8. Speech of Chief Justice Phillips on Tuesday 12 February 1952 at Rabaul

Paul Quinlivan’s Snapshots

Snapshot No 3 describes my first day in court in TPNG but, rather than give Monte’s speech then, I preferred to give his performance in two truly remarkable cases. He commenced proceedings by speaking for five minutes in pidgin and then he delivered the following speech in English. 
It is good to see all of you here and, in particular, Mr Keith McCarthy, the District Commissioner, Mr Warner Shand, the District Officer (Magisterial), and Mr Commissioner Reid of the Native Land Titles Commission because they represent three of the five quite different careers which Kiaps can look forward to making their own. But before I discuss Kiaps, I would like to welcome Mr Quinlivan, our new Crown Prosecutor (and he then continued). We are celebrating two other events which, to my mind, must be connected. We welcome back, in the person of Mr Barry Copley, the 25 graduates of the Second Long Course of the Australian School of Pacific Administration (ASOPA) in Sydney and we celebrate the fact that, last week, the Administration sent our first group of young Natives to study in Australian secondary schools.

Until now, the solemn commitments which Australia made when she signed the Trusteeship Agreement have been little more than pious words because it has simply not been possible for anyone to do anything about creating a national feeling amongst the more than 700 different language groups and dialects here. With the two events I have just mentioned, however, we have a clear way in which such a feeling can be achieved. This is especially so in view of the fact that, since the resumption of Civil Administration, there have been constant calls for our court system to intervene in situations where, in former days, more drastic action would have been taken. ‘Bai mi kotim yu’ (I’ll take you to Court) is a common cry and something we should be proud of, especially since it is noticeably absent in other ‘dependent territories’ and, in its place, there is MauMau and similar movements.

Another feature which is quite unique is the protection given to the Coastwatchers during the Japanese occupation. This was maintained, month in, month out, until Japan was conquered, despite the fact that the KEMPI-TAI were frighteningly powerful and they made it plain that unspeakable things would be done to any Native who harboured an Australian. We Australians should be forever grateful and remember that the men and women of the Territory helped us in our time of need when we are considering how best to fulfil our duty under the Trusteeship Agreement.

In addition to being eternally grateful, we should also ask ourselves: Why, when other territories have MauMau, did our people save us at such constant peril to themselves? There were two factors which make TPNG different and, to epitomise the first I quote from Sir William Fitzgerald’s article “Dangerous Rigidity of Colonial Judiciary” in the current volume (vol.5 p.28) of ASOPA’s magazine South Pacific. At page 29 he says: “It is in many ways a matter for regret that the dumping down of the English legal system with all its rigidity has become so firmly rooted in African soil. …. A great task remains for the Colonial Judiciary – the task of a Coke in England or a Holmes of America, not only to adhere to the principles of the common law of England, but to adapt them to the conditions in which they find themselves; to apply, as America did, the fundamental unchanging principle to the changing conditions and needs of the people, rather than to follow slavishly decisions based on the application of those same principles to totally different conditions.”

On both sides of the cordillera we were fortunate in having ‘a Colonial Judiciary’ which did precisely what Sir William now says should be the ‘great task’ everywhere. Dr Albert Hahl, in German times, Sir Hubert Murray on the Papuan side and my own Chief, Wanliss, on the New Guinea side, laid firm foundations for our law and, although they agreed that it would be wrong to keep the Territory as an anthropological museum, they grafted onto the basic principle that everyone be left in peaceful possession of their ancestral lands – itself a revolutionary innovation – a system which means that Native Society is still rather much as they found it, apart from requiring a cessation of warfare and other practices declared to be unacceptable in a modern world. The second factor is that, in other places, the colonising power conquered the local people, or they either established a policy of ‘divide and rule’ or they employed large armies to deter opposition. We did none of these. We sent in small representative bodies of one or two Kiaps and a handful of Native police whose rifles were quite inadequate for defence purposes. From the Natives’ side there were also two factors which we should never forget. Every group has its methods of assessing ‘outsiders’. I first experienced this when I was in the Solomons and I well remember my horror at seeing how mercilessly they mimicked me. After that first natural reaction, however, I came to realise how important it was that people do make such tests so when I faced it again, here, I was glad that I was allowed to witness it (provided, of course, that I remained so unobtrusive that everyone could pretend I was not there!). For those who have not had that privilege I advise that, even though there may be nobody in the Public Gallery (which, if ever it happens, is itself a terrible indictment on the calibre of the person presiding in that court), the events of the day will be discussed that evening, in the minutest detail and with startling mimicry, and judgments will be made. It is by this constant review that Natives judge our conduct and the important point is that they judge us by our own standards. They compare each performance with all the others. And, provided we are honest according to our own lights, they accept. This does not prevent them making, in each case, decisions as to whether our system has produced a very inferior result – as, of course, would be obvious if we allow ourselves to convict ‘Z’ when they know, since they go into these matters with a background of knowledge we can never have, that ‘A’ is the person we were seeking. The second factor is that they were quick to see the value of complaining to one section of the white tribe (and we are, to them, a ‘tribe’ which consists of three opposable parts, the Administration, the Mission and ‘Companies’) if they find something in the others hurtful. They are quick to invoke the aid of one against the other. It is the ability to complain, and the fact that Courts have always been available, which explains the new phenomenon – the cry ‘Bai mi kotim yu’.

Because of these two factors our courts were tested, with untold benefit to Australia, when the need for comparison with the Japanese arose. But what courts were found to have passed the test? It is true that, since the war, the Supreme Court has adopted the Papuan practice of sitting in the ‘town’ closest to the scene, no matter how small that ‘town’ may be. But we are talking about before the war and in those days the Supreme Court of New Guinea followed the Australian model of seldom travelling outside of the capital. And since I am talking about the New Guinea side it is clear that, with a few notable failures, it is Kiaps who have been found to have passed the continuous testing process. Which brings me to my major point about Australia’s duty under the Trusteeship Agreement.

I know of no better way of doing our duty than to introduce Natives, as soon as possible, into the system as Kiaps so that village people can see that the white skin of the ‘tribe’ which is ‘Big Government’ is only incidental and that their own people, even those from the remotest areas, can become ‘The Big Government’. In fact, this is the only way we can bring about a true feeling of nationhood. An additional benefit would be that, in performing that task we will also be controlling the natural tendency for people to usurp power by force, cronyism (wantok), bribery or other unlawful means, as well as providing the future nation with a backbone of educated people, from every language group and area, who have learned, in the same way that Australian Kiaps learnt it, how to make sure that people have an unimpeded right to complain, how to deal with people so that their rights and dignity are safeguarded, and how public money is properly distributed and accounted for. With the 25 diplomates of the Second Long Course, and the 14 who graduated in 1949, we now have 39 graduates from the intensive two-year course of which Mr John Kerr assures me law is a major component. With the further 25 who are about to start their two year sojourn south this means that, by the beginning of 1956, when we have our first Natives matriculating from secondary schools and available for training as Kiaps, we can confidently count on 50 or more experienced officers, with Diplomas, available to superintend their training as Magistrates. It is the beginning of a bright new era, and one greatly desired!

It may be asked: why am I saying this when our first recruits are only now beginning their secondary schooling? And what about the claims of Medicine, Education, Agriculture and other fields? The answer is that when our students are approaching matriculation they will, I hope, have total freedom of choice. I would be the last to limit anyone’s right to elect to go on to study medicine or teaching or agriculture. But it should be a valid election and, since our students will be surrounded by those who will pressure them to choose the more lucrative fields, I feel that it is appropriate for me, at this earliest stage, to put forward the example of the three gentlemen whose presence here I have singled out.

There is also the fact that our very presence here, as an administering power, presents a danger to the stability of Native society. Unless we are constantly on our guard we could undermine the function which the traditional disputes-settling machinery has performed, for countless generations, of controlling the power-grabbing tendency I have already mentioned. Until now we have, using our unique Kiap system, been able to protect the traditional disputes-settlers and allow them to perform their task. With the introduction of Natives into that system as fully trained Kiaps – Kiaps trained in the traditional way – we can allow a truly national feeling to grow.”

 

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