SC109

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

IN RE REFERENCE NO. 1 OF 1976(P)

AND RAKATANI PETER

V

SOUTH PACIFIC BREWERY LTD

Waigani
Frost CJ Prentice DCJ Kearney J
18 June 1976
30 July 1976
29 November 1976

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Construction - Protection of law - Provision for hearing of offence in absence of accused - Whether s. 1311 of District Courts Act 1963 a "provision" of the type referred to in s. 37(5)2 of the Constitution - Constitution s. 103.

INFERIOR COURTS - Procedure - Provision for hearing and determination of information for simple offence in absence of defendant - Validity of s. 1314 of District Courts Act 1963 - Construction thereof - Provision to be construed as relating to offence maximum penalty for which does not include imprisonment (except in default of payment of fine).

Section 37(5) of the Constitution of The Independent State of Papua New Guinea provides:

"Except with his own consent, the trial [of any person] shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence."

Section 131 of the District Courts Act 1963 provides:

"If, at the time and place appointed by a summons for hearing and determining an information of a simple offence, the defendant does not appear when called, and proof is made to the Court upon oath, or by deposition made as prescribed by s. 55 of this Act of due service of the summons upon the defendant a reasonable time before the time appointed for his appearance, the court may either:

(a)	proceed ex parte to hear and determine the case in the absence of the defendant; or

(b)	upon oath being made before it, substantiating the matter of the information to its satisfaction, issue its warrant for the arrest of the defendant to bring him before a court to answer to the information and to be further dealt with according to law."

The District Courts Act defines a "simple offence" as meaning "an offence punishable on summary conviction before a Court by fine, imprisonment or otherwise".

Held:

(Per Frost C.J. and Kearney J.) Section 131 of the District Courts Act 1963 is a "provision" of the type referred to in the proviso to s. 37(5) of the Constitution, but only in so far as it relates to an offence punishable on summary conviction before a Court the maximum penalty for which does not include imprisonment (except in default of payment of a fine).

In so far as s. 131 of the District Courts Act 1963, purports to provide that in certain circumstances an offence the maximum penalty for which includes imprisonment (except in default of payment of a fine) may be heard summarily in the absence of the defendant, if goes beyond that for which the law may provide under s. 37(5) of the Constitution. There being therefore a question of inconsistency arising between an Act of Parliament and the Constitution, s. 10 of the Constitution is required to be applied. Section 10 of the Constitution is to be read as a rule of construction in the sense that it provides a guide for the ascertainment of the intention of Parliament in the case of partial invalidity of a law; but for the particular legislative intention always to prevail in accordance with the Spirit of the Constitution; meaning that if from the terms of an Act it appears that Parliament intended that only the Act as a whole should come into operation, then the whole would fail if there was partial invalidity.

Cases Cited:

Papua New Guinea Cases:

Nil

Overseas Cases:

Australian Railways Union v. Victorian Railways Commissioners (1930) 44 C.L.R. 319; 
Pidoto v. Victoria (1943) 68 C.L.R. 87;
Bank of New South Wales v. The Commonwealth (1948) 76 C.L.R. 1 and Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 C.L.R. 468 considered.

To read down the definition of simple offence in its application to s. 131 of the District Courts Act 1963, so as to confine its operation to summary offences punishable otherwise than by imprisonment (except in default of a fine) does not amount to judicial legislation but is merely the process of construction which the Court is required to undertake under s. 10.

(Per Prentice Deputy C.J.) Taking into account the conditions of the country, making use of the aids to interpretation available under the Constitution — e.g. pursuant to ss. 24 and 25 thereof and the use of the preamble in cases of doubt (Sch. 1.3(1)), exercising such judicial ingenuity as may safely be indulged, taking full account of the National Goals and Directives, the rights of individuals and the duties of the State, and though not perhaps in accord with the manner of interpretation of acts of Parliament elsewhere, believing that the Supreme Court of Papua New Guinea should be prepared and is empowered to, not only eliminate a phrase from an Act if by so doing, constitutional validity could be secured in accordance with what it construed Parliament’s intention, but also to add a phrase or change a phrase with the intent of construing (translating) an Act so that it is valid and still expressing the clear Parliamentary intent; accordingly, s. 131 of the District Courts Act 1963 is to be read and construed in such a manner as to permit an ex parte hearing "in the case of an offence punishable by imprisonment (otherwise than for default in payment of a fine) if the accused consents to the charge being heard in his absence".

Reference

This was a reference under s. 18 of the Constitution, by the District Court at Port Moresby of the following question:

"Is section 131 of the District Courts Act a ‘provision’ of the type referred to in the proviso to sub-section (5) of section 37 of the Constitution?"

Counsel

CF Wall, to argue the affirmative case
LW Roberts-Smith, to argue the negative case
Cur. adv. vult.

29 November, 1976

1. FROST CJ: This is a reference under s. 18 of the Constitution by the District Court at Port Moresby of a question relating to the interpretation and application of s. 37(5) of the Constitution. The question is:

"Is section 131 of the District Courts Act a ‘provision’ of the type referred to in the proviso to sub-section (5) of section 37 of the Constitution ..."

2. The point of the question is whether s. 131 which purports to confer jurisdiction, upon proof of due service, to hear and determine an information of a simple offence in the absence of the defendant, is authorized by s. 37(5) of the Constitution. The point is a difficult one, and the Court has had full assistance from counsel both in written submissions and also in argument before the Court.

3. At the outset I should refer to both provisions. Section 37(5) can conveniently be divided into two parts. First, it prohibits the trial of a person taking place, except with his consent, in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, and the Court orders him to be removed. Secondly, it authorizes provision to be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment (except in default of a fine), to be heard summarily in his absence if it has been established that he has been duly served with a summons in respect of the alleged offence.

4. In the present case the information was brought under the Employment Statistics Act 1971, for an offence the maximum penalty for which included imprisonment for 2 months.

5. The effect of s. 131 is that if the defendant to a summons for a simple offence does not appear, and there is proof of due service, "the court may either:

(a)	proceed ex parte to hear and determine the case in the absence of the defendant; or

(b)	upon oath being made before it, substantiating the matter of the information to its satisfaction, issue its warrant for the arrest of the defendant to bring him before a court to answer to the information and to be further dealt with according to law."

6. The jurisdiction thus conferred relates to a "simple offence" which, pursuant to s. 5 of that Act, there being no intention to the contrary, means "an offence punishable on summary conviction before a court by fine, imprisonment or otherwise". (When I refer to offences punishable by imprisonment I mean imprisonment except in default of payment of a fine). To the extent that s. 131 enables an information of a simple offence punishable by imprisonment to be heard in the absence of the defendant it is therefore a provision which goes beyond s. 37(5), and is inconsistent with it.

7. I should refer to the use of the Latin expression "ex parte". As I indicated in R. v. Mitchell and Ijahujo, Ex parte Alios Wafing in which s. 131 was considered in relation to the Human Rights Act 1971, a hearing "ex parte" means, strictly, a hearing without notice to the party to be affected thereby (Rules of the National Court, O.62 r.8). Having regard to the requirement of s. 131 of giving notice of the hearing, that expression would not appear to add anything to sub-paragraph (a). It seems to have been included as a brief description of a hearing in the absence of the defendant.

8. Before turning to the relevant provisions of the Constitution, it is important to note the legal arrangements which were made to ensure that all laws in the country must stem from its autochthonous or "homegrown" Constitution. Constitution, s. 24. Report of the Constitutional Planning Committee, Chapter 15, par. 14. The first step was the enactment by the pre-Independence House of Assembly of the Laws Repeal Act 1975 which came into operation immediately prior to the expiry of Independence Day, 15th September, 1975. The purpose of that Act, which was achieved by one simple section and without reference to particular enactments, was the repeal in bulk, as it were, of all the legislation and subordinate legislation of Papua New Guinea, and any other country applying to Papua New Guinea immediately before the commencement of the Act. It was then by force of s. 20(3) and Sch. 2.6. of the Constitution, which came into effect on 16th September, 1975, that all pre-Independence laws, which means for the purposes of this case all laws repealed by the Laws Repeal Act 1975, were adopted as Acts of the Parliament, and were brought into application to the extent to which they applied immediately before Independence Day. Just as the repeal was of the legislation in its entirety, so also was the adoption of that legislation under the Constitution and, of course, the District Courts Act was included in that adoption. Further, as the provision contained in Sch. 2.6. is expressly made subject to any Constitutional law, it is clear that the adopted laws are subject to the same constitutional limitations as an Act of Parliament, and in particular, for the purposes of this case, ss. 10 and 11. Section 11 provides that the Constitution and the Organic Laws are the Supreme Law of Papua New Guinea and, subject to s. 10 all Acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective. That latter section might seem to be decisive of the present issue, but the terms of the section lead on to s. 10 so far as written laws are concerned. Indeed, as will appear upon analysis, the only operation that s. 11 may be left with is in relation to executive or judicial Acts.

9. Section 10 is in the following terms:

"10.	Construction of written laws

All written laws (other than this Constitution) shall be read and construed subject to:

(a)	in any case — this Constitution; and

(b)	in the case of Acts of the Parliament — any relevant Organic Laws; and

(c)	in the case of adopted laws or subordinate legislative enactments — the Organic Laws and the laws by or under which they were enacted or made,

and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority."

10. As the pre-Independence laws were adopted as Acts of the Parliament it is necessary to refer to the powers of the National Parliament. In that arm of the National Government is vested the legislative power of the People, but subject to the Constitution s. 100(1). The National Parliament has unlimited powers of law-making, but also subject to the Constitutional Laws, s. 99(2) (a). It follows that the National Parliament has no power to make laws which exceed the powers conferred by, or are inconsistent with, the provisions of the Constitution. Accordingly when any question of inconsistency arises between an Act of the Parliament and the Constitution, so far as I am able to understand the problem, it would seem to fall to be determined under s. 10, rather than under s. 11.

11. In the case in question, the District Courts Act can be a valid law to the extent only that it can be brought within the legislative power of the National Parliament. The only section that was the subject of argument, and with which this Court is concerned, is s. 131. It is not suggested that the Act as a whole is invalid. As I have already indicated, s. 131 of that Act is in excess of the legislative authority of the National Parliament. It is therefore invalid to the extent that it authorizes a hearing in the absence of the defendant for summary offences for which the maximum penalty includes imprisonment. The question as drafted does not therefore raise the precise problem. The real issue is whether s. 131 is saved by the operation of s. 10 and remains a valid law, to the extent to which it is not in excess of the authority conferred by the Constitution s. 37(5) that is in respect of the ex parte jurisdiction conferred to hear all other summary offences.

12. In his written submissions the Acting Public Solicitor submitted that to hold s. 131 invalid would reduce to futility an extremely useful and necessary provision, and such a construction should be avoided on the basis that Parliament has legislated only to bring about an effective result, an approach supported by s. 109(4) of the Constitution. However, I agree with the Public Prosecutor that such a construction cannot be supported if s. 131 clearly contravenes the Constitution. The Acting Public Solicitor’s main submission was that the provisions contained in ss. 10 and 11 of the Constitution, taken with the provisions for its interpretation in Sch. 1.5. (2) and s. 109(4), were sufficient in themselves to determine the question. It was unnecessary, he submitted, to refer either to general common law principles of statutory interpretation or to the construction given in Australia to provisions similar to s. 10.

13. The conclusion to be derived from those provisions was, he submitted, simply that s. 131 is valid and effective to the extent that it is not inconsistent with s. 37(5) of the Constitution, and that the terms of art to be found in the cases relating to sections such as s. 10 served only to cloud the issue.

14. As the Public Prosecutor saw the case, the question was confined to the saving words of s. 10, that is to say, whether s. 131 was valid to the extent to which it was not in exercise of Parliament’s legislative authority. He submitted that the problem was not strictly one of severance for there are no words in s.131 which constitute the "legislative excess" and which could be deleted. To render the section constitutional it would, he submitted, be necessary to add a clause restricting the operation of the section to an information of a simple offence the maximum penalty for which did not include imprisonment. This, in his submission, would be clearly judicial legislation, going much further than "pruning" a statutory provision of its constitutional excess. The answer of the Acting Public Solicitor was that the adoption of a more restricted interpretation of "simple offence" did not involve the addition of words to a statutory provision, but rather, as was permissible, the placing of a more limited meaning of that term in the particular context of s. 131.

15. The Public Prosecutor supported his submissions by reference to the constitutional law of Australia where the problem has arisen frequently in relation to the exercise by a State or the Federal Parliament of legislative powers which are limited under the Constitution. Section 10 was, he submitted, a "reading down" and "severance" provision, a process which is the application of the principle that wherever possible legislation should be construed as being within power. He referred to D’Emden v. Pedder. In that case a State law purporting to impose stamp duty on receipts generally was construed as having no application to a receipt given by a Federal officer, an operation which was beyond the powers of a State Parliament. This was a construction which saved the State Act from being held invalid.

16. The Public Prosecutor went on to submit that in the present case it would be necessary to read down the term "an information for a ‘simple offence’ " as a general or class expression so as to include within it only some of the matters within that general term, viz. information for "simple offences" other than those the maximum penalty for which did not include imprisonment. He cited The Federated Amalgamated Government Railway and Tramway Service Association v. The New South Wales Railway Traffic Employees Association (The Railway Servants case) for the proposition that the reading down technique yielded to any contrary intention appearing in the statute. As a simple offence was defined in s. 131 to include offences punishable by imprisonment, as it was then argued, s. 131 must fail in its entirety. But in view of the saving provisions of s. 10 that consequence does not necessarily follow — see Howard, Australian Federal Constitutional Law, 2nd ed., at p. 19, in a passage generally relied on by the Public Prosecutor. Thus his submission would seem to depend on whether reading down would require judicial legislation beyond the powers of the Court.

17. If reference is to be made to Australian constitutional law, in my opinion it should be made directly to s. 15a of the Acts Interpretation Act 1973 of the Commonwealth Parliament, which first came into operation in 1930. It is in the usual form, as they are called, of "severability clauses" which have become common in the United States of America and Australia. (A provision in similar terms in relation to instruments (including Regulations) was in force in the pre-Independence Acts Interpretation Act 1949, and also in the Interpretation (Interim Provisions) Act 1975, s. 78 (now repealed).) The operative words of the Constitution, s. 10, are in substantially similar terms to the Australian section. Although the cases relied on by the Public Prosecutor were decided prior to the coming into operation of s. 15a, and the Public. Prosecutor made no direct reference to it, it is clear from the authorities cited by him that his submissions are grounded on the interpretation given in Australia to that section.

18. Section 15a is in the following terms:

"15a.	Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power."

19. Now under the Constitution Sch. 2.12. (2) recourse may be had to decisions of courts outside the National Judicial System, but only for their persuasive value. So the relevant principles adopted for the interpretation of s. 15a must first be considered. The main decisions of the High Court in which that section has been considered are Australian Railways Union v. Victorian Railways Commissioners per Isaacs C.J.; Pidoto v. Victoria per Latham C.J.; Bank of New South Wales v. The Commonwealth per Sir Owen Dixon, and Strickland v. Rocla Concrete Pipes Ltd per Barwick C.J.

20. At the outset it is necessary to bear in mind that, in considering severability in relation to the possible invalidity of statutes, a distinction has been drawn between two types of enactment, which are in the form of "(1) separate words or expressions, some of which as enactments separately considered were valid and others invalid, and (2) a general word or expression which included both good and bad provisions"—per Latham C.J., Pidoto v. Victoria. To use the terminology of the Australian decisions, if effect is given to the valid provisions only, in the first case that is said to be a "divisible construction", and, if a general word or expression is read down to include only the good provisions, that is said to be a "distributive construction". The application of the section in the first case does not raise as many difficulties as in the second case, — per Latham C.J. (op. cit. p. 110).

21. As an Act of the Australian Parliament, s. 15a has been held to be a "direction binding all strictly judicial tribunals — for they alone have the constitutional duty or power of determining the validity or meaning of a statute — that every Commonwealth Act ‘shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth’. That portion of the section is a direction ... — to this Court in the present case — to disregard any portion of the statute that is invalid as exceeding the legislative powers of the Commonwealth. The second part proceeds to a further process of construction, namely, ‘To the intent that where any enactment ... would, but for this section, have been construed as being in excess of that power ... it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power". That is to say, if, after discarding all excess exercise of legislative power, there remains any legislation that is within that power, the valid portion stands and must be given effect to.’ "Australian Railways Union v. Victorian Railways Commissioners per Isaacs C.J. at pp. 373-374. But as was recognized in that case by the Chief Justice, and from the time of its enactment, the section has been regarded, as it purports to be, as directed to the construction of laws for determining their meaning — Pidoto v. Victoria. The contrary view was argued that s. 15a was a provision affecting the operation of laws "in the sense that all laws are to be held to be valid in all cases to which they are, according to their terms, applicable, irrespective of failure to operate in other cases: that is, that the Act in effect says that all laws are to be construed as validly applying wherever they could by suitable limitations have been made validly applicable."15. This would seem to be the basis of the submission by the Acting Public Solicitor in the present case. But the argument was rejected for cogent reasons stated by Latham C.J. in that case (op. cit.).

22. The effect of the Australian section, as it has been judicially interpreted, has been stated in Wynes, Legislative, Executive and Judicial Powers in Australia, 5th ed., at p. 53, in a passage which commences with a citation from Sir Owen Dixon’s judgment in Bank of New South Wales v. The Commonwealth and which was cited in The State v. The Independent Tribunal; Ex parte Moses Sasakila:

"... His Honour said: ‘The effect of (severability) clauses is to reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail. To displace the application of this new presumption to any given situation arising under the statute by reason of the invalidation of part, it must sufficiently appear that the invalid provision forms part of an inseparable context.’ But once it appeared that rejection of the invalid part would mean a different operation of the valid part or produce a different result, the whole must fail. This consideration supplied a strong logical ground for holding provisions to be inseverable, since in such a case there was a strong inference that Parliament did not intend that anything less than the whole Act should be law. (76 C.L.R. at p. 371). At a later stage his Honour refers to the rule ‘that provisions are to be considered severable and general words distributable’." (op. cit.).

23. There are, however, two additional considerations, which are that "in no case can the Court be required to legislate nor should it do so", and, "the reduced form or operation of the Act must result ‘in a consistent workable and effective body of provisions’." Strickland v. Rocla Concrete Pipes Ltd., per Barwick C.J. The former consideration is lucidly explained in Australian Railways Union v. Victorian Railways Commissioners, in the judgment of Rich, Starke and Dixon JJ. The learned judges there said of s. 15a, "We think it cannot mean that when the Court has reached the conclusion, as we have done in this case, that a single and indivisible enactment of the Legislature is invalid, the Court is to turn aside from its judicial duties and, assuming the role of legislator, proceed to manufacture out of the material intended to compose the old enactment an entirely new enactment with a fresh policy and operation."

24. The question is whether these Australian decisions are relevant to s. 10, and also of persuasive value. Both sections are in the terms of a command. Because of the enactment of s. 10 in the Constitution and therefore as part of the Supreme Law, in my opinion it is unnecessary to examine the use made by Sir Owen Dixon of the term "presumption", and whether, apart from that provision, any rule that a statute should operate as a whole would have been otherwise applicable in Papua New Guinea as part of the underlying law. The words of s. 10 requiring all written law to be "read and construed as provided" point strongly to the section being read as a rule of construction. Whilst that is consistent also with the heading of the section, it is to be noted that a section heading does not form part of the constitutional law, Constitution Sch. 1.3. (2). The restriction that in no case can the Court be required to legislate cannot be excluded under s. 10, for this Court has no function in relation to the legislative power which is vested in the National Parliament. Constitution, ss. 99, 100.

25. The only possible distinction between the Australian section and Constitution s. 10, as it seems to me, is the enactment of the latter as part of the Constitution rather than, as in the case of s. 15a, as a direction by Parliament in relation to its own laws. But on the whole I do not consider that this distinction requires that s. 10 be given effect otherwise than as a rule of construction. The significance of the enactment of s. 10 as part of the Constitution is, in my opinion, to be seen in relation to a purported enactment by Parliament disclosing an intention inconsistent with the application of that provision to any particular law. If, as in Australia, the severability clause is to be found in an Act of Parliament, then the later Act would prevail and the clause would be excluded. Wynes, Legislative, Executive and Judicial Powers, (supra) at p. 55. But in Papua New Guinea it is the severability clause found in s. 10 which prevails because of its enactment as part of the Supreme Law.

26. Whether s. 10 requires a different operation than is indicated by the Australian decisions, which I find of persuasive value, is a question which may be left for consideration in the future application of the section to the various types of enactments which may come up for decision. The citizen judges of this country may in the course of time prefer a different approach. In the meantime the considerations established by the High Court over many years in different types of cases, in my opinion, do provide valuable assistance in the interpretation of s. 10. (A full analysis of rules of construction will be found in Mairi v. Tololo: Constitutional Interpretation and the Declaration of the Underlying Law, Mr. C.J. Lynch.’ My view is that s. 10 is a rule of construction in the sense that it provides a guide for the ascertainment of the intention of Parliament in the case of partial invalidity of a law; but for the particular legislative intention always to prevail in accordance with the spirit of the Constitution. This means that if from the terms of an Act it appears that Parliament intended that only the Act as a whole should come into operation, then the whole would fail if there was partial invalidity.

27. Indeed it seems to be largely sufficient for the purposes of this case to bear in mind but two considerations. The first is that if the power to hear simple offences ex parte under s. 131 is part of "an inseparable context", to use Sir Owen Dixon’s expression, then upon the plain words of s. 10 no portion of s. 131 remains to be saved as being within the authority to make that law; and the second is the restriction on embarking upon judicial legislation.

28. In proceeding to apply s. 10 to the District Courts Act, s. 131, the question first arises as to which type of legislation we are dealing with. At first it did seem to me that the definition of "simple offence" could be construed as a statement of the various types of summary offences distinguished by the kind of punishment prescribed. But on reflection I consider that the words used in the definition were intended to define "simple offence" as a general term or expression meaning any offence punishable on summary conviction irrespective of the kind of punishment prescribed. Accordingly a distributive construction must be found if s. 131 is to remain capable of reduced operation.

29. Of course to apply these principles to any adopted law is a highly artificial process for there is nothing to suggest that any adopted law was given any particular consideration by Parliament in relation to its constitutional validity. I should add that this consideration should not, in my opinion, lead the Court to apply, for the special purposes of the adopted laws, any different construction of s. 10, although the process of severability may be made easier.

30. I have been able to reach several conclusions upon s. 131 which in my opinion do save its operation in a reduced form. The first is that rejection of the invalid part, that is the operation of the section in relation to offences punishable by imprisonment, could in no way be said to mean or require a different operation of the section, and therefore contrary to Parliament’s intention, so far as the ex parte hearing of simple offences punishable otherwise than by imprisonment is concerned. Such hearings would continue to be held in precisely the same manner as if the entire section was valid.

31. Secondly, there is nothing to suggest that s. 131 was intended to be incapable of any operation, unless it is to be effective to apply to the entire range of simple offences. Indeed the enumeration of the various types of summary offence according to the punishment provided indicates that the procedure of ex parte hearings should be extended to each such offence.

32. The final objection to severability is that to limit the operation of the section to any simple offence the maximum penalty for which does not include imprisonment means the addition of a clause, and amounts to judicial legislation, which is of course beyond the function of this Court.

33. But this ground cannot be taken literally or to its fullest extent, because s. 10 only comes into operation after some part of the original Act has been held invalid, so that the section contemplates that the Act as saved in operation must be in different terms. See Lane, The Australian Federal System, supra, at p. 904. Indeed the distributive construction of a general term or expression must necessarily involve the introduction of a qualification. In the absence of any example being available at present from Papua New Guinea, a useful illustration of this point is found in Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General for the Commonwealth, a decision also referred to in Lane, The Australian Federal System, supra, at p. 902, note 12, and which I find of assistance in the interpretation of s. 10.

34. It is convenient to set out the succinct summary to be found in the judgment of Walsh J. in Strickland v. Rocla Concrete Pipes Ltd. at pp. 517-518. His Honour said that in the case, "which was decided before the enactment of s. 15a, there was a provision in somewhat similar terms, in the Navigation Act 1912-1920 (Cth), with which the case was concerned. The provisions which were challenged related to the manning of ships and to the standards of accommodation in ships and prohibited any ship from engaging without a licence in ‘the coasting trade’ (which was defined) and imposed penalties on the master and the owner of such ship for breaches of those provisions. The Court held that the provisions were, to the extent to which they purported to describe rules of conduct to be observed in respect of ships engaged solely in the domestic trade of a State, beyond power. But because of the ‘reading-down’ provision, the Court held that the enactment was not invalid for all purposes. It could operate validly in relation to ships engaged in inter-State or foreign trade. In so far as they applied to those ships (and to their owners and masters), the provisions were treated as valid enactments under ... the Constitution."

35. That reasoning assists me to reach the conclusion that to read down the definition of simple offence in its application to s. 131 so as to confine its operation to summary offences punishable otherwise than by imprisonment does not in this case amount to judicial legislation. Indeed it is merely the process of construction which this Court is required to undertake under s. 10.

36. The Public Prosecutor argued that the inclusion of the description of simple offence in a definition clause precluded such a construction. However, as the operation of the definition is subject to any contrary intention, the Act itself recognizes that the term "simple offence" is capable of a different meaning according to the terms of any particular section.

37. I would therefore answer the question asked as follows:
Yes, but only in so far as it relates to an offence punishable on summary conviction before a Court the maximum penalty for which does not include imprisonment (except in default of payment of a fine).

38. It is possible that the answer which I have reached, saving although it is of s. 131, may not meet the real difficulty noted by the learned magistrate in disposing of summonses where the defendant does not appear. For apparently the category of offences of a regulatory nature, as they are termed by the magistrate, in which the maximum penalty includes imprisonment, is a wide one. He referred to prosecutions under such legislation as income tax, pure foods, licensing of restaurants, sanitation, price control, statistics and misuse of water. Further legislative provision enabling ex parte hearings by consent of the defendant, in accordance with the Constitution, s. 37(5), and appropriate regulations for the recording of such consent, would seem to be desirable. The only alternative, having regard to the Constitution, if a defendant does not appear, appears to be wide and drastic use of the procedure of issuing a warrant of apprehension.

39. Having written this far I have had the opportunity of reading in draft the judgment of the Deputy Chief Justice. I have found his Honour’s reasoning fresh and interesting, and certainly so in contrast to the dry and perhaps too lengthy summary I have made of the interpretation of the Australian section. 

But the only ground upon which the persuasive authority of the Australian decisions could, in my opinion, be rejected, is that they may be considered too difficult and technical and thus unsuitable for Papua New Guinea. From what I know of the ability of the lawyers of this country, first generation as they are, there would be no justification for me to so hold. The issue can be left for this Court finally to decide in due course of time when the Bench consists of citizen judges.

40. The Deputy Chief Justice seems to have reached the same answer as I have excepting that in his opinion the section should be read and construed in such a manner as to permit an ex parte hearing in the case of offences punishable by imprisonment if the defendant consents to the charge being heard in his absence. To enable a proper answer to be given I should refer to his Honour’s addition of an enabling jurisdiction in the case of consent. I regret that I am unable to agree with that construction for a number of reasons. First, on the plain meaning of s. 10 its only operation is to preserve that portion of the law which remains valid; no power is given to the Court to propound any additional provision, except as is necessarily involved and therefore impliedly permissible under the section by way of words of qualification to preserve that portion of the existing law which is not in excess of authority. This extension of jurisdiction may be passed off as judicial legislation, but in Papua New Guinea, as I have said, the legislative power is vested in Parliament — Constitution, s. 100(1).

41. Secondly, can this Court be sure that the proposed extension of jurisdiction under District Courts Act, s. 131, is, without further provision, for the "peace, order or good government of Papua New Guinea or the welfare of the People"? There may be little risk of abuses creeping in under the present limited jurisdiction of the District Courts Act, but what if the Court’s summary jurisdiction is increased to enable it to hear and determine indictable offences with power to impose terms of imprisonment up to 2 years, or 5 to 7 years as is the case in other developing countries? The line has to be drawn at some point, and that is the province of the National Parliament and not a judge. Safe-guards are required and the procedure should not be introduced until a statute is passed prescribing the manner of recording and the proof of consent.

42. Finally, I do not understand the Deputy Chief Justice to hold that the fundamental right secured by the Constitution, s. 37(5), in effect that, except with his own consent a trial of a person charged with an offence shall not take place in his absence unless because of his misconduct at the trial, has a self executing operation under s. 11, so as to support the proposed construction of s. 131. It is sufficient to say that if that was the effect of the Constitution, s. 37(5), it would have the over-riding and wholly undesirable effect of enabling the trial of an indictable offence under the Criminal Code in the absence of a defendant who consents.

43. A second question was asked as to the mode of referring to the District Courts Act 1963, but, in my opinion, the question falls within the category of questions which ought not to be referred to the Supreme Court, and requires no answer upon these proceedings.

44. PRENTICE DCJ: This reference to the Supreme Court comes from the National Capital District Court in Port Moresby, under s. 18 of the Constitution.

45. It poses two questions:

1.	Is s. 131 of the District Courts Act a "provision" of the type referred to in the proviso to sub-section 5 of s. 37 of the Constitution?

2.	Should the said District Courts Act (being an Act of the Parliament) be referred to as the "District Courts Act 1975"?

THE SECOND QUESTION

46. It would be more convenient to deal with the second question first. However, before doing so, it should be stated that both counsel in oral submissions to the Court, suggested that the question is trivial (s. 18(2) of the Constitution), and should not have been referred by the learned magistrate; an opinion with which I agree.

47. An additional and conclusive reason why it should not have been asked I consider, lies in Sch. 2.7. (3) of the Constitution which enacts under the heading "Adaption of Adopted Law":

"A question as to a change to be made for the purposes of subsection (1)" (adaptation of names, titles, etc. to circumstances of the country and Constitutional Laws), "is not (emphasis mine) a question relating to the interpretation or application of any provision of a Constitutional Law within the meaning of s. 18 ..."

48. Both counsel in the event, agreed as to how this question should be answered, and as I am content to accept their submission, it may save time to proceed to answer the question.

49. Immediately prior to 16th September, 1975 the District Courts Act 1963 (as amended) was in operation as a pre-Independence Law. Section 3 Laws Repeal Act 1975 of the House of Assembly, repealed this law as at 15th September, 1975. It was adopted as an Act of the National Parliament as from 16th September, 1975 by Sch. 2.6.(2) of the Constitution.

50. Section 61 of the Interpretation (Interim Provisions) Act 1975 as amended, provides, inter alia, that:

"(1)	A law is cited in accordance with this subsection if it is cited:

(a)	by its short title (if any); or

(b)	by reference to the secular year in which it is made and its number;

(2)	(After providing in (g) and (h) for adoption of former Australian and U.K. legislation) ...

(ha)	any other adopted Act or adopted subordinate enactment applying to the whole of the country may be cited in accordance with subsection (1);

..."

51. Section 62 of the same Act renders the addition of the words "as amended" unnecessary to constitute a proper reference to legislation as amended.

52. It may be thought illogical to refer to an Act of the National Parliament by a secular year prior to the foundation under an autochthonous Constitution of that Parliament. However, it will obviously be convenient to continue to refer to adopted pre-Independence Laws by secular years of enactment prior to Independence, not only to indicate that they were pre-Independence Laws, but perhaps to distinguish similarly named Acts from one another, and to keep them in their historical setting when questions of construction or of application of judicial decisions on them or similar laws of other countries, may be under consideration.

53. I do not think the circumstances of the country and the constitutional laws render it necessary to adapt the name of the District Courts Act or of any pre-Independence Act so that it reads as being "of 1975". I would answer the question "no" and I proceed to refer to the Act in question as the "District Courts Act 1963".

THE FIRST QUESTION

54. This question, as has been pointed out by counsel, is somewhat awkwardly framed. It is thought the learned magistrate was intending to make reference to "a law" rather than to "a provision". The question is really designed to ask whether s. 131 District Courts Act 1963 must be struck down as invalid in that it infringes s. 37(5) of the Constitution.

55. Section 37(5) which is found in that sub-division of the Constitution headed "Fundamental Rights" under the subject "Protection of the Law"; provides in regard to trials for offences (with my own emphasis added) as follows:

"Except with his own consent, the trial shall not take place in (the accused’s) absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the Court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment (except in default of payment of a fine) to be heard summarily in his absence if it be established that he has been duly served with a summons in respect of the alleged offence."

56. The Constitution thus prohibits trials for offences possibly involving imprisonment (other than for default in payment of fine — and I shall not mention this qualification again), in the absence of an accused, unless he consents thereto, or by his conduct renders his continuing presence impracticable. Nevertheless, it authorizes trials in the absence of the accused even without his consent, where the penalty does not include imprisonment, and service of a summons is proved.

57. Section 131 of the District Courts Act 1963 reads as follows:

"If, at the time and place appointed by a summons for hearing and determining an information of a simple offence, the defendant does not appear when called, and proof is made to the Court upon oath, or by deposition made as prescribed by s. 55 of this Act of due service of the summons upon the defendant a reasonable time before the time appointed for his appearance, the court may either:

(a)	proceed ex parte to hear and determine the case in the absence of the defendant; or

(b)	upon oath being made before it, substantiating the matter of the information to its satisfaction, issue its warrant for the arrest of the defendant to bring him before a court to answer to the information and to be further dealt with according to law."

58. The Act defines a "simple offence" as meaning "an offence punishable on summary conviction before a Court by fine, imprisonment or otherwise".

59. It has been submitted that the section as enacted, purported to authorize trials in the absence of the accused for any "simple offence" (including those punishable by imprisonment) and is therefore inconsistent with s. 37(5) of the Constitution, and should be struck down.

60. The District Courts Act 1963, having been adopted by Sch. 2.6. of the Constitution, is an Act of the National Parliament. It can take effect as law only to the extent that it is within the legislative competence of Parliament and "subject to any Constitutional Law" (Sch. 2.6.(2)); unless one is to assume from the concluding words of the subsection "... and apply to the extent to which they applied or purported to apply immediately before the repeal ...", and from the fact that it is enacted by the same body as and at the same time as, the Constitution itself, that it is to be read as untrammelled by the safeguards of the Constitution until it be amended by an Act of the National Parliament. The latter possibility has not been put in argument before the Court; and I do not think it could prevail.

61. The problem before this Court involves the application of the Constitution under s. 18(1). On the face of it, the problem is similar to those posed in other countries which work under written Constitutions and to such as have to be decided for example, under s. 15a of the Acts Interpretation Act of Australia 1901-1973 — which is in terms akin to those of s. 10 of the Constitution of Papua New Guinea. I have had regard to the decisions in the following cases: D’Emden v. Pedder; Pidoto and Others v. The State of Victoria; The Federated Amalgamated Government Railway and Tramway Service Association v. The New South Wales Railway Traffic Employees Association; Strickland v. Rocla Concrete Pipes Ltd; and Hinds and Others v. The Queen.

62. At this stage, I should say also, that I have had the advantage of reading the judgment herein of the Chief Justice. I would agree that his solution of the problem is with respect, an admirably suitable one, if one were to approach the question as it would be approached now by courts of countries with long established Constitutions. With great respect, I prefer myself to approach the problem in a different, more flexible manner, which I think more appropriate to our Constitution and situation, for reasons that I will express herein.

63. The Constitution of Papua New Guinea is something very special in the field of constitutional writing, and such as is said by its writers to be determinedly suitable to the different circumstances, social, educational, ethnographic and linguistic of this country and its peoples. In an oft-repeated phrase, it is called "home-grown" or autochthonous. I do not know if I understand the latter word correctly, but it appears to me to mean no more than "aboriginal, native, indigenous, springing from the soil". Section 24 thereof provides that:

"(1)	The official records of debates and of votes and proceedings:

(a)	in the pre-Independence House of Assembly on the report of the Constitutional Planning Committee; and

(b)	In the Constituent Assembly on the draft of this Constitution, together with that report and any other documents or papers tabled for the purposes of or in connexion with those debates, may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provisions of a Constitutional Law arises ..."

64. In Chapter 8/9 paragraph 88 of the C.P.C. Report of 13th August, 1974, I find the sentiment:

"In making our recommendations on the judiciary we have stressed the need for the laws made by the National Parliament to be applied in a manner that takes adequate account of conditions in our country. We cannot afford to have our courts take a narrowly legalistic approach if the law is to be justly applied."

65. In Chapter 8/15 paragraph 144 of the same, I find it stated that among the principal disadvantages of giving the main responsibility (of Constitutional questions) to the judiciary is that "The Courts tend to be formalistic and legalistic. While it is true that the Constitution is law it is a special kind of law. All too often the courts approach the Constitution as if it were like ordinary law. They adopt a literal approach and sacrifice the spirit for the letter of the Constitution. By failing to recognise the dynamic character of the Constitution the Courts have often introduced unnecessary rigidities."

66. In Chapter 8(1) paragraph 1 of the same, I find it said that "With the establishment of modern institutions in our country the courts of justice, as developed elsewhere are gradually becoming acceptable institutions in our society." And in paragraph 2 "Let us take the example of a situation in which the existing law is either not clear, or alternatively, there appears to be no law which covers the case. In these circumstances we believe the judge or magistrate who is hearing the case should use judicial ingenuity to do justice between the parties, taking full account of the National Goals and Principles of policy as well as the rights of the individual."

67. I have been unable to find any intervention in debate or any proceeding which would indicate disapproval of the above sentiments, or a determination that they should not stand as a guide to the courts.

68. Section 25(3) of the Constitution itself, directs that:

"(3)	Where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way."

69. Not only in the abovementioned provisions and statements but elsewhere, and in particular in the provisions of the Schedule to the Constitution as to adoption of a Common Law, recognition of custom, judicial development of an underlying law, conflict of precedents and prospective overruling, the courts have been vested with very wide powers (indeed to me frightening responsibilities) to select, discard, interpret, modify and apply law. There is even power given to the Supreme Court to dispense with the application of a valid law in a particular case by declaring an act done thereunder unlawful if harsh or oppressive in the circumstances (s. 41 of the Constitution). There is thus a collation of tremendous and humbling powers invested in us the Court’s first judges (expatriates as we are).

70. Again, the Constitution states that its Preamble may be used as an aid to interpretation in cases of doubt (Sch. 1.3.(1)). Under the heading of "Basic Rights", the Preamble acknowledges as such "life, liberty, security of the person and protection of the law".

71. Section 32 of the Constitution declares that:

"(1)	Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles ..."

72. The Preamble further provides under its National Goal 2(4) for:

"equalization of services in all parts of the country, and for every citizen to have equal access to legal processes and all services, governmental and otherwise, that are required for the fulfilment of his or her real needs and aspirations".

73. Now it is clear that the Legislature (in this case the Constituent Assembly), intended that:

1.	Trials for offences involving the penalty of imprisonment may take place in the absence of an accused if he consents thereto;

2.	District Courts should have power to conduct trials in the absence of an accused if notice be proved to have been given to him;

3.	District Courts should have power to try a large range of offences for which the penalty is fine or imprisonment.

4. Some of the charges hitherto brought in courts of summary jurisdiction, alleged offences under income tax, pure food, restaurant licensing, sanitation, price control, misuse of water laws, and so on — laws of a regulatory nature. There is a large number also of the nature of traffic offences, such as driving without a licence or while under the influence of liquor, which carry the possible penalty of imprisonment. Many of these offences of this nature involve menace to the freedom and activities of other citizens who are entitled to the protection of the law. Clearly in a modern state imprisonment is a necessary sanction for the protection of other members of the community against, for example, repeated driving offences of a dangerous nature, or offences perhaps by executives or employees of powerful corporations, to whom fines, which could be expected to be paid by their corporations would not be a deterrent. But most of such offences would be well met by the imposition of fines; and in the hearing of charges relating thereto the accused would frequently not wish to be present. I ask myself is it consistent with the least restriction on the activities of accused individuals that a law should be so construed as to require their attendance on perhaps repeated adjournments of a court seized with the hearing of an offence perhaps comparatively trivial in the actual circumstances (e.g. for driving without a licence), merely because it (and query desirably) carries a possible penalty of imprisonment. The reverse side of the coin may be seen if one asks should a prosecutor or informant living at a remote part of the country have to suffer the disadvantage of expensively and inconveniently attending at perhaps repeated adjournments of a court perhaps located far away to ensure the attendance of the accused at the hearing and to obtain the prosecutor’s rights to pursue legal process in which a possible imprisonment of the accused might (but would be unlikely to) result — if this result could be effected by a permissible interpretation otherwise of the law.

74. It seems to me manifestly clear that it is desirable not only in order to achieve the National Goals and Directives, but also to secure the basic rights of individuals, that certain classes of charges involving possible imprisonment, should be capable of being heard summarily in the absence of the defendant if he so consents — thus avoiding his arrest and compulsory attendances in court — even though potentially imprisonment could result.

Can the District Courts Act be interpreted so as to achieve that result if such be the clear intent of the law-makers?

75. Many learned treatises have been written on the subject of interpretation of Constitutions and laws made thereunder. Regrettably, such interpretation and the discussions thereon have developed a style of language (issuing perhaps from the tortuous expression of modern scholarship) which is hard to understand. I have no doubt that in the decades to come Papua New Guinean judges and lawyers will be constrained by the flow of decisions and precedents in their own courts to develop lines of interpretation which may perhaps narrow or broaden with the times. For myself, I would prefer for the present, that the developing profession and the courts not be tied to the necessity of trying to understand the views of other courts in other countries in other times, as to "reading down", "severability clauses", "distributive construction", "divisible construction", "class expression", "general term", and so on, expressed in voluminous and difficult language and concepts.

76. Sch. 1.5. of the Constitution provides that:

"...

(2)	All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning."

"Constitutional Law" includes the Constitution. Section 109 of the Constitution provides that:

"...

(4)	Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, ..."

77. The District Courts Act is a law of the Parliament (Sch. 2.6.(2)) and s. 10 of the Constitution provides that:

"10.	Construction of written laws.

All written laws (other than this Constitution) shall be read and construed subject to:

(a)	in any case — this Constitution ...

and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority."

78. The word "construed" has a well received meaning of "translated". Webster’s Dictionary gives the following:

"to apply the rules of syntax to (a sentence or clause) so as to exhibit the structure argument or connection of, or to discover the sense; to explain the construction of; to interpret; also to translate, also less commonly to construct."

79. The Oxford English Dictionary gives the following:

"loosely, to translate a passage orally, to give some sense or meaning of; to take in a specified way; to put a construction upon."

80. I appreciate that distinguished jurists of other countries shudder at the suggestion that recourse to a measure such as s. 15a of the Acts Interpretation Act of Australia 1901-1973 would allow of "judicial legislating" (see Strickland v. Rocla Concrete Pipes Ltd. Barwick C.J. at p. 491, Menzies J. at p. 497; Pidoto and Others v. The State of Victoria). But with respect, I suggest that much of the interpretation by way of reading down has involved "judicial legislating" in fact, even if the judges refuse or are unable constitutionally to recognize their offspring as such. And with respect, I consider that any solution which saved the operation of s. 131 of the District Courts Act in regard to offences not carrying penalty of imprisonment, would involve in fact the deletion or insertion of words either in the definition of "simple offence" or in s. 131 itself — and may frankly be recognized as "judicial legislating" of a permissible kind.

81. Though it would not perhaps accord with the manner in which Acts of Parliament have been interpreted elsewhere, I think this court should be prepared and is empowered to, not only eliminate a phrase from an Act if by so doing constitutional validity could be secured in accordance with what it construed Parliament’s intention; but also to add a phrase or change a phrase with the intent of construing (translating) an Act so that it is valid and still expressing the clear Parliamentary intent — "legislating" though Constitutional experts of other lands might consider this process to be.

82. When considering whether in terms of decisions elsewhere, pronouncements would be described as "judicial legislation"; I find difficulty in distinguishing between a decision on the one hand that this section which on the face of it infringes the Constitution, shall be held valid and that its operation is to be read as restricted to offences other than those carrying penalty of imprisonment; and a decision on the other, that the section in its operation on offences carrying penalty of imprisonment, shall be read as restricted to those cases where the accused consents to the procedure.

83. It may be thought unwise by some, not to follow the stream issuing from the founts of judicial and academic interpretative wisdom in other countries. However, I do not think that Melanesians would necessarily find its waters pellucid and potable.

84. Attempting to avoid a "legalistic" and trying to seize a dynamic approach, aware as I think I am of the conditions of the country, trying to make use of the aids to which I am directed, exercising such judicial ingenuity as I think may safely be indulged, taking full account of the National Goals and Directives and the rights of individuals — and I would add the duties of the State, (and hoping that I do not have always to enunciate such a preface to any subsequent decisions of mine) I would answer the question posed as follows:

85. Section 131 District Courts Act is not invalid. The section is to be read and construed as follows:

"If at the time and place appointed by a summons for hearing and determining an information of a simple offence, the defendant does not appear when called, and proof is made to the court upon oath, or by deposition made as prescribed by s. 55 of this Act of due service of the summons upon the defendant a reasonable time before the time appointed for his appearance, and in the case of an offence punishable by imprisonment (otherwise than for default in payment of a fine) if the accused consents to the charge being heard in his absence, the court may either:

(a)	proceed ex parte to hear and determine the case in the absence of the defendant; or

(b)	upon oath being made before it, substantiating the matter of the information to its satisfaction, issue its warrant for the arrest of the defendant to bring him before a court to answer to the information and to be further dealt with according to law."

(The above judgment was written and distributed to the other members of the Court on 30th October, 1976. Since that date the Chief Justice has altered and added to his proposed judgment. I do not think it fitting that I should now alter my judgment, or seek to comment further on the Chief Justice’s additional remarks, more particularly as some of the reasoning in my judgment has apparently been adopted in the meantime into a judgment of another member of the Court in another case.)

86. KEARNEY J: The issues and arguments are fully discussed in the judgments of both the Chief Justice and the Deputy Chief Justice which I have had the benefit of reading; I will therefore be brief.

87. The first task is to determine the meaning and effect of s. 131. Applying the various guides and aids to interpretation mentioned by the Deputy Chief Justice, that which Parliament intended by this provision — the proper meaning of s. 131 — is as set out by the Chief Justice.

88. In so far as s. 131 purports to provide that in certain circumstances an offence the maximum penalty for which includes imprisonment (except in default of payment of a fine) may be heard summarily in the absence of the defendant, it goes beyond that for which a law may provide: Constitution, ss. 37(5) and 99 (2)(a).

89. In this situation, the next step is to apply Constitution s. 10 to s. 131.

90. In my opinion, Constitution s. 10 must be applied in the light of other provisions in the Constitution, in particular s. 99(3); it does not warrant an incursion by the Court upon the law-making power of Parliament, so as to create, by reading down, an Act which differs in its substance from that passed by Parliament. The Court’s function remains one of construction, the ascertaining of Parliamentary intention however conjectural, and not one of legislation.

91. For the reasons mentioned by the Chief Justice I see no problem in reading down s. 131 so as to bring it within Parliament’s law-making power; the substance of the enactment remains, its operation and effect unchanged. But if that cannot be done, the next step, the application of Constitution s. 11 which is a severability provision, leads, in my opinion, to the same result. While it may be necessary later to develop principles to govern the application of Constitution ss. 10 and 11, as has happened elsewhere, I do not think that is required at the moment; as the Deputy Chief Justice has pointed out, the Courts here are vested with very wide powers to interpret law.

92. I regret that I am unable to construe s. 131 in the way suggested by the Deputy Chief Justice, though I agree with respect with his approach to statutory interpretation which is of seminal importance and which I adopted in The State v. The Independent Tribunal; Ex parte Moses Sasakila. It is I think for Parliament to direct itself to the issues raised by the Deputy Chief Justice and make the amendments it desires, if any, to s. 131.

93. It is not necessary to answer the second question referred, although the proper citation is clearly enough, the District Courts Act 1963.

94. I would answer the first question asked, in the manner proposed by the Chief Justice.

Question referred to the Supreme Court answered as follows:

Q.	Is section 131 of the District Courts Act a "provision" of the type referred to in the proviso to sub-section (5) of section 37 of the Constitution ...

A.	Yes, but only insofar as it relates to an offence punishable on summary conviction before a Court the maximum penalty for which does not include imprisonment (except in default of payment of a fine).

______________________________________________

N. H. Pratt, Acting Public Solicitor: Solicitor for the Affirmative Case L. W. Roberts-Smith, Public Prosecutor: Solicitor for the Negative Case