Division 3 of Part XIV of the Constitution divides the functions and powers of government relating to Bougainville between the two governments, in accordance with this Part and the Bougainville Peace Agreement (s 288).
Section 289 — the National Government’s functions
The functions and powers of the National Government in and in relation to Bougainville are:
- central banking; currency;
- customs — imposition, administration and collection;
- defence;
- foreign relations, including foreign aid;
- highly migratory and straddling fish stocks;
- industrial relations;
- international civil aviation; international shipping; international trade;
- legislation specifically required to implement this Constitution, and legislation required to amend this Constitution;
- migration in and out of the country; quarantine;
- posts; telecommunications; and
- such other powers and functions for which, under Part XIV and the Agreement, the National Government is responsible.
Three additions follow:
- (4) the National Government has the function and power relating to firearms control;
- (5) it has the function relating to foreign investment, to the extent permitted by section 290(4); and
- (6) it has the functions and powers necessary to develop the infrastructure relative to its own functions.
The National Government is responsible in and in relation to Bougainville for the operation of a Constitutional office or State Service function to the extent necessary where an equivalent Bougainville Constitutional office or Bougainville Government Service has not been established or is not fully operational, or as otherwise required by Part XIV or the Agreement.
This is what makes staged transfer workable. Nothing falls into a gap while a Bougainville institution is being built.
Section 289(7) — mutual restraint
- (a) the Bougainville Government shall not obstruct the National Government in exercising its section 289 functions; and
- (b) the National Government’s exercise of those functions shall respect the Bougainville laws.
The obligation runs both ways, and it is expressed in the Constitution rather than left to comity.
Section 290 — functions available to the Bougainville Government
Section 290 sets out an extensive list of functions and powers available to the Bougainville Government in and in relation to Bougainville. The list begins with agriculture, arts, building regulation, cemeteries, censorship, children, churches and religion, civil registration, communications and information services within Bougainville, community development and corporation law — and continues at length across the ordinary subject matter of government.
The wording matters. Section 289 states what the National Government’s functions are. Section 290 states what functions are available to the Bougainville Government — to be drawn down as institutions are established and become operational, with section 289(3) covering the interval. Autonomy under Part XIV is a process, not a single moment.
Section 290(4) also governs the boundary on foreign investment, which section 289(5) makes a National Government function only to the extent that section permits.
How to read the two lists together
- Check section 289 first. If the subject is on the National list, that is where the power sits — and the Bougainville Government must not obstruct its exercise.
- Then check section 290. If the subject is on the Bougainville list, ask whether the function has been taken up and whether the relevant institution is operational.
- If it has not been, section 289(3) makes the National Government responsible to the extent necessary in the meantime.
- Remember section 276(2). Where the rest of the Constitution is inconsistent with Part XIV, Part XIV prevails; and under section 277, Part VIA does not apply to Bougainville.
Disputes and review
Division 6 provides for intergovernmental relations and review and for the dispute resolution procedure, which Part XIV relies on for questions including whether the Bougainville Government meets internationally accepted standards of good governance, and for any differences in relation to the Referendum (s 343). Division 5 deals with fiscal arrangements.
Constitutional questions may also reach the Supreme Court. The Bougainville Executive is among the authorities entitled to make a section 19 special reference: see Special Reference by the Bougainville Executive [2020] PGSC 42; SC1952.
Sources
Constitutional sections are amended. Before relying on anything here, read the current text: the Constitution on PacLII. If a decision matters to you, get advice — start with the Office of the Public Solicitor.