Port Moresby, 23 April 1968
4508.
I have now had the opportunity of detailed discussions with Watkins on proposed amendments to Papua and New Guinea Act.
I have the following observations—
(a) General approach should be to make minimum changes in legislation. Too much definition underlines what powers the Assembly has not got just as much as it clarifies powers which the Assembly has. This could be an invitation to the Assembly to seek more. It is preferable in my view not to enter into too many definitions. Amendments we do make should be as closely as possible related to the Select Committee report.1
(b) I accept need to include reference in amendments to both Ministerial Members and Assistant Ministerial Members.
(c) From what Watkins tells me there is a virtual rewrite of Division (Administrator’s Council).2 This seems to me a pity. Section 19(1) needs only a change of name (which is of course needed throughout),3 no change needed in 19(2). (A) and (B) (C)4 needs amendment but suggest this be on lines consistent with Select Committee report e.g. eight elected members of the House of {whom} seven hold office as {Ministerial Members. No need to change 19(3) (4) (5) (6) (7) (8) or (9)5 of section 20}.6 If we are going to change section 20 we would have to make reference to function in Select Committee report. However in fact main work of Council is not going to be ‘advice’ but consultation. This course is now open but {could} be closed off by any amendment to this section.
(d) I agree there should be a division on ministerial officers7 and that number and portfolios of Ministerial Members should be as determined by Minister on recommendation of the Administrator. Consider appointment and designation of Assistant Ministerial Members should be left to Administrator as is now the case with Under Secretaries otherwise we shall {create} impression of more rather than less delegation by the Minister. Agree that Minister’s power to allot only part of a department’s function to a Minister should be put in ordinance. I am opposed to any attempt to define in ordinance functions of Ministerial Members. We can rest more satisfactorily on the vague wording of the Select Committee report. Agree that legislation should prohibit conferring of powers on Ministers by Territory ordinance (as distinct from delegation).
(e) Reference to Ministerial Appointments Committee should read Ministerial Nominations Committee. As committee is essentially a negotiating body definitions of quorum and what constitutes an agreement could well be avoided.8
(f) I understand that section 56 will be amended to provide for the withholding of assent to part of an ordinance and that you agree with the necessity for a provision to enable urgent Administration business to be given priority.
[NAA: A452, 1970/4520]
Changes to the Papua and New Guinea Act
On 22 and 23 April, Territories requested the Cabinet Office to quickly push Barnes’ submission (Document 173) through Cabinet so that procedures involving amendments to the Act could be completed by the opening of the new House of Assembly on 4 June.1
On 30 April, Cabinet approved the recommendations contained in the submission.2 On the first recommendation—that Government have authority to claim priority in the House for Administration business–Cabinet ‘recognised that this amendment might be criticised as running counter to the progress of independence for the House but concluded that, in the circumstances, it was a necessary reserve power. It felt that the position would be assisted if the Administrator could make opportunities for local consultation to explain the purpose of the measure’.
Minor changes were made to the Act after Hay complained that its wording in parts negated drafting intentions and ‘the practice in the last year or so [which] has been to concentrate on informal consultation [with the AEC] as provided in [the] new [section] 19–3’.3 He recorded his ‘strong view that we should continue to operate predominantly under this section’.
Excerpts of the amended sections of the Act relating to the AEC and ministerial functions read:
Part iv—The Executive Government …
Division 2–The Administrator’s Executive Council
19— (1) There shall be a Council to be known as the Administrator’s Executive Council of the Territory of Papua and New Guinea.
(2) The functions of the Council are to advise the Administrator
(a) on any matter referred to the Council by the Administrator; or
(b) in accordance with an Ordinance, on any other matter.
(3) Where he thinks it in the public interest to do so, the Administrator may introduce, or authorize the introduction, in the Council of any matter for discussion. in the Council.
20 — (1) Subject to this section, the Council shall consist of
(a) the Administrator;
(b) three official members of the House of Assembly appointed by the Minister on the nomination of the Administrator; and
(c) the persons for the time being holding office as ministerial members.
(2) The Minister may, on the nomination of the Administration; appoint an additional member of the Council, being a person who is an elected member of the House of Assembly …
22— (1) The Administrator shall preside at all meetings of the Council at which he is present.
(2) In the absence of the Administrator from a meeting of the Council, a member of the Council appointed by the Administrator to preside in such absences shall preside.
(3) At a meeting of the Council, a quorum consists of the Administrator, or a member appointed in accordance with the last preceding sub–section, and three other members.
(4) The regulations may prescribe the procedure of the Council and, subject to the regulations, the procedure shall be as the Council determines …
23— (1) A member of the Council other than the Administrator shall, before entering on his duties as a member of the Council, make and subscribe an oath or affirmation in accordance with the form in the Eighth Schedule to this Act …4
Division 3—Ministerial Offices
24— (1) There shall be
(a) seven offices of ministerial member of the House of Assembly, of such respective designations as the Minister from time. to time determines; and
(b) such number, being not more than ten, of offices of assistant ministerial member of the House of Assembly, and of such respective designations, as the Minister from time to time determines.
(2) In respect of each ministerial office, the Minister shall determine, from time to time, the matters in respect of which the holder of the office is to perform the functions of a ministerial member or assistant ministerial member, as the case requires, being all or any of the matters to which the functions of a specified department of the Public Service relate.
25— (1) The functions of a ministerial member or assistant ministerial member are, in relation to the matters determined in relation to his office ·under the last preceding section, and to the extent and in the manner provided by arrangements approved by the Minister and applicable to his office, to assist in the administration of the government of the Territory and, in particular—
(a) to take part in the formulation of policies and plans, and of proposals for expenditure, in relation to those matters and in the direction of the activities of the department of the Public Service dealing with those matters;
(b) to represent, or assist in representing, the Administration in the House of Assembly; and
(c) in the case of a ministerial member, to make recommendations to the Administrators Executive Council in relation to those matters.
(2) Powers, functions or duties in relation to the government of the Territory shall not be conferred or imposed by Ordinance on the holder of a ministerial office in his capacity as the holder of such an office, but this sub–section does not operate so as to prevent the delegation to the holder of a ministerial office of powers or functions under an Ordinance.
26— (1) Subject to this section, the Minister may appoint an elected member of the House of Assembly to a ministerial office, and may terminate any such appointment.
(2) An elected member shall not be appointed to a ministerial office unless, since the last preceding general election, he has, in accordance with the regulations, been nominated by the House of Assembly, with the concurrence of the Administrator, for appointment to a ministerial office.
(3) Subject to the next succeeding section, the Minister shall not terminate an appointment of a person to a ministerial office unless the House of Assembly has, in accordance with the regulations, resolved that the appointment should be terminated …
(5) If the Governor–General, after report to the Minister by the Administrator, is satisfied that the public interest requires that a person holding a ministerial office should cease to be the holder of a ministerial office, the Governor–General may terminate the appointment of that person as the holder of a ministerial office.
27 The Minister may, at any time, terminate the appointment of a person to a ministerial office and, at the same time, appoint that person to another ministerial office …
29— (1) A person who is appointed to a ministerial office shall, before entering on the duties of office, make and subscribe an oath or affirmation in accordance with the form in the Ninth Schedule to this Act …
During a speech to parliament in which the changes were described in largely factual terms, Barnes said that they reflected the will of PNG s people and represented ‘an important advance on the side of the executive government’.5 He also reiterated the Governments belief that
political development cannot be divorced from economic development … Nor can the problems of achieving experience in administration and at both the political and Public Service level be overlooked. The acquisition of experience is not a process that lends itself to too much acceleration … I emphasise the great importance which … the Government attaches to securing an effective balance between political and economic development and to securing advance in both areas at a rate which will be tolerable in human terms–that is, tolerable to the people of the Territory who are called upon to make such adjustments.
In reply, Leader of the Opposition Gough Whit/am condemned the amendments as carrying ‘gradualism to the point of imperceptibility’.6 He said that Barnes’ view of independence as being 20 to 30 years away was an ‘irrelevance’—and it was dangerous:
With greater humility and greater humanity more satisfactory progress might be made. The situation which is developing in Papua and New Guinea is one fraught with grave risks both for that country and·our own. The Administration is paternalistic, insensitive to the feelings and attitudes of the indigenous people, complacent and self–satisfied. Among the New Guineans themselves, and in particular among the more educated groups, there is a growing awareness of the Administrations stance and a growing resentment of that stance … It may be said at this stage that the resentment is centred in the coastal towns and cities. If one looks at the whole history of independence in every country which has gained independence since the war, one will find that the views which have been born and fostered in the coastal cities have taken possession of the whole country.
1 Document 118.
2 That is, Division 2, Part IV of the Papua New Guinea Act 1949–1966. Part IV covered the administration of the Territory.
3 This section was entitled ‘The Administrator’s Council’.
4 Section 19(2) (a), (b) and (c) declared that the Council consisted of the Administrator, three Official Members of the House of Assembly and seven elected MHA’s.
5 Section 19(3) denoted that members of the Council would be appointed by the Minister on the nomination of the Minister and would hold office at the Minister’s pleasure; (4) stated that a member of the Council would not hold office for longer than three months after ceasing as an MHA; (5), (6) and (7) outlined procedures for the resignation of Council members other than the Administrator; (8) indicated that the ‘exercise of functions of the Administrator’s Council is not affected by reason of a vacancy in the membership of the Council’; and (9) ordained that, subject to the Act, ‘the procedure of the Administrator’s Council shall be as prescribed, or, in the absence of regulations, as the Council determines’.
6 Section 20 described the function of the Council as advising the Administrator on any matter referred to it by the Administrator and ‘in accordance with an Ordinance, on any other matter’.
7 This should probably read ‘offices’.
8 In a memorandum of the same day, Ballard wrote to AG’s: ‘the intention is that the Administrator will negotiate with the Nominations Committee. During the course of this negotiation either he or the Nominations Committee may refuse to accept the view of the other and their mutual agreement will be necessary in order to submit a list to the House of Assembly. It is intended therefore that the House of Assembly shall have the authority only to accept or reject a list as a whole’. He also wrote that DOET did not want to proceed with listing separately the functions ofMMs and AMMs (NAA: A452, 1970/4520).
1 Memorandum, DOET (Ballard) to Cabinet Office, 23 April 1969, NAA: A452, 1970/4520.
2 The recommendation in paragraph 9(b) was withdrawn by Barnes as it was to be considered later along with other amendments to the Territory Public Service (decision no. 157, NAA: A5868, 59).
3 Telex 4665, Hay to Warwick Smith, and telex B270/4089, Warwick Smith to Hay, I May 1969, NAA: A452, 1970/4520.
4 The Eighth Schedule was an undertaking not to divulge confidential information obtained in the course of duties for the AEC. The Ninth Schedule applied this stricture to holders of ministerial office.
5 Commonwealth parliamentary debates (Reps), 2 May 1968, vol. 58, pp. I 055–60.
6 ibid., 9 May 1968, vol. 59, pp. 1300–06.