Canadian
Constitution, sec. 51 (xxix.) cannot be limited to treaties entered into by Australia as part of the
Empire and necessarily extends to all treaties and conventions entered into by Australia "by virtue
of her new status as an international person," or otherwise. In the case of the Commonwealth treaty
obligations, the variety, both as to subject matter and of form of adherence is illustrated by the
documents quoted by Latham C.J. in R. v. Burgess; Ex parte Henry[91]. It is obvious that, if
Australia has power to give effect to any of the obligations bona fide entered into as an international
person, she has power to give effect to them all. The recent Privy Council decision (Attorney-
General for Canada v. Attorney-General for Ontario[92]) makes a contrary view impossible of
acceptance.

Further, the Air Navigation Case (R. v. Burgess; Ex parte Henry[93]) is sufficiently illustrative of
the principle that the Commonwealth, by virtue of sec. 51 (xxix.), has ample constitutional power to
legislate for the performance of its treaty obligations without any reference to the parliaments of the
States.

It has been suggested that the principle of R. v. Burgess; Ex parte Henry[94] may provide a method
of amending the Constitution without the approval of the people. But this is merely a rhetorical
statement. In R. v. Burgess; Ex parte Henry[95] Latham C.J., McTiernan J. and I also pointed out
that sec. 51 is subject to the Constitution, and no constitutional provisions and guarantees could be
set at nought by any legislation passed by the Commonwealth under sec. 51. One of the greatest
guarantees is sec. 128, which deals with constitutional amendments. It has to be remembered that
when, for instance, the Commonwealth enters into a convention as a member of the International
Labour Organization and ratifies the obligations specified therein, such obligations are binding in
international law, so that, when subsequently the Commonwealth passes legislation giving effect
throughout the Commonwealth to the convention, it is not "amending the constitution," but acting
strictly within it.

The mere fact that, by the carrying out of its international obligations, the Commonwealth
Parliament deals also with matters not otherwise included within the list of subjects of
Commonwealth legislative power, is nothing to the point. Similar results may occur as a result of
legislation with respect to most, if not all, of the subject matters specified in sec. 51. For instance, in
its Transport Workers Act, the Commonwealth Parliament has legislated in relation to transport
workers engaged in inter-State or overseas commerce by setting up a system of licensing and
preferential employment. The rhetorician will say, no doubt, that the Commonwealth is concerning
itself with labour matters which are not included within its general competence. But such labour
laws are perfectly valid, because they are in respect of inter-State and overseas commerce, and this
additional fact that they regulate to some extent the subject matter of labour and employment does
not destroy the validity of the legislation (Huddart Parker Ltd. v. The Commonwealth[96]).

Similarly, under its post office power, the Commonwealth Parliament can punish the publication by
means of the post of obscene or libellous communications. Generally speaking, the repression of
defamation and obscenity is a matter exclusively within State authority, but, none the less, the
Commonwealth laws are obviously valid as legislation dealing with a subject which is included
within Commonwealth power. Many other illustrations could be readily given, but these are
sufficient to show that the "external affairs" power of the Commonwealth is a great and independent
power, limited only by other express provisions of the Constitution and its own terms fairly
construed, not subject to the curious and fortuitous restriction which exists in Canada solely by
reason of the language employed in sec. 132 of its Constitution, and both available and necessary to
maintain and develop Australia's status as one of the nations of the world.
I am therefore of opinion that the recent Privy Council decision[97] conclusively supports the
validity of the principles stated in R. v. Burgess; Ex parte Henry[98], and that for the reasons
already advanced, sec. 28 (1A) of the Service and Execution of Process Act is a valid law under sec.
51 (xxix.).

IX.

Repugnancy between Fugitive Offenders Act 1881 (Imperial) and Service and Execution of Process
Act (Commonwealth).--Another question of importance which has arisen is whether there is a
repugnancy between (a) the Fugitive Offenders Act 1881 and the Orders in Council issued
thereunder, so far as they authorize the arrest and return to the Mandated Territory of New Guinea
of a person found within one of the States of the Commonwealth and (b) secs. 28 (1) (b) and 28
(1A) of the Service and Execution of Process Act and the regulations made thereunder, so far as they
authorize the arrest and return to the Mandated Territory of New Guinea of a person found within
any State of the Commonwealth. The question of repugnancy can only arise if it is previously
determined that sec. 28 (1) (b) and sec. 28 (1A) can validly be applied so as to authorize the
appellant's return to the Mandated Territory of New Guinea. For the reasons I have already given I
am of opinion that they can validly be applied, so that the question is whether by sec. 2 of the
Colonial Laws Validity Act 1865 the provisions of the Commonwealth law are repugnant to the
Fugitive Offenders Act 1881 and the Orders in Council made thereunder, so far as the two Acts
concerned themselves with the arrest and return of fugitives as between the Commonwealth and the
Mandated Territory.

In neither of the two courts where this case has previously been considered was any reference made
to the matter of repugnancy nor was the Colonial Laws Validity Act referred to even during the
course of argument before us. But the question has been raised, and it is of such importance that a
decision must be given upon it. Prior to the passing of the Colonial Laws Validity Act, the word
"repugnant" was frequently used so as to impose a restriction upon colonial legislatures, assemblies
or councils and the phrase "repugnant to the laws of England" plagued several generations of
colonial courts and lawyers. That "repugnance" in such a context was established rather by
dissimilarity than similarity of object, purpose or effect, is suggested by the observations contained
in a letter of Sir James Stephen, Under-Secretary of the Colonies, who said:--

Why bother yourself with that everlasting phrase "not repugnant to the laws of England"? What
does it mean? Has it any meaning? Then why did you, Mr. Counsel to the Colonial Department (you
will say) "bring it into the first New South Wales Act, and keep it in the second"? Why, in the first
place, that it might serve as a pons asinorum over which no colonial Crown lawyer should pass
without giving proof of more than asinine sagacity. Secondly, because it sounds highly
constitutional and decorous. Thirdly, because it may every now and then prevent some egregious
absurdity. This is indeed the correct interpretation of the phrase. Whatever is tyrannical or very
foolish you may safely call "repugnant," etc., but whatever is necessary for the comfort and good
government of the colony you may very safely assume to be in perfect harmony with English law
(Therry, "Reminiscences," p. 318).

Sir James Stephen's advice was not always followed, even by colonial courts, and in the case of the
Colony of South Australia what was called by the English law officers "the unfortunate disposition
... to favour technical objections against the validity of Acts of the colonial legislature" (McCawley
v. The King[99]) was partly responsible for the passage into law of the Colonial Laws Validity Act.
The preamble of the Act recited the fact that doubts had been entertained as to the validity of divers
laws passed by the legislatures of certain of the colonies. Accordingly, sec. 3 provided that no
colonial law should be deemed to be void on the ground of repugnancy to the laws of England,
unless it was repugnant to the provisions of an Imperial Act, order or regulation. The Act was
referred to as the charter of the legislative independence for the colonies, Lord Birkenhead
suggesting that it is "in Imperial history clarum et venerabile nomen" (McCawley v. The King[100]).
But a section preserved the supremacy of the Imperial legislative authority, and that supremacy has
remained unimpaired until the passing of the Statute of Westminster 1931, which has not yet been
adopted by the Parliament of the Commonwealth, although it has been adopted in Canada, South
Africa and in the Irish Free State. Sec. 2 of the Colonial Laws Validity Act requires that any colonial
enactment which is repugnant to an Imperial Act, order or regulation shall be "read subject to such
Act order or regulation," so that the colonial law, if repugnant to the Imperial law, is void "to the
extent of such repugnancy but not otherwise." In Union Steamship Co. of New Zealand Ltd. v. The
Commonwealth[101] Higgins J. emphasized the significance of the words "to the extent of such
repugnancy but not otherwise" as importing an implied grant of power to the colonial enactments
"even where they deal with matters dealt with by a British Act extending to the colony; for the
colonial Act is to be valid except to the extent of any actual repugnancy or direct collision between
the two sets of provisions. Such a concession on the part of the supreme Parliament marks a very
high level of liberality, foresight, statesmanship"[102].

An analogous provision to the Colonial Laws Validity Act is sec. 109 of the Commonwealth
Constitution which allows a valid law of the Commonwealth to prevail over a valid law of the State
which is inconsistent with the former law but only "to the extent of the inconsistency."

To the impressive general observations of Higgins J. may be added the further comment that the
colonial law in the case of the Colonial Laws Validity Act sec. 2 and the State law in connexion with
sec. 109 of the Commonwealth Constitution being only invalidated pro tanto, it may be the duty of
the court to see if it is possible to compare the two enactments, so to speak, quantitatively, in order
that what is excessive or contradictory in the colonial enactment--and nothing more--shall be
deemed void.

In the cases of Stock Motor Ploughs Ltd. v. Forsyth[103] and West v. Commissioner of Taxation
(N.S.W.)[104] I expressed an opinion to the effect that the application of sec. 109 of the Constitution
to State Acts must be attended with great care, and that the tendency to give a too extended meaning
to the word "inconsistency" should be resisted. In relation to the theory that the State law can be
invalidated although the Commonwealth law does not directly conflict with it but is said to "cover
the field," I endeavoured to show the danger and ambiguity of such an expression[105].

Despite certain expressions used in the judgments of this court in Union Steamship Co. of New
Zealand Ltd. v. The Commonwealth[106], I am of opinion that, under sec. 2 of the Colonial Laws
Validity Act, a similar danger exists, both in declaring and measuring "repugnancy" between an
Imperial and the colonial Act.

What is the precise conflict or opposition between two statutes which we have here to consider?
There are discrepancies or differences in the method of procedure required by the two statutes. For
instance, under sec. 19 of the Fugitive Offenders Act, a person may be discharged if it is made to
appear that it would "be unjust or oppressive or too severe a punishment to return the prisoner." On
the other hand, under sec. 18 (4) of the Service and Execution of Process Act, the justice or judge
may discharge the person concerned, either on a number of grounds specified, or because he is
satisfied that "for any reason it would be unjust or oppressive" to order a return. Although there is a
striking parallelism between the two provisions, there are some differences in terminology, and, as a
matter of legal possibility, if action is taken under one Act the fugitive offender may be discharged,
whereas if action is taken under the other he may be returned. Further, the rights of appeal against
an order for return are not identical and, under the Australian judicial system, one of the
consequences of employing a Federal Act is to import a Federal element into the exercise of such
jurisdiction, and the methods of reviewing such exercise have a special character.

In my opinion, none of these matters create any repugnancy between the two sets of provisions so as
to avoid the Federal Act. The Imperial Act was passed largely because of the difficulty or
impossibility of a colonial law operating outside its own borders, Imperial authority being required
to authorize extra-territorial constraint. The purpose of the Act was to facilitate the return of fugitive
offenders to places within the Empire or governed by the Crown in exercise of its foreign
jurisdiction, not for the purpose of punishment, but merely for the purpose of being tried. Under
Part II., which is here of direct concern, provision is made for the inter-colonial backing of warrants
as between groups of possessions which are regarded as sufficiently contiguous, and, in such cases,
the liability of a fugitive to be returned depends upon a quasiministerial backing of warrants, and no
preliminary investigation of the question of guilt is required. Under Part I., which prevails more
generally throughout the Empire, a preliminary investigation has to be conducted in the place where
the fugitive is apprehended in the same way as if the fugitive had been charged with an offence
committed within such place. The fact that Part II. permits of a method of return without any
preliminary investigation of the question of guilt or innocence illustrates the policy that such
question is regarded as one to be dealt with by the courts of the possession where the offence is
alleged to have been committed. Thus, the essence of Part II. of the Act is that where A and B are
regarded as contiguous possessions, and belonging to the same group, there is a liability imposed
upon a person accused of having committed an offence punishable in possession A to be
apprehended and brought back to that possession if he is found in possession B.

Under the Service and Execution of Process Act, which was intended to operate primarily as
between the States of the Commonwealth, the procedure being closely analogous to, but not
identical with Part II. of the Fugitive Offenders Act, no general inquiry into the question of guilt is
permitted, so that the mere allegation that a person has committed an offence in one State is
regarded as a prima facie authority for his apprehension in another State for the purpose of his being
returned for trial to the State where the offence is alleged to have been committed. In each case, the
essence of the Act is the liability to arrest in one place, so that the prisoner shall be tried according
to law in the proper place. Neither Act attempts to control the manner in which the fugitive will be
tried after he has been returned. A failure of proceedings under either Act has no effect whatever
upon the fugitive offender's liability to be tried in the place where he is alleged to have committed
an offence.

The position seems to be no different from that which would exist if within the same territorial
jurisdiction several authorities were empowered to issue warrants for the arrest of an offender for
having committed an offence within the jurisdiction, and the several authorities were governed by
somewhat different conditions precedent to the issue of a warrant. The decision of one authority not
to issue a warrant would be perfectly consistent with the decision of another authority to issue a
warrant. Under the Imperial Act of 1881, a grouping Order has been made which operates as
between the Commonwealth and the Dominion of New Zealand. To my mind it is almost incredible
that these great dominions are incompetent to facilitate the mutual surrender of fugitive offenders
except upon the special terms mentioned in Part II. of the Fugitive Offenders Act 1881. Despite the
application to them of the Fugitive Offenders Act 1881, I think it would be quite competent for the
two dominions to authorize mutual surrender by a mere executive certificate without the checks and
safeguards of the character embodied both in the Imperial Act and the Commonwealth Service and
Execution of Process Act.

In this case I can see no conflict between the two Acts which seem to me to create two separate,
separable and cumulative liabilities. The proper procedure is for the magistrate to act first under one
Act, and subsequently under the other, and the mere fact that the applications have been combined
neither creates repugnancy nor, in this case, created any injustice to the appellant. As to the point
about the form of the order made by the magistrate I agree with the views of the Chief Justice.

For these reasons I am of opinion that no case of repugnancy has been made out and that in relation
to the Mandated Territory neither sec. 28 (1) (b) nor sec. 28 (1A) is void or inoperative.

X.

Alleged Oppressiveness of Return.--The appellant also argued that, whether the matter is regarded
as coming under the Imperial or the Commonwealth Act, it would be unjust and oppressive to order
the return of the appellant to New Guinea. The charge made against the appellant is the unlawful
killing of a New Guinea native, and it is contended that in January last when the Chief Judge of
New Guinea was sentencing another native, the "boss boy," in respect of the same killing, he
incidentally expressed a very strong opinion as to the circumstances of the killing. It appears that a
native was working on a plantation belonging to Burns Philp & Co. and that the "boss boy" pierced
his eye with the sharp end of an umbrella, injuring the brain. Chief Judge Wanliss stated that there
was evidence that the present appellant instead of treating the injured and dying native boy brutally
ill-treated him. The Chief Judge said that on the evidence before him, the appellant

in the callous, cold-blooded way of a brute got some ficus roots--horrible weapons to thrash a man
with--and thrashed this dying man while he was lying helpless on the cement. He thrashed him
with one of these roots until it broke, about ten strokes. He then got another and thrashed him with
that until it broke, about nine strokes. Then he got a third one and used it until it broke; five or six
strokes with that and then again with a fourth until the blood was coming from his back. The
evidence is that not only was blood coming from his back, but from his eye and ears. Then this man
Ffrost ordered him to go back and work. It was then late, but the native who received the
instructions, with more humanity than Ffrost had, saw that it was useless and disobeyed instructions
and took him to the labour home.

It is plain that the Chief Judge was confining his observations to the evidence before him and that he
expressed no final opinion as to the appellant's guilt. It seems to be impossible to say that the return
of the appellant can be regarded as harsh or oppressive.

In relation to the Mandated Territory of New Guinea the Commonwealth has special duties as
mandatory and it would be pessimi exempli if the court refused to order the return of a person for
trial charged with the unlawful killing of a native, merely because there had been a previous trial
relating to the same killing and the competent court of the Territory has incidentally expressed a
strong opinion as to the conduct of the prisoner sought to be returned. Before the present appellant
can be convicted, the case must be investigated quite anew. But there is not the slightest reason for
holding that it would be unjust that he should be tried. For myself, I think it would be unjust if he
were not tried, although I express no opinion whatever as to his guilt.

The conclusions which I have reached are:--

(1)

That, in holding that secs. 28 (1) (b) and 28 (1A) of the Service and Execution of Process Act are
invalid, the Supreme Court determined a question as to the limits inter se of the constitutional
powers of the Commonwealth and the States, and such question is, by the Judiciary Act, placed
outside the Supreme Court's jurisdiction.

(2)

That the status of the Mandated Territory of New Guinea is very special in character, partaking of
the nature of a trust; that the Territory is not a part of the King's dominions, persons born therein do
not thereby become British subjects, and it cannot, by unilateral action of the mandatory power, be
incorporated within its possessions or territories.

(3)

That, as a result of the Commonwealth's accepting binding international duties to carry out the
mandate, it is possessed of sufficient legislative power under the "external affairs" placitum, to
perform such duties, and, as incidental thereto, to govern the territory according to the mandate.

(4)

That sec. 122 of the Constitution does not permit of the inclusion of the Mandated Territory among
the territories of the Commonwealth properly so called, all such territories being necessarily
included within the King's possessions and dominions and being permitted representation on certain
terms in the King's Commonwealth Parliament.

(5)

That, as the Mandated Territory is outside the King's territories, the Commonwealth Parliament has
power to legislate for the mutual surrender of fugitives between such territory and the
Commonwealth, with the result that secs. 28 (1) (b) and 28 (1A) of the Service and Execution of
Process Act are both valid in relation to the Mandated Territory, whatever may be the position in
relation to the territories properly so called.

(6)

That the recent judgment of the Privy Council in the Labour Conventions Case (Attorney-General for
Canada v. Attorney-General for Ontario[107]) supports the conclusion that the constitutional
position in Australia differs from that of Canada, that the "external affairs" power of the
Commonwealth undoubtedly includes the power of treaty legislation as a great and independent
power, that it is limited only by the other express provisions of the Constitution and its own terms
fairly construed, and that it is not subject to the curious and fortuitous restriction which exists in
Canada by reason of the language employed in sec. 132 of the British North America Act, and that it
is available and necessary to maintain Australia's status as one of the family of nations.

(7)

That the Fugitive Offenders Act was lawfully applied to the mutual surrender of fugitives as between
the Commonwealth and the Mandated Territory as a place outside His Majesty's dominions, but
where, nevertheless, His Majesty has jurisdiction.

(8)

That there is no repugnancy between the relevant provisions of the Fugitive Offenders Act 1881
(Imperial) and Orders in Council thereunder and the Service and Execution of Process Act and
regulations thereunder.

(9)

That whether the matter is regarded as arising under the Imperial Act or the Commonwealth Act,
there is no evidence that it would be harsh or oppressive to order the return of the appellant merely
to be tried according to law.

In my opinion, the order of the Supreme Court should be set aside and the order nisi should be
discharged.

McTiernan J.

The appellant having been accused of an offence punishable by the laws of the Mandated Territory
of New Guinea, a warrant was issued there for his arrest. Steps were taken both under the
Commonwealth Service and Execution of Process Regulations and Part II. of the Fugitive Offenders
Act 1881 to have the appellant, who was in New South Wales, arrested, and an order was sought
before a magistrate that the appellant be returned to the Mandated Territory.

The Commonwealth regulations were made under sec. 28 of the Service and Execution of Process
Act 1901-1934, whereby the Governor-General is empowered to make regulations applying the
provisions of that Act, with or without modifications, to the service and execution in any State of
the civil and criminal process of the courts of the territories of the Commonwealth in like manner as
if those territories were part of the Commonwealth. Sec. 28 (1A) of that Act provides that territories
of the Commonwealth include any territory governed by the Commonwealth under mandate.

The applicability of the Imperial Act also depends on executive action. By an Order in Council,
expressed to be made under sec. 36 of the Fugitive Offenders Act, it was recited that New Guinea
and Nauru are places outside His Majesty's dominions in which His Majesty has jurisdiction, and the
Act was directed to apply to these territories as if they were British possessions, but subject to a
number of provisions contained in the Order in Council, the sixth of which said that, for the purpose
of Part II. of the Act, these territories shall, with the Commonwealth of Australia, Papua and
Norfolk Island, be deemed to be one group of British possessions. By another Order in Council of
the same date, 12th October 1925, it was recited that the Fugitive Offenders Act had been applied by
the Order in Council abovementioned to New Guinea and Nauru as if each of them were a British
possession, and Part II. of the Act was directed to apply to the British possessions and territories
thereunder mentioned, which included the Commonwealth of Australia and New Guinea.

Sec. 18 of the Commonwealth Act, as applied to the above-mentioned Commonwealth regulations,
and secs. 13 and 14 of the Imperial Act as applied by the Order in Council, were relied on to
authorize the arrest of the appellant in New South Wales and the making of an order by the
magistrate before whom he was brought for his return to the Mandated Territory of New Guinea.
Although the conditions precedent to the making of an order for the return of an offender, which are
prescribed by the above-mentioned provisions respectively, are fulfilled, the magistrate before
whom the order is sought is authorized to discharge the offender or postpone his return in the case
of proceedings under the Commonwealth Act upon any of the grounds enumerated in sec. 18 (4)
thereof, and in the case of proceedings under the Imperial provisions upon any of the grounds
enumerated in sec. 19 of the Fugitive Offenders Act. At the same time as the order for his return was
sought, the appellant applied alternatively under sec. 18 (4) of the Commonwealth Act and sec. 19
of the Imperial Act for his discharge. The magistrate made an order that the appellant be returned to
the Mandated Territory of New Guinea, at the same time refusing to discharge him. In making the
order and refusing to discharge the appellant from custody, the magistrate professed to act under the
Commonwealth regulations. If those regulations are not valid the magistrate professed to exercise a
power which he did not possess.

Both the Commonwealth regulations and the provisions of Part II. of the Fugitive Offenders Act
1881, as applied by Order in Council, are intended to authorize the return from Australia of a person
for whose arrest a warrant has been issued in the Mandated Territory of New Guinea for an offence
punishable by the law of the Territory. Each set of provisions assumes to deal completely and
exclusively with the return of the offender from Australia to New Guinea. The Commonwealth
regulations enter a field occupied by the Imperial enactment.

The question arises, whether the Commonwealth regulations are, to the extent to which they apply
to the return of offenders from Australia to the mandated territories, repugnant to valid Imperial
provisions applying to the same subject matter. If repugnancy exists it becomes unnecessary to enter
into the question whether the power of the Commonwealth to enact secs. 28 and 28 (1A) of the
Service and Execution of Process Act 1901-1934 in relation to the mandated territories is derived
from sec. 51 or sec. 122 of the Constitution. For, if those sections are valid under the Constitution,
the repugnant regulations made thereunder are in any case void and inoperative by force of sec. 2 of
the Colonial Laws Validity Act 1865. The test of repugnancy under this section was propounded in
Union Steamship Co. of New Zealand Ltd. v. The Commonwealth[108]. The Commonwealth
provisions in so far as they extend to the rendition of offenders from the Commonwealth to the
mandated territories cannot, in my opinion, survive that test. The Commonwealth and the Imperial
provisions contain different enactments about the same subject matter. It is apparent that the two
sets of provisions cannot be executed in relation to the same offender for the same offence, if he is
in Australia, without conflict. There are differences, which are not merely literal, but substantial,
between the grounds enumerated in sec. 18 (4) of the Commonwealth Act and sec. 19 of the
Imperial Act respectively, upon which the offender is entitled to apply to be discharged or to have
his return postponed. Moreover, it is expressly provided by the latter section that any order or
refusal to make an order of discharge by a magistrate shall be subject to an appeal to a superior
court, whereas sec. 18 (4) provides that the offender may seek the relief mentioned in the section
from a magistrate or any judge of the State. Again, secs. 17, 18 and 27 of the Fugitive Offenders Act
attach consequences to an order for the return of an offender, made under that Act, which are not
attached to an order made under the Commonwealth regulations. It is impossible to give effect to
both sets of laws at the same time. Nor can the question of inconsistency be disposed of by treating
them as alternative provisions authorizing and regulating the return of offenders from the
Commonwealth to New Guinea in either one of two valid methods. If then Part II. of the Fugitive
Offenders Act has been validly applied, these are the overriding provisions which must govern the
case. The crucial question, therefore, is whether the provisions of Part II. of the Fugitive Offenders
Act have been validly applied.

In the first place it is contended that the Orders in Council applying the Fugitive Offenders Act are
founded on the erroneous assumption that the Mandated Territory of New Guinea is a place out of
His Majesty's dominions. To accede to this contention would be to contradict what the King in
Council has declared to be a fact. The question whether the Mandated Territory is a place outside
His Majesty's dominions is not one requiring proof by the parties to the litigation. The court may
accept the information contained in the Orders in Council and take judicial notice of the fact therein
recited that New Guinea is out of His Majesty's dominions. If after this statement by the King in
Council a different view were taken by the court an undesirable conflict would arise (See Duff
Development Co. v. Kelantan Government[109]).

It is noteworthy that the view of New Zealand, which was acted upon by the British Government,
was that the Foreign Jurisdiction Act 1890 should be resorted to in order to provide for the
government of Samoa. By an Order in Council made under this Act, full power of legislation and
administration over Samoa was granted to the Government and Parliament of New Zealand, and
under these powers the Dominion passed laws creating a constitution for the territory.

It is common knowledge that the mandatory system was set up by the Peace Conference. The
purpose of the system is set out in art. 22 of the Covenant of the League of Nations. Acceptance of
the fact stated in the Orders in Council that the Mandated Territory of New Guinea is a place out of
His Majesty's dominions involves no inconsistency with the decisions of this court as to the legal
basis of the authority of the Commonwealth over that Territory.

By the Treaty of Versailles, the title to the former German colony of New Guinea was ceded to the
Principal Allied and Associated powers. The terms of the "C" mandate, where the mandatory is a
British dominion, show that the mandate is "conferred upon His Britannic Majesty to be exercised
on his behalf" by the government named. The mandates were allocated in each case by the Principal
Allied powers and the terms were approved by the League Council. "The Crown thus took charge of
territories with full power of legislation and administration, but subject to definite conditions and to
the duty of reporting to the Council of the League of Nations" (The King and the Imperial Crown,
A. Berriedale Keith, p. 418). The peculiar characteristic of class "C" of the mandates is that they are
territories which, it was declared, can best be administered as "an integral part of the territory of the
mandatory," subject to the safeguards expressed in the mandate. A writer of high authority has said:
"This means that the mandatory can apply his own immigration and tariff laws" (Anson's Law and
Customs of the Constitution 4th ed. (1935), vol. 2, Part II., p. 115).

There are divergent views as to whether the language of art. 22, so far as it relates to the "C"
mandates, incorporates the mandated territory in that of the mandatory or preserves the mandated
territory from becoming part of the other's territorial property. The fullness of governmental
authority over the territory conferred by the "C" class mandate does not necessarily involve the
cession of the territory to the mandatory (See Jolley v. Mainka[110], per Evatt J.). The mandate for
the government of New Guinea, which was made on 17th December 1920, recites that His Majesty
for and on behalf of the government of the Commonwealth of Australia had agreed to accept it. Art.
2 is as follows: "The mandatory shall have full power of legislation and administration over the
territory subject to the present mandate as an integral part of the Commonwealth of Australia, and
may apply the laws of the Commonwealth of Australia to the territory subject to such local
modifications as circumstances may require." The chain of Commonwealth authority over the
Mandated Territory is traced by Isaacs J., as he then was, in Mainka v. Custodian of Expropriated
Property[111]. He concludes: "The words in the Australian mandate appear to mean, not that the
Mandated Territory is deemed to be physically part of the continent of Australia, but as territory
belonging to the King in right of the Commonwealth of Australia." In Jolley v. Mainka[112] Starke
J. based the legislative power of the Commonwealth over the Mandated Territory of New Guinea on
sec. 122 of the Constitution, and Dixon J., with whom Rich J. agreed, expressed no personal opinion
but said that it appears to have been considered that sec. 122 of the Constitution is the source of
power for the enactment of the New Guinea Act, the King's acceptance of the mandate, on behalf of
the Commonwealth, presumably being treated as placing the Territory under the authority of the
Commonwealth within the meaning of that section[113]. In the same case, Evatt J. denies the
proposition that the Mandated Territory was either placed by the King under the control of the
Commonwealth, or was otherwise acquired by the Commonwealth, within the meaning of sec. 122
of the Constitution, or that this section is a source of power for the enactment of laws applying to
New Guinea. He held that "the Commonwealth's de facto government of the Territory has its lawful
source in (a) legislation under sec. 51 (xxix.) of the Commonwealth Constitution following upon (b)
the Commonwealth's international right and duty to administer New Guinea according to the terms
of the mandate"[114]. All the justices reached the conclusion that New Guinea was "a territory
under the control of the Commonwealth," which was the crucial question in the case. The recital in
the above-mentioned Orders in Council that New Guinea is outside His Majesty's dominions is
obviously in conformity with the views of Evatt J., and indeed was relied on by him. Nor is it
contradictory of the recitals in the Orders in Council to say that the Mandated Territory of New
Guinea has been placed under the control of the Commonwealth according to the true intent of sec.
122. It is true that the King took no formal step to place this Territory under the control of the
Commonwealth. But His Majesty was a party to the Treaty of Peace and to the allocation of the
mandates. The mandate over this Territory was accepted by His Majesty on behalf of the
Commonwealth, and thus assigned by him to the Commonwealth. If the transaction is considered as
a whole it is possible to say that His Majesty placed New Guinea under the control of the
Commonwealth. The words, "or otherwise acquired," do not raise any necessary implication that the
phrase, "placed by His Majesty under the control of the Commonwealth," are to be read as meaning
that the authority of the Commonwealth to govern a territory under sec. 122 depends upon it passing
to the Commonwealth by some method of acquisition which makes it the territorial property of the
Commonwealth. "Acquired" is a wide word and extends to the acquisition of the possession enjoyed
by the Commonwealth as the dominion entrusted with the fulfilment of the mandate to govern the
Territory of New Guinea. The concluding part of sec. 122 does not point to the conclusion that the
Mandated Territory of New Guinea is outside the section, for while the Constitution endures it is
impossible to deny that an occasion might arise, perhaps in the remote future, even for allowing
representation to that Territory in either House of the Parliament.

The second ground upon which the validity of the Orders in Council was attacked was that New
Guinea is under the Commonwealth Legislature, and accordingly the territories constituting the
Commonwealth of Australia and New Guinea must be regarded as one British possession because of
the definition of that expression in sec. 39 of the Fugitive Offenders Act. This section says that,
unless the context otherwise requires, the expression "British possession" means any part of His
Majesty's dominions exclusive of the United Kingdom, the Channel Islands, and the Isle of Man.
The section continues "all territories and places within Her Majesty's dominions which are under
one legislature shall be deemed to be one British possession and one part of Her Majesty's
dominions. The expression, legislature, where there are local legislatures as well as a central
legislature, means the central legislature only." This attack upon the Orders in Council assumes that
the definition of British possession embraces not only the territories and places within His Majesty's
dominions which are under one central legislature, but also a place outside His Majesty's dominions
to which the Act is directed to apply as if it were a British possession. In my opinion, the definition
of a British possession in sec. 39 has no application, and indeed the context of the Act requires that
it should have no application, to the identification of that place outside His Majesty's dominions,
which is only deemed to be a British possession for the purposes of the Act.

The provisions of the Fugitive Offenders Act, including Part II., were validly applied by the Orders
in Council to the return of fugitive offenders from Australia to the Mandated Territory of New
Guinea, and the repugnant provisions of the Service and Execution of Process Regulations are, by
force of sec. 2 of the Colonial Laws Validity Act 1865, void and inoperative.

The magistrate acted under the repugnant provisions of the Commonwealth regulations and assumed
to exercise a power which he did not possess. It is true that under the Fugitive Offenders Act he had
the power to make an order for the return of the appellant to New Guinea, and that had he professed
to act under that power he might still have made an order that the appellant be returned to New
Guinea and have refused to discharge him. But the order which he made must remain as one made
without authority, for he did not profess to fufil the conditions of the power conferred by the
Imperial provisions.

The conclusion that the appellant cannot be lawfully returned to the Mandated Territory of New
Guinea except under the authority of the Fugitive Offenders Act is based not on the absence of
power under the Constitution for the Commonwealth to make a law for the return of offenders from
Australia to New Guinea, but upon the repugnancy of the regulations which it has made to the
Imperial provisions. It is unnecessary to enter into what is the specific source of the power of the
Commonwealth to make such a law.

In my opinion the rule nisi for certiorari should be made absolute.

Latham C.J.

All the members of the court are of opinion that in the proceedings before the Supreme Court a
question of the limits inter se of the constitutional powers of the Commonwealth and the States was
raised and that, under sec. 40A of the Judiciary Act 1903-1934, that court should have proceeded no
further in the cause.

The order of the Supreme Court is therefore set aside. The order nisi is discharged. No order will be
made as to costs.

Order of the Supreme Court set aside. Order nisi discharged.

Solicitors for the appellant, McMaster, Holland & Co.

Solicitor for the respondent, H. F. E. Whitlam, Commonwealth Crown Solicitor.

[1] [1936] HCA 10; (1936) 55 C.L.R. 324.
[2] (1894) A.C. 347.
[3] (1931) A.C. 494. at pp. 501 et seq.
[4] (1924) A.C. 797.
[5] (1910) 2 K.B. 576.
[6] (1933) 49 C.L.R., at p. 252.
[7] (1924) 34 C.L.R., at pp. 300, 301.
[8] (1933) 49 C.L.R., at p. 289.
[9] [1913] HCA 29; (1913) 16 C.L.R. 315.
[10] [1915] HCA 13; (1915) 19 C.L.R. 629.
[11] [1926] HCA 9; (1926) 37 C.L.R. 432.
[12] [1913] HCA 29; (1913) 16 C.L.R. 315.
[13] [1915] HCA 13; (1915) 19 C.L.R. 629.
[14] [1926] HCA 9; (1926) 37 C.L.R. 432.
[15] [1925] HCA 23; (1925) 36 C.L.R. 130.
[16] [1924] HCA 20; (1924) 34 C.L.R. 297.
[17] [1933] HCA 43; (1933) 49 C.L.R. 242.
[18] [1925] HCA 23; (1925) 36 C.L.R. 130.
[19] (1927) P. 311.
[20] (1933) 49 C.L.R., at pp. 270, 280.
[21] [1913] HCA 29; (1913) 16 C.L.R. 315.
[22] [1915] HCA 13; (1915) 19 C.L.R. 629.
[23] [1926] HCA 9; (1926) 37 C.L.R. 432.
[24] [1927] HCA 4; (1927) 39 C.L.R. 245.
[25] [1936] HCA 10; (1936) 55 C.L.R. 324.
[26] [1925] HCA 23; (1925) 36 C.L.R. 130.
[27] (1936) 55 C.L.R., at p. 356.
[28] [1932] HCA 47; (1932) 48 C.L.R. 251, at p. 256.
[29] [1935] HCA 12; (1935) 53 C.L.R. 185, at pp. 190, 191.
[30] [1908] HCA 47; (1908) 6 C.L.R. 255.
[31] [1905] HCA 64; (1905) 2 C.L.R. 315, at p. 330.
[32] [1925] HCA 23; (1925) 36 C.L.R. 130.
[33] [1926] HCA 50; (1926) 38 C.L.R. 441.
[34] [1921] HCA 58; (1921) 29 C.L.R. 243.
[35] (1921) 29 C.L.R., at p. 252.
[36] [1909] HCA 46; (1909) 9 C.L.R. 140.
[37] (1933) 49 C.L.R., at pp. 285, 286.
[38] (1933) 49 C.L.R., at p. 264.
[39] (1933) 49 C.L.R., at pp. 264-292.
[40] (1922) 1 A.C. 313, at pp. 325, 326.
[41] (1933) A.C. 156.
[42] (1910) 2 K.B. 576.
[43] (1910) 2 K.B., at p. 577.
[44] (1910) 2 K.B., at pp. 591, 592.
[45] (1910) 2 K.B., at pp. 603, 604.
[46] (1910) 2 K.B., at p. 607.
[47] (1910) 2 K.B., at p. 620.
[48] (1926) A.C. 518.
[49] (1933) 49 C.L.R., at p. 278.
[50] (1926) A.C. 321.
[51] (1924) 34 C.L.R., at p. 301.
[52] (1933) 49 C.L.R., at p. 279.
[53] [1924] HCA 20; (1924) 34 C.L.R. 297.
[54] (1924) 34 C.L.R., at p. 300.
[55] (1924) 34 C.L.R., at p. 300.
[56] (1924) 34 C.L.R., at p. 301.
[57] [1924] HCA 20; (1924) 34 C.L.R. 297.
[58] (1924) 34 C.L.R., at p. 301.
[59] [1926] HCA 9; (1926) 37 C.L.R. 432.
[60] (1926) 37 C.L.R., at p. 443.
[61] (1924) 34 C.L.R., at p. 305.
[62] (1926) 37 C.L.R., at p. 450.
[63] [1924] HCA 20; (1924) 34 C.L.R. 297.
[64] [1924] HCA 20; (1924) 34 C.L.R. 297.
[65] [1933] HCA 43; (1933) 49 C.L.R. 242.
[66] [1913] HCA 29; (1913) 16 C.L.R. 315.
[67] [1913] HCA 29; (1913) 16 C.L.R. 315.
[68] (1913) 16 C.L.R., at p. 330.
[69] [1915] HCA 13; (1915) 19 C.L.R. 629.
[70] [1915] HCA 13; (1915) 19 C.L.R. 629.
[71] [1928] HCA 18; (1928) 41 C.L.R. 128.
[72] [1915] HCA 13; (1915) 19 C.L.R. 629.
[73] [1915] HCA 13; (1915) 19 C.L.R. 629.
[74] [1915] HCA 13; (1915) 19 C.L.R. 629.
[75] [1915] HCA 13; (1915) 19 C.L.R. 629.
[76] [1926] HCA 9; (1926) 37 C.L.R. 432.
[77] (1926) 37 C.L.R., at pp. 446, 447.
[78] [1924] HCA 20; (1924) 34 C.L.R. 297.
[79] [1926] HCA 9; (1926) 37 C.L.R. 432.
[80] [1933] HCA 43; (1933) 49 C.L.R. 242.
[81] (1937) A.C. 326.
[82] [1936] HCA 52; (1936) 55 C.L.R. 608.
[83] (1937) A.C. 326.
[84] [1936] HCA 52; (1936) 55 C.L.R. 608.
[85] (1936) 55 C.L.R., at p. 687.
[86] (1936) 55 C.L.R., at p. 641.
[87] (1937) A.C. 326.
[88] (1932) A.C. 304.
[89] (1937) A.C., at p. 349.
[90] (1937) A.C., at p. 351.
[91] (1936) 55 C.L.R., at p. 641.
[92] (1937) A.C. 326.
[93] [1936] HCA 52; (1936) 55 C.L.R. 608.
[94] [1936] HCA 52; (1936) 55 C.L.R. 608.
[95] [1936] HCA 52; (1936) 55 C.L.R. 608.
[96] [1931] HCA 1; (1931) 44 C.L.R. 492.
[97] (1937) A.C. 326.
[98] [1936] HCA 52; (1936) 55 C.L.R. 608.
[99] [1918] HCA 55; (1918) 26 C.L.R. 9, at p. 49.
[100] (1920) A.C. 691, at p. 709.
[101] (1925) 36 C.L.R., at pp. 155, 156.
[102] (1925) 36 C.L.R., at p. 156.
[103] [1932] HCA 40; (1932) 48 C.L.R. 128.
[104] (1937) 56 C.L.R. 675.
[105] (1932) 48 C.L.R., at pp. 147, 148.
[106] [1925] HCA 23; (1925) 36 C.L.R. 130.
[107] (1937) A.C. 326.
[108] [1925] HCA 23; (1925) 36 C.L.R. 130.
[109] (1924) A.C., at pp. 808, 809 and 823 et seq.
[110] (1933) 49 C.L.R., at p. 271.
[111] (1924) 34 C.L.R., at pp. 300, 301.
[112] (1932) 49 C.L.R., at p. 250.
[113] (1933) 49 C.L.R., at p. 256.
[114] (1933) 49 C.L.R., at p. 289.

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