Ipatas v Balakau [1996] PGNC 106; N1408 (26 January 1996)

N1408

PAPUA NEW GUINEA
[In The National Court Of Justice]

OS 13 OF 1996

IPATAS AND 11 OTHERS
Plaintiffs

- V -

JEFFREY BALAKAU
First Defendant

ENGA INTERIM PROVINCIAL GOVERNMENT
Second Defendant

AINU NEAKSON
Third Defendant

GRAHAM TAYLOR
Fourth Defendant

DAVID UNAGI
Fifth Defendant

Mount Hagen: Woods J
26 January 1996

Parliament - Provincial Assembly - passage of appropriation bill - non-justiciability of procedures under standing orders - role of court in money bills.

M. TAMUTAI for the Plaintiffs
P. POTANE for the first four Defendants

26 January 1996

WOODS J: This is an application for orders restraining the Minister for Provincial Affairs from formally approving the Enga Appropriation Act of 1996 and for orders restraining action under that budget.

As this involves the appropriation and expenditure of monies by the State one must start by considering the provisions in the Constitution of the Independent State of Papua New Guinea. The appropriation and expenditure of monies by the Government is covered by the Constitution Section 209. Parliamentary Responsibility.

(1) Notwithstanding anything in this Constitution, the raising and expenditure of finance by the National Government, including the imposition of taxation and the raising of loans, is subject to authorisation and control by the Parliament, and shall be regulated by an Act of parliament.

There is no similar provision in the Organic Law on Provincial Governments. There is no reference to the requirement for a specific appropriation act by Provinces. The financial matters in the Provinces are covered by the following Sections of the Organic Law.

S. 82 Outline of Provincial Government and Local-Level Government Finances.

S.91 Types of Provincial and Local -Level Government Grants.

S.105 Financial Responsibility.

It is clear that Provincial Government expenditure is covered by the National Government appropriations. The National Government appropriates the general monies for the Provinces so the monies allocated to the Provinces have been validly appropriated. Then the National Government is responsible through the Minister for Provincial Affairs and the Minister for Finance for the budgetary organisation of the Provinces. They would require Provinces to pass budgets as to how they propose the allocation of the monies granted to the Province. There is then the provision for the Minister to have to approve the Budget.

Of course one must not overlook the fact the Provinces do have limited powers to raise some provincial taxes and licence fees as provided for by the Organic Law but of course any such must still be considered and approved by the National Minister. And of course if a Province attempts to raise taxes in areas not provided for then there are appropriate actions that can be taken.

This is all a matter of Executive Government. How the nation's monies are spent is a matter for the Parliament and the National Executive Council and is not matter that the Courts can interfere in. I have been referred to no authorities which would support any interference by the Courts in the passage of budgetary appropriations.

The checks and balances for these Provincial raising of taxes and the spending of National Government grants is always covered by the role of the Minister for Provincial Affairs and the National Executive Council and finally by the National Parliament through the provisions in the Organic Law for the regulation and control over the Provinces, for example through the suspension provisions.

It is also submitted that the procedure whereby the Enga Provincial Assembly considered the Budget was irregular and unfair to the Members of the Assembly. It is submitted that the vote on the budget was taken contrary to the standing orders.

The procedures followed by Parliament and therefore an Assembly in how votes are taken is non justiciable. This is not a matter of the Assembly doing matters it had no power to do, it is purely a question of the following of their own internal procedures. This Court is not going to go behind the certificate of the minutes of the assembly’s internal procedures. This was clearly stated in the case Mopio v The Speaker of the National Parliament [1977] PNGLR 420. There have been more recent cases which have pointed out the distinction between non justiciable procedural matters and compliance with constitutional provisions in for example no-confidence motions and suspension of members such as in the case Joshua & Anor v Meya & Os [1988-89] PNGLR 188.

Further I am being asked to interfere or make orders in a matter which is still within the power of the Minister. The Minister has already raised certain objections and queries to the Budget and surely there is still power for him and if necessary the National Parliament to undertake a supervisory role. Such a role as I have already referred to above.

I find that this is not a matter in which this court should make the orders sought. I dismiss the application.