NTN Pty Ltd and NBN Ltd, The State v [1992] PGSC 11; [1992] PNGLR 1 (7 April 1987)

1992

Papua New Guinea Law Reports - 1992

[1992] PNGLR 1 - The State v NTN Pty Ltd and NBN Ltd 

[1992] PNGLR 1

SC323

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE STATE

V

NTN PTY LIMITED AND NBN LIMITED

Kidu CJ Kapi DCJ Amet Woods Barnett JJ

7 April 1987

CONSTITUTIONALITY - Invalidating legislation - Qualifying qualified rights - Manner and form requirements - Constitution ss 38 and 46.

FUNDAMENTAL RIGHTS - Freedom of expression - Law regulating or restricting - Compliance with manner and form requirements.

LEGISLATION - Regulating broadcasting service - Licence to broadcast granted under Radiocommunications Act - Effect of subsequent statute prohibiting television broadcast - Statute impacting on freedom of expression - Constitutional requirement for validity of legislation.

ONUS OF PROOF - No general presumption of constitutionality - Onus on party relying on validity of legislation to show compliance with manner and form requirements.

RETROSPECTIVE LEGISLATION - Restricting qualified rights - Non compliance with Constitutional requirements - Effect of.

WORDS AND PHRASES - 'Public interest' - 'Public welfare' - 'Reasonably necessary'.

Facts

By a contract dated 25 May 1985 between the applicants and the State an agreement was reached for the former to establish a commercial television station in Papua New Guinea. In accordance with the contract, the applicants established a television station and other necessary requirements for broadcasting of television, and obtained a licence for the venture. In accordance with clause 4.2 of the agreement they would have commenced broadcasting on or about 14 July 1986. There was however a change of government which on 10 July 1986, passed and brought into force the Radiocommunications (Television) Regulation 1986, which had the effect of prohibiting broadcast of television until after 31 January 1988. This resulted in litigation between the parties in the National Court. The Court held that the regulations were ultra vires the parent act, for whilst the latter gave regulatory powers, the regulations prohibited television broadcast (see NTN Pty Ltd & NBN Ltd v The State [1986] PNGLR 167). On the same day as the judgment, Parliament passed legislation, Television (Prohibition and Control) Act 1986, which prohibited television broadcast until 31 January 1988. The applicant then sought a declaration that s 3 of the Act, and indeed the whole Act, was inconsistent with the terms of ss 46 and 38 of the Constitution and, therefore, should be declared invalid and of no effect.

Sections 38 and 46 of the Constitution read as follows:

N1>"38.    General qualifications on qualified rights

N1>(1)      For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that:

N2>(a)      regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary:

(i)       taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in:

(A)     defence; or

(B)      public safety; or

(C)     public order; or

(D)     public welfare; or

(E)      public health (including animal and plant health); or

(F)      the protection of children and persons under disability (whether legal or practical); or

(G)     the development of under-privileged or less advanced groups or areas; or

(ii)      in order to protect the exercise of the rights and freedoms of others; or

N2>(b)      makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,

to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

N1>(2)      For the purposes of Subsection (1), a law must:

N2>(a)      be expressed to be a law that is made for that purpose; and

N2>(b)      specify the right or freedom that it regulates or restricts; and

N2>(c)      be made, and certified by the Speaker in his certificate under Section 110 (Certification as to making of laws) to have been made, by an absolute majority.

N1>(3)      The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity."

N1>"46.    Freedom of expression

N2>(1)      Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by a law:

(a)      that imposes reasonable restrictions on public office-holders; or

(b)      that imposes restrictions on non-citizens; or

(c)      that complies with Section 38 (General qualifications on qualified rights).

N2>(2)      In Subsection (1), "freedom of expression and publication" includes:

(a)      freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and

(b)      freedom of the press and other mass communications media.

N2>(3)      Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations:

(a)      for the communication of ideas and information; and

(b)      to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,

and generally for enabling and encouraging freedom of expression."

Issues

N1>1.       Whether the State owned the electromagnetic spectrum within the borders of Papua New Guinea and therefore the issue is one of the State controlling its property rather than one of impingement on a fundamental right.

N1>2.       Whether a law which regulates or restricts the right of freedom of expression should comply with s 38 of the Constitution, and upon whom the burden of proof rests.

Held

N1>1.       The electromagnetic spectrum is not vested in the State by any legislation.

N1>2.       Section 3 of the Television (Prohibition and Control) Act 1986 prohibited the right of the applicants to communicate ideas and information through the operation of the television station. This is a violation of the exercise of the right of freedom of publication and expression. The Act must therefore comply with s 38 of the Constitution.

N1>3.       The burden of showing that legislation has complied with s 38 of the Constitution is on the party relying on the validity of the legislation.

Cases Cited

Papua New Guinea Cases Cited:

Constitutional Reference No 1 of 1977 [1977] PNGLR 362

NTN Pty Ltd v The State [1986] PNGLR 167

SCR No 2 of 1982; Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214

Other Cases Cited:

Attorney-General v Antigua Times Ltd [1976] AC 16

AG of The Gambia v Jobe [1984] 1 AC 689

Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319

Re New Brunswick Broadcasting Co Ltd (1984) 13 DLR (4th) 77

Societe United Docks v Government of Mauritius [1985] AC 585

Editor's Note

This judgment was not published in the PNGLR. The editors are of the view that it is authoritative on important points of law.

Counsel

R O'Regan QC, I Molloy, for the applicant

G Beaumont QC, O Emos, for the respondent

7 April 1987

KIDU CJ: The decision of the court was announced on January 1987 and was that the Television (Prohibition and Control) Act 1986 was unconstitutional, in that it contravened s 38(2) of the Constitution.

We now publish our reasons.

The Deputy Chief Justice and Barnett J have set out in their judgments the background to this application as well as the submissions advanced by the parties. It is not my intention to traverse the same ground.

PRELIMINARY POINT

As a preliminary point the State argued that the electromagnetic spectrum (or the airwaves) within the borders of Papua New Guinea belong to it (the State) and no person or corporate body has the right to use them without its permission.

Consequently, although the applicants had been granted licences to use the electromagnetic spectrum under the Radiocommunications Act Ch 152, the Television (Prohibition and Control) Act 1986 prohibited the use of the medium until after 31 January 1988 and the State had every right to do this in respect of its property. This, the argument continued, had nothing to do with the right guaranteed by s 46 of the Constitution.

The State's case on this point was based on the Radiocommunications Act. But nowhere in this Act is there to be found a statement that the electromagnetic spectrum belongs to the State. Its preamble includes the following statement:

"Being an Act relating to radio communications in Papua New Guinea:

(a)      to authorize the Government to establish, maintain and operate radio communications stations; ..."

Now if the State owned the resource in question there would be little or no need at all to have an Act of Parliament to authorize the State to establish, maintain and operate radio communications. Such an Act would merely set up the controlling or regulating machinery.

Section 5 of the Act was the provision relied on heavily by the State to press this property question. It says as follows:

"Subject to s 4, the Minister has the exclusive privilege of establishing, erecting, maintaining and operating stations and apparatus for the purposes of:

(a)      transmitting radio communications to, and receiving radio communications from, any place, vehicle, vessel or aircraft in the country; and

(b)      transmitting radio communications to, and receiving radio communications from, any space station or place, vessel or aircraft outside the country."

Careful reading shows that s 5 is not a provision which vests the ownership of the electromagnetic spectrum in the State.

Counsel for the State mentioned no other law which vests the ownership of the electromagnetic spectrum in the State. If there is such other law in existence it was their responsibility to bring it to the notice of the court. I am, therefore, not satisfied that the State has established its ownership of the resource in question.

Although there is no legislation or law in this country which vests the ownership of the resource in the State, I consider that there can be no objection to the State controlling and regulating its use. If there were no controls or regulations, chaos would reign as television stations, without regulation, could use any frequency and at whatever power level they wished. It is, therefore, in the public interest to have proper regulation and control of the spectrum.

I would dismiss the property argument put up by the State as it has no proper legislative or legal basis.

As to the merits of the application I am in complete agreement with the Deputy Chief Justice.

KAPI DCJ: This is an application before the Supreme Court at first instance. It is an application by way of an enforcement of a fundamental right under s 57 of the Constitution. The right which is sought to be enforced is the right to freedom of expression under s 46 of the Constitution, more specifically, right to freedom of mass communication media, that is the right to communicate ideas and information through television.

The first applicant NTN Pty Ltd is a company incorporated in Papua New Guinea. The second applicant is a company incorporated in Newcastle, New South Wales, Australia, and is the corporate manager of NTN.

By a contract dated 25 May 1985, an agreement was reached between the applicants and the State for the establishment of a commercial television station in Papua New Guinea. This contract was reached with the previous Government. In accordance with this contract, the applicants established a television station and other necessary requirements for broadcasting of television, including licence for broadcast. In accordance with clause 4.2 of this agreement, the applicants would have commenced broadcast on about 14 July 1986. However, on 10 July 1986, Radiocommunications (Television) Regulation 1986 (SI No 7 of 1986) came into force. This had the effect of prohibiting broadcast of television until after 31 January 1988. This resulted in litigation between the parties before the National Court. In the National Court, two major issues emerged. The first related to whether or not the applicants would be in breach of the agreement, if it commenced broadcasting of television in absence of regulatory legislation. The second issue related to whether or not Radiocommunications (Television) Regulation 1986 was void. The National Court ruled in favour of the applicants on 21 August 1986. See NTN Pty Ltd v The State [1986] PNGLR 167. This ruling gave no comfort to the applicants because on the same date, a new Act which was passed by the National Parliament, Television (Prohibition & Control) Act 1986, came into force. Under s 3 of the Act, the applicants could not exercise the right to broadcast television until 31 January 1988. By this application, the applicants seek a declaration that s 3 of the Act and indeed the whole of the Act is inconsistent with the terms of s 46 and s 38 of the Constitution and, therefore, should be declared invalid and of no effect. That is the substance of the cause of action before this Court.

It has not been disputed by counsel for the State that the applicants, which are corporations, come within the definition of "every person" under s 46(1) of the Constitution. This view must be correct. See ss 22 and 34 of the Constitution. See also Attorney-General v Antigua Times Limited [1976] AC 16, Societe United Docks v Government of Mauritius [1985] 1 AC 585.

ONUS OF PROOF

It is clear that the right to freedom of expression may be "regulated" or "restricted" by a law, but that law must comply with s 38 of the Constitution. The central issue raised in this case relates to the question of whether or not the Television (Prohibition and Control) Act 1986 complies with s 38. Where this issue arises, the burden of showing that the legislation complies with s 38 of the Constitution is on the party relying on its validity. This is clear from the terms of s 38(3) of the Constitution. However, it is not sufficient for a party impugning the legislation to simply make an allegation that his right is affected by legislation. He must demonstrate that there is a prima facie case that the right is affected. In this regard, I adopt what I stated in SCR No 2 of 1982; Re Organic Law On National Elections (Amendment) Act 1981 [1982] PNGLR 214. The nature of evidence required to establish a prima facie case depends on the manner in which the fundamental right is said to be affected by the legislation.

In the present case, the applicants argue that they have all the necessary requirements in law to freely exercise the fundamental right to communicate ideas and information through broadcasting of television. They argue that s 3 of the Television (Prohibition and Control) Act 1986 affects the right by prohibiting the operation of a television station. The State on the other hand, argues that s 3 does not deal with the right guaranteed by s46. They argue that it deals with a scheme of licence to use airspace for broadcasting. Counsel for the State relies heavily on the property argument from a passage in a Canadian Supreme Court decision Re New Brunswick Broadcasting Company Ltd and Canadian Radio Television and Telecommunication Commission (1984) 13 DLR (4th) 77 at 89:

"In my opinion, the argument confuses the freedom guaranteed by the charter with the right to the use of property and is not sustainable. The freedom guaranteed by the Charter is a freedom to express and communicate ideas without restraint, whether orally or in print or by other means of communication. It is not a freedom to use someone else's property to do so. It gives no right to anyone to use someone else's land or platform to make a speech or someone else's printing press to publish his ideas. It gives no right to anyone to enter and use a public building for such purposes. And it gives no right to anyone to use the radio frequencies which, before the enactment of the Charter, had been declared by the Parliament to be and had become public property and subject to the licencing and other provisions of the Broadcasting Act. The appellant's freedom to broadcast whether it wishes to communicate would not be denied by the refusal of the licence to operate a broadcasting undertaking. It would have the same freedom as anyone else to air its information by purchasing time on a licenced station. Nor does the Charter confer on the rest of the public a right to a broadcasting service to be provided by the appellant. Moreover, since the freedom guaranteed by para 2(b) does not include a right for anyone to use the property of another or public property, the use of which was subject to and governed by the provisions of the statutes, there is, in my opinion, no occasion or need to resort to s 1 of the Charter to justify the licencing system established by the Broadcasting Act."

It is argued by the State that s 3 deals with the question of licence to use property, airspace and frequencies, the right of freedom of expression is not affected at all. If this argument was accepted, I would have to conclude that the applicants failed to establish a prima facie case. That, of course, would be the end of the matter.

Without expressing any view on the correctness or otherwise of the decision of the Supreme Court of Canada on the property argument, the first question to be determined on this issue is the subject matter with which s 3 of the Act is concerned. In the New Brunswick case, there is no doubt that the appropriate authority limited the renewal of a broadcasting licence to a shorter period. In the present case, counsel for the State submitted that s 3 of the Act is to be read together with s 4 in the sense that it is part of the licencing scheme.

Under the Radiocommunications Act, the applicants have been granted four different types of licences to operate the television station. There was some suggestion by counsel for the State that this Act does not apply to television broadcast because the words "television station" have not been defined under the Act. I cannot accept this argument. The Act is widely worded to include television broadcast. For example, the term "broadcasting service" is defined to include television transmission. This Act sets out a scheme of licencing to control all forms of broadcasting services. Under this scheme, the applicants have been granted four different licences for broadcast. All these licences were granted by the Board of Post & Telecommunications Corporation under s 6 of the Radiocommunications Act Ch 152. If the property argument was correct, the applicants have been given permission to use such property. Licence to use this property does not expire until 29 May 1987. Having been licenced to use this property, the applicants are entitled to exercise the right guaranteed by s 46 of the Constitution.

It is interesting to note that the right to use the property given under the licence under s 6 of the Act may be restricted or prohibited by the Minister under s 7 of the Act. This has not been done in this case.

What then is the effect of s 3 of the Television (Prohibition and Control) Act 1986?

It is in the following terms:

"PROHIBITION ON OPERATION OF A TELEVISION STATION PRIOR TO 31 JANUARY 1988.

N2>(1)      A person who operates a television station in Papua New Guinea before 31 January 1988 is guilty of an offence.

Penalty: A fine not exceeding K1,000,000.

Default penalty: A fine not exceeding K500,000.

N2>2)       It shall not be a defence to a prosecution under subs 1 that a person:

a)       holds a licence under any other Act; or

b)       has entered into an agreement with the State, authorising the operation of a television station."

Counsel for the State has maintained his submission that s 3 of the Act deals with the use of property and, therefore, deals with the question of a licencing system to be read together with s 4 of the Act. Herein lies the weakness of the State argument. I reject this argument. The analysis of s 3 reveals:

N2>(a)      It prescribes a criminal offence and a penalty. It does not deal with a licencing scheme. However, in effect, it affects the right of the applicants to the use of the property granted by the licence.

N2>(b)      It acknowledges a licencing scheme under other legislation, and

N2>(c)      It acknowledges an agreement reached with the State.

Section 3 does not deal with the question of revocation or even variation of the use of a licence. There can be no question that the licence granted under the Radiocommunications Act gives the applicant the right to use the property. That is the significant distinguishing feature of this case with the New Brunswick case. Section 3 under our Act has done something different - it has prohibited the right of the applicants to communicate ideas and information through the operation of the television station. If this is not a direct affront to the exercise of the freedom of expression, then I don't know what is.

I uphold the submissions by counsel for the applicants that they are entitled by virtue of licences to use the property under the law and that s 3 of the Act prevents them from exercising the fundamental right guaranteed under s 46 of the Constitution. I am satisfied that the applicants have shown a prima facie case that their fundamental right has been affected by this Act.

I must now consider whether or not the Act complies with s 38 of the Constitution. As I have pointed out before, the onus is on the State to prove that the Act comes within the permissible limits.

Before I discuss the contested matter of interpretation of the provisions of the Constitution, it is appropriate at this point to emphasise the significance of the onus on the State. Our Constitution in this regard is unique. In other jurisdictions, the question of onus has been left to the courts to decide. The Constitution has taken it upon itself to express which of the parties has the onus of proving that an Act is valid. This in itself is an indication by the Constitution of the significance given to the provisions relating to fundamental rights. The legislature, which may pass laws that regulate or restrict a right, must explain clearly the reasons for such regulation and restriction. This is made absolutely clear by the terms of s 38(2) of the Constitution. It is in this context that the provisions of the Constitution relating to fundamental rights must be interpreted with a liberal approach to ensure protection of fundamental rights. See also sch 1.5 of the Constitution. The courts in other jurisdictions have also adopted the same approach. See Attorney General of The Gambia v Momodou Jobe [1984] 1 AC 689, Minister for Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319.

Formal requirements under s 38(2) of the Constitution.

The relevant parts of s 38 are as follows:

N2>"38(1) For the purposes of this subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with subsection (2) ..."

N2>"38(2) For the purposes of subsection (1), a law must:

(a)      be expressed to be a law that is made for that purpose; and

(b)      specify the right or freedom that it regulates or restricts; and

(c)      be made and certified by the speaker in his certificate under s 110 (Certification as to making of laws) to have been made, by an absolute majority."

It was submitted by counsel for the applicants that a failure to comply with any of the requirements under s 38(2) would render an Act invalid. Counsel for the State conceded this and in my view quite correctly.

The requirement under s 38(2) (a) is in dispute between the parties. The question is whether the Television (Prohibition and Control) Act 1986 has been "expressed to be a law that is made for that purpose". What is the purpose that must be expressed? The meaning of the words "that purpose" is to be interpreted in the light of the whole section. Section 38(1) of the Constitution sets out the purposes for which a law may be made when regulating or restricting a right. A law may be made for anyone of three different purposes:

N2>1)       To give effect to public interest in defence, public safety, public order, etc. Section 38(1)(a)(i).

N2>2)       To protect the exercise of the rights and freedoms of others. Section 38(1)(a)(ii).

N2>3)       To make reasonable provisions for cases where the exercise of one such right may conflict with the exercise of another. Section 38(1)(b).

For the purpose of this provision, the Act must set out clearly the particular purpose for which the law is made. It is not sufficient for purposes of this provision to simply say that the Act is to regulate or restrict a fundamental right. That would not be compliance with s 38(2) of the Constitution.

A good illustration of compliance with s 38(2) (a) appears in the Vagrancy Act ch 268. The preamble to the Act reads:

"Being an Act to regulate or restrict the right or freedom referred to in subdivision III.3.c of the Constitution namely the right to freedom of movement conferred by s 52 of the Constitution for the purpose of giving effect to the public interest in public order and public welfare taking into account the National Goals and Directive Principles and the Basic Social Obligations and in particular the following directive principles and social obligations:

a)       Integral human development; and

b)       Traditional villages and communities to remain as viable units in Papua New Guinea society; and

c)       Each person to work according to his talents in socially useful employment; and

d)       Each person to respect the rights and freedoms of others ..."

The Act in question provides as follows in s 1(1):

"This Act to the extent that it regulates or restricts a right of freedom referred to in division III.3.c (Qualified Rights) of the Constitution, namely the right to freedom of expression conferred by s 46 of the Constitution, is a law that is made for that purpose."

While the section specifies the right which it restricts, it does not go on to explain or to express the purpose why such a right should be restricted. The words "is a law that is made for the purpose" within the context of s 1, simply means the purpose or the reason for which the law is to restrict the right of freedom of expression. The section falls short of setting out the purpose for restricting the right as set out in the case of the Vagrancy Act. The omission of this is fatal to the State's case. For this formal defect, the whole Act is invalid and, therefore, of no effect.

On this ruling, it is not necessary to deal with all the other issues. However, there are important issues that have been fully argued, I intend to make obiter dicta remarks concerning them.

Section 46 - "Regulated" and "Restricted"

It is clear from the terms of s 46 of the Constitution that the freedom of expression may be "regulated" or "restricted" by a law.

"REGULATED"

This has been interpreted in the SCR No 2 of 1982 - Re Organic Law [1982] PNGLR 214. I adopt what I said in that case. It is clear that prohibition does not come within the meaning of "regulation".

"RESTRICTED"

It was submitted by counsel for the applicants, in effect, that what I said in relation to the term "regulated" in a SCR No 2 of 1982 should also govern the meaning of the word "restricted". On the other hand, counsel for the State submitted that the words "regulated' and "restricted" should be given distinct meanings. He submitted that the Court should adopt the obiter dicta remarks by Kearney Dep. CJ in SCR No 2 of 1982 at p 225. With respect, I would adopt the interpretation given by Kearney Dep. CJ in that the word "restricted" may extend to prohibition. In coming to this conclusion, I have borne in mind that a restriction which amounts to prohibition may be necessary to give effect to the public interest in defence, public safety, etc. Such a restriction takes into account the rights and freedoms of others, s 32(2)(a) of the Constitution. The fact that s 3 is prohibitive is permissible by the word "restriction" in s 38(1)(a) and "restricted" under s 46(1) of the Constitution.

Is the restriction imposed by the Act "Necessary:

N2>(i)       taking account of the National Goals and Directive Principles and the Basic Social Obligations for the purpose for giving effect to the interest in:

(d)      public welfare ... to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind?"

Several issues arise for consideration. The State must satisfy the court that: (1) the restriction by the Act is necessary for the purpose of giving effect to the public interest in public welfare. For the purposes of discussing this issue, I have assumed that the purpose of the Act was to give effect to the public interest in public welfare. (2) the Act is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

"NECESSARY"

The word "necessary" relates to s 38(1)(a)(i) - for the purpose of giving effect to the public interest in public welfare or s 38(1)(a)(ii) - in order to protect the exercise of the rights and freedoms of others. Section 38(1)(b) used the terminology "reasonable provision".

Is the Act "necessary" for the purpose of giving effect to the public interest in public welfare? The "public interest" relates to rights or interests of the community at large. "Public welfare" relates to the benefit or the good of the public. These terms speak for themselves, it is not necessary to give any further interpretation than given above. In the present case, the State argued that there are factors which give rise to a matter of public interest in the areas of public welfare. The main argument is that television is a sophisticated medium which has a dramatic and powerful impact on the people both individually and collectively. It is argued that the impact that is likely to have on the people includes:

N2>(a)      Impact of television on the cultures and languages of the people of Papua New Guinea;

N2>(b)      impact on the traditional ways of life;

N2>(c)      invasion of alien cultural values on the people of Papua New Guinea;

N2>(d)      a promotion of materialism in the minds of people through commercial television;

N2>(e)      the potential of television on education;

N2>(f)      the question of control of foreign ownership and control of television;

N2>(g)      use of foreign programmes, standards and censorship considerations.

Counsel for the applicants did not seriously contest, either in cross-examination of the State witnesses or submissions, that there was a question of public interest in public welfare. Having regard to the National Goals and Directive Principles and the Basic Social Obligations, I am of the view that matters raised by the State do raise a matter of "public interest" in "public welfare".

The question is, is the restriction by the Act necessary?

It would be proper in the light of the whole of s 38 to imply that what the section has in mind is "reasonably necessary". See the concept of "reasonableness" and "reasonably justifiable" in s 38.

I have already indicated that under s 46 of the Constitution, freedom of expression may be restricted. But that restriction is qualified by s 38 of the Constitution. Is the restriction necessary? The word "necessary" implies that fundamental rights should not be regulated or restricted if there is another way of effectively protecting the public interest. This is consistent with the spirit of the Constitution that the freedom should be enjoyed with the least amount of restriction. See s 32(1) of the Constitution. This is also apparent from the spirit of s 38 of the Constitution, in that rigid requirements are demands for laws which either "regulate" or "restrict" a fundamental right. It is therefore, proper to inquire whether there is an alternative way of protecting the public interest without unnecessarily restricting the enjoyment of a fundamental right.

Is it reasonably necessary to prohibit television for the purpose of protecting the public interest in public welfare? Whether or not it is reasonably necessary to prohibit the exercise of fundamental rights depends on the public welfare which the prohibition seeks to protect.

The evidence called by the State may be characterised into three basic reasons:

N2>(1)      Television would have adverse effects on the people through the types of programmes that may be broadcasted. For example, through commercial television, the people of Papua New Guinea may become materialistic.

N2>(2)      Television would destroy the cultures and languages of our people.

N2>(3)      The Government has not carried out any proper assessment of the introduction of television in Papua New Guinea.

A Commission of Inquiry has been set up to inquire into all these matters. It is argued that, for the reasons stated above, television has been prohibited until 31 January 1988 to protect the public interest and to allow the Government to inquire into the matter. As I understand the submissions by counsel for the applicants, they do not dispute that there are such dangers and that no proper inquiry has been made by the State on television. He submits that the evidence before the Court also shows that there are advantages and benefits to be gained from television, that television is not so evil as to require such restriction as is imposed by the Act. All the witnesses that were called by the State in cross-examination admitted that there are advantages and benefits in television. For example, Mr Jacob Simet of the Institute of Papua New Guinea Studies in his affidavit states that television can be used as a tool to achieve national integration and to develop national consciousness. Also, in para 8 of his affidavit, he states that there are benefits relating to education, current and formal entertainment and even the development of unity as a nation. As I understand counsel for the State, he does not contest that there are advantages and the benefits of television.

The question is not whether this is the right time to introduce television in Papua New Guinea. That cannot be an issue as far as s 46 of the Constitution is concerned. It guarantees the right to communicate ideas and information through mass media such as television. The question is whether it is necessary to completely prohibit television until 31 January 1988.

Let me examine the reasons advanced by the State.

THE ADVERSE EFFECTS OF TV ON THE PEOPLE

This would depend on the type and the contents of programmes that are presented. This is recognised in all countries all over the world. Measures are taken to protect the public. To a large extent, this is already protected by censorship laws in Papua New Guinea.

Counsel for the State attempted to argue that T.V. may have a different effect of a different nature, such as, affecting traditional working habits or making people materialistic by watching commercial advertising. No evidence has been called to prove this. In this country, we have had other forms of mass media such as newspapers, radio, film, videos, cable television as well as satellite television for some time. No evidence was led by the State to show the effect of these various forms of mass media on the people. These are matters which can be regulated. I am not convinced that this is a valid reason for prohibiting television.

TV WOULD DESTROY THE CULTURES AND LANGUAGES OF OUR PEOPLE

I fail to see how T.V. would destroy cultures and languages. I can appreciate the general effect on our people of introducing modern media, in the same way that everything else has done. That is inevitable in modern Papua New Guinea. Our culture is dynamic and it will develop from time to time. We cannot make it stand still. That is not to say that we should not preserve some of our culture. The T.V. industry may help to preserve some of our old traditions in documentaries for generations later. Radio has not destroyed our culture or languages. At least no evidence was called to prove this. If any aspect of T.V. can be found to be destructive to culture and language, it can be regulated. No evidence has been called to persuade me that this is a valid reason for prohibiting T.V.

NO PROPER ASSESSMENT IN INTRODUCTION OF TV

It seems to me that this is the basic reason for prohibiting T.V. Mr Kwarara, the Acting Minister for Telecommunications, made this quite clear: that no proper review of government policy was carried out by the previous Government before entering into a contract with the present applicants to introduce T.V. The present Government's view is to prohibit T.V. and then work out how it may regulate it. They want until 31 January 1988 to do this. I would reject this argument for the following reasons.

First, it is now 11 years since Independence, when the Constitution guaranteed this fundamental right. The authorities have had sufficient time in which to consider policy matters. Failure to do this, not only rests with the present Government but all governments since Independence. Their failure to do this is no valid reason to postpone the exercise of a fundamental right. I consider that interim measures can be drawn up to regulate broadcast of television. Indeed, the Minister for Telecommunications met with the officials of NTN to draw up regulations. I am not convinced that the Government with technical advice could not draw up interim standards. The project agreement would lay the basics for drawing up interim standards. I am not suggesting that they should adopt it. That could be improved to include other matters which are necessary in the public interest in public welfare. I gained the impression from the whole of the evidence that this has not been attempted by the Government.

I consider that the concern by the State is a proper one and on the balance of interests, the State would adequately protect the public by regulating the disadvantages of television. This would enable others to exercise the right to broadcast and the public to enjoy the advantages without doing any harm to anyone. I consider this to be a fair interpretation and application of the fundamental rights provisions.

For these reasons, I consider s 3 of the Act to be inconsistent and, therefore, void and of no effect.

I need not consider the question of severability of the section from the rest of the Act because, as I have held, the whole Act is void for non-compliance with s 38(2) of the Constitution.

REASONABLY JUSTIFIABLE IN A DEMOCRATIC SOCIETY

A law that is necessary does not necessarily mean that it is also reasonably justifiable in a democratic society. In fact, a law which is necessary for any purpose stated in s 38(1) is limited by the words "that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind".

What is reasonably justifiable in a democratic society is not a concrete or precise concept. It entails different policy and executive considerations. Traditionally, courts are kept out of this field. This is a new field of intrusion by the Constitution. The court is to be careful in saying what it is. I do not think it is a concept which can be precisely defined by the courts. There is no legal yardstick. What has been decided by courts can only be a guide as to the nature of this illusive principle. However, the fundamental thread which runs through all this is that it must have regard for a "proper respect for the rights and dignity of mankind". It is in this context that I adopt what I said in SCR No 2 of 1982; In Re Organic Law On National Elections [1982] PNGLR 214. I have one correction to make. After I discussed the proper principles, I stated that proper test was a subjective one. The test really is an objective one. What I should have said was the application of the proper test must be considered within the context of the subject matter or circumstances of each case.

In the present case, the applicants have established a television station with the necessary licences to broadcast. This includes employment of personnel. The means of earning a livelihood depends on the operation of the television station. Although the agreement was entered into with the previous Government, the present Minister for Communications held meetings with the officials of the applicant companies and indicated that regulations should be passed during 1986. At that time, indications were that they would eventually broadcast in 1986. The applicants were all set to broadcast when the Government introduced the Act which came into force on the very day of the broadcast. There is an element of unfairness and injustice in this. The manner in which television has been prohibited in the circumstances of this case has no proper respect for the rights of the applicants in establishing all the necessary facilities and the employment of personnel whose level depends on the operation of the television station. In a democratic society such as ours, the interest of everyone must be taken into account. If television is prohibited in the manner it has been done in this case, little regard is given to the applicants and the expense of establishing the station as well as the interest of those who are employed to operate the station. There is also a corresponding right of the public to receive the broadcast.

The appropriate solution to this would be to regulate broadcast of television in the manner I have described previously. This would take into account the interest of everyone in the society.

For these reasons, I find that this law is not reasonably justifiable in a democratic society and, therefore, void.

AMET J: I agree with the decisions of Kapi Dep. CJ and Barnett J that the Television (Prohibition and Control) Act 1986 does not satisfy the formal requirements of Constitution s 38(2)(a). It does not, in it's preamble, "express" the "purpose" for which it was necessary to "regulate or restrict" the right. Such a purpose may be any one or a number of "public interests" enumerated under s 38(1)(a)(i)(A-G) or (ii), which it was necessary to regulate or restrict the "right" to give effect to.

The formal defect of non-compliance with this requirement is, I agree, fatal to the respondent's case. The whole Act is, therefore, invalid as being ultra vires the Constitution and of no effect.

In relation to the requirements of s 38(1), I am in complete agreement with the judgment of Barnett J and have nothing further to add.

WOODS J: I agree with the reasoning of my brother Barnett J and whilst I find that the Television (Prohibition and Control) Act 1986 is a law which regulates and restricts the right to freedom of expression and publication and that the Act satisfies the substantive requirements of s 38(1) of the Constitution, I find that the Act does not satisfy the formal requirements of s 38(2) of the Constitution and is, therefore, ultra vires the Constitution and is invalid and of no effect.

BARNETT J: The first applicant in this application, NTN Pty Ltd, is registered in Papua New Guinea, and owns a television station and is the holder of a current licence to broadcast television transmission which was issued under the Radiocommunications Act Ch 152. The second applicant is a company incorporated in Australia and is the manager of NTN. They are both represented by the same counsel and, with regard to the constitutional issues raised, the interests of the two applicants are identical.

The respondent is the State of Papua New Guinea.

The circumstances of the previous dealings between the applicants and the respondent, which led the applicants to successfully challenge the validity of the Radiocommunications (Television) Regulation 1986 in the National Court, have been clearly set out in the judgment of the Deputy Chief Justice and need not be repeated here. Having succeeded in the National Court, the applicants intended to commence broadcasting television.

This application, which comes before the Supreme Court at first instance, arises from the fact that just as they were about to commence broadcasting television in Papua New Guinea, pursuant to their licence and in accordance with a project agreement with the previous Government, the present Government introduced a bill into the National Parliament which was promptly enacted as the Television (Prohibition and Control) Act 1986 and which prevented them from making television broadcasts. Sections 3 and 6 of the Act read as follows:

N2>"3.      PROHIBITION ON OPERATION OF A TELEVISION STATION PRIOR TO 31 JANUARY 1988

(1)      A person who operates a television station in Papua New Guinea before 31 January 1988 is guilty of an offence.

Penalty: A fine not exceeding K1,000,000.

Default Penalty: A fine not exceeding K500,000.

(2)      It shall not be a defence to a prosecution under subs (1), that a person:

a)       holds a licence under any other Act; or

b)       has entered into an Agreement with the State,

authorizing the operation of a television station."

N2>"6.      OFFENCE

(1)      A person who, after 31 January 1988, operates a television station:

(a)      without a valid licence under this Act; or

(b)      except in accordance with the conditions of a licence under this Act,

is guilty of an offence.

Penalty: A fine not exceeding K1,000,000.

Default Penalty: A fine not exceeding K500,000.

(2)      It shall not be a defence to a prosecution for an offence under subs (1) that a person:

(a)      holds a licence under any other Act; or

(b)      entered into an Agreement with the State,

authorizing the operation of a television station."

As a consequence of the enactment of this Act the applicants are forbidden to broadcast television before 31 January 1988. They seek a declaration that the Act violates their right to freedom of expression and publication guaranteed by s 46 of the Constitution which reads as follows:

N2>"46.    Free of expression

(1)      Every person has the right to freedom of expression and publication except to the extent that the exercise of that right is regulated or restricted by a law:

(a)      that imposes reasonable restrictions on public office holders; or

(b)      that imposes restrictions on non-citizens; or

(c)      that complies with s 38 (General qualifications on qualified rights).

(2)      In subs (1), "freedom of expression and publication" includes:

(a)      freedom to hold opinions, to receive ideas and information and to communicate ideas and information whether to the public generally or to a person or class of persons; and

(b)      freedom of the press and other mass communications media.

(3)      Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations:

(a)      for the communication of ideas and information; and

(b)      to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,

and generally for enabling and encouraging freedom of expression."

Section 46 creates a qualified right which can be regulated or restricted by a law of the type referred to in s 46(1)(a)(b) and (c). As far as the Television (Prohibition and Control) Act 1986 is concerned, to be valid in the circumstances in which it was enacted it must comply with s 38 of the Constitution which provides as follows:

N2>"38.    General qualifications on qualified rights

(1)      For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that:

(a)      regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary:

N5>(i)       taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in:

N6>(A)     defence; or

N6>(B)      public safety; or

N6>(C)     public order; or

N6>(D)     public welfare; or

N6>(E)      public health (including animal and plant health); or

N6>(F)      the protection of children and persons under disability (whether legal or practical); or

N6>(G)     the development of under-privileged or less advanced groups or areas; or

N5>(ii)      in order to protect the exercise of the rights and freedoms of others; or

(b)      makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another;

to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind."

In commencing the task of interpreting any of the substantive provisions of the Papua New Guinea Constitution it is necessary to first look at the Constitution as a whole. Although they are said to be non-justiciable, the National Goals and Directive Principles must be given effect wherever it is fairly possible to do so without violating the meaning of the words used.

Looking at the Constitution, its concepts are not dissimilar from many other constitutions which have been influenced by Western political experiences. The legal language too is familiar. Perhaps this is not surprising as the Deputy Chairman of the Constitutional Planning Committee was a Roman Catholic priest and its advisors were Western - trained lawyers and social scientists. It sets the rules for a democratic system of government of the "Westminster" type with the three basic governmental powers adequately separated and the basic rights cherished by Western liberal thinkers carefully protected, including the right to freedom of expression and publication.

This familiar type of constitution has, however, been enacted for a nation consisting of many, many different groups. There was a substantial input into it by the ordinary people during the extensive public consultations and, though they were laymen being advised by Western experts using Western legal language, the members of the Constitutional Planning Committee made a determined effort to try to express in laymen's language the principles and the spirit which were intended to enlighten the legal prose. They gave specific directions that courts and other governmental bodies interpreting the Constitution should ascertain and be guided by its spirit. These directions are found in the preamble and in various sections which provide guides to interpretation.

As was pointed out by Prentice CJ in Constitutional Reference No 1 of 1977 [1977] PNGLR 362 at pp 373:

"The Constitution itself provides many clear fingerposts to assist its interpreters. Among these are its requirements that:

(a)      all its provisions are to be given their fair and liberal meaning (Sch 1.5(1), (2));

(b)      all laws are to be interpreted so as to give effect to, or not derogate from, National Goals and Directive Principles - where possible (s 25);

(c)      all persons are entitled to certain defined basic rights and freedoms and the full protection of the law (National Goals and Directive Principles: 'Basic Rights (a)'; (s 37);

(d)      the debates on the Constitution and the reports of the Constitutional Planning Committee may be used in aid where relevant;

(e)      in interpreting the law the courts shall give paramount consideration to the dispensation of justice, s 158(2) - a provision to be considered in association with those relating to development of an underlying law (s 20: Sch 2.3, 2.4, 2.5) and to the principles of natural justice (s 59 (1))."

It is no spelling error that the last word of the first paragraph of the Preamble is "peoples". The first words of the Constitution sound the call of a nation of united people "WE THE PEOPLE OF PAPUA NEW GUINEA" but the root from which this Constitution has grown is:

"By authority of our inherent right as ancient, free and independent peoples."

The most unique and striking feature of this Constitution then is its Preamble. It sets out an imperative direction for all governmental bodies and all people to accept the diversified nature of the peoples of this country as its greatest strength. I interpret it as a direction to appreciate the underlying Melanesian principles common to those diverse peoples and, with the aid of the more recently introduced concepts of Christianity, to build upon those underlying Melanesian principles a unified nation respecting both the "dignity of the individual and community interdependence".

It is commonplace, to say that courts should endeavour to apply not only the letter of the law but also the spirit. This Constitution endeavours to raise this tired legal cliche to the position of a guiding principle. It firstly, in its Preamble, focuses attention on the spirit of the Constitution in phrases which almost glow with light. Then it directs all governmental bodies, especially this Supreme Court, to endeavour to interpret the letter of the written sections in a way which gives effect to, or at least is not inconsistent with, the spirit illuminated in the Preamble - notably in the National Goals and Directive Principles.

The application before the court has been argued as a conflict between the right to freedom of expression and publication set out in s 46, which the applicants seek to enforce, and one of the basic principles of the nation - "national identity, integrity and self respect", which the respondent State seeks to protect. It is a case then which raises issues of profound significance.

Freedom of expression and publication is declared by the Constitution to be one of the qualified rights of all persons. Section 46(2) defines it to include freedom to "... receive ideas and information and to communicate ideas and information". It also includes "freedom of the press and other mass communications media", such as television. Freedom of expression and publication may be "regulated or restricted" by a law which complies with s 38 and is "for the purpose of giving effect to the public interest in ... (inter alia) ... public welfare".

The basis of the applicants' case is, firstly, that the Television (Prohibition and Control) Act 1986 does more than "regulate or restrict" the freedom of expression and publication: that it prohibits it, so far as the broadcasting of television is concerned, for a period of 17 (now 14) months. Secondly, the applicants claim the Act does not satisfy the substantive requirements of s 38(1) because a ban for such a long time is neither "necessary" nor "reasonably justifiable in a democratic society".

Thirdly, the applicants challenge the Act as failing to satisfy the mandatory formal requirement of s 38(2) that it must express which of the seven heads of public interest it is the purpose of the Act to "give effect to".

The respondent State asserts that the ban, being only for a limited period of fourteen months, is not a prohibition or, even if it is, that it is nevertheless a justifiable restriction in the interest of public welfare. It asserts that the period of fourteen months is necessary for it to put controlling regulations into place. The public interest it seeks to protect is "(D) public welfare", including amongst other things, "national identity, integrity and self respect" about which the Preamble to the Constitution says:

"that we guard with our lives our national identity, integrity and self respect."

The evidence produced by the State is aimed at proving that television, being such a powerful media, can, if not properly regulated and restricted by law, amount to such an invasion by foreign ideas and life-styles as to pose a very real threat to national identity.

It sought to gain the needed time by introducing the Act into Parliament in a manner which seems unfair to the applicants. The State insists, however, that, in the circumstances, the restrictions were both necessary to protect public welfare and reasonably justifiable in a democratic society. It denies any non-compliance with s 38(2).

As a preliminary point, however, the State first argued that the Act merely regulated the right to broadcast on the State - owned electromagnetic waves and, therefore, did not really affect the right of freedom of expression and publication at all.

I shall consider the application in three stages:

N2>1)       Does the Television (Prohibition and Control) Act 1986 affect the right of freedom of expression and publication guaranteed by s 46?

N2>2)       If so, does the Television (Prohibition and Control) Act 1986 regulate and restrict the right of freedom of expression and publication in a way which satisfies the substantive requirements of s 38(1)?

N2>3)       If so, does the Television (Prohibition and Control) Act 1986 satisfy the formal requirements of s 38(1)?

(1) DOES THE ACT AFFECT THE RIGHT OF FREEDOM OF EXPRESSION AND PUBLICATION?

The State argues that to operate a television station involves broadcasting radio communications by means of electromagnetic waves. These electromagnetic waves are State owned property and nobody has a right to use State property. The right to use the electromagnetic waves has previously been regulated by the Radiocommunications Act Ch 152 under which the applicant has already been issued a licence. When the Television (Prohibition and Control) Act 1986 banned the broadcasting of television from a television station the State was merely prohibiting the use of its property for a limited period - not interfering with the right to freedom of expression and publication at all.

I have two reactions to this argument.

Firstly, it unwisely grafts the legal concept of property and ownership into an area of activity where it seems quite out of place. The transmission of television signals involves the creation of vibrations which then travel through the atmosphere at particular frequencies. It is quite within the State's power to regulate this activity, and such regulation is necessary, if for no other reason than to avoid chaos in the field of broadcasting.

The power to regulate broadcasting comes from the National Parliament's basic power to make laws for the good government of the country. It is not necessary or appropriate to base the power upon some spurious notion of ownership.

By way of comparison it is similarly within Parliament's power to enact legislation restricting the use of the colour blue upon roofing iron. Should it do so it would be unnecessary and inappropriate to base that power on an assertion that the State owns either blueness or roofing iron. It is not an acceptable answer to a constitutional challenge to the validity of legislation for the State to raise a spurious claim of ownership of electromagnetic vibrations, the airwaves, the electromagnetic spectrum or anything else.

Secondly, even if the State ownership of the air waves theory was to be accepted it would not answer this constitutional challenge. There is no way of broadcasting television except by using the State's electromagnetic waves. The 14 months ban, therefore, does two things - it forbids the use of Government property for the period and, in so doing, it thereby affects the exercise of the right to freedom of expression and publication by means of television broadcasting.

This ban particularly affected the applicants as, prior to the enactment of the Act, the applicants had been granted, and were in lawful possession of, current licences which gave them a legal right to operate a television broadcasting service.

In particular they were licenced to use the electromagnetic waves to broadcast both sound transmissions and visual images on specified frequencies. In order to operate this television broadcasting service, the applicants had constructed and were managing a station consisting of one or more transmitters and were ready and waiting to communicate ideas and information to the public generally (or at least to those persons with access to a television receiver).

By subsequently defining their particular type of "station" as a "television station" and making it an offence to operate such a station before 31 January 1988, the 1986 Act, in one sudden movement, grabbed back the applicants' pre-existing right to broadcast television over the State's electromagnetic airwaves.

I am firmly of the opinion that s 3 of the Act, which makes it an offence with very severe penalties to broadcast television before 31 January 1988, constitutes an interference with the qualified right of freedom of expression and publication guaranteed by s 46 of the Constitution. The State's argument to the contrary is scientifically untenable, tortuous, legalistic and quite unacceptable as a justification for curtailing one of the rights guaranteed by the Constitution.

(2) HAVING DECIDED THAT THE RIGHT TO FREEDOM OF EXPRESSION AND PUBLICATION HAS BEEN AFFECTED BY THIS LAW, THE NEXT QUESTION IS WHETHER THE ACT IS A LAW WHICH COMPLIES WITH THE SUBSTANTIVE PROVISIONS OF S 38(1) OF THE CONSTITUTION

Firstly, as to the burden of proof on this point. Whatever presumptions of validity may apply elsewhere when considering fundamental rights legislation, it is quite clear in Papua New Guinea that s 38(3) places the burden squarely on the State in this case to establish that the Television (Prohibition and Control) Act 1986 satisfies the requirements of s 38. And it must satisfy this burden to a high standard of proof.

To comply with s 38(1) it must be a law which:

"regulates or restricts the exercise of the right of freedom ... (of expression and publication) ... to the extent necessary (for the) public interest in ... (D) public welfare ... to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind."

Both parties are agreed that the public interest in "public welfare" is the only one of the heads of public interest set out in subs (1)(a) which is relevant. Applying this awkwardly worded section to this Act, it becomes apparent that it must meet three criteria. The challenged law must:

N2>a)       "regulate or restrict" the freedom of expression and do no more than that.

N2>b)       be "necessary" for the purpose of giving effect to the public interest in public welfare.

N2>c)       not regulate or restrict the freedom beyond the extent that the law is "reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind."

For the purposes of initial analysis these three criteria warrant separate study but in arriving at the proper meaning of the section they must be seen as interacting with each other.

(A) "REGULATE OR RESTRICT"

Mr O'Regan argues for the applicants that those words do not grant the State authority to prohibit. He then argues that a ban on television broadcasting for 18 months (now reduced to 14 months) constituted a prohibition. When pressed he conceded that the power to restrict could include a temporary but total ban for a very brief period as long as the circumstances justified it or, to word it in another way, if the particular ban or restriction was proportionately necessary, given the existing circumstances and the size of the threat to, or the extent of the desired gain for, public welfare.

Though not conceding that the term "restriction" could never encompass a "prohibition", the State appears to agree that whether or not this fourteen months ban is an allowable restriction is a question which must be determined in the light of the circumstances now existing. Those are the same circumstances which must be considered in deciding whether the ban is "necessary" and "reasonably justifiable".

(B) "NECESSARY"

This word has caused some difficulty. It has been argued that the court should give the liberal interpretation most protective of the right to freedom of expression and hold that any restrictive law should be disallowed unless it is "absolutely necessary". It must be remembered, however, that we are balancing this qualified right of individual persons alongside a consideration which is at least equally important - that of the welfare of the wider public. The court's task is to balance the scales; not to tilt them in favour of the right of the individual person. The Constitution requires the court to consider the extent to which the regulation or restriction is necessary for the purpose of protecting public welfare and to take into account the National Goals and Directive Principles and the Basic Social Obligations when performing this task. To be fair and liberal in working out a balance between these two important but sometimes competing principles, the court must weigh the two considerations proportionately. To insist that a regulation or restriction must be "absolutely necessary" to satisfy the requirements of s 38(1) would be to make the State's task of protecting public welfare impossibly difficult. Whether a restriction is necessary should be considered with a due sense of proportion, balancing the nature and duration of the regulation or restriction against the urgency and desirability of the public welfare sought to be promoted or protected.

I am satisfied that the State's evidence discloses that inadequately controlled television broadcasts are capable of constituting a substantive threat to public welfare.

The National Executive Council, the National Parliament and this Court are all enjoined, in the strongest possible words in the Preamble to the Constitution, particularly in the National Goals and Directive Principles, to protect ("guard with our lives") our national identity, integrity and self respect. Under the banner of "Integral human development", the call is for such activities as:

N2>"(1)     Every person to be dynamically involved in the process of freeing himself or herself from every form of domination ... and

N2>(5)      ... for every step to be taken to promote the moral, cultural, economic and social standing of the Melanesian family.

N2>(6)      Development to take place primarily through the use of Papua New Guinea forms of social and political organization."

National Goals and Directive Principle 5 calls for "Papua New Guinea ways.

We declare our fifth goal to be to achieve development primarily through the use of Papua New Guinea forms of social, political and economic organization:

N2>(1)      a fundamental re-orientation of our attitudes and the institutions of Government, commerce, education and religion towards Papua New Guinea forms of participation, consultation, and consensus, and a continuous renewal of the responsiveness of these institutions to the needs and attitudes of the people; and

N2>(2)      particular emphasis in our economic development to be placed on small-scale artisan, service and business activity; and

N2>(3)      recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development; and

N2>(4)      traditional villages and communities to remain as viable units of Papua New Guinea society, and for active steps to be taken to improve their cultural, social, economic and ethical quality."

These goals and principles are held out by the Constitution to be of prime importance and of immense concern for the public welfare.

On the evidence before this Court it appears that, for practical and economic reasons, any commercial television company will be tempted to transmit a significant proportion of cheap, readily available, foreign material, and that fact poses a significant threat to the attainment of these goals. As Professor Waiko said in evidence, that threat may be intensified if the broadcaster is a foreign company managed by foreigners with little sensitivity to Papua New Guinea cultures.

The applicants, on the other hand, have produced evidence and argued persuasively that locally broadcast television is also capable of being a very powerful tool for preserving and enhancing these very same values which are stated to be under threat. I accept this argument also.

On the evidence before the court it is a fact, however, that existing government policy is inadequately developed and suitable legislative controls are not yet in place.

Balancing the extent of the restriction imposed by the Act against the threats to be countered and the public welfare gains to be sought, I consider that a ban on television broadcasting for (now) 14 months falls within the phrase "regulate or restrict". A ban for that length of time is also "necessary" within the meaning of s 38(1)(a) in order to achieve the desired purpose of public welfare. In reaching that decision I have taken into account the National Goals and Directive Principles, the fact that an inquiry needed for policy formulation is in progress, the length of time for regulation and the necessary time constraints involved in drafting and enacting it.

(C) "REASONABLY JUSTIFIABLE"

It still remains to be considered whether this 14 months restriction on operating a television station is reasonably justifiable in a democratic society. (The additional words "having a proper respect for the rights an dignity of mankind" do not seem to be raised for interpretation in this application).

By s 39 of the Constitution, the court is directed to determine whether or not it is reasonably justifiable "in the light of the circumstances obtaining at the time when the decision on the question is made", which I take to be the date when judgment is delivered or perhaps, if anything should turn upon it, the date when the hearing of evidence and submissions is completed. It does not mean the date when the challenged law was enacted.

The circumstances now are that two companies have licences which, but for this Act, would enable them to commence broadcasting television. A recently appointed Government has not properly considered its policy on the control of television broadcasting and considers that the existing regulations are inadequate. The National Parliament has enacted by a very substantial majority the Television (Prohibition and Control) Act 1986 which effectively prohibits any person from broadcasting television for a period of some fourteen (14) months. A Commission of Inquiry, with significant terms of reference relevant to the question of public welfare, has been established and is at work. There is ample evidence before it for this Court to conclude that a major reason for the rushed enactment of this Act was because the applicants were on the verge of commencing broadcasts and another company also had the legal right to do so. One of the policy options, as set out in the terms of reference for the inquiry, is whether the State should be seeking to establish a State monopoly of television broadcasting service. There is no evidence as to the extent that this policy option influenced the Government but it certainly did act decisively to introduce legislation in order to gain time to consider its policy options before local commercial television broadcasting commenced.

From the viewpoint of the applicants the Government's actions must have seemed a complete and sudden about-face, a breach of faith and an unlawful breach of contract. The change of policy resulted in financial damage to the applicants and disappointment and loss of job and business opportunities for the many people associated with them.

It has been urged by Mr O'Regan that the test of reasonable justifiability is a subjective one and that, on that test, the way the Government has behaved is unreasonable and unjustifiable in a democratic society.

That may possibly be an apt description of the National Executive Council's behaviour in this instance, but the question for this Court is whether the Act itself, as enacted by the National Parliament is reasonably justifiable in a democratic society in todays circumstances.

When posed in this way, and for the reasons previously stated, I have come to the conclusion that a fourteen month ban on television broadcasting, for the purposes stated, is reasonably justified. Television broadcasting has not yet commenced, even though satellite, cable and video reception of foreign and locally made television material is available to the select few in urban areas and in some major hotels and clubs. Such a short delay in the commencement of a new venture in mass media communications is not unreasonable for the apparently genuine reason of formulating a policy and setting legislative controls in place, so as to reduce a potentially dangerous threat to public welfare and to maximise the very significant benefits for the public welfare which are latent in this powerful mass communications media.

Accordingly I find that the Television (Prohibition and Control) Act 1986 is a law which regulates and restricts the right to freedom of expression and publication and that the Act satisfies the substantive requirements of s 38(1).

That being so, does the Television (Prohibition and Control) Act 1986 satisfy the formal requirements of s 38(2)?

This third claim by the applicant is successful and it is fatal to the respondent's case.

For very good reasons s 38 of the Constitution provides that a law which is intended to regulate or restrict a constitutional right must very carefully follow certain prescribed formalities. These are designed to bring to the attention of members of the National Parliament that the Bill before them is intended to regulate or restrict one of the freedoms guaranteed by the Constitution and the reason why it is desirable to do so. The formalities are also designed to alert the public and special interest groups about what is being attempted and why. Not only is it expressly provided that the Bill must specify what freedom is being restricted but, on a fair and liberal meaning of the section, it must also clearly be specified which of the allowable listed purposes it is sought to achieve by this restrictive law.

Unless the purpose for the regulation or restriction is also clearly stated (in this case "the public interest in public welfare"), citizens whose rights have been affected will not be in a position to assess whether the law complies with the Constitution or not; they could be uncertain whether to outlay the expense to challenge the law if the State could be quietly sitting on the knowledge that the true, but unstated, purpose was (for instance) defence or public order.

From the importance with which the Constitution treats the whole question of the guaranteed freedoms, and adopting a fair and liberal interpretation of s 38(2), it is required that a law which regulates or restricts the exercise of a right or freedom referred to in the Constitution's Subdivision III.3.c - Qualified Rights, must clearly state which of the purposes specified in s 38(1)(a) it seeks to achieve.

The Television (Prohibition and Control) Act 1986 failed to do this and for that single but sufficient reason it is ultra vires the Constitution. The whole Act is, therefore, invalid and of no effect.

Lawyers for the applicant: I O'Regan QC; I Molloy

Lawyers for the defendant: G Beaumont QC; O Emos