Who Does What — National, Provincial or Local Government?

Papua New Guinea has three levels of government, and a recurring practical question: who is responsible for this? The Constitution answers it in two steps.

Step one — the Constitution sets the frame

• Section 9(da) makes the provincial laws one of the six sources of the laws of Papua New Guinea.
• Section 187C(5) requires an Organic Law to provide for the devolution and delegation of substantial powers of decision-making and substantial administrative powers to each Provincial and Local-level Government, in respect of matters of direct concern to the province or area.
• Section 187C(6) requires the Organic Law to provide for their legislative powers.
• Section 187C(7) makes the adequacy of that devolution non-justiciable.

Step two — the Organic Law allocates the fields

The actual allocation is in the Organic Law on Provincial Governments and Local-level Governments, supported by the Provincial Governments Administration Act 1997, the Local-level Governments Administration Act 1997, the District Development Authority Act 2014, and the Intergovernmental Relations (Functions and Funding) Act 2009.

Section 187D — when laws conflict

National legislation prevails on its own terms. A provincial or local-level law cannot cut down the operation of an Act of Parliament. Read this with:

• Section 11 — acts inconsistent with the Constitution and the Organic Laws are invalid and ineffective to the extent of the inconsistency; and
• Section 10 — every written law must be read subject to the Constitution and relevant Organic Laws, and so as not to exceed the authority properly given, with the saving that it is valid so far as it is not in excess.

So a provincial law is valid to the extent it is within the field the Organic Law allocates and does not collide with an Act of Parliament.

Checking whether a provincial law binds you

1. Is it a law at all? A policy, a directive or a resolution is not a provincial law. Section 9 is a closed list.
2. Was it made within the allocated field? Identify the head of power in the Organic Law.
3. Does it collide with an Act of Parliament? If so, section 187D(1) protects the Act.
4. Does it comply with the Constitution? A provincial law restricting a qualified right faces the section 38 requirements like any other law.
5. Was it properly made and published? Procedural defects are as fatal as substantive ones.

How disputes between levels are resolved

• Section 19 — a Provincial Assembly, a Local-level Government, a provincial executive, or a body established specifically for settling disputes between levels of government, may refer a constitutional question directly to the Supreme Court for a binding opinion.
• Section 18 — a question of interpretation arising in a live case goes to the Supreme Court.
• Section 155(4) — the courts may make prerogative and other orders necessary to do justice.
• The National Economic and Fiscal Commission (s 187H) advises and recommends on grants and financial arrangements, including between Provincial and Local-level Governments.

The leading illustrations include SCR No 3 of 1986; Ref by Simbu Provincial Executive [1987] PGSC 17; [1987] PNGLR 151, Re Constitutional Validity of Constitutional Amendment (Provincial Governments and Local-level Governments) [1995] PGSC 12; [1995] PNGLR 481, and Southern Highlands Provincial Government v Somare [2007] PGSC 2; SC854.

Bougainville is different

The Autonomous Region of Bougainville is not governed by Part VIA. It has its own Part — Part XIV — with its own division of functions and powers between the National Government and the Bougainville Government. See how powers are divided with Bougainville.