The Independent State of Papua New Guinea v NTN Pty Ltd and NBN Ltd [1992] PNGLR 1

• Jurisdiction: Papua New Guinea
• Judge: Barnett J:
• Judgment Date: 07 April 1987
• Citation: [1992] PNGLR 1
• Court: Supreme Court
• Year: 1992
• Judgement Number: SC323

Full Title: The Independent State of Papua New Guinea v NTN Pty Ltd and NBN Ltd [1992] PNGLR 1

Supreme Court: Kidu CJ, Kapi DCJ, Amet J, Woods J, Barnett J

Judgment Delivered: 7 April 1987

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE STATE

V

NTN PTY LIMITED AND NBN LIMITED

Kidu CJ Kapi DCJ Amet Woods Barnett JJ

7 April 1987

CONSTITUTIONALITY — Invalidating legislation — Qualifying qualified rights — Manner and form requirements — Constitution ss 38 and 46.

FUNDAMENTAL RIGHTS — Freedom of expression — Law regulating or restricting — Compliance with manner and form requirements.

LEGISLATION — Regulating broadcasting service — Licence to broadcast granted under Radiocommunications Act — Effect of subsequent statute prohibiting television broadcast — Statute impacting on freedom of expression — Constitutional requirement for validity of legislation.

ONUS OF PROOF — No general presumption of constitutionality — Onus on party relying on validity of legislation to show compliance with manner and form requirements.

RETROSPECTIVE LEGISLATION — Restricting qualified rights — Non compliance with Constitutional requirements — Effect of.

WORDS AND PHRASES — 'Public interest' — 'Public welfare' — 'Reasonably necessary'.

Facts

By a contract dated 25 May 1985 between the applicants and the State an agreement was reached for the former to establish a commercial television station in Papua New Guinea. In accordance with the contract, the applicants established a television station and other necessary requirements for broadcasting of television, and obtained a licence for the venture. In accordance with clause 4.2 of the agreement they would have commenced broadcasting on or about 14 July 1986. There was however a change of government which on 10 July 1986, passed and brought into force the Radiocommunications (Television) Regulation 1986, which had the effect of prohibiting broadcast of television until after 31 January 1988. This resulted in litigation between the parties in the National Court. The Court held that the regulations were ultra vires the parent act, for whilst the latter gave regulatory powers, the regulations prohibited television broadcast (see NTN Pty Ltd & NBN Ltd v The State [1986] PNGLR 167). On the same day as thejudgment, Parliament passed legislation, Television (Prohibition and Control) Act 1986, which prohibited television broadcast until 31 January 1988. The applicant then sought a declaration that s 3 of the Act, and indeed the whole Act, was inconsistent with the terms of ss 46 and 38 of the Constitution and, therefore, should be declared invalid and of no effect.

Sections 38 and 46 of the Constitution read as follows:

"38. General qualifications on qualified rights

(1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that:

(a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary:

(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in:

(A) defence; or

(B) public safety; or

(C) public order; or

(D) public welfare; or

(E) public health (including animal and plant health); or

(F) the protection of children and persons under disability (whether legal or practical); or

(G) the development of under-privileged or less advanced groups or areas; or

(ii) in order to protect the exercise of the rights and freedoms of others; or

(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,

to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

(2) For the purposes of Subsection (1), a law must:

(a) be expressed to be a law that is made for that purpose; and

(b) specify the right or freedom that it regulates or restricts; and

(c) be made, and certified by the Speaker in his certificate under Section 110 (Certification as to making of laws) to have been made, by an absolute majority.

(3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity."

"46. Freedom of expression

(1) Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by a law:

(a) that imposes reasonable restrictions on public office-holders; or

(b) that imposes restrictions on non-citizens; or

(c) that complies with Section 38 (General qualifications on qualified rights).

(2) In Subsection (1), "freedom of expression and publication" includes:

(a) freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and

(b) freedom of the press and other mass communications media.

(3) Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations:

(a) for the communication of ideas and information; and

(b) to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,

and generally for enabling and encouraging freedom of expression."

Issues

1. Whether the State owned the electromagnetic spectrum within the borders of Papua New Guinea and therefore the issue is one of the State controlling its property rather than one of impingement on a fundamental right.

2. Whether a law which regulates or restricts the right of freedom of expression should comply with s 38 of the Constitution, and upon whom the burden of proof rests.

Held

1. The electromagnetic spectrum is not vested in the State by any legislation.

2. Section 3 of the Television (Prohibition and Control) Act 1986 prohibited the right of the applicants to communicate ideas and information through the operation of the television station. This is a violation of the exercise of the right of freedom of publication and expression. The Act must therefore comply with s 38 of the Constitution.

3. The burden of showing that legislation has complied with s 38 of the Constitution is on the party relying on the validity of the legislation.

Cases Cited

Papua New Guinea Cases Cited:

Constitutional Reference No 1 of 1977 [1977] PNGLR 362

NTN Pty Ltd v The State [1986] PNGLR 167

SCR No 2 of 1982; Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214

Other Cases Cited:

Attorney-General v Antigua Times Ltd [1976] AC 16

AG of The Gambia v Jobe [1984] 1 AC 689

Minister of Home Affairs v Fisher [1980] AC 319

Re New Brunswick Broadcasting Co Ltd (1984) 13 DLR (4th) 77

Societe United Docks v Government of Mauritius [1985] AC 585

Editor's Note

This judgment was not published in the PNGLR. The editors are of the view that it is authoritative on important points of law.

Counsel

R O'Regan QC, I Molloy, for the applicant

G Beaumont QC, O Emos, for the respondent

7 April 1987

KIDU CJ: The decision of the court was announced on January 1987 and was that the Television (Prohibition and Control) Act 1986 was unconstitutional, in that it contravened s 38 (2) of the Constitution.

We now publish our reasons.

The Deputy Chief Justice and Barnett J have set out in their judgments the background to this application as well as the submissions advanced by the parties. It is not my intention to traverse the same ground.

PRELIMINARY POINT

As a preliminary point the State argued that the electromagnetic spectrum (or the airwaves) within the borders of Papua New Guinea belong to it (the State) and no person or corporate body has the right to use them without its permission.

Consequently, although the applicants had been granted licences to use the electromagnetic spectrum under the Radiocommunications Act Ch 152, the Television (Prohibition and Control) Act 1986 prohibited the use of the medium until after 31 January 1988 and the State had every right to do this in respect of its property. This, the argument continued, had nothing to do with the right guaranteed by s 46 of the Constitution.

The State's case on this point was based on the Radiocommunications Act. But nowhere in this Act is there to be found a statement that the electromagnetic spectrum belongs to the State. Its preamble includes the following statement:

"Being an Act relating to radio communications in Papua New Guinea:

(a) to authorize the Government to establish, maintain and operate radio communications stations; ..."

Now if the State owned the resource in question there would be little or no need at all to have an Act of Parliament to authorize the State to establish, maintain...