Why Do Pre-Independence Laws Still Apply?

Open almost any list of Papua New Guinean legislation and you will meet the Criminal Code Act (Chapter 262), the Arrest Act (Chapter 339), the Marriage Act (Chapter 280). The numbering is a direct legacy of Independence, and the Constitution is why those laws still operate.

Section 20(3) — adoption of pre-Independence statutes

Section 20 requires an Act to declare the underlying law and provide for its development, and provides that until such an Act does so, the underlying law is as prescribed by Schedule 2. Section 20(3) then adds:

The adopted statutes did not survive by inertia. They were taken into the new legal order by the Constitution itself, and they now sit in section 9 as Acts of the Parliament and subordinate enactments — not as a separate category of colonial law.

The mechanics of adaptation are dealt with by the Laws Adoption and Adaptation Act (Chapter 20), and the transitional constitutional arrangements by the Organic Law on Immediate and Transitional Constitutional Provisions.

Why the “Chapter” numbers

Adopted statutes were consolidated and given Chapter numbers in a revised edition of the laws. That is why a citation looks like Chapter 262 rather than Act No X of 1974. Acts passed after that consolidation carry a year instead — Underlying Law Act 2000, Public Finances (Management) Act 1995.

The received common law is separate

Adopted statutes are one thing; the received common law and equity are another. Sch.2.2 adopts the principles and rules of common law and equity in England as they stood immediately before Independence Day as part of the underlying law — except where they are inconsistent with a Constitutional Law or statute, are inapplicable or inappropriate to the circumstances of the country from time to time, or are inconsistent with custom as adopted by Part 1 of the Schedule.

Sch.2.2(3) freezes the reception: later English statutory revision does not follow. Sch.2.2(2) adopts the Royal Prerogative rules except powers to declare martial law, to grant letters of denization, or to do anything for which a Constitutional Law or Act provides.

A live consequence: section 55(3)

Section 55(3) provides that the equality guarantee in section 55(1) does not affect the operation of a pre-Independence law. Where an adopted law is still in force, it is not open to challenge on section 55(1) grounds alone — a transitional saving whose practical scope narrows as older statutes are replaced.

Other transitional provisions in Part XIII and in section 68 deal with matters such as benefits, rights and privileges conferred by pre-Independence laws, and with time-limited protections for those who became citizens under section 65. Most of those periods — five years, ten years — have long expired, so they are now mainly of historical interest.

How to check whether a law is still in force

1. Find the consolidated version, not the version as originally enacted.
2. Search for amending Acts — the Act’s name plus “Amendment”. A two-page amending Act can reverse the effect of the principal Act.
3. Check commencement. Under section 110, a law comes into operation on the date of the Speaker’s certificate unless it provides otherwise — and many provisions await a National Gazette notice that may never have been published.
4. Check whether it has been replaced by a modern Act on the same subject.
5. Read it subject to the Constitution. Section 10 requires every written law to be read subject to the Constitution and relevant Organic Laws, and section 11 invalidates inconsistency to the extent of it.