SC1087

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 7 OF 2008

REFERENCE PURSUANT TO CONSTITUTION, SECTION 18 (1);
IN THE MATTER OF FORESTRY ACT 1991
REFERENCE BY KEN NORAE MONDIAI, JOHN MAVRAMANTZ, FRANCIS DEMO, PASTOR LALA AMSING, JOHANNES AWEP AND JIMMY SINA.
IN THE MATTER OF THE FORESTRY ACT 1991 AND THE FORESTRY (TIMBER PERMITS VALIDATION) ACT 2007

Waigani: Injia, CJ, Salika DCJ, Sevua J, Kirriwom & Davani J
2010: 17th December

CONSTITUTIONAL LAW – Constitutional Reference – Validity of Reference - Whether a Reference may be brought under s 18 (1) of the Constitution – Whether a private citizen may bring a Reference under s 18 (1)

Facts:
This is a Reference brought by private citizens under s 18 (1) of the Constitution, seeking the Court's opinion on the interpretation and application of various provisions of the Constitution to the Forestry Act 1991 and the Forestry (Timber Permits Validation) Act 2007.

Held (by majority decision with Davani J dissenting):

1.	Section 18 (1) of the Constitution does not grant the Supreme Court jurisdiction to entertain a Constitutional Reference brought by a private citizen: Jim Kas, Governor of Madang (2001) SC670 followed.

2.	Section 18 (1) of the Constitution gives jurisdiction to the Supreme Court to entertain a cause of action in a case which involves Constitutional issues, brought by a private citizen who has the necessary standing to bring the proceedings: Application of Jim Kas, Governor of Madang (2001) SC670 followed. 

3.	Pursuant to s 11 and s 184 (1) of the Constitution, to the extent that O 4 r1and Form 1 of the Supreme Court Rules 1984 allow a Reference to be filed by a private citizen under s 18(1) of the Constitution, those rules of court are inconsistent with s 18 (1) and therefore invalid.

Davani J (dissenting):

4.	A private citizen who has the necessary standing may bring a Constitutional Reference under s 18(1). Reference under s.18 (1) will be guided by rules as to how they should proceed. In the absence of rules, a Court on being satisfied that the referrer has locus standi and the Court has jurisdiction to hear the matter, should be allowed to proceed relying on O 4 r1 of the Supreme Court Rules and Agreed Issues for hearing and final determination. 

5.	In the absence of specific and clear rules as to how a s 18(1) Reference should proceed, that at the pre -trial directions hearing stages, if the directions Judge finds there to be no disputed facts, the Reference should be allowed to proceed to hearing

6.	The Reference brought by private citizens in these proceedings is invalid and is dismissed.

Cases cited in the judgment:
Application by Anderson Agiru (2001) SC671
Application of Jim Kas, Governor of Madang (2001) SC670 
Application by Francis Gem under s 57 of the Constitution (2010) SC1065
Andrew Trawen v Steven Pirika (2008) SC915
Bill Skate and Peter O' Neil v Jeffrey Nape, Speaker of Parliament (2004) SC754
Isidore Kaseng v Rabbie Namaliu [1995] PNGLR 481
Re Section 18(1) of the Constitution and Bill Skate MP (2001) SC678
Re Section 18 (1) of the Constitution and Bill Skate MP (2002) SC680
Re Election of the Governor General (No 1) (2003) SC721
Sir Pato Kakaraya v The National Parliament (2004) SC752 
SCR No 4 of 1981; Re Petition of MT Somare [1981] PNGLR 265
SCR No 4 of 2001; Re Validity of National Capital District Commission Amendment Acts 2001 (2001) SC 678 
 SCR No 12 of 2001; Re Validity of National Capital District Commission Act 2001 (2001) SC680
 Special Reference by the Ombudsman Commission Re Constitutional (Amendment) Law 2008 (2010) SC1027
Special Reference by the Ombudsman Commission; Re Sections 1 & 2 of the Organic Law on Provincial Governments and Local-Level Governments (Amendment No. 10) Law 2006 (2010) SC1058
The Honourable John Momis & The Bougainville Provincial Government in Suspension v. The National Executive Council & The Right Honourable Bill Skate, Prime Minister, SC OS 1 of 1999 (Unnumbered and Unreported judgment of the Supreme Court dated 26 November 1999
The Ombudsman Commission & Others v National Parliament & Others (2003) SC721
 
Counsel:
J Nonggorr, for the Referrers
I Shepherd, for the First Intervener, National Forest Board
I Molloy with B Frizzell, for the Second Intervener, PNG Forest Industries Association
V Narokobi with S Hehavu, for the Third Intervener, The Ombudsman Commission
C Mende, for the Fourth Intervener, the National Parliament

17th December, 2010

1. INJIA, CJ: The Referrers are customary forest resource owners who claim their interests are affected by the application of certain provisions of the Forestry Act 1991 and Constitution to the Forestry (Timber Permits Validation) Act 2007. They bring this Reference under s 18 (1) of the Constitution, seeking the Supreme Court's opinion on the interpretation and application of various provisions of the Constitution to those Acts of the Parliament. The Court is invited to find that certain provisions of those Acts are inconsistent or in conflict with certain provisions of the Constitution and declare them unconstitutional.

2. The questions in the Reference are as follows: 

(a)	Is the Forestry (Timber Permits Validation) Act 2007 unconstitutional and invalid for the reasons that it was enacted in breach of Section 114(1) of the Constitution?

(b)	Is the Forestry (Timber permits Validation) Act 2007 unconstitutional and invalid for the reasons that its enactment is in breach of Section 38 and 53(1) of the Constitution?

(c)	Is the Forestry (Timber Permits Validation) Act 2007 in breach of the National Goals and Directive Principles and a breach of a constitutional duty under Section 25(2) and (3) and its enactment and enforcement invalid for those reasons?

(d)	If the Forestry (Timber Permits Validation) Act 2007 is not unconstitutional and therefore valid, is a permit or grant issued or made under the Forestry Act 1991 without a valid National Forest Plan or valid National Forest Inventory unlawful for the reasons that such permit or grant:-

(i) is harsh or oppressive;
(ii) is not warranted by, or is disproportionate to, the requirements of 
 the particular circumstances, or of the particular case; or
(iii) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind 
within the meaning of Section 41 of the Constitution?

(e)	Is the Forestry Act 1991 unconstitutional and invalid for the reason that its enactment is in breach of Sections 38 and 53(1) of the Constitution?

3. The Reference is brought by private citizens named in the Reference and signed by Mrs T. G Nonggorr of Tiffany Nonggor Lawyers, in her capacity as "Lawyer for the Referrors"

4. At the hearing counsel for the first intervener objected to the competency of the Reference on two (2) grounds as follows: 

(a)	The Reference is inappropriately brought under s 18 (1) of the Constitution. Even if a Reference could be brought under s 18 (1), the Referrers lack standing to bring the Reference. 

(b)	 If the Reference is not dismissed in its entirety, then certain paragraphs should be struck out for raising issues which are non justiciable: paragraphs 2 (a) & 3(a), (voting in Parliament); paragraphs 2 (1)(b) & 3 ( c ) (National Goals and Directive Principles); paragraph 3 (d) ( s 41 does not raise Constitutional issues).

5. Counsel for the first intervener also argued that the Reference is incompetent because it offends O 4 rule 1, Form 1 of the Supreme Court Rules 1983 (SCR) in that the Reference is not signed by the referrers. 

6. It is agreed between the parties that those grounds of challenge raise a threshold issue which could determine the Reference if this Court were to uphold the application on those grounds. Counsel made submissions and we reserved our decision which we now deliver.

7. I deal with the ground of objection on the Court's jurisdiction under s 18 (1) of the Constitution, first. The issue for determination is whether s 18 (1) grants the Supreme Court jurisdiction to entertain a Constitutional Reference brought by a private citizen. The same issue put differently, is whether s 18(1) grants a right to a private citizen to bring a Constitutional Reference before the Supreme Court. 

8. The second and fourth interveners support the first intervener's application. The referrers oppose the application. 

9. The third intervener conceded that the Reference was inappropriately brought by the referrers under s 18 (1) but it sought leave for it to be substituted as the referrer and to be allowed to continue with the Reference. 

10. In my view the answer to the question lies in the construction of s 18 of the Constitution, which states: 

Subdivision C.—Constitutional Interpretation.

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. 

11. Section 19 of the Constitution is relevant to the construction of s 18 and it is in the following terms:

19.	Special references to the Supreme Court.

(1)	Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.

(2)	An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.

(3)	The following authorities only are entitled to make application under Subsection (1):—

(a)	the Parliament; and
(b)	the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and
(c)	the Law Officers of Papua New Guinea; and
(d)	the Law Reform Commission; and
(e)	the Ombudsman Commission; and

(ea)	a Provincial Assembly or a Local-level Government; and
(eb)	a provincial executive; and
(ec)	a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and

(f)	the Speaker, in accordance with Section 137(3) (Acts of Indemnity). 

(4)	Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to—

(a)	the form and contents of questions to be decided by the Court; and
(b)	the provision of counsel adequate to enable full argument before the Court of any question; and
(c)	cases and circumstances in which the Court may decline to give an opinion.

(5)	In this section, "proposed law" means a law that has been formally placed before the relevant law-making body.

12. The Supreme Court exercises three main types of jurisdiction – appellate jurisdiction, review jurisdiction and original jurisdiction. This Reference concerns the Court's original jurisdiction.

13. The Court's original jurisdiction consists of, amongst other things, the original and exclusive jurisdiction to determine questions relating to the interpretation and application of provisions of Constitutional Laws under s 18 and s 19 (Part II (The National Legal System), Division 2 (Constitutional Laws), Subdivision C (Constitutional Interpretation), s 18 (Original interpretive jurisdiction of the Supreme Court. Other provisions of the Constitution also confer on this Court original jurisdiction on other matters but those are not in issue in this reference: see s 22 (Enforcement of the Constitution) s 23 (Sanctions), s 57 (Enforcement of guaranteed rights and freedoms).

14. Express provision is made for a Reference by a court or tribunal under s 18 (2) and a Reference by a specified authority under s 19. No question arises in this matter as to a Reference made under those provisions. 

15. The issue for determination relates to s 18 (1). The preponderance of past judicial opinion show that there are two types of matters that may be brought under s 18(1). First, s 18 (1) gives the Court jurisdiction to deal with a cause of action brought by a private citizen who has the necessary standing to bring an action seeking declaratory or injunctive relief in a matter which involves determination of Constitutional questions: see The Bill Skate and Peter O' Neill v Jeffrey Nape, Speaker of Parliament (2004) SC754; Re Election of Governor General (No 1) (2003) SC721; Sir Pato Kakaraya v The National Parliament (2004) SC 756; Isidore Kaseng v Rabbie Namaliu [1995] PNGLR 481, The Honourable John Momis & The Bougainville Provincial Government in Suspension v. The National Executive Council & The Right Honourable Bill Skate, Prime Minister (1999) SC OS 1 of 1991 (Unnumbered and Unreported judgment of the Supreme Court dated 26th November 1999); The Application by Anderson Agiru (2001) SC671, per Kapi DCJ and Salika J; Application of Jim Kas, Governor of Madang (2001) SC670; Special Reference by the Ombudsman Commission Re Constitutional (Amendment) Law 2008 (2010) SC1027. There is no difference in judicial opinion on this type of proceeding brought by a private citizen under s 18 (1).

16. The second is a Constitutional Reference brought by a private citizen under s 18 (1). The issue before us relates to this type of matter. Past judicial opinion is divided on this point. The issue was first raised in the Somare Case. In that case Mr Somare brought a petition in the National Court seeking declarations, inter alia, that the Parliament's enactment of the Defence Force (Presence Abroad) Act 1980 was in conflict with certain provisions of the Constitution. The question arose as to whether Mr Somare had the necessary standing to bring the petition. The National Court referred the question to the Supreme Court for its opinion under s 18 (2) of the Constitution. The Supreme Court by majority of 5 – 3 granted Mr Somare standing and proceeded to determine the petition. The decision of the judges who comprised the majority did not elaborate on the nature of a case brought under s 18 (1). Chief Justice Kidu who considered the issue in detail, in the way he framed the question before the Court, did not clarify the nature of the proceeding that may be brought under s 18 (1). Chief Justice Kidu said: 

" Subject to application of s. 23, s. 42(5), s. 57 and s. 58 of the 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" (Constitution s. 18(1)). The question then is whether the Rt. Hon. Michael Thomas Somare, C.H., M.P., has the necessary legal standing to invoke the jurisdiction of this Court under s. 18(1) of the Constitution.

In my view, in cases where the constitutionality or otherwise of an Act of the National Parliament arises, locus standi should not be restricted to any particular group.
The Constitution of this country provides that all power belongs to the people. These powers are then given to three bodies — the National Parliament (legislative), the Executive (the executive power) and the Judicial System (the judicial power). These powers are given with the clear understanding that they be used properly and constitutionally.

The people, depository of all powers in Papua New Guinea, have, through the Constitution, directed that the Parliament make laws which comply with the Constitution. If the legislative power is exercised contrary to the Constitution, why should not the People come to this Court and complain? After all it is their power and they are, in my view, entitled to complain to the Supreme Court, in whom their power to determine the constitutionality or otherwise of an Act of the Parliament is vested. As a beneficiary in trust is entitled to invoke the powers of the courts to ensure that the trustees act in their interest so should the People whose legislative power the Parliament exercises, complain to this Court if they think the Legislature acts contrary to the Constitution through which their power has been given to it." (Underlining is my emphasis).

17. It would seem that the question posed and statement of principle enunciated by the Chief Justice would find consonance with the standing accorded to a private citizen to bring a cause of action, as opposed to a Constitutional Reference, in the subsequent cases I have referred to in paragraph 15 hereof. The petition brought in the National Court as a cause of action could have been brought before the Supreme Court under s 18 (1). 

18. The issue arose in Re Application by Anderson Agiru (2000) SC671, per Amet CJ, Kapi DCJ; Sheehan, Salika & Sevua JJ. In that case Mr Agiru brought a Reference under s 18 (1) challenging the constitutionality of Part III Division 8 of the Organic Law on Provincial Governments and Local-Level Governments. The Court was equally divided on the issue. Amet CJ with whom Los J agreed, held that s 18 (1) granted jurisdiction to a private person to bring a Reference. The Chief Justice said:

"The application comes before this Court by a Constitution s. 18(1) reference. In my opinion that is the appropriate process. The Referrer is not a s. 19 authority. All the parties agreed that this is the appropriate process as there are no issues of primary facts that require the National Court's determination. In my opinion it is appropriate for any interested person to apply directly under s. 18(1) to this court for its opinion on the interpretation or application of any provision of a constitutional law. Any person who has sufficient interest and who does not qualify under Constitution s. 19 should be able to come to the Supreme Court directly under s. 18(1).
Section 18 states that:

(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.

There is precedent for this position. In S.C.R. No. 4 of 1980; Re Petition of M. T. Somare [1981] P.N.G.L.R. 265, then Chief Justice Kidu said:

" Subject to application of s. 23, s. 42(5), s. 57 and s. 58 of the 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" (Constitution s. 18(1)). The question then is whether the Rt. Hon. Michael Thomas Somare, C.H., M.P., has the necessary legal standing to invoke the jurisdiction of this Court under s. 18(1) of the Constitution.

In my view, in cases where the constitutionality or otherwise of an Act of the National Parliament arises, locus standi should not be restricted to any particular group.

The Constitution of this country provides that all power belongs to the people. These powers are then given to three bodies — the National Parliament (legislative), the Executive (the executive power) and the Judicial System (the judicial power). These powers are given with the clear understanding that they be used properly and constitutionally.

The people, depository of all powers in Papua New Guinea, have, through the Constitution, directed that the Parliament make laws which comply with the Constitution. If the legislative power is exercised contrary to the Constitution, why should not the People come to this Court and complain? After all it is their power and they are, in my view, entitled to complain to the Supreme Court, in whom their power to determine the constitutionality or otherwise of an Act of the Parliament is vested. As a beneficiary in trust is entitled to invoke the powers of the courts to ensure that the trustees act in their interest so should the People whose legislative power the Parliament exercises, complain to this Court if they think the Legislature acts contrary to the Constitution through which their power has been given to it."

I agree with and adopt these comments as being entirely applicable to this application. Anderson Agiru is the Provincial Member for the Southern Highlands Province in the National Parliament and thus Governor and Head of the Provincial Government which has been affected by the decision of the NEC in it's invocation of Division 8 of the Organic Law, the subject of this application. He does not qualify as a person who can bring a reference under s. 19 of the Constitution. The issues raised are not matters the National Court has any jurisdiction to determine. The only primary fact necessary for the reference, being the decision by the NEC, is not in dispute and therefore it is appropriate that the reference be brought directly to this court." (underlining is my emphasis)

19. It appears from the foregoing statement of Chief Justice Amet that he adopted and applied the statement of Chief Justice Kidu without addressing the ambiguity in the question posed and addressed therein by Chief Justice Kidu, as to the nature of the proceeding under s 18 (1). 

20. Sir Mari Kapi DCJ (as he then was) with whom Salika J (as he then was) agreed, regarded the Reference brought by Mr Agiru as a cause of action or "an application for declaratory orders" which came within the original jurisdiction of the Court and dealt with it as such. The Deputy Chief Justice said:

This matter has come before us by way of a "purported reference" under s 18 (1) of the Constitution. The Hon. Anderson Agiru, Governor of Southern Highlands Provincial Government (Agiru) is designated as the referrer. At the beginning of the hearing, I raised a preliminary issue about the precise nature of the proceeding before the Court. However, it became apparent that lawyers for Agiru, in addition to the "purported reference", filed an application in the nature of an originating process on 19th October 2000 in the Supreme Court seeking procedural directions and declaratory orders that include:

(i)	An order that Division 8 of the Organic Law on Provincial Governments and Local Level Governments is unconstitutional and invalid.

(ii)	An order that the purported withdrawal of the powers and functions of the Southern Highlands Provincial Government by the NEC is invalid and unconstitutional.

(iii)	An order that the Southern Highlands Provincial Government has full powers and functions.

(iv)	An order that the appointment of Pila Niningi as Administrator of Southern Highlands Provincial Government is unconstitutional and invalid.

(v)	An order prohibiting Mr Niningi from exercising or purporting to exercise any powers or functions of the office of the Administrator, or any other office in relation to the Southern Highlands Provincial Government.

(vi) An order prohibiting the State from purporting to withdraw the powers and functions and finances of the Southern Highlands Provincial Government.

I regard this matter as an application for declaratory orders that fall within the original jurisdiction of the Supreme Court under s 18 (1) of the Constitution. The Supreme Court has previously dealt with similar applications by way of originating process. See Kaseng v. Namaliu [1995] PNGLR 481 & The Hon. John Momis & The Bougainville Provincial Government In Suspension v The National Executive Council & The Right Hon. Bill Skate, The Prime Minister (SC OS 1 of 1999) (Unreported Judgment of the Supreme Court dated 26th November 1999, SC626).

On this basis, Agiru seeks declaratory orders and the State on behalf of the National Executive Council (NEC) opposes the orders. Mr. Paraka (lawyer for Governor of Enga Provincial Government) appears as friend of the Court on the constitutional issues raised in the proceeding. I should note at this juncture that there are other parties who have expressed an interest in the outcome of the constitutional issues in this case, but they have decided not to join or appear to make submissions in the proceeding. They are quite content to await the outcome of this case.

Mr. Paraka, informed the Court that he has filed an application for judicial review in the National Court regarding the withdrawal of powers of Enga Provincial Government. It raises the same constitutional issues. This is a separate proceeding pending in the National Court. After this Court gives the ruling on the constitutional issues in this case, he may proceed further in the National Court in accordance with the law determined by this Court.

The proceeding before us raises the issue: is Part III Division 8 of the Organic Law on Provincial Government and Local Level Government (New Organic Law) constitutional and valid? The parties have agreed to argue this issue only and not to deal with any other declaratory orders set out in the originating process filed on 19th October 2000.

21. Several months after the Agiru Case, the issue arose in the Kas Case. The Governor of Madang brought a Reference under s 18 (1). The Court unanimously adopted the statement of Kapi DCJ and Salika J in the Agiru Case. The Court said: 

Mr. Jim Kas filed this proceeding by way of a reference under s 18(1) of the Constitution on 11th January 2001. At the hearing, the question arose, whether, Mr. Kas could institute the cause of action directly in the Supreme Court by way of a reference under s 18(1) of the Constitution?

The Court expressed the desire at the outset that if parties could agree to convert or substitute the present proceeding with the appropriate originating process, we would be prepared to deal with the substantive constitutional issues. We adjourned this matter to the afternoon to enable parties to resolve this issue. However, the parties were unable to agree to such a cause and elected to argue the preliminary issue. After hearing oral arguments, we dismissed the reference with costs to the respondents with reasons to be published later. This we now do.

Counsel for Mr. Kas submitted that the preliminary issue was raised and determined by the Supreme Court in the Matter of Hon. Anderson Agiru MP (Unreported Judgment of the Supreme Court dated 21st December 2000) (Agiru Case) and therefore this reference is validly before the Court. On the other hand, counsel for the State and the Provincial Assembly both submitted that the Supreme Court in the Agiru Case misunderstood and erroneously applied the principle in the Matter of Petition of the Rt. Hon. Michael Somare [1982] PNGLR 65 (Somare Petition) and therefore we should not follow it. They submitted that there is no provision for reference under s 18(1) of the Constitution and urged the Court to dismiss the proceeding.

The Hon. Anderson Agiru MP the Governor of Southern Highlands Province filed a reference under s 18(1). Apart from other preliminary issues raised, the State argued that the Governor could not come directly to the Supreme Court by way of a reference under s 18(1). The Court at page 3 held:

"Another threshold issue raised by the Court itself was as to whether a s. 18(1) reference is able to come directly to the Court. We are satisfied that, on the authority of the Supreme Court Reference No. 4 of 1980 (No.2) In the Matter of a Petition by Rt. Hon. Michael Somare under s 18(1) of the Constitution [1982] PNGLR 65, an interested leader or a private citizen may apply directly to the Supreme Court pursuant to s 18(1). The Reference is therefore validly before the Court."

The decision in the Agiru Case was based on the authority of the Somare Case (supra). We have studied this decision, and with respect, we are unable to agree that this case supports the proposition relied on in the Agiru Case. First, the decision relied upon by the Supreme Court dealt with the substantive issues in respect of the constitutional validity of Defence Force (Presence Abroad) Act 1980 and is of no relevance to the preliminary issue. The appropriate decision is the reference made to the Supreme Court by the National Court under s 18(2) of the Constitution [1981] PNGLR 265. The head note states:

"…The Leader of the Opposition in the National Parliament, as a citizen, has standing to invoke the powers of the Supreme Court under s 18(1) of the Constitution to determine whether an Act of Parliament (The Defence Force (Presence Abroad) Act 1980) is invalid as being unconstitutional."

Counsel for Mr. Kas relied on this head note and submitted that it supports the proposition relied on in the Agiru Case (supra). The head note should be understood within the context of the questions referred.The Rt. Hon. Michael Somare, Leader of the Opposition, filed a petition in the National Court seeking to rule on the constitutionality or otherwise of the decision by the Parliament (a) for approving the commitment of the troops to Vanuatu (b) for enacting the Defence Force (Presence Abroad) Act 1980. The details of this proceeding are reported in [1980] PNGLR 255. The National Court then referred the matter to the Supreme Court under s 18(2) of the Constitution on two questions:

1.	Does the petitioner have sufficient legal standing to present to the National Court the petition filed herein?

2.	If "yes" to the above, are not the rulings sought in the petition matters solely for the Supreme Court?

The majority (3-2) answered the first question in the positive. That was essentially a question of whether Somare had sufficient interest (locus standi) to bring the petition before the National Court. No such issue has been raised about the legal standing of Mr. Kas in the present case.

On the second question, the majority (Graville-Smith J. dissenting) held that the constitutional issues raised were matters which were solely within the jurisdiction of the Supreme Court and held that it should deal with the merits of the petition. Miles J. expressed the true nature of the decision ([1981] PNGLR 265 at 313):
"Generally however and subject to the Constitution, s 18(2) has application and whatever a constitutional question in any court or tribunal, that court or tribunal shall, unless the question is trivial vexatious or irrelevant, refer the matter to the Supreme Court. Now that the matter is in the Supreme Court there is little point in referring it back to the National Court. The only issue remaining, namely the constitutional validity of the Defence Force (Presence Abroad) Act 1980, will have to be decided in the Supreme Court."

Essentially, the Somare Case came before the Supreme Court as a reference by the National Court under s 18(2) of the Constitution. The Supreme Court simply transferred the petition in the National Court before it and dealt with it. It does not support the proposition that a party may come directly to the Supreme Court by way of reference under s 18(1). We conclude from this that reliance on the Somare Case by the Supreme Court in Agiru's Case was erroneous and therefore we would not follow it.

The Constitution prescribes a procedure known as "reference" whereby a matter of interpretation or an application of a constitutional law may be referred to the Supreme Court for determination. The Constitution prescribes two types of "reference" for seeking the opinion of the Supreme Court on issues of interpretation or an application of a constitutional law. The first is set out in s 18 (2) of the Constitution. This provision envisages a proceeding before a court or a tribunal. If a question of interpretation or application of a constitutional law arises, the court or the tribunal may stay its proceedings and refer the questions involving the interpretation and application of a constitutional law to the Supreme Court for determination (The Somare Case). In the present case, a court or a tribunal has not referred the constitutional issues. Therefore, it cannot come within s 18 (2).

Second, an authority prescribed under s 19 of the Constitution may make special reference on any question relating to the interpretation or application of any provision of a constitutional law, including any question as to the validity of a law or a proposed law. The Provincial Executive of the Madang Provincial Government could have filed a special reference under s 19 (3) (eb) of the Constitution. The Governor is not authorized to make a reference under s 19.

Section 18(1) grants the exclusive and original jurisdiction of interpreting and applying constitutional laws to the Supreme Court. It does not deal with the procedure for invoking that jurisdiction. That is the subject of s 18(2) and s 19 of the Constitution. There is no provision for a reference under s 18(1).

The original jurisdiction of the Supreme Court under s 18(1) may also be invoked directly by instituting appropriate cause of action in law. As we have already pointed out, a party may seek declaratory orders by originating summons (Kaseng v Namaliu [1995] PNGLR 481, The Honourable John Momis & The Bougainville Provincial Government in Suspension v. The National Executive Council & The Right Honourable Bill Skate, Prime Minister (SC O.S. 1 of 1999) (Unreported judgment of the Supreme Court dated 26 November 1999, SC626)). We invited the parties to do this at the outset but failed to take up the invitation.

Therefore the reference before us is not valid and for these reasons we dismissed it and discharged the interlocutory injunction imposed on 29th January 2001.

22. In two subsequent cases, the Court dealt with Constitutional References brought by the Leader of the Opposition. In those cases however, no question arose as to the nature of the proceedings and the issue was not addressed: SCR No 4 of 2001; Re Validity of National Capital District Commission Amendment Acts 2001 (2001) SC 678 (Amet CJ, Sawong & Injia JJ); SCR No 12 of 2001; Re Validity of National Capital District Commission Act 2001 (2001) SC680 (Amet CJ, HinchliffeJ, Sheehan J, Injia, J & Sawong J). 
 
23. It is submitted by counsel for the affirmative that the Kas Case was wrongly decided and it should be overruled. In its place, a new principle of law should be formulated to allow a private citizen who has the necessary standing, to bring a Reference under s 18 (1). Counsel submits s 18(1) gives a citizen the right to invoke the jurisdiction of the Court to bring a Reference; a citizen's standing to bring the reference is founded on the formulation of a principle of the underlying law in the Somare Case, and the procedure is the ad hoc procedure adopted by this Court in the Kaseng Case. 

24. He submits SCR O 4 r1, Form 1 also permits a private citizen to bring a constitutional reference under s 18(1) of the Constitution. Counsel submits the SCR made by the Judges pursuant to their law-making power under s 185 of the Constitution override judicial decisions: Andrew Trawen & Anor v Steven Pirika & Anor (2008) SC915.

25. Counsel for the negative submit the issue was conclusively decided in the Kas Case which overruled the Agiru Case. The law on the point is settled and it should be applied in this case. 

26. There is no question that the issue was not fully argued in the Agiru Case and the Kas Case. The issue has been fully argued in the present case and I am satisfied that this Court is in a position to publish its opinion to settle the point. 

27. It is open for a subsequent Court to revisit its earlier decision and overrule itself on a point of law: see Schedule 2.9(1) of the Constitution. The Supreme Court may affirm, or modify a previous decision of the Supreme Court on a particular point of procedural or substantive law in a case where for instance, there is an erroneous finding or conclusion reached on a point of law: Lionel Gawi v The State (2006) SC850 (Kapi CJ, Injia DCJ, Los J, Hinchliffe J, Salika J.) 

28. I agree with counsel for the referrers that SCR, O 4 r 1 and Form 1 which provide for a Reference under s 18(1) to be brought by a private citizen (or his lawyer), was not considered in the Agiru and Kas cases. SCR, 0 4 r 1 is in the following terms:

ORDER 4—REFERENCES UNDER THE CONSTITUTION

Division 1.—Form of reference

1.	A reference under Constitution Section 18 or a special reference under Constitution Section 19 shall be instituted by a reference and shall—

(a)	be entitled under the Section of the Constitution—
by which it is made together with the year and number of the reference;

(b)	and with—

(i)	the name of the person, or authority making the reference under Section 18(1) or special reference under Section 19; or

(ii)	with the title or proceedings if the reference is under Section 18(2).

(c)	state the name of the person, court, tribunal or authority making the reference;

(d)	be in accordance with forms 1, 2, or 3 whichever is applicable;

(e)	be signed by the person, court, tribunal, authority or proper officer on behalf of the authority as required by law, making the reference; and

(f)	be filed in the registry. (Underlining is my emphasis). 

29. SCR, Form 1 is in the following terms:

 Form 1.—Reference (Section 18(1) Constitution)

O.4 Rule 1(C)	Form 1

GENERAL FORM OF REFERENCE (CONSTITUTION S.18(1))
IN THE SUPREME COURT	S.C.R. No. of 19
OF JUSTICE	(Insert number and year)
Reference Pursuant to
Constitution Section 18(1)
Reference by (Insert name of person making reference)
REFERENCE
1.	THIS REFERENCE is made by (insert name of person making the reference) for an opinion on a question relating to interpretation or application of a Constitutional Law.
2.	THIS Reference arises (herein state briefly the nature of and circumstances in which the question arises).
3.	THE QUESTION IS (to be stated).
4.	THE LAW or PROPOSED LAW the validity of which is the subject of this reference is: (where appropriate a copy of the law or proposed law is to be annexed).
5.	THE CONSTITUTIONAL LAW provisions, relevant are: (state title of Constitutional Law, Section number and title).

DATED:

Sgd _______________________
(To be signed by person
making the reference or his lawyer)
FILED BY:	(Form 17)
Application for Directions
Application will be made to a Judge of the Supreme Court Waigani at … a.m. on the day of …19…
	______________
	Registrar (Underlining is my emphasis).

30. The answer to the issue raised before us is to be found in the construction of s 18 (1). The principles on the constitutional interpretation are settled. I prefer to adopt the principles canvassed in a recent case, in Special Reference by the Ombudsman Commission; Re Sections 1 & 2 of the Organic Law on Provincial Governments and Local-Level Governments (Amendment No. 10) Law 2006 (2010) SC1058. I said: 

29. In cases where the word or expression used in the Constitution is clear and capable of being accorded its plain or ordinary meaning, then the Court should accord that meaning and apply it to the circumstances of the case before it.

30. But often the Court is asked to interpret a word or expression in the Constitution in which its meaning may be in doubt. The Court must engage in a construction exercise that will produce the correct meaning of that word or expression. The Court must give a fair and liberal meaning to the constitutional provision in question, to ensure that the legislature's intention, spirit and purpose expressed in the provision is achieved: Constitution, Sch 1.5(2). The Court must adopt an expansive and purposive approach rather than a narrow and restrictive approach: PLAR NO. 1 of 1980 [1980] PNGLR 326, SCR No. 2 of 1992 Special reference by the Public Prosecutor [1992] PNGLR 336, SCR No. 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151, Haiveta v Wingti (No. 3) [1994] PNGLR 192. The judges are urged to use "judicial ingenuity" in appropriate cases, to do justice": Kearny J in The State v The Independent Tribunal Established under s 27 of the Constitution: Ex Parte Moses Sasakila [1976] PNGLR 491. In a case where there are a number of possible interpretations open, the Court must avoid the interpretation which will or is likely to produce unjust and absurd situations or results. Where there is a gap in a constitutional law which would involve consideration of matters of public policy to fill, the Court must ordinarily defer to the legislature to fill the gap: SCR No. 5 of 1980 Re Joseph Auna [1980] PNGLR 500. However there are those cases in which the law is not so clear and the Court may be required to give an interpretation in order to resolve the matter before it. In such cases, if upon a fair and liberal construction of the constitutional provision, the intention of the Parliament can be given effect to, without usurping the Parliament's legislative function, the Court must not sigh away from that task because the Parliament can always by subsequent legislative act, correct it if the Parliament feels the Court has usurped its function.

31. Applying those principles, I consider that the wording and meaning of s 18 (1) is quite simple and plain. I consider that s 18(1) should not be read too expansively to confer on the Court a jurisdiction that the Court is clearly not given by that provision. The principles of fair and liberal interpretation of Constitutional Law should not be applied in a manner that produces a result which usurps the legislative function on a matter that is clearly within the exclusive function of the Parliament. The vesting of jurisdiction in the Court to deal with a particular matter and in a particular procedural manner is clearly a matter that is within the exclusive function of the legislature. The Court's jurisdiction to entertain a Constitutional Reference brought by a person or authority recognized by Constitutional Law is one such matter that is traditionally reserved for the Parliament. 

32. Section 18 (1) clearly does not authorize a Constitutional Reference to be brought by a person whose authority to bring the Reference is expressly provided for in s 18 (2) and in s 19 (3). The Somare Case was a s 18(2) Reference in which the issue of standing to bring a petition before the National Court was referred to the Supreme Court. For the purpose of determining the Reference and to expedite determination of the substantive matter, having found that Mr Somare had standing to bring the petition, the Court called up the petition and determined it under the broad power given under s 18 (2) in conjunction with s 18(1) to the extent that it allowed the Supreme Court to deal with a cause of action in the form of a Petition, brought by a private citizen who had the necessary standing to bring the action. The remarks by the majority in the Somare Case, especially those of Chief Justice Kidu fall short of a clear statement that a Constitutional Reference can be brought by a private person under s 18(1). Those statements instead are consonant with a cause of action been brought under s 18(1) by a person who has the necessary standing. For that reason and for the reasons given by the Court in the Kas Case, the Somare Case can be distinguished on this point. 

33. I am in complete agreement with the Court's view in the Kas Case that a Constitutional Reference cannot be brought under s 18 (1), however, the original jurisdiction of the Supreme Court under s 18(1) can be invoked directly by appropriate cause of action in law, by a private citizen who has the necessary standing. That decision also effectively overruled the views expressed by Amet CJ and Los J in the Agiru Case.

34. In a case where a private citizen or a legal entity intends to bring a matter before the Supreme Court which involves Constitutional issues, the appropriate procedure is by a cause of action brought under s 18 (1). Such is the practice that has developed in this Court as evident in those cases cited in paragraph 16 (supra). The procedure to follow is by Originating Summons seeking declaratory, injunctive or other relief. SCR do not make adequate provision governing proceedings commenced by Originating Summons. Until those procedures are developed by the Judges, the Court can address and deal with those types of proceedings through ad hoc directions in individual cases: see SCR, O 3.

35. In an action under s 18 (1), the action would be normally pleaded and tried. The plaintiff's standing should be pleaded and determined as a threshold issue. In the trial, where facts are necessary to be determined, the procedure is set out in SCR O 3 r 2. Although the action is tried by the full Court, the Court may direct findings of fact to be made by a single Judge of the Supreme Court who is not a member of the bench that is seized of the matter: see Application by Francis Gem under s 57 of the Constitution (2010) SC1065. 

36. The Court in the Kas Case did not consider SCR, O 4 r 1 and Form 1. I have considered this rule and find that there is an inconsistency between that rule and the opinions expressed in the Kas Case and my own opinion with respect to s 18 (1). The inconsistency can be easily resolved by this Court invoking its power under s 11 and s 184 (1) of the Constitution. To the extent that provisions of a subordinate legislation is inconsistent with a provision of the Constitution, the former is invalid.

37. I am of the view that to the extent that O4 r 1 and Form 1 of the Supreme Court Rules 1984 allow a Constitutional Reference to be filed by a private citizen, they are inconsistent with s 18(1) of the Constitution and are invalid.

38. I am also of the view that the third intervener's application to continue the proceedings on the Reference should be refused. I consider that it is not appropriate for an authority specified in s 19 (3) who has joined the proceedings in a Reference under s 18(1) as an intervener to continue proceedings on a Reference that is found to be invalid. 

39. Having determined the Reference under the first ground of objection, it is unnecessary to deal with the remaining grounds of objection.

40. For the foregoing reasons, I would uphold the submissions of the negative and dismiss the Reference.

41. SALIKA DCJ: I have read the judgment of the Chief Justice and agree with him that the objection should be upheld and the Reference dismissed for the reasons given by the Chief Justice.

42. SEVUA J: His Honour did not express an opinion on the matter.

43. KIRRIWOM J: I have read the draft by Chief Justice as well as the dissenting view of Davani, J. While I feel for the view expressed by Davani, J, I am inclined to support the opinion expressed by the Chief Justice as it is founded more on principle and with a view to developing a firm constitutional foundation on procedure to be applied and not focused on short-term and sporadic private interests that only arise from time to time. The Supreme Court must set the benchmark and direct traffic as it were on the processes and procedure in accordance with clear constitutional dictates and not bend backwards to find ways and reasons to accommodate private or public interests threatened by any executive acts or by legislations without usurping the function of the legislature. The systems of government we have in place under our own Constitution clearly accord every citizen conceivable avenues to seek redress under sections 18 and 19 references without actually 'burning their own fingers' if only they can apply the avenue provided in the Constitution by utilising those offices. Otherwise the normal litigation process under the Rules of Court are available for every citizen to air his grievance which can equally afford him the relief that he seeks, if not at the trial court, then on appeal.

44. I therefore join the Chief Justice in the opinion he expressed and I too would uphold the objection to competency and dismiss the Reference for the reasons he gave and let the issue rest in the realm of the legislature as far as the substantive merits of the case is concerned. To dwell into the substantive merits at the preliminary point would obviously cloud the real issues to be determined on principle that must always guide the court's decision-making process. 

 45. DAVANI .J: The referrers are customary timber resource owners who claim their interests are affected by the application of certain provisions of the Forestry Act 1991 and Constitution to the Forestry (Timber Permits Validation) Act 2007 (amendment law). They bring this Reference under Section 18(1) of the Constitution, seeking the Supreme Court's opinion on the interpretation and application of various provisions of the Constitution to those Acts of Parliament. The Court is invited to find that certain provisions of those acts are inconsistent or in conflict with certain provisions of the Constitution and to declare them unconstitutional.
46. The Chief Justice has described the background in his judgment. 

47. His Honour has also dealt in detail with the law on this issue so I need not set that out (pars.18 to 21).

Analysis of evidence and the law

48. Before the Court, is an application by Warner Shand Lawyers filed on 11th February, 2009 for and on behalf of Intervener, the Papua New Guinea Forest Industries Incorporated. It seeks that the Reference be dismissed for being an abuse of process or alternatively, that certain affidavits filed for and on behalf of referrers be struck out and that the Court issue directions for the further conduct of the proceedings. All interveners support this application with the exception of the Ombudsman Commission, who have requested to be substituted as a party in the event the Court struck out the Reference.

49. The issues as put before the Court by all Counsel are the following;

1.	Whether a reference can be brought under section 18(1) of the Constitution and if so, does the Supreme Court have jurisdiction to entertain a Constitutional Reference brought by a private citizen?

2.	Is Order 4 Rule 1 and Form 1 of the Supreme Court Rules 1984 inconsistent with or consistent with Section 18(1) of the Constitution?

50. Firstly, the Reference raises very serious and important questions in relation to the validity of an act of Parliament recently enacted and as alleged by the referrors, allegedly in breach of certain provisions of the Constitution. The referrors, being customary timber resource owners, are affected by those recent amendments, which generally are amendments that go towards affecting the rights of customary landowners in this country.

51. A threshold issue is raised by the interveners, that;

1. The Reference is not properly before the Court as the referrers cannot rely on s.18(1) of the Constitution. That even if a Reference can be brought under s.18(1), that the referrers lack standing to bring the Reference.

2. That where the Reference is not dismissed by this Court, that certain paragraphs should be struck out for raising issues which are non-justiciable being paragraphs 2(a) and 3(a), (voting in Parliament; paragraphs 2(1)(b) and 3(c) (National Goals and Directive Principles); paragraph 3(d) (s.41 does not raise Constitutional issues).

52. An additional ground was raised by the fourth intervener which was that the Reference was not signed by the referrers, but rather by the referrers' lawyer and that therefore it is incompetent.

53. The issues raised by the referrers are very serious issues. However, those serious issues can only be considered by this Court if they are properly before the Court. The provision in contention is s.18(1) of the Constitution which is the provision relied on by the referrers. As was decided in Jim Kas, Governor of Madang (2001) SC 670, s.18(1) of the Constitution, does not give the Supreme Court jurisdiction to entertain a Constitutional Reference brought by a private citizen under s.18(1) of the Constitution. 

54. In response to the application to dismiss, Mr Nonggorr for the referrers submits that three separate matters need to be distinguished and those are;

1. Locus standi;
2. Jurisdiction; and
3. Procedure.

55. He submits that locus standi is concerned with the right of a person to be heard by a Court. Jurisdiction relates to the power of the Court to hear a matter. And procedure is the manner in which a person has a right to be heard by a Court that has the power to hear the matter.

56. Mr Nonggorr submits that a s.19 Special Reference, covers all three aspects referred to above. It gives jurisdiction to the Supreme Court by saying that the Court can give advisory opinion on Constitutional matters. It also names the authorities who have a right to be heard under subsection (3). Under subsection (4), it provides for the procedure by saying that rules of Court can make provisions.

57. Mr Nonggorr then relates the above example to s.18(1) of the Constitution. He submits that s.18(1) does two things. First, it gives jurisdiction to the Supreme Court. It grants power, where this power has been used to enable proceedings by way of Originating Summons to be filed in the Supreme Court (Kaseng v. Namaliu [1991] PNGLR 48) per Kapi DCJ at pg.489).

58. Secondly, Mr Nonggorr submits that it gives standing to citizens. He submits that this is derived from Re M T Somare [1981] PNGLR 265and also applied in other cases, (The Ombudsman Commission & Others v. National Parliament & Others (2003) SC 721).

59. Mr Nonggorr submits that Re Jim Kas was correct on one point and that is that in Re M T Somare, did not specifically decide that a Constitution s.18(1) Reference can be brought because Re M T Somare was a s.18(2) Reference. However, he submits that in Re M T Somare, the Court held that in developing a new Underlying Law principle on standing, a citizen has the locus standi to raise questions of constitutional validity in the Supreme Court. And that was the basis on which citizens have brought proceedings in the Supreme Court under the Originating Summons procedure.

60. In relation to the Originating Summons procedure invoked by s.18(1), citizens have filed proceedings in that form in the Supreme Court under s.18(1) and this jurisdiction is given to it by s.18(1) through Kaseng v. Namaliu (supra).

61. As for the procedure, Mr Nonggorr submits that there is none in the Supreme Court Rules but which were developed adhoc in Kaseng v. Namaliu (supra). I agree with that and note this to be the mode chosen by some applicants.

62. There have been cases developed by the Supreme Court under s.18(1), even after Kaseng v. Namaliu (supra). This is supported by decided cases confirming the Supreme Court's jurisdiction, applicant's locus standi and the procedure applied and used (In the matter of Application by Anderson Agiru (2001) SC 671; SCR 12 of 2001; In the matter of the Honourable Bill Skate MP (2002) Unreported and Unnumbered).

63. Mr Nonggorr submits that proceedings commenced by way of Originating Summons may require findings of facts and in turn require a trial on the facts as in the National Court. Whereas in a Reference under s.18(1), as facts are not central to the issues but only providing background, this provides a straight forward way for the Constitutional issues to be examined and resolved.

64. It should be noted that the Supreme Court Rules do not provide the practice and procedure for commencement of Originating proceedings before the Supreme Court. Usually, ad hoc directions are given to commence these proceedings by way of Originating Summons under s.185 of the Constitution. It was not until Re Jim Kas, that the Court began to re-emphasise the filing of References under s.18(1) by Originating Summons.

65. It should be noted that O.4 r.1 of the Supreme Court Rules states clearly that a Reference under a Constitution s.18 or a special reference under Constitution s.19 shall be instituted by a Reference. Form 1 is the form used in a Reference under s.18(1). And, yes, I agree that s.18(1) is silent on the process to be applied, but where both the affected party shows or demonstrates that they do have locus standi and the matter falls within the jurisdiction of the Supreme Court, then the matter should proceed, even though an Originating Summons has not been filed.

66. Obviously, there is a lack of procedural provisions in relation to how parties should come to Court for s.18(1) References. In saying that, I refer to s.185 of the Constitution which reads;

"185.	Lack of procedural provision

If in the circumstances of a particular case before a Court, no provision, or no adequate provision is made in respect of a matter of practice or procedure, the Court shall give adhoc directions to remedy the lack or inadequacy."

67. In my view, because of the fact that s.18(1) References have in the past been deliberated on by the Supreme Court and decisions made (see In the matter of Section 18(1) of the Constitution and Bill Skate MP (2002) SC 680 SCR 12 of 2001 dated 20th February, 2002 Amet .CJ; Hinchliffe; Sheehan; Injia; Sawong .JJ), that rather than dismiss this Reference, the Court must issue directions as to how this matter should proceed.

68. In my view, this is not a situation analogous to objections to competency filed in response to leave to appeal or appeals seeking that they be dismissed for being incompetent for non-compliance with the Rules of Court. This is a situation where the Rules are silent as to what should occur. The Supreme Court, it appears, has not been decisive on the steps it ought to take in relation to applications of this nature and has allowed References to be filed and moved, orders made under s.18(1), then later, changing its stance, without amendment to the Supreme Court Rules or the making of rules to cater for situations of this nature.

69. I must say also that issues of this nature should always be resolved at the pre-trial stages and at Directions hearings.

70. A fair and just remedy desirable to the party affected, and more particularly to serious, important matters and also, generally, is not for the dismissal of proceedings but by the giving of directions to rectify this procedural vacuum.

71. As was done in Re M T Somare, where remarks were made by certain members of the bench that a citizen had the locus standi to bring such applications, were, with respect, not progressed by the making of rules or amendments to the relevant provisions of the Supreme Court Act and Rules.

72. Noting also the non-existence of rules in relation to the manner in which an Originating Summons is to be filed in the Supreme Court and the manner in which it is to be pleaded and tried, I refer to O.4 r.2 which is under Part 2 on the Supreme Court's original jurisdiction and the procedure to be applied. The whole of O.4 reads;

"ORDER 4 – REFERENCES UNDER THE CONSTITUTION

Division 1 – Form of reference

1.	A reference under Constitution Section 18 or a special reference under Constitution Section 19 shall be instituted by a reference shall – 

(a)	be entitled under the Section of the Constitution by which it is made together with the year and number of the reference; and

(b)	and with –

(i)	the name of the person, or authority making the reference under Section 18(1) or special reference under Section 19; or

(ii)	with the title or proceedings if the reference is under Section 18(2); and

(c)	state the name of the person, court, tribunal or authority making the reference; and

(d)	be in accordance with forms 1, 2, or 3 whichever is applicable; and

(e)	be signed by the person, court, tribunal, authority or proper officer on behalf of the authority as required by law, making the reference; and

(f)	be filed in the registry.

2.	A reference under Constitution Section 18 shall state – 

(a)	the question to be referred and such facts as are admitted or found by the Judge of the National Court and are necessary for the proper consideration of the question; and

(b)	if the facts referred to in sub-rule (a) cannot be conveniently and shortly stated, the findings of the Judge of the National Court shall be annexed to the reference; and

(c)	where a question involves the pleadings before the Court or tribunal from which it is referred, then so much of the pleadings shall be set out in the reference as raise the question.

3.	A special reference under Constitution Section 19 shall – 

(a)	state the question, the subject of the reference; and

(b)	state the circumstances in which it arises; and

(c)	if appropriate, have annexed a copy of the law or proposed law the validity of which is questioned; and

(d)	specify the relevant provisions of the Constitutional Law."

73. Also included under Part 2 of the Supreme Court Rules, which is the original Jurisdiction of the Supreme Court, is O.3 r.3 which provides that upon direction of the Court, which in this case is the Supreme Court of Justice, which, under the Constitution is defined to mean Court consisting of at least three Judges (s.161(2)), that the Court can give directions either on the application of a party or of its own motion, to a single Judge to take evidence upon any issue of the facts for determination of the proceedings and state those facts as founded by him after which the Court may act upon such statement of facts so far as it thinks fit.

74. As I stated above, if at the pre-trial listing stages, it is discovered or the Court directs that an originating summons should be filed, then that can be done then. Then when the Reference progresses and the Supreme Court finds there is dispute as to the facts, the Supreme Court can direct that a single Judge hear and make orders for later referral to the Supreme Court for the hearing of the Reference.

75. I reiterate that in the absence of specific and clear rules as to how a s.18(1) Reference should proceed, that at the pre-trial directions hearing stages, if the Judge finds there to be no disputed facts, that the Reference should be allowed to proceed to hearing. I note that to be the case because extensive pre-trialing was conducted and orders/directions issued, notwithstanding the filing of intervener's application on 11th February, 2009 and a 'Statement of Agreed and Disputed Facts and Issues' on 11th March, 2009. 

76. Mr Nonggorr submits that there are no facts in dispute, only Agreed Issues for determination filed on 11th March, 2009. That being the case, the Reference must be allowed to proceed. It need not be commenced by originating summons.

77. I hold the view that applicants under s.18(1) References will be properly guided by rules as to how they should proceed. In the absence of rules, a Court on being satisfied that the referrer has locus standi and the Court has jurisdiction to hear the matter, that in the interim, these References, including this application, be allowed to proceed relying on O.4 r.1 of the Supreme Court Rules and Agreed Issues for hearing and final determination.

78. In relation to the objection to the Reference being signed by the Referrers' lawyer, again I reiterate that in the absence of rules, that the Court rely on Form 1 which is that the Reference is to be signed by "the person making the Reference or his lawyer." In this case, the Reference was signed by Tiffany Nonggorr, the Referrers' lawyer.

79. For the foregoing reasons, I would dismiss the objection to competency and allow the Reference to proceed to a hearing.

Decision by majority:

The Reference is dismissed.

_________________________________________

Tiffany Nonggorr Lawyers: Lawyer for the Referrers
Warner Shand Lawyers: Lawyer for the First Intervener National Forest Board 
Blake Dawson Waldron Lawyers: Lawyer for the Second Intervener
Virgil Narokobi: Lawyer for the Third Intervener
Kelly Naru lawyers: Lawyer for the Fourth Intervener