Section 19(3) opens with the words the following authorities only. That is a closed list, and it is the first thing to check before a special reference is contemplated.
Section 19(3)
(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 Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments;
(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).
Why these bodies
Organs of the national government. Parliament, the Head of State on NEC advice, the Law Officers, the Speaker in respect of Acts of Indemnity. Each may need a constitutional question settled before acting.
Constitutional and law-reform institutions. The Ombudsman Commission and the Law Reform Commission, whose functions frequently raise questions about the reach of constitutional provisions.
Sub-national governments and dispute bodies. Provincial Assemblies, Local-level Governments, provincial executives, and bodies established specifically to settle intergovernmental disputes — paragraphs (ea), (eb) and (ec).
The common feature is that each is an institution whose functions may turn on a constitutional question, and none of them is an ordinary litigant.
Order 1 Rule 7 of the Supreme Court Rules 2012 defines “the principal legal adviser” as the Principal Legal Adviser within the meaning of the Attorney-General Act 1989. That office — the Attorney-General — is central to Order 4: Rule 13 requires every application, reference or special reference to be served on the Principal Legal Adviser unless made by that authority, as soon as possible after it is filed.
Order 4 Rule 2(d)
A reference or special reference shall be signed by the person, court, tribunal, authority or proper officer on behalf of the authority as required by law, making the reference.
The words as required by law matter. Whether an officer may sign for a body depends on the law establishing it, and a reference signed by someone without authority is open to challenge before the question is ever reached.
Where the authority is the Head of State, the requirement in section 19(3)(b) is that it act with, and in accordance with, the advice of the National Executive Council. The reference should show that this was done.
The alternative
An individual, a company, or an association cannot make a special reference. The route is an application under section 18(1), which gives the Supreme Court original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
Order 4 Rule 1(b)(ii) requires such an application to be endorsed with an application for a declaration that the applicant has standing, and Rule 3(a) requires it to state the basis on which the applicant claims standing.
Rule 17 then requires the Registrar to set the application down in the first instance … for hearing and determination of the sole question of standing, and to set it down for substantive hearing only after the Court has declared that the applicant has standing.
See section 18.
A third route
Where a question of constitutional interpretation or application arises in any court or tribunal, other than the Supreme Court, that court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.
So a litigant with a constitutional question arising in existing proceedings does not need standing under section 18(1). The question is referred by the court in which it arises, and the obligation to refer is expressed as shall.
Order 4 Rule 6 extends the machinery to a referring body consisting of a magistrate or some other officer, but not a Judge of the National Court.
The Court need not answer
The court may decline to give an opinion on the question the subject of the reference or special reference if in the opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Being on the section 19(3) list is therefore not the end of the matter. An authority entitled to refer must still frame a question the Court will answer.
Order 4 Rule 5(b) is the drafting response: a special reference must state the circumstances in which it arises. A question rooted in a live problem is not hypothetical; one drafted in the abstract may be.
And a fourth
Where the complaint is not that a provision needs interpreting but that a right has been infringed, the route is enforcement under section 57. Order 6 Rule 1 of the Rules provides that an application to enforce Constitutional rights under Constitution, s 57, shall in the first instance, if not made in the National Court, be made to a Judge, supported by an affidavit setting out the facts giving rise to the application.
Sources
- Constitution of the Independent State of Papua New Guinea — ss 18, 19, 57, 137(3)
- Supreme Court Rules 2012 — O 1 r 7; O 4 rr 1–6, 13, 17; O 6 rr 1, 2
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.