Special Reference Pursuant to Constitution, Section 19 by Enga Provincial Executive [2022] PGSC 72; SC2271 (29 July 2022)

SC2271

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 5 OF 2019

SPECIAL REFERENCE PURSUANT TO
CONSTITUTION, SECTION 19 BY

ENGA PROVINCIAL EXECUTIVE,
SOUTHERN HIGHLANDS PROVINCIAL EXECUTIVE,
NEW IRELAND PROVINCIAL EXECUTIVE,
GULF PROVINCIAL EXECUTIVE,
ORO PROVINCIAL EXECUTIVE &
EAST SEPIK PROVINCIAL EXECUTIVE

Waigani: Salika CJ, Batari J,
Cannings J, Makail J, Collier J

2022: 30^th June, 29^th July

PRACTICE AND PROCEDURE – Objection To Competency Of special reference under Constitution, s 19 – special reference filed by multiple referrers –whether the reference was properly authorised by the referrers in compliance with Supreme Court Rules – whether the existence of multiple referrers made the proceedings incompetent.
The Attorney-General, who was an intervener in a special reference lodged by numerous provincial executives (which challenged the constitutionality of amendments to the Organic Law on Provincial Governments and Local-level Governments and the District Development Authority Act 2014 dealing with district development authorities) objected to competency of the reference on two main grounds. First, that the reference did not meet the signing requirements of the Supreme Court Rules and was not properly authorised (the authorisation ground). Secondly, that the reference was filed by multiple referrers and there was no provision in the Constitution or the Supreme Court Rules for such a procedure (the joint referrers ground).

Held:

(1) Per Salika CJ, Batari J, Cannings J & Collier J, re the authorisation ground: A special reference by a provincial executive under s 19 of the Constitution will meet the signing requirements of Order 4 rule 2(d) and Form 3 of the Supreme Court Rules 2012 when it is signed by the provincial governor or other proper officer of the provincial executive for and on behalf of the provincial executive council and it refers to and describes (eg by date and resolution number) the decision of the provincial executive council to institute the reference. This is a mandatory requirement, which must be strictly complied with. Failure to comply means that the reference is unauthorised and that the Court’s jurisdiction has not been properly invoked. It results in the reference being incompetent. Here the signing requirement was not complied with. Therefore, the reference was unauthorised, the Court’s jurisdiction was not properly invoked and the reference was incompetent.

(2) Per Makail J, dissenting on the authorisation ground: Order 4 rule 2(b) and Form 3 require that a special reference be signed by a proper officer on behalf of the authority making the reference. A provincial governor, being chairman of the provincial executive council, is a proper officer to sign the reference on behalf of the provincial executive. To require further details such as referring to and describing (eg by date and resolution number) the decision of the provincial executive council to institute the reference would be to introduce extra requirements beyond what the Rules require. Here, the special reference was signed by the provincial governor of each provincial executive filing the reference. The special reference was authorised, the Court’s jurisdiction was properly invoked and the reference was not incompetent on the authorisation ground.

(3) By the Court re the joint referrers ground: There is no prohibition against a special reference under s 19 of the Constitution being instituted by more than one referrer. Having multiple referrers is acceptable and does not make the reference incompetent.

(4) Per Salika CJ, Batari J, Cannings J & Collier J, re outcome of objection to competency: The authorisation ground was upheld and the objection to competency was upheld. The special reference was dismissed.

Cases Cited

The following cases are cited in the judgment:

Central Provincial Government v National Capital District Interim Commission [1987] PNGLR 249
Commander of Beon Correctional Institution v Mal (2022) SC2186
In re Fly River Provincial Executive [2007] 1 PNGLR 107
Kereme v O'Neill (2019) SC1781
PLAR No 1 of 1980 [1980] PNGLR 326
Re Election of the Governor-General, Special Reference by Morobe Provincial Executive (2012) SC1202
Reference by Igo Namona Oala (2011) SC1128
Special Reference Pursuant to Section 19(1) of the Constitution by the Honourable Davis Steven (2019) SC1791

Counsel

W Bigi, for the First, Second, Third & Sixth Referrers & Third Intervener
A Jerewai, for the Fifth & Ninth Referrers
T Tanuvasa & T Mileng, for the First Intervener

29^th July, 2022

1. SALIKA CJ, BATARI J, CANNINGS J & COLLIER J: Before the Court is an amended objection to competency filed by the Attorney-General (first intervener) in this proceeding on 4 November 2021 (amended objection to competency). The Attorney-General objects to the competency of the further amended special reference filed on 9 September 2021 (special reference). The referrers are named as:

• Enga Provincial Executive – first referrer;
• Southern Highlands Provincial Executive – second referrer;
• New Ireland Provincial Executive – third referrer;
• Gulf Provincial Executive – fourth referrer;
• Oro Provincial Executive – fifth referrer; and
• East Sepik Provincial Executive – sixth referrer.

(the six referrers)

2. The Madang Provincial Executive is named as the second intervener and the Western Highlands Provincial Executive as the third intervener.

3. We note at this stage that the initial form of the special reference filed on 15 March 2019 named 14 referrers, including the six referrers identified above. Later in this judgment we explain the procedural developments in this matter which resulted in the six referrers being named on the special reference.

4. The Attorney-General objects to the competency of the special reference on numerous grounds. However, at the hearing of the objection to competency, Mr Tanuvasa for the Attorney-General only pressed grounds 1, 2, 5(b) and (c), 6, 7 and 8. Of those grounds, it became apparent that the key grounds on which the Attorney-General relied were as follows:

5. The further amended special reference filed on 9^th September 2021, naming 6 Provincial Executives as joint referrers, is also incompetent on the basis that:
   

(a)...

(b) The decision of the respective provincial executives authorising the filing of the further amended special reference by the 6 referrers together with the resolution numbers should be cited in the execution clause of the further amended special reference and further the chairman of the respective provincial executive councils should state “it is signed for and on behalf of the provincial executive” with the resolution number set out thereunder. Failure to do so renders the further amended special reference incompetent, following the decision in the matter of s 19 of the Constitution: Reference by Fly River Provincial Executive (2007) SC917.

(c) The evidence of the provincial executive council resolutions authorising the filing of the further amended special reference by the 6 referrers should be annexed to the affidavits of the chairmen of the respective provincial executives and filed together with the special reference. failure to do so renders the further amended special reference incompetent, following the decision in Special Reference pursuant to Constitution, Section 19: Reference by the East Sepik Provincial Executive (2011) SC133.
[conveniently: authorisation ground]

6. The Constitution Section 19(1) and (3)(eb) does not provide for more than one “authority” or provincial executive to file a single special reference jointly, therefore this further amended special reference filed by the 6 referrers jointly is incompetent.

[conveniently: joint referrers ground]

5. It is appropriate to focus on these grounds, to the extent that if they are substantiated, and more particularly are fatal to the competency of the special reference, there is no need for this Court to examine the remaining grounds of objection.

6. It is convenient to briefly set out the background facts before turning to the submissions before the Court.

7. As we noted above, the special reference, in its first iteration, was filed in the Supreme Court on 15 March 2019 on behalf of the following 14 provincial executives:

• Enga Provincial Executive – first referrer;
• Southern Highlands Provincial Executive – second referrer;
• New Ireland Provincial Executive – third referrer;
• West New Britain Provincial Executive – fourth referrer;
• Oro Provincial Executive – fifth referrer;
• Gulf Provincial Executive – sixth referrer;
• East New Britain Provincial Executive – seventh referrer;
• Sandaun Provincial Executive – eight referrer;
• East Sepik Provincial Executive – ninth referrer;
• Jiwaka Provincial Executive – tenth referrer;
• Central Provincial Executive – eleventh referrer;
• Eastern Highlands Provincial Executive – twelfth referrer;
• Western Provincial Executive – thirteenth referrer; and
• Morobe Provincial Executive – fourteenth referrer.
  

8. The special reference sought clarification of the interpretation and application of a point of constitutional law by the Supreme Court pursuant to s 19(1) of the Constitution, being the following two questions:

1. Is Section 33A of the Organic Law on Provincial Governments and Local-level Governments (District Development Authority (Amendment)) Law 2014 unconstitutional, invalid and of no effect?
   
2. Is the District Development Authority Act 2014 unconstitutional, invalid and of no effect?
   

9. After the special reference was filed the Supreme Court delivered judgment in Kereme v O'Neill (2019) SC1781 on 28 March 2019. In that matter the applicant sought inter alia declarations that the Organic Law on Provincial Governments and Local-level Governments (District Development Authority) (Amendment) Law 2014 and the District Development Authority Act 2014 were inconsistent with the interpretation and application of ss 12, 14, 99, Part VIA (ss 187A 187J), 190, 192, 193 and 208B of the Constitution. The Court inter alia declared a number of laws passed by the Parliament to be unconstitutional, but not those in relation to the District Development Authorities. As a result of that judgment, this special reference was amended on 28 November 2019.

10. On 13 August 2019 the Attorney-General was granted leave to intervene in this proceeding, followed by the Madang Provincial Executive on 16 December 2019. On 2 December 2019 leave was also granted for the Western Highlands Provincial Executive to intervene.

10. Subsequently, this Court ordered on 9 November 2020 inter alia that:

In the event that the 4^th, 7^th, 8^th, 10^th, 11^th, 12^th, 13^th and 14^th referrers are not able to provide evidence of authority to bring proceedings by or before Monday 7 December 2020, they shall be granted liberty to withdraw from the proceedings by that date.

11. The 4^th, 7^th, 8^th, 10^th, 11^th, 12^th, 13^th and 14^th referrers (other referrers) did not provide the required authority in accordance with this order and failed to give instructions to their lawyers that they be withdrawn as referrers in this proceeding. As such, their lawyers filed a notice of ceasing to act for them in this proceeding and have only filed submissions on behalf of the 1^st, 2^nd, 3^rd and 6^th referrers, and the third intervener, referable to the objection to competency.

12. Following non-compliance by the other referrers with orders dated 9 November 2020, a further amended special reference was filed in the name of the six referrers on 9 September 2021.

SUBMISSIONS

13. At the hearing of the objection to competency on 30 June 2022, the following counsel appeared:

• Mr Bigi for the 1^st, 2^nd, 3^rd and 6^th referrers, and the third intervener;
  
• Mr Jerewai for the “5^th and 6^th referrer”, being the Oro Provincial Executive and the East Sepik Provincial Executive (which should have been described as the 5^th and 9^th referrers); and
  
• the Solicitor-General, Mr Tanuvasa, with Mr Mileng, for the first intervener.
  

14. The first intervener submitted that the special reference is incompetent on the basis that, in summary:

• the other referrers have not correctly invoked the jurisdiction of the Court given they have failed to provide authority from their respective provincial executives, by means of a resolution, authorising the filing of this special reference;
  
• three of the other referrers did not sign the special reference, contrary to the requirement that all referrers must sign it pursuant to Order 4 rule 2(d) of the Supreme Court Rules 2012 (Supreme Court Rules);
  
• the other referrers who did sign the special reference, through the chairmen of the respective provincial executives, failed to include in the execution clause that the special reference was signed “for and on behalf of the provincial executive”, contrary to the requirements of Order 4 rule 2(d) of the Supreme Court Rules;
  
• failure to provide resolutions of all relevant provincial executives authorising the filing of the special reference, given that it was filed as a joint reference, demonstrates that the jurisdiction of the Court had not been properly invoked;
  
• a strict approach to compliance should be adopted by the Court in this proceeding owing to the fact that this proceeding is of a “special nature”;
  
• Order 4 rule 2(d) of the Supreme Court Rules and Form 3 of the Supreme Court Rules, in addition to ss 19(1) and (3)(eb) of the Constitution, do not allow for multiple authorities or provincial executives to jointly file a single special reference; and
  
• in accordance with ss 19(1) and (3)(eb) of the Constitution, only one authority may refer a matter to the Court as a special reference, not 14 as has occurred in this proceeding.
  

15. Mr Bigi for the 1^st, 2^nd, 3^rd and 6^th referrers and the third intervener submitted, in summary:

• the other referrers failed to provide authority from their respective provincial executives to commence this special reference as required by orders of the Supreme Court dated 9 November 2020;
  
• he ceased to act for the other referrers owing to this non-compliance, and they in effect ceased to be parties to the proceeding;
  
• nevertheless, failure to provide the relevant authorisation does not render this special reference incompetent, given that the other referrers were no longer considered parties to the special reference in accordance with Orders dated 9 November 2020;
  
• the Attorney-General’s submission that the execution clauses in the special reference was required to state that the special reference was signed “for and on behalf of the Provincial Executive” was incorrect, and not required by Order 4 rule 2(d) and Form 3 of the Supreme Court Rules;
  
• there was no need for the other referrers to plead a lack of compliance with s 14(2) of the Constitution; and
  
• the amended objection to competency ought to be dismissed with costs awarded to the other referrers.
  

16. Mr Jerewai, for the 5^th and 9^th referrers submitted, in summary:

• in the event the Court found that the proper requirements were not met in filing the special reference, and specifically that the special reference was not correctly authorised by the relevant provincial executives, the Court should exercise its discretion to absolve the six referrers and other referrers from meeting those requirements;
  
• this discretion of the Court should be exercised on the basis that the determination of the special reference was in the public interest, which in turn weighs in favour of the special reference not being declared incompetent;
  
• a correct interpretation of s 24 of the Organic Law on Provincial Governments and Local-Level Governments requires that, as is the case with the National Executive Council pursuant to s 153(2) of the Constitution, any question referable to whether a provincial executive has complied with certain procedures is not justiciable in this Court;
  
• resolutions of the provincial executives of the six referrers existed, and provided the language of those resolutions was unequivocal, that should be sufficient to validly commence a special reference in their names under s 19(1) of the Constitution;
  
• the facts in In re Fly River Provincial Executive [2007] 1 PNGLR 107 were distinguishable;
  
• the imposition of procedural requirements by the Court that must be met in filing a special reference is akin to the Court legislating; and
  
• in any event, the procedural requirements outlined in Fly River Provincial Executive are obiter dicta.
  

17. Mr Jerewai also briefly made, but ultimately did not press, an oral application for an adjournment so that he could obtain instructions from his clients in addition to allowing the other referrers an opportunity to remedy any defects in the form of the special reference.

CONSIDERATION

18. We now turn to examine the two key grounds of objection before the Court.

AUTHORISATION GROUND

19. Failure to provide proper authorisation to a special reference in accordance with Order 4 rule 2(d) of the Supreme Court Rules is fatal to the special reference: see In re Fly River Provincial Executive at [42]. Order 4 rule 2(d) of the Supreme Court Rules 2012, which is identical to Order 4 rule 1(e) of the Supreme Court Rules 1984 examined in In re Fly River Provincial Executive, provides:

A reference under Constitution, s 18(2) or a special reference under Constitution, s 19 shall be instituted by a reference and shall—

(a) be entitled under the section of the Constitution by which it is made together with the year and number of the reference; and

(b) and with—

(i) the name of the Court, tribunal or authority making the reference under s18(2) or special reference under s 19; or

(ii) with the title or proceedings if the reference is under s 18(2); and

(c) be in accordance with Forms 2, or 3 whichever is applicable; and

(d) be signed by the person, court, tribunal, authority or proper officer on behalf of the authority as required by law, making the reference; and

(e) be filed in the registry.

Fly River case

20. In the matter of In re Fly River Provincial Executive, this Court examined whether a special reference under s 19 of the Constitution must be signed by a proper officer on behalf of the referring authority, or whether it was sufficient for an authority’s lawyer to sign the special reference on behalf of the referring authority. In doing so, the Court also considered the consequences of non-compliance with what was then Order 4 rule 1(e) of the Supreme Court Rules.

21. The Court held that the requirement that a “proper officer” sign a special reference on behalf of a referring authority was a valid rule of practice and procedure. Further, the Court determined that a special reference signed by a referring authority’s lawyer did not comply with Order 4 rule 1(e). In ultimately deciding that the special reference in that proceeding ought to be dismissed as incompetent, the Court stated at [27] – [31]:

27. The fact that Rule 1(e) does not expressly say a breach of it will result in the reference being struck out does not mean that a breach is inconsequential. It is a matter of interpreting the significance of the breach, in the context of the unique nature of a case under Section 19 of the Constitution and drawing a conclusion as to the effect of the breach. That was the process of interpretation undertaken by the Supreme Court in SCR No 4 of 1987. The conclusion was reached that the signing requirement was, due to the very special nature of a Section 19 reference, critical. The breach was fatal to the reference. Kidu CJ and Wilson J stated:
    

A Section 19 reference is a very special proceeding. There are very few countries in the world whose constitutions allow certain authorities to seek the opinion of their highest Courts without there being any substantive legal action as the basis thereof. The Constitutional Planning Committee (CPC) recognized this and in recommending what is now Section 19 it said, inter alia, as follows:

"It is important, however, to regard the advisory opinion as a rather special procedure to be resorted to only in exceptional circumstances." (CPC Report, p 8/16.)

And the procedure is so exceptional that only a few public office-holders and institutions are allowed to use it, a provincial executive being one of these authorities. It is because of the special nature of a Section 19 reference that the authority which makes it must consider the matter and sign the reference. In the case of a provincial executive the matter should be considered by that body and the reference signed by either the Premier or a member of the Executive. Order 4, rule 1(e) has added that the reference may be signed also by a "proper officer on behalf of the authority as required by law". We consider that this means two things: (a) that only a person employed by the Authority can sign the reference and (b) that there must be authorisation for such a person to do this on behalf of the Referring Authority.

So Order 4 is a special rule sanctioned by Section 19 of the Constitution. In our opinion, therefore, it cannot be allowed to be overridden by any general rule. It is also inherent in the wording of Order 4, rule 1(e), that no other person other than those mentioned may sign a special Constitutional Reference.

28. We agree with and adopt the above as a correct statement of the law.
    
29. It follows that we reject the argument that a breach of Order 4, rule 1(e) can be remedied by giving a direction to the referrer to get the reference properly signed. The reference has been put before the court and it is incumbent on the referring authority and its lawyer to ensure that the reference meets the requirements of the Rules. This is not a mere technical requirement. It is not a matter of the court nit-picking, insisting on a referrer filing in a correct form and getting it signed by the right people. The signing requirement is something that goes to the validity of the reference. If the court is to hear and determine a Section 19 reference it must be satisfied that the jurisdiction of the court has been properly invoked and that the referring authority has made a considered decision to make the reference. The court can only be satisfied of those things if the reference is properly signed.
    
30. It is necessary to insist on strict compliance with Order 4, rule 1(e) to preserve the integrity of the Section 19 procedure and to ensure that the power to make such a reference is properly controlled. It is not sufficient, as suggested by Mr Narokobi, to comply with the other requirements of the Rules and miss out on Rule 1(e).
    
31. In the case of a reference by a Provincial Executive, Order 4, rule 1(e) would be complied with if the Provincial Governor signed it for and on behalf of the Provincial Executive Council and referred to and described (eg by date and resolution number) the decision of the Provincial Executive Council to make the reference. This is necessary as it is the Provincial Executive that is the authority entitled to make the reference – not the Provincial Governor. Section 19(3)(eb) of the Constitution – the source of power of a Provincial Executive to make a reference – must be interpreted and applied consonantly with Sections 23 and 24 of the Organic Law on Provincial Governments and Local-level Governments – which establishes the Provincial Executive Council as the executive arm of each Provincial Government, and prescribes its composition, functions and procedures and provides that the Governor is the Chairman of the Council.
    

22. In light of the Court’s observations in Fly River Provincial Executive, drawing on the reasoning in Central Provincial Government v National Capital District Interim Commission [1987] PNGLR 249 (referred to in Fly River Provincial Executive as SCR 4 of 1987), we make the following observations in relation to the law referable to the requirements of Order 4 rule 2(d) of the Supreme Court Rules:

1. This rule cannot be overridden by any general rule referable to practice and procedure.
   
2. A breach of this rule cannot be remedied by an order of the Court that a special reference subsequently be properly signed.
   
3. The rule must be strictly complied with.
   
4. The rule is taken to be complied with, as explained at [31] of Fly River Provincial Executive, “if the Provincial Governor signed it (special reference) for and on behalf of the Provincial Executive Council and referred to and described (eg by date and resolution number) the decision of the Provincial Executive Council to make the reference”.
   

23. At the hearing, counsel submitted that compliance with requirements set out in Fly River Provincial Executive would constitute a “quirky procedural ruling”, and no form or authorisation requirements existed under s 19(1) of the Constitution. This submission cannot be accepted. As Mr Tanuvasa for the Attorney-General argued, that decision of this Court is good law, it has remained in force for 15 years, and no arguments at the hearing were advanced to the Court to warrant the Court departing from the position detailed in that decision.

This special reference

24. Turning now to the circumstances of the present case, we find as follows.

25. First, we note that, on the authority of Fly River Provincial Executive, a special reference must be signed “for and on behalf of the Provincial Executive Council and refer to and describe (eg by date and resolution number) the decision of the Provincial Executive Council to make the reference”. This requirement is not, as Mr Bigi submitted, a “ridiculous requirement”.

26. While the facts of Fly River Provincial Executive differ from the present proceeding in that it involved a question of the authority of a lawyer to sign a special reference instead of a Governor or Chairman of a provincial executive, the requirement that the specific decision of a provincial executive council authorising the filing of that Special Reference be identified in the instrument filed with the Court to commence such a proceeding is in no way abrogated by these differing facts.

27. Second, Order 4 rule 2(d) of the Supreme Court Rules must be strictly complied with in commencing a special reference. It is not sufficient, as Mr Bigi contended, that subsequent affidavits filed with the Court refer to the resolution of a particular provincial executive authorising the filing of a special reference. Such a proposal is nothing more than an attempt to retrospectively correct failures of the six referrers and other referrers to comply with Order 4 rule 2(d) of the Supreme Court Rules. Delayed efforts do not remedy a fatal flaw in a special reference that has existed since its inception.

28. Third, the submission to the effect that the other referrers – who did not provide authority to commence the special reference in accordance with Orders dated 9 November 2020 – were irrelevant to the determination of the objection to competency, is unpersuasive. Mr Bigi submitted in summary that, because the orders dated 9 November 2020 gave the other referrers liberty to withdraw in the event that they did not provide the authority of their respective Provincial Executive Councils to commence the special reference on their behalf, those referrers had now been removed from this proceeding. This is simply not the case and is, at best, a tendentious and highly convenient reading of those Orders. Liberty to withdraw does not amount to actual withdrawal of parties from a proceeding. In this context we would also note that it does not appear that the other referrers have, in fact, actually withdrawn – no notices of withdrawal have been filed with the Court in their names, and their names remain on documents filed with the Court right up to the hearing of the objection to competency.

29. Fourth, and in any event, the special reference was not signed by all referrers. Only 14 of the original 17 referrers in whose names the special reference was commenced signed it by their respective chairmen. Even if the Court were to find that those provincial executive councils who did sign the special reference had done so in the proper manner, the fact remains that three did not sign it. Those three referrers, as we have already explained, remain as referrers in this special reference. This failure is, in and of itself, sufficient to render the special reference incompetent.

30. Finally, we note that submissions were made to the effect that this proceeding, even if incompetent, should not be dismissed owing to the public interest in having the special reference determined by this Court. However, we equally note that the proper procedure for the commencement of a special reference is clear from such seminal cases as Fly River Provincial Executive, to which there appears to have been little to no regard by some of the referrers. Further, we note in any event that a dismissal of a special reference for reasons of form does not prevent it being refiled.

31. We find that the special reference is incompetent on this ground and should be dismissed.

Joint referrers ground

32. This ground is referable to the interpretation of s 19 of the Constitution, which provides that:

(1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.

(2) An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.

(3) The following authorities only are entitled to make application under Subsection (1):–

(a) the Parliament; and
(b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and
(c) the Law Officers of Papua New Guinea; and
(d) the Law Reform Commission; and
(e) the Ombudsman Commission; and
(ea) a Provincial Assembly or a Local-level Government; and
(eb) a provincial executive; and
(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and
(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).

(4) Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to–

(a) the form and contents of questions to be decided by the Court; and
(b) the provision of counsel adequate to enable full argument before the Court of any question; and
(c) cases and circumstances in which the Court may decline to give an opinion.

(5) In this section, “proposed law” means a law that has been formally placed before the relevant law-making body.

33. The reference to “an” authority in s 19(1) of the Constitution means, in the submission of the Attorney-General, that a special reference can only be commenced by one authority, not multiple authorities jointly.

34. The six referrers submitted that while s 19(1) of the Constitution refers to “an” authority, this does not expressly preclude the filing of a special reference by more than one authority as defined in s 19(3) of the Constitution.

35. Strictly, given that we have found that the special reference is incompetent under the authorisation ground, there is no need for us to make conclusive findings at this stage in relation to the joint referrers ground. We also note that the submissions put to the Court in relation to this ground were somewhat scant.

36. However, we consider it appropriate to make the following observations, in the interests of justice and clarification of the law.

37. As was pointed out in submissions during the hearing, historically it has been unusual for special references to be commenced by joint referrers. As a general proposition, special references are commenced by one referrer, and third parties who have an interest may intervene with the leave of the Court.

38. The law in respect of applications for intervention is well-settled and includes extensive authority in relation to applications for intervention in special references. For example, Justice Davani explained in Reference by Igo Namona Oala (2011) SC1128 at [49] that principles relevant to intervention in applications under s 18 of the Constitution were:

(i) the discretion to permit appearances is a very wide one;

(ii) the applicant must have a substantial interest in the issues to be decided in the case;

(iii) it can either be a direct interest, in that the decision of the Court could immediately and directly affect the interests of the applicant to maintain or abrogate some particular right, power or immunity, or;

(iv) the decision will bind another jurisdiction where the applicant is about to be a party in proceedings involving the same legal principles;

(v) the applicant's position/submissions should contribute some new or fuller aspects to the issues, and not simply be repetitive of the position of someone who is already a party;

(vi) leave to intervene can be restricted to the particular issues of interest to the applicant.

39. The same principles are applicable to applications for intervention in special references: Special Reference Pursuant to Section 19(1) of the Constitution by the Honourable Davis Steven (2019) SC1791 at [8] per Hartshorn J.

40. In terms of the operation of s 19 of the Constitution, however, a party who falls within the definition of authority in s 19(3) could either commence a special reference or choose to apply for leave of the Court to intervene in that special reference. However, an authority within the meaning of s 19(3) could, if it seeks leave to intervene, be precluded from intervening if the Court is not satisfied that it has a right or liability recognised in law, peculiar to that party, “which is directly or is likely to be directed affected by the issues in the reference”: Hartshorn J in Honourable Davis Steven at [14].

41. Further, we note that in Re Election of the Governor-General, Special Reference by Morobe Provincial Executive (2012) SC1202 at [17] the Supreme Court expressed reservations in respect of permitting interveners to join constitutional references when that they would simply be repeating submissions of the principal party. Similarly in Special Reference by the Ombudsman Commission (2019) SC1815 the Chief Justice refused an application for intervention to an applicant whose interests could adequately be represented by other interveners in those proceedings.

42. Returning now to the construction of s 19(1) of the Constitution, and the question whether a special reference can be commenced jointly by multiple authorities otherwise authorised under s 19(3), we observe as follows.

43. First, there is no express proscription to a special reference being commenced under s 19(1) of the Constitution by more than one authority recognised under s 19(3) of the Constitution. The fact that s 19(1) refers to “an” authority should not, in our view, result in an interpretation that confines special references to be commenced only by a single authority.

44. Second, some support for this view can be found by reference to s 19(3) of the Constitution itself. That section defines authorities as follows:

The following authorities only are entitled to make application under Subsection (1):–

(a) the Parliament; and
(b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and
(c) the Law Officers of Papua New Guinea; and
(d) the Law Reform Commission; and
(e) the Ombudsman Commission; and
(ea) a Provincial Assembly or a Local-level Government; and
(eb) a provincial executive; and
(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and
(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).

45. Importantly, the definition of authorities in s 19(3) is cumulative, with the conjunction “and” between each subparagraph, rather than each authority being defined as an alternative. Reading s 19(1) with s 19(3) suggests that multiple authorities could jointly refer a question for determination by special reference.

46. Third, and as we noted above by reference to principles of intervention, if s 19(1) was construed such that only one authority as defined by s 19(3) could commence a special reference, there is no guarantee that other authorities with an equal interest in the matter could join by intervention. Such parties would be required to apply for leave, which could be refused if, for example, the Court reached the view that their interests were already adequately protected. It seems contrary to the right given to an authority as defined by s 19(3) of the Constitution that such an authority could potentially be excluded from an audience with the Court in relation to a special reference in which it had an interest, and which it otherwise would have a constitutionally recognised right to participate under s 19(1).

47. Fourth, proceedings in the superior Courts of Papua New Guinea are routinely commenced with multiple parties as plaintiffs or defendants. It seems unlikely that the Constitution could preclude a court process for the hearing of a special reference in a manner which is otherwise routine, by reference to the indefinite article “an” in s 19(1) of the Constitution.

48. Fifth, provisions of the Constitution and all Acts of Parliament must be given their fair and liberal meaning: see for example Wilson J in PLAR No 1 of 1980 [1980] PNGLR 326, Kandakasi DCJ in Commander of Beon Correctional Institution v Mal (2022) SC2186 at [17].

49. Finally, the fact that, usually, special references are commenced by only one referrer does not mean that they cannot be commenced by more than one referrer, jointly, or that it is not possible to do so in appropriate circumstances where multiple authorities agree.

50. The fact that the special reference in this case was commenced by more than one referrer does not mean that it was incompetent.

CONCLUSION

51. The objection to competency filed by the first intervener on 4 November 2021 is successful. It follows that we will dismiss the special reference. Costs will follow the event.

52. MAKAIL J: This is a contested hearing on an amended objection to competency pursuant to Order 7 rule 15 of the Supreme Court Rules (“SCR”).

53. The Attorney-General as the first intervener alleged that the referrers did not correctly engage the jurisdiction of the Supreme Court to have the special reference under s 19 of the Constitution heard. The Attorney-General relied on eight grounds of objection but at the hearing abandoned one of them. This left seven grounds for consideration. They fall into three broad categories:

(a) lack of authority to sign special reference;
(b) failure by some referrers to sign special reference; and
(c) joint referrers/joint special reference.

54. As to the grounds of failure by some referrers to sign the special reference and that it is incompetent because it is not permitted to be commenced as a joint special reference, I agree with the reasons and conclusion of the majority that the special reference is not incompetent in respect of those grounds.

55. However, as to the issue of authority to sign the special reference, with respect, I have reached a different conclusion to that of the majority. In my view the special reference has been signed and authorized in accordance with Order 4 rule 2(d) and Form 3 of the SCR.

56. The general requirement is that the special reference be signed by the referrer. By virtue of s 19(3)(eb) of the Constitution, a provincial executive is one of the authorities entitled to file a special reference. The question is, who shall sign it where the referrer is a provincial executive?

57. Order 4 rule 2(d) requires that the special reference be signed by the authority or proper officer on behalf of the authority as required by law. However, it does not identity the proper officer by title.

58. Similarly, the relevant form for the special reference, which is Form 3 of the SCR, does not prescribe the title of the person to sign it. It simply states “to be signed by Authority according to law” and “Designation of the officer signed to be stated”. The precise requirements of the Rules are open to interpretation.

59. The referrers argue that the provincial governor, as chairman of each provincial executive making the special reference, should be accepted as being in conformity with the requirement to sign the special reference.

60. The alternative approach, as proposed by the Supreme Court in In re Fly River Provincial Executive [2007] 1 PNGLR 107, would be where the appropriate officer to sign the special reference would be the provincial governor or secretary or executive officer of the provincial executive council, who must verify their authority to sign by referring to the resolution number and date of the decision of the provincial executive council that authorized the filing of the reference. This is the interpretation the Solicitor-General strongly urged the Court to adopt.

61. The head of the provincial executive is the provincial governor, who in my view falls into the general description of a “proper officer” of the provincial executive in accordance with the Organic Law on Provincial Governments and Local-level Governments, in particular s 23 (Provincial Executive Council). Thus, the provincial governor or executive officer of the provincial executive council signing off on the special reference is, on the face of it, be sufficient evidence that the provincial executive has authorized the filing of the special reference.

62. There are no additional requirements in Order 4 rule 2(b) or Form 3 for the provincial executive to produce a resolution or decision to file the special reference.

63. There might be exceptional circumstances, such as where the resolution was procured by fraud or where the provincial executive council did not pass any resolution, and in such cases the Court might insist on the provincial executive producing evidence of a resolution. However, in the present case no allegations of fraud have been raised.

64. I am concerned, with respect, that if the opinion of the majority is enforced, the Court will be going outside Order 4 rule 2(b) or Form 3 and introducing extra requirements that are not in the Rules. This is tantamount to re-writing the Rules.

65. In my view, it would be contrary to Order 4 rule 2(b) and Form 3 not to accept the signature of the provincial governor as the authorized person to sign the special reference.

66. In this case, each of the provincial governors has signed the special reference. In my view, the special reference has been duly authorised and filed. I would refuse the objection to competency.

THE COURT ORDERS, BY MAJORITY, THAT:

1. The objection to competency is upheld.
   
2. The special reference is dismissed.
   
3. The costs of the Attorney-General, as first intervener, of and incidental to the entire proceedings, shall be paid by the first, second, third and sixth referrers and the third intervener, on a party-party basis, such costs to be taxed if not otherwise agreed.
   
4. The other parties shall bear their own costs of the reference, including all applications and interlocutory proceedings relating to the reference.

________________________________________________________________
Henao Lawyers: Lawyers for the First, Second, Third & Sixth Referrers & Third Intervener
Jerewai Lawyers: Lawyers for the Fifth & Ninth Referrers
Solicitor-General: Lawyer for the First Intervener