What Does the Constitution Say About the Bougainville Referendum?

Division 7 of Part XIV of the Constitution gives constitutional standing to the referendum commitment in the Bougainville Peace Agreement.

Section 338 — the referendum requirement

Subject to the section, a Referendum on the future political status of Bougainville shall be held in accordance with Division 7.

Section 338(3)–(6) — the two conditions

The date is to be determined after considering whether:

1. (a) weapons have been disposed of in accordance with the Agreement; and
2. (b) it has been determined that the Bougainville Government has been and is being conducted in accordance with internationally accepted standards of good governance.

Section 338(4): that second question is determined in accordance with the review and the dispute resolution procedure under Division 6 — not unilaterally by either government.

Section 338(6) imposes a joint duty: the National Government and the Bougainville Government shall co-operate in ensuring progress towards achieving and maintaining those standards.

Section 338(7) provides one route by which the referendum need not be held: where the Bougainville Government decides, in accordance with the Bougainville Constitution and after consultation with the National Government, that it shall not be held. The decision rests with Bougainville.

Section 339 — the question

The question or questions to be put:

• (a) shall be agreed to by the National Government and the Bougainville Government;
• (b) shall be formulated to avoid a disputed or unclear result; and
• (c) shall include a choice of separate independence for Bougainville.

Paragraph (c) is not qualified. Independence had to be on the ballot.

Sections 340 and 341 — conduct

An Organic Law shall provide for the manner of conducting the Referendum, and in particular for:

• the authorities jointly responsible for preparing for and conducting it, and the arrangements for exercising joint authority;
• electorates and polling places; electoral rolls, enrolment, objections and appeals;
• postal voting; polling and scrutiny; interpreters; offences;
• reporting of results to both governments;
• the invitation of international observers; and
• such other matters as may be required.

The Referendum may be held in conjunction with an election (s 340(2)). Section 341: the two governments shall co-operate to ensure that the Referendum is free and fair.

Section 342 — results and implementation

The constitutional design is deliberate: the referendum produces a result; the two governments consult; the National Parliament considers it; and what Parliament decides is formally communicated back to the Bougainville Executive. Section 343 provides that any differences between the two governments in relation to the Referendum shall be resolved in accordance with the dispute resolution procedure.

Where things stand

The referendum contemplated by Division 7 was held in 2019, and the constitutional process that follows — consultation between the two governments, tabling of the results in the National Parliament, and resolution of differences through the dispute resolution procedure — belongs to the political process rather than to the courts.

This site does not attempt to state the current position on implementation, which changes. What the Constitution requires is set out above; for what has happened since, consult current official sources from the National Government and the Autonomous Bougainville Government.