Pansat Communications Pty Ltd v Momis [1995] PGNC 19; N1321 (25 May 1995)

Unreported National Court Decisions

N1321

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 130 OF 1995
PANSAT COMMUNICATION PTY LTD - Plaintiff
v
JOHN MOMIS - 1st Defendant
And:
THE INDEPENDENT STATE OF PNG - 2nd Defendant
And:
Posts and Telecommunications Corporation - 3rd Defendant

Waigani

Sawong AJ
4 May 1995
25 May 1995

DECISION

INJUNCTION - Repeal of regulations by virtue of repeal of Act under which regulation made - inconsistency between an Act and Regulations made under it - invalidity of regulations.

STATUTORY INTERPRETATIONS - Interpretation of Regulations and provisions of Act - General powers and specific powers - Power to grant licences - who has authority to issue licences.

Held:

1. &##160; The power of makingaking regulations under the Radio Communications Act (ch. 152) has not been repealed. Radio Communications Regulations (ch. 152) have not been repealed by Telecommunications Corporation (Consequential Amendments) Act 1982. Posts and Telecommunins (Cns (Consequential Amendments) Act 1982 has amended Section 6 of Radio Communications Act (ch. 152) by giving the power to grant licences to the Board of the Third Defendant and not the Minister. This is inconsistent wie Rthe Regulation 6, of the Radio Communication Regulations (ch. 152), which authorises the Minister to grant licences. Acngly ations 6, of the Rahe Radio Communications Regulations (Ch. 152) are invalid to the exhe extent that it is inconsistent with Sec6 of the Radio Communications Act (Ch. 152).

Cases Referred to:

Telepaelepage Pty Ltd v Posts & Telecommunication Corporation (Unreported Judgment of the National Court) 605

Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450

Registrar of Titles v Franzon [1976] 50

ALJR for Australian Alliance Assurance Co Ltd vs Queensland [1916] Str Qt 135

Australian Boot Trade Employees Corporation v Whybrow & Co [1910] HCA 53; [1930] 11 CLR 311

NTN Pty Ltd and NBN Ltd v The State [1986] PNGLR 167

Kuyakehi v Kelu Theodore [1978] PNGLR 217

NTN Pty Ltd v The State [1986] PNGLR 1

Cases Cited:

The following cases are cited in the judgment:

NTN 9 Pty Ltd & NBN Ltd v The State [1986] PNGLR 167

Keti v Theordore [1978] PNGLR 217

Price v West London Investment Building Society Ltd [1964] 20 ER 318

Telepage Pty Ltd v Posts & Telecommunications Corporation (Unreported Judgment No N605)

Anthony Hordern & Sons Ltd & Others v Amalgamated Clothing & Allied Trade Union of Australia [1932] HCA 9; (1932) 47 CLR 1

Leon Holdings Pty Ltd v Australian Film Commission (1949) 141 CLR 672

Legislation Referred to:

Posts and Telecommunications Act (Ch 394)

Radio Communications Act (Ch 152)

Radio Communications Regulations (Ch 152)

Constitution of PNG (Ch 1)

Posts and Telecommunication Corporation (Consequential Amendments) Act 1982 (7 of 82)

Radio Communications Amendments Act 1983 (63 of 83)

Counsel:

Mr GJ Sheppard with TM Rei for Plaintiff

Mr DM Hill for 3rd Defendant

Mrs FT Walli for 1st & 2nd Defendant

25 May 1995

SAWONG AJ: By an OriginaSummons, the the Plaintiff asks for the following orders:

1. Imterite Incutloy erranentanent injunctions restraining the defendants from;

(i) using, licensinterferith oith orrwiseing wn anyer whver the 4the 40 MHz0 MHz of t of the Adhe Advancevanced Mobd Mobile Phone System (“AMPS”) A and B Radio Spectrum between reque of 8 and 845Mhz for Base Base StatiStationation receive, and between the frequencies of 870 MHz and 890 MHz for Base Station transmit (“the fied frequency ranges”) which have been allocated by the State to the plaintiff; and

(ii) &#requiring them to ensure sure that the specified frequency range remain unencumbered and that Guard Bands be set up which would e thentiffperatobile phone network in the specified frequency ranges free free from inom interfeterferencerence from other systems, such guard bands to be outside the specified frequency ranges.

(iii) requiring them to do all such things as may be necessary to give full effect to the cellular licence granted to the plaintiff by the State.

On the 12 April 1995, I gd intutoryrs toplaintiff in terms similar toar to para paragraphgraphs (i)s (i) and (ii) referred to above in the originating summons. At that it became apparentarent that as preliminary pointed, questions of law relating to the validity and or power of the Minister to the licenses to the plaintiff, should be heard and deter, nedor to the hehe hehe hearing of the issues contained in the originating summons. Subsequently thties agreedgreed to pose questions of Law to be argued before the Court. This den is lation to uee quee questionstions of law directed and filed. The questionlaw that need need to be determined are in the following te/p>

1. Hvs a alidenfd ceabre lice license pursuant uant to s. 5 or s. 6 of the Radio Communics Act (Ch 152) (as amended)nded) and the regulations made under the Act; to build, maintain, operate or otherwise work a cellular telephone network in Papua New Guinea been granted to the plaintiff by the second Defendant, and/or the third Defendant, the Posts & Telecommunication Corporation by the document annexed and marked “A”.

2. ـ A6d, if so, what peat period?

3. ټ H60; Has a valid and enfolceable licence pursuant to s. 5 or s. 6 of the Radio Communins AcNo 15 amenand tgulations made unde under ther the Act, Act, to b to build, maintain, operate or otherwise wise work a very small Aperture Terminal (VSAT) satellite network in PNG been granted to the plaintiff by the second Defendant and or the third Defendant, Posts and Telecommunication Corporation by the document annexed and marked “B”?

4. & And if so, fot what perioderiod.

Both parties presented written submissions and each of their counsel then amplified their written submissions durhe brral ssions

Teliminary questionstions of l of law araw arise bise becausecause the defendants say that the documents marked “A” and “B” respectively appended to the document containing the questions of law, are invalid. The defendants submit thes these documents are invalid as the Minister had no power under the Radio Communications Act (ch 152) (the “Act” ae Radio Communications Regulations (ch 152), (the “Regulations” to issue those hose documents to the plaintiff. Thentiff on the other hand hand says that these documents are valid documents and that the Minister in fact had the power under theand the Regulations thereunder to issue to it those documents.

I deal firstly with tith the Plaintiff’s submissions. The plaintiff’s submission is that the then Minister had the power under section 5 of the Act and regulation 6 of the regulations to issue the licences. In particular, counsel for the plaintiff submits that the licences that were issued to the plaintiff were special licences wwere issued pursuant to r to regulation 6 (2) of the Regulations and that in doing so, the ter had the power to do so.o so. It des that under the prov provisions of s. 6 of the Act, the clear and unequivocal discretion to grant licences, vests solely with the Board of Post & Telecommunication Corporation.

Mr Sheppard further submitted that the annexes “A” and “B” which are appended to the questions of laws are not “licences” within the meaning of that word as it is used in s. 6 of the Act. bmitted that those documencuments, were rather “special les” 221; within the meaning of that term as it is used in regulation 6 (2) and regulation 8 of the Regulations. ays there wo type types of s of licences created under s. 6 of the Regulations, namely a licencecence under paragraph 1 and special licencder paragraph 2 of regulation 6. He says that, accordingly, the term “special lial licence” as used in 6 (2) of the Regulation has a different meaning to the word “licence” as it is used in s. 6 of the Act. Accordingly, Mr Shd sayt that the licences thes that were issued to Plaintiff were granted under the “special licence” provisions. He thathese licenses were were special licences, issued pursuant to the powers of the Ministenister under Regulation 6 of the Regulatiohey are valid special licences. I accept the submission that under regulation 6 of thof the Regulations (ch 152) two types of licenses can be given, by the Minister, if he had the power and authority to do so. However, in ew that is nots not the issfore me. The issue isue is quite simply one of interpreting or construction of the powers contained in s. 6 of the Act as againe what appears to be powers contained in s 6 of the Regulatgulations.

On the other hand, the defendants submit that the Minister had no power to issue the licences. The defendants submit the the power to issue the licence vests with the Board of the 3rd Defendant, pursuant to s. 6 of the Act and not with the Minister. They further submit that as regulation 6 is inconsisteth the provisions of s. 6 o. 6 of the Act, the provisions of the regolations are invalid as being inconsistent with the provisif the Act. That being the case, theyisubmitted that, hat, as the regulations (ie; regulation 6) are invalid vis-à-vis thvisions of s. 6 of the Act, Act, the Minister had no power to issue the licences to the plaintiff.

The question of law arises because there is quite apparent that there is inconsistencies between s. 5 and s. 6 of the Act, and s. 6 of the Regulations. Tlevant sections and regulregulations for our purposes are as follows:

“S. 5. Subje section 4, the Mer hMer ha exclusive privilege of establishing, erecting, maintaining and operating stationations ands and apparatus for the purposes of:

On the other hand, s. 6 provides as follows:

“(1) oard,ccoraance ance with tith the regulations, may grant licenses:

(a) to establish,terecin man aain and operate stations and apparatus, for the purpose of transmitting and receiving telecommunications,p>

(2) ـ&#1 licenlicence shae shall be in such form, for such period and subject to such conditions as the Board thinks fit.”

“(1) ; Licences ices ices in sucn such forms as are approved by the Minister may be granted by the Minister in respect of the classes of stations specified in schedule 1.

(2) ټ&#Specicences nces ices in suin such forms as are approved by the Minister may be granted by the Minister in respect of:

(a)ټ&##160; stations of a class not siecified in schedule 1; or stations in resperespect ofct of which, in the opinion of the Minister, a licence to which Subsection (1) applies would be inappropriate.”

And so it is obvious, that section 5 of the Act, gives the Minister the exclusive privilege of establishing, erecting or maintaining and operating stations and apparatus for transmitting and receiving radio communications.

However, s. 6 of the Act, provides that the Board, (ie; the Board of PTC) in accordance with the regulations, may grant licences to establish, erect, maintain and operate stations and apparatus for the purposes of transmitting and receiving radio communications. The licence is to be in such form and for such period and on such conditions as the Board thinks fit.

The Defendants submits that, because the regulation 6 is inconsistent with s. 6 ofAct, the Court should construe that the word “Ministenister” in regulation 6 should be construed to be replaced by the word “the Board”. I do not think I can do that because that would amount to this court usurping the role of some other authority.

I do not accept the submission put by the plaintiff’s counsel that the licenses issued to the plaf were “special licenlicenses” pursuant to regulation 6 of the Regulations. I am ofview, that the plai plaintiff is asking the court to give meaning to provisions, which cannot be given the meaning as suggested to by Mr Sheppard. To inte the lation as prop proposed by Mr Sheppard is to interpretrpret the legislation contrary to well established principles of statutoryrpretation and construction.

With great respect, I do not think it is necessary to g to go out of PNG to find an aid to interpret points of law that has been posed in this case, for the simple reason that the authorities cited are not binding upon this court. However, I bear in mhat that they are of some persuasive value.

I am of the view that one must start with the Constitution of Papua New Guinea. Section 10 of the Constitution of PNG establishes how the written laws of Papua New Guinea are to be constructed.

Section 10 of the Constitution of Papua New Guinea reads as follows:

“Construction of en Laws

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

(a) ҈& In any any case -ase - this Constitution; and

(b) ـ In the the case of Acts of Parliament releorganic laws; and

(c) ; In the case op adoptedoptedopted laws laws or subordinate legislative enactmenthe or lawsthe lawe laws by or under which they were enactedacted or m 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 to the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.”

Thus it is clear in my view that the regulations are subject to the laws by or under which they were enacted or made. In other words, in ew a re a regulation or regulations made pursuant to Act of Parliament, are to be read subject to the provisions of an enabling Act and not visa-versa. InPty LThe State [1986] PN6] PNGLR 167, the late Chief Justicustice, Sir Buri Kidu, said at 178:

“When an Act of Parliamenhorises an authority to make regulations or rules of bylaws then the authority must act witt within the powers given to it. If es beyond those powers wers then it exercises powers that are not given to it by the relevant Act of Parliament. The Conston ofa New Guinea inea says this in s. 10 thereof...”

The authorities sighted hted by the defendants all go to support toposition that the regulations cannot enlarge the power of the Minister enabling to issue lsue licenses when the Act does not give that power to him but to some other authority such as the Board of the 3rd defendant.

The cases cited which supported the proposition by the defendants are: NTN Pty Ltd and NBN Ltd v The State [1986] PNGLR 167; Kehi v Theodore [1978] PNGLR 217; Price v West London Investment Building Society Ltd [1964] 20 ER 318, at 322. Halsbury’s Lf Englanngland, 4th edition, vol. 44 para. 1001 fn. 5. It is qulear from the auth authorities cited and the principles of law embodied in those authes that thulatiolations cannot enlarge the power of the Mine Minister when the provisions of the Act do not give him that power to issue les. Thus the subordinate legislation may be ultra vires or outside the scope of, the the enabling power or not authorised by it because the provision by which the power is conferred is, in that respect, ultra vires the enabling power, on which it in turn depends. (See Halbury’s of Enof England, 4th ed. Vol 44, para.1001.)

Thus, a regulation may be invalid as it is inconsistent with the provisions of the enabling Act. To the exthat that particurticular regulation is invalid, it follows that whatever power is contained in that particular regulation, is non existent so that, any purported power contained in that regulacannot be exercised, and ifnd if it is exercised, that particular act maybe declared to be invalid.

In Telepage Pty Ltd v Post & Telecommunications Corporation (Unreported Judgment No N605) Kapi Dep CJ considered this particular issue. In that His Honour considonsidered, inter alia, the question of the invalidity of the Radio Communications Regulations (Ch 152). laintn that case sought, iht, inter alia, a declaration that whole of the provisions of thef the Radio Communications Regulations are and of no effect by reason of the provisions of Post & Telecommunication Corporation (ion (Consequential Amendments) Act 1982 (No 7 of 1982). Alternativele Plaintiffff’s counsel in that case submitted that, if the whole of the regulations are not void and of no effect, then the various sections of the Regulations should be declared to be void and of no effect. His Honour said, at p. 34:

“The Radio Communications regulations (Ch 152) were made in accordance with s. 14 of the Radio Communications Act (Ch 152). Uthis provision, the Head Head of State acting on advice makes regulations. These regulations wequireduired amongst other things for the purposes of enabling the Minister to grant licences under s. 6 of the Radio Communicatict. However, by creation of a Post & Telecommunication Corporation Act 1982, s. 6 s. 6 of the Radio Communications Act was amended by Post & Telecommunication Corporation (consequential amendments) Act 1982 (No 7 of 1982). In so far as it is rele sct, schedule 2 of this Act amended s. 6 (1) by substituting Minister for the Board. Under thindment, the BoardBoard of trporation is given the discretion to grant licenses. Section 5 of thio Communicmunicaunications Regulations (in my view the correference ought to have been the Act and not Regulations) (ns) (Ch 152), the Minister still retains the exclusive privilege of establg, erecting, maintaining, ong, operating stations and apparatus. When the Act amended s. 6 (1) of the Radio Communications Act, no further provision was made in relation to the then existing Radio Communications regulations (Ch 152). The provisions ing t regulregulations made reference to the Minister grantgranting licences, permits and other related matters. These have not been ed.”

Has the Consequential Act of 1982 repealed the Radio Communications RegulRegulations (Ch 152).

The law relating to repeal of regulations by virtue of repeal of the Acts which enables the regulations to be made can be found in the judgment of Lord Reading CJ in Watson v Vince [1916] 1KB 688 at 690. The issue was put by Lord Reading in these terms:

“Upon these facts a questions arises which has not been decided by any Court, namely, whether the repeal of an Act which enaa corporation to make bylaws, involving as it does to the rthe revocation of the power of the corporation to make them, has the effect of repealing bylaws already made under the power while it existed, or whether the bylaws remain in force notwithstanding the repeal of the statute under which they were made. The quests one of general eral importance, and argument on behalf of the defendant makes us regret that the respondent was not represented...it was said in Surtees v Elison (1):

‘It has beng established that when anen an Act of Parliament is repealed, it must be considered (except as to transactions passed and closed,) as if it had never existed. That is the general rule; and we must not destroy that, by indulging conjecture as to the intention of the legislature).’

To that passage it is only necessary to make one qualification, namely, that since that, Lord Brougham’s Acts Act (13 and 14 Vict. c. 21) and the Interpretation Act 1889, have been passed, and one must now bear the later Act in mind. It woullow that any bylaw ylaw made under a repealed statute ceases to have any validity unless the repealing Act contains some provision preserving the validity of the bylaw notwithstanding the repeal. Applying that principle to this case, it follows that the bylaws made under the Norwich Improvement Act, 1879, have no longer any validity and that the coion must be quashed.”

In the present case, Radio Communications Act has not beot been repealed but amended only in certain provisions. The power te regulations uons under which the Radio Communications Regulations were made is vested in the Head of State acting on advice under Section 14 of the Radio Communications Act. The rule makingr under Secr Section 14 of the Act has not been amended. That bthe case, there is n is no question of the repeal of the regula.&#160 There is ther amendment e the Act which is relevant to the powers oers of making regulations. Section 14 of the Act wandamended by Radio Comationndment Act 1983 (63 of 1983) by repealing as 14 ( 14 (C) of the Act. That is to say, say, the power given to the Head of State,ng on advice, can no longer make regulations prescribing thng the fees for any matter under the Act or the Regulations. This ha effe repealing anyg any regulations which prescribes a feea fee for such matters. Subject to this aent, the the regulations aill in force.

The next question which arises, is, whether, the regulations are inconinconsistent with the provisions of the Ac amended. That of course is req by t by the terms of s of s. 14 of the Act. After the Conseque Act wast was passed by the Parliament to amend the Act, no consequential amending regulations by Head of State acting on advice pursuant to s. 14 of the Act wacted to amend the Regulations. egulations as thes they stey stand is inconsistent with s. 6 of the Act, in that, s. 6 now vests the discretion to grant licenses in the Board of Telecommunication Corporation whereas under the Regulations, the discretion is still to be exercised by the Minister. To this extent, regulatwhis which purport to give the discretion to the Minister is inconsistent with s. 6 of the Act. Such provisions, therefore, are invalid. The power of the Boargrantgrant license und 6 of the Act is not affectffected”. (emphasis is mine)

I am of the view that the above passage accurately reflect truel position betweeetween the provisions of the Radio Communimmunications Act (ch 152) and the Radio Communications Regulations (ch 15260; I agree with what his Hhis Honor said.

The law as it stands today, is clear. The Radmmunication Regulatgulation (ch 152) has neither been amended nor repealed. When the Parliamented the the Consequential Act, the Head of State, acting onse, did not amend the regulations. Tnsequence thce then, in m in my view, is that regulations remained intact.

But the rtions, in particular regulaegulation 6, as it stands has not been repealed or amended. And because i not been repn repealed or amended, it is inconsistent with s 6 of the Act.

I therefore find that as regulation 6 of the Regulations is inconsistent withof the Act, it is to that extend invalid.

In case I se I am wrong on this point, I am of the view that s. 5 of the Act does not give any power to the Minister to grant licenses for the purposes set out in s. 6 of the Act. The power to grant licenses is vested with the Board of Post and Telecommunication Corporation pursuant to the provisions of s. 6 of the Act. In my view, are two separseparate and distinct powers created by s. 5 and s. 6 of the Act respectively. Se 5 of the Act confers errs eral power on the Minister to establish, erect, maintain and operate stations and apparatusratus for the purposes of Radio Communicat Section 5 of the Act does not give the power to the the Minister to grant licenses.

However, s. 6 of the Act is a specific provision which prescribes the power on the Board of PTC to issue licenses. Thus, I acceptsubmissions ions put forward by the defendants that where there is a conflict between the general provision and specific provisions in a statute, the specific pions prevail. In other words theral powe power cannotannot be exercised, to that, which is the subject of the specific power given to a specified authority. Isbury’s Laws of Engf England, 4th Edition, vol. 44 paragraph 875, this issue was put as follows:

“Whenever there is a general enactment in a statute which, if taken in its most comprehensive sense, would override a particular enactment in the same statute, the particular enactment must be operative, and the general enactment must be taken to effect on the other part of the statute to which it may properly apply. This is meree application tion of the maximum that general things do not delegate from special things.&#822>

I

In Anthony Hordern & Sons Ltd vs Amalgamated ing & Allied Trade Union of Australia [1932] HCA 9; (1932) 47 CLR 1, R 1, the High Court there considered the interpretation of the provisions e Commonwealth Conciliationation and Arbitration Act of Australia. For our purposes, that Act ined a specific pfic provision and a general provision. The leajudge of the Concilonciliation Arbitration Court made certain orders pursuant to the gl pow#160; On appeal to the High Court, the Court in t in that chat case held that the power of the court to grant preferences to unionist was limited by s. 40 of the Commonwealth Conciliation and Arbitration Act, and that the provisions of the award relating to prnces were invalid as nots not complying with the requirements of the specific section. Duffy CJDixon J said at 7:at 7:

#8220;When the legislator explicitly gives a power by a particular provision which prescribscribes the mode in which it shall be exer and the conditions and restrictions which must be observederved, it excludes the operation of general expression in the same instrument which might otherwise have been relied upon for the same power.”

In Leon Holdings Pty Ltd vs Australian Film Commission (1949) 141 CLR 672, at (678) Mason J said:

“It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power.”

I accept these principles of constructions and apply them to the present case. I am of the viet as s. 6 o. 6 of the Act give specific powers to the Board of Post & Telecommunication Corporation to issue licenses in the form, for the period and subject to such other qualification asBoard thinks fit. Sec; Section the Act does does not give the power to the Minister to issue licences.

In summary then, I am of the view that s. 5 of the Act is a general power given to the Minister, a power not relating to issuing of licenses. Ther to issue licenses is s is a specific power, which is vested on the Board of Post and Telecommunication Corporation (PTC) by v of s. 6 of the Act, which is a specific provision relating to issuing of licenses by the Bthe Board. In my view the Parliamentchad clearly and explicitly given the specific power of issuing licenses, to the Board of PTC by Section 6 of the Radio Communics Act (ch 152). Section 5 of th is in my v my view a general power, which is not subj subject to any limitations and qualifications. Section 5 of the Act, doe not give the Minister the power to issue licences. That beingcase, the generaeneral power cannot be exercised to do that which is the subject of the specific power. Thus, in this case, theralneral power set out in Sn 5 of the Act cannot be exercised to issue licenses, whichwhich is the subject of the specific power contained in s. 6 of the Act.I further find that regulation 6 of the Radio Communicatiocations Regulations (ch 152), is inconsistent with the provisions of s. 6 of the Radio Communications Act (ch 152). To the extent the said regd regulation is inconsistent with that of s. 6 o Act, it is invalid, and is of no force and effect.

>

It follows from what I have said that the questions of law that have posed, are answered as foll follows:

Questions 1 and 3 - No.

Questions 2 and 4 - Not necessary to answer.

Before, I finish, I would like to say something about the inaction of those powers who have the authority to correct this matter. In 1987, this Court in Telepage case said that the provisions of Radio Communications Regulations as it stood then, were, in consistent with s 6 of the Radio Communications Act (ch 152). Toextent that the regulatiulations which purported to give the discretion to the Minister was inconsistent with s 6 of the Act, those regulations were invalid.

I have also come to the samclusion today and I urge thge those authorities who are responsible for enacting the regulations, to make the necessary changes to the Radio Communications Regulations (ch 152) so that these inconsistencies do not arise in the future, and that the provisions of both the Regulations and the Act are consistent with each other.

Lawyers for the Plaintiff: TM Rei

Lawyers he 1the 1st and 2nd Defendants: Solicitor General

Lawyers for the 3rd Defendant: Allansur Robinson

&