Canberra, 27 January 1966
Confidential
Papuá New Guinea—constitutional development
1. The purpose of this submission is to review briefly constitutional development in Papua and New Guinea since the establishment in 1964 of the House of Assembly and to seek approval for proposals in connection with possible further political and constitutional advance.
Present constitutional arrangements
2. In 1964 the House of Assembly was established in succession to the former Legislative Council by amendment of the Papua and New Guinea Act. The responsibility for the executive government of the Territory remains with the Commonwealth, and this responsibility is exercised through the Administrator appointed to administer the government of the Territory on behalf of the Commonwealth. There is a Territory public service, the members of which are responsible to the Minister. There is an Administrator’s Council established under the Papua and New Guinea Act to advise the Administrator. Except where an Ordinance requires the Administrator to seek the advice of the Administrator’s Council the matters on which he seeks the advice of the Council are for the Administrator’s own discretion.
3. The House of Assembly consists of 64 members, 54 of whom are elected from a common roll, 44 in open electorates, and 10 in special electorates with candidature reserved for non-indigenous persons, and 10 are official members appointed by the Governor–General on the nomination of the Administrator.
4. In addition to the Administrator, the Administrator’s Council comprises 3 official members, and 7 elected members of the House of Assembly appointed by the Minister. It has only advisory functions but where the Administrator is required by Ordinance to seek the advice of his Council on a particular matter the Administrator must report to the House of Assembly his reasons when the advice of the Council has not been accepted.
5. There is also an Under-Secretary system established from among elected members to understudy official members who act in the legislature in a role resembling that of ministers. Ten Under-Secretaries have been appointed. These are primarily training positions and do not involve the holders of the office in any responsibility for the administration of the departments represented in the House by the official members concerned.
Timing of next constitutional changes
6. On 19th May, 1965, the House of Assembly appointed a Select Committee on Constitutional Development. The Committee comprises 11 elected and 3 official members and its terms of reference are ‘to consider ways and means of preparing and presenting, and to draft for the consideration of the House, a set of constitutional proposals to serve as a guide for future constitutional development in the Territory.’
7. In its recommendations the meeting of the Trusteeship Council of the United Nations held earlier this year1 made reference to the Select Committee and recommended that it should consider a wide range of constitutional matters and in particular the idea of a Ministerial Cabinet in which New Guineans should hold positions of responsibility. The Council expressed itself to believe that the ‘next step in constitutional development is to bridge the gap between a fully representative Parliament and a fully responsible Government’ and suggested that preparation for this transition should be one of the principal tasks of the Select Committee.
8. In an interim report to the House of Assembly on 26th November, 1965, the Select Committee stated that it is reasonable to suppose that the Australian Government will consider further changes in some aspects of the House of Assembly before the 1968 elections. Because of the time element the Committee said that if the House of Assembly is to advise the Australian Government on these matters it should do so by early 1967. Because of this the Committee wishes to report to the House of Assembly on those questions by the end of 1966; it plans to meet in January next year2 to consider possible constitutional changes before the next House of Assembly elections in 1968 and to consider the various ways of obtaining the opinion of the people on such changes. The report also referred to the important initial task of the Committee of formulating possible alternatives from which the people may choose their long-term future and to the desirability of having, after their January meeting, exploratory discussions with representatives of the Australian Government, particularly on the matter of the range of special relationships between the Territory and Australia.that would be acceptable to Australia. The Committee is to present its final report to the House of Assembly in 1967.
9. Our stated policy is that changes in constitutional arrangements in the Territory will be made only after there has been full consultation with the people of the Territory to ascertain their views. The best indication whether there is a widespread support for particular proposals for changes is likely to come from the activities of the Select Committee and from the proceedings of the House of Assembly itself.
10. It would weaken the effect, both in the Territory and internationally, of any changes made following the Select Committee’s enquiries if the Government appeared to have influenced the Select Committee to the exclusion of the views of the Territory people. Every assistance is being given to the Committee to inform itself on the principles involved in constitutional development, and it is being provided with information on experience elsewhere.
11. On the other hand it would be advantageous if the recommendations made by the Select Committee were of such a nature that the Government could accept these without embarrassment. If Cabinet were able at this stage to give some guidance as to its likely views it might be possible for some influence to be exercised towards an acceptable result, for example, by ‘floating’ suggestions through the official members on the Select Committee or by informing the Select ‘Committee of the Government’s attitude. Action would be taken in such a way as to avoid appearance of undue influence on the Select Committee.
12. While this submission concerns only possible changes in 1968 in the present constitutional arrangements the Select Committee will also be considering ultimate constitutional arrangements for the Territory which, as it notes, will necessarily include its relationship with Australia. I propose to make a separate submission to Cabinet within the next few months regarding possible long-term relationships between the Territory” and Australia.
Development of a local executive
13. The present constitutional arrangements give the indigenous people a real share in the process of making laws for the Territory. In practice they are taking very little share in the executive government. Partly this is a consequence of the low level of administrative capacity on the part of many of the elected members which has prevented the Under–Secretaries, with two or three exceptions, from being able to take an effective part in administration. In addition, the Administrator’s Council and the Parliamentary Under–Secretary system being advisory only in nature are not drawing the elected members sufficiently into the day-to-day processes of administration. If any changes are to be implemented after the 1968 elections, it is considered that they should be directed towards involving elected members more closely in administration both as the quickest way of increasing their capabilities and giving them a greater feeling of participation.
14. Without committing ourselves at this stage to particular proposals for changes it would seem possible to determine certain requirements with which any proposals for interim changes in executive government (short of self–government) should not conflict if they are to be supported officially. These requirements would then serve as guides within which policy could be determined. Such requirements are considered to be—
(i) though the Commonwealth would progressively devolve its authority, in practice it would, short of self-government, retain final responsibility in the sense that it remains accountable for the administration of the Territory; and the Minister would retain the right to direct policy or to question any action;
(ii) this devolution would not apply in relation to certain ‘reserved’ subjects—internal security, external affairs, defence, constitutional advance, law and information;3
(iii) the need for a reasonable pace of constitutional development has to be balanced with the difficulty of maintaining standards of administration; progress needs to be evolutionary and educational but cannot await the availability of persons with full capacity to operate at normal standards of developed countries;
(iv) the extreme economic dependence of the Territory and the fact that a substantial part of the Budget is met by Australia must be recognised; in these circumstances the Commonwealth must determine the strategy of the Budget;
(v) the Commonwealth Government’s control over the conditions of service of the Australian members of the Territory public service must be preserved; and
(vi) the final constitutional pattern for a self-governing territory should not be unduly determined by the interim arrangements.
If there is strong and widespread popular support in the Territory for development of something in the nature of ministerial responsibility for some elected members of the House of Assembly I consider it should prove possible to seek, through the Select Committee, to work out proposals consistent with the following principles—
(vii) 4 the object of the changes should be to ensure that elected members of the legislature, within defined limits, in practice as well as in form, carry some responsibilities of a ministerial character;
(viii) these ‘quasi–ministers’ or ministerial representatives would be responsible within defined limits for certain selected departments dealing with matters of immediate electoral concern such as Education, Health and Works (but not for ‘reserved’ departments such as Administrator’s Department, Law, Information, Police and Security);
(ix) though the arrangements should ensure maximum participation and exercise of authority in the day-to-day business of the administration of the Departments concerned, the authority and responsibility of ‘ministerial’ representatives must be confined within arrangements which leave to the Administrator as the representative in the Territory of the Commonwealth Government ultimate authority within the Territory in accord with the first principle set out above;
(x) it should be recognised that movement towards a ministerial system requires a complementary move forward in the Administrator’s Council so that it becomes the forum for collective policy making and its composition is limited to the holders of ministerial office and officials.
15. The Annex to this submission contains an illustration of an arrangement which might achieve this purpose. This annex is not included for the purpose of obtaining approval to the specific proposal set out in it but merely as an indication of an arrangement which could be evolved within the compass of the principles set out in the previous paragraph.
16. If the procedure suggested were implemented, the Government would need to be prepared to accept local advice on matters in the social welfare group of activities within a predetermined amount of finance. On functions vital to Australia’s responsibilities in the Territory, such as law and justice, internal security and economic development, the suggested formula would not change the present arrangements but would provide for maximum consultation with the Administrator’s Council so that its advice would be available when policy decisions are being taken.
17. The suggested procedure proposes that the Commonwealth grant continue to be made available as a lump sum support to the budget. The possibility has been examined of ‘splitting’ the Territory budget so that the local revenues of the Territory would finance the sphere of activities to be controlled locally and the Commonwealth grant would finance matters retained under direct Commonwealth control. However, Territory local revenue does not this year exactly match with the costs of a group of activities which are appropriate for local control. Even if it did, it is improbable that such a situation would apply in succeeding years. The grant is at present determined after all avenues of raising internal revenue to meet proposed expenditures have been explored. The importance of local revenue as a component of the total budget is increasing and this year local revenue is expected to meet 33.4 per cent of the Territory Budget. We would hope to reach a position in which increases in local revenue could be used to reduce the financial gap rather than to expand particular local activities. The difficulty which is inherent in a ‘budget splitting’ arrangement, at this stage seems to outweigh possible advantages.
18. Any transitional arrangements for quasi–ministers or ministerial representatives will impose strains and stresses on both the Territory Administration and the Government. We are not likely to avoid this problem in a transitional stage and it seems to be part of the process of constitutional development in an emerging dependent territory that such strains and stresses will occur.
COMPOSITION OF THE HOUSE OF ASSEMBLY
Special electorates
19. The 1962 Select Committee of the Legislative Council5 recommended that the House should include’ 10 non-indigenous persons elected from the common roll as members from “reserved electorates”’ adding that ‘this provision should be revised before any election in 1967’. That Committee, although opposed in principle to any form of reserved seats and special racial rolls, felt it could not ignore the strong probability that no Europeans would be returned from a normal roll election; six Australians were, in fact, elected to open seats.
20. The reserved seats with a racial qualification provide an obvious point of criticism especially internationally.
21. I do not consider that it would be politically wise to advocate for the abolition of the reserved electorates since some of the Government’s strongest critics come from this group. I consider that the approach should be that the Government would not see difficulty in a recommendation by the House of Assembly that these seats should be abolished or reduced in number, or some other qualification, e.g., minimum education or prior experience as a member of local or central government, be substituted for the racial one. The point should be made that, with the pressure to give more indigenous people experience in the House of Assembly, the continued existence after 1968 of special seats from which they are precluded seems anomalous.
SIZE OF THE HOUSE
22. The 1962 Visiting U.N. Mission recommended a House of 100 persons but this number was not recommended by the Select Committee of the then Legislative Council at that time. The Committee considered such a body would be irresponsible; too unwieldy; there was probably an insufficient number of persons capable of carrying out the duties of members; and such a body would be too costly. The Committee recommended representation on a sub-district basis, finally proposing 44 members.
23. The 1965 report of the Visiting U.N. Mission noted that the House had fewer members than the previous Mission had recommended and that it had been suggested that a larger assembly, besides being more representative, might have permitted some of the younger educated indigenous people to be elected. The 1965 Trusteeship Council recommended that the Constitutional Committee should look at the previous recommendations for an enlarged House.
24. The best course might be for an increase in membership of the House not to be opposed but for it to be suggested that this should be considered on rational principles designed to secure a balanced and effective distribution and not on any preconceived figure. It would also be desirable for it to be pointed out that any substantial increase of expenditure on the House of Assembly would mean a reduction elsewhere.
Official members
25. The Trusteeship Council has recently reiterated the proposal for the total elimination of official as well as special seats in the House. The 1962 Visiting Mission recognised a need for some official representation and the 1965 Mission made no recommendation in this respect.
26. The suggestion for increased participation of elected members in the executive government referred to in paragraph 14 requires that a certain number of official members shall remain in the House. In any case it seems probable that external affairs, defence, internal security and the public service should remain outside the control of elected members for as long as Australia remains responsible for the Territory. I consider that enough official members should remain in the House of Assembly to represent adequately the policy and views of the Administration and to ensure the efficient conduct of Government business.
RECOMMENDATION
27. I recommend that Cabinet agree that—
(a) if the Select Committee’s inquiries disclose that there is a strong and widespread popular support for early constitutional changes in Papua and New Guinea towards increased participation in the executive government by elected members, changes in harmony with the principles set out in paragraph 14 above, to apply immediately after the general election in 1968, would be acceptable; and
(b) if there is strong support for changes in the present composition of the House of Assembly, the official attitude follow the lines set out in paragraphs 21, 24 and 26 above.
Attachment
ILLUSTRATION OF ARRANGEMENTS UNDER WHICH ‘QUASI-MINISTERS’ MIGHT OPERATE
In considering the possibility of associating elected members with the executive government account must be taken of areas of special Commonwealth interest, namely:—
(i) defence, external affairs, information, internal security and police, the public service, and constitutional changes;
(ii) the Budget, which is the joint concern of the Commonwealth and the Territory while a large portion of the-ordinary Budget remains provided by the Commonwealth grant;
2. It seems possible, in respect of the remaining matters to involve the elected members in the formulation of policy and to give them duties and functions in the Administration so that they assume some (but not all) of the functions and responsibilities of Ministers.
3. Two possible major changes are:—
(a) to create the position of Parliamentary Secretary;
(b) to change the statutory functions of the Administrator’s Council so that the Council becomes the principal policy body in the territory.
Parliamentary Secretaries
4. It is proposed that as a first step, Parliamentary Secretaries should be appointed to a limited number of departments, viz. those concerned with providing social or essential services for the people, e.g. Departments of Health, Education, Posts and Telegraphs, Works. Departments directly related to economic development (Trade and Industry; Forestry; Agriculture, Stock and Fisheries; Lands and Mining) or which deal with matters having vital Australian responsibilities (Department of the Administrator, Police) or which it is considered for other reasons would remain outside the Parliamentary Secretary system (Law) would not at this stage be changed.
5. In respect of Departments to which a Parliamentary Secretary is appointed, the Parliamentary Secretary would assume a number of the powers and duties of a Minister. He would direct the overall activities and make day-to-day decisions of his Department. On policy issues whereas the Departmental Head at present submits policy proposals to the Assistant Administrator, he would submit them to the Parliamentary Secretary. If the Parliamentary Secretary agreed with the departmental proposals, these proposals would go forward. If not, the proposals would go to the Administrator’s Council for determination; as noted in paragraph 9 the Administrator is not bound to accept the advice of his Council, and this arrangement would preserve the Minister’s authority since the Administrator’s acceptance or variation of the advice of Administrator’s Council would in all significant cases be on the instructions of the Minister. Similar procedures would apply to policy instructions by Parliamentary Secretaries; and if the Departmental Head (i.e. the Administrator) concurred, these would go forward; otherwise they would go to the Administrator’s Council.
6. The Parliamentary Secretary would represent his Department in the House of Assembly by answering questions; by introducing and carrying legislation concerning his Department through all stages of proceedings; and by giving his Department’s view on resolutions and motions affecting his Department. He would resign on a vote of no confidence passed by the House.
7. In the same way he would represent his Department in the Administrator’s Council (which would become rather more of an embryo Cabinet). In the House of Assembly he would defend his administration of his Department. As a member of the Administrator’s Council he should support or at least not publicly criticise or oppose policies or actions of the Administration.
Administrators Council
8. Apart from budgetary proposals (which are considered later) it is contemplated that the Administrator would consult the Council on all matters except those relating to defence, external affairs, the public service, constitutional matters and internal security (although at his discretion he could keep the Council informed on those matters). In urgent cases the Administrator would be able to act without the advice of the Council but would have to let the Council know as soon as possible of the action which he has taken.
9. The Administrator would not be required always to accept the advice of his Council. In practice it could be hoped that few occasions would arise where it should be necessary for the Administrator to act contrary to the advice received, in particular, on matters concerning Departments represented by Parliamentary Secretaries. A convention should be established that if this occurred, the Administrator should be required to inform the Minister. Similarly the Parliamentary Secretaries should, in any case, be able to request that their dissenting views be conveyed to the Minister.
10. It is considered appropriate in the light of the changes proposed in respect of Parliamentary Secretaries that the composition of the Council should be changed so that it is restricted to those who bear executive responsibility, i.e. Parliamentary Secretaries, designated official members, and the Administrator. Members of the Administrator’s Council drawn from the elected members of the House of Assembly could be appointed by the Administrator but in so doing he would attempt to appoint members who would have the support of the House.
Under-Secretaries
11. The system of Under-Secretaries should continue to operate in respect of the economic group of departments but as the new office of Parliamentary Secretary would be provided for in the Papua and New Guinea Act, there would be advantages in providing also for the office of Under-Secretary in the same way.
The estimates
12. The Departmental Head would prepare his annual estimates of expenditure and, if there is a Parliamentary Secretary for that Department, submit them to the Parliamentary Secretary for agreement before forwarding them to the Territory Treasurer. The Treasurer’s draft Territory Estimates would be examined governmentally by a committee of officials before the draft Estimates are submitted to the Administrator’s Council for advice. After examination by the Council the Administrator would forward the draft Budget to the Minister, indicating the changes made on the advice of the Administrator’s Council, and giving his comments on any changes advised which he has not accepted. The preliminary draft Budget would be settled by the Minister at this stage. If the draft required revision following determination of the Commonwealth grant, the procedure of the Territory Treasurer submitting a revised Budget to the Council for advice would be followed again.
13. These procedures would retain with the Minister for Territories the ultimate direction of the administrative effort subject to the House of Assembly creating a deadlock by refusing to pass the Budget. The aim in the Council would be to explain to the elected members the principles on which the draft Budget has been formulated, and to secure their broad support to the framework of the Budget. Views of elected members on the proposed items of expenditure for the social welfare group of Departments (otherwise than to increase substantially the overall expenditure proposed) may have to be accepted; the main effort of the Administrator in the Council would be to gain the acceptance of the Council to the economic development side of the Budget.
14. It should, by means of such consultation, be possible to reach a position on the Budget whereby the elected members on the Administrator’s Council would support the appropriation and financial measures in the House of Assembly.
[NAA: A5841, I]
1 That is, 1965. It is probable that the wording of a draft Cabinet submission, dated 7 December 1965 (see NAA: A452, 1970/3769), was unwittingly retained in the final version.
2 See footnote I. In addition, the allusion to January in an interim report by the Committee (see NAA: A 1838,936/5 part 2) is most naturally interpreted as January 1966.
3 The Commonwealth reserved for itself the right to control aspects of the Territory’s government, including those listed in addition other elements such as the police, public service machinery and tax (see, for example, speech by Barnes, 20 October 1966, Commonwealth parliamentary debates (Reps), vol. 53, 1966, p. 2002; section 55 of the Papua and New Guinea Act 1966; and attachment to Document 168).
4 Apparently, the following sub-paragraphs were incorrectly numbered as part of the previous sequence of sub-paragraphs.
5 The Committee was appointed in March 1962 for the purpose of reporting to the Legislative Council (predecessor of the House of Assembly) on the extent and requirements of political development in the Territory.