In the Matter of s8(1) of the Constitution of Papua New Guinea; And In the Matter of the Honourable Bill Skate, MP Leader of the Opposition (2001) SC678

• Jurisdiction: Papua New Guinea
• Citation: (2001) SC678
• Date: 16 November 2001
• Docket Number: Supreme Court Reference No 4 of 2001
• Court: Supreme Court
• Year: 2001

Full Title: Supreme Court Reference No 4 of 2001; In the Matter of s8(1) of the Constitution of Papua New Guinea; And In the Matter of the Honourable Bill Skate, MP Leader of the Opposition (2001) SC678

Supreme Court: Amet CJ, Injia J, Sawong J

Judgment Delivered: 16 November 2001

1 Constitutional Law—Special rights of citizens—Right to hold public office and to exercise public functions—Regulation of—Rights capable of regulation and restriction but not prohibition—s50(1) and s50(2).

2 Statutes—Validity of—Qualifying qualified rights.

3 Statutes—Manner and form requirements.

4 Constitution s38, s39 and s50(2)

5 SCR No 2 of 1982; Re the Organic Law on National Elections (Amendment) Act 1981 (No 1) [1982] PNGLR 214, The State v NTN Pty Ltd and NBN Ltd [1992] PNGLR 1, SCR No 1 of 1992; Re Constitutional Amendment No 15—Elections and Organic Law on National Elections (Amendment No 1) Law 1991; Special Reference by the Ombudsman Commission under s19 of the Constitution [1992] PNGLR 73 referred to

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Amet CJ:

The Applicant, who is the Member of the National Parliament for the National Capital District (NCD) filed this Reference under s18(1) of the Constitution seeking interpretation as to the constitutional validity of two amendments to the National Capital District Commission Act 1990—(the Principal Act). He sought declaration that the National Capital District Commission (Amendment) Act 2001, (the First Amendment) and the National Capital District Commission (Amendment No 2) Act 2001, (the Second Amendment), are unconstitutional on the following basis:

"That the First Amendment purports to regulate the special rights of citizens under s50 of the Constitution in so far as it regulates or restricts the rights and the opportunity of the Applicant and others:

(a) to take part in the conduct of public affairs of the NCD Commission (NCDC) through freely chosen representatives, and

(b) to hold public office on the NCDC, and to exercise public functions as a Commissioner of the NCDC."

He submitted that as the amending acts purport to "regulate" those special rights each must comply with the requirements of s38 of the Constitution, and under s38(2), each must:

(a) be expressed to be a law that is made for the specified purposes; and

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

(c) be certified to have been made by an absolute majority.

The following immediate facts, as agreed to, gave rise to the reference:

(1) On 5 December 2000, notice of the First Amendment was given in Parliament to amend the Principal Act. On 07 December 2000, the amendment bill appeared in the Parliament Notice Paper.

(2) On 07 October 2001, the National Court handed down its decision quashing the decision of the National Executive Council to withdraw the powers and functions of the NCDC on 7 September 1999.

(3) On 9 October 2001, the Parliament passed the First Amendment

(4) On 11 October 2001, the Clerk and Speaker of Parliament certified the First Amendment. On the same day, the First Amendment was published in the National Gazette No G123, thus bringing it into force.

(5) Until the First Amendment came into force, the Applicant was a member of the NCDC by virtue of s4(1)(c) of the Principal Act.

(6) S2 of the First Amendment repealed s4 of the Principal Act relating to membership of the NCDC.

(7) The membership of the NCD members of Parliament on the NCDC was thus abolished by the repeal of s4 of the Principal Act.

(8) On 18 October 2001, the National Parliament passed the Second Amendment with 60 votes in favour and no votes against.

The NCD is established by s4 of the Constitution. It provides that an Organic Law or an Act of Parliament shall make provision in respect of the NCD government. The Organic Law on Provincial Governments and Local–level Governments (the Organic Law) intended that the system of Provincial Governments would apply to the government of the NCD, upon notice being given to effect it. However no notice had been given to date. The Principal Act thus provides for the government of the NCD.

Various provisions of the Principal Act as amended by No 15 of 1995 provided for the membership of the NCDC as follows:

S4(1) provides that the NCDC shall consist of:

"(a) the Governor; and

(b) the Deputy Governor;

(c) the members of the National Parliament representing each electorate; and

(d) two members of the Motu Koitabu Council; and

(e) subject to Subsection (2), the head and deputy head of each Local–level Government in each open electorate; and

(f) one person appointed by the Minister to represent each of the following interest groups:—

(i) women; and

(ii) the Port Moresby Chamber of Commerce; and

(iii) workers unions; and

(iv) the National Capital District Ecumenical Churches.

(2) Where there are no Local–level Governments in an open electorate or part of an open electorate, the members of the Commission referred to in Paragraph (e) shall comprise the head of each ward committee, not exceeding two, within the open electorate.

(3) The members referred to in Subsection (1)(b), (d), (e) and (f) shall—

(a) have resided in the National Capital District for a continuous period of four years immediately prior to appointment and shall continue to reside in the National Capital District during the period of appointment; and

(b) shall hold office for the period up to the date the writ is returned following the next General Election held after the coming into operation of the Organic Law on Provincial Governments and Local–level Governments.

(4) The members, other than the Governor or Deputy Governor, shall serve on a part–time basis and shall be paid such fees and allowances and receive such benefits as are determined by the Minister.

5. Chairman and Deputy Chairman.

(1) There shall be a Chairman and a Deputy Chairman of the Commission.

(2) Subject to this Act, the Governor shall be the Chairman of the Commission and the Deputy Governor shall be the Deputy Chairman of the Commission.

(3) If the Governor is—

(a) on leave of absence; or

(b) absent from the National Capital District; or

(c) out of speedy and effective communication; or

(d) otherwise unable to perform or is not readily available to perform the duties of his office,

the Deputy Governor shall perform the functions and responsibilities of the Governor and the Chairman of the Commission.

(4) The Governor and Deputy Governor shall serve the Commission on a full–time basis (subject to their duties as members of the National Parliament) and shall—

(a) be paid such salaries and allowances; and

(b) be employed under such other terms and conditions,

as are determined by the Salaries and Remuneration Commission.

5A. The Governor and Deputy Governor.

(1) An office of Governor of the National Capital District and an office of Deputy Governor of the National Capital District are hereby established.

(2) Subject to this Act, the member of the National Parliament representing the National Capital District provincial electorate shall be the Governor.

(3) The head of the Motu Koitabu Council shall be the Deputy Governor.

(4) The Commission may, by notice in the National Gazette, declare that the offices of Governor and Deputy Governor shall be known by such other title as to the Commission seems appropriate and where a declaration has been so made the Governor and Deputy Governor shall be known as and referred to by the titles specified in the declaration and all references...