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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SC REF NO 5 OF 2024
REFERENCE BY THE MOUNT GILUWE
RURAL LOCAL-LEVEL GOVERNMENT
RE SECTION 34(1) OF THE ORGANIC LAW ON PROVINCIAL GOVERNMENTS AND LOCAL-LEVEL GOVERNMENTS & RELATED CONSTITUTIONAL LAWS
WAIGANI : CANNINGS J, DAVID J,
HARTSHORN J, YAGI J, KARIKO J
22, 30 APRIL 2025
CONSTITUTIONAL LAW – ELECTIONS – Local-level government elections – Organic Law on Provincial Governments and Local-level Governments, s 34(1): the term of a Local-level Government shall be generally the same as and run concurrently with the term of the National Parliament level Government elections – consequences of not adhering to s 34(1) requirement – whether a “late” general election for Local-level Governments means members hold office unconstitutionally – whether a “late” election is unconstitutional.
The referrer, a Local-level Government, filed a s 19 Constitution reference regarding s 34(1) of the Organic Law on Provincial Governments and Local-level Governments and related Constitutional Laws. The reference contained 19 questions, the first seven of which centred on s 34(1), which requires that the term of a Local-level Government shall be generally the same as and run concurrently with the term of the National Parliament. Three parties were granted leave to intervene: the Attorney-General (first intervener), the Electoral Commissioner (second intervener) and the Morobe Provincial Executive (third intervener). The referrer asked the Court whether the requirement set out in s 34(1) is mandatory and what are the consequences of breaching that requirement. Other questions related to the validity of the Organic Law on Provincial Governments and Local-level Governments (questions 8-11), the validity of the District Development Authority Act 2014 (questions 12 and 13) and whether some of the functions conferred upon members of the Parliament by that Organic Law and that Act offend against the separation of powers (questions 14-19). The referrer emphasised the pressing need for the Court to provide urgent resolution of the first seven questions, which have a bearing on the constitutionality of the current general election for Local-level Governments. The referrer, supported by the third intervener, submitted that the current general election is being conducted late, in contravention of s 34(1), and is unconstitutional and that a declaration to that effect should be made by the Court and that other remedies ought to be fashioned to deal appropriately with the constitutional irregularities that have occurred. The first and second interveners proposed answers opposite to those of the referrer and the third intervener.
Held:
(1) Though s 34(1) of the Organic Law on Provincial Governments and Local-level Governments uses the word “shall” to describe the requirement as to the timing of a general election for Local-level Governments, the true nature of the requirement is governed by the opening words of the provision “Wherever practicable” and the absence of any indication as to the consequences of non-compliance with the requirement.
(2) Section 34(1) is properly regarded as setting out a directory requirement, as distinct from a mandatory requirement. Substantial compliance with the requirement is sufficient.
(3) There was insufficient evidence before the Court to form the basis of any opinion that there had not been substantial compliance with the requirement or that current members of Local-level Governments are holding office unconstitutionally or that the current general election for Local-level Governments is unconstitutional.
(4) Questions 1 to 7 were answered generally in the way proposed by the Attorney-General and the Electoral Commissioner.
(5) There was insufficient material to form any binding opinion on the remaining questions 8 to 19. Many of the questions were vague and did not pose questions requiring interpretation or application of any Constitutional Law. The Court declined to give an opinion on those questions.
Cases cited
Ekanda v Rimua (2015) N6174
Howard v Boddington [1877] UKLawRpPro 14; (1877) 2 PD 203
Kond v National Development Bank Ltd (2015) SC1432
Liverpool Borough Bank v Turner [1860] EngR 1276; (1861) 30 LJ Ch 379
Madang Timbers Ltd v Kambori (2009) SC1000
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Moresby North-East Election Petition, Lowa v Damena [1977] PNGLR 429
Rural Development Bank Ltd v Kond (2010) N5876
Safe Lavao v The State re Kerema Town & Airstrip Land [1978] PNGLR 15
SC Ref No 5 of 2016, Reference by National Court re Alleged Improper Borrowing of AUD1.239 Billion Loan [2017] 1 PNGLR 304
Counsel
D Gonol for the referrer, the Mount Giluwe Rural Local-level Government
S Maliaki & R Mobiha for the first intervener, the Attorney-General
S Wanis & M John for the second intervener, the Electoral Commissioner
R Pato & C Mark for the third intervener, the Morobe Provincial Executive
1. BY THE COURT: The Mount Giluwe Rural Local-level Government (the referrer) has filed a reference under s 19 of the Constitution, seeking the Supreme Court’s binding opinion on 19 questions of constitutional interpretation and application regarding s 34(1) of the Organic Law on Provincial Governments and Local-level Governments and related Constitutional Laws.
2. Three parties have been granted leave to join the proceedings as interveners:
the Attorney-General, first intervener;
the Electoral Commissioner, second intervener; and
the Morobe Provincial Executive, third intervener.
3. The first seven of the 19 questions centre on s 34(1), which requires that the term of a Local-level Government shall be generally the same as and run concurrently with the term of the National Parliament.
4. The referrer asks whether the requirement set out in s 34(1) is mandatory and what are the consequences of breaching that requirement.
5. Other questions relate to the validity of the Organic Law on Provincial Governments and Local-level Governments (questions 8-11), the validity of the District Development Authority Act 2014 (questions 12-14) and whether some of the functions conferred upon members of the Parliament by that Organic Law and that Act offend against the separation of powers (questions 15-19).
6. The referrer emphasised the pressing need for the Court to provide resolution of the first seven questions, which have a bearing on the constitutionality of the current general election for Local-level Governments.
7. The referrer, supported by the third intervener, submits that the current general election, the writs for which were issued on 24 April 2025, is being conducted late, in contravention of s 34(1). This, it is submitted, is unconstitutional and a declaration to that effect should be made by the Court, and other remedies ought to be fashioned to deal appropriately with the constitutional irregularities that have occurred.
8. The first and second interveners propose answers opposite to those of the referrer and the third intervener.
9. We now address the 19 questions.
A – SECTION 34(1) OF THE ORGANIC LAW ON PROVINCIAL AND LOCAL-LEVEL GOVERNMENTS & RELATED LAWS: QUESTIONS 1 TO 3
QUESTION 1: Is the term of a Local-level Government the same and run concurrently with the term of the Parliament separated by three months for return of writs as stated in s 34(1) of the Organic Law on Provincial Governments and Local Level Governments?
10. The referrer and the third intervener argue that the question should be answered yes. The first and second interveners argue that it should be answered no.
11. Section 34(1) states:
Wherever practicable, the term of a Local-level Government shall be the same as and run concurrently with the term of the Parliament, but in order to ensure the effective conduct of respective elections, this may be varied, provided that the date for the return of writs in a general election to Local-level Governments is fixed for a date not later than three months after the date fixed for the return of the writs of the general election to the Parliament.
12. The referrer and the third intervener highlight the use of the word “shall”, which, they argue, shows that the requirement that the term of a Local-level Government shall be the same as and run concurrently with the term of the Parliament is mandatory. They argue that, while s 34(1) begins with the words “Wherever practicable”, they do not qualify the fundamental requirement that the term of a Local-level Government shall be the same as and run concurrently with the term of the Parliament. Nor do those words qualify the apparent exception to the concurrency requirement, which is that any variation in adherence to it is subject to the qualification that “the date for the return of writs in a general election to Local-level Governments is fixed for a date not later than three months after the date fixed for the return of the writs of the general election to the Parliament”.
13. The referrer and the third intervener therefore submit that a general election for Local-level Governments must be held within three months after the date fixed for the return of the writs for a general election for the National Parliament, that this is a mandatory requirement and that there are no exceptions provided for it.
14. The first and second interveners argue that the introductory words “Wherever practicable” govern the whole of s 34(1) and neutralise the otherwise mandatory effect of the word “shall”.
15. We consider, with respect, that neither of the competing approaches to interpretation of s 34(1) that have been put to the Court fully addresses the prevailing law as to the use of the word “shall” in a statutory provision.
16. It is rather too simplistic to fix on the word “shall” and to conclude that the requirement imposed by the provision is entirely mandatory and that there are no exceptions allowed and that breach of the requirement renders anything done in breach of it invalid.
17. It is equally simplistic to fix on the use of the words “Wherever practicable” and conclude that they govern the whole of the provision.
18. A more nuanced approach is required. We refer to decisions of the Supreme Court in four cases that address interpretation of statutory provisions, including constitutional provisions, which use “shall” in relation to a requirement that is imposed by a provision.
19. In Re Moresby North-East Election Petition, Lowa v Damena [1977] PNGLR 429, Madang Timbers Ltd v Kambori (2009) SC1000, Kond v National Development Bank Ltd (2015) SC1432 and SC Ref No 5 of 2016, Reference by National Court re Alleged Improper Borrowing of AUD1.239 Billion Loan [2017] 1 PNGLR 304, the Supreme Court indicated that use of “shall” in a statutory provision does not necessarily mean that the requirement described by the provision is mandatory in the sense that anything that falls short of strict compliance with the requirement is invalid.
20. In Lowa v Damena the Court (Prentice DCJ, Williams J, Pritchard J) unanimously held that s 126(7) of the Constitution, which provides that “An Organic Law shall make provision for and in respect of ... appeals to the National Court in electoral matters”, imposes a directory requirement and that notwithstanding the use of the word “shall”, the failure of the Parliament to make such an Organic Law did not deprive the National Court of jurisdiction to hear an election petition that was brought under a provisional Organic Law.
21. In Madang Timbers the Court (Cannings J, Kariko J, Ellis J) held that ss 71 and 72 of the Forestry Act 1991, which provided that a Provincial Forest Management Committee “shall” negotiate a project agreement and submit a final draft to the National Forest Board and that the Board “shall” consider the draft, imposed, having regard to their place in the Act and the nature and purpose of the Act, mandatory, not merely directory, requirements. The Board acted in excess of its authority in executing a project agreement that had not been submitted to it by the Madang Provincial Forest Management Committee.
22. In Kond the Court (Lenalia J, David J, Yagi J) held that s 27 of the Insolvency Act, which provides that a “creditor's petition shall be signed by the petitioner or a person authorized by Section 28 to verify the petition" imposed a directory, not mandatory requirement. The Court endorsed the decision of Hartshorn J in the National Court in Rural Development Bank Ltd v Kond (2010) N5876 to regard s 27 as imposing a directory requirement and to accept that signing of a petition on behalf of a corporate petitioner and verification of the signature by a senior officer of the petitioner was sufficient. (See also Ekanda v Rimua (2015) N6174 at [22]-[39].)
23. In SC Ref No 5 of 2016 the Court (Salika DCJ, Mogish J, Cannings J, Kassman J, Higgins J) held that s 17(1) of the Organic Law on the Ombudsman Commission, which states that “Before investigating any matter within its jurisdiction, the Commission shall inform the responsible person of its intention to make the investigation”, imposes a directory, as distinct from a mandatory, procedural requirement. Though the provision imposes an obligation, breach of it does not necessarily nullify all that is done after the breach. If there has been substantial compliance with the obligation that will be sufficient compliance. The failure of the Commission to give notice of an investigation to the Prime Minister did not deprive the Commission of jurisdiction to include the Prime Minister’s conduct in the scope of the investigation.
24. In Kond, the Supreme Court pointed out that:
In ordinary usage, the word "shall" be taken as imperative. However, it is generally accepted that it is impossible to lay down a universally applicable general rule that the word "shall" used in a statute is mandatory or directory.
25. Their Honours cited with approval the following passage from the judgment of Lord Campbell in Liverpool Borough Bank v Turner [1860] EngR 1276; (1861) 30 LJ Ch 379:
No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.
26. Similar sentiments were expressed in another old United Kingdom case by Lord Penzance in Howard v Boddington [1877] UKLawRpPro 14; (1877) 2 PD 203:
There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the court to be of that material importance to the subject matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow come to an end.
27. In Madang Timbers the Court cited the National Court decision of Pritchard J in Safe Lavao v The State re Kerema Town & Airstrip Land [1978] PNGLR 15, in which his Honour held that, because of the special significance of compulsory acquisition by the State of customary land in Papua New Guinea, the preconditions to the grant of an instrument of transfer must be regarded as mandatory, not merely directory, and strict compliance with the preconditions was necessary:
Pritchard J went on to agree with two propositions. The first was that there is no universal rule which governs the question of whether the word "shall" is mandatory or directory since each case involves the court trying to ascertain the real intention of the statute. The second proposition was that in each case it is necessary to look at the subject matter, consider the importance of what has been disregarded and the general object of the Act in order to decide the issue. In concluding that the word "shall" was mandatory in that case, reference was made to not only the words of the statute but also the legislative history.
28. The Court also considered the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 where it was suggested that the question to ask was whether it was the intention of the statute that an act done in breach of the provision should be invalid and, in order to discern that intention by considering not merely the language of the relevant provision but the scope and object of the whole statute.
29. Those cases show that when interpreting a statutory provision that describes a requirement about something to be done in terms of the word “shall”, it is necessary to consider not only the literal meaning of “shall” and its connotation that the thing to be done is mandatory, but more significantly the intention of the legislature in its use of that word in the provision in question.
30. To ascertain the legislative intention, it is desirable to consider:
31. The last of those considerations is in our view the most important. We must ask whether the intention of the Parliament was to ensure that the failure to comply with the requirement in s 34(1) of the Organic Law as to the timing of a general election for Local-level Governments would invalidate anything (including the holding of a such a general election) done that fell short of that requirement.
32. If that were the intention, it is reasonably expected that that consequence would have been expressly provided for. However, there is nothing in the Organic Law that explains what is to happen if the requirement is not complied with. There is nothing expressed in the Organic Law that would give rise to the inference that failure to comply would have the dire consequence that any general Local-level Government election that was actually conducted would be invalid or that the members of Local-level Governments elected at such an invalid election would hold office unconstitutionally. The Organic Law is silent as to the consequences of failure to comply.
33. When we take account of the other considerations and look at the subject matter of the Organic Law on Provincial Governments and Local-level Governments, the importance of the timing requirement in s 34(1) and the scope and object of the Organic Law, we find that the subject matter and scope and object of the Organic Law expressed in the Preamble to the Organic Law in the following terms:
We, the representatives of our People in the National Parliament, in responding to the nationwide call of our people to bring about substantive reforms to our Provincial Government system, have resolved—
(a) to make such changes as are necessary now contained in this Organic Law for the purposes of—
(i) maintaining our identity as a sovereign united nation; and
(ii) promoting equal opportunity and popular participation in government at all levels; and
(iii) providing especially the basic human needs for water, health, education, transportation, communication, accommodation and social order through economic self-reliance; and
(iv) promoting responsible citizenship through self-management, control and accountability for one's actions; and
(b) to establish Provincial Governments and Local-level Governments in order to achieve the goals referred to in Paragraph (a).
Being an Organic Law—
(a) to implement Part VIA (Provincial Governments and Local-level Governments) of the Constitution by making provision for and in respect of a system of Provincial Governments and Local-level Governments for the provinces pursuant to the Second National Goal (Equality and Participation) of the National Goals and Directive Principles of the Constitution; and
(b) to repeal and replace the Organic Law on Provincial Government.
34. In our view, the timing of general elections for Local-level Governments, viewed in the context of the reformed system of government provided for in the Organic Law, is a relatively minor requirement and the consequence of a breach of it is not fatal.
35. Though s 34(1) of the Organic Law on Provincial Governments and Local-level Governments uses the word “shall” to describe the requirement as to the timing of a general election for Local-level Governments, we consider that the true nature of the requirement is governed by the opening words of the provision “Wherever practicable”.
36. Section 34(1) is properly regarded as setting out a directory requirement, as distinct from a mandatory requirement. Substantial compliance with the requirement is sufficient.
Answer to question 1
37. Yes, there is a directory requirement for a general election for Local-level Governments to be held concurrently with a general election for the National Parliament. However, it is not a mandatory requirement and if it is not complied with, there are no necessary consequences.
QUESTION 2: If the answer to Question 1 above is to be affirmative, yes, can a failure by appropriate authorities to conduct concurrent elections for National and Local-level Governments be declared unconstitutional?
38. This is a rather general question, which is not based on any facts, other than those generally agreed to have provided the basis for the reference. The last general election for the National Parliament was in 2022. The writs for the general election for Local-level Governments were not issued until 2025. There has been a gap of more than two years after the date by which the Local-level Governments general election should have been held (in late 2022) before writs for the 2025 general election have been issued.
39. It is possible that the failure by relevant authorities to conduct concurrent elections or otherwise comply with s 34(1) of the Organic Law on Provincial Governments and Local-level Governments could be declared unconstitutional. However, such a declaration could only be granted, we suggest, if an application were made under s 18(1) of the Constitution seeking such relief.
Answer to question 2.
40. It is possible that a failure to conduct concurrent elections could be declared unconstitutional. However, an application seeking such relief would need to be made under s 18(1) of the Constitution.
QUESTION 3: If the answer to any of the questions 1 and 2 above are that there has been a constitutional breach (or there is constitutional
invalidity) what are the consequences in respect of the 2022 National Elections and the delayed Local-level Government elections
scheduled to be conducted in 2024 [2025]?
41. The referrer and the third intervener suggested that it was open to the Court in these proceedings to declare that the general election for Local-level Governments in 2025 is unconstitutional and that any members elected in 2025 would hold office unconstitutionally.
42. We reiterate that it is possible that in an appropriate case, using the procedure available under s 18(1) of the Constitution, the Court could grant such relief. Perhaps the referrer or the first intervener should have made a s 18(1) application in early 2023, when the apparent breach of s 34(1) of the Organic Law on Provincial Governments and Local-level Governments became clear. However, that was not done and the apparent breach of s 34(1) has continued for more than two years.
43. The best way to address and ameliorate the effect of the constitutional irregularity that has occurred is to conduct the general election for Local-level Governments as soon as possible.
44. Of course, there is the possibility of confusion soon after the next general election in 2027 as to the terms of the Local-level Governments the members of which are elected at the current general election.
45. On the one hand, there is an implied requirement that the term of a member of a Local-level Government is five years, which means that those elected in 2025 would hold office until 2030. On the other hand, it might be considered necessary to hold the election within three months after the date for the return of the writs for the 2027 general election for the National Parliament.
46. We will not attempt to resolve that possible issue now in these proceedings. We simply note that the parties will be able to approach the Court in other proceedings. We suggest that if the law is not changed in the interim, any of the parties in the present case could approach the Court under s 18(1) or 19 of the Constitution with a view to clarifying the law well before 2027.
Answer to question 3
47. There are no immediate consequences in terms of the validity of the 2025 general election for Local-level Governments.
QUESTION 4: If a Local-level Government election is not held concurrently or within an extended period of three months, does it have the same effect as if Parliament is dissolved and a general election is held under s 105(1)(b) or (c) of the Constitution?
48. We are unable to appreciate the import of this question. It refers to the dissolution of the Parliament under s 105(1)(b) or (c) of the Constitution.
49. Section 105 (general elections) states:
A general election to the Parliament shall be held—
(a) within the period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election; or
(b) if, during the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election—
(i) a vote of no confidence in the Prime Minister or the Ministry is passed in accordance with Section 145 (motions of no confidence); or
(ii) the Government is defeated on the vote on a question that the Prime Minister has declared to the Parliament to be a question of confidence; or
(c) if the Parliament, by an absolute majority vote, so decides.
50. We think the question might be better expressed as whether the requirement for timing of a general election for Local-level Governments in s 34(1) of the Organic Law on Provincial Governments and Local-level Governments, is the same if the National Parliament is dissolved under s 105(1)(b) or (c) of the Constitution. We consider that if that is what the question means, the answer is yes.
Answer to question 4
51. Yes, if the Parliament is dissolved under s 105(1)(b) or (c) of the Constitution, the same requirement as to the holding of a general election for Local-level Governments would apply as in the normal case of the holding of a general election to the Parliament under s 105(1)(a) of the Constitution.
QUESTION 5: If the answer to Question 4 is yes, can the 6000 plus members of the more than 325 Local-level Governments throughout Papua New Guinea continue in office until the day fixed for the return of writs for the next National General Election.
52. It was suggested by the referrer and the third intervener that an option available to the Court would be to declare that the current members of Local-level Governments who were elected in the last general election, in 2019, should continue in office until shortly after the next general election to the Parliament, which is due to be held in 2027. We do not consider that that would be a proper or just outcome. The most desirable outcome is to allow the 2025 general election for Local-level Governments to proceed in the normal way.
Answer to question 5
53. No. The 6,000-plus members of more than 325 Local-level Governments cannot continue in office until the next general election to the Parliament.
QUESTION 6: Who is the authority that determines the election of heads of Local-level Governments under s 234(2) of the Organic Law on National and Local-level Government Elections?
54. This question is answered by the terms of the provision to which it refers. Section 234(2) of the Organic Law on National and Local-level Government Elections states:
The Head of State, acting on advice, may determine that the heads of Local-level Governments be directly elected by electors, and where such a determination is made—
(a) the election of heads of Local-level Governments shall be in accordance with this Part subject to such modification as is prescribed or as is required in the circumstances; and
(b) where an election for a member of a Local-level Government and an election for the head of that Local-level Government are held simultaneously an elector may vote in respect of each election.
55. Therefore the Head of State, acting on advice, is the authority who determines the method of election of heads of Local-level Governments. As to the source of such advice, s 86(2) (functions etc) of the Constitution provides:
Except as provided by Section 96(2) (terms and conditions of employment), in the exercise and performance of his privileges, powers, functions, duties and responsibilities the Head of State shall act only with, and in accordance with, the advice of the National Executive Council, or of some other body or authority prescribed by a Constitutional Law or an Act of the Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act.
56. In practice, this means that the Governor-General, acting with and in accordance with the advice of the National Executive Council, may determine that the heads of certain Local-level Governments are to be directly elected by electors.
Answer to question 6
57. The Governor-General, acting with and in accordance with the advice of the National Executive Council.
QUESTION 7: Can two different methods be used simultaneously to elect heads of the Local-level Governments in the country in a Local-level Government general election, achieving different outcomes, one elected directly by the people and the other by ward councillors?
58. There is nothing in any Constitutional Law that prohibits two different methods being used simultaneously to elect heads of Local-level Governments in a general election for Local-level Governments.
Answer to question 7
Yes.
B – VALIDITY OF THE ORGANIC LAW ON PROVINCIAL AND LOCAL-LEVEL GOVERNMENTS & RELATED LAWS: QUESTIONS 8 TO 11
QUESTION 8: What was the intent and purpose of Parliament amending the Constitution and inserting ss 187A, 187B, 187C, 187D, 187E, 187F, 187G, I87H, 187I & 187J soon after Independence in 1975 and again in 1995 establishing a system of elective provincial assemblies and local-level governments?
59. This question is too general in nature and we did not hear any careful or considered argument on the issues it raises to warrant any binding opinion being given by the Court.
60. We invoke Order 4 rule 18 of the Supreme Court Rules 2012 (a rule made under s 19(4)(c) of the Constitution, in respect of cases and circumstances in which the Court may decline to give an opinion) which states:
The court may decline to give an opinion on the question the subject of the reference or special reference if in [its] opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
61. We decline to give an opinion as the question is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 8
Decline to give opinion.
QUESTION 9: If the intent of Parliament was to give autonomy to the provinces and districts in the light of protests by North Solomons, does autonomy to the provinces and districts remain under the 1995 Organic Law on Provincial Governments and Local-level Governments?
62. We decline to give an opinion for the same reasons explained in our answer to question 8: the question is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 9
Decline to give opinion.
QUESTION 10: Does the Organic Law on Provincial Governments and Local-level Governments 1995 as amended centralize all powers and autonomy in Waigani?
63. We decline to give an opinion for the same reasons explained in our answer to question 8: the question is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 10
Decline to give opinion.
QUESTION 11: Following from answers to questions 8, 9 and 10, can provisions in the Organic Law on Provincial Governments and Local-level Governments withdrawing autonomy from the provinces and districts be declared unconstitutional?
64. We decline to give an opinion for the same reasons explained in our answer to question 8: the question is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 11
Decline to give opinion.
C – VALIDITY OF THE DISTRICT DEVELOPMENT AUTHORITY ACT: QUESTIONS 12 TO 14
QUESTION 12: Whether the establishment of the District Development Authorities under s 33 of the Organic Law on Provincial Governments and Local-level Governments and the District Development Authority Act 2014 offend ss 187A, 178B, 178C to 187J of the Constitution and provisions of the Organic Law on Provincial Governments and Local-level Governments?
65. We have not heard adequate argument on the issues raised by this question to warrant giving a binding opinion. We decline to give an opinion for the same reasons explained in our answer to question 8: the question is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 12
Decline to give opinion.
QUESTION 13: Whether District Development Authorities established under the District Development Authority Act 2014, duplicate functions, responsibilities and roles of Local Level Governments, thereby creating confusion, chaos and rivalry to the administrative structure of Local Level Governments?
66. This is not a proper question for a s 19 reference as it does not raise any question of law or fact requiring interpretation or application of any provision of a Constitutional Law. We decline to give an opinion as the question is trivial and hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 13
Decline to give opinion.
QUESTION 14: If the answers to Questions 12 and 13 above is yes, can the District Development Authority Act 2014 be declared unconstitutional and all District Development Authorities be dismantled, all functions and findings be channelled through the existing Local-Level Governments?
67. It is not necessary to answer this question as it is predicated on an affirmative answer to questions 12 and 13, and in respect of those questions we declined to give an opinion.
Question 14 is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 14
Decline to give opinion.
D – SEPARATION OF POWERS: QUESTIONS 15 TO 19
QUESTION 15: What is the principal function of the Parliament provided for under s 100 of the Constitution?
68. This is a vague question, which does not warrant a considered response. We decline to give an opinion for the same reasons explained in our answer to question 8: the question is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 15
Decline to give opinion.
QUESTION 16: If the principal function of the Parliament is to legislate, can a member of Parliament also perform the duty of the public servant playing the role of a project manager and service distributor?
69. We decline to give an opinion for the same reasons explained in our answer to question 8: the question is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 16
Decline to give opinion.
QUESTION 17: If a member of Parliament draws his powers of performing the duties of a public servant under the District Development Authority Act or the Organic Law on Provincial Governments and Local-Level Governments or any other law, does that offend s 100 of the Constitution?
70. We decline to give an opinion for the same reasons explained in our answer to question 8: the question is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 17
Decline to give opinion.
QUESTION 18: If the answer to any of the questions 16 and 17 above are to the affirmative, yes, there has been a constitutional breach (or there is constitutional invalidity) what are the consequences?
71. It is not necessary to answer this question as it is predicated on an affirmative answer to questions 16 or 17, and in respect of those questions we declined to give an opinion. We decline to give an opinion for the same reasons explained in our answer to question 8: the question is hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 18
Decline to give opinion.
QUESTION 19: Who is the public servant and what is his role in the provincial, district and local government administrations?
72. This is not a proper question for a s 19 reference as it does not raise any question of law or fact requiring interpretation or application of any provision of a Constitutional Law. We decline to give an opinion as the question is trivial and hypothetical and unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 19
Decline to give opinion.
CONCLUSION
73. We have answered the most significant questions, Nos 1 to 7, in a way advanced by the first and second. We have declined to give any opinion on questions 8 to 19. As all parties to the reference are publicly funded, it is inappropriate to award costs to any particular parties.
ORDER
(1) The questions the subject of this reference are answered as follows:
Question 1: Yes, there is a directory requirement for a general election for Local-level Governments to be held concurrently with a general election for the National Parliament. However, it is not a mandatory requirement and if it is not complied with, there are no necessary consequences.
Question 2: Possibly.
Question 3: There are no consequences of any apparent breach of the s 34(1) requirement for the 2025 general election for Local-level Governments.
Question 4: Yes, if the Parliament is dissolved under s 105(1)(b) or (c) of the Constitution, the same requirement as to the holding of a general election for Local-level Governments would apply as in the normal case of the holding of a general election to the Parliament under s 105(1)(a) of the Constitution.
Question 5: No. The 6,000-plus members of more than 325 Local-level Governments cannot continue in office until the next general election to the Parliament.
Question 6: The Governor-General, acting with and in accordance with the advice of the National Executive Council
Question 7: Yes.
Question 8: Decline to give opinion.
Question 9: Decline to give opinion.
Question 10: Decline to give opinion.
Question 11: Decline to give opinion.
Question 12: Decline to give opinion.
Question 13: Decline to give opinion.
Question 14: Decline to give opinion.
Question 15: Decline to give opinion.
Question 16: Decline to give opinion.
Question 17: Decline to give opinion.
Question 18: Decline to give opinion.
Question 19: Decline to give opinion.
(2) The parties shall bear their own costs of the reference, including all applications and interlocutory proceedings relating to the reference.
____________________________________________________________
Lawyers for the referrer : Danny Gonol Lawyers
Lawyer for the 1st intervener : Solicitor-General
Lawyers for the 2nd intervener : Solomon Wanis Lawyers
Lawyers for the 3rd intervener : Steeles Lawyers
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URL: http://www.paclii.org/pg/cases/PGSC/2025/34.html