Constitution of the Independent State of Papua New Guinea/Schedule 1

Constitution of the Independent State of Papua New Guinea (Consolidated to Amendment No 22)

INDEPENDENT STATE OF PAPUA NEW GUINEA.

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This page contains SCHEDULE 1 of the PNG Constitution.

Text appears after the Table of Contents for this part, below.

Note: that the headings and sub-headings identified in the Table of Contents below are for navigational purposes, and do not necessarily constitute the structural subdivision recognised in the document. In particular, any numbering appearing before a header or subheader in the Table of Contents does not correspond to the part, divisional, sectional or subsectional numbering scheme applied to the Constitution. The Constitution's part, divisional, sectional or subsectional numbering scheme is preserved in the body of the text of the document.

SCHEDULE 1. RULES FOR SHORTENING AND INTERPRETATION OF THE CONSTITUTIONAL LAWS
SCHEDULES.

SCHEDULE 1. RULES FOR SHORTENING AND INTERPRETATION OF THE CONSTITUTIONAL LAWS.

PART 1.—INTRODUCTORY
PART 1.—INTRODUCTORY.

Sch.1.1.   Application of Schedule 1.


 * (1)    The rules contained in this Schedule apply, unless the contrary intention appears, in the interpretation of the Constitution and of the Organic Laws.


 * (2)    Unless adopted by law for the purposes, they do not apply to any other law.

PART 2.—GENERAL
PART 2.—GENERAL

Sch.1.2.   Meaning of certain expressions.

(1)    In this Constitution or an Organic Law—

"absolute majority vote", in relation to proceedings in the Parliament, means—
 * (a)    if qualified by reference to a certain fraction or percentage, affirmative votes equal to not less than that fraction or percentage of the total number of seats in the Parliament; or
 * (b)    if not so qualified, affirmative votes equal to more than one half of the total number of those seats;

"act" includes omission or failure to act;

"Act of the Parliament" means a law (other than a Constitutional Law) made by the Parliament, and includes a subordinate legislative enactment made under any such law;

"alter", in relation to any provision of this Constitution or any other law, includes repeal (with or without re-enactment or the making of other provision), amend, modify, suspend (or remove a suspension) or add to the words or effect of the provision;

"committee", in relation to the Parliament, includes a subcommittee of a committee of the Parliament;

"Constitutional Law" means this Constitution, a law altering this Constitution or an Organic Law;

"the country" means the area of Papua New Guinea;

"custom" means the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial;

"the day fixed for the return of the writs for a general election" means—
 * (a)    in the case of a general election where there is no extension of the time for the return of any writ or the time for the return of all writs is extended—the day by which the writs are to be returned; and
 * (b)    in any other case—the day by which the majority of the writs are to be returned.

"the Declaration of Office" means a declaration in the form in Schedule 3;

"the Deputy Leader of the Opposition" means the member of the Parliament (if any) recognized by the Parliament as being the second principal speaker on behalf of those members of the Parliament who are not generally committed to support the Government in the Parliament;

"deliberate judgement", in relation to an act, has the meaning and effect attributed to it by Section 62 (decisions in "deliberate judgement");

"Emergency Regulation" means a law that is made in accordance with Section 231 (Emergency Regulations);

"fiscal year", in relation to any activity of the National Government, means the period of 12 months commencing on 1 July or on such other date as is fixed by an Act of the Parliament for the purpose;

"of full capacity", in relation to a person means that he is not of unsound mind within the meaning of any law relating to the custody or protection of the persons or property of persons of unsound mind;

"governmental body" means—
 * (a)    the National Government; or
 * (b)Note-LXV    a provincial government; or
 * (c)Note-LXVI    an arm, department, agency or instrumentality of the National Government or a provincial government; or
 * (d)    a body set up by statute or administrative act for governmental or official purposes;

"Judge" means a Judge of the Supreme Court or a Judge of the National Court;

"Judge of the National Court" means the Chief Justice, the Deputy Chief Justice or a Judge, and includes an acting Judge;

"Judge of the Supreme Court" means a Judge of the National Court, other than an acting Judge;

"the Judicial Declaration" means a declaration in the form in Schedule 4;

"judicial officer" means a Judge or Magistrate of a court within the National Judicial System (other than a magistrate or member of a village court) in his capacity as such;

"law" includes the underlying law;

"lawyer" means a person who has been admitted to practice as a lawyer under an Act of the Parliament;

"the Leader of the Opposition" means the member of the Parliament (if any) recognized by the Parliament as being the principal speaker on behalf of those members of the Parliament who are not generally committed to support the Government in the Parliament;

"local government body" includes a local government council and a local government authority established under the pre-Independence law known as the Local Government Act 1963 or any other law;

"medical practitioner" means a person who has been admitted to practice as a medical practitioner under an Act of the Parliament;

"the Minister" in relation to any Constitutional Law, provision, matter or thing, means the Minister for the time being administering that Constitutional Law or provision, or the Minister for the time being administering the Constitutional Law or provision that governs that matter or thing, as the case may be;

"misconduct in office"Note-LXVII means misconduct in office as described in Section 27 (responsibilities of office) or as prescribed by an Organic Law made for the purposes of Section 28 (further provisions) or as prescribed by an Organic Law made for the purposes of Subdivision VI.2.H (Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties);

"the National Gazette" includes any Special National Gazette or National Gazette Extraordinary, and any supplement to a National Gazette;

"Papua New Guinea" means the Independent State of Papua New Guinea;

"Parliamentary Leader of a registered political party" or "Parliamentary Leader"Note-LXVIII means the member of the Parliament elected by a registered political party to be its Parliamentary Leader;

"personal staff", in relation to the Governor-General, a Minister, the Leader of the Opposition or the Deputy Leader of the Opposition, means the staff supplied to him by or under an Act of the Parliament at the public expense, not being members of the National Public Service in their capacities as such;

"pre-Independence law" has the same meaning as in Section Sch.2.6 (adoption of pre-Independence laws);

"the pre-Independence Supreme Court" means the pre-Independence court known as the Supreme Court of Papua New Guinea, the Supreme Court of the Territory of Papua and New Guinea or the Supreme Court of the Territory of Papua-New Guinea;

"provincial law"Note-LXIX Note-LXX means a law made or adopted by a provincial legislature, and includes a subordinate legislative enactment made under any such law;

"public accounts of Papua New Guinea" includes all accounts, books and records of, or in the custody, possession or control of, the National Executive or of a public officer, relating to public property or public moneys of Papua New Guinea;

"public moneys of Papua New Guinea" includes moneys held in trust by the National Executive or a public officer in his capacity as such, whether or not they are so held for particular persons;

"principles of natural justice" means the principles referred to in Division III.4 (principles of natural justice), and where those principles have been altered in accordance with Section 60 (development of principles), or by an Act of the Parliament, includes those principles as so altered;

"public office-holder"Note-LXXI means—
 * (a)    a member of any of the State Services or of a provincial service; or
 * (b)    any other constitutional office-holder; or
 * (c)    the holder of any office or position established by statute for administrative or governmental purposes; or
 * (d)    the holder of any other office or position declared by a statute to be a public office;

"the public trustee" means the officer (by whatever title known) charged with the duty of administering deceased intestate estates;

"seat", in relation to the Parliament, includes—
 * (a)    the position of an elected member, whether or not the position is for the time being filled; and
 * (b)    where there is for the time being a nominated member appointed in accordance with Section 102 (nominated members)—the position of that nominated member;

"statute"Note-LXXII means an Act of the Parliament, an Emergency Regulation or a provincial law, and includes a subordinate legislative enactment made under any such law;

"subordinate legislative enactment" means a regulation or any other instrument (whether of a legislative nature or not) made under a statute;

"taxation" includes rates, charges and fees and imposts of any kind;

"time of war" means a period during which a declaration under Section 227 (declaration of war) is in force;

"the underlying law" means—
 * (a)    the underlying law provided for by an Act of the Parliament under Section 20(1) (underlying law and pre-Independence statutes); and
 * (b)    until such time as there is an Act of the Parliament, the underlying law prescribed in Schedule 2 (adoption, etc., of certain laws);

"village court" means a court referred to in Section 172(2) (establishment of other courts).

(2)    Unless the contrary intention appears, where an expression is defined for any purpose in this Schedule, or otherwise in a Constitutional Law, then for that purpose all grammatical variations and cognate and related expressions are to be understood in the same sense.

(3)    Unless the contrary intention appears, a reference in a Constitutional Law to an institution, office or other thing shall be read as a reference to the appropriate institution, office or thing established or provided for this Constitution, or referred to in the Preamble to this Constitution.

Sch.1.3.   Form of the Constitutional Laws.


 * (1)    The Preamble to this Constitution (being the provisions that end immediately before the heading to Part I.) forms part of this Constitution, but expresses general principles and therefore must be read subject to any other provision of this Constitution, though it may be used as an aid to interpretation in cases of doubt.


 * (2)    The heading or head-notes to the various sections of a Constitutional Law do not form part of the Law, but other headings and notes do form part of the Law.


 * (3)    Each provision of a Constitutional Law takes effect as a Constitutional Law.


 * (4)    Where a reference in a provision of a Constitutional Law to another provision of that Law, or to a provision of another Constitutional Law, is followed by words in brackets describing, or purporting to describe, the effect of the provision so referred to, the description or purported description does not, unless the contrary is expressed, affect the meaning or effect of the provision so referred to.

Sch.1.4.   Constitutional Laws speak from time to time.

A Constitutional Law speaks from time to time.

Sch.1.5.   Fair meaning to be given to language used.


 * (1)    Each Constitutional Law is intended to be read as a whole.


 * (2)    All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.

'''Sch. 1.6.'''  Statements of general principle.

Where a provision of a Constitutional Law is expressed to state a proposition "in principle", then—
 * (a) an act (including a legislative, executive or judicial act) that is inconsistent with the proposition is not, by reason of that inconsistency alone, invalid or ineffectual; but
 * (b) if the act is reasonably capable of being understood or given effect to in such a way as not to be inconsistent with the proposition it shall be so given effect to.

Sch.1.7.   "Non-justiciable".

Where a Constitutional Law declares a question to be non-justiciable, the question may not be heard or determined by any court or tribunal, but nothing in this section limits the jurisdiction of the Ombudsman Commission or of any other tribunal established for the purposes of Division III.2 (leadership code).

Sch.1.8.   Gender and number.

In a Constitutional Law—
 * (a) words importing the masculine gender include females; and
 * (b) words in the singular include the plural and words in the plural include the singular.

Sch.1.9.   Provision where no time prescribed.

Where no time is prescribed or allowed within which an act is required or permitted by a Constitutional Law to be done, the act shall or may be done, as the case may be, with all convenient speed and as often as the occasion arises.

Sch.1.10. Exercise and performance of powers and duties.


 * (1)    Where a Constitutional Law confers a power or imposes a duty, the power may be exercised, or the duty shall be performed, as the case may be, from time to time as occasion requires.


 * (2)    Where a Constitutional Law confers a power or imposes a duty on the holder of an office as such, the power may be exercised, or the duty shall be performed, as the case may be, by the holder (whether substantive or other) for the time being of the office.


 * (3)    Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision.


 * (4)    Subject to Subsection (5), where a Constitutional Law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and to appoint another person temporarily in the place of a person so removed or suspended or, where the appointee is for any reason unable or unavailable to perform his duties, to appoint another person temporarily in his place.


 * (5)    The power provided for by Subsection (4) is exercisable only subject to any conditions to which the exercise of the original power or appointment was subject.

Sch.1.11. Determination of appropriate authority.

Where a Constitutional Law refers to "the appropriate Permanent Parliamentary Committee", the Parliament shall determine which Permanent Parliamentary Committee is the appropriate committee for the purpose and where the Parliament fails to do so the Speaker may so determine.

Sch.1.12. Power of majority of more than two persons, and quorums.


 * (1)    Where a Constitutional Law requires or permits an act or thing to be done by more than two persons, a majority of them may do it.


 * (2)    Subsection (1) does not affect any requirement of a quorum, and, subject to Subsection (3), where no quorum is prescribed for a body the quorum is the full membership of the body.


 * (3)    A power conferred by a Constitutional Law, otherwise than on the body in question, to determine the procedures of a body includes power to determine a quorum.


 * (4)    The exception contained in Subsection (3) does not apply to the National Executive Council.

Sch.1.13. Attainment of age.

For any purpose of a Constitutional Law, a person attains a certain age at the first moment of the relevant anniversary of his birth.

Sch.1.14. References to series.


 * (1)    Where in a Constitutional Law a reference is made to a series by reference to two numbers, one at the beginning and one at the end of the series, each of those numbers forms part of the series.


 * (2)    The reference in Subsection (1) to numbers include, where the elements of a series are identified by letters or in some other manner, references to letters or that other means of identification.

Sch.1.15. Residence.


 * (1)    Where in a Constitutional Law there is a requirement for any purpose of permanent residence or of continuous residence in a place (including the area of Papua New Guinea), an Organic Law may provide that—
 * (a) periods of temporary absence from that place shall be counted as periods of residence in that place; or
 * (b) periods of temporary absence from that place shall not be counted as periods of residence in that place but otherwise do not affect the continuity of residence.


 * (2)    In Subsection (1), "temporary absence" means, subject to Subsection (3), absence for temporary purposes with the intention of returning.


 * (3)    An Organic Law may further provide for the definition of classes of absence that constitute or do not constitute temporary absence for the purposes of any provision of a Constitutional Law.

Sch.1.16. Effect of time limits.


 * (1)    Where in a Constitutional Law a time limit is imposed for the doing of an act (whether the provision is mandatory, directory or permissive, and whether it is positive or negative), and in a particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable.


 * (2)    The operation of Subsection (1) is not excluded by a provision that unqualifiedly specifies a time limit or a maximum time limit.

Sch.1.17. Repeal, etc.


 * (1)    The repeal of a Constitutional Law or a part of a Constitutional Law does not—
 * (a) revive anything (including a statute or any part of the underlying law) that was not in force or existing immediately before the repeal took effect; or
 * (b) affect the previous operation of the repealed provisions or anything duly done or suffered under them; or
 * (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed provisions; or
 * (d) affect any penalty, forfeiture or punishment incurred in respect of an offence committed against the repealed provisions; or
 * (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment,
 * and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed, as if the repealed provisions had continued in force.


 * (2)    In particular, the repeal of a Constitutional Law or a part of a Constitutional Law does not—
 * (a) affect any liability under Division III.2 (leadership code); or
 * (b) prevent the Ombudsman Commission or any other tribunal established for the purpose of that Division from investigating any act,
 * to which the repealed provisions were relevant.


 * (3)    Where a Constitutional Law or a part of a Constitutional Law is repealed and re-enacted (with or without modification), references in any other law to any of the repealed provisions shall, unless the contrary intention appears, be read as a reference to the amended or replacing provision.


 * (4)    In this section, "repeal" includes revocation, suspension and expiry.

Sch.1.18. Disallowance, etc.


 * (1)    Where a Constitutional Law provides that a law may be disallowed, the disallowance takes effect in the same way as a repeal of a provision of a Constitutional Law takes effect except that, if the disallowed law altered any other law, the disallowance revives the other law as in force before the alteration.


 * (2)    For the purpose of Subsection (1), a refusal or failure by the Parliament to confirm, approve or extend a law that requires such confirmation, approval or extension has the same effect as a disallowance.

Sch.1.19. Independence.

Where a Constitutional Law provides that a person or institution is not subject to control or direction, or otherwise refers to the independence of a person or institution, that provision does not affect— and does not constitute an appropriation of, or authority to expend, funds.
 * (a) control or direction by a court; or
 * (b) the regulation, by or under a Constitutional Law or an Act of the Parliament, of the exercise or performance of the powers, functions, duties or responsibilities of the person or institution; or
 * (c) the exercise of jurisdiction under Division III.2 (leadership code), Subdivision VIII.1.B (the Auditor-General), or Subdivision VIII.1.C (the Public Accounts Committee),

Sch.1.20. Regulation of acts, etc.

A provision of a Constitutional Law that provides for the regulation of an act or thing does not extend to prohibition, whether in law or in effect.

PART 3.—SPECIAL PROVISIONS RELATING TO THE OFFICE OF HEAD OF STATE
PART 3.—SPECIAL PROVISIONS RELATING TO THE OFFICE OF HEAD OF STATE.

Sch.1.21. "the Head of State"; "the Governor-General".

For the avoidance of doubt, it is hereby declared that—


 * (a) in this Constitution—
 * (i)     a reference to "the Head of State" is a reference to the Queen and Head of State of Papua New Guinea for the time being and includes a reference to the person or persons exercising sovereignty over the United Kingdom of Great Britain and Northern Ireland in the event of the youth or incapacity of the person in that sovereignty; and
 * (ii)    a reference to "the Governor-General" does not include a reference to the Queen or the person exercising sovereignty over the United Kingdom of Great Britain and Northern Ireland; and
 * (iii)    a reference to "the Head of State" is a reference to the Queen or a person exercising sovereignty over the United Kingdom of Great Britain and Northern Ireland or, where such a person does not act personally, to the Governor-General as the representative of the Queen or that person; and


 * (b) the question, whether in performing a function or carrying out a duty as Head of State the Governor-General is acting in accordance with the will or opinion of the person exercising sovereignty over the United Kingdom of Great Britain and Northern Ireland, is non-justiciable and is not subject to the jurisdiction of the Ombudsman Commission or any other person or authority.

Notes to amendments
footnotes to amendments:

Note-LXV

 * The Amendment No. 1—Provincial Government.Note-LXV

Note-LXVI

 * The Amendment No. 1—Provincial Government.Note-LXVI

Note-LXVII

 * Definition of "misconduct in office" amended by Constitutional Amendment No 22.Note-LXVII

Note-LXVIII

 * Definition of "parliamentary leader of a registered political party" inserted by Constitutional Amendment No 22.Note-LXVIII

Note-LXIX

 * The Amendment No. 1—Provincial Government.Note-LXIX

Note-LXX

 * The definition of "provincial law" was added by Constitutional Amendment No. 1—Provincial Government.Note-LXX

Note-LXXI

 * The definition of "public office-holder" was amended by Constitutional Amendment No. 1—Provincial Government.Note-LXXI

Note-LXXII

 * The definition of "statute" was repealed and replaced by Constitutional Amendment No. 1—Provincial Government.Note-LXXII