Protecting Australian Protected Persons AUSTRALIAN ADMINISTRATION OF TPNG AND THE QUESTION OF NATIONALITY Throughout the period of Australian colonial rule, racial categories were embedded into the administrative structures governing the Territories.14 As independence approached, there was a growing awareness among both PNG and Australian officials of the potential complications that would likely flow from the different rights associated with different racial categories derived from the historical divisions imposed on the island. Australia took control of German New Guinea during World War I and was given a League of Nations ‘C’ mandate over German New Guinea after that war.15 The Territory of New Guinea, as it was subsequently renamed, became an Australian trust territory when the League of Nations mandate system was replaced by the United Nations Trusteeship system after World War II.16 Therefore, from the outset, Australia had an international duty in relation to the Territory of New Guinea to act in the best interests of its inhabitants and prepare them for an independent future, if that was their choice.17 As mentioned, one of the consequences of the different statuses of the Territories under international law was played out in the different statuses of their inhabitants under Australian law. Individuals born in Papua, like those born in metropolitan Australia, were automatically British subjects and, after the commencement of the Nationality and Citizenship Act 1948 (Cth), Australian citizens.18 However, citizenship on the basis of birth in Papua did not confer a right of entry to metropolitan Australia. Rather, such citizens could only enter Australia if granted a temporary or permanent entry permit under the Migration Act 1958 (Cth). By contrast, birth in New Guinea did not confer the status of British subject or Australian citizen but rather, as indicated previously, the status of ‘Australian Protected Person’.19 APPs were issued with Australian passports because they were entitled to Australian diplomatic protection when outside TPNG. However, unless a person born in New Guinea acquired the citizenship of Australia or 14 15 16 17 18 19 Some examples of racialised ordinances: Transactions with Natives Ordinance No 1 of 1959 (TPNG); Native Emigration Restriction Ordinance No 55 of 1958 (TPNG); Liquor (Natives) Ordinance No 19 of 1958 (TPNG); Trading with Natives Ordinance No 4 of 1946 (TPNG); Native Employment Ordinance No 73 of 1967 (TPNG); Native Regulation (Papua) Ordinance No 56 of 1963 (TPNG); Native Women’s Protection Ordinance No 57 of 1957 (TPNG); White Women’s Protection Ordinance No 2 of 1926 (Papua). Hank Nelson, ‘Liberation: The End of Australian Rule in Papua New Guinea’ (2000) 35(3) The Journal of Pacific History 269, 275. Article 22 of the Versailles Treaty of Peace provided for a ‘C’ mandate to be administered as an integral part of the Mandatory’s territory subject to safeguards in the interests of the Indigenous inhabitants: F M Brookfield, ‘New Zealand Citizenship and Western Samoa: A Legacy of the Mandate’ (1981) 5(3) Otago Law Review 367, 371. As a matter of domestic law, German New Guinea was placed by the Queen under the authority of the Commonwealth and accepted by the Commonwealth pursuant to the New Guinea Act 1920 (Cth) thus meeting the requirements of s 122 of the Australian Constitution: Peter M McDermott, ‘Australian Citizenship and the Independence of Papua New Guinea’ (2009) 32(1) UNSW Law Journal 50, 52. McDermott (n 15) 53. Nelson (n 15) 275. McDermott (n 15) 53–54. Ibid 54–55. The status of Australian Protected Persons was conferred by reg 5 of the Australian Citizenship Regulations 1960 (Cth). 217