Your U.N.857. [1]

1. Bailey was expressly instructed by the Minister not to consider
modifications of any kind except as a last resort and then only to
make declaration by way of addition expressly indicating
continuance by Australia of established existing policy.

2. You should report along the following line:-

BEGINS-We have carefully considered all suggestions made by
members of committee and the short form of draft is most in accord
with the conception of Trusteeship set down in the Charter.

This short draft [2] contains five operative clauses and these
cover every aspect of trusteeship. Article 3 contains a
comprehensive undertaking that the objectives of administration
are those of the Charter. Article 6 refers to other objectives
which may from time to time be suggested by competent authorities
and which may appear to be relevant to the territory. Articles 4
and 5 deal with legislative powers to be employed in achieving the
objectives of peace and order and good government. Article 7 deals
with defence of the territory and maintenance of international
peace and security.

It is now suggested that certain objectives be referred to
specifically. We agree with many of the objectives stated and, in
fact, the history of Australian administration shows that they
have been the objectives of the Australian Government for many
years. (Elaborate history of administration)
In our view it is therefore not necessary to specify objectives.

We suggest approval of the draft as it now stands.

However, we would be prepared instead of adding clause to have
declaration made to the following effect:

Australia as the proposed Administering Authority declares that in
the discharge of its obligations under Article 3 of this
agreement:-

(a) It will co-operate fully with the Trusteeship Council in the
discharge of all the Council's functions under Articles 87 and 88
of the charter,
(b) In accordance with its established policy and practice it will
continue to:-

(i) Take into consideration the customs and usages of the
indigenous inhabitants of New Guinea and respect their rights and
safeguard their interest[s] [3], both present and future, and in
particular ensure that no rights over native land in favour of any
person not an indigenous inhabitant of New Guinea may be created
or transferred except with the consent of the competent public
authority.

(ii) Promote, as may be appropriate to the circumstances of the
territory, the educational advancement of the inhabitants.

(iii) Assure to the indigenous inhabitants of the territory, as
may be appropriate to the particular circumstances of the
territory and its peoples, a progressively increasing share in the
administrative and other services of the territory. ENDS.

3. On the question of paragraph 5 [4], we do not agree that the
deletion of the phrase 'in the opinion of' is not a matter of
substance. It is true that administrating authority is at liberty
to take or not to take the action but it is essential that the
opinion on which action is to be based must also be that of the
administrating authority. What is in the best interests of the
natives is not a question of fact but of opinion. Moreover the
deletion of these words at this stage might easily in later years
be given a significance not claimed now. We cannot agree to this
amendment.

4. The following is the opinion of Eggleston.

'In my opinion discretionary power is essential for the trustee.

The trusteeship system is based on the fact that the dependent
people is unable to govern itself and the United Nations must
appoint a trustee to administer it. It is always the custom in
these circumstances to give the trustee ample powers subject to
judicial review. It is never the practice of the appointing
authority to appoint a trustee and then do the administration
itself or formulate a code which will bind the action of the
trustee in every respect of his action in relation to the trust
property. Discretion is necessary because all sorts of
contingencies arise in which the trustee has to take action and in
which he has to use his own discretion. He can only act
efficiently in these circumstances if he has that discretion
otherwise he will find himself tied by the letters of instruction
which have been framed without consideration of the particular
situation which has arisen. He will be tied and helpless. The
system I suggest depends on the efficacy of ex post facto review
and it has been found that ex post facto review is more effective
than executive direction from time to time.

I suggest that these considerations apply with cogency to the
development of a very primitive race like the inhabitants of New
Guinea which has to be raised from the status of hunters and
gardeners to, we hope, that status of civilised people. At each
stage of the process, there will be many problems which will have
to be decided and they can only be decided effectively by the
exercise by the trustee of his discretion subject to the
subsequent review of the United Nations. I would like to point out
also one effect of the lack of discretion on the part of the
trustee. The problem then becomes legal question and must be
decided by a legal process. Here you have an agreement which gives
certain rights and directs certain policy. If anyone interested
desires to question that he can say that the agreement has been
broken and bring the matter before the World Court. I have always
given the strongest support to the World Court. But there is a
very strong case against overburdening the trustee with
litigation.'