Common(wealth) Knowledge #33: Papua New Guinea and Australian federalism
Updated: Apr 7
A look at how Papua New Guinea has influenced the development of Australian law.
Australian Prime Minister Anthony Albanese and Papua New Guinean Prime Minister James Marape have announced that the two countries are currently negotiating a bilateral security agreement that will be finalised and signed next year. In addition to security concerns, the treaty will also address issues like climate change. This announcement has prompted much reflection upon the historical relationship of the two nations, as Papua New Guinea spent decades as an external territory of Australia before finaling being given independence in 1975, yet has maintained a close relationship with Australia, almost as close as New Zealand, since then, unlike some former colonies of other Western nations. In many ways, the evolving relationship between the two nations followed the same pattern as the relationship between Australia and the United Kingdom. And it set the precedent for how the Northern Territory and the Australian Capital Territory would achieve self-governance.
For those who aren’t familiar with Papua New Guinea’s history as Australia’s colony, outside of the Kokoda Track in World War II, Britain granted Australia control over Papua, the southern half of the country, in 1906, just five years after Australia gained independence. Thanks in part to the work of Billy Hughes at the Treaty of Versailles after World War I, the newly-formed League of Nations, later replaced by the United Nations, gave Australia control over German New Guinea, which Australia had occupied during World War I, as a ‘League mandate,’ which essentially meant it became another colony.
Following World War II, Australia merged Papua and New Guinea into one territory with the Papua and New Guinea Act 1949 (Cth). They were slowly given more autonomy over the next 25 years, mostly during the last five years of its time as a colony, before finally being given independence in 1975. It became a member of the Commonwealth of Nations alongside Australia, with Queen Elizabeth II as its head of state.
Throughout this series, we’ve often explored federalism in Australia, and the division of legislative power between the Commonwealth Parliament and State Parliaments. Because the colonies existed before Australia became a country, and they already had their own governments, the Commonwealth government would need to share power with them. This is why the Australian Constitution specifically outlines all the powers of the Commonwealth government, including powers it shares with the States, and then Sections 106-108 state that all other powers of the colonial, now state, governments and their constitutions would be maintained and protected by the Constitution. This is why the High Court of Australia said in Re Residential Tenancies Tribunal (1997) that “the Constitution is predicated upon the continued separate existence of the Commonwealth and the States.”
But Papua New Guinea demonstrated that there was a flaw in the system. What about territories? Under Section 122 of the Constitution, the Commonwealth Parliament has the power to create and “make laws for the government of any territory,” and they can only elect representatives to Parliament if Parliament lets them. Nowhere in this federal model of two levels of government did the Constitution account for the territories, and Section 122 means that the Commonwealth government can pass any laws necessary for governing the territories. Yet today the Northern Territory and the Australian Capital Territory have their own governments. And Norfolk Island used to, until its more limited form of self-government was removed in recent years.
Among the limitations placed on the Commonwealth government by the Constitution are Section 51, which limits its legislative power. As mentioned earlier, this is meant to stop the Commonwealth government from interfering with State governments and their responsibilities, although there is an ongoing debate about whether this has actually worked. However, in R v Bernasconi (1915), an appeal from a decision made by the Central Court of Papua, the High Court said that this limitation didn’t apply to the territories. To quote Isaacs J, Section 122 “is an unqualified grant [of power] complete in its, and implies that a ‘territory’ is not yet in a condition to enter into full participation of Commonwealth constitutional rights and powers.” This means that none of the constitutional protections and limitations affect the power that the Commonwealth has over territory citizens, and in this case meant that the Papuan man wasn’t entitled to the right of trial by jury that is outlined in Section 80. Instead, to quote Isaacs J again, “Parliament’s sense of justice and fair dealing is sufficient to protect them,” referring to the people of Papua.
Papua New Guinea achieved independence in 1975, three years before the Northern Territory (Self-Government) Act 1978 (Cth) was passed to give the Northern Territory its own autonomous government. Thanks to cases like R v Bernasconi, the modern Australian legal system has learnt its lesson and extends constitutional rights to all Australians, regardless of where they live, and limitations are imposed on the Commonwealth’s legislative power in relation to the self-governing territories.
Although R v Bernasconi has not actually been outright overturned, it has been criticised by two of Australia’s best judges, former Chief Justice Sir Owen Dixon and former Justice Dr H V Evatt, and work-around solutions have been developed instead. These include the Commonwealth government giving legislative authority on many matters to the NT and ACT, and adopting constitutional provisions that apply to the Commonwealth and States into legislation that applies to the Commonwealth and territories.
DIxon CJ and others always maintained that, when it came to Section 122, it is important to not treat the Constitution as two separate Constitution, a federalist one about the States and Commonwealth and a separate one about the territories. One case on this is Lamshed v Lake (1958). This vision was recognised when territories were incorporated into the system by being given their own, albeit limited, governments. The successful experiment with self-government in PNG meant that the High Court would conclide in Svikart v Stewart (1994) that the governments of the NT and ACT are separate entities from the Commonwealth government.
There were many challenges to Section 122 and other Commonwealth powers by people living in PNG. It could be argued that this is because they were a colony of Australia, with Papua given to Australia by the UK and New Guinea being part of the spoils of war. They did not identfy as ‘Australian’ in the same way that those living in the NT and ACT did. Nonetheless, they had an important role in shaping constitutional law in Australia. And although they may not be ‘Australian,’ PNG continues to be Australia’s ‘younger brother,’ like New Zealand, allowing the two to remain friends after their separation, with Australia being PNG’s largest foreign aid donor. And as any invading army threatening Australia will likely come from the north, just like in World War II, defending PNG means defending Australia.
Stuart Jeffery is the host of Between Parkes Place and Capital Hill on 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.
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Lamshed v Lake (1958) 99 CLR 132;  HCA 14.
R v Bernasconi (1915) 19 CLR 629;  HCA 13.
Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410;  HCA 36.
Svikart v Stewart (1994) 181 CLR 548;  HCA 62.
Elijah Granet’s ‘Better AustLII’