Canberra, 9 July 1969
Steps in constitutional development
You directed me some time ago to prepare a paper on the steps which should be taken at our end preparatory to self-government and independence.
[ matter omitted ]
4. The general approach adopted is that preparation of Cabinet Papers should commence respectively—
• 4 years before self-government;
• 3 years before independence.
This would involve prior discussion with other Departments in many cases and it seems that preliminary consideration in this Department should commence up to 6 years before self-government. A somewhat shorter period would be necessary before independence as less questions of importance should remain to be settled.
5. At this stage the paper is only a skeleton of the problems and procedures involved and the Departments which would need to be consulted. You may think it best that it should remain in this form for the present because—
• circumstances may change in many ways before it becomes necessary to take action;
• a wide range of discussion both in DOET and with other Departments would be desirable to fill in the detail and these could start some undesirable rumours.
6. If, however, you decide that the detail should be filled out with consideration of the substantive issues involved we will try to play it in the lowest possible key and keep discussion with other Departments to a minimum.
Attachment
STEPS IN CONSTITUTIONAL DEVELOPMENT
This paper is an attempt to set out the steps which must be taken prior to TPNG achieving self-government and independence. As I understand the assignment, it is concerned primarily with the steps which must be taken by the Australian Government and not with developments inside the Territory which might be considered a necessary pre-requisite to viable self-government or independence.
The paper is written on the assumption that there will be two defined stages in the Territory’s constitutional development, firstly self-government and secondly independence. For the purposes of the exercise, self-government is taken to mean the achievement of a government which in the terminology of the constitutional lawyers is sovereign within its powers. This means that like the Australian States or for that matter the Commonwealth itself it is supreme or sovereign in relation to a limited range of subjects. In the case ofthe Territory probably this range will be wider than the subjects assigned to an Australian State but the real point is not the range of subjects but the possession of unfettered power in relation to them.
The second stage, independence, may be taken to mean that P&NG will then possess most of the attributes of a state at international law. The definition, however, does not prejudge whether any special relationship between P&NG and Australia may result in the situation in which the Territory does not exercise some of these powers of statehood.
In practice it is obvious that the nature and form of self-government and of independent statehood will determine whether some of the questions discussed below arise at one stage or other or whether they arise at all. For example, a self-governing but not independent country can possess its own army as the Australian colonies did before federation. On the other hand an independent State could theoretically at least enter into arrangements with Australia which made it unnecessary for it to maintain its own defence forces. Since this paper is essentially an exercise in time limits its seems sensible to assume that self-government will involve the widest possible range of powers. This means that some of the questions considered as a prelude to self-government may not in fact need to be considered until self-government is achieved and consideration is being given to independence.
In the discussion below the figures indicate the period in years prior to self-government when the activity in question should take place e.g., ‘4.0–3.5’ means the activity should commence 4 years before self-government and be completed 3.5 years before.
BEFORE SELF-GOVERNMENT
1. Constitutional
Work out a constitution acceptable to TPNG and Australia.
Problems
• mode of formulation and agreement in TPNG e.g., by referendum, constitutional convention, etc;
• whether any amendment of Australian constitution is necessary—depends on interpretation of section 122 of constitution1 and on the nature of the self-governing State’s relationship with Australia.
Suggested programme
• Preparation of Cabinet paper defining limits to which government is prepared to go. 4.0-3.5
• Consideration and approval by Cabinet. 3.5–3.0
• Select Committee of House of Assembly to draft constitution. 3.0–2.0
• Presentation to and discussion and adoption by House of Assembly. 2.0–1.5
• Provisional acceptance by Australian Government (and Parliament?) 1.5–1.0
• Election in TPNG—endorsement of constitution by new House. 1.0–0.5
• Passage of necessary legislation in Commonwealth Parliament. 0.5–0.0
2. Appointments
Although most appointments would continue some new ones will probably be necessary—as a minimum there will probably be a Governor or High Commissioner but there could conceivably be others.
Consideration of suitable appointees should begin as soon as the proposed constitution is provisionally accepted by the Australia Government—the time is therefore …2 1.0–0.0
3. Legal System
Make the necessary adjustments to the legal system.
Problems
• Powers now vested in Minister and Administrator mostly to be transferred to some authority in TPNG, say Governor-in-Council.
• In many ordinances powers divided between Minister and Administrator—these will need detailed revision as various sections would be meaningless if all powers of both were vested in Governor-in-Council.
• Australian, especially Queensland, law incorporated in Territory legal system—should be reviewed to determine if any action appropriate before self-government.
• Appeals to High Court—necessary to determine whether these should continue—perhaps in modified form.
The complexity of these questions makes it undesirable and perhaps in some cases impossible that they should be handled primarily by a Select Committee or Constitutional Convention.
Suggested programme
• Expert Committee on legal implications of self-government to prepare report, working in conjunction with Select Committee. 3.0–2.0
• Interim report—principles only—to be considered by House of Assembly. 2.0–1.5
• Provisional acceptance by Australian Government. 1.5–1.0
• Expert Committee to prepare statute law revision ordinance. 1.5–0.5
• Passage of statute law revision ordinance by House of Assembly and perhaps Commonwealth Parliament in conjunction with constitution. 0.5–0.0
4. Commonwealth Departments
A decision needs to be taken on the future of the Commonwealth Departments and instrumentalities now operating in the Territory.
Problems
• In addition to Defence departments, Commonwealth and Reserve Banks and TAA (which are dealt with below) these are—
- Audit
- Civil Aviation
- Met. Bureau
- National Development
- Works
- A.B.C.
- O.T.C.
- C.S.l.R.0.3
- P.S.B.4
• The nature and form of self-government adopted will have a substantial influence on whether these Commonwealth organisations continue operating in the Territory.
• The Departments etc., concerned should be consulted well in advance of the constitutional drafting stage so that their views can be taken into account.
Suggested programme
• Some functions should probably be transferred to Administration well before self-government.
• It is most desirable to build up a strong tradition of audit within the Administration. Examination of the possibility of setting up a TPNG Audit Office should commence immediately.
• The position in relation to DCA will also come under examination as a result of the UNDP Transport Survey.5
• DOET should work out its position on remaining departments. 6.0–5.0
• Discussion with departments prior to preparation of Cabinet Paper. 5.0–4.0
5. Australian Government Assets
Depending on the outcome of 4 above some Australian Government aspects may need to be transferred to the PNG Government.
Problems
• Determination of assets to be transferred.
• Question of payment, especially where statutory authorities involved e.g., A.B.C.
• Legal provisions involved.
Suggested programme
• Assets to be transferred to be determined and question of payment settled in conjunction with 4 above. 6.0–4.0
• Legal provisions necessary to be considered by Expert Committee (3 above). 3.0–2.0
6. Australian Private Assets
To protect Australian investments after self-government and to prevent any panic repatriation of capital.
Problems
• Select among alternative means of providing security e.g., by guarantee, agreement with PNG etc.
• Provide effective scheme without suggesting likelihood of it being necessary.
• Provide effective scheme without unreasonable liability on Commonwealth.
Whatever scheme is adopted should be announced as early as possible to prevent a slackening of investment during the period when the constitution is under consideration.
Suggested programme
• Consideration of alternative in Department. 4.5–4.0
• If Australian guarantee desired, consult Treasury etc., and prepare Cabinet Paper. 4.0–3.5
• If provision in Territory constitution desired include in Cabinet Paper under 1 above. 4.0–3.5
7. Citizenship And Migration
To define the citizenship of inhabitants of the Territory and migration rights between Australia and the Territory.
Problems
• Satisfactory definition of the citizenship of indigenous inhabitants.
• Terminate invidious distinction between Papuans and New Guineans.
• Australians permanently resident in the Territory.
• Persons born in the Territory of Australian parents.
• Control over government of Australians into PNG—vested in government of PNG (?)6
Suggested programme
• Consultation with Department of Immigration. 5.0–4.0
• Incorporation of results in Cabinet Paper under 1 above. 4.0–3.5
8. Public Service
To ensure the continuation of a viable service in the self-governing state and to protect the rights of Australians in the PNG Service.
Problems
• Self-government must mean full control of public service.
• Unless satisfactory means are found to protect rights of Australian public servants there may be exodus of valuable staff.
It is possible that this problem may have been largely solved in advance by the creation of an Australian overseas service. If this has not been done—
Suggested programme
• Department to work out position and perhaps obtain Cabinet approval to broad outlines. 5.5–5.0
• Discussion with A.E.C. and P.S.A. and formulation, if possible, of agreed proposal. 5.0–4.0
• Incorporation of results in Cabinet Paper under 1 above. 4.0–3.5
9. Finance
To devise suitable financial arrangements for self-government.
Problems
• If PNG still heavily dependent on Australia[n] grant may seek some assurance of its continuation.
• Australian Government probably unwilling to tie its hands in this way.
Suggested programme
• Departmental working paper. 5.0–4.5
• Discussion with Treasury. 4.5–4.0
• Incorporation of results in Cabinet Paper. 4.0–3.5
10. Records
To transfer to Australian custody records which are and should remain Australian property.
Problems
• To identify appropriate records.
• To organise separation and eventual return to Australia.
Suggested programme
• Work on physical separation of these records[;] already begun (file 67 /7927).
• This should continue.
• Records should be returned to Australia over period …7 5.0–0.0
11. Missions
Missions may request some entrenched protection of their rights, especially right of entry for mission personnel.
Problems
• Any entrenchment may be considered. infringement of right of self-governing state.
Suggested programme
• Departmental examination of position. 5.5–5.0
• Discussion with Mission representatives. 5.0–4.0
• Possible incorporation in Cabinet Paper, 4.0–3.5
12. Currency And Banking
To determine whether PNG remains part of the Australian currency and banking system.
Problems
• Use of Australian currency.
• Application of Australiap banking legislation.
Suggested programme
• Study in Department. 5.5–5.0
• Discussions with Treasury, Reserve Bank, perhaps Commonwealth Bank.
• Incorporation in Cabinet Paper.
13. Trade
To determine whether self-government indicates any change in existing provisions governing trade between PNG and Australia.
Problems
• Self-government probably means PNG has power to determine own tariff structure.
• Need to determine whether this involves any change in Australian trade arrangements.
Suggested programme
• Study in Department. 5.0–4.5
• Discussion with Trade Department. 4.5–4.0
• Incorporation in Cabinet Paper. 4.0–3.5
14. Defence
To determine whether PNG should assume responsibility for own defence forces.
Problems
• Self-governing state, especially if obviously headed for independence, may wish to control own defence forces
• Complication could arise in regard to disposition of this force while Australia remains responsible/for PNG foreign relations.
• Right of Australian Government to station forces in PNG must be preserved while Australia responsible for defence.
• PNG Government may wish to have some voice in relation to facilities for, and rights of, these forces.
• Implications for defence of Australia.
Suggested programme
• Consideration in Department. 6.0–5.0
• Consideration by inter-departmental committee (DOET, Defence departments, External Affairs). 5.0–4.0
• Incorporation of results in Cabinet Paper. 4.0–3.5
15. Borders
To achieve adequate demarcation and full ratification of the borders before self-government.
Problems
• West Irian border—better demarcation; ratification.
• Australian border—possible alteration in Torres Strait.
• Both questions more difficult to handle after self-government.
Suggested programme
• Likely to be very long; drawn out.
• Efforts should be made to press both questions to conclusion as soon as possible.
16. Airlines
To settle control of air services and facilities and ownership of airlines.
Problems
• DCA—see 4 above.
• Whether self-governing PNG should/would allow TAA and ANA8 to operate on present basis.
• This could conceivably involve the future ownership of TAA assets in PNG.
Suggested programme
• Will be affected by results of UNDP Transport Survey recommendation.
• Consideration in Department. 6.0–5.5
• Discussion with DCA. 5.5–5.0
• Discussion with TAA and ANA. 5.0–4.0
• Incorporation of results in Cabinet Paper. 4.0–3.5
17. United Nations
To ensure that the form of self-government is consistent with Australia’s obligations under the Trusteeship Agreement or else that the Agreement is discharged.
Problems
• Australia has certain obligations under Agreement e.g., to guarantee freedom of speech, assembly etc.
• Self-government may mean that full power in these areas passes to PNG Government while Australia remains responsible under Agreement.
• Problems could be solved if Agreement discharged at self-government but U.N. probably unwilling to do this before independence.
Suggested programme
• Consideration in Department and discussion with External Affairs. 5.0–4.0
• Incorporation of results in Cabinet Paper.
• Consideration by Cabinet. 3.5–3.0
• Some approach for variation of Agreement may be necessary.
BEFORE INDEPENDENCE
The number of matters which must be dealt with before independence will depend very largely on the nature and form of self-government which has been adopted and the extent to which the problems raised above have been settled before self-government.
Matters which will certainly require consideration are—
• Constitutional
• Defence
• External Affairs
• United Nations
• Commonwealth of Nations
These are dealt with below. In addition, a number of other topics may require consideration if they have not been fully settled before self-government. Some or all of the following are likely to be outstanding viz—
• Commonwealth Departments
• Australian Government Assets
• Citizenship and Migration
• Currency and Banking
• Trade
• Borders
• Airlines
Those outstanding will require consideration along the lines already set out. The timetable for this consideration should be adjusted so that consideration required before the preparation of the major Cabinet Paper is completed 3 years before the anticipated date of independence.
1. Constitutional
Legal machinery for achieving independence.
Problems
• mode of formulation and agreement in PNG;
• whether any continuing association between PNG and Australia desired by either party.
Suggested programme
• Cabinet Paper defining Australian approach. 3.0–2.0
• Discussion and agreement with PNG Government. 2.0–1.0
• Drafting of constitution (or removal of limitations in existing constitution). 1.0–0.5
• Passage of legislation. 0.5–0.0
2. Defence
Defence relations between Australia and independent PNG.
Problems
• Whether any special defence arrangement desired and if so details;
• Nature of arrangement e.g., agreement before or after independence.
Suggested programme
• Inter-departmental committee. 4.0–3.0
• Incorporation in Cabinet Paper. 3.0–2.0
• Discussion with PNG Government. 2.0–1.0
3. External Affairs
Whether Australia retains any special relationship with PNG in this field.
Problems
• Obligations of independent PNG under existing treaties and conventions.
• Australian assistance in conduct of external relations.
• Whether any treaty should be negotiated in conjunction with independence.
Suggested programme
• Discussion with External Affairs. 4.0–3.0
• Incorporation in Cabinet Paper. 3.0–2.0
• Discussion with PNG Government. 2.0–1.0
• Preparation of statement accepting and defining obligations under existing treaties. 1.0–0.5
4. United Nations
Termination of Trusteeship Agreement and sponsorship of PNG membership in U.N.
Problems
• No problems likely if independence involves complete separation from Australia.
• May be difficulties at U.N. if any form of continuing association with Australia.
Suggested programme
• Declaration at Trusteeship Council by PNG head of government that arrangements for independence satisfactory. 0.5–0.0
• Trusteeship Council sponsors resolution in General Assembly terminating Trusteeship Agreement. 0.5–0.0
5. Commonwealth Of Nations
To arrange membership in Commonwealth of Nations for independent PNG.
Problems
• Machinery only.
Suggested programme
• Discussion with PNG Government. 1.0–0.5
• Application to Commonwealth Secretariat …9 after independence.
[NAA: A452, 1970/460]
1 This reads: ‘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’ ( Commonwealth parliamentary handbook 1968 , Canberra, 1968, p. 618).
2 Ellipsis in originaL
3 Commonwealth Scientific and Industrial Research Organisation.
4 Public Service Board.
5 See editorial note ‘The World Bank mission, 1967’ and Document 187.
6 The meaning of this sentence is unclear.
7 Ellipsis in original.
8 Australian National Airways—by this time known formally as Ansett–ANA.
9 Ellipsis in original.