of the legitimate government, although it cannot be exercised, is in no way diminished by mere military occupation' "
That in 1914 no more than mere military occupation was either intended or effected seems to me to be made abundantly clear by the cablegram from London to the Governor-General, by the terms of Colonel Holmes's proclamation, by the terms of capitulation and by the nature of the military administration in fact established. I am clearly of opinion that the plaintiff is not a person who was "born within His Majesty's dominions and allegiance ' And it appears to me equally clear that nothing happened later to make him a British subject.
Article 119 of the Treaty of Peace with Germany, which was signed at Versailles on 28th June 1919, provided that " Germany renounces in favour of the Principal Allied and Associated Powers all her rights and titles over her overseas possessions It is seen that there was no cession to Great Britain. Later there was conferred upon the Commonwealth of Australia, in pursuance of the Covenant of the League of Nations a mandate in respect of German New Guinea and certain other former German territories in the Western Pacific. The New Guinea Act 1920-1935 (Cth.) came into force by proclamation on 9th May 1921. It recited the conquest and continued occupation by the Commonwealth of German New Guinea, the Treaty of Peace, and an agreement by the Principal Allied and Associated Powers that a mandate should be conferred upon the Commonwealth. It also recited that a mandate was to be issued to the Commonwealth in respect of German New Guinea with full power to administer the same, subject to the terms of the Mandate, as an integral part of the Territory of the Com- monwealth Section 4 of the Act provides that "The Terri- tories and Islands formerly constituting German New Guinea are hereby declared to be a Territory under the authority of the Commonwealth, by the name of the Territory of New Guinea By S. 5 the Governor-General was authorized to accept the mandate when issued. The Act then proceeds to provide for the civil ad- ministration of the Territory.
Mr. Hardwick placed reliance on the words "as an integral part of the Territory of the Commonwealth which appear in the mandate itself as well as in the preamble to the Act, and some support for his argument may be thought to be derived from a passage in the judgment of Isaacs J. in Mainka v. Custodian of Expropriated Property 1, where his Honour said: The words in the Australian Mandate appear to mean, not that the
1(1924) 34 C.L.R. 297, at pp. 300, 301.
86 CLR 137
mandated territory is deemed to be physically part of the continent of Australia, but as territory belonging to the King in right of the Commonwealth of Australia". The mandate was, of course, a " C" class mandate. As to the origin of the expression in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Dowling v Bowie
Sign in free to access the full text
Details
AGLC
Dowling v Bowie [1952] HCA 63
Case
[1952] HCA 63
Decision Date
CaseChat Overview and Summary
The case of *Dowling v Bowie* concerned an appeal to the High Court of Australia following a conviction in the Northern Territory for selling liquor to a "half-caste" within the meaning of the *Aboriginals Ordinance 1918-1947* (N.T.). The appellant, Dowling, was the son of a hotel licensee and assisted in its management. He sold a bottle of wine to James Shannon, who was racially a half-caste. The prosecution relied on section 141 of the *Licensing Ordinance 1939-1952* (N.T.), which prohibited the sale of liquor to an aboriginal or half-caste for the purposes of the *Aboriginals Ordinance*.
The central legal issue before the High Court was whether the prosecution bore the onus of proving that James Shannon was not a person who had been declared exempt from the definition of "half-caste" under section 3A of the *Aboriginals Ordinance*, or whether the onus lay on the appellant to prove such an exemption. A secondary issue was whether an honest belief on reasonable grounds that Shannon was exempt would constitute a defence.
The Court, comprising Dixon C.J., Williams and Taylor JJ., held that the prosecution bore the onus of proving that Shannon was not a person exempted under section 3A of the *Aboriginals Ordinance*. The Court reasoned that the non-existence of such an exemption was an essential element of the offence under section 141 of the *Licensing Ordinance*, and not a matter of exception or excuse that the defendant would need to prove. The Court found that the prosecution had failed to discharge this onus, as no affirmative evidence was presented to exclude the possibility of an exemption. While acknowledging that an honest and reasonable belief in an exemption could constitute a defence, the Court was not satisfied that the appellant had established this defence on the facts. Consequently, the appeal was allowed, the conviction was quashed, and the appellant was discharged.