Papua New Guinea Law Reports - 1992
[1992] PNGLR 114
SC428
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SC REFERENCE NO 5 OF 1992
IN THE MATTER OF THE CONSTITUTION AND IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS (AMENDMENT NO 1) LAW 1991
Waigani
Kidu CJ Kapi DCJ Amet Los Hinchliffe JJ
5 June 1992
CONSTITUTIONAL LAW - Right of privacy - Qualified right - Amendment of Organic Law on National Elections - Qualified rights affected by manner and form requirement - Legislation regulating or restricting qualified right - Constitutional requirements - Constitution s 38.
Facts
This was a special reference to the Supreme Court seeking the Court’s opinion on the validity of sections of the Organic Law on National Elections (Amendment No 1) Law 1991, which inter alia required every voter in the national elections to have a voter identification card in order to be entitled to vote.
Issues
Whether the amending act which adds to the existing qualifications for voting at national elections a requirement that a person must appear before the Electoral Commission and be photographed for purposes of obtaining a voter identification card regulated or restricted the right of privacy.
Held
1.       The compulsion to have one’s photograph taken in order to exercise one’s constitutional right to vote affects one’s right to privacy, guaranteed by section 49 of the Constitution.
2.       Legislation regulating or restricting a qualified right such as that of privacy must comply with the manner and form requirement set out in s 38 of the Constitution.
3.       The Organic Law on National Elections (Amendment No 1) Law 1991 did not comply with paras (a) and (b) of s 38(2) of the Constitution, i.e. specify the right it is intended to regulate or restrict and the particular purpose out of those listed in s 38(1) it sought to achieve.
Cases Cited
State v NTN Pty Limited [1992] PNGLR 1.
Counsel
J Baker and P Ame, for the applicant.
5 June 1992
KIDU CJ KAPI DCJ AMET LOS HINCHLIFFE JJ: In this reference, the questions asked by the Principal Legal Adviser are as follows:
1.       Do the provisions of ss 1, 3, 4, 5, 6, 7, 8, 14, 15 and 16 of the Organic Law on National Elections (Amendment No 1) Law 1991 relating to the voter identification card unreasonably infringe the right to privacy, the right to vote and the right to equality guaranteed under ss 49, 50 and 55 of the Constitution, respectively?
2.       If the answer to Question 1 is “No”, can the requirements of ss 54 and 54A of the Organic Law on National Elections, as amended by the Organic Law on National Elections (Amendment No 1) Law 1991, relating to the voter identification card, which is valid law since 11 February 1992, be fulfilled by the issue of voter identification cards without photographs of the voters on them?
3.       If the answers to Questions 1 and 2 are “No”, do ss 54, 54A and 133 of the Organic Law on National Elections, as amended, require that all voters be issued with photo-bearing voter identification cards at enrolment and at the time of voting?
4.       If the answer to Question 3 is “Yes”, can the June 1992 elections be lawfully conducted and concluded without the requirements relating to the voter identification card in the Organic Law on National Elections, as amended, being complied with, regard being had especially to the provision of Section 126(1) of the Constitution, which enjoins that elections are to be held in accordance with the Organic Law on National Elections.
The Organic Law on National Elections (Amendment No. 1) Law 1991 came into operation on 11 February 1992 (National Gazette No G11 of 11 February 1992, p 1). (Hereon it will be referred to as the Amending Law).
As was stated by both counsel who appeared in the reference, ss 1, 3, 4, 5, 6, 7, 8, 14, 15 and 16 of the Amending Law provide for a scheme involving the issuance of voter identification cards to voters. It adds to the existing citizenship, age and residence qualifications the requirements that a person must appear before the Electoral Commission, consent to being photographed and be photographed for the purposes of compiling a voter identification card.
Section 49 of the Constitution guarantees the right to privacy to every person. This right may be regulated or restricted. The provision reads as follows:
“Every person has the right to reasonable privacy in respect of his private life, family life, his communication with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).”
The Amending Law is explicit in stating that, at the time of voting, the voter identification card (VIC) is essential. Without a valid VIC, a person will not be permitted to vote (s 14 of the Amending Law). So if a person wishes to vote, his or her photograph must be taken and be included in the VIC as non-consent to have his or her photograph taken will result in his or her being denied the right to vote. This compulsion to have one’s photograph taken very clearly affects one’s right to privacy. It is not a requirement of the Constitution that a person’s photograph must be taken and included in an identification card or some other document in order to allow him or her to vote.
As a right guaranteed by the Constitution has been affected, we must see, as required by s 49, whether s 38 of the Constitution has been complied with or not.
The regulating or restricting of the right may well be reasonable. We do not have to go into that in this reference. But it must be done according to the rules stated in s 38 of the Constitution, which says:
“38.    General Qualifications on Qualified Rights
(1)      For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that:
(a)      regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary:
(i)       taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in:
(A)     defence; or
(B)      public safety; or
(C)     public order; or
(D)     public welfare; or
(E)      public health (including animal and plant health); or
(F)      the protection of children and persons under disability (whether legal or practical); or
(G)     the development of under-privileged or less advanced groups or areas; or
(ii)      in order to protect the exercise of the rights and freedoms of others; or
(b)      makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,
to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.
(2)      For the purposes of Subsection (1), a law must:
(a)      be expressed to be a law that is made for that purpose; and
(b)      specify the right or freedom that it regulates or restricts; and
(c)      be made, and certified by the Speaker in his certificate under Section 110 (Certification as to making of laws) to have been made, by an absolute majority.
(3)      The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.”
We consider that it is not necessary for us to consider whether s 38 (1) was complied with as the answer to Question 1 of the reference is to be determined under s 38 (2).
The Amending Law does not comply with paragraphs (a) and (b) of s 38(2). This Court has already dealt with non-compliance with this provision and its consequences. In State v NTN Pty Ltd [1992] PNGLR 1, the Court held as follows at p 7:
“Formal Requirements under s 38(2) of the Constitution
The relevant parts of s 38 are as follows:
‘38(1)  For the purposes of this subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2) ...’
‘38(2)  For the purposes of Subsection (1), a law must:
(a)      be expressed to be a law that is made for that purpose; and
(b)      specify the right or freedom that it regulates or restricts; and
(c)      be made and certified by the speaker in his certificate under s 110 (Certification as to making of laws) to have been made, by an absolute majority.’
It was submitted by counsel for the applicants that a failure to comply with any of the requirements under s 38(2) would render an Act invalid. Counsel for the State conceded this and in my view quite correctly.
The requirement under s 38(2)(a) is in dispute between the parties. The question is whether the Television (Prohibition & Control) Act 1986 has been ‘expressed to be a law that is made for that purpose’. What is the purpose that must be expressed? The meaning of the words ‘that purpose’ is to be interpreted in the light of the whole section. Section 38(1) of the Constitution sets out the purposes for which a law may be made when regulating or restricting a right. A law may be made for anyone of three different purposes:
1)       To give effect to public interest in defence, public safety, public order, etc. Section 38(1)(a)(i).
2)       To protect the exercise of the rights and freedoms of others. Section 38(1)(a)(ii).
3)       To make reasonable provisions for cases where the exercise of one such right may conflict with the exercise of another. Section 38(1)(b).
For the purpose of this provision, the Act must set out clearly the particular purpose for which the law is made. It is not sufficient for purposes of this provision to simply say that the Act is to regulate or restrict a fundamental right. That would not be compliance with s 38(2) of the Constitution.
A good illustration of compliance with s 38(2)(a) appears in the Vagrancy Act Ch 268. The preamble to the Act reads:
‘Being an Act to regulate or restrict the right or freedom referred to in Subdivision III.3.C of the Constitution namely the right to freedom of movement conferred by s 52 of the Constitution for the purpose of giving effect to the public interest in public order and public welfare taking into account the National Goals and Directive Principles and the Basic Social Obligations and in particular the following directive principles and social obligations:
a)       integral human development; and
b)       traditional villages and communities to remain as viable units in Papua New Guinea society; and
c)       each person to work according to his talents in socially useful employment; and
d)       each person to respect the rights and freedoms of others ....’
The Act in question provides as follows in s 1(1):
‘This Act, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.3.C (Qualified Rights) of the Constitution, namely the right to freedom of expression conferred by s 46 of the Constitution, is a law that is made for that purpose.’
While the section specifies the right which it restricts, it does not go on to explain or to express the purpose why such a right should be restricted. The words ‘is a law that is made for the purpose’ within the context of s 1, simply means the purpose or the reason for which the law is to restrict the right of freedom of expression. The section falls short of setting out the purpose for restricting the right as set out in the case of the Vagrancy Act. The omission of this is fatal to the State’s case. For this formal defect, the whole Act is invalid and therefore of no effect.” (per Kapi Dep. CJ with Kidu CJ and Amet concurring).
Again, at p 18 per Barnett J, with Amet and Woods JJ concurring:
“Accordingly, I find that the Television (Prohibition & Control) Act 1986 is a law which regulates and restricts the right to freedom of expression and publication and that the Act satisfies the substantive requirements of s 38(1). That being so, does the Television (Prohibition & Control) Act 1986 satisfy the formal requirements of s 38(2)?
This third claim by the applicant is successful and it is fatal to the respondent’s case.
For very good reasons, s 38 of the Constitution provides that a law which is intended to regulate or restrict a constitutional right must very carefully follow certain prescribed formalities. These are designed to bring to the attention of members of the National Parliament that the bill before them is intended to regulate or restrict one of the freedoms guaranteed by the Constitution and the reason why it is desirable to do so. The formalities are also designed to alert the public and special interest groups about what is being attempted and why. Not only is it expressly provided that the bill must specify what freedom is being restricted but, on a fair and liberal meaning of the section, it must also clearly be specified which of the allowable listed purposes it is sought to achieve by this restrictive law.
Unless the purpose for the regulation or restriction is also clearly stated (in this case ‘the public interest in public welfare’), citizens whose rights have been affected will not be in a position to assess whether the law complies with the Constitution or not; they could be uncertain whether to outlay the expense to challenge the law if the State could be quietly sitting on the knowledge that the true, but unstated, purpose was (for instance) defence or public order.
From the importance with which the Constitution treats the whole question of the guaranteed freedoms, and adopting a fair and liberal interpretation of s 38(2), it is required that a law which regulates or restricts the exercise of a right or freedom referred to in the Constitution’s Subdivision III.3.C (Qualified Rights) must clearly state which of the purposes specified in s 38(1)(a) it seeks to achieve.
The Television (Prohibition & Control) Act 1986 failed to do this and for that single but sufficient reason it is ultra vires the Constitution. The whole Act is, therefore, invalid and of no effect.”
On the authority of State v NTN Pty Ltd (supra), the provisions of the Amending Law dealing with voter identification card, and related matters - i.e. ss 1, 2, 3, 4, 5, 6, 8, 14, 15 and 16 - are invalid. The provisions in the Amending Law dealing with other matters are not affected by this ruling.
In view of this ruling, it is not necessary to consider whether these provisions are reasonably justifiable in a democratic society having proper respect for the rights and dignity of mankind under s 38(1) of the Constitution.
It also follows that it is not necessary to consider whether these provisions infringe the right to vote under s 50 of the Constitution and the right to equality under s 55 of the Constitution.
We answer the questions as follows:
Question 1:    Yes, in so far as it does not comply with section 38(2) of the Constitution.
Question 2:    It is not necessary to answer this question.
Question 3:    It is not necessary to answer this question.
Question 4:    The general elections in June 1992 can be lawfully held under the original provisions of the Organic Law on National Elections.
Lawyers for the applicant: Solicitor-General, J Baker and P Ame.