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Ipatas and 11 Others v Balakau, Enga Interim Provincial Government, Neakson, Taylor and Unagi [1996] PNGLR 248 (26 January 1996)

PNG Law Reports 1996

[1996] PNGLR 248 - Ipatas and 11 Others v Jeffrey Balakau, Enga Interim Provincial Government, Ainu Neakson, Graham Taylor and David Unagi

[1996] PNGLR 248

N1408

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IPATAS AND ELEVEN (11) OTHERS

V

JEFFREY BALAKAU;

ENGA INTERIM PROVINCIAL GOVERNMENT;

AINU NEAKSON;

GRAHAM TAYLOR; AND

DAVID UNAGI

Mount Hagen

Woods J

26 January 1996

ORGANIC LAW - Organic law on Provincial Government - Sections 82, 91, 105 - Provincial Appropriation Act - Application to restrain Minister for Provincial Affairs from approving provincial Appropriation Act – Non-justiciability.

Facts

The plaintiffs sought orders restraining the Minister for Provincial Affairs from approving the Enga Provincial Government Appropriation Act on the ground that the procedure followed by the Provincial Assembly in considering the Act was irregular and unfair to the members of the Assembly and that the vote taken on the Act was contrary to the Standing Orders of the Assembly. The Minister had raised certain objections and queries in relation to the Act.

Held

The approval or otherwise of a Provincial Appropriation Act is a matter for the executive government and the procedures followed by a Provincial Assembly in how votes are taken are non-justiciable and the Court would not go behind the certificate of the minutes of the Assembly. Moreover, the Minister, and, if necessary, the Parliament had on the evidence, uncompleted functions to be exercised in relation to the Act which would preclude any interference by the Court.

Cases Cited

Papua New Guinea cases cited

Joshua & Anor v Meya & Os [1988-89] PNGLR 188.

Mopio v The Speaker of the National Parliament [1977] PNGLR 420.

Counsel

M Tamutai, for the plaintiffs.

P Potane, for the first four defendants.

26 January 1996

WOODS J: This is an application for orders restraining the Minister for Provincial Affairs from formally approving the Enga Appropriation Act of 1996 and for orders restraining action under that budget.

As this involves the appropriation and expenditure of monies by the State one must start by considering the provisions in the Constitution of the Independent State of Papua New Guinea. The appropriation and expenditure of monies by the Government is covered by the Constitution s 209, Parliamentary Responsibility.

(1)      Notwithstanding anything in this Constitution, the raising and expenditure of finance by the National Government, including the imposition of taxation and the raising of loans, is subject to authorisation and control by the Parliament, and shall be regulated by an Act of parliament.

There is no similar provision in the Organic Law on Provincial Governments. There is no reference to the requirement for a specific appropriation act by Provinces. The financial matters in the Provinces are covered by the following Sections of the Organic Law.

*        Section 82 Outline of Provincial Government and Local-Level Government Finances.

*        Section 91 - Types of Provincial and Local-Level Government Grants.

*        Section 105 - Financial Responsibility.

It is clear that Provincial Government expenditure is covered by the National Government appropriations. The National Government appropriates the general monies for the Provinces so the monies allocated to the Provinces have been validly appropriated. Then the National Government is responsible through the Minister for Provincial Affairs and the Minister for Finance for the budgetary organisation of the Provinces. They would require Provinces to pass budgets as to how they propose the allocation of the monies granted to the Province. There is then the provision for the Minister to have to approve the Budget.

Of course, one must not overlook the fact the Provinces do have limited powers to raise some provincial taxes and licence fees as provided for by the Organic Law but of course any such must still be considered and approved by the National Minister. And of course if a Province attempts to raise taxes in areas not provided for then there are appropriate actions that can be taken.

This is all a matter of Executive Government. How the nations monies are spent is a matter for the Parliament and the National Executive Council and is not matter that the Courts can interfere in. I have been referred to no authorities which would support any interference by the Courts in the passage of budgetary appropriations.

The checks and balances for these Provincial raising of taxes and the spending of National Government grants is always covered by the role of the Minister for Provincial Affairs and the National Executive Council and finally by the National Parliament through the provisions in the Organic Law for the regulation and control over the Provinces, for example, through the suspension provisions.

It is also submitted that the procedure whereby the Enga Provincial Assembly considered the Budget was irregular and unfair to the Members of the Assembly. It is submitted that the vote on the budget was taken contrary to the standing orders.

The procedures followed by Parliament and therefore an Assembly in how votes are taken is non-justiciable. This is not a matter of the Assembly doing matters it had no power to do, it is purely a question of their following internal procedures. This Court is not going to go behind the certificate of the minutes of the assembly’s internal procedures. This was clearly stated in the case Mopio v The Speaker of the National Parliament [1977] PNGLR 420. There have been more recent cases which have pointed out the distinction between non-justiciable procedural matters and compliance with constitutional provisions in for example no-confidence motions and suspension of members such as in the case Joshua & Anor v Meya & Os [1988-89] PNGLR 188.

Further, I am being asked to interfere to make orders in a matter which is still within the power of the Minister. The Minister has already raised certain objections and queries to the Budget and surely there is still power for him and if necessary the National Parliament to undertake a supervisory role. Such a role as I have already referred to above.

I find that this is not a matter in which this court should make the orders sought. I dismiss the application.

Lawyer for the plaintiff: Mathew Tamutai.

Lawyer for the defendants: Pato Potane.