Getting down to business: developing the underlying law in Papua New Guinea

Abstract

At Independence, Papua New Guinea's Constitution gave customary laws a prominent place in the country's legal system. However, for many years Papua New Guinea's courts largely ignored customary laws and fashioned the underlying law almost entirely along the lines of common law. In 2000, the Papua New Guinea Parliament enacted the Underlying Law Act 2000, which requires the courts to look first and foremost to customary laws in developing the underlying law. This paper analyses the Act, describing its aims and the methods it employs to ensure that the courts will use customary laws in developing the underlying law. It considers whether Papua New Guinea courts are following the Act's mandates, and, indeed, whether this is possible. The paper considers possible ways forward for Papua New Guinea to create a legal system based firmly on Melanesian values, beliefs and customary laws.

Keywords:

• Papua New Guinea
• customary laws
• underlying law act 2000
• South Pacific law; legal pluralism

Acknowledgements

The author wishes to acknowledge the invaluable contribution of Professor Jean Zorn to earlier research and the joint publications drawn on in this article. The research assistance of Ms Eleanor Foote is also acknowledged.

Notes

1. There are exceptions: see, for example, Kombea v Peke [1994] PNGLR, where Kapi DCJ was not prepared to deal with a claim founded in common law without hearing evidence as to whether or not there was any customary law on point. See also Resena v PNG [1991] PNGLR 174.

2. Underlying Law Act sch 1.2(1).

3. Underlying Law Act s 4(5).

4. Underlying Law Act s 1(1).

5. Constitution of the Independent State of Papua New Guinea1975 (PNG) sch 1.2.2 (‘Constitution’).

6. This time has been fixed by the Statute of Westminster 1931 (Imp) 22 & 23 Geo 5.

7. Cook Islands Act 1915 (NZ) s 2(1).

8. Underlying Law Act s 1(1). See also s 2, which abolishes the royal prerogative.

9. Underlying Law Act s3(1)(b).

10. It has been argued that there is a distinction between post cut-off date decisions declaring the law, which are applicable, and decisions which develop the law, which are not. See, for example, The State v Pokia [1980] PNGLR 97, 99-100; Guitar v PNG [1081] PNGLR 230, 245; Cheung v Tanda [1984] SILR 108,127. On the other hand, a cut-off date avoids the problems caused by Booth v Booth (1935) CLR 1, where it was held that English statutory modifications of the common law were part of the received common law of Papua New Guinea.

11. (Unreported, Supreme Court, Samoa, St John CJ, 1 January 1992, available via www.paclii.org at [1992] WSSC 1).

12. See contra Cheung v Tanda [1984] SILR 108.

13. See, for example, Uren v Fairfax (1966) 117 CLR 118 where the High Court of Australia declined to follow the House of Lords’ decision in Rooks v Barnard [1064] AC 1129 relating to the award of exemplary damages in civil cases, and Invercargill City Council v Hamlin [1994] 3 NZLR 513, where the New Zealand Court of Appeal declined to follow the decision of the House of Lords in Murphy v Brentwood District Council [1991] 1 AC 398, relating to liability for negligence.

14. Underlying Law Act s 21.

15. Underlying Law Act s 11.

16. (Unreported, Supreme Court of Papua New Guinea, Cannings, Manchu & Kinsman JJ, 12 March 2012, available via www.paclii.org at [2012] PGSC 8).

17. Those in favour of giving precedence to custom argued that its placement ahead of the common law in sch 2 was intentional and supported this by reference to sch 2.2: see, for example, Kombea v Peke [1994] PNGLR 572. Those in favour of common law pointed out that the Constitution did not explicitly require that custom come first. Some judges simply noted how much harder custom was to find than common law. For judicial comment on point see State v Pocola (Unreported, National Court, Papua New Guinea, Kid CJ, 11 March 1983 available via www.paclii.org at [1983] PGNC 4) 7.

18. Section 24(2) of the Act repeals sch 2 of the Constitution: ‘The underlying law as prescribed by Schedule 2 … of the Constitution which was in effect immediately before the coming into operation of this Act, shall cease to have any effect on the coming into operation of this Act.’

19. Section 23 of the Underlying Law Act also provides that custom should come first in interpreting statutes and the Constitution: ‘When interpreting any provision of, or any word, expression or proposition in any written law, the court shall give effect to any relevant customary practice, usage or perception recognised by the people to be affected as a result of the interpretation.’ This makes it clear that statutes should be interpreted in such a way as to make them appropriate to the conditions of the country and that even though the words in a statute might have one connotation in England or Australia, the same words might have a different connotation in the different context of Papua New Guinea.

20. Underlying Law Act s 1(1); Constitution, s 9.

21. Overruling may occur in accordance with normal common law principles or by virtue of s 9 of the Act, which is discussed below.

22. Underlying Law Act s 9.

23. Underlying Law Act s 9

24. See, for example, Re Compton [1945] Ch 123, where the English Court of Appeal refused to overrule a long line of old authorities concerning charitable trusts although it considered these cases anomalous.

25. Unless varied or repealed by the Supreme Court or National Court, res judicata is also an operative principle: Underlying Law Act s 18.

26. New Britain Oil Palm Ltd v Sukuramu (Unreported, Supreme Court of Papua New Guinea, Sakora and Lay JJ, 30 October 2008, available via www.paclii.org at [2008] PGSC 29).

27. (Unreported, Supreme Court of Papua New Guinea, Kapi CJ, 4 February 2005, available via www.paclii.org at [2006] PGSC 2)

28. National Court Act 1975 (PNG).

29. Underlying Law Act, s 22.

30. State v Pokolou (Unreported, National Court, Papua New Guinea, Kidu CJ, 11 March 1983, available via www.paclii.org at [1983] PGNC 4) 7-8.

31. The Rules of the National Court of Justice (Underlying Law Amendment) 2011 do not change this.

32. Lawyers Act 1986 (PNG) ss 52-60.

33. Underlying Law Act s 11.

34. Customs Recognition Act 1963 (PNG) s 2(1) (‘Customs Recognition Act’).

35. Strictly speaking, courts find notorious facts by judicial notice, not law. However, it is commonly said that judges take judicial notice of domestic law (see further Heydon 2013, [3075]).

36. New Britain Oil Palm Ltd v Sukuramu (Unreported, Supreme Court, Papua New Guinea, Sakora and Lay JJ, 30 October 2008, available via www.paclii.org at [2008] PGSC 29).

37. Rules of the National Court of Justice (Underlying Law Amendment) 2011, discussed further below.

38. Underlying Law Act s 16(2)(b)(iii).

39. See, for example, Evidence Act 1998 (Cth) s 78A (inserted by Evidence Amendment Act 2008 (Cth)).

40. Underlying Law Act s 16(2)(b)(iv).

41. See below the discussion as to whether all of these conditions must be met.

42. See, for example, Application of Thesia Maip; In the Matter of the Constitution s42(5) [1991] PNGLR 80. But see contra, Tom v Kayiak [1992] PNGLR 171. The Law Reform Commission Report seems to have received more attention and had a greater influence in Vanuatu than in Papua New Guinea. For example, the guidelines contained in s 17 for applying customary law to cases in which the parties are from communities with different customary rules closely resemble those proposed for Vanuatu by Lunabek CJ. in Waiwo v Waiwo (Unreported, Senior Magistrates Court, Vanuatu, Lunabek SM, 28 February 1996, available via www.paclii.org at [1996] VUMC 1); Molu v Molu (No. 2) (unreported, Supreme Court, Vanuatu, Lunabek CJ, 15 May 1998, available via www.paclii.org at [1998] VUSC 15).

43. SCR No 1 of 1977: Poisi Tatut v Cassimus [1978] PNGLR 295. See also SCR No 4 of 1980 (No 2); Re Petition of MT Somare [1982] PNGLR 151.

44. Underlying Law Act s 1(2)(a).

45. Underlying Law Act s 17(1)(b). As for cases in which both parties belong to the same community, s 17(1)(a) provides that such cases shall be governed by the customary law of that community.

46. Underlying Law Act s 17(1)(b).

47. Underlying Law Act s 17(2).

48. State v Kiap Bangi [1988-89] PNGLR 300; State v Natapalau Tulong [1995] PNGLR 329; Paine v Slater (1883) 11 QBD 120; White v Islington Corporation [1909] 1 KB 133.

49. The Act is not intended to cover the role of custom in the criminal law (Law Reform Commission 1977, 11).

50. There is a rebuttable presumption against implied repeal. Courts must give effect to both statutes unless it is impossible to enforce both: Jennings v US Government [1982] 3 All ER 104; Rarai v Collins [1986] PNGLR 68.

51. Section 5 of the Customs Recognition Act provides that, in civil cases, custom may be taken into account only in relation to: rights relating to customary land and things in, on or produce of customary land; customary rights relating to water, the sea, sea-bed, reef, river or lake; devolution of customary land on birth, death or the happening of a certain event; trespass by animals; customary marriage and divorce, custody and guardianship of children in connection with a customary marriage; a transaction the parties intend or justice requires should be regulated by custom rather than by common law; as a factor in deciding whether a person has acted reasonably; the existence of a state of mind; and to avoid injustice.

52. Underlying Law Act ss 4, 6 and 7.

53. (Unreported, National Court, Papua New Guinea, Kandakasi J, 10 January 2001, available via www.paclii.org at [2001] PGNC 1).

54. (Unreported, National Court, Papua New Guinea, Kandakasi J, 1 May 2002, available via www.paclii.org at [2002] PGNC 86).

55. (Unreported, National Court, Papua New Guinea, Batari J, 21 September 2011, available via www.paclii.org at [2011] PGNC 270).

56. (Unreported, Supreme Court, Papua New Guinea, Salika, Kandakasi & Yagi JJ, 29 September 2008, available via www.paclii.org at [2008] PGSC 51).

57. Customs Recognition Act, s 3.

58. (Unreported, National Court, Papua New Guinea, Lenalia J, 28 March 2002, available via www.paclii.org at [2002] PGNC 107).

59. (Unreported, National Court, Papua New Guinea, Cannings J, 21 April 2005, available via www.paclii.org at [2005] PGNC 75).

60. (Unreported, National Court, Papua New Guinea, Davani J, 29 September 2006, available via www.paclii.org at [2006] PGNC 83).

61. Underlying Law Act s 3.

62. Law Reform Commission Report 11. See also Underlying Law Act, s 24(2).

63. Underlying Law Act, s 24(1).

64. For examples of cases where courts have insisted on investigation, see Resena v PNG [1991] PNGLR 174 and Kombea v Peke [1994] PNGLR 572.

65. Compare the competing views of Kapi DCJ and Miles J in Supreme Court Reference No 4 of 1980 [1981] PNGLR 265. See also Kimas v Boera Development Corporation Ltd (Unreported, Supreme Court of Papua New Guinea, Cannings, Manuhu & Kassman JJ, 12 March 2012, available via www.paclii.org at [2012] PGSC 8).

66. (Unreported, National Court of Papua New Guinea, Cannings J, 21 February 2005, available via www.paclii.org at [2005] PGNC 75).

67. Madaha Resena v The State [1991] PNGLR 174; Gia Kewa Piel v Ranpi [1996] PNGLR 396; George W Sulliman v Thecla Sulliman (Unreported, National Court, Davani J, 20 May 2002, available via www.paclii.org at [2002] PGNC 132)); Mesulam Meriba v Silou (Unreported, National Court, Lenalia J, 28 March 2002, available via www.paclii.org at [2002] PGNC 107).

68. Rules of the National Court of Justice 1983 (PNG) O8 r 8(1).

69. This could be justified by reference to Rules of the National Court of Justice 1983 (PNG) O8 r 14(b).

70. (Unreported, Supreme Court of Papua New Guinea, Sakora and Lay JJ, 30 October 2008, available via www.paclii.org at [2008] PGSC 29) [18].

71. [16].

72. (Unreported, Supreme Court of Papua New Guinea, Cannings, Batari & Mogish JJ, 13 March 2009, available via www.paclii.org at [2009] PGSC 3).

73. Amending r 1(2).

74. (Unreported, Supreme Court of Papua New Guinea, Sakora and Lay JJ, 30 October 2008, available via www.paclii.org at [2008] PGSC 29) [18].

75. (Unreported, Supreme Court of Papua New Guinea, Sakora and Lay JJ, 30 October 2008, available via www.paclii.org at [2008] PGSC 29) [18].

76. [2000] PNGLR 109.

77. (Unreported, Supreme Court of Papua New Guinea, Sakora and Lay JJ, 30 October 2008, available via www.paclii.org at [2008] PGSC 29) [18].

78. Underlying Law Act s 3.

79. Underlying Law Act s 7(5)(a) and (b).

80. See, for example, Native Customs (Recognition) Ordinance 1963 s 6(1)(a).