Application Pursuant to Constitution, Section 18(1) [2022] PGSC 24; SC2215 (4 March 2022)

SC2215

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC (OS) 1 OF 2022

BETWEEN:
APPLICATION PURSUANT TO
CONSTITUTION, SECTION 18(1)

BY HON. POWES PARKOP
Applicant

Waigani: Logan J
2022: 4^th March

CONSTITUTIONAL LAW – constitutional reference – application for stay pending final determination – where applicant contends provisions of National Capital District Commission (Amendment) Act 2021 inconsistent with an Organic Law – where balance between competing public interests – where serious questions raised as to whether provisions National Capital District Commission (Amendment) Act 2021 are valid – where predominant public interest in maintaining status quo – application for stay granted

Facts:

Prior to October 2021, the National Capital District (NCD) was administered pursuant to National Capital District Commission Act 2001 (NCDC Act). That act created a governing body, called the Commission. Section 5 of the NCDC Act provides for the membership of the Commission.
On 19 October 2021, His Excellency the Governor-General, acting on advice, proclaimed that the Organic Law on Provincial and Local Level Government 1995 [sic] (Organic Law) came into operation in relation to the NCD. If valid, the effect of the Governor-General’s proclamation was to transform the NCD into a province. In turn, the NCD, prima facie, became subject to the provisions of the Organic Law stipulating the governance of provenances.
Following the Governor-General’s proclamation, the Governor for Central Province, the Honourable Robert Agarobe MP submitted a private members’ bill to the Parliamentary Committee on Private Business. That bill sought to make various amendments to the NCDC Act. These included amending a provision of the NCDC Act stipulating the criteria for membership of the Commission. The criteria provided for in the bill were different to, and incompatible with, the provisions of the Organic Law.
The bill was ultimately passed by Parliament in the form of the National Capital District Commission (Amending) Act 2021 (Amending Act). The Amending Act came into force on 13 January 2022, following its certification by the Acting Speaker of the Parliament.

Held:

1. A single judge of the Supreme Court is empowered under Order 3, Rule 2 of the Supreme Court Rules 2012 to make interim orders to prevent prejudice to the claims of the parties pending final determination of the proceedings.
2. Authorities relating to the application of Order 3, Rule 2 of the Supreme Court Rules in relation to special references to the Supreme Court pursuant to s 19 of the Constitution are equally applicable to applications to the Court pursuant to s18. The criteria relevant to determining whether a stay ought to be granted are:
   
   1. whether the orders sought are consistent with the grant of constitutional powers by designated persons or authorities under constitutional laws;
   2. whether there are serious constitutional issues raised in the reference;
   100. whether prejudice would be suffered by the referrer or other parties in the performance of their public functions;
   4. whether the balance of convenience favours the granting, discharge or variation of the interim orders; and
   5. whether the status quo should be preserved.
      

Reference by the Ombudsman Commission Pursuant to Constitution, Section 19 (1) [2019] PGSC 48; SC1821 and Reference by the Ombudsman Commission; Re Section 19 of the Constitution [2010] PGSC 43; SC1027 referred to.

3. In assessing the balance of convenience in an application to restrain enforcement of a statute challenged on constitutional grounds, the need to protect private interests of a party must be weighed against any detriment to the public interest. The balance of convenience normally dictates that those challenging the constitutional validity of a law must obey those laws pending the court’s determination: Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 applied; Morgentaler v Ackroyd (1983) 42 OR (2d) 659 referred to.
4. It is not necessary for an applicant who seeks an interlocutory injunction on the basis that an Act of Parliament infringes a constitutional right to demonstrate exceptional circumstances exist before such an application will be granted. The applicant need only demonstrate on a proper balance of convenience that an injunction ought to be granted: Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 applied; Morgentaler v Ackroyd (1983) 42 OR (2d) 659 distinguished.
   

Cases Cited:
Papua New Guinean Cases

Reference by the Ombudsman Commission Pursuant to Constitution, Section 19 (1) [2019] PGSC 48, SC1821
Reference by the Ombudsman Commission; Re Section 19 of the Constitution [2010] PGSC 43; SC1027

Overseas Cases

Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148
Morgentaler v Ackroyd (1983) 42 OR (2d) 659

Legislation:

Constitution of the Independent State of Papua New Guinea
Organic Law on Provincial and Local Level Government 1995
National Capital District Commission Act 2001
National Capital District Commission (Amendment) Act 2021
Supreme Court Rules 2012

Counsel:

Mr. P. Mawa, for the Applicant
Mr. T. Tanuvasa with Ms C Kuson, for the Intervener

Oral decision delivered on
4^th March 2022

1. LOGAN J: The Honourable Powes Parkop MP is the member of the National Parliament representing the people of the National Capital District (NCD). He is also the Governor of the NCD. Mr. Parkop has applied pursuant to s 18(1) of the Constitution for an interpretation by the Supreme Court of:
   
   • (a) section 4 of the Constitution of the Independent State of Papua New Guinea;
   • (b) sections 4(1), (10), (17) and (22) of the Organic Law on Provincial and Local Level Government 1995 and s 1 of the National Capital District Commission (Amendment) Act 2021 (the Amendment Act).
     

Standing

2. As to standing, Mr. Parkop makes reference to his status as a citizen of Papua New Guinea, a member of the National Parliament and his position as Governor of the NCD.
   
3. At least for the purposes of the interim injunction application today, I am satisfied that Mr. Parkop has standing to make the application for an interpretation of the provisions mentioned by the Supreme Court pursuant to s 18(1) of the Constitution. I am also satisfied that the application together with an interim application for injunctive orders has been served on the Speaker of the National Parliament, the Attorney General as nominal defendant for the Head of State and the Governor of Central Province, the Honourable Robert Agarobe, MP.
   
4. There was something of an interrogative note sounded by the learned Solicitor General in relation to the service on the Attorney General but there was an appearance today by the Solicitor General with Ms Kuson. So, at the very least, there has been notice given to the Attorney General of the application. I am therefore satisfied that relevant parties have been given notice of the application for interim orders.
   
5. As it transpired, there was no appearance today by or on behalf of the Speaker or the Governor of Central Province.
   
6. The interim injunction application has been brought on with quite some urgency for hearing. For reasons which I shall detail, there was good reason for that.
   
7. The position of the Attorney General, as relayed by the Solicitor General, was neither to consent to nor oppose the granting of any interim orders. However, I was particularly assisted by submissions made on behalf of the Attorney General as to principles which govern the granting or refusing of interim relief, together with submissions in respect of whether the Amendment Act had indeed come into operation. Mr Mawa who appeared for Mr Parkop also made helpful submissions on each of these subjects.
   

Factual Background

8. To address further the question as to whether interim orders should be made, it is first necessary to detail the factual background to the application. The facts as specified in the application have been attested to by two affidavits made by Mr. Parkop and read on the hearing of the application for interim orders.
   
9. A convenient way of summarising the facts therefore is to set out the factual position as alleged in the substantive application, which provides as follows:
   

“4.1 On the 8^th of November, 2021, Honourable Pila Niningi, LLB MP, Minister for Inter Government Relations, wrote to Honourable PowesParkop [sic], LLB, LLM, MP, Governor & Chairman of the National Capital District Commission (“NCDC”) and informed him that he exercised the powers vested under him under the Organic Law on Provincial and Local Level Government to advise the Head of State to proclaim and gazette National Capital District as a Provincial Government under the provisions of the Organic Law on Provincial and Local Level Government 1995 [sic] commencing 21^st October, 2021.

4.2 This proclamation effectively meant that the NCDC was a Provincial Government whose administration was to be governed, pursuant to the Organic Law on Provincial and Local Level Government and no longer operating under the NCDC Act,2021 [sic].

4.3 This also meant that the Regional Member, Honourable, PowesParkop [sic], LLB. LLM, MP, will be the Governor of the Province and Chairman of the Provincial Assembly and Provincial Executive Council. Similarly, the City Manager of NCDC will be called the Provincial Administrator and become the Administrative Head of the Province exercising all administrative powers and functions just like all other Provincial Administrators in the Country.

4.4 The Notice of Commencement was issued on 21^st October, 2021 under National Gazette No G712 by the Head of State who signed the Instrument of Commencement on the 19^th day of November, 2021.

4.5 This Notice of Commencement technically voided or rendered the NCDC Act, 2001 ineffective and requires a formal repeal of the NCDC Act, 2021, by the National Parliament.

4.6 The Governor for Central Province, HonorableAgarobe [sic] MP, submitted a Private Members [sic] Bill to amend the NCDC Act, 2001.

4.7 The proposed amendments had two objectives; one was the governance aspect in terms of the membership of the NCDC Board, its administrative structure and the vesting and discharge of powers and functions and the other was the fiscal aspect in terms of GST distribution between NCDC, Central Province and Motu Koita Assembly.

4.8 The Honourable Robert Agarobe MP, Governor for Central Province is a member of the Parliamentary Committee on Private Business, the Parliamentary Committee that considers Private Members [sic] Bills.

4.9 The Bill to amend the NCDC Act, 2001 was sponsored and submitted by Honourable Robert Agarobe, MP, Governor of Central Province as a Private Members [sic] Bill and this Bill was considered and approved for debate by the National Parliament to amend the NCDC Act, 2001.

4.10 The Clerk of National Parliament then presented the Private Members Bill to the National Parliament for debate and for enactment as an Act to amend the National Capital District Commission Act, 2001 [sic].

4.11 The Bill was then passed by the National Parliament to amend the National Capital District Commission Act, 2001 [sic] and the amended Act is now entitled as National Capital District Commission (Amendment) Act 2021 [sic].

4.12 Section 5 of the Principal Act is amended in subsection (1) by repealing Paragraph (d) and replacing it with the following:

“(d) four representative members as follows:

(i) President of the National Council of Women, ex -officio [sic], or her delegate; and
(ii) Director General of the National Youth Development Authority, ex-officio, or his delegate; and
(iii) President of the Trade Union Congress, ex-officio, or his delegate; and
(iv) President of the Port Moresby Chamber of Commerce and industry, ex-officio or his delegate; and

(b) by repealing Paragraph (e) and replacing it with the following:

(e) the Governor of the Central Province, ex-officio or his delegate.”

4.13 The effect amending section 5(1) of the Principal Act 2001 and replacing it with section 1 of the NCDC (Amendment) Act, 2021 on the Membership of the Commission effectively appoints and empowers the Provincial Governor of Central Province to be on the Board of the NCDC Commission to which he was not elected and empowered by the Constituents of NCD [sic].

4.14 The upshot of the recent amendment is essentially that there are two Governors in one province, ie [sic] the Governor of NCDC has the political mandate and constituents [sic] vested in him by the constituents of NCD and under the Organic Law on Provincial and Local Level Government to govern whilst the other has no political mandate bestowed on him by the people of this constituency, ie [sic] the NCD.”

(Underlining in original).

10. Certain of these facts in my view, and with respect, might be thought to entail an impeaching or questioning of a proceeding in parliament. It is not for the court to embark upon any such impeaching or questioning. In other words, the political value judgments that were made and particular motivations as to who introduced the Bill which became the Amendment Act are in no way subjects for this Court. Rather, and this was confronted squarely by Mr Mawa for Mr Parkop, the question is wholly one of whether the Amendment Act and in particular its provisions amending the National Capital District Commission Act 2001 (NCDC Act) are or are not valid?
    
11. The Amendment Act has been certified by the Acting Speaker. That certification has been notified generally by notice in the National Gazette. The Amendment Act itself does not make any particular provision with respect to its commencement. However, the effect of s 110(1) of the Constitution is that the Amendment Act came into operation on the date of the Speaker’s certificate. Thus, the Amendment Act came into operation on 13 January 2022 when the Acting Speaker of the National Parliament gave his certificate, which certification was, as I have mentioned, notified in the National Gazette thereafter.
    
12. The essence of Mr. Parkop’s contention in relation to the interpretation sought from the Supreme Court is that the capacity of the parliament validly to make provision in respect of the governance of the Commission by Act of Parliament has been overtaken by events.
    
13. What are those events? On Tuesday, 19 October 2021 his Excellency the Governor General acting with and in accordance with the advice of the minister and pursuant to powers conferred upon him by the Organic Law on Provincial Governments and Local Level Governments 1995 (Organic Law) fixed as operative on and from the publication of his Excellency’s instrument in the National Gazette as the date on which that organic law shall come into operation insofar as it relates to the NCD. That instrument has been published in the gazette. The effect of that is to constitute the NCD as a province.
14. In turn, so Mr. Parkop’s argument goes, the effect of so constituting the NCD as a province is to make applicable s 10 of the Organic Law. By s 10(2) it is provided that:

“(2) A provincial legislature, to be known as the Provincial Assembly or by whatever local name is considered appropriate, is hereby established for each Provincial Government.”

15. By s 10(3), that Organic Law provides that:
    

“A Provincial Assembly shall consist of—

(a) all Members of the Parliament representing electorates in the province; and
(b) . . . [Repealed]
(c) . . . [Repealed]
(d) subject to Subsection (6), where the chieftaincy system is in existence and is accepted in a province, paramount chiefs from the province—

1. not exceeding three in number; or
2. where the Minister responsible for provincial government and local-level government matters considers that particular circumstances justify it, not exceeding four in number,

or their duly appointed nominees, who shall be appointed by the Minister responsible for provincial government and local-level government matters on the recommendation of the Provincial Executive Council; and

(e) one woman representative nominated in accordance with an Act of the Parliament and appointed by the Provincial Executive Council; and

(f) such other members, not exceeding three in number, as the Provincial Assembly may appoint from time to time.”

16. The NCDC Act, by s 5 makes very different provision in respect of the membership of the Commission. The Amendment Act by s 1 provides s 5 of the NCDC Act is amended in subsection (1) as follows:
    

“1. MEMBERSHIP OF THE COMMISSION (AMENDMENT OF SECTION 5)

Section 5 of the Principal Act is amended in Subsection (1) -
(a) by repealing Paragraph (d) and replacing it with the following:

(d) four representative members as follows:

(i) President of the National Council of Women, ex-officio, or her delegate; and
(ii) Director General of the National Youth Development Authority, ex-officio, or his delegate; and
(iii) President of the Trade Union Congress, ex-officio, or his delegate; and
(iv) President of the Port Moresby Chamber of Commerce and industry, ex-officio or his delegate; and”; and

(b) by repealing Paragraph (e) and replacing it with the following:

(e) the Governor of the Central Province, ex-officio or his delegate.”.

17. Prior to that amendment, s 5(1) of the NCDC Act provided:
    

“(1) The National Capital District Commission shall consist of 10 members being —

(a) the Governor; and

(b) the Deputy Governor; and

(c) the members of the National Parliament for the National Capital District electorate and for each other electorate within the National Capital District, who shall be ex officio members of the Commission, except that where one of such members is appointed as the Minister responsible for provincial government and local-level government matters, that person is not eligible to be a member of the Commission and his membership in the Commission shall remain vacant until he ceases to be Minister responsible for provincial government and local-level government matters or otherwise ceases to be eligible as a member of the Commission; and

(d) four members who shall be appointed by the Governor, each one of whom shall represent one of the following interests so that each of the following interests is represented:—

(i) women;

(ii) youths;

(iii) trade unions;

(iv) settlement representative; and

(e) the Provincial Administrator of the Central Province, ex officio; and

(f) two members of the Motu Koitabu Council comprising —

(i) the Chairman of the Council, ex officio; and

(ii) one other members of the Council appointed by the Governor.”

18. Mr. Parkop’s contention is that, properly construed, there is an inconsistency as between s 1 of the Amendment Act and s 10 of the Organic Law mentioned. In that circumstance, Mr. Parkop points to the hierarchy of laws for which the Constitution provides. By s 10 of the Constitution, all written laws other than the Constitution are to be read and construed in any case subject to the Constitution and materially in the case of Acts of Parliament any relevant Organic Laws.
    
19. Thus, Mr Parkop’s contention is that s 1 of the Amendment Act, in its provision for a change in the composition of the membership of the Commission, is inconsistent with the Organic Law. Indeed, it is directed, so the contention goes, to a situation which no longer in law exists, namely, that the NCDC Act operates with respect to the province as constituted by proclamation pursuant to the Organic Law by his Excellency the Governor General.
    
20. There was some reference in submissions in support of that contention to the position that the Governor of Central Province did not have a political mandate by election in relation to the National Capital District.
    
21. But s 10 of the Organic Law does make provision for some members of a provincial assembly not directly to have any political mandate. I, therefore do not decide this interim application on the basis of who does or does not have particular political mandates. The question is wholly one as to construction of the Constitution, the Organic Law and the Amendment Act, rather than questions of political mandate or not. That does not though detract in any way from the force of the contention which I have summarised, as made on behalf of Mr Parkop by Mr Mawa.
    
22. Some other provisions of the Constitution in relation to provincial governments might be noted.
    
23. Section 187C of the Constitution, within Part VIA which concerns provincial governments and local level governments, makes provision in this way:
    

“(1) Subject to this Part [Part VIA], an Organic Law shall make provision in respect of the constitution, powers and functions of a Provincial Government or a Local-level Government.”

24. By s 187C(3), it is provided that an Organic Law shall provide the minimum number of members for the provincial assemblies and for the maximum number of members that may be appointed as nominated members of provincial assemblies. The Organic Law is a law as constituted as contemplated by s 187C of the Constitution.
    
25. Thus, Mr Parkop’s contention has, at least prima facie, additional support in a scheme evident in the Constitution that provinces shall, subject to Part 6A of the Constitution, be regulated by Organic Law.
    

Urgency of the application and orders sought

26. The reason why this particular case has urgency, as deposed to by Mr Parkop in his affidavits, is that there is presently in effect a very real question as to the governance of the province constituted by the NCD. There are budgetary decisions to be made ranging across all of the functions of the province as constituted by the proclamation mentioned. In effect a form of paralysis is presently prevailing. That lends obvious urgency to the resolution of a question as to whether any interim orders should be made so as to preserve the status quo.
    
27. What are the interim orders that are sought? They are:
    
    • (a) an interim order to restrain and/or stay the operation and/or implementation and/or enforcement of s 1 of the Amendment Act until the hearing and determination of the substantive application; and
      
    • (b) an interim order pending the stay or restraint or suspension of the operation, implementation and/or enforcement of s 1, the current membership of the Commission remains the same as it was before the amendment made to s 5 of the NCDC Act.
      
28. The last of those interim orders would fall away if the court were disposed to grant the first. There would be no need for the last, that is interim order (b), in my view if the restraint were operative in relation to the operation or implementation or enforcement of s 1 of the Amendment Act. That would be highly effective to leave in place the position as hitherto prevailed, pending the hearing and determination of the s 18 application or further earlier order of the court.
    

Jurisdiction to grant relief

29. Does the court have power to grant such relief? In my view, it does.
    
30. The court is seized with all powers that are necessary to do justice and to preserve the integrity of the judicial process by preserving the position as hitherto prevailed, pending the resolution of a question as to the validity of the Amendment Act.
31. The particular power called in aid is that found in Order 3, Rule 2 of the Supreme Court Rules 2012, which provides where any proceedings within the original jurisdiction of the court, and the s 18 application is one such proceeding, an interim order to prevent prejudice to the claims of the parties may be made by a judge.
    
32. As to the principles governing whether to make an interim order, the principal authority as confirmed by reference to Reference by the Ombudsman Commission Pursuant to Constitution, Section 19 (1) [2019] PGSC 48; SC1821 is Reference by the Ombudsman Commission; Re Section 19 of the Constitution [2010] PGSC 43; SC1027. That case establishes, in relation to s 19 references but in my view it is also apt for s 18 interpretation cases that the criteria to be addressed are:
    
    • (a) whether the orders sought are consistent with the grant of constitutional powers by designated persons or authorities under constitutional laws;
    • (b) whether there are serious constitutional issues raised in the reference;
    • (c) whether prejudice would be suffered by the referrer or other parties in the performance of their public functions;
    • (d) whether the balance of convenience favours the granting, discharge or variation of the interim orders; and
    • (e) whether the status quo should be preserved.
      
      33. Those particular considerations, suitably adapted in relation to an interpretation application, are in my view applicable.
          
      34. It is by no means unique to Papua New Guinea that questions arise in respect of countries which have written constitutions as to whether particular Acts of Parliament are valid and, in turn, whether or not their operation should be stayed pending an exercise of judicial power in respect of the validity of the legislation.
          
      35. As to overseas authority, I have gained assistance from observations made by Sir Anthony Mason in Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 (Castlemaine Tooheys) and also by observations made by Justice Lindon of the Supreme Court of Ontario in Canada in Morgentaler v Ackroyd (1983) 42 OR (2d) 659 (Morgentaler v Ackroyd) at 668. Justice Lindon’s observations are cited with qualified approval by Acting Chief Justice Mason in this passage in Castlemaine Tooheys:
          

“14. The balance of convenience presents other problems. In the past this Court has granted interlocutory injunctions to restrain defendants from enforcing statutes whose validity is challenged on constitutional grounds when the balance of convenience favours the plaintiff. So, in s.92 cases, interlocutory injunctions have been granted to restrain interference with and seizure of the plaintiff's goods under compulsory marketing schemes in order to protect the interstate trade in those goods where the grant of the injunction has not occasioned any significant detriment to the public interest (Clements and Marshall Pty. Ltd. v. Field Peas Marketing Board (Tas.) [1947] HCA 61; (1947) 76 CLR 401; Australian Coarse Grain Pool; and Tableland Peanuts). But even in cases of this kind the Court has been astute to ensure that any detriment to the public interest is avoided or diminished - note the Chief Justice's requirement in Australian Coarse Grain Pool that the plaintiff undertake not to dispose of its barley otherwise than to the Board. In other cases the Court has indicated its willingness to protect a plaintiff's alleged constitutional right by restraining the enforcement of a statute where the plaintiff would suffer irreparable injury without any countervailing detriment to the public interest (see, for example, R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518, at pp 529, 539, 584). In none of these cases did the Court go so far as to restrain the defendant from commencing prosecutions for breach of the statute whose validity was impugned. Indeed, in Field Peas it was acknowledged that prosecutions had been launched yet nothing was done to restrain the continuation of them.

15. It is a different matter where it is suggested that the proposed restraint on enforcement of the statute would occasion a significant detriment to the public interest by preventing the defendant from enforcing a legislative scheme which is designed to protect the environment from pollution by litter. Then the need to protect the private interests of the plaintiff must be weighed against the public interest in avoiding injury to the environment.

16. In Canada the courts have taken the view that only in exceptional circumstances will an interlocutory injunction be granted to restrain enforcement of a statute challenged on constitutional grounds. In Morgentaler v. Ackroyd (1983) 42 OR(2d) 659, Linden J. said (at p 668):

"... the balance of convenience normally dictates that those who challenge the constitutional validity of laws must obey those laws pending the court's decision. If the law is eventually proclaimed unconstitutional, then it need no longer be complied with, but until that time, it must be respected and this court will not enjoin its enforcement. Such a course of action seems to be the best method of ensuring that our society will continue to respect the law at the same time as it is being challenged in an orderly way in the courts. This does not mean, however, that in exceptional circumstances this court is precluded from granting an interim injunction to prevent grave injustice, but that will be rare indeed."

This approach was subsequently applied in Ziegler v. Hunter (1983) 75 CPR(2d) 163, and Pacific Trollers Association v. Attorney General of Canada (1984) 1 FC 846.

17. It may be that the last sentence in the passage quoted from Morgentaler v. Ackroyd states the position too strongly against the plaintiff who seeks an interlocutory injunction in Australia. The decisions in this Court to which I have already referred demonstrate that there are a variety of situations in which the Court, on a proper balance of convenience, will restrain enforcement of a statute in aid of a plaintiff's constitutional right. In arriving at a balance of convenience the Court will take into account the seriousness of the conduct enjoined by the statute and the damage to the public interest that may be caused by restraining its enforcement. And in some cases the balance of convenience may be affected by the court's perception or evaluation of the strength of the plaintiff's case for invalidity. But, subject to these qualifications there can be no reason to doubt the correctness of the general thrust of the comments in the passage which I have quoted. In the absence of compelling grounds, it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires.

18. In the ordinary course of affairs the courts should hesitate before interfering with the Executive Government's discretion to decide whether it should prosecute for offences against a statute, even a statute which is under constitutional challenge, more particularly when the statute is designed to protect and safeguard a recognizable public interest, such as the environment. It is perhaps undesirable that prosecutions should be commenced whilst the validity of the relevant sections is under challenge in proceedings pending in this Court. But there may be circumstances not readily to be foreseen by the Court which would justify the commencement of prosecutions in which event they would ordinarily be adjourned pending the determination of validity.”

36. In my view, it may also be that the last sentence of Morgentaler v Ackroyd also states the position too strongly with respect to Papua New Guinea, at least in relation to whether an Act of Parliament is inconsistent with the operation of an Organic Law. As already mentioned, s 10 of the Constitution gives particular pre-eminence, subject to the Constitution, to Organic Laws. As to the Constitution, it might also be noted that by s 4(4), an Organic Law or an Act of the Parliament shall make provision in respect to the government of the NCD.
    
37. Mr. Parkop’s contention is that prior to the proclamation under the Organic Law, the NCDC Act made lawful provision for the government of the NCD, as contemplated by s 4(4). His further contention is that government pursuant to an Act of Parliament was but one of the alternatives specified in s4(4) of the Constitution; the other alternative being an Organic Law. Thus, he points to the proclamation as having engaged such an Organic Law namely, the Organic Law on Provincial Governments and Local Level Governments.
    
38. The present proceeding is not, in my view, one where private interests are at large as against whether a law has valid operation. There are public interests at large and they are in my view competing ones.
    
39. A proclamation of the National Capital District as a province pursuant to the Organic Law evidences a value judgment by the National Executive Council in advising the Governor-General that the NCD should be constituted as a province and governed accordingly. That is one public interest consideration. The other public interest consideration is that Parliament, as a matter of value judgment, enacted the Amendment Act, which makes provision for a particular change in the operation in the membership of the Commission. Obviously, there is a great public interest in the respect for and obedience to an Act of Parliament. But under Papua New Guinea’s Constitution, an Act of Parliament cannot be inconsistent with an Organic Law. So there is in that regard a qualified supremacy of Parliament.
    
40. Mr. Parkop’s application is one which obviously seeks to raise for interpretation, not just a question relating to private interest but also interests of good governance according to law of the NCD. In Castlemaine Tooheys, Sir Anthony Mason made reference to the court taking into account the seriousness of the conduct enjoined and also that this might be affected by the court’s perception or evaluation of the strength of the plaintiff’s case or invalidity. That same sentiment seems to me to be consistent with the considerations referred to by the Supreme Court in Reference by the Ombudsman Commission; Re Section 19 of the Constitution [2010] PGSC 43; SC1027.
    
41. In terms of perception or evaluation, my view is that Mr Parkop’s case the contentions are far from trivial. They do indeed raise very serious questions as to whether the Amendment Act, s 1 is invalid. At the very least in my view, Mr. Parkop has an arguable case. This is not a case as was, for example, Castlemaine Tooheys where there were private commercial interests at large in relation to a challenge to the validity of legislation. There is a public interest at large in relation to the governance of the NCD.
    

Disposition

42. In my view, taking into account the observations which I have made in relation to the strength of the contention put forward are made by Mr. Parkop and the competing public interests, the predominant public interest is the preservation of the status quo, pending the hearing and determination of the s 18 application by the Supreme Court or further earlier order. So, doing will give effect to the evident intent behind the proclamation of the NCD as a province and in turn that it be governed thereafter in accordance with the provisions of the Organic Law, particularly s 10.
    
43. For these reasons, the order which I make is that until the hearing and determination of the substantive application made pursuant to s 18(1) of the Constitution or further earlier order, the operation or implementation or enforcement of s 1 of the Amendment Act be stayed.
    

Orders

1. Pursuant to Order 4, Rule 19 of the Supreme Court Rules, the Attorney General for the Independent State of Papua New Guinea be granted leave to intervene.
2. Until the hearing and determination of the substantive application made pursuant to s 18(1) of the Constitution, or further earlier order, the operation, implementation or enforcement of s 1 of the National Capital District Commission (Amendment) Act 2021 be stayed.
3. A copy of this order be served by the applicant on the Speaker of the National Parliament, the Attorney General as the nominal defendant for the Head of State and the Honourable Robert Agarobe, MP, Governor of the Central Province.
4. This order be passed and entered forthwith.
5. The application be adjourned for directions before the Supreme Court directions hearing judge on a date to be fixed.
6. Costs be reserved.
7. Liberty to apply.
   

__________________________________________________________________
Mawa Lawyers: Lawyers for the Applicants
Office of the Solicitor General: Lawyers for the Intervener