270 Department of External Affairs to Australian Delegation, United Nations

Cablegram [UNY]437 CANBERRA, 2 December 1946

MOST IMMEDIATE SECRET

Your U.N.857. [1]

1. Bailey was expressly instructed by the Minister not to consider modifications of any kind except as a last resort and then only to make declaration by way of addition expressly indicating continuance by Australia of established existing policy.

2. You should report along the following line:-

BEGINS-We have carefully considered all suggestions made by members of committee and the short form of draft is most in accord with the conception of Trusteeship set down in the Charter.

This short draft [2] contains five operative clauses and these cover every aspect of trusteeship. Article 3 contains a comprehensive undertaking that the objectives of administration are those of the Charter. Article 6 refers to other objectives which may from time to time be suggested by competent authorities and which may appear to be relevant to the territory. Articles 4 and 5 deal with legislative powers to be employed in achieving the objectives of peace and order and good government. Article 7 deals with defence of the territory and maintenance of international peace and security.

It is now suggested that certain objectives be referred to specifically. We agree with many of the objectives stated and, in fact, the history of Australian administration shows that they have been the objectives of the Australian Government for many years. (Elaborate history of administration) In our view it is therefore not necessary to specify objectives.

We suggest approval of the draft as it now stands.

However, we would be prepared instead of adding clause to have declaration made to the following effect:

Australia as the proposed Administering Authority declares that in the discharge of its obligations under Article 3 of this agreement:-

(a) It will co-operate fully with the Trusteeship Council in the discharge of all the Council's functions under Articles 87 and 88 of the charter, (b) In accordance with its established policy and practice it will continue to:-

(i) Take into consideration the customs and usages of the indigenous inhabitants of New Guinea and respect their rights and safeguard their interest[s] [3], both present and future, and in particular ensure that no rights over native land in favour of any person not an indigenous inhabitant of New Guinea may be created or transferred except with the consent of the competent public authority.

(ii) Promote, as may be appropriate to the circumstances of the territory, the educational advancement of the inhabitants.

(iii) Assure to the indigenous inhabitants of the territory, as may be appropriate to the particular circumstances of the territory and its peoples, a progressively increasing share in the administrative and other services of the territory. ENDS.

3. On the question of paragraph 5 [4], we do not agree that the deletion of the phrase 'in the opinion of' is not a matter of substance. It is true that administrating authority is at liberty to take or not to take the action but it is essential that the opinion on which action is to be based must also be that of the administrating authority. What is in the best interests of the natives is not a question of fact but of opinion. Moreover the deletion of these words at this stage might easily in later years be given a significance not claimed now. We cannot agree to this amendment.

4. The following is the opinion of Eggleston.

'In my opinion discretionary power is essential for the trustee.

The trusteeship system is based on the fact that the dependent people is unable to govern itself and the United Nations must appoint a trustee to administer it. It is always the custom in these circumstances to give the trustee ample powers subject to judicial review. It is never the practice of the appointing authority to appoint a trustee and then do the administration itself or formulate a code which will bind the action of the trustee in every respect of his action in relation to the trust property. Discretion is necessary because all sorts of contingencies arise in which the trustee has to take action and in which he has to use his own discretion. He can only act efficiently in these circumstances if he has that discretion otherwise he will find himself tied by the letters of instruction which have been framed without consideration of the particular situation which has arisen. He will be tied and helpless. The system I suggest depends on the efficacy of ex post facto review and it has been found that ex post facto review is more effective than executive direction from time to time.

I suggest that these considerations apply with cogency to the development of a very primitive race like the inhabitants of New Guinea which has to be raised from the status of hunters and gardeners to, we hope, that status of civilised people. At each stage of the process, there will be many problems which will have to be decided and they can only be decided effectively by the exercise by the trustee of his discretion subject to the subsequent review of the United Nations. I would like to point out also one effect of the lack of discretion on the part of the trustee. The problem then becomes legal question and must be decided by a legal process. Here you have an agreement which gives certain rights and directs certain policy. If anyone interested desires to question that he can say that the agreement has been broken and bring the matter before the World Court. I have always given the strongest support to the World Court. But there is a very strong case against overburdening the trustee with litigation.'

1 Document 265.

2 See Document 55.

3 Corrected from the New York copy on file AA:A4311, box 481.

4 Presumably Article 5.

[AA:A1838/2, 852/13/4, ii]