What Is the Autonomous Bougainville Government?

Part XIV of the Constitution is unlike anything else in it. It gives constitutional force to the Bougainville Peace Agreement signed at Arawa on 30 August 2001, published in National Gazette No G146 of 16 November 2001.

Sections 276 and 277 — where Part XIV applies

Section 277: after the establishment of the Bougainville Government following elections, Part VIA — the ordinary provincial and local-level government system — shall not apply to Bougainville. Bougainville is not a province governed by the standard framework.

Section 278 — what “Bougainville” means

“Bougainville” means (a) the areas of land within the boundaries of Bougainville Province as described in the Schedule to the Organic Law on Provincial Boundaries, and (b) the areas of sea extending to three nautical miles from the low water mark of those land areas.

The institutions Part XIV creates

• the Bougainville Constitutional Commission (s 281) and the Bougainville Constituent Assembly (s 284);
• the Bougainville Constitution, endorsed and gazetted under s 285;
• the Bougainville Legislature and the Bougainville Executive — the accountable executive body of the Bougainville Government;
• Bougainville laws, made in accordance with the Bougainville Constitution and Part XIV;
• a Code of Conduct and Leadership Code for Bougainville (Subdivision B);
• Rights and Freedoms provisions (Subdivision C);
• Bougainville courts established under s 306(1) (Subdivision D);
• the Bougainville Public Service, Bougainville Police and Bougainville Correctional Service (s 310);
• a Bougainville Salaries and Remuneration Commission (s 320);
• Bougainville Constitutional Office-holders (s 321); and
• Bougainville emergency powers (Subdivision K).

That list is close to a complete set of governmental institutions — which is what distinguishes autonomy from decentralisation.

A Constitution within a Constitution

Bougainville has its own Bougainville Constitution, prepared by a Bougainville Constitutional Commission, adopted through a Bougainville Constituent Assembly, and endorsed and gazetted under section 285. Bougainville law means law made in accordance with that Constitution and Part XIV.

Section 276(2) is what makes this work: where the rest of the national Constitution is inconsistent with Part XIV, Part XIV prevails. The autonomy arrangements are not subordinate to the ordinary constitutional scheme.

Division 8 — immunity from prosecution

Section 344 provides for immunity from prosecution, and states its purpose expressly: to assist in the reconciliation process in Bougainville, with the intention of Parliament that the section be applied so as to achieve that purpose. It is a rare instance of the Constitution stating the reason for a provision in the provision itself.

Fiscal arrangements, review and disputes

Division 5 deals with fiscal arrangements; Division 6 with intergovernmental relations and review, including the dispute resolution procedure that Part XIV relies on at several points — notably in determining whether the Bougainville Government has been conducted in accordance with internationally accepted standards of good governance.

The Bougainville Executive is also one of the authorities that may make a section 19 special reference to the Supreme Court: see Special Reference Pursuant to Constitution, Section 19(1), Reference by the Bougainville Executive [2020] PGSC 42; SC1952.