Nelson v Braisby (No 2)

• Jurisdiction: New Zealand
• Judgment Date: 29 June 1934
• Docket Number: Case No. 15
• Date: 29 June 1934
• Court: Supreme Court

New Zealand, Supreme Court.

(Myers, C.J.; Herdman, Reed, Blair, JJ.)

Case No. 15

Nelson

and

Braisby (No. 2).

Mandates — Position of Mandatory — British Dominions as Mandatories — Mandated Territory of Western Samoa — Samoa Act, 1921 — Regulations made by Governor-General in Council — Delegation of Powers to Administration — Applicability of the Maxim delegatus non potest delegare.

The Facts.—Western Samoa is a territory administered as a “C” class mandate by the Government of the Dominion of New Zealand. By Article 2 of the Mandate the mandatory is given “full power of administration and legislation over the Territory, subject to the present mandate, as an integral portion of the Dominion of New Zealand, and may apply the laws of the Dominion of New Zealand to the Territory, subject to such modifications as circumstances require”. An Imperial Order in Council of March 11, 1920, made under the Foreign Jurisdiction Act, 1890, ordered that the Parliament of New Zealand should have full power to make laws for the peace, order and good government of the Territory of Western Samoa subject to, and in accordance with, the Treaty of Peace of 1919.

In 1921 the New Zealand Parliament passed the Samoa Act, intended to make permanent provision for the peace, order and good government of the Territory. By Section 45 of that Act the Governor-General in Council was empowered to “make all such regulations as he thinks necessary for the peace, order and good government of Samoa”. This general power was limited in the following terms:

“(2) No regulation made by the Governor-General in Council under this Act shall be of any force or effect so far as it is repugnant to this or any other Act of the Parliament of New Zealand in force in Samoa, but such regulation shall not be deemed to be repugnant to this Act because it is repugnant to the law of England established in Samoa by this Act, or because it deals with a matter already dealt with by this or any other Act: and every such regulation shall take effect according to its tenor, save so far as inconsistent with any such Act.

“(3) The power conferred on the Governor-General by this section to make regulations for Samoa shall extend to the imposition of tolls, rates, dues, fees, fines, taxes, and other charges.”

In pursuance of Section 45 the Governor-General in Council made the Samoa Seditious Organizations Regulations, 1930, wherein a seditious organisation is defined as “an organization declared to be seditious by the Administrator of Western Samoa”, In particular, the Regulations confer power upon the Administrator to declare an...