N590

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KISOKAU POCHAPON

V

POMBUMA COMMUNITY GOVERNMENT AND MANUS PROVINCIAL GOVERNMENT

Waigani
Kidu CJ
11 May 1987
13 May 1987

PARLIAMENT - Elections - Community government elections - Validity of - Conduct of to be prescribed by regulation - Resolution declaring local government regulations be adopted - Resolution ineffective as regulation - Community Government Act 1982 (Manus Province), ss 22, 82.

BYLAWS AND REGULATIONS - Making of - Effect of declaratory resolution - Power to make regulations prescribing community government elections - Power to prescribe manner of conduct of elections - Resolution declaring local government regulations be adopted - Resolution ineffective to make regulation - Community Government Act 1982 (Manus Province), ss 22, 82.

The Community Government Act 1982 (Manus Province), s 22, provides:

"Regulations shall prescribe the manner in which an election of members of a Community Government’s Assembly shall be conducted."

Section 82 provides:

"The Lapan Cabinet may make regulations not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for."

On 11 May 1983, the Lapan Cabinet passed a resolution as follows:

"That the Local Government (Electoral Provisions) Regulations be adopted to conduct the Community Government Elections."

On an application for a declaration that a community government election held in November 1986 was void,

Held

(1) For the purposes of s 22 and s 82, the word "regulation" means a substantive law to be made by the Lapan Cabinet.

(2) The power to make regulations in s 82 does not include a power to declare that rules or regulations otherwise made shall apply.

(3) In the absence of any draft regulations tabled before it for approval or otherwise, the resolution of 11 May 1983, was not effective to make regulations prescribing the manner of conducting community government elections.

(4) Accordingly, the elections held in November 1986, were void.

Summons

This was an application seeking a declaration that the election of members of the assembly of the Pombuma Community Government conducted in November 1986 was void in the absence of properly prescribed regulations for the conduct thereof.

Counsel

J Shepherd, for the plaintiff.
K Whimp, for the second defendant.
Cur adv vult

13 May 1987

KIDU CJ: In this application the plaintiff asks for the following orders:

1. A declaration that the election of members to the first defendant’s Assembly conducted in November 1986 is absolutely void by reason of:

(a) the non-existence of the Regulations referred to in Section 22 of the second defendant’s Community Government Act 1982 (Manus Provincial Government Act No 4 of 1982) (the Act); or

(b) the failure of the second defendant by its Lapan Cabinet to have made or enacted valid Regulations pursuant to s 82 of the Act for the purposes of s 22 of the Act; or

(c) the absence of any valid law prescribing or governing the manner in which election of members to the Assembly of a Community Government to which the Act applies shall be conducted.

2. Such further orders as may be sought or such further or other orders as this Honourable Court may think fit.

3. Costs.

COMMUNITY GOVERNMENT ACT 1982 (MANUS PROVINCE)

This Act of the Manus Province makes provisions for the setting up of Community Governments. Elections to establish Community Governments are to be conducted in accordance with Regulations to be made under the Act. Sections 22 and 82 of the Act provide as follows:

"Section 22. Community Government Electoral Regulations

Regulations shall prescribe the manner in which an election of members of a Community Government’s Assembly shall be conducted.

Section 82. Regulations

The Lapan Cabinet may make regulations not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for."

Section 82 empowers the Lapan Cabinet to make regulations required to be made under the Act. Section 22 allows the Lapan Cabinet to use its powers under s 82 to make regulations in respect of the manner in which election of members of Community Governments are to be conducted. The two provisions are complimentary and must be read together.

The Regulations contemplated by s 22 must be made for elections to Community Governments to be held. Without these Regulations there cannot be any valid Community Government elections in the Manus Province. This is, I consider, the clear intention of the Lapan Assembly expressed in s 22 of the Act.

It is contended by the second defendant (the first defendant is not represented in these proceedings) that a resolution of the Lapan Cabinet dated 11 May 1983 is the Regulation contemplated by s 22. This resolution, contained in the Minutes of Meeting No 3 of 1983 of the Lapan Cabinet, is as follows:

"That the Local Government (Electoral Provisions) Regulations be adopted to conduct the Community Government Elections."

This resolution is evidenced before me by an affidavit deposed to by Mr Bernard Borok who was the Secretary of the Lapan Cabinet during 1983.

The submission by the second defendant raises this question: Is a resolution of the Lapan Cabinet, in the absence of any draft Regulations tabled before it for approval or otherwise, a Regulation (or Regulations) as contemplated by s 22 and s 82 of the Community Government Act 1982 (the Act)?

A resolution usually means an expression of opinion or intention by a meeting. (A Concise Law Dictionary by P G Osborn (7th ed, 1983).) So any meeting, whether it be a meeting of the National Parliament, the National Executive Council, a Provincial Assembly, a Provincial Executive, etc can pass a resolution. But such a resolution, without more, does not become a law.

The meaning of the word "Regulation" in both s 22 and s 82 of the Act is very clear. It means substantive law, to be made by the Lapan Cabinet. And for a substantive law to be made it must be drafted and laid before the Cabinet for consideration and approval. If a resolution is passed in favour of the draft Regulation it becomes law. In my view a resolution made without a draft Regulation (I call it a bare resolution) is an intention that such a Regulation will be tabled and passed into law afterwards.

I consider that if the Lapan Assembly had wanted the Lapan Cabinet to enact Regulations by bare resolutions it would have said so in clear terms. For instance it would have worded s 22 as it worded s 81 of the Act. It provides as follows:

"(1) The Minister may, at the request of the Executive Committee of a Community Government declare that any Rules made by the abolished Manus Local Government Council shall continue to apply to that Government’s Community Government area."

Here the intention of the Lapan Assembly is clear. The Minister is empowered, on request, to declare former Local Government rules to apply to a particular Community Government area. Section 22 would have to be worded similarly to s 81 to have the effect contended for by the lawyer for the second defendant.

I find that the resolution passed by the Lapan Cabinet on 11 May 1983 is not a Regulation. There are no other Regulations which were made as provided for under s 22. Therefore I rule that the elections held under the resolution were invalid.

ORDERS

(1) That the elections of members to the first defendants’ Assembly conducted in November 1986 is void by reason of the non-existence of the Regulation referred to in s 22 of the Manus Province Community Government Act 1982 (Manus Province) (No 4 of 1982).

(2) That the second defendant pay the plaintiffs costs.

Orders accordingly

_________________

Lawyer for the plaintiff: K Y Kara.
Lawyer for the second defendant: K Whimp.