§ 187. "PROTECTION OF STATES FROM INVASION AND

VIOLENCE."

LEGISLATION.

DEFENCE ACT 1903.

By section 51 of this Act it is provided:-" Where the Governor of a State has proclaimed that domestic violence exists therein, the Governor-General, upon the application of the Executive Government of the State, may, by proclamation, declare that domestic violence exists in that State, and may call out the Permanent Forces, and in the event of their numbers being insufficient may also call out such of the Militia and Volunteer Forces as may be necessary for the protection of that State, and the services of the Forces so called out may be utilized accordingly for the protection of that State against domestic violence."

Custody of offenders against laws of the Commonwealth.

120. Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

There has been no State or Commonwealth legislation under this section, but its intention has been generally observed.

CHAPTER VI.-NEW STATES.

New States may be admitted or established.

121. The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.

Government of territories.

122. The Parliament may make laws for the government of any territory 188 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.

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§ 188. GOVERNMENT OF TERRITORIES.”

New Guinea.

LEGISLATION.

PAPUA ACT 1905.

Prior to 6th March 1902, British New Guinea was a Crown Colony under an Administrator who was subject to the control of the Governor of Queensland, acting with the advice of his Ministers, in the same way as ordinary Crown Colonies are to that of the Secretary of State. By Order-in-Council of 6th March 1902, and Letters Patent of the 18th of the same month, the Possession was placed under the authority of the Commonwealth, and the GovernorGeneral was authorized, as soon as the Parliament should make laws for the government of the Possession, to issue a proclamation declaring that that had been done, and from that date, the Letters Patent dealing with the administration of the Possession and the

instructions issued thereunder should be revoked, and until the appointed day the Governor-General was invested with the powers and duties formerly entrusted to the Governor of Queensland.

There was no acceptance of New Guinea by the Commonwealth until the passing of the Papua Act on 16th November 1905. Before that date the Governor-General was simply the persona designata to whom the control formerly exercised by the Governor of Queensland became vested, but in that capacity he did not represent the Commonwealth.

Papua.

The Papua Act 1905 was assented to on 16th November 1905. The Possession of British New Guinea was declared to be accepted by the Commonwealth as a territory under the authority of the Commonwealth, by the name of the Territory of Papua. The laws in force in the Possession of British New Guinea at the commencement of this Act were continued in force in the Territory until other provision was made. The Courts of justice in existence in the Possession of British New Guinea at the commencement of this Act, and the jurisdiction, practice, and procedure thereof, were continued in the Territory until other provision was made. All judges, magistrates, and other officers in the public service of the Possession of British New Guinea at the commencement of this Act were to continue in office as if apointed under this Act. It was provided that there should be a Lieutenant-Governor of the Territory, who should be charged with the duty of administering the government thereof on behalf of the Commonwealth. An Executive Council for the Territory was created to advise and assist the LieutenantGovernor; a Legislative Council was created to consist of the Lieutenant-Governor and of the members of the Executive Council, together with such non-official members as the Governor-General appoints under the Seal of the Commonwealth, or as the LieutenantGovernor, in pursuance of instructions from the Governor-General, appoints under the Public Seal of the Territory. So long as the white resident population is less than 2,000, the number of nonofficial members shall be three; but when the white resident population is 2,000 or more an additional non-official member shall be appointed for each 1,000 of such population in excess of 1,000. The Legislative Council has power to make Ordinances for the peace, order and good government of the Territory. The revenues of the Territory are available for defraying the expenditure thereof, and

the Governor-General may make such regulations as he deems necessary for the receipt, expenditure, control and audit of revenues and moneys of the Territory. There is to be paid out of the Consolidated Revenue Fund of the Commonwealth towards the revenues of the Territory the sum of £20,000 in each financial year up to and including the financial year ending 30th June 1906, and thereafter such sums, if any, as the Parliament appropriates for that purpose.

Officers of the Possession.

In the case of Strachan v. The Commonwealth, (1906) 4 C.L.R., 455, the plaintiff brought an action in the High Court against the Commonwealth to recover damages in respect of alleged wrongful acts of officers of the Possession of New Guinea, committed in May 1905, at a date prior to any legislation by the Commonwealth on the subject of New Guinea. It was held by the High Court that until such legislation took place, and the proclamation consequent thereon was made, no such relationship of master and servant existed between the Commonwealth Government and the officials of the Possession as would render the Commonwealth liable in an action of tort for wrongful acts of such officers: Tobin v. The Queen, 16 C.B.N.S., 310, applied.

Trial by Jury in Territories.

There is no doubt or question as to power of the Federal Parliament to create a local Legislature to pass laws for the Government of a Territory as has been done in the Papua Act, No. 9 of 1905.

By an Ordinance, No. 7 of 1907, passed after the transfer of the Possession to the Commonwealth it was enacted that the trial of persons of European descent charged with a crime punishable with death should be held before a jury of four persons, but that save as aforesaid the trial of all issues, both civil and criminal, shall as heretofore be held without a jury."

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In the Central Court of Papua, before His Honor, J. H. P. MURRAY, Chief Judicial Officer, George Bernasconi was tried on a charge of assault causing bodily harm, and was found guilty and sentenced to twelve months' imprisonment with hard labour. At the request of the solicitor for the accused, His Honor stated a case reserving for the consideration of the High Court the following question :-Whether the accused's deemed request for a jury was rightly refused?

It was held by the High Court that Chapter III. of the Constitution including section 80 providing for the trial of indictable offences by jury was limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of Government as to which it stands in the place of the States, and has no application to territories. Section 80, therefore, relates only to offences created by the Parliament by Statutes passed in the execution of those functions, which are aptly described as "Laws of the Commonwealth."

"In my opinion," said GRIFFITH, C.J., "the power conferred by section 122 is not restricted by the provisions of Chapter III. of the Constitution, whether the power is exercised directly or through a subordinate Legislature. The first question raised by the case, which is whether the request for a jury alleged to have been applied by the plea of not guilty was rightly refused, must therefore be answered in the affirmative": The King v. Bernasconi, (1915) 19 C.L.R., at pp. 633-635.

Section 80 of the Constitution" said Mr. Justice ISAACS, is one of a fasciculus of sections collected in one chapter and united and inter-related as members of a distinct group under the title of The Judicature.' The judicial power of the Commonwealth—that is, the whole judicial power of a Commonwealth proper is there dealt with. By force of the various sections of Chapter III. other than section 80 and aided by sub-section (XXXIX.) of section 51, Parliament might have enacted, or might have enabled Courts to provide by rules, that all offences whatever should be tried by a Judge or Judges without a jury. Section 80 places a limitation on that power. Neither Parliament nor Court may permit such a trial. If a given offence is not made triable on indictment at all, then section 80 does not apply. If the offence is so tried, then there must be a jury. But the provision is clearly enacted as a limitation on the accompanying provisions, applying to the Commonwealth as a self-governing community. And that is its sole operation. When the Constitution, however, reaches a new consideration, namely, the government of territories, not as constituent parts of the self-governing body, not 'fused with it,' as I expressed it in Buchanan's Case, 16 C.L.R., 315, at p. 335, but rather as parts annexed to the Commonwealth and subordinate to it, then section 122 provides the appropriate grant of power." Per ISAACS, J., 19 C.L.R., at p. 637.