Canberra, 19 April 1968
In a submission concerning some additional changes to the Papua New Guinea Act I have proposed to Cabinet that section 56(1) of the Act should be amended to give the Governor-General the power to withhold assent to part of an ordinance.2
There has been an exchange of views between the Parliamentary Draftsman and the Department of External Territories regarding this proposal and in putting the submission forward I have had regard to the Parliamentary Draftsman’s views of the legal problems which could arise by the inclusion of such a provision. It is, however, equally necessary to ensure that Cabinet are aware of the political difficulties of not having this power.
These political difficulties are best illustrated by a particular case. The Administration introduced a Bill to amend the Public Service Ordinance to provide for a single line salary scale for the Territory public service. A private member introduced an amendment to the principal Ordinance to provide for equal pay for men and women and this was passed by the House the same day.3 The Administrator has now reserved the Ordinance as he is required to under section 55 of the Act.
The most helpful course would be for the Governor-General to assent to the part of the Public Service Ordinance which relates to the single line structure and withhold assent to the wholly unrelated part which relates to equal pay for men and women. It seems quite unnecessary for the implementation of a major decision of the government to have to be held up by reason of amendment to the same Ordinance of a wholly different character.
A similar situation arose in connexion with the Museum and Art Galleries Ordinance of the Northern Territory. Then a private member introduced a Bill to establish a Board to control these matters. This Bill was passed by the Legislative Council and was assented to by the Administrator. The main principles of the Ordinance were acceptable to the Government but one section which authorised the Administrator in Council to approve conditions of employment of employees of the Board contravened a decision of Cabinet. The Governor-General was able to disallow this particular section without having to nullify the main purposes of the legislation by disallowing the whole Ordinance.
I am not myself able to see any real difference between withholding assent to part of an Ordinance and disallowing part of an Ordinance. Disallowance of a part is not, of course, a peculiarity of the Papua New Guinea Act. The Administration Acts of each of the smaller Territories permit either House of Parliament to disallow an Ordinance made by the Governor-General in whole or in part. Similarly under the Acts Interpretation Act I understand that either House may disallow any Ministerial regulation and disallowance is not required to extend to the whole set of regulations.
Your officers have been concerned that a power to withhold assent to part of an Ordinance could be used to give legal effect to legislation in a form which was quite different from that passed by the legislature. To overcome this difficulty, which I appreciate is a real one, I have made it clear in the submission that I would not anticipate recommending to the Governor-General that assent should be withheld to part of an Ordinance without first seeking Cabinet’s approval. I think, too, the requirement for tabling a statement of reasons in both Houses of Parliament provides a real safeguard.
[NAA: A452, 1970/4520]
1 N.H. Bowen, Attorney-General. Following Ewens’ memorandum outlining objections to assent to part of an ordinance (Document 158), Ballard discussed the issue with Comans on 18 March (for other details of this talk, see footnote 2, Document 167). Comans noted: ‘[AG’s] had been asked for its views … and we thought there were objections in principle. However the [Territories] Department feels that the practical situation calls for such a power, which should, however, be exercised with great care. I said that it was quite open to the [Territories] Department, through the Minister, to seek Cabinet approval but, if this were sought, we would no doubt point out to the Attorney-General the objections in principle. Mr. Ballard suggested that it might be wise for his Minister to write to the Attorney-General about the matter before seeking Cabinet approval and I agreed that this would be a wise course’ (notes of discussion, 18 March 1968, NAA: A452, 1970/4520). Ballard later reported to Ewens that the Administrator agreed with DOET that ‘Cabinet must be made aware of the policy arguments in favour of the inclusion of such a provision’. He wrote that Barnes would write to Bowen ‘in greater detail than would be appropriate in a Cabinet submission’ and would give an assurance that a recommendation to Cabinet to change the Act would not occur ‘without prior consultation with the Attorney-General’s Department’ (memorandum, DOET (Ballard) to AG’s, I April 1968, ibid.). A dissenting voice in Territories was that of W.A. Standish, a Public Service Board Administrative Trainee who was attached to DOET for work experience: ‘I do not think that the letter in reply to the Parliamentary Draftsman [Document 159; a response to Document 158] … answers his objections … Further, I disagree that by withholding assent to part of an Ordinance any of the odium expected from total withholding of assent would be avoided. The distinction would be fairly transparent in any significant test case … Either way, legislation would be being proclaimed which had not been passed by the legislature in that particular form’ (minute to Payne, 7 March 1968, ibid.).
2 See Document 173.
3 See footnote 2, Document 158.