Fishwick v Cleland (1960) 106 CLR 186; 34 ALJR 190; [1961] ALR 147 [24/1959]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Dixon CJ, McTiernan J, Fullagar J, Kitto J, Menzies J, Windeyer J
• Judgment Date: 10 August 1960
• Citation: [1961] ALR 147 [24/1959]
• Year: 1960

High Court: Dixon CJ, McTiernan J, Fullagar J, Kitto J, Menzies J, Windeyer J

Judgment Delivered: 10 August 1960

1 Papua and New Guinea—Validity of Union—Trust Territory—Trusteeship Agreement—Constitutional power of the Commonwealth—External affairs power—Power to legislate for territories—Whether territory "acquired by the Commonwealth"—Legislative Council of Papua and New Guinea—Vacancy in membership—Subordinate legislation—Validity of Act—Charter of the United Nations, Chs XII, XIII—The Constitution (63 & 64 Vict c12), s51(xxix), s122—Papua and New Guinea Act 1949–1957 (Cth) s5—s10, s36(1), s37(3), s38 (2A), s41, s44 and Fourth Schedule—Income Tax and Social Services Contribution Assessment Act 1936–1959 (Cth)—Income Tax Act 1959 (Papua and New Guinea).

2

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The plaintiff Mervyn Wallace Fishwick issued a writ against the first defendant, The Honourable Donald McKinnon Cleland. Before an appearance had been entered, the statement of claim was amended to add the Territory of New Guinea and the Commonwealth of Australia to the title of the proceedings as defendants. The parties to the statement of claim as amended concurred in stating a case pursuant to O35, r1, of the High Court Rules for the opinion of the Full Court. Leave was granted at the hearing to add the Territory of New Guinea and the Commonwealth of Australia as defendants to the writ, each having appeared by counsel.

The case stated, so far as is here material, was in the following terms:—"1. The Territory of Papua comprises territory which was placed by His Majesty King Edward VII under the authority of, and accepted by the Commonwealth of Australia. The Territory is still under the authority of the Commonwealth. 2. Prior to 1st July 1949 the Territory of Papua was administered as a Territory of the Commonwealth of Australia in accordance with the provisions successively of the Papua Act 1905–1940, the National Security (Emergency Control) Regulations and the National Security (External Territories) Regulations 1944 under the National Security Act 1939–1946 and the Defence (Transitional Provisions) Act 1946–1948, and the Papua–New Guinea Provisional Administration Act 1945–1946. 3. Since 1st July 1949 the Territory of Papua has been administered in accordance with the provisions of the Papua and New Guinea Act 1949–1957. 31. On 24th October 1945 the Charter of the United Nations came into force. Australia became an original member on 1st November 1945, the date of deposit of Australia's ratification. 32. On 30th October 1945 the Papua–New Guinea Provisional Administration Act 1945 came into operation. 34. By means of a Trusteeship Agreement approved by the General Assembly of the United Nations on 13th December 1946, the Government of the Commonwealth of Australia placed the Territory of New Guinea under the system of International Trusteeship established under Chs. XII and XIII of the Charter of the United Nations. A copy of the Trusteeship Agreement in respect of the Territory of New Guinea is set out in the Fourth Schedule to the Papua and New Guinea Act 1949–1957, of which a copy is annexed hereto and marked with the letter 'E'. 35. On 1st July 1949 the Papua and New Guinea Act 1949 came into operation. 36. On 26th November 1951 the Legislative Council for the Territory of Papua and New Guinea purported to commence to exercise its powers and perform its functions under the Papua and New Guinea Act. 37. On 14th July 1959 the said Legislative Council purported to pass a Bill for an Act entitled the 'Income Tax Act 1959'. 38. On and prior to 22 June 1959 Dudley Fearnside Jones, Ian Fairley Graham Downs and Ernest Alfred James were members of the said Legislative Council duly elected in accordance with the provisions of s36 (1)(e) of the Papua and New Guinea Act 1949–1957. 39. On 22 June 1959 the said Dudley Fearnside Jones, Ian Fairley Graham Downs and Ernest Alfred James each delivered to the defendant Donald Mackinnon Cleland as Administrator of the Territory of Papua and New Guinea a written resignation from his position as a member of the said Legislative Council for transmission to the Governor–General of the Commonwealth of Australia, and the said Administrator received the same and the said Dudley Fearnside Jones, Ian Fairley Graham Downs and Ernest Alfred James thereupon ceased to be members of the said Legislative Council. 40. None of the vacancies in the said Legislative Council created by the said resignations had been filled at the time of the passing of the said Act and there were at the time of the passing of the said Act less than twenty–nine members of the said Legislative Council, namely twenty–six members only. 41. The defendant Donald Mackinnon Cleland is now and has been at all material times the Administrator of the Territory of Papua and New Guinea appointed under the provisions of the Papua and New Guinea Act 1949–1957. 42. The defendant Donald Mackinnon Cleland has assented to the said Act. 43. The said Act came into operation on 1st August 1959 and it applies to income derived on and after 1st July 1959. 44. The plaintiff is a resident of the Territory of New Guinea, and is in receipt of income derived from sources in the said Territory. 45. The plaintiff is liable to taxation upon his said income under the provisions of s11 and s46 of the said Act. 46. The plaintiff is an employer of employees within the meaning of the said Act and is, if the said Act is valid and validly in force in the Territory of New Guinea, required by the terms of the said Act to deduct amounts from the salary and wages paid and payable to such employees and retain and pay to the relevant persons in the said Act the said amounts and is alleged by the defendants to be liable to the penalties in the said Act in that regard referred to in the event of non–compliance by him with the terms of the said Act.

The parties concur in stating the questions of law raised by the facts set forth heretofore for the opinion of the Full Court pursuant to O35, r1, of the High Court Rules, namely: 1. Is the Papua and New Guinea Act 1949–1957 invalid in respect of the whole thereof or in respect of Part V Div. 2 thereof? 2. Is the Income Tax Act 1959 passed by the Legislative Council of Papua and New Guinea invalid on the ground that such Legislative Council as constituted at the date of the passing of the said Act had no power to pass the said Act? 3. Is the Income Tax Act 1959 passed by the Legislative Council of Papua and New Guinea invalid on the ground that the said Act is inconsistent with a law of the Commonwealth of Australia, namely, the Income Tax and Social Services Contribution Assessment Act 1936–1958?"

J.D. Holmes QC (with him D. Mahoney and W.P. Deane), for the plaintiff. The Papua and New Guinea Act 1949–1957 (Cth) is invalid. The power of the Commonwealth to pass it depends either upon s51 (xxix) of the Constitution or upon s122. S51 (xxix) does not grant power to pass legislation inconsistent with or contrary to a validly existing treaty. The legislative power conferred by the Act goes beyond the purely administrative union permitted by the Charter of the United Nations in Chs. XII and XIII, and in particular art. 76, and by arts. 3, 4, 6 and 8 of the Trusteeship Agreement. The inconsistency between the Papua and New Guinea Act and the Treaty lies in the effect of the Act, which is to bring about a complete union of the two territories; the Trusteeship Agreement permits only a limited administrative, as distinct from a legislative and judicial, union. S122 of the Constitution cannot support the Act, for neither the League of Nations Mandate of 1920 nor the Trusteeship Agreement which replaced it served to "acquire" New Guinea for the Commonwealth. Even if s122 does apply, the powers granted by the section are limited by the purposes and prohibitions of the Trusteeship Agreement in the same way as those granted by s51 (xxix). There has been no clear decision of this Court that s122 could support legislation for any mandated territory. In the same way, if the Commonwealth relies upon the external affairs power, and relies upon a treaty as feeding that power, it must confine itself, broadly, to carrying the treaty into effect. (He referred to R v Burgess; Ex parte Henry (1936) 55 CLR 608; Ffrost v Stevenson (1937) 58 CLR 528; Jolley v Mainka (1933) 49 CLR 242; R v Christian (1924) S Afr LR 101; Jerusalem–Jaffa District Governor v Suleiman Murra [1926] AC 321.) The question of the validity of the Income Tax Act 1959 involves the interpretation of the Commonwealth Constitution. This Court has original jurisdiction to hear it by virtue of s76 of the Constitution and s38A of the Judiciary Act: O'Neill v O'Connell (1946) 72 CLR 101; Parton v Milk Board (Vict.) (1949) 80 CLR 229. The Income Tax Act 1959 was not passed by an effective legislative body. The Legislative Council could not function because there were less than twenty–nine members: see s36 (1)...