MANDATE PROBLEM

New Zealand Herald, Volume LXXIV, Issue 22733, 20 May 1937, Page 14

MANDATE PROBLEM

NOT KING'S DOMINION EXTRADITING CRIMINALS SUPREME COURT DECISION [from our own correspondent] SYDNEY. May 13 A decision of the Supreme Court of New South Wales that the Commonwealth Parliament had no power to enact service and execution of process legislation as between the States and the Mandated Territory of New Guinea is regarded in legal and political circles as being of such importance that one authority suggested that the Commonwealth Government may eventually decide to ask the Imperial Government to amend the Commonwealth of Australia Constitution Act. The practical effect of the Supremo Court's judgment is that residents of the Territory are left without me&ns of enforcing their legal rights against residents of the States.

The Full Bench of the Supreme Court expressed the opinion that the territory was not legally part of the King's Dominions. "It may be that the territory is strictly a territory of the League of Nations or of former Allied Powers," said the Chief Justice, Sir Frederick Jordan, when delivering judgment. Status of Territory "The Commonwealth governs the territory, subject to international arrangements, involving certain moral obligations to the indigenous inhabitants," he said. "The exact nature of the territory's international status is a matter upon which much might be said, but it tan hardly be suggested that it has reverted to the character it possessed before any civilised power interested itself in the area." The Court was giving judgment in an application for a writ of habeas corpus directed against a Sydney magistrate, who had ordered the return to New Guinea of a man allegedly concerned' in the killing of a native. It held that a magistrate had been wrong in applying the Service and Execution of Process Act to order the extradition, and wrong in not applying the Fugitive Offenders Act, in accordance with a previous decision of the High Court. The latter will now have an opportunity of examining the merits of the present case. Practice oi Courts

The practice lias been that, where a judgment has been given in a New Guinea Court against a resident of a State, a certificate has been tendered before a prothonotary of a State Court, who registers it, tho judgment then taking force as if it were a judgment of the State Court. A number of such judgments have in fact been registered in New South Wales. In the decision of the Supreme Court, the regulations under which this was the section of the Service and Execution of Process Act under which these regulations were made, were declared ultra vires and invalid. Federal Government's Power

The Federal Government has power under the constitution to make laws with respect to the service and execution of the process and judgments of the Courts of the States, and the Government will now have to consider how to extend this power to cover the Courts of territories. In political circles it is considered unlikely that any Goveminent would decide to resort to a referendum to obtain the necessary Constitutional amendment, and it is thought that a request to the Imperial Parliament might provide the most simple and appropriate way out of the difficulty.