Canberra, 10 December 1969
On 22nd August, 1969, your predecessor wrote to me regarding the Papua and New Guinea House of Assembly’s resolution on West Irian.2
While I accept the method of transmission in that case, that is to accompany the resolution with a note which dissociates its expression of views from those of the Australian Government, I question whether the Government should always dissociate itself from a resolution being sent to the United Nations in the terms suggested in this case. It would seem preferable to use a neutral form common to all cases which makes it clear that the resolution comes from the House of Assembly and is not necessarily in accordance with the views of the Government; but without giving any indication of whether it has specific Government support or not.
For the future, when the House may wish to express its opinion on foreign affairs, I agree it is desirable to try to encourage the development of the procedure you set out so that the House of Assembly transmits its views to the Australian Government only. To bring this about in practice will depend on the co-operation of the House of Assembly itself and I shall take what steps I can towards achieving this end but can give no assurance that this view will be acceptable to the House.
[NAA: A1838, 936/4/11 part 2]
Bougainville: legal challenge by indigenes
In October 1968, DOET received news that the PNG Public Solicitor, acting on behalf of indigenes, was considering a legal challenge to the validity of the Territory’s Mining Ordinance.1 He had indicated that the ordinance might be contested on the grounds that it infringed the provisions of the federal constitution. By February 1969, the suit had not been initiated, but the Government had become worried in the face of an accelerating program on Bougainville and the threat of an interim injunction.2 Territories cabled the Administration that ‘this legal challenge is of first importance and the Minister will shortly have a firm view on whether CRA can safely embark on very large expenditures … The danger of the present position is that there is nothing to cause the Public Solicitor to hurry in bringing the action on whereas both the Administration and the company will be very seriously put out if it is impossible to proceed because of the threat of an action’.3
The company did nothing to divest Canberra of the view that the situation was perilous. P.H.N Opas, a CRA legal officer, proposed to DOET that the Administration change the ordinance to put the question of mineral rights beyond doubt.4 He also warned that he would advise the company to call off the project even if the chances of a successful challenge were only five per cent.5 The Department did not to panic. Ballard counselled his colleagues to be ‘careful about being stampeded by C.R.A.’, doubting whether Opas would proceed with his threat ‘when the chips are down’.6 As it stood, the Government had given warranty of title and would be liable if the company were prevented from mining. Indeed, Ballard believed CRA were more concerned about a drop in share price that might accompany a court case.
Having decided to face litigation, Canberra took a tough line. Here, Peter Lalor, the Public Solicitor, became a target. He was told that the Department was aware of a speech he had given criticising the ‘application in [PNG] of the doctrine that fixtures go with the land’ and it threatened that ‘If he were to publicly oppose our legislation he could expect us to use his own address against him’.7 Early consideration was given to abolishing his position,8 but the final conclusion was that the Minister should reserve the right to discontinue his funding. Hay was instructed that ‘the provision of funds for the Public Solicitor to proceed with the Bougainville case beyond the stage of obtaining a preliminary opinion from counsel is a matter requiring authorisation by the Minister’.9 Hay objected strenuously to the instruction. In a letter to Barnes, he wrote that he was ‘very concerned’ because ‘the direction gives rise to the impression that the Government is attempting to use financial pressure in order to limit the performance by the Public Solicitor of his official duties’.10 He continued:
The duty statement for the Public Solicitor includes the following:
‘Generally advise indigenous persons as to their legal rights and obligations and ways and means of enforcing legal rights.’
The previous Minister for Territories specifically, … deliberately excluded any limitation of the functions of the Public Solicitor to criminal cases.
There is therefore no doubt in my mind that the only limitation upon the Public Solicitor’s duty to engage in legal action on behalf of impecunious persons is that imposed by his own discretion as a responsible officer.
Assuming that the discretion on whether or not to intervene by means of legal proceedings correctly rests with the Public Solicitor, it could be argued that he has to seek authority to engage counsel. This is true. The present practice is that the Public Solicitor seeks authorization from the Secretary for Law. There is a vote … from which the expenditure could be authorized. The Secretary for Law’s authority is based on his delegation of up to $10,000 pursuant to Treasury Regulations … The considerations which actuate the Secretary for Law in giving approvals within his delegation for the expenditure of public monies on outside legal assistance are:—
a) Whether the proposed action has any legal chance of success;
b) Whether the result of the action would have any general application in furthering the claims of the class of persons for whom the Public Solicitor acts; and
c) The ordinary considerations applying in legal practice including in the Commonwealth Crown Solicitor’s Office that in certain cases it is more economical to employ an outside specialist than employ a specialist permanently on a staff.
The factors set out above cause me to recommend strongly to you that no change be made in the present practice whereby the authorization for the employment of outside counsel rests with the Secretary for Law within his delegation of $10,000. There is of course no question of the Administration authorizing expenditure of this nature without informing the Department. This too is normal practice.
I appreciate the Government’s concern lest action by the Public Solicitor in a given instance be in direct contradiction to the purpose and tenor of Government policy. This possibility is inherent in the appointment and duties of a Public Solicitor. The underlying assumption in the appointment is that the Public Solicitor would act responsibly If there is reason to doubt this in a given case, then I would agree that the Secretary for Law should not authorize the expenditure of public monies on the engagement of outside legal assistance, and have so directed him. Indeed, the Secretary for Law should be watchful that the Public Solicitor does not exceed the scope of his duties whether or not outside legal assistance is involved. However, the judgement as to whether this is so or not in a given case should, I believe, continue to rest with the Secretary for Law. This is so because he is in the best position to judge. To remove this responsibility from the Secretary for Law would appear (since it will undoubtedly become known) to involve the Government in giving directions or using pressure in a way contrary to its own intentions in setting up the office of Public Solicitor.
In the circumstances I ask that you review the direction to which the Secretary referred … and leave the procedure for authorizing expenditure up to the limit of $10,000 as it now stands.
_It was left to Warwick Smith to answer—and he was uncompromising. Disregarding the possibility that Hay was disturbed by both the specific incident and a violation of principle, the Secretary commented that the letter ‘seems to imply that the Minister’s direction related generally to approvals for authorising expenditure by the Public Solicitor’, yet the edict related ‘solely’ to the Bougainville case.11 He asserted that the
possible legal challenge to Bougainville is in a special situation … because of its importance to the Territory … The matter has already been to Cabinet once and is of such importance that any major decision must be made by the Government. For this reason the Minister is not prepared to vary his previous direction.
_
Lalor filed a writ in the Territory’s Supreme Court on 8 August, agreeing not to apply for an injunction on condition that discussions or negotiations with CRA and the Administration were without prejudice.12 The company did not interpret this as a conciliatory gesture. Complaining of the time granted Lalor for the delivery of the statement of claim, Opas remarked to Ballard that ‘It seems fairly clear that Lalor’s tactics involve keeping the writ on foot without reaching any finality so that he can use it as a bargaining power in any negotiations regarding compensation and occupation fees for land involved in mining tenements’.13 ‘The presence of this writ’, Opas wrote, ‘is most embarrassing to the Company in its negotiations with banks from whom large sums are hoped to be borrowed’. He proposed that the tactical rejoinder be that CRA, having joined the Administration as a co-defendant, take out a demurrer because ‘this is a method of speedily resolving constitutional challenges in the High Court [of Australia]’. In this way, Opas hoped to have the matter disposed of ‘as soon as possible and certainly before Christmas’.
Not all in Government were comfortable with this thrusting urgency. The Solicitor-General, R.J. Ellicott, opposed the demurrer on the grounds that it opened the possibility of having to admit parts of the plaintiff’s statement of claims as they related to non-constitutional questions.14 This, in turn, might complicate the case by necessitating a defence in the Territory on the basis of customary and German law—and Ellicott appeared to believe it might in the long run be quicker to allow a full hearing.15 But the company was in no mood to slow. The tenor of its approach had earlier been clear when Opas told Mentz that his ‘policy was to press the strongest possible line … and show no compromise or weakness whatsoever’.16 Therefore, it was decided that Mawby would ‘get in touch with the Minister to bring pressure on the Solicitor-General’.17 Mawby duly spoke to Barnes, who jointly resolved with the Attorney-General, T.E.F Hughes, that the High Court tactic would proceed.
There were jitters on CRA’s side in the fortnight before the case was heard. In late November, Territories was informed that the company’s board was to consider the question of ‘What happens if the decision goes against us … ?’, and the Department was asked to provide a contingency plan.18 Gregory thought CRA might be assured that the Government was ‘committed to make the land available … every effort will be made to pass legislation which will restore the validity of the Ordinances’. However, Ballard instructed that the company be told the Department ‘was unable to answer the hypothetical question’.19 A day later, the company tried again. Espie rang, explaining CRA’s anxiety that it might be caught ‘on the hop’.20 He said that ‘if adequate arrangements are not made quickly [the company] could be in a serious financial position if suddenly notified in say—February—that the case had gone against us’. Ballard wrote privately that this was ‘a misconception’ as an adverse finding would result in drawn out hearings on other grounds.21
In the end, the hearing was remarkably uncomplicated. The court listened to the plaintiff’s argument, but did not request a defence from the Commonwealth or CRA.22 A clear decision was given in favour of the validity of the mining ordinances.
1 McMahon had replaced Freeth on 12 November 1969.
2 Document 308. See also Document 315.
1 Telex 8710, Hay to DOET, 31 October 1968, NAA: A452, 1968/5717.
2 Hay informed Canberra in mid-February of the prospect of an injunction (see letter, Hay to Warwick Smith, 16 February 1969, NAA: A452, 1968/6220).
3 Telex B270/2161, DOET to Administration, 10 February 1969, NAA: A452, 1969/2158.
4 Denoon, Getting under the skin , p. 141.
5 Minute, Ballard to Gutman, 21 February 1969, NAA: A452, 1969/2158.
6 loc. cit.
7 Minute, Ballard to Warwick Smith, 21 March 1969, NAA: A452, 1969/2217.
8 Ballard reported to Warwick Smith the view of William Kearney (position unidentified, Department of Law, PNG) that ‘in the beginning the Public Solicitor’s position was created temporarily and development since then should in any case lead to some re-examination’ (minute, Ballard to Warwick Smith, 17 February 1969, NAA: A452, 1969/2160). Ballard also transmitted Kearney’s opinion that Lalor was ‘irresponsible administratively, an indifferent lawyer but a good advocate’.
9 See telex 288, Warwick Smith to Hay, 25 February 1969, NAA: A452, 1968/5717. Hay was asked to provide the amount already authorised and ‘an appropriate recommendation regarding further authorisation’.
10 Letter, Hay to Barnes, 9 April 1969, ibid.
11 Letter, Warwick Smith to Hay, 21 April 1969, ibid.
12 Telex 6238, Hay to DOET, 8 August 1969, ibid.
13 Letter, Opas to Ballard, 18 September 1969, NAA: A452, 1969/3767.
14 Minute, A.C.H. Campbell to Gutman, 17 November 1969, ibid.
15 See loc. cit. and minute, Ballard to Warwick Smith, 23 October 1969, ibid.
16 Minute, Mentz to Warwick Smith, 9 October 1969, ibid.
17 Minute, A.C.H. Campbell to Warwick Smith, 17 October 1969, ibid.
18 Minute, Gregory to Gutman and Ballard, 27 November 1969, ibid.
19 See marginal note by Gregory, 27 November 1969, on loc. cit.
20 Minute, Richardson to Ballard, 28 November 1969, ibid.
21 See marginal note by Ballard, 3 December 1969, on loc. cit.
22 Minute, A:C.H. Campbell to Warwick Smith, Ballard, Gutman and Richardson, 10 December 1969, ibid.