What Is an Emergency Regulation, and What Limits Apply?

Emergency Regulations are the most powerful lawmaking instrument the Executive has in Papua New Guinea, and section 231 of the Constitution confines them carefully.

Section 230 — Emergency Acts

Before or during a period of declared national emergency, Parliament may make Emergency Acts to make provision for dealing with the emergency and matters arising out of it. An Emergency Act shall be expressed to be an Emergency Act.

An Emergency Act made before a period of declared national emergency does not come into operation, except to the extent necessary to bring it into effective operation, until the period commences. Parliament can therefore legislate in advance and leave the law dormant.

Section 231 — Emergency Regulations

Section 231(1)

The Head of State, acting with and in accordance with the advice of the National Executive Council, may make laws (to be known as Emergency Regulations) to make provision for dealing with the emergency and matters arising out of it — if, and to the extent that, the nature of the emergency or its requirements necessitate the making of the provision before the Parliament can reasonably consider the matter.

The condition is a real one. Emergency Regulations exist to fill the gap before Parliament can act. Once Parliament can reasonably consider the matter, the constitutional route is an Emergency Act, not a Regulation.

Section 231(2) — immediate transmission

An Emergency Regulation shall be immediately forwarded to:

(a) the Speaker for presentation to the Parliament; and
(b) an Emergency Committee — or, where none has been established, the Temporary Emergency Committee under section 241.

No Minister may be a member of an Emergency Committee, and it must be available to meet at all times during the period.

Section 231(3) — automatic expiry

The clock runs on its own

Unless earlier extended by decision of the Parliament, an Emergency Regulation expires at whichever happens first of:

the end of 28 days after the making of the declaration of the emergency; or
the end of 14 days after the Parliament first meets after the commencement of the period of declared national emergency.

An expired Regulation is not law. Anything done under it after expiry has no legal basis — a point always worth checking.

The expiry provision works with section 239: Parliament must be called within 15 days of the start of the period, so the 14-day clock in the second limb begins to run quickly.

Section 232 — emergency orders

(1) An emergency law may provide for the giving of orders, not inconsistent with the emergency law, by persons authorised by or under it.
(2) No emergency law shall purport to confer powers to make orders that could not be made in the form of an emergency law. An order cannot go where the parent law itself could not.
(3) An order shall, if practicable, be in writing and be notified to the appropriate authority appointed by law.
(4) As far as practicable, details or copies of all orders shall immediately be forwarded to the Speaker for presentation to Parliament and to the Emergency Committee.

What emergency laws may and may not contain

Section 233(1) allows an emergency law to make provision for the peace, order and good government of the country to the extent reasonably required for achieving its purpose. Section 233(2) allows alteration of the Basic Rights only to the extent reasonably necessary and only so far as reasonably justifiable in a democratic society.

Then come the prohibitions, dealt with in full in rights during a declared emergency:

No emergency law may alter sections 35, 36, 45, 50, 55 or 56; may provide for internment other than in accordance with Division X.5; or may alter sections 37 or 42 except as internment allows.
No Emergency Regulation may alter sections 46, 47, 49 or 51 — expression, assembly and association, privacy, and freedom of information.

And section 40 requires every emergency law to be interpreted and applied so as not to derogate a right more than is reasonably necessary.

How to check an Emergency Regulation

Is a declaration in force? Check the date of the declaration and any parliamentary extension (21 days, then two-month blocks).
Is it a Regulation or an Act? The section 233(4) prohibitions apply only to Regulations.
Has it expired under section 231(3)?
Which right does it alter, and is that right protected?
Was it necessary before Parliament could reasonably consider the matter, as section 231(1) requires?
Was it forwarded to the Speaker and the Emergency Committee?

Sources

Check the section yourself

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.