Unreported National Court Decisions
N1321
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 130 OF 1995
PANSAT COMMUNICATION PTY LTD - Plaintiff
v
JOHN MOMIS - 1st Defendant
And:
THE INDEPENDENT STATE OF PNG - 2nd Defendant
And:
Posts and Telecommunications Corporation - 3rd Defendant
Waigani
Sawong AJ
4 May 1995
25 May 1995
DECISION
INJUNCTION - Repeal of regulations by virtue of repeal of Act under which regulation made - inconsistency between an Act and Regulations made under it - invalidity of regulations.
STATUTORY INTERPRETATIONS - Interpretation of Regulations and provisions of Act - General powers and specific powers - Power to grant licences - who has authority to issue licences.
Held:
1.       The power of making regulations under the Radio Communications Act (ch. 152) has not been repealed.  Radio Communications Regulations (ch. 152) have not been repealed by Telecommunications Corporation (Consequential Amendments) Act 1982.  Posts and Telecommunications (Consequential Amendments) Act 1982 has amended Section 6 of Radio Communications Act (ch. 152) by giving the power to grant licences to the Board of the Third Defendant and not the Minister.  This is inconsistent with the Regulation 6, of the Radio Communication Regulations (ch. 152), which authorises the Minister to grant licences.  Accordingly Regulations 6, of the Radio Communications Regulations (Ch. 152) are invalid to the extent that it is inconsistent with Section 6 of the Radio Communications Act (Ch. 152).
Cases Referred to:
Telepage Pty Ltd v Posts & Telecommunication Corporation (Unreported Judgment of the National Court) 605
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Registrar of Titles v Franzon [1976] 50
ALJR for Australian Alliance Assurance Co Ltd vs Queensland [1916] Str Qt 135
Australian Boot Trade Employees Corporation v Whybrow & Co [1930] 11 CLR 311
NTN Pty Ltd and NBN Ltd v The State [1986] PNGLR 167
Kuyakehi v Kelu Theodore [1978] PNGLR 217
NTN Pty Ltd v The State [1986] PNGLR 1
Cases Cited:
The following cases are cited in the judgment:
NTN 9 Pty Ltd & NBN Ltd v The State [1986] PNGLR 167
Keti v Theordore [1978] PNGLR 217
Price v West London Investment Building Society Ltd [1964] 20 ER 318
Telepage Pty Ltd v Posts & Telecommunications Corporation (Unreported Judgment No N605)
Anthony Hordern & Sons Ltd & Others v Amalgamated Clothing & Allied Trade Union of Australia (1932) 47 CLR 1
Leon Holdings Pty Ltd v Australian Film Commission (1949) 141 CLR 672
Legislation Referred to:
Posts and Telecommunications Act (Ch 394)
Radio Communications Act (Ch 152)
Radio Communications Regulations (Ch 152)
Constitution of PNG (Ch 1)
Posts and Telecommunication Corporation (Consequential Amendments) Act 1982 (7 of 82)
Radio Communications Amendments Act 1983 (63 of 83)
Counsel:
Mr GJ Sheppard with TM Rei for Plaintiff
Mr DM Hill for 3rd Defendant
Mrs FT Walli for 1st & 2nd Defendant
25 May 1995
SAWONG AJ:  By an Originating Summons, the Plaintiff asks for the following orders:
1.       Interim, Interlocutory and permanent injunctions restraining the defendants from;
(i)       using, licensing, interfering with or otherwise dealing with in any manner whatsoever the 40 MHz of the Advanced Mobile Phone System (“AMPS”) A and B Radio Spectrum between the frequencies of 825Mhz and 845Mhz  for Base Station receive, and between the frequencies of 870 MHz and 890 MHz for Base Station transmit (“the specified frequency ranges”) which have been allocated by the State to the plaintiff; and
(ii)      requiring them to ensure that the specified frequency range remain unencumbered and that Guard Bands be set up which would enable the plaintiff to operate a mobile phone network in the specified frequency ranges free from interference from other systems, such guard bands to be outside the specified frequency ranges.
(iii)     requiring them to do all such things as may be necessary to give full effect to the cellular licence granted to the plaintiff by the State.
On the 12 April 1995, I granted interlocutory orders to the plaintiff in terms similar to paragraphs (i) and (ii) referred to above in the originating summons.  At that time it became apparent that as preliminary pointed, questions of law relating to the validity and or power of the Minister to grant the licenses to the plaintiff, should  be heard  and determined, prior to the hearing of the issues contained in the originating summons.  Subsequently the parties agreed to pose questions of Law to be argued before the Court.  This decision is in relation to the questions of law directed and filed.  The questions of law that need to be determined are in the following terms:
1.       Has a valid and enforceable license pursuant to s. 5 or s. 6 of the Radio Communications Act (Ch 152) (as amended) and the regulations made under the Act; to build, maintain, operate or otherwise work a cellular telephone network in Papua New Guinea been granted to the plaintiff by the second Defendant, and/or the third Defendant, the Posts & Telecommunication Corporation by the document annexed and marked “A”.
2.       And, if so, what period?
3.       Has a valid and enforceable licence pursuant to s. 5 or s. 6 of the Radio Communications Act Ch No 152 (as amended) and the regulations made under the Act, to build, maintain, operate or otherwise work a very small Aperture Terminal (VSAT) satellite network in PNG been granted to the plaintiff by the second Defendant and or the third Defendant, Posts and Telecommunication Corporation by the document annexed and marked “B”?
4.       And if so, for what period.
Both parties presented written submissions and each of their counsel then amplified their written submissions during the brief oral submissions.
The preliminary questions of law arise because the defendants say that the documents marked “A” and “B” respectively appended to the document containing the questions of law, are invalid.  The defendants submit that these documents are invalid as the Minister had no power under the Radio Communications Act (ch 152) (the “Act” and the Radio Communications Regulations (ch 152), (the “Regulations” to issue those documents to the plaintiff.  The plaintiff on the other hand says that these documents are valid documents and that the Minister in fact had the power under the Act and the Regulations thereunder to issue to it those documents.
I deal firstly with the Plaintiff’s submissions.  The plaintiff’s submission is that the then Minister had the power under section 5 of the Act and regulation 6 of the regulations to issue the licences.  In particular, counsel for the plaintiff submits that the licences that were issued to the plaintiff were special licences  which were issued pursuant to regulation 6 (2) of the Regulations and that in doing so, the Minister had the power to do so.  It concedes that under the provisions of s. 6 of the Act, the clear and unequivocal discretion to grant licences, vests solely with the Board of Post & Telecommunication Corporation.
Mr Sheppard further submitted that the annexes “A” and “B” which are appended to the questions of laws are not “licences” within the meaning of that word as it is used in s. 6 of the Act.  He submitted that those documents, were rather  “special licenses” within the meaning of that term as it is used in regulation 6 (2) and regulation 8 of the Regulations.  He says that there are two types of licences created under s. 6 of the Regulations, namely a licence under paragraph 1 and special licences under paragraph 2 of regulation 6.  He says that, accordingly, the term “special licence” as used in 6 (2) of the Regulation has a different meaning to the word “licence” as it is used in s. 6 of the Act.  Accordingly, Mr Sheppard says that the licences that were issued to Plaintiff were granted under the “special licence” provisions.  He says that as these licenses were special licences, issued pursuant to the powers of the Minister under Regulation 6 of the Regulations, they are valid special licences.  I accept the submission that under regulation 6 of the Regulations (ch 152) two types of licenses can be given, by the Minister, if he had the power and authority to do so.  However, in my view that is not the issue before me.  The issue is quite simply one of interpreting or construction of the powers contained in s. 6 of the Act as against the what appears to be powers contained in s 6 of the Regulations.
On the other hand, the defendants submit that the Minister had no power to issue the licences.  The defendants submit that the power to issue the licence vests with the Board of the 3rd Defendant, pursuant to s. 6 of the Act and not with the Minister.  They further submit that as regulation 6 is inconsistent with the provisions of s. 6 of the Act,  the provisions of the regulations are invalid as being inconsistent with the provisions of the Act.  That being the case, they submitted that, as the regulations (ie; regulation 6) are invalid vis-à-vis the provisions of s. 6 of the Act, the Minister had no power to issue the licences to the plaintiff.
The question of law arises because there is quite apparent that there is inconsistencies between s. 5 and s. 6 of the Act,  and s. 6 of the Regulations.  The relevant sections and regulations for our purposes are as follows:
“S. 5.  Subject to section 4, the Minister has the exclusive privilege of establishing, erecting, maintaining and operating stations and apparatus for the purposes of:
(a)      transmitting radio communications to, and receiving radio communications from, any base stations, all place, vehicle, vessel or aircraft in the country; and transmitting radio communications to, and receiving radio communications from, any space station, all place, vehicle, vessel or aircraft outside the country.”
On the other hand, s. 6 provides as follows:
“(1)    The Board, in accordance with the regulations, may grant licenses:
(a)      to establish, erect, maintain and operate stations and apparatus, for the purpose of transmitting and receiving telecommunications, or
(b)      to deal in, or let on hire or loan, apparatus, or to repair or adjust apparatus.
(2)      A licence shall be in such form, for such period and subject to such conditions as the Board thinks fit.”
Regulation 6 of the Regulations reads as follows:
“(1)    Licences in such forms as are approved by the Minister may be granted by the Minister in respect of the classes of stations specified in schedule 1.
(2)      Special licences in such forms as are approved by the Minister may be granted by the Minister in respect of:
(a)      stations of a class not specified in schedule 1; or stations in respect of which, in the opinion of the Minister, a licence to which Subsection (1) applies would be inappropriate.”
And so it is obvious, that section 5 of the Act, gives the Minister the exclusive privilege of establishing, erecting or maintaining and operating stations and apparatus for transmitting and receiving radio communications.
However, s. 6 of the Act, provides that the Board, (ie; the Board of PTC) in accordance with the regulations, may grant licences to establish, erect, maintain and operate stations and apparatus for the purposes of transmitting and receiving radio communications.  The licence is to be in such form and for such period and on such conditions as the Board thinks fit.
The Defendants submits that, because the regulation 6 is inconsistent with s. 6 of the Act, the Court should construe that the word “Minister” in regulation 6 should be construed to be replaced by the word “the Board”.  I do not think I can do that because that would amount to this court usurping the role of some other authority.
I do not accept the submission put by the plaintiff’s counsel that the licenses issued to the plaintiff were “special licenses” pursuant to regulation 6 of the Regulations.  I am of the view, that the plaintiff is asking the court to give meaning to provisions, which cannot be given the meaning as suggested to by Mr Sheppard.  To interpret the legislation as proposed by Mr Sheppard is to interpret the legislation contrary to well established principles of statutory interpretation and construction.
With great respect, I do not think it is necessary to go out of PNG to find an aid to interpret points of law that has been posed in this case, for the simple reason that the authorities cited are not binding upon this court.  However, I bear in mind that they are of some persuasive value.
I am of the view that one must start with the Constitution of Papua New Guinea.  Section 10 of the Constitution of PNG establishes how the written laws of Papua New Guinea are to be constructed.
Section 10 of the Constitution of Papua New Guinea reads as follows:
“Construction of Written Laws
All written laws (other than this Constitution) shall be read and construed subject to:
(a)      In any case - this Constitution; and
(b)      In the case of Acts of Parliament - any relevant organic laws; and
(c)      In the case of adopted laws or subordinate legislative enactments - the organic laws and the laws by or under which they were enacted or made, and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess to the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.”
Thus it is clear in my view that the regulations are subject to the laws by or under which they were enacted or made.  In other words, in my view a regulation or regulations made pursuant to Act of Parliament, are to be read subject to the provisions of an enabling Act and not visa-versa.  In NTN Pty Ltd v The State [1986] PNGLR 167, the late Chief Justice, Sir Buri Kidu, said at 178:
“When an Act of Parliament authorises an authority to make regulations or rules of bylaws then the authority must act within the powers given to it.  If it goes beyond those powers then it exercises powers that are not given to it by the relevant Act of Parliament.  The Constitution of Papua New Guinea says this in s. 10 thereof...”
The authorities sighted by the defendants all go to support the proposition that the regulations cannot enlarge the power of the Minister enabling to issue licenses when the Act does not give that power to him but to some other authority such as the Board of the 3rd defendant.
The cases cited which supported the proposition by the defendants are: NTN Pty Ltd and NBN Ltd v The State [1986] PNGLR 167; Kehi v Theodore [1978] PNGLR 217; Price v West London Investment Building Society Ltd [1964] 20 ER 318, at 322.  Halsbury’s Laws of England, 4th edition, vol. 44 para. 1001 fn. 5.  It is quite clear from the authorities cited and the principles of law embodied in  those authorities that the regulations cannot enlarge the power of the Minister when the provisions of the Act do not give him that power to issue licences.  Thus the subordinate legislation may be ultra vires or outside the scope of, the enabling power or not authorised by it because the provision by which the power is conferred is, in that respect, ultra vires the enabling power, on which it in turn depends.  (See Halbury’s Laws of England, 4th ed. Vol 44, para.1001.)
Thus, a regulation may be invalid as it is inconsistent with the provisions of the enabling Act.  To the extent that that particular regulation is invalid, it follows that whatever power is contained in that particular regulation, is non existent so that, any purported power contained in that regulation cannot be exercised, and if it is exercised, that particular act maybe declared to be invalid.
In Telepage Pty Ltd v Post & Telecommunications Corporation (Unreported Judgment No N605) Kapi Dep CJ considered this particular issue.  In that case, His Honour considered, inter alia, the question of the invalidity of the Radio Communications Regulations (Ch 152).  The Plaintiff in that case sought, inter alia, a declaration that whole of the provisions of the Radio Communications Regulations are void and of no effect by reason of the provisions of Post & Telecommunication Corporation (Consequential Amendments) Act 1982 (No 7 of 1982).  Alternatively, the Plaintiff’s counsel in that case submitted that, if the whole of the regulations are not void and of no effect, then the various sections of the Regulations should be declared to be void and of no effect. His Honour said, at p. 34:
“The Radio Communications regulations (Ch 152) were made in accordance with s. 14 of the Radio Communications Act (Ch 152).  Under this provision, the Head of State acting on advice makes regulations.  These regulations were required amongst other things for the purposes of enabling the Minister to grant licences under s. 6 of the Radio Communications Act.  However, by creation of a Post & Telecommunication Corporation Act 1982, s. 6 of the Radio Communications Act was amended by Post & Telecommunication Corporation (consequential amendments) Act 1982 (No 7 of 1982).  In so far as it is relevant, schedule 2 of this Act amended s. 6 (1) by substituting Minister for the Board.  Under this amendment, the Board of the Corporation is given the discretion to grant licenses.  Section 5 of the Radio Communications Regulations (in my view the correct reference ought to have been the Act and not Regulations) (Ch 152), the Minister still retains the exclusive privilege of establishing, erecting, maintaining, operating stations and apparatus.  When the Act amended s. 6 (1) of the Radio Communications Act, no further provision was made in relation to the then existing Radio Communications regulations (Ch 152).  The provisions relating to the regulations made reference to the Minister granting licences, permits and other related matters. These have not been amended.”
Has the Consequential Act of 1982 repealed the Radio Communications Regulations (Ch 152).
The law relating to repeal of regulations by virtue of repeal of the Acts which enables the regulations to be made can be found in the judgment of Lord Reading CJ in Watson v Vince [1916] 1KB 688 at 690.  The issue was put by Lord Reading in these terms:
“Upon these facts a questions arises which has not been decided by any Court, namely, whether the repeal of an Act which enabled a corporation to make bylaws, involving as it does to the revocation of the power of the corporation to make them, has the effect of repealing bylaws already made under the power while it existed, or whether the bylaws remain in force notwithstanding the repeal of the statute under which they were made.  The question is one of general importance, and argument on behalf of the defendant makes us regret that the respondent was not represented...it was said in Surtees v Elison (1):
‘It has been long established that when an Act of Parliament is repealed, it must be considered (except as to transactions passed and closed,) as if it had never existed.  That is the general rule; and we must not destroy that, by indulging conjecture as to the intention of the legislature).’
To that passage it is only necessary to make one qualification, namely, that since that case, Lord Brougham’s Act (13 and 14 Vict. c. 21) and the Interpretation Act 1889, have been passed, and one must now bear the later Act in mind.  It would follow that any bylaw made under a repealed statute ceases to have any validity unless the repealing Act contains some provision preserving the validity of the bylaw notwithstanding the repeal.  Applying that principle to this case, it follows that the bylaws made under the Norwich Improvement Act, 1879, have no longer any validity and that the conviction must be quashed.”
In the present case, Radio Communications Act has not been repealed but amended only in certain provisions.  The power to make regulations under which the Radio Communications Regulations were made is vested in the Head of State acting on advice under Section 14 of the Radio Communications Act.  The rule making power under Section 14 of the Act has not been amended.  That being the case, there is no question of the  repeal of the regulations.  There is one other amendment to the Act which is relevant to the powers of making regulations.  Section 14 of the Act was amended by Radio Communications Amendment Act 1983 (63 of 1983) by repealing as 14 (C) of the Act.  That is to say, the power given to the Head of State, acting on advice, can no longer make regulations prescribing the fees for any matter under the Act or the Regulations.  This has the effect of repealing any regulations which prescribes a fee for such matters.  Subject to this amendment, the regulations are still in force.
The next question which arises, is, whether, the regulations are inconsistent with the provisions of the Act, as amended.  That of course is required by the terms of s. 14 of the Act.  After the Consequential Act was passed by the Parliament to amend the Act, no consequential amending regulations by Head of State acting on advice pursuant to s. 14 of the Act was enacted to amend the Regulations.  The Regulations as they stand is inconsistent with s. 6 of the Act, in that, s. 6 now vests the discretion to grant licenses in the Board of Telecommunication Corporation whereas under the Regulations, the discretion is still to be exercised by the Minister.  To this extent, regulations which purport to give the discretion to the Minister is inconsistent with s. 6 of the Act.  Such provisions, therefore, are invalid.  The power of the Board to grant license under s. 6 of the Act is not affected”.  (emphasis is mine)
I am of the view that the above passage accurately reflects the true legal position between the provisions of the Radio Communications Act (ch 152) and the Radio Communications Regulations (ch 152).  I agree with what his Honor said.
The law as it stands today, is clear.  The Radio Communication Regulation (ch 152) has neither been amended nor repealed.  When the Parliament passed the Consequential Act, the Head of State, acting on advise, did not amend the regulations.  The consequence then, in my view, is that regulations remained intact.
But the regulations, in particular regulation 6, as it stands has not been repealed or amended.  And because it has not been repealed or amended, it is inconsistent with s 6 of the Act.
I therefore find that as regulation 6 of the Regulations is inconsistent with s 6 of the Act, it is to that extend invalid.
In case I am wrong on this point, I am of the view that s. 5 of the Act does not give any power to the Minister to grant licenses for the purposes set out in s. 6 of the Act. The power to grant licenses is vested with the Board of Post and Telecommunication Corporation pursuant to the provisions of s. 6 of the Act.  In my view, there are two separate and distinct powers created by s. 5 and s. 6 of the Act respectively.  Section 5 of the Act confers a general power on the Minister to establish, erect, maintain and operate stations and apparatus for the purposes of Radio Communications.  Section 5 of the Act does not give the power to the Minister to grant licenses.
However, s. 6 of the Act is a specific provision which prescribes the power on the Board of PTC to issue licenses.  Thus, I accept the submissions put forward by the defendants that where there is a conflict between the general provision and specific provisions in a statute, the specific provisions prevail.  In other words the general power cannot be exercised, to that, which is the subject of the specific power given to a specified authority.  In Halsbury’s Laws of England, 4th Edition, vol. 44 paragraph 875, this issue was put as follows:
“Whenever there is a general enactment in a statute which, if taken in its most comprehensive sense, would override a particular enactment in the same statute, the particular enactment must be operative, and the general enactment must be taken to effect on the other part of the statute to which it may properly apply.  This is merely one application of the maximum that general things do not delegate from  special things.”
In Anthony Hordern & Sons Ltd vs Amalgamated Clothing & Allied Trade Union of Australia (1932) 47 CLR 1, the High Court there considered the interpretation of the provisions of the Commonwealth Conciliation and Arbitration Act of Australia.  For our purposes,  that Act contained a specific provision and a general provision.  The learned judge of the Conciliation Arbitration Court made certain orders pursuant to the general powers.  On appeal to the High Court, the Court in that case held that the power of the court to grant preferences to unionist was limited by s. 40 of the Commonwealth Conciliation and Arbitration Act, and that the provisions of the award relating to  preferences were invalid as not complying with the requirements of the specific section.  Duffy CJ and Dixon J said at 7:
“When the legislator explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expression in the same instrument which might otherwise have been relied upon for the same power.”
In Leon Holdings Pty Ltd vs Australian Film Commission (1949) 141 CLR 672, at (678) Mason J said:
“It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power.”
I accept these principles of constructions and apply them to the present case.  I am of the view that as s. 6 of the Act give specific powers to the Board of Post & Telecommunication Corporation to issue licenses in the form, for the period and subject to such other qualification as the Board thinks fit.  Section 6 of the Act does not give the power to the Minister to issue licences.
In summary then, I am of the view that s. 5 of the Act is a general power given to the Minister, a power not relating to issuing of licenses.  The power to issue licenses is a specific power, which is vested on the Board of Post and Telecommunication Corporation (PTC) by virtue of s. 6 of the Act, which is a specific provision relating to issuing of licenses by the Board.  In my view the Parliament had clearly and explicitly given the specific power of issuing licenses, to the Board of PTC by Section 6 of the Radio Communications Act (ch 152).  Section 5 of the Act is in my view a general power, which is not subject to any limitations and qualifications.  Section 5 of the Act, does not give the Minister the power to issue licences.  That being the case, the general power cannot be exercised to do that which is the subject of the specific power.  Thus, in this case, the general power set out in Section 5 of the Act cannot be exercised to issue licenses, which is the subject of the specific power contained in s. 6 of the Act.
I further find that regulation 6 of the Radio Communications  Regulations (ch 152), is inconsistent with the provisions of s. 6 of the Radio Communications Act (ch 152).  To the extent that the said regulation is inconsistent with that of s. 6 of the Act, it is invalid, and is of no force and effect.
It follows from what I have said that the questions of law that have been posed, are answered as follows:
Questions 1 and 3 - No.
Questions 2 and 4 - Not necessary to answer.
Before, I finish, I would like to say something about the inaction of those powers who have the authority to correct this matter.  In 1987, this Court in Telepage case said that the provisions of Radio Communications Regulations as it stood then, were, in consistent with s 6 of the Radio Communications Act (ch 152).  To the extent that the regulations which purported to give the discretion to the Minister was inconsistent with s 6 of the Act, those regulations were invalid.
I have also come to the same conclusion today and I urge those authorities who are responsible for enacting the regulations, to make the necessary changes to the Radio Communications Regulations (ch 152) so that these inconsistencies do not arise in the future, and that the provisions of both the Regulations and the Act are consistent with each other.
Lawyers for the Plaintiff:  TM Rei
Lawyers for the 1st and 2nd Defendants:  Solicitor General
Lawyers for the 3rd Defendant:  Allans Arthur Robinson