N10706
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO 8 OF 2023

THE STATE

V

KILA AONEKA WARI

Waigani: Berrigan J
2024: 2nd April

CONSTITUTIONAL LAW – S 18, CONSTITUTION – Jurisdiction of Supreme Court as to questions relating to interpretation or application of provisions of constitutional laws – Referral by the National Court of questions to Supreme Court – Section 46, Freedom of Expression and Publication – Section 21(2), Cybercrime Code Act.

An accused person was committed to stand trial at the National Court on one charge of defamatory publication, contrary to s 21(2) of the Cybercrime Code Act, 2016, for which the maximum penalty in the case of a natural person is a fine not exceeding K25,000 or a term of imprisonment not exceeding 15 years or both. At trial it was established that certain statements were made by the accused on a public social media platform in relation to the complainant, who is her brother-in-law and was a candidate in the National General Election at the time. The State alleges that the accused deliberately posted defamatory material which was false and intended to damage the reputation of the complainant as a leader, paramount chief and businessman. The accused claims defences of truth, public benefit, fair comment and good faith. Counsel for the accused contends that questions concerning the interpretation and application of ss 41, 46 and 51 of the Constitution have arisen requiring determination by the Supreme Court. The State submits no such questions arise. 

Held:

(1)	Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court such that where any question relating to the interpretation or application of any provision of a Constitutional law arises before the National Court it is required pursuant to s 18(2) of the Constitution to refer the matter to the Supreme Court, except where the question is trivial, vexatious or irrelevant: Public Prosecutor v Nahau Rooney  (No 1) [1979] PNGLR 403; Somare v Manek (2011) SC1118.

(2)	Questions of Constitutional interpretation and application have arisen in these proceedings with respect to s 46 of the Constitution, namely: (a) whether s21(2) of the Cybercrime Code Act regulates or restricts the right of freedom of expression and publication under s 46 of the Constitution; (b) if so, whether s 21(2) of the Cybercrime Code Act complies with the requirements of s 38 of the Constitution; and c) whether s 21(2) of the Cybercrime Code Act is invalid for being inconsistent with s 46 of the Constitution.

(3)	No such questions arise with respect to ss 41 and 51 of the Constitution.

(4)	The questions arising with respect to s 46 of the Constitution are not trivial, vexatious or irrelevant. The questions are not irrelevant. The questions are not unnecessary. The questions have not been finally and authoritatively interpreted and applied by the Supreme Court before.  No other provision of the Constitution or any other constitutional law gives the National Court jurisdiction to interpret and apply s 46 of the Constitution to s 21(2) of the Cybercrime Code Act. 

(5)	The Court is obliged to refer the questions to the Supreme Court.

(6)	The verdict in the criminal proceedings is reserved pending determination by the Supreme Court of the questions referred: SCR No 2 of 1981; Re Section 19(1)(f) of the Criminal Code [1982] PNGLR 150 applied.

Cases Cited

Public Prosecutor v Nahau Rooney (No 1) [1979] PNGLR 403
Somare v Manek (2011) SC1118
O'Neill v Ombudsman Commission of Papua New Guinea (2014) N5828
O'Neill v Ombudsman Commission of Papua New Guinea (2015) N5857
O'Neill v Kaluwin (2015) N5843
Lupari v Somare (2008) SC930
Raz v Matane [1985] PNGLR 495 
Patterson Lowa v Wapule Akipe & Ors [1992] PNGLR 399
SCR No 1 of 1986; Re Vagrancy Act [1988-89] PNGLR 1
Cory v Blythe [1976] PNGLR 274 
The State v Kosi and Ors (1981) N306 
Hetura Paz Development v Niugini Nius P/L [1982] PNGLR 250
The State v NTN Pty Ltd and NBN Ltd [1992] PNGLR 1 
In the Matter of Section 18(1) of the Constitution and in the Matter of Bill Skate MP (2001) SC678 
Commissioner of Correctional Services [1982] PNGLR 405
SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379
Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60
Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479
Haiveta v Wingti (No 1) [1994] PNGLR 160
Isaac Lupari v Sir Michael Somare (2008) N3476
Alois Kingsley Golu v Regett Marum (2013) N5104
SCR No 2 of 1981; Re Section 19(1)(f) of the Criminal Code [1982] PNGLR 150
Jacquline Okuta & Anor v Attorney General & 2 Ors [2017]
Belpietro v Italy (2013)
Mika v Greece (2013)
Maripori v Finland (2013)
Konaté v. Burkina Faso, No. 004/2013

References Cited

Section 18, 38, 39, 46, 51 of the Constitution.
Section 1, 21, 22, 23 of the Cybercrime Code Act, 2016
Section 25 of the Defamation Act, 1962
Section 362E of the Criminal Code
Section 3 of the Criminal Code (Amendment) Act, 2016
Section 4 of the Defamation (Amendment) Act, 2016
Coroners and Justice Act, 2009 (UK)
Section 365 Criminal Code, Queensland
Section 10, Wrongs Act, Victoria
Section 204, Criminal Code, Northern Territory
Section 298, Criminal Code, Canada 

Counsel

Ms L Jack, for the State 
Mr S Javati, for the Accused

DECISION PURSUANT TO SECTION 18(2) OF THE CONSTITUTION 

2nd April 2024

1.	BERRIGAN J: Kila Aoneka Wari, an accused person before the National Court, seeks to have questions relating to the interpretation or application of a constitutional law referred to the Supreme Court pursuant to s 18(2) of the Constitution.

2.	The accused was committed to stand trial at the National Court on one charge of defamatory publication, contrary to s 21(2) of the Cybercrime Code Act, 2016, for which the maximum penalty, in the case of a natural person, is a fine not exceeding K25,000 or a term of imprisonment not exceeding 15 years or both. 

3.	A trial proceeded at which the evidence established that the complainant, Wari Vele, was a candidate for the National Capital District Governor’s seat in the 2022 National General Elections. The complainant was formerly the Governor of National Capital District in 2006 and 2007.  The complainant is the accused’s brother-in-law, such that the complainant is married to his wife, Kila Vele.  The accused and Kila Vele are sisters.  The accused was a supporter of another person, her uncle, who was a rival candidate in the election. The accused was formerly employed by the complainant when he was the Governor of NCD. On 30 May 2022 a war of words erupted between the accused and her sister on a public Facebook account in relation to Mr Vele’s election campaign, during which the accused said “Veki Construction, you used us to steal from NCD na yupla yet kaikai millions mipla sign lo cheque book ya”.  It is the State’s case that the accused deliberately posted defamatory material which was false and intended to damage the reputation of the complainant as a leader, paramount chief and businessman by implying criminal conduct on his part. The accused claims defences of truth, public benefit, fair comment and good faith. 

4.	Following the close of evidence for both parties and prior to hearing submissions on verdict, counsel for the accused indicated that he intended to raise constitutional questions for referral.  The parties were heard on that matter, and on verdict, which has been reserved pending this decision.

Section 18 of the Constitution

5.	Section 18 of the Constitution provides:

18. Original interpretative jurisdiction of the Supreme Court.
 
(1) Subject to this Constitution, the Supreme Court has 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.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the 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.

6.	Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court such that where any question relating to the interpretation or application of any provision of a constitutional law arises before the National Court, it is required pursuant to s 18(2) of the Constitution to refer the matter to the Supreme Court, except where the question is trivial, vexatious or irrelevant: Public Prosecutor v Nahau Rooney  (No 1) [1979] PNGLR 403; Somare v Manek (2011) SC1118 at [92]; O'Neill v Ombudsman Commission of Papua New Guinea (2014) N5828 at [50] to [53]; O'Neill v Ombudsman Commission of Papua New Guinea (2015) N5857 at [23] to [30]; and O'Neill v Kaluwin (2015) N5843 at [22].

7.	A question may be referred pursuant to s 18(2) only where:  (a) there is an issue as to the interpretation or application of a provision of a constitutional law; (b) the question is not trivial, vexatious or irrelevant; (c) the Supreme Court has not previously finally and authoritatively interpreted and applied the particular constitutional provision; and (d) no other provision of the Constitution or any other constitutional law give the National Court jurisdiction to interpret and apply the Constitutional law:  Lupari v Somare (2008) SC930 at [13]; see also Raz v Matane [1985] PNGLR 495. 

8.	It is therefore necessary to ask: (a) have questions relating to the interpretation or application of a provision of a constitutional law arisen in these proceedings?; (b) if yes, should those questions be referred to the Supreme Court?; and (c) if yes, how should the questions be framed?

HAVE QUESTIONS RELATING TO THE INTERPRETATION OR APPLICATION OF PROVISIONS OF A CONSTITUTIONAL LAW ARISEN? 

Submissions

9.	Defence counsel submits that s 21 of the Cybercrime Code Act offends against ss 46 and 51 of the Constitution which guarantee freedom of expression and freedom of information, respectively, and that s 21 is harsh and oppressive within the meaning of s 41 of the Constitution. In support of his submission he says that a civil remedy is available under the Defamation Act, 1962, the penalties under s 21 are harsh, and s 21 does not provide any opportunity for an accused to retract or apologise, unlike s 25 of the Defamation Act. He seeks to have two questions referred to the Supreme Court:

•	Does the Cybercrime Code Act 2016 offend ss 46 and 51 of the Constitution?
•	Is s 21 of the Cybercrime Code Act harsh and oppressive within the meaning and intent of s 41 of the Constitution?

10.	The State submits that freedom of expression under s 46 is a qualified right and may be regulated or restricted by law. Section 1(1) and (2) of the Cybercrime Code Act comply with the requirements of the Constitution for this purpose.  The law is therefore valid and no question arises.   It made no submissions as to the substantive requirements of s 38 or regarding ss 41 and 51 of the Constitution.

SECTION 46, FREEDOM OF EXPRESSION

11.	Section 46 of the Constitution is a qualified right.  It confers the right of freedom of expression to every person unless and until the Parliament passes a law to restrict such freedom:

46. Freedom of expression.
 
(1) Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by a law—

(a) that imposes reasonable restrictions on public office-holders; or
(b) that imposes restrictions on non-citizens; or
(c) that complies with Section 38 (general qualifications on qualified rights).

(2) In Subsection (1), "freedom of expression and publication" includes—
(a) freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and
(b) freedom of the press and other mass communications media

(3) Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations—
(a) for the communication of ideas and information; and
(b) to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,
and generally for enabling and encouraging freedom of expression.	

12.	Section 38 of the Constitution provides (emphasis mine):

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.

13.	Section 21(2) of the Cybercrime Code Act creates the offence of defamatory publication:

21 DEFAMATORY PUBLICATION

(1) For the purposes of this Section -

"publication" means using an electronic system or device to make publicly available defamatory material to persons other than the defamed person and includes electronic writings, images, audio, visual or audiovisual recordings;

"defamatory material" means an imputation, whether directly expressed or by implication, insinuation, innuendo or irony, that concerns a person or a member of his family, whether living or dead, with the intention of -
(i) injuring the reputation of that person; or
(ii) injuring the profession or trade of that person; or
(iii) inducing other people to shun, avoid, ridicule or despise that person.

(2) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, or recklessly, uses an electronic system or device to publish defamatory material concerning another person, is guilty of a crime.
Penalty:
(a) In the case of a natural person, a fine not exceeding K25,000.00 or a term of imprisonment not exceeding 15 years, or both; and
(b) In the case of a body corporate, a fine not exceeding K100,000.00.

(3) Where the offence under Subsection (2) is committed with the knowledge that the published defamatory material is false, the offender is guilty of a crime.
Penalty:
(a) In the case of a natural person, a fine not exceeding K50,000.00 or imprisonment for a term not exceeding 25 years, or both
; and
(b) In the case of a body corporate, a fine not exceeding K500,000.00.

(4) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, or recklessly, uses an electronic system or device to publish, or directly or indirectly threaten to publish or offer to prevent the publication of, defamatory material concerning another, for the purpose of -
(a) extorting from that other person or any other person; or
(b) inducing a person to -
(i) give or confer; or
(ii) procure or to attempt to procure,
upon or for a person, any property or benefit of any kind, is guilty of a crime.
Penalty:
(a) In the case of a natural person, a fine not exceeding K100,000.00 or imprisonment for a term not exceeding 25 years, or both; and
(b) In the case of a body corporate, a fine not exceeding K1,000,000.00.

(5) It is a defence to a charge for an offence under this section that the defamatory material published 
(a) was true; or
(b) was for the benefit of the public; or
(c) constituted a fair comment; or
(d) was made in good faith.

(6) Whether or not the publication complained of is true, or was made for the benefit of the public, or constitutes fair comment, or was made in good faith, is a question of fact.

(7) Where the defence of good faith is raised under Subsection (5)(d), the burden of proof shifts to the party alleging the absence of good faith.

(8) Where the defamatory publication consists of or relates to electronic writings, images, audio, visual or audiovisual recordings of a sexual nature or depicting sexual conduct, the defence of truth is not available to the offender notwithstanding that the published defamatory material complained of was produced with the knowledge or consent of the person defamed.

(9) The provisions of Section 362E of the Criminal Code Act (Chapter 262), relating to protection of matters of public interest, apply to this section.

(10) For the purpose of Subsection (9), "public meeting" referred to in Section 362E of the Criminal Code Act (Chapter 262) includes online discussion forums whether or not they are featured on social networking sites.

14.	In summary, it is an offence for a person to intentionally or recklessly publish defamatory material using an electronic system or device, for which the maximum penalty is K25,000 or a term of imprisonment not exceeding 15 years, or both in the case of an individual. Where the offence is committed with knowledge that the defamatory material is false the maximum penalty is K50,000.00 or imprisonment for a term not exceeding 25 years or both. (Section 21(4) creates a distinct offence, that of threatening to publish defamatory material for the purpose of extorting a benefit.) Regardless of whether the conduct is reckless, intentional, knowingly false or threatening, defences of truth, public benefit, fair comment and good faith apply, other than when the material is of a sexual nature.  Where good faith is raised the burden shifts to the accused.  Absolute defences in certain cases – for instance in respect of parliamentary or court proceedings and at public meetings - under s 362E of the Criminal Code apply. (The defences under s 362E were inserted into the Criminal Code by s 3 of the Criminal Code (Amendment) Act, 2016 when it was amended to include an offence of criminal defamation which does not require publication using an electronic system or device. The offence of defamatory publication in the Defamation Act, 1962 was repealed in the same year by s 4 of the Defamation (Amendment) Act, 2016.)  

15.	 The fundamental question the accused is seeking to refer to the Supreme Court is whether s 21(2), and therefore s 21(3) of the Cybercrime Code Act, is valid. 

16.	It is well established that s 18(2) of the Constitution applies to questions relating to the validity of a law.  “[W]hen the [Supreme] Court applies a provision of a constitutional law against a provision of an Act or Regulation and the latter is contrary to the constitutional law it may declare the latter invalid or unconstitutional”:  Patterson Lowa v Wapule Akipe & Ors [1992] PNGLR 399.

17.	In determining whether a question as to the validity of s 21(2), Cybercrime Code Act arises for consideration by the Supreme Court it is necessary to consider whether any or all of the following questions arise: (a) does s 21(2) regulate or restrict the right of freedom of expression and publication?; (b) if so, does it comply with the substantive provisions of s 38 of the Constitution?; and (c) does it also comply with the formal requirements of s 38 of the Constitution?: see SCR No 1 of 1986; Re Vagrancy Act [1988-89] PNGLR 1.

Does a question arise as to whether s 21(2), Cybercrime Code Act regulate or restricts the right of freedom of expression and publication?

18.	It appears that there is no dispute between the parties, and I must admit that it initially appeared to me, that there is no question that s 21(2), Cybercrime Code Act does regulate or restrict the qualified right of freedom of expression and publication. It makes it an offence with severe penalties to publish certain material using an electronic system or device.

19.	As observed by the authors of The Annotated Constitution, 1984, at page 173, the language of s 46(1) is “wide and without apparent qualification, ostensibly conferring the right to absolute freedom of speech to citizens unless and until the Parliament passes a law which complies with s 38 to restrict such freedom”. As also observed by the authors, however, s 46 has provoked inconsistent judicial responses. 

20.	In Cory v Blythe [1976] PNGLR 274 a defendant in a civil action for defamation brought under the pre-Independence Defamation Act 1962 applied to amend his defence by adding a pleading to the effect that the Act was inconsistent with s 46.  Raine J dismissed the application as “vexatious” and possibly “trivial”, saying “I cannot see for a moment, until better instructed that s. 46 inhibits actions for defamation”. A similar view was expressed in obiter by Kidu CJ in The State v Kosi and Ors (1981) N306 whilst dealing with criminal charges of unlawful assembly, such that “[a]nything uttered in a meeting or rally that advocates violence or force or that defames is in my opinion outside the protection guaranteed by the Constitution”.  

21.	On the other hand, in Hetura Paz Development v Niugini Nius P/L [1982] PNGLR 250, Kapi DCJ, whilst dealing with civil defamation proceedings said:

“Insofar as an Act is dealing with the regulation or restriction of the right of all persons in the country, it must comply with the requirements in s. 38 of the Constitution (s. 46(1)(c) of the Constitution). An interesting issue which arises is whether the Defamation Act which applies to all persons complies with s. 38 of the Constitution.”.  

22.	The authors go on to concur with Goldring’s, The Constitution of Papua New Guinea, Law Book Company 1978 that “it is certainly arguable that the freedom of expression conferred by s 46 does substantially affect the law of defamation, which is a very substantial restriction on what a person may speak, write or otherwise publish”, and add that it appears equally arguable that the Criminal Code is also subject to and limited by s 46.  

23.	I have been unable to find Supreme Court authority which has determined the issue, particularly with respect to any criminal offence of defamation. 

24.	It follows that a preliminary question as to whether s 21(2) of the Cybercrime Code Act regulates or restricts the right of freedom of expression and publication arises. 

Does a question arise as to whether s 21(2), Cybercrime Code Act complies with the substantive requirements of s 38 of the Constitution? 

25.	Assuming that the right to freedom of expression and publication is regulated or restricted by s 21(2), Cybercrime Code Act further questions arise as to whether s 21(2) is a law that complies with the substantive provisions of s 38 of the Constitution for that purpose.

26.	Having regard to s (1) of the Cybercrime Code Act, it appears that the public interest in public safety, public order and public welfare are the heads of public interest set out in 38(1)(a) which are most relevant for present purposes.

27.	Accordingly, to comply with the substantive requirements of s 38(1) of the Constitution, s 21(2) of the Cybercrime Code Act must:

a)	“regulate or restrict” the freedom of expression and publication and do no more than that;
b)	be “necessary” for the purpose of giving effect to the public interest in public safety, public order and public welfare; and
c)	not regulate or restrict the freedom beyond the extent that the law is “reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind”,

noting that for the purposes of initial analysis the three criteria warrant separate study but in arriving at the proper meaning of the section must be seen as interacting with each other: The State v NTN Pty Ltd and NBN Ltd [1992] PNGLR 1 per Barnett J, Amet and Woods JJ concurring.  See also Kapi DCJ, Kidu CJ concurring for a similar approach.

28.	Whilst there was some divergence of views in NTN as to whether “restriction” extends to “prohibition”, the essential question is whether s 21(2), Cybercrime Code Act constitutes a permissible restriction of the right to freedom of expression.  The determination of that question depends on whether s 21(2) is “necessary” and “reasonably justifiable”. 

29.	Whether s 21(2) is “necessary” for the purpose of giving effect to the public interest in public safety, public order and public welfare is distinct from the question of whether it is “reasonably justifiable”: NTN, Kapi DCJ, Kidu CJ concurring; and Barnett J, Amet and Woods JJ concurring.

30.	According to Kapi DCJ in NTN the word “necessary” implies that fundamental rights should not be regulated or restricted if there is another way of effectively protecting the public interest:

“This is consistent with the spirit of the Constitution that the freedom should be enjoyed with the least amount of restriction. See s 32(1) of the Constitution. This is also apparent from the spirit of s 38 of the Constitution, in that rigid requirements are demands for laws which either "regulate" or "restrict" a fundamental right. It is therefore, proper to inquire whether there is an alternative way of protecting the public interest without unnecessarily restricting the enjoyment of a fundamental right.”

31.	It is therefore relevant, as accused counsel submits, to the issue of whether the restriction in s 21(2) which criminalises defamatory publication is necessary in view of the fact that an aggrieved person may pursue a civil remedy in the form of damages for defamation, noting further that they will usually bear any costs in the event that they are unsuccessful. Thus it might be argued that there is an alternative way of effectively protecting the public interest without unnecessarily restricting the enjoyment of the fundamental right.

32.	In the same case Barnett J, Amet and Woods JJ, concurring, said that whether a restriction is necessary should be considered with a due sense of proportion, balancing the nature and duration of the regulation or restriction against the urgency and desirability of the public welfare (and here), public safety and public order sought to be promoted or protected whilst having regard to the National Goals and Directive Principles and Basic Social Obligations when performing that task.

33.	I consider therefore that it may also be relevant to the issue to consider on one hand: the broad nature of the offence, including the elements of intention, the definition of defamatory material, and that it does not appear that actual damage is required; the very severe penalties applying; the impact and in some cases significant financial cost of the criminal process on an accused person, even if acquitted; the potentially “chilling effect” on free speech as a result, including for members of the press and their employers or those who publish their material online; the public interest and importance of free speech in a democratic society to promote public debate and hold government, corporations and others to account; and the potential for abuse of the offence, including in the context of domestic or personal disputes.  

34.	On the other hand it may be relevant to consider: the fact that defences of truth, public benefit, fair comment and good faith are available; an individual’s right to privacy and reputation; the potential economic and psychological harm caused to an individual by the publication of defamatory material, especially when published online; the enduring nature of such material; the prevalence of social media; the potential for such material to vilify vulnerable persons or particular groups or incite violence; and the responsibility of service providers for allowing the dissemination of such material; whilst bearing in mind the availability of other offences like cyber bullying and cyber harassment pursuant to ss 22 and 23 of the Cybercrime Code Act, respectively.   

35.	Similar considerations may also be relevant to the question of whether the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind. This is not a precise concept and will depend on the subject matter or circumstances of the case:  NTN, per Kapi DCJ; and is to be determined “in the light of the circumstances obtaining at the time when the decision on the question is made” pursuant to s 39 of the Constitution. 

36.	A cursory review of some of the international authorities and jurisdictions referred to in s 39 of the Constitution show that several have abolished or called for the abolition of criminal defamation or restricted its operation: see for instance the United Kingdom (abolished the offence by the Coroners and Justice Act, 2009); Kenya (held the offence to be unconstitutional in Jacquline Okuta & Anor v Attorney General & 2 Ors [2017]); the UN Human Rights Committee (General Comment 34, U.N. Doc CCPR/C/GC/34 at [47] which calls for States to consider decriminalising or restricting the offence); the Council of Europe (Resolution 1577, 2007, Towards Decriminalisation); the European Court of Human Rights (which imposes strict protections in the case of criminal defamation and has held that the imposition of a prison sentence will amount to a violation of Art. 10: Belpietro v. Italy (2013), Mika v. Greece (2013), and Maripori v. Finland (2013); and the African Court on Human and People’s Rights (which has held that criminal defamation is in violation of the ECOWAS Treaty: Konaté v. Burkina Faso, No. 004/2013, African Court on Human and Peoples’ Rights). 

37.	This is to be compared, however, with the states of Australia which continue to criminalise defamation (most requiring a person to intend to cause “serious harm”, e.g. s 365 Criminal Code, Queensland, see also NSW, Tasmania, South Australia, and Western Australia; or require “malicious” conduct, as under s 10, Wrongs Act, Victoria; or require an intention to cause loss or interfere with lawful duties, s 204, Criminal Code  Northern Territory) attracting imprisonment of up to 2 or 3 years; and Canada where a maximum of 3 years applies for knowingly publishing libelous material: s 298(1) Criminal Code.  

38.	It may also be relevant in this context to consider the circumstances prevailing in the country, including community concerns about corruption or other wrongdoing.

39.	Other considerations may, of course, be relevant and I make no comment about the merit or otherwise of the factors identified. But it appears to me having regard to the above that questions do arise as to whether s 21(2) of the Cybercrime Code Act complies with the substantive requirements of s 38 of the Constitution. 

Does a question arise as to whether s 21(2), Cybercrime Code Act complies with the formal requirements of s 38 of the Constitution? 

40.	It is also necessary to consider whether a question arises as to whether s 21(2), Cybercrime Code Act complies with the formal requirements of s 38 of the Constitution. 

41.	Section 38(2) provides that for the purpose of s 38(1), the Act must set out clearly the particular public purpose(s) enumerated in s 38(1) for which the law is made, the freedom or rights regulated or restricted, and the reasons why it is necessary for the law to regulate or restrict that right: In the Matter of Section 18(1) of the Constitution and in the Matter of Bill Skate MP (2001) SC678 per Injia J; The State v. NTN Pty Ltd, supra, per Kapi DCJ at p 7; per Barnett J, at p. 18-19.

42.	It is not sufficient to merely assert that the Act is to regulate or restrict a fundamental right: NTN per Kapi DCJ, Kidu CJ concurring (emphasis mine):

“The legislature, which may pass laws that regulate or restrict a right, must explain clearly the reasons for such regulation and restriction. This is made absolutely clear by the terms of s 38(2) of the Constitution. It is in this context that the provisions of the Constitution relating to fundamental rights must be interpreted with a liberal approach to ensure protection of fundamental rights.”  

43.	Per Barnett J in NTN, Amet and Woods JJ concurring (emphasis mine):
“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.”
44.	A review of the Cybercrime Code Act reveals that the offences contained in it are multiple and diverse, from offences which are directed at computers or other information communications technologies, such as hacking and denial of service attacks, to those where computers or communications systems are the means used to conduct crime.  In addition, the Act creates extensive powers of search and investigation. 

45.	Section 1 of the Cybercrime Code Act provides:

(1) For the purposes of Section 41 of the Organic Law on Provincial Governments and Local-level Governments, it is declared that this law relates to a matter of national interest.

(2) 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 -
•	(a) the right to freedom from arbitrary search and entry conferred by Section 44; and
•	(b) the right to freedom of expression conferred by Section 46; and
•	(c) the right to privacy conferred by Section 49; and
•	(d) the right to freedom of information conferred by Section 51; and
•	(e) the right to freedom of movement conferred by Section 52; and
•	(f) the right to protection from unjust deprivation of property conferred by Section 53,
of the Constitution, that is necessary for the purpose of giving effect to the public interest in public safety, public order and public welfare and is reasonably justifiable in a democratic society having proper respect and regard for the rights and dignity of mankind taking into account the National Goals and Directive Principles and Basic Social Obligations, because of the risks cybercrime poses to public safety, public order and public welfare, as well as to the successful social and economic development of Papua New Guinea and its citizens.	

46.	Having regard to the multiple and diverse nature of offences and investigative powers created in the Act and to the number of rights referred to in s 1(2) of the Act, together with the various public interests identified, and the reference to “cybercrime” in general terms, it is my view that a question does arise as to whether s (1) sufficiently identifies the purpose for which s 46 of the Constitution is being regulated or restricted by s 21(2) of the Act and therefore whether it complies with the formal requirements of s 38 of the Constitution.  

SECTION 51, FREEDOM OF INFORMATION

47.	Section 51 of the Constitution provides (underlining mine):

(1) Every citizen has the right of reasonable access to official documents, subject only to the need for such secrecy as is reasonably justifiable in a democratic society in respect of—

(a) matters relating to national security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization); or
(b) records of meetings and decisions of the National Executive Council and of such executive bodies and elected governmental authorities as are prescribed by Organic Law or Act of the Parliament; or
(c) trade secrets, and privileged or confidential commercial or financial information obtained from a person or body; or
(d) parliamentary papers the subject of parliamentary privilege; or
(e) reports, official registers and memoranda prepared by governmental authorities or authorities established by government, prior to completion; or
(f) papers relating to lawful official activities for investigation and prosecution of crime; or
(g) the prevention, investigation and prosecution of crime; or
(h) the maintenance of personal privacy and security of the person; or
(i) matters contained in or related to reports prepared by, on behalf of or for the use of a governmental authority responsible for the regulation or supervision of financial institutions; or
(j) geological or geophysical information and data concerning wells and ore bodies.

(2) A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the right guaranteed by this section.
(3) Provision shall be made by law to establish procedures by which citizens may obtain ready access to official information.
(4) This section does not authorize—
(a) withholding information or limiting the availability of records to the public except in accordance with its provisions; or
(b) withholding information from the Parliament.

48.	Defence counsel’s submission with respect to s 51 is less clear. Perhaps the argument is that whilst a person may be entitled to access official documents and information pursuant to s 51, they will be prevented from sharing that information with others in accordance with their rights under s 46 by virtue of s 21(2) of the Cybercrime Code Act if it would be defamatory to do so and are thus their right under s 51 of the Constitution is effectively affected or restricted. 

49.	It is an interesting argument and it underscores the nature of the right to freedom of expression. I do think it is possible for a constitutional right to be affected collaterally. But it appears here that the right affected by s 21(2) is not the right to freedom of information under s 51 but again the right to freedom of expression.  In my view no question arises for consideration by the Supreme Court with respect to s 51 of the Constitution.  

SECTION 41, HARSH OR OPPRESSIVE  

50.	No question arises with respect to s 41 of the Constitution for consideration by the Supreme Court under s 18(2) of the Constitution.  

51.	Section 41 provides as follows (emphasis mine) and applies in the case of a valid law (or, given my conclusion below, in the event that s 21(2) is determined by the Supreme Court to be valid).

41. Proscribed acts.
 
(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—
(a) is harsh or oppressive; or
(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,
is an unlawful act.
(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.
(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.	
 
52.	I note the accused’s submission about the absence of an express requirement in the Act to take into account apology in mitigation. Such an apology would, however, be a matter that a judge would normally be expected to take into account in accordance with normal sentencing principles in any event. Furthermore, whilst a failure to do so might be regarded as harsh or oppressive pursuant to s 41 that possibility does not give rise to a question of interpretation or application under the Constitution requiring determination by the Supreme Court.

SHOULD THE QUESTIONS RELATING TO THE INTERPRETATION OR APPLICATION OF S 46 OF THE CONSTITUTION BE REFERRED TO THE SUPREME COURT? 

53.	Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court to determine any question relating to the interpretation or application of a provision of a Constitutional law. Per Kapi DCJ in Raz v Matane [1985] PNGLR 495:

“When the National Court is faced with … a question relating to the interpretation or application of a constitutional law arises … it is bound to refer the question for determination by the Supreme Court. It has no jurisdiction to resolve such questions.”

54.	The National Court is bound to refer the question to the Supreme Court unless the questions are trivial, vexatious or irrelevant. 

55.	The questions arising as to whether s 21(2), Cybercrime Code Act regulates or restricts the right to freedom of information and publication under s 46, Constitution and then whether it does so to the extent that is necessary or reasonably justifiable in compliance with s 38 of the Constitution are not trivial.  They are complex and important questions. 

56.	Similarly, the questions arising as to whether s 21(2) Cybercrime Code Act complies with the formal requirements of s 38, Constitution are not trivial. The law must clearly explain the reason for the regulation or restriction of a fundamental right.

57.	The questions are not vexatious. They do not appear to have been raised for any improper purpose. They are legitimate questions about the power of the State to criminally prosecute a person for the alleged publication of defamatory material using an electronic system or device. The accused is entitled to question that power given the importance of the questions raised and the potential consequences of the criminal process for her personally.

58.	The questions are not irrelevant. I adopt the approach of Cannings J in O’Neill v Kaluwin (2015) N5843 applying SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405; SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379; Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60; Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479; Lowa v Akipe [1992] PNGLR 399; Haiveta v Wingti (No 1) [1994] PNGLR 160; Isaac Lupari v Sir Michael Somare (2008) N3476; Alois Kingsley Golu v Regett Marum (2013) N5104. The questions are not unnecessary. The questions are not hypothetical. It cannot be said that they have no bearing on the outcome of the proceedings against the accused. 

59.	The questions have not been previously finally and authoritatively interpreted and applied by the Supreme Court.  No other provision of the Constitution or any other constitutional law gives the National Court jurisdiction to interpret and apply s 46 of the Constitution to s 21(2) of the Cybercrime Code Act. 

60.	Accordingly, the questions should be referred to the Supreme Court. Indeed I am obliged to refer them. 

WHAT FORM SHOULD THE QUESTIONS TAKE? 

61.	The form of question posed by defence counsel is attractive in its simplicity. I have decided, however, that the questions will be framed as follows adopting the approach taken in in NTN:

Question 1: Does s 21(2) of the Cybercrime Code Act, 2016 regulate or restrict the right of freedom of expression and publication under s 46 of the Constitution?

Question 2: If yes to Question 1, does s 21(2) of the Cybercrime Code Act, 2016 comply with s 38 of the Constitution?

Question 3: Is s 21(2) of the Cybercrime Code Act, 2016 invalid for being inconsistent with s 46 of the Constitution?

CONSEQUENTIAL ORDER 

62.	It follows from the above that verdict must be further reserved, such that any final order disposing of the matter out of which the question arises is deferred until the decision of the Supreme Court: SCR No 2 of 1981; Re Section 19(1)(f) of the Criminal Code [1982] PNGLR 150 applied.

ORDER

(1)	Questions relating to the interpretation and application of provisions of constitutional laws having arisen in these proceedings, which are not trivial, vexatious or irrelevant, this Court will, under Section 18(2) of the Constitution and in accordance with Order 4 of the Supreme Court Rules 2012, refer the matter to the Supreme Court, the questions being:

Question 1: Does s 21(2) of the Cybercrime Code Act regulate or restrict the right of freedom of expression and publication under s 46 of the Constitution?

Question 2: If yes to Question 1, does s 21(2) of the Cybercrime Code Act comply with s 38 of the Constitution?

Question 3: Is s 21(2) of the Cybercrime Code Act invalid for being inconsistent with s 46 of the Constitution?

(2)	The verdict is reserved pending determination by the Supreme Court of questions relating to the interpretation and application of provisions of constitutional laws referred to it by this Court. 

Ordered accordingly.
__________________________________________________________________
Public Prosecutor: Lawyers for the State
Javati Lawyers: Lawyers for the Accused