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Office of the Legislative Counsel
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Office of the Legislative Counsel

What law established the Office of the Legislative Counsel? What are the functions of the Office of the Legislative Counsel? The relevant law that established the Office of the Legislative Counsel is the Legislative Drafting Service Act (Chapter 80). We refer to this Act as the Act in this article.

Legislative Drafting Service

The Act establishes the Legislative Drafting Service. The First Legislative Counsel is the head of the Legislative Drafting Service. The members of the Legislative Drafting Service comprised of the following persons:

  1. First Legislative Counsel.
  2. Second Legislative Counsel.
  3. Assistant Legislative Counsel.

There is can only be one person who is appointed as the First Legislative Counsel. However, there can be more than one person holding the position and office for the Second Legislative Counsel and the Assistant Legislative Counsel. The Prime Minister of Papua New Guinea may determine the number of persons who can fill these two (2) positions. The National Executive Council advises the Head of State to appoint members of the Legislative Drafting Service. This is done for each member, respectively.

Office of the Legislative Counsel

The Act establishes the Office of the Legislative Counsel. The Office of the Legislative Counsel consists of the following persons:

  1. The members of the Legislative Drafting Services.
  2. All employees of the Office of the Legislative Counsel. These staff are employees of the public service.

The Office of the Legislative Counsel can employ staff under contract or otherwise depending on its needs at the relevant time. It is given the power to recruit and employ staff as necessary.

Functions of the Office of the Legislative Counsel

The office of the Legislative Counsel has a lot of functions. These functions are set out as follows:

  1. Drafting of proposed laws for introduction into the Parliament. For example, the Office can draft a bill relating to cybersecurity and introduce it into Parliament for passing.
  2. Drafting of amendments of proposed laws that are being considered by the Parliament. For example, the Office can draft a bill for amendment of the Income Tax Act.
  3. Drafting of subordinate legislation. For example, the Office can draft a bill for a provincial government to enact.
  4. Drafting of other instruments that are to have or be given the force of law or are otherwise related to legislation. For example, draft an instrument for appointment.
  5. Making of arrangements for the printing of the laws, including the reprinting of any laws with amendments and the periodical or other consolidation of any such laws. For example, the annotated Constitution of the Independent State of Papua New Guinea. In State v Tongayu [2021] PGNC 69; N8810, it was alleged that the Office of the Legislative Counsel prepared two instruments appointing the accused as the Chairman of the Securities Commission and as the Registrar of Companies. However, the Office gave evidence to the contrary. As a matter of course and practice, the Office prepares such appointing instructions. Thereafter, the Office forwards the same to the relevant appointing authority to execute it before it is published in the National Gazette by the Government Printer.
  6. Such other functions as are prescribed by or under any other law or as are directed by the Prime Minister. The Prime Minister is given the power to direct the Office to carry out other functions as and when necessary.

Apart from all these functions listed above, the Office of the Legislative Counsel also has functions that are incidental to any of those functions listed above. In conclusion, the Office of the Legislative Counsel is responsible for drafting the laws of Papua New Guinea to be tabled in Parliament.

Legislative Counsel
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Legislative Counsel

Who is the First Legislative Counsel and what are his responsibilities? Is he responsible for drafting legislations in Papua New Guinea? The relevant law that established the office responsible for legislative drafting and sets out the functions of that office is the Legislative Drafting Service Act (Chapter 80). We refer to this Act as the Act in this article.

Legislative Drafting Service

The Act establishes the Legislative Drafting Service. The First Legislative Counsel is the head of the Legislative Drafting Service and he is the Departmental Head in so far as the Public Service (Management) Act 1995 is concerned. The members of the Legislative Drafting Service comprised of the First, Second and Third Legislative Counsel.

There is can only be one person who is appointed as the First Legislative Counsel. However, there can be more than one person holding the position and office for the Second Legislative Counsel and the Assistant Legislative Counsel. The Prime Minister of Papua New Guinea may determine the number of persons who can fill these two (2) positions. The National Executive Council advises the Head of State to appoint members of the Legislative Drafting Service. This is done for each member, respectively.

Qualification for Legislative Counsel

To be appointed as a Legislative Counsel, there are certain qualifications that you must meet. You must meet any of the following qualifications to be eligible for appointment:

  1. You must be a barrister or solicitor of the Supreme Court and the National Court of Papua New Guinea for not less than five years.
  2. You must be a barrister or solicitor of the Supreme Court of a State or Territory of Australia, the Supreme Court of Judicature of England or the Supreme Court of New Zealand for not less than five years.
  3. You must be called to the Bar of one of the Inns of Court in London for not less than five years.

Qualification for Assistant Legislative Counsel

To be appointed as an Assistant Legislative Counsel, there are certain qualifications that you must meet. You must meet any of the following qualifications to be eligible for appointment:

  1. You must be a barrister or solicitor of the Supreme Court and the National Court of Papua New Guinea.
  2. You must be a barrister or solicitor of the Supreme Court of a State or Territory of Australia, the Supreme Court of Judicature of England or the Supreme Court of New Zealand.
  3. You must be called to the Bar of one of the Inns of Court in London.

There is no time requirements attached to this as in the case of the appointment of a legislative counsel.

Special functions of the First Legislative Counsel

Apart from the general functions of the Office of the Legislative Counsel, he also has some special functions. These functions are set out below:

  1. He is in charge and thus controls the Office of the Legislative Counsel.
  2. Since he controls the office, he is administratively responsible to the Prime Minister for the efficient performance of the functions of the Office. Hence, he is subject to any directions of the Prime Minister as to priorities. He must, administratively allocate work in order or priority as directed by the Prime Minister.
  3. He devises and implements the adoption of uniform and simplified styles, form, wording, and procedures in drafting instruments for which the Office is responsible, and generally for the purposes of the written law. He does that with consultations with other appropriate authorities.
  4. He may also give instructions to other appropriate authorities to devise and implement the adoption of uniform and simplified styles, form, wording, and procedures in drafting instruments.
  5. He is required to promote legislative drafting as a career. Thus, he can consult and co-operate with the University of Papua New Guinea and other appropriate professional and academic bodies.
  6. He is required to improve the art of legislative drafting. Thus, he can consult and co-operate with the University of Papua New Guinea and other appropriate professional and academic bodies.
  7. He is also responsible to liaise with the University of Papua New Guinea and other appropriate professional and academic bodies to improve of the art of legislative drafting.

Apart from the functions set out above, he also has such other functions, duties and responsibilities as the Prime Minister directs where necessary.

Special responsibilities of the Legislative Counsel

Each Legislative Counsel has a special responsibility to draw the attention of the Prime Minister to any case that comes to his attention in which, in his opinion, any instructions for the drafting of an instrument, a proposed law or a proposed amendment to a proposed law:

  1. departs from any instructions given by the Prime Minister or by other competent authority.
  2. is contrary to the canons of good legislation.
  3. makes an unusual or unexpected use of any power conferred.
  4. is ultra vires.
  5. otherwise ought to be specifically referred to the Prime Minister.

Once a Legislative Counsel brings this to the attention of the Prime Minister, the Prime will then consider it and issue directions to him. Whatever, decision that the Prime Minister makes, the Office of the Legislative Counsel is obliged to comply with it.

In conclusion, the legislative counsel is responsible for drafting law and ensuring that these drafts are in compliance with the directions given by the Prime Minister and the appropriate authorities and these laws are not contrary to the existing laws.

Admission Council
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Admission Council

What is the Admission Council (Council)? The Council is established under section 25A of the Lawyers Act 1986.

What is the composition of the Council?

The Council is made up of the following members:

  1. the Attorney-General.
  2. the Chief Justice.
  3. the President of the Papua New Guinea Law Society (Society).

The Attorney General is the Chairman of the Council. All these members hold their seat in ex officio. This means that the officers who holds these position as members are not voted in. Instead, they hold these position because of their position as the Attorney General, the Chief Justice and the President of the Society, respectively.

What are the functions of the Council?

The Council is responsible for the admission of lawyers to practice in Papua New Guinea. The functions of the Council are set out in the Lawyers Act. The Lawyers Act gives the Council the power to make rules relating to admission to practice.

Rules of admission

If the Council makes any rules relating to admission, it will then give notice of the rules to the public by publishing it in the National Gazette. The Attorney General will be responsible for ensuring that the notice is published in the National Gazette. The rules will come in force upon publication of the notice. If, however, the notice itself sets out a date that the rules will come into operation, then that date will be the date of operation and not the date of publication.

An example of a rule made by the Council is the Lawyers Admission Rules 1990 which set out the prescribed forms for the following:

  1. Form 1 – Certificate of Training issued by the Chairman of the Council and the Director of the Legal Training Institute.
  2. Form 2 – Notice of Intention to Apply for Admission as a Lawyer.
  3. Form 3 – Lawyer’s Oath.
  4. Form 4 – Roll of Lawyers.
  5. Form 5 – Certificate of Admission.

All in all, the Council is responsible making rules in relating to admission of applicants to practice as lawyers in Papua New Guinea.

Procedures of the Commision of Inquiry
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Procedures of the Commission of Inquiry

What rules of procedure are applicable to the commission of inquiry?

In Papua New Guinea, a Minister appoints a Commission of Inquiry. A Minister makes this appointment under the Commissions of Inquiry Act (the Act). A Commission will conduct an inquiry in such matters which the minister thinks that it concerns public welfare. The Act gives a wide discretionary power to the Commission to make such rules as it thinks proper for the conduct of the proceedings before it. It may also make rules for the times and places for its meetings and for adjournment of its hearing. However, those rules must not be inconsistent with the terms of the instrument of the appointment of the Commission.

Powers of the Commissioner

The Act gives the Commissioner the power to summon a person to attend before the commission to give evidence. By giving, it includes producing any documents, books or writing the person summoned has in his custody or control. The summons must be in writing and issued under his hand of the Commissioner. The summons will set out the time and place when the person is required to attend before the Commission.

In addition to that power a commissioner may administer an oath to a person appearing as a witness before the Commission. This is irrespective of whether that person is summoned or appears without being summoned. Furthermore, the commissioner may examine the witness on oath.  

“The Commission by its very establishment and nature inquisitorial in nature with extensive powers to compel the giving of evidence and the production of documents by witnesses it considers relevant and appropriate. The Commissioners are therefore expected to play a far more active role in ascertaining facts then a Court would. It is therefore appropriate to allow for a wide range of expression and conduct of the Commissioners and one should not interpret robust conduct as bias.”

Justice Kandakasi, as he then was, in Bank of Papua New Guinea v Marshall Cooke QC [2003] PGNC 127; N2369

Offences

If you are served with a summons and you fail to attend before the Commission you are guilty of an offence. Even if you appear but fail to produce any document, book or writing wherein you were summoned to produce, you are guilty of an offence. The Act also gives the person summoned an opportunity to explain his failure not to comply. You must give a reasonable excuse for your failure to comply and therefore the Commission will exercise its discretion. There are two forms of penalty for this. You can either pay a fine not exceeding K5, 000.00 or imprisoned for a term not exceeding two years.

If you have no reasonable excuse, then the only defence is to prove that the document, book or writing you are summoned to produce is not relevant to the inquiry.

If a person appearing as a witness does any of the following then he is guilty of an offence:

  1. refuses to be sworn.
  2. refuses to make an affirmation.
  3. refuses to answer any questions relevant to the inquiry put to him by a commissioner.
  4. leaves the Commission without the permission of the Commissioners.
  5. Gives false evidence.

The penalty for these offences set out as items 1, 2, 3 and 4 is a fine not exceeding K5, 000.00 or imprisonment for a term not exceeding two years. The penalty for item 5 is imprisonment for a term not exceeding 14 years.

You are guilty of contempt of commission of you do any of the following acts:

  1. wilfully insults the Commission.
  2. wilfully interrupts the proceedings of the Commission.
  3. is in any manner guilty of wilful contempt of the Commission,

The penalty for this offence is a fine not exceeding K5, 000.00 or imprisonment for a term not exceeding two years.

Are counsels permitted to appear before the Commission?

The short answer is yes. The Act permits counsels to appear before the Commission on behalf of their client. However, they can only appear if their client satisfies to the Commission that he has a bona fide interest in the subject matter of the inquiry. The Commissioner will then grant leave to the person to appear. That person can then choose to appear by himself or engage a counsel to represent him.

Is the inquiry closed to the public? 

No, it is not. The commission will hold the inquiry in public. However, the Commission has the power to exclude any person or persons to preserve order and the due conduct of the inquiry. Another circumstance where part of the inquiry will not be made in the public is when the commission order that all evidence before it be given in private. However, this must be done with the approval of the minister.

Furthermore, the Commission may direct that any evidence that is given before it must not be publish. This includes any document, book or writing that is produced before the Commission. If a person published it without the consent of the Commission or the minister, he is guilty of an offence.

What happens to the findings of the Commission? 

Once the Commission concludes its inquiry, it will make a report of its proceeding and the results of its inquiry to the Minster. The Commission shall record the reasons for its conclusions. In cases where a Commission consist of more than one commissioner and if a commissioner dissents from the conclusion, he must give his reasons for the dissent.

The Minister will then lay the report before the Parliament. He must do that no later than the first day of the second meeting of the Parliament after he receives the report from the Commission. However, this is subject to the minister’s opinion on whether the tabling of the report in Parliament is contrary to public interest.

Purpose of the Commision of Inquiry
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Purpose of the Commission of Inquiry

What is a commission of inquiry?

In Papua New Guinea, a Commission of Inquiry is a commission that is appointed by a Minister. The Minister execrise his powers under the Commissions of Inquiry Act (the Act) to appoint the Commission. The Commission conducts an inquiry in such matters which the minister thinks that it concerns public welfare.

“It is clear however, that a Commission of Inquiry is a public authority established under a national legislation performing a public task under its given terms of reference. But its task is restricted to collating evidence in relation to the matters that it is tasked to inquire into and make findings of the relevant facts and make recommendations. It does not have the power to make a decision that immediately affects the rights and interest of persons that might be covered in its finds and or recommendation. Such obligations are left to the relevant authorities that do have the power to make the decisions.”

Justice Kandakasi, as he then was, in Bank of Papua New Guinea v Marshall Cooke QC [2003] PGNC 127; N2369

Who appoints a Commission?

A Minister. However, the Act does not specify which Minister will appoint a Commission. It leaves it open. This is because of the purpose for which a Commission may be appointed for. If a legislation mentions a minister but does not specify which minister, this mean that the Minister would be the minister who has responsibility for that provision, matter, or thing. If there is no such minister, then it would be the Prime Minister.

What is the purpose of a Commission?

A minister may appoint a Commission to conduct an inquiry into any matter which the minister thinks is for public welfare. There are many instances where a Commission of Inquiry was appointed to inquire into matters that concerned the welfare of the public.

How does a minister appoint a commission?  

A minister shall appoint a commission by instrument. The instrument shall set specify the subject of the inquiry. Furthermore, the instrument must be accompanied by a statement of the case on which the Minister ordered the inquiry. In addition to these two, the instrument can also:

  1. direct where and when the report shall be made. and
  2. direct where and when the inquiry shall be made.
  3. set out the name of the commissioner.

If the Commission will be made by two or more commissioners, then the instrument must clearly set out the names of the commissioners and appoint one of them as the Chairman of the commission. Since there are more than one commissioner, the instrument must fox a quorum for meeting of the commission.

Is the inquiry closed to the public? 

No, it is not. The commission will hold the inquiry in public. However, the Commission has the power to exclude any person or persons to preserve order and the due conduct of the inquiry. Another circumstance where part of the inquiry will not be made in the public is when the commission order that all evidence before it be given in private. However, this must be done with the approval of the minister.

Furthermore, the Commission may direct that any evidence that is given before it must not be publish. This includes any document, book or writing that is produced before the Commission. If a person published it without the consent of the Commission or the minister, he is guilty of an offence.

What happens to the findings of the Commission? 

Once the Commission concludes its inquiry, it will make a report of its proceeding. The Commission will send the results of its inquiry to the Minster. The Commission shall record the reasons for its conclusions. In cases where a Commission consist of more than one commissioner and if a commissioner dissents from the conclusion, he must give his reasons for the dissent.

The Minister will then lay the report before the Parliament. He must do that no later than the first day of the second meeting of the Parliament after he receives the report from the Commission. However, this is subject to the minister’s opinion on whether the tabling of the report in Parliament is contrary to public interest.

What happens after the findings of the Commission? 

The Act charges the Commission only to make inquiries into a matter and make findings on it. It does not have the power to act on those findings to make findings that will affect the right of a person. Instead, that duty is upon the relevant authorities to relay on the report, its findings and act on it.

Are the findings of the Commission subject to appeal or review?

The short answer is no. The Act gives a Commission powers. Hence, a Commission has privileges and protections similar to that of a judge of the National Court. However, there is no provision in the Act which gives a party the right of appeal or review against any finding of a Commission.

Read more: Purpose of the Commission of Inquiry

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