Papua New Guinea

No. 123 of 1971

An Act relating to the Territory of Papua and the Territory of New Guinea.

[Assented to 13 December 1971]

BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

Short title and citation.

1.—(1.) This Act may be cited as the Papua New Guinea Act 1971.

(2.) The Papua and New Guinea Act 1949-1971 is in this Act referred to as the Principal Act.

(3.) The Principal Act, as amended by this Act, may be cited as the Papua New Guinea Act 1949-1971.

Commencement.

2.—(1.) Sections 1, 2 and 22 of this Act shall come into operation on the day on which this Act receives the Royal Assent.

(2.) Sections 5 to 9 (inclusive), 16 to 21 (inclusive) and 23 to 27 (inclusive) of this Act shall come into operation on the fourteenth day after the day on which this Act receives the Royal Assent.

(3.) The remaining sections of this Act shall come into operation on such date as is, or on such dates as respectively are, fixed by Proclamation.

Parts.

3. Section 4 of the Principal Act is amended by omitting the words—

“Division 3.—Ministerial Offices (Sections 24-29a).”

and inserting in their stead the words—

“Division 3.—Ministers of the House of Assembly (Sections 24–29a).”.

Interpretation.

4. Section 5 of the Principal Act is amended—

(a) by omitting from sub-section (1.) the definition of “assistant ministerial member” and inserting in its stead the following definition:—

“‘Deputy Chairman’ means Deputy Chairman of the Council;”; and

(b) by omitting from sub-section (1.) the definitions of “ministerial member” and “ministerial office” and inserting in their stead the following definition:—

“‘ministerial office’ means an office of Minister of the House of Assembly;”.

5. Section 10 of the Principal Act is repealed and the following section inserted in its stead:—

Name of Territories governed in administrative union.

“10.—(1.) For the purposes of this Act, the Territory of Papua and the Territory of New Guinea are together called Papua New Guinea.

“(2.) In—

(a) any other law of the Commonwealth;

(b) any law of a Territory of the Commonwealth; or

(c) any instrument under a law referred to in either of the last two preceding paragraphs,

whether passed or made before or after the commencement of this section, a reference to Papua New Guinea or to the Territory of Papua and New Guinea shall be read as a reference to the Territory of Papua and the Territory of New Guinea as administered under this Act.”.

6. Sections 12 and 12a of the Principal Act are repealed and the following section is inserted in their stead:—

References in other laws.

“12.—(1.) In—

(a) any law of the Commonwealth;

(b) any law of a Territory of the Commonwealth; or

(c) any instrument under a law referred to in either of the last two preceding paragraphs,

whether passed or made before or after the commencement of this section,

a reference to a Territory of the Commonwealth, a Territory under the control of the Commonwealth or a Territory under the authority of the Commonwealth shall, unless the contrary intention appears, be deemed to include a reference to the Territory of Papua, to the Territory of New Guinea and to the Territory of Papua and the Territory of New Guinea as administered under this Act.

“(2.) In any law or instrument referred to in the last preceding sub-section—

(a) a reference to the Administrator of a Territory of the Commonwealth shall, in relation to the Territory of Papua or the Territory of New Guinea, be read as a reference to the Administrator of Papua New Guinea;

(b) a reference to the Supreme Court of a Territory of the Commonwealth shall, in relation to the Territory of Papua or the Territory of New Guinea, be read as a reference to the Supreme Court of Papua New Guinea; and

(c) a reference to the Public Service of a Territory of the Commonwealth shall, in relation to the Territory of Papua or the Territory of New Guinea, be read as a reference to the Public Service of Papua New Guinea.”.

Office of Administrator.

7.—(1.) Section 13 of the Principal Act is amended by omitting the words “the Territory” (wherever occurring) and inserting in their stead the words “Papua New Guinea”.

(2.) In—

(a) any law of the Commonwealth;

(b) any law of a Territory of the Commonwealth; or

(c) any instrument under a law referred to in either of the last two preceding paragraphs,

being a law or instrument passed or made before the commencement of this section, a reference to the Administrator of the Territory of Papua and New Guinea shall be read as a reference to the Administrator of Papua New Guinea.

8.—(1.) Section 18 of the Principal Act is repealed and the following section inserted in its stead:—

Oath or affirmation to be taken by Administrator, &c.

“18. The Administrator, an Acting Administrator or a deputy of the Administrator shall, before proceeding to discharge the duties of his office, take before the Governor-General, a Judge or a person thereunto authorized by the Governor-General an oath or affirmation in accordance with the form in the Fifth Schedule to this Act.”.

(2.) Where a person referred to in section 18 of the Principal Act as amended by this Act had, before the commencement of this section, taken an oath or affirmation in accordance with section 18 of the Principal Act, it is not necessary for that person to take an oath or affirmation in accordance with section 18 of the Principal Act as amended by this Act.

Administrator’s Executive Council.

9.—(1.) Section 19 of the Principal Act is amended by omitting from sub-section (1.) the words “the Territory of Papua and New Guinea” and inserting in their stead the words “Papua New Guinea”.

(2.) In—

(a) a law of Papua New Guinea; or

(b) an instrument under such a law,

being a law or instrument passed or made before the commencement of this section, a reference to the Administrator’s Council for the Territory of Papua and New Guinea or to the Administrator’s Executive Council of the Territory of Papua and New Guinea shall be read as a reference to the Administrator’s Executive Council of Papua New Guinea.

10. Sections 20 and 21 of the Principal Act are repealed and the following sections inserted in their stead:—

Constitution of Council.

“20.—(1.) Subject to this section, the Council shall consist of—

(a) the Administrator;

(b) a Deputy Chairman of the Council, being a Minister of the House of Assembly, appointed in accordance with the next succeeding sub-section;

(c) nine other Ministers of the House of Assembly appointed by the Minister on the nomination of the Administrator, being a nomination made after consulting the Deputy Chairman; and

(d) three official members of the House of Assembly appointed by the Minister on the nomination of the Administrator.

“(2.) The Ministers of the House of Assembly shall, in accordance with the regulations, appoint one of their number to be the Deputy Chairman and, as often as the office of Deputy Chairman becomes vacant, again appoint one of their number to be the Deputy Chairman, but an appointment under this sub-section does not become effective unless and until the House of Assembly has, by resolution, approved the appointment.

“(3.) Not more than two of the members of the Council shall be nominated members of the House of Assembly.

“(4.) The Deputy Chairman ceases to hold office if he ceases to be a Minister of the House of Assembly.

“(5.) A member of the Council appointed under paragraph (c) of sub-section (1.) of this section—

(a) may be removed from office as a member of the Council by the Minister on the recommendation of the Administrator, being a recommendation made after consulting the Deputy Chairman; and

(b) ceases to be a member of the Council if he ceases to be a Minister of the House of Assembly.

“(6.) A member of the Council appointed under paragraph (d) of sub-section (1.) of this section—

(a) may be removed from office as a member of the Council by the Minister; and

(b) ceases to be a member of the Council if be ceases to be a member of the House of Assembly.

“(7.) The performance of the functions of the Council is not affected by reason of a vacancy or vacancies in the membership of the Council.

“(8.) Regulations for the purposes of this section may make provision for and in relation to the procedure by which the Ministers of the House of Assembly may appoint a Deputy Chairman and, in particular, may make provision for the power of the Ministers of the House of Assembly to appoint a Deputy Chairman to be capable of being exercised notwithstanding a vacancy in the office of a Minister of the House of Assembly or vacancies in the offices of Ministers of the House of Assembly and for a decision of a majority of the Ministers of the House of Assembly to be deemed to be a decision of the Ministers of the House of Assembly.

Resignation.

“21.—(1.) The Minister of the House of Assembly who is the Deputy Chairman may resign his office as Deputy Chairman by delivering a written resignation signed by him to the Administrator, who shall, as soon as practicable, inform the other Ministers of the House of Assembly of the resignation.

“(2.) Subject to the succeeding provisions of this section, a member of the Council appointed under paragraph (c) of sub-section (1.) of the last preceding section may resign his office as a member of the Council by delivering a written resignation signed by him to the Deputy Chairman or, if the Deputy Chairman is absent from Papua New Guinea or there is a vacancy in the office of Deputy Chairman, to the Administrator.

“(3.) Where a written resignation of a member of the Council is delivered to the Deputy Chairman in accordance with the last preceding sub-section, the Deputy Chairman shall, as soon as practicable, send the resignation to the Administrator.

“(4.) Subject to the succeeding provisions of this section, a member of the Council appointed under paragraph (d) of sub-section (1.) of the last preceding section may resign his office as a member of the Council by delivering a written resignation signed by him to the Administrator.

“(5.) Where a written resignation is delivered or sent to the Administrator in accordance with any of the last three preceding sub-sections, the Administrator shall transmit the resignation to the Minister.

“(6.) A resignation of a member of the Council appointed under paragraph (c) of sub-section (1.) of the last preceding section does not become effective until it is received by the Minister.

“(7.) A resignation of a member of the Council appointed under paragraph (d) of sub-section (1.) of the last preceding section does not become effective unless and until it has been accepted by the Minister.”.

Proceedings of Council.

11. Section 22 of the Principal Act is amended by omitting sub-sections (2.) and (3.) and inserting in their stead the following sub-sections:—

“(1a.) In the absence of the Administrator from a meeting of the Council, the Deputy Chairman shall preside.

“(2.) In a case where the Administrator is absent from a meeting of the Council and—

(a) the Deputy Chairman is also absent from the meeting; or

(b) there is a vacancy in the office of Deputy Chairman,

a member of the Council appointed by the Administrator to preside in such cases shall preside.

“(3.) At a meeting of the Council, a quorum consists of the Administrator, the Deputy Chairman or a member appointed in accordance with the last preceding sub-section, and four other members.”.

Heading to Division 3 of Part IV.

12. The heading to Division 3 of Part IV. of the Principal Act is repealed and the following heading inserted in its stead:—

“Division 3.—Ministers of the House of Assembly.”.

13. Sections 24 and 25 of the Principal Act are repealed and the following sections inserted in their stead:—

Ministerial offices.

“24.—(1.) There shall be such number, being not more than seventeen, of offices of Minister of the House of Assembly as the Minister from time to time determines.

“(2.) The ministerial offices shall have such respective designations as the Minister from time to time determines.

“(3.) In respect of each ministerial office, the Minister shall determine, from time to time, the matters in respect of which the holder of the office is to perform the functions of a Minister of the House of Assembly.

“(4.) Without limiting the generality of the last preceding sub-section, the matters that may be determined by the Minister under that sub-section in relation to a ministerial office may include all or any of the matters to which the functions of a specified department of the Public Service relate.

Functions of holder of ministerial office.

“25.—(1.) The functions of a Minister of the House of Assembly are, in relation to the matters determined in relation to his office under the last preceding section, and to the extent and in the manner provided by arrangements approved by the Minister and applicable to that office, to assist in the administration of the government of Papua New Guinea and, in particular—

(a) to take part in the formulation of policies and plans, and of proposals for expenditure, in relation to those matters;

(b) to make recommendations to the Council in relation to those matters;

(c) where any of those matters are dealt with by a department of the Public Service—to take part in the direction of the activities of that department relating to those matters; and

(d) to represent the Administration in the House of Assembly.

“(2.) Powers, functions or duties in relation to the government of Papua New Guinea shall not be conferred or imposed by Ordinance on a Minister of the House of Assembly in his capacity as such a Minister, but this sub-section does not operate so as to prevent the delegation to such a Minister of powers or functions under an Ordinance.”.

Appointment and removal of holders of ministerial offices.

14. Section 26 of the Principal Act is amended—

(a) by inserting in sub-section (1.), after the word “member”, the words “, or a nominated member,”; and

(b) by omitting from sub-section (2.) the words “An elected member” and inserting in their stead the words “A person”.

Tenure of office.

15. Section 28 of the Principal Act is amended by inserting in paragraph (a), after the words “elected member”, the words “or a nominated member”.

Composition of House of Assembly.

16.—(1.) Section 36 of the Principal Act is amended—

(a) by omitting sub-section (1.) and inserting in its stead the following sub-section:—

“(1.) The House of Assembly shall consist of not less than one hundred and four members, but not more than one hundred and seven members, as follows:—

(a) four persons, to be known as official members, appointed by the Governor-General on the nomination of the Administrator;

(b) eighty-two persons elected by electors of Papua New Guinea;

(c) eighteen persons, being persons possessing such educational qualifications as are specified by, or determined under, the regulations, elected by electors of Papua New Guinea; and

(d) not more than three persons, to be known as nominated members, appointed in accordance with the next succeeding section.”;

(b) by inserting in paragraph (c) of sub-section (3.) after the word “member”, the words “, or appointed as a nominated member,”; and

(c) by omitting sub-section (4a.) and inserting in its stead the following sub-sections:—

“(4a.) Subject to this Act, a nominated member holds office for a period commencing on the day next following the day on which he is appointed in accordance with the next succeeding section and ending at the expiration of the day of completion of the next following general election.

“(4b.) For the purposes of the last two preceding sub-sections, the day of completion of a general election is the day on which the member last declared, in accordance with Ordinance, to be elected at that election is so declared to be elected.”.

(2.) The amendment made by paragraph (a) of the last preceding sub-section does not affect the constitution of the House of Assembly before the expiration of the day of completion of the first general election held after the commencement of this section.

(3.) In the last preceding sub-section, the expression “the day of completion”, in relation to a general election, has the same meaning as it has for the purposes of sub-section (4.) of section 36 of the Principal Act.

17. After section 36 of the Principal Act the following section is inserted:—

Appointment of nominated members.

“36a.—(1.) Subject to this section, the House of Assembly may, by resolution, appoint a person to be a nominated member of the House.

“(2.) A person shall not be appointed to be a nominated member of the House of Assembly unless—

(a) there is a vacancy in an office of nominated member;

(b) the House has, subject to the next succeeding sub-section, passed a resolution—

(i) declaring that the vacancy should be filled; and

(ii) appointing a committee consisting of seven members of the House, other than official members, to recommend a person for appointment to the vacant office; and

(c) the committee has, after consulting the Administrator, recommended the appointment of the person.

“(3.) A resolution referred to in paragraph (b) of the last preceding sub-section is of no effect unless the number of members of the House of Assembly voting in favour of the motion in pursuance of which the resolution was passed was not less than two-thirds of the number of members for the time being constituting the House.

“(4.) The House of Assembly may, by resolution, determine the procedure to be followed by a committee appointed by the House for the purposes of sub-paragraph (ii) of paragraph (b) of sub-section (2.) of this section and, in particular, may determine that a recommendation by a majority of the members of the committee shall be deemed to be a recommendation of the committee.”.

Disqualification for membership of, or voting in, House of Assembly.

18. Section 37 of the Principal Act is amended—

(a) by inserting in sub-section (2.), after the word “Assembly”, the words “or to be appointed, or to continue, as a nominated member of the House of Assembly”; and

(b) by inserting after sub-section (2.) the following sub-sections:—

“(2a.) A person is not qualified to be appointed as a nominated member of the House of Assembly if—

(a) he has not resided continuously in Papua New Guinea throughout the period of five years immediately preceding the day on which a motion for his appointment as such a member is moved in the House of Assembly; or

(b) he was a candidate for election as an elected member of the House of Assembly at the last preceding general election and was not elected.

“(2b.) For the purposes of paragraph (a) of the last preceding sub-section, temporary absences of a person from Papua New Guinea, not exceeding in the aggregate a period of two years, do not affect the continuity of his residence in Papua New Guinea.”.

Vacancies.

19. Section 38 of the Principal Act is amended by inserting in sub-section (3.), after the words “elected member”, the words “or nominated member”.

Quorum.

20.—(1.) Section 42 of the Principal Act is amended by omitting from sub-section (1.) the word “thirty-seven” and inserting in its stead the word “thirty-six”.

(2.) The amendment made by the last preceding sub-section applies in relation to the House of Assembly as constituted on or after the expiration of the day of completion of the first general election held after the commencement of this section.

(3.) In the last preceding sub-section, the expression “the day of completion”, in relation to a general election, has the same meaning as it has for the purposes of sub-section (4.) of section 36 of the Principal Act.

Constitution of Supreme Court.

21.—(1.) Section 58 of the Principal Act is amended by omitting sub-section (1.) and inserting in its stead the following sub-section:—

“(1.) The Supreme Court of the Territory of Papua and New Guinea in existence immediately before the date of commencement of section 21 of the Papua New Guinea Act 1971 continues in existence but shall be known as the Supreme Court of Papua New Guinea.”.

(2.) A person holding office as the Chief Justice, the senior puisne judge, a judge or an acting judge of the Supreme Court of the Territory of Papua and New Guinea immediately before the commencement of this section continues, without further appointment, to be the Chief Justice, the senior puisne judge, a judge or an acting judge, as the case may be, of that court as continued in existence in accordance with sub-section (1.) of section 58 of the Principal Act as amended by this Act.

(3.) In—

(a) any law of the Commonwealth;

(b) any law of a Territory of the Commonwealth;

(c) any instrument (including rules of Court) under a law referred to in either of the last two preceding paragraphs; or

(d) any instrument under any such rules of Court as are mentioned in the last preceding paragraph,

being a law or instrument passed or made before the commencement of this section, a reference to the Supreme Court of the Territory of Papua and New Guinea shall be read as a reference to the Supreme Court of Papua New Guinea.

Vesting of public funds of former Administrations.

22. Section 74 of the Principal Act is repealed.

Fifth Schedule.

23. The Fifth Schedule to the Principal Act is repealed and the following Schedule inserted in its stead:—

“FIFTH SCHEDULE.  Section 18.

Oath

I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will well and truly serve Her in the office of Administrator (or Acting Administrator or Deputy Administrator) of Papua New Guinea and that I will faithfully and impartially perform the duties of that office.

So Help Me God!

Affirmation

I, A.B., do solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will well and truly serve her in the office of Administrator (or Acting Administrator or Deputy Administrator) of Papua New Guinea and that I will faithfully and impartially perform the duties of that office.”.

Seventh Schedule.

24.—(1.) The Seventh Schedule to the Principal Act is amended by omitting the words “His Majesty King George the Sixth, His heirs and successors according to law, that I will well and truly serve Him in the office of Chief Justice (or Judge as the case may be) of the Supreme Court of the Territory of Papua and New Guinea” (wherever occurring) and inserting in their stead the words “Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will well and truly serve Her in the office of Chief Justice (or Judge as the case may be) of the Supreme Court of Papua New Guinea”.

(2.) Where a person referred to in sub-section (2.) of section 21 of this Act had, before the commencement of this section, in accordance with sub-section (2.) of section 59 of the Papua and New Guinea Act 1949 or of that Act as amended, taken an oath or affirmation in the form in the Seventh Schedule to that Act or that Act as amended, it is not necessary for that person to take an oath or affirmation in the form in the Seventh Schedule to the Principal Act as amended by this Act.

Additional amendments.

25. The Principal Act is amended as set out in the Schedule to this Act.

Regulations.

26.—(1.) At any time after this Act receives the Royal Assent and before the date fixed under sub-section (3.) of section 2 of this Act for the commencement of section 10 of this Act regulations may be made under the Principal Act as amended by this Act as if section 10 of this Act had come into operation on the day on which this Act received the Royal Assent, but regulations so made shall not come into operation before the date so fixed.

(2.) At any time after this Act receives the Royal Assent and before the date fixed under sub-section (3.) of section 2 of this Act for the commencement of section 14 of this Act regulations may be made under the Principal Act as amended by this Act as if section 14 of this Act had come into operation on the day on which this Act received the Royal Assent, but regulations so made shall not come into operation before the date so fixed.

Validation.

27.—(1.) The National Identity Ordinance 1971 made or purporting to have been made by the House of Assembly for the Territory of Papua and New Guinea on the eighteenth day of June, One thousand nine hundred and seventy-one—

(a) shall be deemed to have been as valid and effectual during the period that commenced on the eighteenth day of June, One thousand nine hundred and seventy-one, and ended immediately before the date of commencement of this section as it would have been if that House had had full power and authority to make that Ordinance; and

(b) is as valid and effectual on and after the date of commencement of this section as it would be if the provisions of this Act that came into operation on that date had come into operation on the eighteenth day of June, One thousand nine hundred and seventy-one.

(2.) The publication, before the date of commencement of this section, in the Papua New Guinea Government Gazette of a notice or other instrument, or of a copy of a notice or other instrument, that was required or permitted by a law of the Commonwealth or of a Territory of the Commonwealth to be published in the Territory of Papua and New Guinea Government Gazette is, and shall be deemed to have at all times been, as valid and effectual as if the notice, instrument or copy had been published in that last-mentioned Gazette.

THE SCHEDULE

Additional Amendments  Section 25.

The Schedule—continued