Canberra, 6 February 1968
I refer to your memorandum dated 2 January, 1968, regarding the withholding of assent from part of a Territory Ordinance.2
2. The records of this Department do not disclose the reasons for the removal from the Papua and New Guinea Act, by the amending Act of 1963, of the power to withhold assent to part of a reserved Ordinance.
3. You ask for my views on the matter. It appears to me to be wrong in principle for a power to exist to assent to part only of an Ordinance. The basic reason for this view is that the exercise of such a power could result in the Ordinance becoming law in a form in which it would not have secured a passage in the Legislative Council. This could arise in two ways. In the first place exclusion of a particular provision from the Ordinance as assented to could alter quite drastically the effect of the part assented to. For example, if a reserved Ordinance contained a provision that it should not apply to females the omission of this provision would, of course, have the effect of extending the remainder of the Ordinance to females. In the second place, even though the provision to which assent was refused was not connected in its operation with any other provision of the Ordinance, it may be that members of the Council would have refused to vote for the remainder of the Ordinance if it had not contained that provision—they may have accepted the Ordinance as a ‘package deal’. This could be the case in the instance you mention of the Ordinance in which the legislature inserted the provision for equal pay for male and female officers. It may be that, if that provision had not been inserted, the rest of the Ordinance would not have been passed and, if this is so, it would seem to be an intrusion on the province of the legislature to bring into force in the Territory the remainder of the Ordinance.
4. I may add that difficulties can arise in deciding what, as a matter of law, is a ‘part’ of an Ordinance for the purpose of the withholding of assent …
5. I note that both the Northern Territory (Administration) Act and the Papua and New Guinea Act permit the Governor-General to disallow part of an Ordinance. In my view the objections that I have raised to the power to assent to part of an Ordinance apply equally to power to disallow part of an Ordinance. It may be suggested, however, that there is less justification for a power to assent to part of an Ordinance than for a power to disallow a part of an Ordinance because, in the former case but not in the latter, the Ordinance could be referred back to the legislature with a recommendation for amendment.
6. I have not been able to find in the recent book entitled ‘Commonwealth and Colonial Law’ by Sir Kenneth Roberts-Wray any reference to a power to assent in part to, or to disallow in part, colonial laws. Section 58 of the Commonwealth Constitution empowers the Governor-General to withhold assent from a proposed law, but does not empower him to withhold assent from part of a proposed law. Section 59 of the Constitution empowers the Queen to disallow any law but does not empower her to disallow part of a law.3
[NAA: A452, 1970/4520]
1 J.Q. Ewens, Parliamentary Draftsman, AG’s.
2 Not found. However, a minute from Payne to Swift of 23 November 1967 records that the ‘Secretary wants us to take up with A.G.’s the question of withholding assent to part of an Ordinance with a view to amending the Act to deal with the Voutas amendment [to the Public Service Ordinance]’ (NAA: A452, 1970/4519; see also B270/963, Warwick Smith to Hay, 21 March 1968, NAA: A452, 1968/4520). Voutas’ amendment was moved in November 1967 during debate on the Administration’s bill to introduce a single line salary structure for the public service (that is, there would no longer be separate salary classifications for overseas and PNG officers—additional remuneration to expatriates would be paid by special allowances) (see press statement by Barnes on implementation of the changes, 1 August 1968, NAA: A1838, 936/3/10). Voutas’ change was intended ‘to make the base pay for women and men who do the same work in the public service equal’ ( House of Assembly debates , 20 November 1969, NLA: Nq 328.952 PAP, p. 2991). It seems Warwick Smith wanted to provide for a means by which the Governor-General could, on recommendation of the Minister, assent to parts of an ordinance inspired by, or acceptable to, the government while blocking the undesired portions.
3 In a marginal note to Payne of 19 February, Warwick Smith wrote: ‘Why not disallow part and re-submit as thereby resulting? Would this be different in practice from recommended amendments?’