Re Tamasese, A Prisoner

JurisdictionNew Zealand
Judgment Date21 February 1929
Docket NumberCase No. 16
Date21 February 1929
CourtSupreme Court
New Zealand, Supreme Court.

(Blair, J.)

Case No. 16
In re Tamasese, A Prisoner.

Mandates — Self-Governing Dominion as Mandatory — Legislative Power Derived from Council of the League through the Mandate — Legislative Power Independent of King in Council — Method of Conferring Mandate — New Zealand's Mandate for Western Samoa — Personality of the Mandatory — Duties of the Mandatory — Whether Importing a Derogation from Grant — Mandated Territories and Colonies.

The Facts.—Tamasese, a native of the Mandated Territory of Samoa, had been convicted in Samoa and sentenced to a term of six months' imprisonment. Section 210, sub-sec. 1, of the Samoa Act, 1921, states that:

“Every person sentenced to imprisonment, or committed to prison, for six months or more may, by warrant under the hand of the Administrator and the seal of Samoa, be transferred to some prison in New Zealand named or described in the warrant.”

Under the powers conferred in this section Tamasese was transferred to a New Zealand prison. Thereupon, habeas corpus proceedings were instituted on his behalf, it being argued for the application that Section 210 was ultra vires the New Zealand legislature in so far as it conflicted with the principles of the Habeas Corpus Acts of the Imperial Parliament, and, in particular, Section 12 of the Act of 1679 which by Section 349 of the Samoa Act, 1921, was made applicable to Samoa. It was argued that the Dominion's power to legislate for Samoa was derived from the King in Council. The King in Council, however, had only a limited legislative power: he could not by legislation take away the liberties of the subject, and what he could not do himself he could not delegate to others. Accordingly, though the Imperial Parliament could repeal the Habeas Corpus Acts, the New Zealand Parliament, acting so far as Samoa was concerned under the authority of the King, could not do so.

Held: that the application must be dismissed, the New Zealand Parliament's power to legislate for Samoa being derived not from the King in Council, but directly from the League of Nations.

I. Nature of the Mandate and Method of its Conferment—. “It is necessary first to note that prior to the war and Treaty of Peace Samoa was a German possession and administered by German officials. By the Treaty of Peace Germany renounced—not to Great Britain, but to the Allied Powers—all Germany's rights in Samoa. The Allied Powers in whose favour this renunciation was made have not handed over these rights...

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