Papua New Guinea Act (No. 2) 1973

No. 120 of 1973

AN ACT

To provide for the Internal Self-Government of Papua New Guinea.

[Assented to 30 October 1973]

BE IT ENACTED by the Queen, the Senate and the House of Representatives of Australia, as follows:—

Part I—Preliminary

Short title and citation.

1. (1) This Act may be cited as the Papua New Guinea Act (No. 2) 1973.

(2) The Papua New Guinea Act 1949–1972, as amended by the Papua New Guinea Act 1973, is in this Act referred to as the Principal Act.

(3) Section 1 of the Papua New Guinea Act 1973 is amended by omitting sub-section (3).

(4) The Principal Act, as amended by this Act, may be cited as the Papua New Guinea Act 1949–1973.

Commencement.

2. (1) Sections 1, 2, 3, 26, 27 and 28 and Part III shall come into operation on the day on which this Act receives the Royal Assent.

(2) The remaining provisions of this Act shall come into operation on such respective dates as are fixed by Proclamation.

Part II—Amendments of the Principal Act

Parts.

3. Section 4 of the Principal Act is repealed.

Interpretation.

4. Section 5 of the Principal Act is amended—

(a) by inserting after the definition of “elector” or “elector of Papua New Guinea” in sub-section (1) the following definition:—

“‘enactment’ means—

(a) a law (however described or entitled) made by the House of Assembly and assented to under section 54 or 56; or

(b) an Ordinance made under, or continued in force by, the Papua and New Guinea Act 1949 or that Act as amended;”; and

(b) by omitting from sub-section (1) the definition of “the Administration”;

(c) by inserting after the definition of “the Council” in sub-section (1) the following definition:—

“‘the Government’ means The Government of Papua New Guinea;”; and

(d) by inserting after sub-section (1) the following sub-sections:—

“(1a) A reference in this Act to a reserved matter shall be read as a reference to—

(a) defence;

(b) foreign relations; or

(c) a matter specified by Proclamation made in accordance with section 42 of the Papua New Guinea Act (No. 2) 1973.

“(1b) A reference in this Act to the High Commissioner, in relation to matters concerning powers and functions of the High Commissioner that may be exercised and performed by a person in accordance with section 16, includes a reference to that person”.

5. (1) After section 9 of the Principal Act the following section is inserted:—

Powers of the Government.

“9a. (1) The Government of Papua New Guinea is a body politic with perpetual succession by the name ‘The Government of Papua New Guinea’.

“(2) Subject to this Act, The Government of Papua New Guinea is capable by that name of—

(a) suing and being sued;

(b) making contracts;

(c) acquiring, holding and disposing of real and personal property; and

(d) doing and suffering all other matters and things a body corporate may do or suffer.”.

(2) The amendment of the Principal Act made by sub-section (1) shall not be construed as implying any limitation with respect to the powers or legal capacity possessed by the Administration or Government of Papua New Guinea before that amendment.

References in other laws.

6. Section 12 of the Principal Act is amended—

(a) by omitting from paragraph (a) of sub-section (2) the words “Administrator of Papua New Guinea” and substituting the words “High Commissioner of Papua New Guinea or the holder of the former office of Administrator of Papua New Guinea, as the case requires”; and

(b) by adding at the end thereof the following sub-sections:—

“(3) For the purposes of references in. any law or instrument referred to in sub-section (1) to Ordinances, other than a reference to a particular Ordinance, every enactment shall be deemed to be an Ordinance.

“(4) In any law or instrument referred to in sub-section (1) a reference to a particular Ordinance shall, unless the contrary intention appears, be read as including—

(i) a reference to that Ordinance as amended from time to time; and

(ii) a reference to an enactment replacing that Ordinance, including such an enactment as amended or replaced from time to time.”.

Heading to Part IV.

7. The Heading to Part IV of the Principal Act is amended by omitting the words “The Executive Government” and substituting the words “The Executive”.

8. The heading to Division 1 of Part IV of the Principal Act, and sections 13 and 14 of that Act, are repealed and the following heading and sections substituted:—

“Division 1—The High Commissioner

Office of the High Commissioner.

“13. Subject to this Act, the Government shall be administered by the High Commissioner of Papua New Guinea.

Appointment of High Commissioner.

“14. The High Commissioner shall be appointed by the Governor-General by Commission and shall hold office during the pleasure of the Governor-General.’’.

Acting High Commissioner.

9. Section 16 of the Principal Act is amended—

(a) by omitting sub-sections (1) and (2) and substituting the following sub-sections:—

“(1) The Governor-General may, by Commission—

(a) appoint a person to exercise and perform the powers and functions of the High Commissioner; or

(b) appoint one person to exercise and perform such powers and functions of the High Commissioner as are specified in his Commission and another person to exercise and perform the remaining powers and functions of the High Commissioner,

during any vacancy in the office of the High Commissioner or when the High Commissioner is absent from Papua New Guinea or unable by reason of illness or incapacity to perform his duties.

“(2) In default of an appointment under sub-section (1), or in the event of the absence from Papua New Guinea or the death or incapacity of a person so appointed, the senior official representative of Australia present in Papua New Guinea and able to act shall have and may exercise and perform all the powers and functions of the High Commissioner or such of those powers and functions as may be, or could have been, exercised and performed by the person so appointed, as the case may be.”; and

(b) by omitting from sub-section (3) the word “Administrator” (wherever occurring) and substituting the words “High Commissioner”.

Executive Council.

10. Section 19 of the Principal Act is amended—

(a) by omitting from sub-section (1) the word “Administrator’s”;

(b) by omitting sub-sections (2) and (3) and substituting the following sub-sections:—

“(2) The functions of the Council are to advise the High Commissioner on any matter relating to the administration of the Government.

“(3) Where he thinks it in the public interest to do so, the High Commissioner may introduce into the Council any matter for discussion in the Council.”.

Constitution of Council.

11. Section 20 of the Principal Act is amended—

(a) by omitting sub-section (1) and substituting the following sub-section:—

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

(a) the High Commissioner;

(b) the Chief Minister; and

(c) not less than nine nor more than twelve other Ministers of the House of Assembly appointed by the High Commissioner after consultation with the Chief Minister.”;

(b) by omitting from sub-section (2) the words “Deputy Chairman” (wherever occurring) and substituting the words “Chief Minister”;

(c) by omitting sub-section (4) and substituting the following sub-section:—

“(4) The Chief Minister ceases to hold the office of Chief Minister if—

(a) he ceases to be a Minister of the House of Assembly; or

(b) the House of Assembly, in accordance with, and subject to any conditions prescribed by, the regulations, resolves that he should cease to hold that office.”;

(d) by omitting paragraph (a) of sub-section (5) and substituting the following paragraph:—

“(a) may be removed from office as a member of the Council by the High Commissioner after consulting the Chief Minister; and”;

(e) by omitting sub-section (6); and

(f) by omitting from sub-section (8) the words “Deputy Chairman” (wherever occurring) and substituting the words “Chief Minister”.

Ministers of the House of Assembly.

12. Section 24 of the Principal Act is amended by omitting sub-section (2) and substituting the following sub-section:—

“(2) One of the ministerial offices shall be that of the Chief Minister and the others shall have such respective designations as the High Commissioner from time to time determines.”.

13. Section 25 of the Principal Act is repealed and the following section substituted:—

Functions of holder of ministerial office.

“25. Subject to this Act and to any enactment, the functions of the holder of a ministerial office are, in relation to the matters determined in relation to his office under section 24, to assist in the administration of the Government and in particular—

(a) to formulate policies and plans, and 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 direct the activities of that department relating to those matters; and

(d) to represent the Government in the House of Assembly.”.

14. After section 25 of the Principal Act the following section is inserted:—

Functions in relation to reserved matters.

“25a. (1) The functions of the holder of a ministerial office, so far as they relate to a reserved matter, shall be performed only to the extent and in the manner provided by arrangements approved by the Minister and applicable to that office.

“(2) The Minister shall not give an approval under this section except upon the recommendation of, or after consultation with, the High Commissioner, but the validity of an approval by the Minister shall not be called in question on the ground that the requirements of this sub-section have not been complied with.”.

Appointment and removal of Ministers.

15. Section 26 of the Principal Act is amended—

(a) by omitting from sub-section (1) the words “to a ministerial office” and substituting the words “to be a Minister of the House of Assembly”;

(b) by omitting from sub-section (2) the words “to a ministerial office” (first occurring) and substituting the words “to be a Minister of the House of Assembly”;

(c) by omitting from sub-section (2) the words “,with the concurrence of the Administrator, for appointment to a ministerial office” and substituting the words “to be so appointed”;

(d) by omitting sub-section (3) and substituting the following sub-section:—

“(3) The High Commissioner shall not terminate the appointment of a Minister of the House of Assembly unless the House of Assembly has, in accordance with the regulations, resolved that the appointment be terminated.”; and

(e) by omitting sub-section (5) and substituting the following sub-section:—

“(5) If the Governor-General, after report by the High Commissioner, is satisfied that the public interest so requires, he may terminate the appointment of a Minister of the House of Assembly.”.

Minister may vary appointments.

16. Section 27 of the Principal Act is repealed.

Tenure of office of Ministers.

17. Section 28 of the Principal Act is amended by omitting the words “to a ministerial office” and substituting the words “to be a Minister of the House of Assembly”.

18. After section 28 of the Principal Act the following section is inserted:—

Allotment of certain portfolios.

“28a. (1) The High Commissioner may, at the time when he appoints a person to be a Minister of the House of Assembly, or at any time thereafter, appoint that person to a ministerial office.

“(2) The High Commissioner may, at any time, terminate the appointment of a person to a ministerial office.

“(3) In this section, ‘ministerial office’ does not include the office of Chief Minister.”.

Minister to consult with Administrator.

19. Section 29a of the Principal Act is repealed.

Composition of House of Assembly.

20. Section 36 of the Principal Act is amended—

(a) by omitting from sub-section (1.) the words “one hundred and four members, but not more than one hundred and seven” and substituting the words “one hundred members, but not more than one hundred, and three”;

(b) by omitting paragraph (a) of sub-section (1);

(c) by omitting sub-section (5); and

(d) by omitting from sub-section (6) the word “Administrator” (wherever occurring) and substituting the words “High Commissioner”.

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

21. Section 37 of the Principal Act is amended by omitting from sub-section (6) the word “Administration” (wherever occurring), and substituting the word “Government”.

Seniority of official members.

22. Section 43 of the Principal Act is repealed.

Legislative power of House of Assembly.

23. Section 52 of the Principal Act is amended by omitting the word “Ordinances” and substituting the word “laws”.

24. Section 55 of the Principal Act is repealed and the following section substituted:—

Certain laws to be reserved.

“55. The High Commissioner shall reserve for the Governor-General’s pleasure any proposed law that relates to a reserved matter.”.

Disallowance of Ordinances assented to.

25. Section 57 of the Principal Act is repealed.

Appointment of Chief Justice and other judges.

26. Section 59 of the Principal Act is amended—

(a) by inserting in paragraph (c) of sub-section (1), after the words “case of”, the words “a judge appointed for a specified period in accordance with sub-section (1a) or”; and

(b) by inserting after sub-section (1) the following sub-sections:—

“(1a) A person may be appointed to hold office as a judge, other than an acting judge, during a period specified by the Governor-General, but—

(a) a person is not eligible to be so appointed if he has reached the age of sixty-five years; and

(b) a person shall not be so appointed to hold office for a period that extends beyond the day on which he will reach the age of sixty-five years.

“(1b) Subject to paragraphs (a) and (b) of sub-section (1a), a person appointed in accordance with that sub-section is eligible for re-appointment.”.

Acting Judges.

27. Section 60 of the Principal Act is amended—

(a) by omitting from sub-section (4) the word “resignation” and substituting the words “other termination of office”; and

(b) by omitting from sub-section (4) the word “resigned” and substituting the words “otherwise ceased to hold office”.

28. Section 61 of the Principal Act is repealed and the following section substituted:—

Qualifications of judges.

“61. A person shall not be appointed to be a judge of the Supreme Court unless—

(a) he is or has been—

(i) a barrister or solicitor of the Supreme Court; or

(ii) a legal practitioner (however described) of any other court having unlimited jurisdiction in civil or criminal matters in a part of Her Majesty’s dominions or in a country that, in the opinion of the Governor-General, has a legal system similar to that of Papua New Guinea,

of not less than five years’ standing; or

(b) he is or has been a judge of a court referred to in sub-paragraph (ii) of paragraph (a).”.

29. Section 63 of the Principal Act is repealed and the following section substituted:—

Establishment of other judicial tribunals.

“63. Courts (including village courts) and tribunals may be established by or under enactment.”.

Grant of pardon, remission, &c.

30. Section 73 of the Principal Act is amended by omitting from sub-section (1) the word “Administration” and substituting the word “Government”.

Guarantee by Common­wealth in respect of public loans.

31. Section 75a of the Principal Act is amended—

(a) by omitting from sub-section (1) the word “Administration” (wherever occurring) and substituting the word “Government”;

(b) by inserting after sub-section (1) the following sub-section:—

“(1a) Sub-section (1) extends to the guarantee of the payment of moneys payable by the Government on or after the date on which Papua New Guinea becomes an independent sovereign state, being moneys payable in respect of moneys borrowed before that date.”; and

(c) by omitting from sub-section (2) the word “Administration” and substituting the word “Government”.

Audit.

32. Section 76 of the Principal Act is repealed.

Seventh Schedule.

33. The Seventh Schedule to the Principal Act. is amended by omitting the words “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” (wherever occurring) and substituting the words “that I will well and truly serve”.

Consequential and formal amendments.

34. The Principal Act is amended as set out in the Schedule.

Part III—Transitional Provisions

Interpretation.

35. A reference in this Part to an amendment, in relation to a provision, includes a reference to the re-enactment of the provision with or without modifications.

Functions performed by Administration and Administrator’s; Executive Council.

36. (1) An act done or decision made by, on behalf of, or in the name of, the Administration under the Principal Act before the date of commencement of section 5 has effect on and after that date as if it had been done or made by, on behalf of, or in the name of, the Government under the Principal Act as amended by that section.

(2) An act done or decision made by, on behalf of, or in the name of, the Administrator’s Executive Council of Papua New Guinea under the Principal Act before the date of commencement of section 5 has effect on and after that date as if it had been done or made by, on behalf of, or in the name of, the Executive Council of Papua New Guinea under the Principal Act as amended by that section.

Rights, liabilities, &c., vested in Government.

37. (1) On the date of commencement of section 5, all real and personal property of the Administration is, by force of this section transferred to, and vested in, the Government.

(2) On the date of commencement of section 5, there are transferred to, and vested in, the Government, by force of this section—

(a) all rights and liabilities of the Administration subsisting immediately before that date; and

(b) all rights and liabilities of the Commonwealth subsisting immediately before that date by virtue of a contract or agreement entered into on behalf of the Commonwealth in accordance with the Administration Contracts Ordinance 1950 or that Ordinance as amended or in accordance with a law repealed and replaced by that Ordinance.

(3) Any proceedings by or against the Administration pending in any court immediately before the date of commencement of section 5 may be continued on and after that date by or against the Government, and any documents connected with the proceedings may be amended accordingly.

(4) For the avoidance of doubt, it is hereby declared that, on and after the date of commencement of section 5, no claim may be made in tort by or against the Commonwealth in respect of a matter that was, or is, capable of founding an identical claim by or against the Administration or the Government.

Functions performed by specified persons.

38. An act done or decision made by a person under a provision of the Principal Act before the amendment of that provision by this Act has effect after the commencement of the amendment as if it had been done or made by the appropriate person under that provision as so amended.

Ordinances made under amended provisions.

39. An Ordinance in effect under or for the purposes of a provision of the Principal Act immediately before the amendment of that provision by this Act continues in effect after the commencement of the amendment as if it had been made under or for the purposes of that provision as so amended to the extent that it is consistent with that provision as so amended.

Certain persons to continue in office.

40. (1) Where, immediately before the amendment of a provision of the Principal Act by this Act, a person was holding or holds office by virtue of that provision as—

(a) a Minister of the House of Assembly;

(b) an elected member of the House of Assembly;

(c) a nominated member of the House of Assembly; or

(d) the Chief Justice, a judge or an acting judge of the Supreme Court,

he continues after the commencement of the amendment, but subject to the Principal Act as amended by this Act, to hold office for the remainder of his term of office.

(2) The person holding the office of Deputy Chairman of the Administrator’s Executive Council immediately before the date of commencement of the amendment of section 20 of the Principal Act by this Act holds the office of Chief Minister on and after that date, but subject to the Principal Act as amended by this Act.

Modification of section 20 of Principal Act.

41. Until the commencement of the amendment of section 20 of the Principal Act by this Act, paragraph (1)(c) of that section has effect as if the word “nine” were omitted and the words “not less than nine nor more than twelve” were substituted.

Certain Ordinances not assented to.

42. Where—

(a) an Ordinance is passed by the House of Assembly before the date of commencement of section 24 of this Act;

(b) section 55 of the Principal Act applies in. relation to that Ordinance; and

(c) the Governor-General does not assent to that Ordinance before that date,

section 55 of the Principal Act continues in force on and after that date in relation to that Ordinance except that, where that Ordinance has not been reserved before that date, it shall be reserved by the High Commissioner.

Proclamations under sub-section 5(1a) of Principal Act.

43. At any time after this Act receives the Royal Assent, a Proclamation may be made for the purposes of sub-section 5(1a) of the Principal Act as amended by this Act, but—

(a) a Proclamation so made before the date of commencement of that sub-section shall not come into operation before that date; and

(b) a Proclamation shall not be made for the purposes of that sub-section after that date except for the purposes of revoking or cancelling a Proclamation or of deleting, or reducing the scope of, a matter specified by a Proclamation.

Guarantee of public loans raised by Administration.

44. On and after the date of commencement of section 31 of this Act, section 75a of the Principal Act as amended by that section has effect, in relation to moneys borrowed by the Administration before that date, as if they had been borrowed by the Government.

Audit.

45. Notwithstanding the repeal of section 76 of the Principal Act by this Act, sub-section (1) of that section continues in force in relation to accounts in respect of acts or transactions that occurred on or before the date fixed under sub-section (2) of that section.

SCHEDULE Section 34

PART I—CONSEQUENTIAL AMENDMENTS

Schedule—continued

Schedule—continued

PART II—FORMAL AMENDMENTS

1. The following provisions of the Principal Act are amended by omitting any number expressed in words that is used to identify a section of that Act or of another Act, and substituting that number expressed in figures:—

Sections 5(1) (definition of “the Supreme Court”), 32, 48, 53, 64(4) and 70.

2. The following provisions of the Principal Act are amended by omitting the words “of this Act”, “to this Act” and “of this section” (wherever occurring):—

Sections 5(1) (definitions of “the Supreme Court”, “the Territory of New Guinea” and “the Territory of Papua”), 18, 20(5), 23(1), 26(4)(a) and (b), 29(1), 32(2), 36(6), 36a(4), 48, 53, 56(4), 59(2) and 60(5).

3. The Principal Act is amended as set out in the following table:—