A special reference is not litigation. There is no dispute between parties to be resolved — the Court is asked a question and gives an answer that binds.
The provision
(1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.
(2) An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.
The word “opinion” might suggest something advisory. Subsection (2) removes the suggestion: it has the same binding effect as any other decision of the Supreme Court.
So a special reference settles the law with the same authority as a judgment on appeal, without any litigant having to bring proceedings.
The subject matter
Any question relating to the interpretation or application of any provision of a Constitutional Law — and, without limiting that, any question as to the validity of a law or proposed law.
Subsection (5) defines “proposed law” as a law that has been formally placed before the relevant law-making body.
The ability to test a proposed law before it is enacted is a distinctive feature. It allows a constitutional problem to be identified before legislation takes effect.
Subsection (3)
The following authorities only are entitled to make application —
(a) the Parliament;
(b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council;
(c) the Law Officers of Papua New Guinea;
(d) the Law Reform Commission;
(e) the Ombudsman Commission;
(ea) a Provincial Assembly or a Local-level Government;
(eb) a provincial executive;
(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial or Local-level Governments, or between such Governments;
(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).
An individual cannot make a special reference. A private person with a constitutional question must proceed under section 18(1), where standing is decided first and separately — Order 4 Rule 17 of the Supreme Court Rules 2012.
See who may refer.
Order 4 Rules 2 and 5
A special reference shall be entitled under the section of the Constitution by which it is made together with the year and number, name the Court, tribunal or authority making the reference, be in accordance with Forms 2 or 3 whichever is applicable, be signed by the person, court, tribunal, authority or proper officer on behalf of the authority as required by law, and be filed in the registry.
Rule 5: a special reference under s 19 shall —
(a) state the question, the subject of the reference;
(b) state the circumstances in which it arises;
(c) if appropriate, have annexed a copy of the law or proposed law the validity of which is questioned;
(d) specify the relevant provisions of the Constitutional Law.
The circumstances in which it arises. A reference divorced from any real circumstance risks the Court declining under Rule 18 on the ground that the question is hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Order 4 Rules 10 to 12
The referrer may amend (a) if no party has intervened — (i) without leave before hearing, or (ii) with leave after commencement of hearing but before the court has given its opinion; or (b) if a party has intervened, with leave of the court or of a Judge.
Leave, where granted, is on such conditions as the court or a Judge thinks fit. Notice of amendment or an application for leave shall be in accordance with Form 6 or 14 whichever is applicable, where leave is sought, be supported by affidavit, be filed in the Registry, and be served on all parties and upon such persons as the court or a Judge directs.
Once someone has intervened, the referrer loses the ability to amend freely — a sensible protection for the intervener who has committed to arguing a particular question.
Subsection (4)
Subject to any Act of Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to (a) the form and contents of questions to be decided by the Court; (b) the provision of counsel adequate to enable full argument before the Court of any question; and (c) cases and circumstances in which the Court may decline to give an opinion.
Order 4 answers all three: Rule 5 on form and contents, the intervention provisions in Division 7 and 8 on full argument, and Rule 18 on declining.
Because there is no defendant in a special reference, paragraph (b) — the provision of counsel adequate to enable full argument — is a real problem the Rules must solve. Order 4 Rule 19 does so by allowing the Court, the referrer or the Principal Legal Adviser to seek an order for notice of an application or reference to persons who may have an interest, with the order specifying the form of the notice, publication, and the time limited for filing an application to intervene.
Sources
- Constitution of the Independent State of Papua New Guinea — ss 18, 19, 137(3)
- Supreme Court Rules 2012 — O 4 rr 2, 5, 10–12, 17–23; Forms 3, 6, 14
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.