Re Vagrancy Act (Ch268); Special Reference Pursuant to the Constitution s19 [1988] PNGLR 1

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Amet J, Woods J, Cory J, Barnett J
• Judgment Date: 13 April 1987
• Citation: [1988] PNGLR 1
• Docket Number: Supreme Court Reference No 1 of 1986
• Court: Supreme Court
• Year: 1988
• Judgement Number: SC328

Full Title: Supreme Court Reference No 1 of 1986; Re Vagrancy Act (Ch268); Special Reference Pursuant to the Constitution s19 [1988] PNGLR 1

Supreme Court: Kidu CJ, Amet J, Woods J, Cory J, Barnett J

Judgment Delivered: 13 April 1987

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO 1 OF 1986 RE VAGRANCY ACT (CH NO 268) SPECIAL REFERENCE PURSUANT TO THE CONSTITUTION, S 19

Waigani

Kidu CJ Amet Woods Cory Barnett JJ

1 August 1986

13 April 1987

STATUTES — Validity — Infringement of constitutional protection of basic rights — Constitution, ss 38, 42, 52 — Vagrancy Act (Ch No 268).

CONSTITUTIONAL LAW — Basic rights — Liberty of the person — Statutory power to arrest for vagrancy — Validity of power — Constitution, s 42 — Vagrancy Act (Ch No 268), s 2.

CONSTITUTIONAL LAW — Basic rights — Special rights — Right to freedom of movement — Statutory power to exclude vagrant from township — Validity of power — Constitution, s 42 — Vagrancy Act (Ch No 268), s 3.

CONSTITUTIONAL LAW — Basic rights — Qualified rights — General qualification on — Right to freedom of person — Right to freedom of movement — Whether qualifications are necessary for public order or public welfare — Whether reasonably justifiable in democratic society — Onus of proof — Constitution, ss 38, 42, 52 — Vagrancy Act (Ch No 268).

CONSTITUTIONAL LAW — Basic rights — Qualified rights — General qualifications on — Validity of legislation empowering — Certification of speaker — Certification deficient in one statement — Certification not mandatory — Certification not going to validity — Constitution, s 38 — Vagrancy Act (Ch No 268).

The Vagrancy Act (Ch No 268) was enacted by an absolute majority of Parliament and came into operation on 3 November 1986. The Act provided in s 2 (1) (c) for the arrest without warrant of persons found in towns reasonably suspected of having no, or insufficient lawful means of support. Section 3 placed a burden upon those persons to satisfy a magistrate of their lawful means of support. If they failed to so satisfy the magistrate he was impowered by s 3 to order that they be excluded from the town for up to six months. Disobeying an exclusion order was an offence punishable by up to six months in prison.

Under the Constitution:

(a) s 42 guarantees the right to personal liberty subject to prescribed exceptions relating to criminal offences, quarantine, immigration and mental health;

(b) s 52 guarantees the right to freedom of movement throughout the country except when a relevant law satisfies s 42 or complies with s 38;

(c) s 38 relates to general qualifications on qualified rights and provides that laws which regulate or restrict rights or freedoms may be valid if they regulate and restrict to no greater extent than necessary to give effect to the public interest in public order and public welfare (taking into account the National Goals and Directives Principles), or regulate and restrict to no greater extent than is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind;

(d) s 38 (2) (c) provides that such a law must "be made and certified by the speaker in his certificate under s 110 (certification as to making of laws) to have been made, by an absolute majority";

(e) s 38 (3) provides that the burden of showing a law is a law that complies with the section is on the party relying on its validity.

On a reference by the Public Solicitor pursuant to s 19 of the Constitution challenging the constitutionality of the Vagrancy Act (Ch No 268).

Held

The Vagrancy Act (Ch No 268) was invalid as being unconstitutional.

(1) (By the Court) Insofar as s 2 of the Vagrancy Act (Ch No 268) permitted the arrest of a person for a reason not sanctioned by s 42 of the Constitution it was unconstitutional and invalid.

(2) (Woods J declining to answer) The exclusion orders in s 3 of the Vagrancy Act (Ch No 268) restricted the right to freedom of movement protected by s 52 of the Constitution, and the State had failed to discharge the onus under s 38 (3) of the Constitution of proving that such exclusion orders were necessary for public order or public welfare or reasonably justifiable in a democratic society within the meaning of s 38 (1).

(3) (Woods J not considering) Insofar as s 29 (1) (c) of the Vagrancy Act (Ch No 268) provided for the issuing of a summons to appear in Court, against a person found without lawful means of support, it restricted that person's freedom of movement in violation of his rights under s 52 of the Constitution and was invalid.

(4) (Woods J dissenting) Whilst the failure by the Speaker to include in his s 110 certificate the fact that the Vagrancy Act (Ch No 268) was enacted by an absolute majority of the Parliament was in breach of s 38 (2) (c) of the Constitution, it did not of itself render the Vagrancy Act unconstitutional as s 38 (2) (c) was not intended to be mandatory.

Reference

This was a special reference under s 19 of the Constitution challenging the validity of the Vagrancy Act (Ch No 268).

The questions referred and the answers of the Court were as follows:

1. Is the Vagrancy Act (Ch No 268) in its entirety unconstitutional in that it is inconsistent with s 38 (1) of the Constitution so far as the regulation or restriction of the right to movement (Constitution, s 52) by the legislation, taking account of the National goals and directive principles and the basic social obligations is not necessary for the purpose of giving effect to the public interest in public order and public welfare?

Answer Per: Kidu CJ, Amet J, Cory J, Barnett J (Woods J declining to answer).

Yes.

2. Is the Vagrancy Act (Ch No 268) in its entirety unconstitutional in that it is inconsistent with the requirement of s 38 (1) of the Constitution so far as the extent to which the right to freedom of movement (Constitution, s 52) is regulated or restricted by the legislation is not reasonably justifiable in a democratic society having a proper respect for the rights and freedom of mankind?

Answer Per: Kidu CJ, Amet J, Cory J, Barnett J (Woods J declining to answer).

Yes.

3. Is the Vagrancy Act (Ch No 268) in its entirety unconstitutional in that it contravenes s 42 (1) of the Constitution?

Answer By the Court:

Yes.

4. Is the Vagrancy Act (Ch No 268) in its entirety unconstitutional in that it has not been certified in accordance with s 38 (2) (c) of the Constitution?

Answer Per: Kidu CJ, Amet J, Cory J, Barnett J (Woods J dissenting)

No.

Counsel

E Kariko and F Pitpit, for the affirmative cases.

P Young, for the negative case.

Cur adv vult

13 April 1987

KIDU CJ: This is a special Reference by the Public Solicitor pursuant to s 19 of the Constitution.

The questions raised by the Public Solicitor are as follows:

1. Is the Vagrancy Act (Ch No 268) in its entirety unconstitutional in that it is inconsistent with s 38 (1) of the Constitution so far as the regulation or restriction of the right to freedom of movement (Constitution, s 52) by the legislation, taking account of the National goals and directive principles and the basic social obligations is not necessary for the purpose of giving effect to the public interest in public order and public welfare?

2. Is the Vagrancy Act (Ch No 268) in its entirety unconstitutional in that it is inconsistent with the requirement of s 38 (1) of the Constitution so far as the extent to which the right to freedom of movement (Constitution, s 52) is regulated or restricted by the legislation is not reasonably justifiable in a democratic society having a proper respect for the rights and freedom of mankind?

3. Is the Vagrancy Act (Ch No 268) in its entirety unconstitutional in that it contravenes s 42 (1) of the Constitution?

4. Is the Vagrancy Act (Ch No 268) in its entirety unconstitutional in that it has not been certified in accordance with s 38 (2) (c) of the Constitution?

BACKGROUND OF THE ACT

The Act was passed by an absolute majority of the Parliament on 1 March 1977 and certified on 7 March. It came into operation on 3 November 1977.

It is expressed to be an Act to regulate or restrict the right to freedom of movement conferred by s 52 of the Constitution for the purpose of giving effect to the public interest in public order and public welfare. In doing so the Act says the Parliament took into account the National Goals and Directive Principles and the Basic Social Obligations, in particular the following:

(a) integral human development; and

(b) traditional villages and communities to remain as viable units in Papua New Guinea Society; and

(c) each person to work according to his talents in officially useful employment; and

(d) each person to respect the rights and freedoms of others.

Also the preamble to the Act states that the Act is made in accordance with s 38 (1) of the Constitution.

SCHEME OF THE ACT

The Act empowers the police either to apply to the court for the issuing of a summons directing a...