Ffrost v Stevenson [1937] HCA 41

Ffrost v Stevenson [1937] HCA 41 - HCA 1937 case summary — Zoe

[26]

D. Waugh appearing thereon and that Waugh had lawful authority to issue the warrant. This is the form of indorsement used under sec. 13 of the Fugitive Offenders Act 1881 as a backing of an original warrant sufficient to authorize the apprehension of the person named and the bringing of him before a magistrate. At this stage. therefore, there were two processes out against Ffrost. the provisional warrant issued at Sydney on 9th January 1937, and purporting to be under the Service and Execution of Process Act 1901-1934, and the backing of 25th January 1937, presumably purporting to be made under the Fugitive Offenders Act 1881. When Ffrost was brought before a magistrate on 25th January, the magistrate had before him both the provisional warrant and the backed original warrant. A conten- tion was raised on Ffrost's behalf before the magistrate that the Fugitive Offenders Act 1881 was not applicable, and that, therefore, no order could be made for his return under sec. 14 of that Act. That was contested, and it was submitted that that Act was avail- able, and that, if it were not, the order for Ffrost's return could be made under the Service and Execution of Process Act 1901-1934. The magistrate ruled that the provisions of the Fugitive Offenders Act 1881 did not apply, and that the Service and Execution of Process Act 1901-1934 did apply. Apparently a further indorsement was then made on the original warrant by the magistrate who had made the first indorsement authorizing, in almost the identical words of the second schedule to the Service and Execution of Process Act, the apprehension and the bringing before the court of Ffrost. The magistrate who was dealing with the application for Ffrost's return to the Mandated Territory held that the combined effect of the two indorsements sufficiently complied with the requirements of sec. 18 of the Service and Execution of Process Act, and, on 26th January, made under that section an order for Ffrost's return to the Mandated Territory. An application for the exercise by the magistrate in Ffrost's favour of the discretion conferred by sub-sec. 4 of that section, based upon the grounds: (a) that, at the trial of Bonri, the Chief Judge had adversely and severely criticized Ffrost's alleged conduct in the matter; (6) that, if returned, Ffrost would, possibly, be tried before the Chief Judge without a jury ; (c) that another person had already been convicted of the manslaughter of

[28]

Sec. 12 of the Fugitive Offenders Act 1881 provides that Part IL. of that Act shall apply only to those groups of British possessions to which, by reason of their contiguity or otherwise, it may seem expedient to His Majesty to apply the same, and it empowers His Majesty by Order in Council to direct that Part II. shall apply to the group of British possessions mentioned in the Order. Sec. 39 provides that the expression, " British possession", means any part of His Majesty's dominions, exclusive of the United Kingdom, the Channel Islands, and Isle of Man ; and that all territories and places within His Majesty's dominions which are under one legislature shall be deemed to be one British possession and one part of His Majesty's dominions. The expression, " legislature," is defined as meaning the central legislature where there are local legislatures as well as a central legislature. Sec. 36 provides that His Majesty may direct that the Act shall apply as if, subject to the conditions, exceptions and qualifications (if any) contained in the Order, any place out of His Majesty's dominions in which His Majesty has jurisdiction, and which is named in the Order, were a British posses- sion, and to provide for carrying into effect such application. On 12th October 1925 an Order in Council was made reciting the provisions of sec. 36 and that New Guinea and Nauru were places out of His Majesty's dominions in which His Majesty had jurisdiction, and ordering (a) by clause 2, that on and after Ist November 1925 the Fugitive Offenders Act 1881 should apply to New Guinea and Nauru as if those territories were British possessions, subject to certain provisions therein stated but which are not material for the purposes of this report, and (b) by clause 6, that, for the purposes of Part II. of the Act, the Territories of New Guinea and Nauru should, with the Commonwealth of Australia, Papua and Norfolk Island, be deemed to be one group of British possessions. On the same day a further Order in Council was made in which, after referring to the Order in Council mentioned above, and reciting, inter alia, that by reason of the contiguity of the dominions, colonies

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for the view that the territory was acquired by the Commonwealth for public purposes within the meaning of that section (The Common- wealth v. New South Wales (1) ). As to whether the States can be called upon to enforce these matters is immaterial (Le Mesurier vy. Connor (2) ). The power to govern under sec. 52 includes power to make any laws which are proper or necessary for the peace, order and good government of the territory. A law for the administration of justice in the territory is such a law. A law made outside the territory to operate in the territorial jurisdiction of the Common- wealth is a law for the peace, order and good government of the territory if it has a real and substantial relation to matters, affairs and transactions occurring in the territory. A law for the peace, order and good government of the territory under sec. 122 must be considered as a law for the peace, order and good government of the territory considered as a dependency of the Commonwealth. Having regard to the fact that the Territory is a dependency of the Common- wealth, the power to make a law for the peace, order and good government of the Territory also involves a right to make a law operating outside the Territory, but inside the territorial jurisdiction of the Commonwealth, if it is closely connected with the necessary incidents of a law for peace, order and good government within the Territory. The power conferred in the Constitution to govern a dependency is at least as large as, and may be larger than, the power to make all internal rules and regulations respecting the territory (Ex parte Reggel (3); Kopel v. Bingham (4) ). How far, if at all, the Federal authority was entitled to depend upon the assistance of States and State courts was dealt with in Kentucky v. Dennison (5) and Robertson v. Baldwin (6) ; see also Mitchell v. Barker (7). See. 18 of the Service and Execution of Process Act enables State magis- trates, in the capacity of State magistrates, and not as officers of the Commonwealth (R. v. Murray and Cormie; Ex parte The Common- wealth (8) ), to act upon it and, if they choose, to exercise juris- diction. In so acting the magistrates would not be officers of the

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Authorities of the highest standing differ among themselves as to whether or not the conception of sovereignty is applicable, in what sense it is applicable, and, if it is applicable, as to where sovereignty resides. The grant of mandates introduced a new principle into international law. The Peace Treaty in art. 22 of the Covenant of the League of Nations refers to former German colonies and territories as having "ceased to be under the sovereignty of " Germany. By art. 119 of the Peace Treaty Germany renounced in favour of the five Principal Allied and Associated Powers " all her rights and titles over her oversea possessions." The Principal Allied and Associated Powers granted mandates to certain powers in respect of those oversea possessions. The League of Nations then defined under art. 22 of the Covenant " the degree of authority, control or adminis- tration to be exercised by the mandatory." In the case of "C0" mandates, including the mandate for New Guinea, the mandatory power, which is the Commonwealth of Australia, has full powers of "administration and legislation over the territory subject to the mandate as an integral portion of its territory" (Art. 2 of the mandate). This provision is in accordance with the terms of art. 22. In the original draft of the covenant the relevant provision of art. 22 provided that the territories in respect of what are now known as "©" mandates were granted " can be best administered under the laws of the mandatory as i/ integral portions of its territory." But on the suggestion of the Japanese delegate the word "if" was omitted (See Wright, op. cit., p.42). It is clear that it was intended that, in the case of ""C" mandates, the fullest powers of government should be conferred upon the mandatory power. In the case of " A" mandates, on the other hand, art. 22 provided that the existence of the communities in question "as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a mandatory until such time as they are able to stand alone." The distinction between this provision and the provision applying to ""C" mandates,

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carried on in conjunction with the general government of the Commonwealth, consisting as it does of six States as well as the territories. I cannot see why a power to legislate for the adminis- tration of criminal justice of the territories should not carry with it as an incident authority to apprehend fugitive offenders within the States. But in any case I am clearly of opinion that the Orders in Council of 12th October 1925 are valid and efficacious to apply the Fugitive Offenders Act 1881 on the footing that New Guinea is a possession and a member of a group to which Australia also belongs. 'The juridical status of New Guinea is such as to make it within the province of the Imperial Executive to declare that it is outside His Majesty's dominions for the purpose of that Act and to apply it accordingly. It results, therefore, from what I have said so far, that, under the Commonwealth power, by means of sec. 28 of the Service and Execution of Process Act 1901-1934, provision has been made for the return of offenders, and under the Imperial statute another provision has been made. The two provisions closely resemble one another although they are not identical. If there is a repugnancy between them, of course the Federal statute must give way under the Colonial Laws Validity Act 1865 (Union Steamship Co. of New Zealand Ltd. v. The Commonwealth (1) ). In the present case the proceedings culminating in the order for the apprehension and return of the offender to New Guinea have been conducted with what might fairly be called ambiguity. The warrant was indorsed so as to comply with the Fugitive Offenders Act, but the magistrate in making his order preferred, according to his reasons, to act under the Commonwealth provision. Apparently under the Imperial statute a warrant is necessary, and no such warrant has been made out or signed by the magistrate. Under the Federal provision the form of order is not prescribed, and it seems that it would be good,

if good according to the law of the State where it is made. In New South Wales magistrates may give effect to their decisions by minute or order. In the present case the order, apart from its formal expression, could be justified, in my opinion, under the Fugitive Offenders Act. There is nothing to prevent the magistrate making out a warrant pursuant to his order and signing it. I do

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Peace Act 1919 was the relevant authority for the "acceptance of the mandate by His Majesty" (1). But the Imperial Act of 1919 merely authorizes measures for the carrying out by the King of the terms of the Treaty of Versailles, and it has no bearing upon the legal authority either for accepting the mandate or governing the territory. No Order in Council has ever been issued under the Act in relation to the Mandated Territory of New Guinea. Indeed, the Treaty of Versailles made no provision for nomination of a specified mandatory power, the intention being that such function should be performed subsequently by the League of Nations. The irrelevance of the Treaty of Peace Act was fully appreciated by Sir John Salmond, then legal adviser to the Government of New Zealand, which based the Government by New Zealand as mandatory power over Western Samoa upon the Foreign Jurisdiction Act 1890, an Order in Council duly issuing thereunder. If the second portion of sec. 122 of the constitution was applicable to the territory it should be possible immediately to answer the questions: (a) when did the King obtain his primary authority over New Guinea? (b) when did the King place the territory under the authority of the Commonwealth ? and (c) when did the Commonwealth accept such territory from the King? Such questions have not been answered and, in my opinion, they are unanswerable, because no legal transactions of the character mentioned by the second part of sec. 122 ever occurred. The New Guinea Act correctly assigns the authority of the Commonwealth over the territories to the action of the Principal Allied and Associated Powers in nominating it as mandatory, and sec. 5 of the Act gives statutory authority to the Governor-General not to accept the territory from the hands of the King but to accept the mandate so soon as it issued to the Commonwealth from the Council of the League of Nations. In other words, the greatest care was taken by the Commonwealth advisers to protect the international status of the Commonwealth as such and to this end the King, acting

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Judgment (414 paragraphs)