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PNG Constitutional Planning Committee Report 1974
Constitutional Planning Committee Report 1974
1. In the kind of participatory democracy we envisage for Papua New Guinea, with maximum emphasis on consultation and consensus, the national legislature must clearly have a central role. We believe that while the executive must be given every opportunity to provide strong leadership in reshaping our new nation to meet the needs and aspirations of our people, it is important also that this leadership does not become autocratic so that the legislature becomes a mere rubber stamp. If government is to be truly responsive to the people, it is vital that those whom the people elect to represent them should be able to contribute actively and effectively to the government of the nation. The legislature should not be seen as a rival to the executive arm, but rather as a full and constructive partner. It can then help to ensure the overall effectiveness of government by keeping the executive accountable to the people. This is the approach that underlies our proposals.
A. COMPOSITION OF PARLIAMENT
2. To signify the break with the colonial past, and to emphasise the national character of the legislature, we propose that the House of Assembly be renamed the "National Parliament".
3. We have considered four basic questions concerning the composition of the National Parliament -
(a) Should there continue to be only one house, or should there be an upper house as well?
(b) Should all members be elected, or should some be nominated?
(c) Should "regional" electorates be retained, or should there be only "open" electorates?
(d) How many members should there be?
(a) One house or two
4. Although there is some attraction in the idea of a house of review, we are not convinced that a second chamber of parliament would, in practice, perform the task for which it was intended. Experience elsewhere indicates that it is by no means certain that the results would justify the expense or the much more cumbersome legislative process that a second house would entail. We have concluded that by strengthening the present legislature to make it a more effective organ of government, and by establishing also an effective system of provincial government, such case as may exist for a second house would be very substantially diminished. We therefore recommend that the National Parliament should consist of a single house.
(b) Nominated members
5. Following recommendations in the Final Report of the Second Select Committee on Constitutional Development, an amendment to the Papua New Guinea Act in 1971 provided that, in addition to the 100 elected members in the House of Assembly -
(a) the Administrator could choose up to four official members; and
(b) if the House decided by a two-thirds majority, a select committee could be appointed to nominate, in consultation with the Administrator, up to three further persons who would become members if approved by the vote of a simple majority of the House.
The provision for official members was removed when Papua New Guinea became self-governing on 1 December 1973. The provision for nominated members remains.
6. The case usually put forward for having nominated members is that it provides the opportunity for bringing into the parliament persons either with special qualifications or experience not available among the elected members, or from particular groups not otherwise represented. In its two years of office the present government has taken no initiative in this matter, nor has any interest in the possibility of nominating members been shown in the House. There has been, we believe, a general reluctance to see any breach of the principle that members of the legislature should be elected by the people, and a feeling that, in any case, there is no real practical need for nominated members. The Committee shares these views and, having found public opinion divided on the issue of nominated members in the parliament, we recommend that all members be elected under a system of universal suffrage, as in practice they are at present.
(c) Regional electorates
7. In each of the three Houses of Assembly since 1964 there have two kinds of members. Most members have represented open electorates for which there have been no special qualifications. In 1964, there were also 10 "special" electorates reserved for expatriate candidates. In 1968, these were abolished and replaced by 15 "regional" electorates, and this number was increased to 18, one for each administrative district, in 1972. In addition to normal qualifications, a candidate for a regional electorate has had to have the "Intermediate Certificate", or its equivalent. This usually meant having completed a third year at high school. As mentioned in the Report of the Second Select Committee on Constitutional Development (p. 4 para. 27) in 1971, there was some call at that time for the removal of regional electorates. The Select Committee found this to be a minority view, and so it was in the House when a motion to abolish them, strongly supported by the present Chief Minister, was defeated.
8. Over the past three years there has been a considerable shift in opinion on this matter, from submissions made to the Committee it is clear that a majority in most parts of the country now want regional electorates abolished. From discussion at our public meetings we have found that many people do not understand why there should be two kinds of member representing the same area, nor do they consider this as necessary. It is clear also that in many instances it has been very difficult for the regional member to make himself known in all parts of his electorate.
9. To these points may be added the fact that the original reason for regional electorates has been largely invalidated by the increasing number of well educated members returned from open electorates. This trend is bound to continue. We accept that the time has come for the abolition of regional electorates, and it is of note that none of the six regional members on our Committee dissented from the decision to make this recommendation.
(d) How many members
10. There are a number of factors to be considered in arriving at an appropriate number of members: cost and the efficiency of parliament, the opportunity for real participation by its members, the need to provide sufficient variety of talent. But, ultimately, the major factor in our country is adequacy of representation. In submissions to the Committee there has been widespread support for the idea of replacing regional electorates with open electorates, thereby maintaining the present total of 100 elected members. A significant minority, however, favoured more than 100 electorates. The most common reason given for an increase was that existing electorates are too large for members to travel around easily to visit the people.
11. We believe that there is a strong case for increasing the total number of open electorates to about 100, or a little more. However, this should not necessarily mean that the regional electorate should be replaced by an additional open electorate in every district. There should be some flexibility in the total number prescribed so as to provide adequately for the application of relevant criteria in the drawing of electoral boundaries by an independent commission. We refer to this commission and the drawing of boundaries later. We feel also that there should be an odd number of members. This should help to preclude a situation where a government cannot be formed because of a stalemate in an evenly divided parliament.
12. We therefore recommend that the National Parliament comprise not less than 101 nor more than 107 members, the number to be an odd number determined by the Electoral Commission in accordance with the criteria set out in the Constitution.
13. We consider that the qualifications for membership of the National parliament should be in keeping with the increased responsibilities of members of the legislature in an independent Papua New Guinea; and in keeping also with the importance of the role of parliament in the system of government we recommend. We therefore propose a number of changes in the qualifications, but they are subject to certain transitional arrangements (outlined in paragraph 125 below) which include protection of the right of present members of the House of Assembly to retain the seats to which they have been elected until the end of their term in 1976.
14. Qualifications for membership of the House of Assembly were last examined in 1970 by a Commission of Inquiry into Electoral Procedures. No change was proposed in respect of the basic qualification that, in addition to being a British subject, a candidate for election to the House should either have been born in Papua New Guinea or have lived here for at least five years. With the introduction of Papua New Guinea citizenship, this provision is no longer appropriate. We believe that, first and foremost, one should be a citizen in order to stand for election to the National Parliament. We therefore recommend that citizenship of Papua New Guinea replace the qualifications referred to above.
15. The Commission of Inquiry did propose a number of changes, however, and the Electoral Ordinance was amended in 1971 largely in accordance with its recommendations. There was some tightening of residential qualifications. Previously a person otherwise qualified could be nominated for any electorate in which he had lived for one year. It was not required that he stand for election only in an electorate in which he had his "real place of living" or in which he had at some time lived continuously for five years. The intention of the latter qualification was to allow a person to represent the people of an area with which he had "real home ties" even though he might have lived elsewhere for some time - by reason of his employment, for example. We believe that the grounds for this qualification will continue to have relevance for Papua New Guineans in the foreseeable future and recommend, therefore, that it be retained.
16. The alternative qualification provided that a person could be nominated as a candidate in the electorate in which he had had his "real place of living" for a period of at least six months. This is the same as the qualifying period for electors. In other words, under the present law, a person may be nominated for the electorate in which he is entitled to be enrolled as an elector. We share the view, however, commonly held among our people, that a distinction should be made between the qualifications for electors and candidates: that, while six months residence may be appropriate for the purpose of voting, a longer period of residence is desirable for a person to be qualified to stand for election in a particular electorate - in particular, for him to get to know the area and its people. We submit that a period of two years would be more appropriate.
17. Our recommendation for residential qualifications for election to the National Parliament is therefore two years continuous residence in an electorate immediately prior to nomination or a period of five years at some previous time.
18. The 1970 Commission of Inquiry found that opinion in favour of making a distinction between voters and candidates was particularly strong in respect of the age qualification. Most people wanted a reduction in voting age from 21 to 18 years, and this was implemented in the 1971 legislation. There was opposition, however, to any reduction in the minimum age for candidates, and some feeling in favour of raising the age above 21 on the grounds that the majority of persons under that age lack the maturity required of a member of the House. The Commission recommended that the minimum age for candidates be left at 21, but that it should be reviewed again after the 1972 general election.
19. We have found that similar reservations on this matter continue to be widely held. After giving it full consideration we have concluded that there should be a period of five years between the voting age, which should remain at 18, and the age at which a person may be nominated as a candidate. Accordingly, we recommend that the age qualification for membership of the National Parliament be 23 years or over.
20. The Second Select Committee on Constitutional Development expressed the view in its Final Report (pp. 4-5, para. 29) that if regional electorates were later to be abolished, "an examination should be carried out to determine whether there should be a minimum (educational) qualification for open members e.g. to read and write". From its experience in overseas countries it visited, the Select Committee concluded that "this ability is very necessary if the legislature is to function efficiently and competently".
21. It has been put to us that if we were to recommend that a literacy test be imposed for candidates for election to the National Parliament we would be cutting across one of the fundamental principles upon which we have recommended that the Constitution be based, namely that of maximizing the opportunities for participation by all of our people in the political life of the country.
22. After weighing up these arguments, and taking into account the practical difficulties of implementing, in a fair manner an appropriate literacy test, we have decided against recommending any literacy qualifications for members of the National Parliament, preferring to leave to the electors the question of the appropriate weight to be given to the degree of literacy of candidates.
23. Having reviewed the grounds on which a person may at present be disqualified from being elected, or from continuing, as a member of the House of Assembly, we consider that three grounds should remain unaltered - those concerning persons who are of unsound mind, who are undischarged bankrupts, or who take or agree to take any payment for services rendered in the House. We propose that three other grounds at present in force should be changed. These are the provisions relating to other paid employment, sentences arising from court convictions and absence from the House without leave.
24. Under the Papua New Guinea Act a person is not qualified to be a member of the House of Assembly if he is a member of either the Papua New Guinea or Australian Public Services, or if he holds an office either constituted by law or specified by the High Commissioner in the Government Gazette. In our deliberations we first reached the conclusion that if public servants should be disqualified under constitutional legislation from being members of the legislature, so should others in government employment - such as teachers, employees of statutory authorities, policemen and members of the Defence Force. But this led us to question whether in principle a person should be allowed to hold any other position of paid employment whilst being a member of Parliament. Should an employee of a business firm be treated more favourably than an employee of the government? Equally important, can a member of parliament carry out his duties adequately if he has other paid employment? Our answer to both question was in the negative. Accordingly, we recommend that to be qualified to be elected, or to continue as a member of the National Parliament a person shall not have any other paid employment.
25. The Papua New Guinea Act also provides for disqualification in the case of a person who has been convicted of an offence punishable by death or imprisonment for one year or longer, and who is consequently subject to be sentenced to death or imprisonment, is under sentence of death, or is undergoing imprisonment. Under this law, a person who is undergoing three months imprisonment in respect of an offence for which the maximum sentence is one year is disqualified; but a person who is undergoing six months imprisonment in respect of an offence for which that is the maximum sentence does not suffer this further penalty. We believe that it would be more equitable if disqualifications were related, as it is in a number of countries, to the gravity of the particular case and hence to the term of imprisonment actually imposed by the court - not to the maximum punishment for the type of offence committed.
26. Having agreed on this principle, we consider that imprisonment for a term exceeding nine months would constitute appropriate grounds for disqualification, and we recommend accordingly. In addition however, we propose that where a member of parliament is imprisoned for a term exceeding nine months but has appealed against either his conviction or sentence he should be allowed to hold his seat pending determination of his appeal.
27. The Papua New Guinea Act specifies, as a third ground for disqualification of a member of parliament, absence without leave from each of three consecutive meetings of the House. We recommend that this be reduced to two consecutive meetings.
28. We propose that a person may be disqualified by an Electoral Court from being elected, or from continuing, as a member of parliament if it finds that he has committed a corrupt practice in relation to his election or has breached the provisions covering electoral expenses. Recommendations on the subject of electoral expenses are outlined in the last section of this chapter. Finally, we propose also that a member may have to forfeit his seat if so ordered by the responsible tribunal as a result of a breach of the Leadership Code. The Code was discussed in Chapter 3.
29. To symbolize the central role of the National Parliament we recommend a substantial upgrading of the role of the Speaker. We propose, therefore, that he perform a number of executive functions. He should, for example, make some formal appointments and sign bills into law. We have more to say about his executive functions in Chapter 7. Here we wish to make the point that he would be acting as the principal representative of the parliament.
30. We have considered the possibility of the Speaker being appointed from outside the parliament but have concluded that his position might be weakened if he is not, as the members are, directly elected by the people and thereby entitled to a seat as of right. We recommend, therefore, that the Speaker continue to be elected in a secret ballot by the members from above their own number. To ensure also that he has substantive support, his election should require an absolute majority of the votes cast. Consequently, we have provided for an "exhaustive ballot" in cases where there are more than two candidates and none has obtained such a majority in the first ballot. In keeping with the dignity and importance of his position, we recommend that, following his election, the Speaker be sworn into office by the Chief Justice.
31. To provide for continuity, the Speaker would, under our proposals, remain office until the commencement of the first meeting of parliament following the next general election, when the first item of business is the election of the Speaker of the new parliament. If still a member, he could be re-elected or replaced. Under the Papua New Guinea Act, the Speaker can be removed from office at any time by the vote of a simple majority in the House of Assembly. We consider that under the new Constitution this would no longer be appropriate, and we recommend instead a modification of what is sometimes called the "constructive vote of no confidence". Under the procedure we propose, a motion for the removal of the Speaker must also designate a successor, and shall require the support of an absolute majority to be passed. We propose also that such a motion be signed by at least one-tenth of the total membership of the parliament and that it be subject to one week's prior notice. This procedure should ensure that any motion for the removal of the Speaker is a well-considered one. It also provides continuity if the motion is successful.
32. In addition to certain executive functions dealt with in Chapter 7, and others in respect of legislation, we recommend that the Speaker be formally vested with the responsibility for administering the affairs of the National Parliament, and with the direction and control of an independent Parliamentary Service. We discuss this Service in paragraphs 35 - 39 below.
33. We have reviewed the present arrangements in respect of the Chairman of the Committees and the Deputy Speakers. These positions are established by the Standing Orders of the House of Assembly: none is specified in the Papua New Guinea Act. We do not consider that the provision for Deputy Speakers works very well in practice. We recognise that it may be necessary from time to time for a member to be asked to take the chair for a brief period, and we have provided for this. In normal circumstances, however, the Speaker or Deputy Speaker should preside and both should be expected to acquire a good knowledge of Standing Orders.
34. Especially in view of the extended functions and responsibilities we have proposed for the Speaker, we recommend that the position of Deputy Speaker be formally instituted and that he act as Speaker during any period when that position is vacant. He should be elected and removed in the same manner as that prescribed for the Speaker, but his election at the first meeting of parliament following a general election should take place after the appointment of the Ministers. We have also recommended arrangements to cover various circumstances in which the Speaker is absent or incapacitated.
35. If the National Parliament is to work effectively it will need to be served by a staff which is competent, sufficient in number, and responsible to the legislature alone. At present parliamentary staff are members of the Department of the House of Assembly, which is established with a limited degree of autonomy in the Public Service legislation. The staff should continue to be under the direction and control of the Speaker, but we propose that its independence of the executive be formalised by establishing a Parliamentary Service under separate legislation.
36. The Service should be headed by the Clerk of the National Parliament, who should be appointed by the Speaker after he has consulted the National Executive Council (the new term we recommend for the present Executive Council), the General Parliamentary Committee (the permanent committee with special responsibilities concerning the operation of parliament), and the Public Services Commission. We recommend here an upgrading of the Clerk's position but his general conditions of service are included with those of other constitutional office-holders in Chapter 14.
37. Other officers of the Parliamentary Service should be appointed by the Speaker on the advice of the Clerk, and in the case of senior positions, after consultation with the General Parliamentary Committee. Although the Parliamentary Service would remain independent of the public services, arrangements should be such as to allow transfers and promotions between them with protection of service rights. We propose that the Speaker have control over conditions of service and establishment matters in the Parliamentary Service, but subject to consultation with the Prime Minister or the Minister assisting him in respect of the public services, and in the case of establishment matters involving senior positions with the General Parliamentary Committee.
38. We recommend that within the Parliamentary Service there should be -
(a) a Parliamentary Research and Information Service, and
(b) an Office of the Parliamentary Counsel,
whose functions should be to provide research and legal services (including parliamentary drafting services) for the Speaker, Committees of the parliament, non-ministerial members, and for Ministers in respect of matters relating to their own electorates. We envisage, however, that the main emphasis in the work of the research and legal staff is likely to be on assisting the permanent parliamentary committees which will have a major role under our proposals. This should also ensure that specialist staff have greater continuity of work than at present.
39. Our proposals include initial maximum establishments which provide for up to eight research officers and two parliamentary counsel to be appointed at a level which should attract able and well qualified staff. There should also be four executive officers to serve the permanent parliamentary committees. Overall, this represents only a slight increase in the present establishment for such staff in the Department of the House of Assembly as a number of the present positions are not filled. But it does involve a general upgrading of senior positions to take account of the greater responsibility which will be placed on these officers as a result of our proposals for the legislature.
40. The salaries and allowances of members of parliament are frequently the cause of controversy. Those in Papua New Guinea are no exception. The authority to fix the salaries and allowances of our Ministers and members of the House of Assembly has been vested in the Australian Minister for External Territories, now the Minister responsible for Papua New Guinea matters. It was he who authorised last year's increase in the salaries of Ministers who were not members of the Executive Council, but he did so on the advice of the Papua New Guinea Government. This became the subject of acrimonious debate in the House. It is largely to avoid this kind of situation that some countries establish independent tribunals to determine the remuneration of all parliamentarians, including Ministers. We believe this to be a desirable precedent for Papua New Guinea to follow.
41. We recommend that a Parliamentary Salaries Tribunal be established comprising three persons: a judge or magistrate (as chairman), a person experienced in salary or wage fixation, and a member of the Public Services Commission. The members of the Tribunal should be appointed by the National Executive Council, following consultation with the General Parliamentary Committee, for terms of six years.
42. The Tribunal should be vested with the authority to determine the salaries, allowances, pensions and other benefits of all members of the National Parliament, including the Prime Minister, Deputy Prime Minister and other Ministers, and parliamentary office-holders such as the Speaker and Deputy Speaker, the Leader and Deputy Leader of the Opposition and the party Whips. The Tribunal should also have the powers of a Commission of Inquiry. We recommend that determinations be made at intervals of four years, but that a particular interval might be reduced to a minimum of two years if the parliament decided that an earlier review was warranted.
43. We believe that the legislation providing for the Tribunal should include those matters which the Tribunal should take into account in making its determinations. We propose that these should be: the National Goals and Directive Principles in the Constitution; the general state of the economy; changes in the cost of living; the general level of salaries and wages in the community; and the relative responsibilities of Ministers, parliamentary office-holders and other members of parliament, subject to the need to avoid undue disparity between the levels of remuneration of these groups.
44. Although the present Parliament Building has been remodelled, repaired and enlarged, the main part is still essentially the same structure. It has become increasingly inadequate not only for members, but for members of the public, very few of whom are able to sit in the public gallery at any given time. The conference rooms will be in greater demand with the introduction of the new committee system yet, even at present, they are too limited, and do not provide satisfactory working conditions for active committees. With the obvious need for facilities for broadcasting to be made available so that people outside Port Moresby may be able to hear proceedings in parliament on their radios, the present situation should not be allowed to continue. (It is not practicable to properly equip the present building for broadcasting.)
45. The need for a new Parliament Building was recognised by a Select Committee appointed by the second House of Assembly. Its first interim report was discussed and adopted in March 1971. Nothing has been heard of the matter since then, probably because the issue of a new building was caught up with that of the site for the capital city, and the relative costs of retaining Port Moresby or moving it to another place (such as Arona).
46. Since both the executive and judicial arms of government have been provided with spacious, air conditioned new buildings at Waigani, parliament, the legislative arm, has become "the poor relation". There is now an urgent need for a new Parliament Building with adequate facilities for members, staff and the public if parliament is to fulfil its proper role, and we recommend that a decision be made for the construction of a new building to proceed, as soon as possible.
B. POWERS AND PROCEDURES OF PARLIAMENT
47. The primary powers of the National Parliament under our proposals will be to make laws for the "peace, progress and welfare of Papua New Guinea", and to exercise ultimate authority over the raising and expenditure of government finance. Details of the financial powers proposed are given in Chapter 9 on "Financial Control". More is said about various aspects of the law-making power below.
48. Many regulations, rules, by-laws and orders are made by the government under the authority of enactments of the legislature. Under existing procedures, these are tabled in the House and automatically referred to the Subordinate Legislation Committee for consideration and report. As the original legislative body, the House of Assembly, has the power to disallow subordinate legislation. We recommend that this power be provided for in the Constitution.
49. We have, however, reviewed the present system of committees and our proposals include the abolition of the Subordinate Legislation Committee. We think it is too much to expect a single committee to scrutinise effectively subordinate legislation covering all possible subjects. We describe below our proposals for a new system of permanent parliamentary committees, each with specific responsibilities for a group of subjects. We propose that subordinate legislation, according to its subject, be referred to the appropriate permanent committee. The parliament would have the power to disallow subordinate legislation up to the end of the meeting following that at which it was tabled.
50. We believe that it is desirable also that the National parliament should have some say as to whether or not our country should enter into proposed treaties or other international agreements, conventions or acts which give rise to rights or obligations on the part of Papua New Guinea at international law. We recommend that in normal circumstances all such treaties, agreements, etc. be tabled in the parliament and referred to the appropriate permanent committee for consideration and report; and that no such commitment be accepted by the government until it has been before parliament for eight (extendable to twelve) sitting days. We recommend also, however, that this requirement be waived if, in any particular case, the Prime Minister and the Speaker (acting on behalf of parliament) jointly certify that the matter is too urgent for the normal procedure to be complied with.
51. One of the most important of the law-making powers vested in any parliament is the power to alter the Constitution. In our consideration of the procedure we should recommend for constitutional amendment we have been conscious of the need to achieve some balance between two conflicting requirements. On the one hand, the Constitution must not be too easy to change or else it would be constantly subject to the whim or impulse of the government of the day. On the other hand, the Constitution must not be too difficult to change either for, if it is, it could cause such frustration to the political process in changing circumstances as to be ignored or discarded altogether. To avoid the latter danger, we recommend that any proposal for amending the Constitution should require the approval only of the National Parliament. However, we recommend also procedures intended to ensure that an amending Bill is well publicised, that sufficient time is provided for it to be given careful consideration, and that to be passed, it has the support of a substantial proportion of the members of parliament.
52. Specifically, our proposals require that firstly, an amending Bill be published, and copies distributed to all members of parliament, at least one month prior to its presentation. Secondly, a period of at least three months must have elapsed between the making of the first substantive speech by the mover of the Bill, and the continuation of debate or the taking of a vote on the Bill after the conclusion of that speech. Thirdly, to be passed, the Bill must be supported by the individually recorded votes of not less than the special majorities prescribed in a Schedule to the Constitution. For the amendment of most provisions, we recommend a majority of two-thirds of the total membership of the parliament, the proportion found most commonly in constitutions. (See the First Schedule to our Report.)
53. There are, however, exceptions for which we recommend that amendments might be passed with the support of larger or smaller majorities. Thus, a three-quarters majority is proposed in respect of certain issues of principle which we see as fundamental to our society and its system of government - such as single citizenship, an elected parliament with law-making powers and ultimate authority over finance, political decentralisation through a system of provincial government, and the right to a fair trial. But there are other provisions which we envisage might require adjustment in the light of experience, such as certain procedures set out for the National Executive Council and the public services, or because of foreseeable changes, such as the number of members in the parliament. For amendment of these we recommend three-fifths majorities. And there are other provisions which, although important in themselves, are but the first attempts, similar to those being made in many countries, to meet complicated contemporary problems. The provisions concerning the financing of political parties and election campaigns come into this category. We recommend that they be included in a schedule which might be amended on the basis of an absolute majority, that is, more than half of the total membership of the parliament. In addition, there are of course many matters of detail, or of a quasi-constitutional nature, which we recommend for inclusion in ordinary legislation or Standing Orders, and which will not therefore require special procedures for amendment.
54. Under the system of government we propose, and especially with the increasing complexity of government, it is certain that most legislation to come before the parliament will be introduced by the government of the day. However, the particular emphasis we place on the role of parliament makes it all the more important that the Constitution should include protection of the right of any member to introduce bills. We recommend accordingly, and propose the inclusion of similar protection for the right of members to move motions and present petitions for the consideration of parliament. Limitations on these rights in respect of financial measures are dealt with in Chapter 9.
55. There is already an Ordinance dealing with privileges and immunities in respect of the House of Assembly and its members. Detailed provisions should remain in ordinary legislation, and we therefore propose that, subject to the Constitution, parliament should be authorised to determine these matters by law.
56. We believe, however, that freedom of speech, debate and proceedings in the National Parliament is of such vital importance that it should be protected in the Constitution itself, and should not be questioned in any court or place outside parliament. In addition to this general recommendation, we propose a number of specific privileges and immunities which stem directly from it: these provide protection for the Speaker or any officer of parliament in respect of the exercise of powers relating to their office; protection of members in respect of any matters they bring before parliament (or any of its Committees) by way of petition, motion, question or bill; and limited protection for members in respect of civil proceedings while parliament is meeting. We believe that these provisions are the minimum necessary to ensure that members are free to participate fully in the work of parliament, without fear or favour.
57. We recommend that the quorum for sittings of the parliament be not less than one-third of all its members. This is, in effect, about the same as at present. We are concerned, however, to avoid the situations that have occurred from time to time when the House of Assembly has been unable to meet, or to continue to meet, because a quorum was not immediately available or had temporarily lapsed. At present, Standing Orders allow the Speaker to defer the commencement of a day's sitting for up to one hour if there is no quorum but he is satisfied there is likely to be one within that time. We recommend that this procedure be permitted if the quorum lapses at any time during a sitting.
58. Except where special majorities are required, all matters for decision in the parliament should be determined by a simple majority - that is, by a majority of those members present and voting. We propose that in normal circumstances such as these the Speaker, Deputy Speaker, or other member presiding should not vote unless the voting is evenly divided, in which case he should have and exercise a casting vote. This is in keeping with current law.
59. There are, however, three kinds of situation in which we believe that the Speaker, his Deputy or another member presiding should not have a casting vote but should case a deliberative vote as other members do. These are when a motion involves the formation or dismissal of a government - that is, a motion to elect or remove the Prime Minister, and a motion of no confidence in the National Executive Council or on a question declared by the Prime Minister to be one of confidence in the Council. The third situation is when parliament is voting on a Bill to amend the Constitution. In each of these instances, we feel that the member presiding should have the normal voting right of an elected member, and we recommend accordingly.
60. The only limitation we propose should be placed on the voting rights of members other than the Speaker or member presiding, is the common one that no member should speak or vote on any matter relating to a contract for the supply of goods or services to the government, in which he has an interest.
61. We mentioned earlier, in the context of upgrading the role of the Speaker, our proposal that he perform certain executive functions, including the signing of bills into law. We do not see this as a ritualistic act in the nature of a royal or presidential assent, although it would have the same legal effect. Rather it will be a corollary, the natural outcome of the Speaker's action in certifying that a bill has been passed by the National Parliament in accordance with the Constitution and Standing Orders. We recommend that a bill become law from the date it is so certified, and that this date be no later than 28 days from the end of the meeting of parliament at which it is passed. We recommend further that any law, or parts of a law, which do not automatically come into effect when signed, or at a date specified in the bill itself, should be brought into effect by the Speaker on a date or dates fixed by the National Executive Council.
62. We recognise that there may be circumstances in which the executive will wish to have a bill recommitted before it is signed into law. It may want to ask parliament to correct an error that had been made inadvertently, or less commonly, to reconsider a bill. We think it reasonable to provide for this, but we wish to emphasise that we do not intend that the procedure should amount to any kind of veto, either directly or by means of delay. Accordingly, we recommend that a bill may be recommitted, through the appropriate Minister, no later than two weeks after it has been passed and during the same meeting of parliament; but that it may be recommitted only once, and if recommitted, must be given precedence so that it may be passed again, whether or not amended, or otherwise disposed of at the same meeting.
63. Some of our recommendations on the legislature and on the powers and functions of various constitutional office-holders, commissions and departments include a requirement that certain documents be tabled in the National Parliament. It is our intention that copies of these documents should be distributed to all members of the parliament and we include such a provision.
64. Although we appreciate the practical difficulties involved, we are concerned that relatively few of the documents tabled in the House of Assembly are translated into Pidgin and Hiri Motu. In September 1970, the House passed a motion requesting that explanatory notes in English, Pidgin and Motu accompany all bills distributed to members. In a reply in March 1971, the then Administrator advised the House that arrangements or translation had been made. Three years later translations are still frequently unavailable. We therefore recommend that Standing Orders be changed to include the requirement that all bills be accompanied by explanatory notes adequately translated into Pidgin and Hiri Motu. We recommend also that, as far as practicable, the government should attempt to have Pidgin and Motu translations or translated summaries, of other documents tabled in the House made available to members.
65. We propose that the publication of the Debates (Hansard) continue, but we consider there should be provision in the Constitution, as there is at present in the Papua New Guinea Act, requiring that minutes of proceedings be kept and that copies be available for inspection by, or supply to, the public. We recommend accordingly.
66. Our most significant proposals for the legislature - those dealing with a new system of permanent parliamentary committees - stem directly from our concern to ensure that the National Parliament will be a truly effective body. On the basis of our own experience, we are dissatisfied with the way the House of Assembly works. Our proposal that there should be a thorough review of Standing Orders is one result of this dissatisfaction. We feel strongly that parliamentary procedures should be changed so that they are more appropriate to our needs. But the essence of the problem lies in the role parliament is to play. As mentioned in the introductory chapter of this Report, we are by no means alone in expressing concern that parliament should be permitted to have a more constructive role than is usually provided for it, particularly in a Westminster-type system of government and its variations. We are convinced that a strong system of committees is the most effective way of giving parliament that constructive role.
67. The committees we propose would provide much greater opportunities than exist at present for members on either side of the House who do not become Ministers to contribute usefully to the government of the country. Under the existing system there is often neither the time nor the means to carry out adequately the basic parliamentary functions. With their increasing volume and complexity, legislation and reports cannot be satisfactorily considered during normal sessions of the legislature, nor can there be adequate probing and checking of government activity. Both functions would be greatly facilitated by the use of committees which can act while parliament is in recess. These committees could also work constructively by carrying out inquiries into various matters of national importance either referred to them by parliament or nominated on their own initiative.
68. We propose that the present standing committees known collectively as "subject committees" be abolished. The sole function of these committees is to "consider and inform" themselves on any bill, motion or paper referred to them by the House. They have no deliberative powers and are not permitted to pass any motion relating to matters brought before them. The fact that they have become moribund is readily understandable. We recommend that they be replaced by Permanent Parliamentary Committees, initially three in number, each with responsibility for a group of subjects, and called, respectively, the First, Second and Third Parliamentary Committees. Provision is included for additional committees to be established if experience indicates that more are warranted. We prefer the term "permanent" to the more vague word "standing", but the intention is the same: the permanent committees would be appointed for the full term of each parliament. There should also be three other Permanent Committees to which we shall refer separately - the General Committee and the Private Business Committee, later in this Chapter, and the Public Accounts Committee, in Chapter 9, "Financial Control".
69. Under our proposals, most permanent parliamentary committees would consist of 10 to 12 members (not being Ministers or the Speaker), who should be broadly representative of opinion in the parliament. With parliament divided between Government and Opposition this would mean a government majority (e.g. of a ratio 6:4, 6:5 or 7:5); but we recommend also that the chairman and deputy chairman of each committee, elected by the committee itself from among its own number, would in these circumstances, be Government and Opposition members respectively. The membership of each committee would be subject to approval by resolution of the parliament. To perform their functions effectively, the committees should have adequate finance, facilities and suitably qualified staff.
70. We recommend that these Permanent Parliamentary Committees have specific responsibilities in subject areas as follows:-
First Parliamentary Committee:
constitutional matters; foreign relations, trade and investment; defence; police; public employment.
Second Parliamentary Committee:
finance: industry; natural resources.
Third Parliamentary Committee:
social welfare (including health and education); justice.
A General Parliamentary Committee (discussed below), in which the chairmen and deputy chairmen of the other permanent committees meet under the chairmanship of the Speaker would draw up the details of how specific matters should be allocated to the committees within the framework laid down, and make recommendations for these to be incorporated in Standing Orders. It would be the responsibility of the General Parliamentary Committee to resolve any "demarcation" disputes that might arise, and to review the overall allocation from time to time with a view to recommending any changes to parliament. In addition, however, to provide greater flexibility and to take into account the likelihood that some matters would overlap the areas of responsibility of more than one committee, we propose that the committees be allowed to meet jointly to consider any matter, or to set up joint sub-committees for that purpose.
71. The Permanent Parliamentary Committees, under our proposals, would play a vital part in the legislative process. We recommend that, unless the requirement is waived by a resolution supported by an absolute majority, each bill presented to parliament be referred to the appropriate committee for consideration and report. We believe that as a result it is more likely that legislation would be considered on its merits than at present. However, the proposal does allow the government to by-pass the committees in appropriate cases in the same way as it can at present expedite the second reading of a bill by moving the suspension of Standing Orders. Both procedures require an absolute majority. There is also a safeguard against any committee unduly holding up passage of a bill. Unless parliament grants to a committee an extension of time, debate may proceed on a bill after eight sitting days.
72. In addition, so that parliamentarians can participate more readily in government, we propose that the present artificial barriers between Ministers and other members, and between legislators and bureaucrats, be reduced by providing for co-operation between them in the preparation of legislation. We intend this proposal to apply more particularly to legislation arising from substantive statements, papers or reports made or tabled in parliament or from resolutions of parliament. It is not intended to affect the right of a government to seek the implementation of its basic policies through its own legislation.
73. Another important area of committee activity would be that relating to reports and papers presented to parliament. Too often in the past the House of Assembly has been unable to give proper consideration to reports dealing with even the most important of subjects. A recent example was the Report of the Committee of Inquiry into Land Matters, which was hardly debated at all. We therefore recommend that the permanent parliamentary committees consider and make recommendations on any reports or papers referred to them by parliament.
74. We propose also that the First, Second and Third Permanent Parliamentary Committees, (and others like them) be given the power to carry out inquiries of their own into matters of national importance - either referred to them by parliament or nominated on their own initiative - and to report their findings and recommendations to parliament. They may, in this context, perhaps also prepare relevant draft legislation. Recent developments in a number of countries, some with conservative parliamentary traditions, have shown that inquiries by parliamentary committees can produce very constructive and illuminating contributions to government, and can do much also to stimulate greater interest and participation by the public in the consideration of national affairs.
75. Finally, we recommend that the First, Second and Third Permanent Parliamentary Committees act, in their own spheres of responsibility, as consultative bodies in the appointment of persons to a number of statutory positions provided for in the Constitution or by law. While preserving the right of the executive to appoint those officers who have the major responsibility for tendering it advice and carrying out its policies, our recommendations open up the selection process in a number of constitutional and statutory offices where it is imperative that the holders should enjoy widespread confidence in the community. In some cases, we propose that selection be by specially constituted bodies in which the executive has representation but not control. In others, we recommend that the National Executive Council have power of appointment but that it may not be exercised until after the Council has consulted the appropriate parliamentary committee.
76. Positions to which it is proposed that this latter procedure apply include those of members of the Pubic Services Commission and other similar bodies, the Chairman of the National Broadcasting Commission, officers who are also Electoral Boundaries Commissioners and the most senior officers of the Police and Defence Forces. We see this form of consultation as a realistic and useful compromise between straight out appointment by the executive on the one hand, and approval by the legislature on the other. It is intended to help bring about some consensus on these appointments, and thereby to avoid their becoming the subject of contentious political debate.
77. In order that the Permanent Parliamentary Committees may effectively perform their functions, we recommend that, with certain exceptions (mentioned below), they have powers similar to those of the present Public Accounts Committee, Public Works Committee, and Economic Development Committee - such as the power to enforce the attendance of witnesses and examine them under oath, affirmation or otherwise, and to compel the production of documents, including decisions of the National Executive Council. Witnesses appearing before the committees would have reasonable protection from self-incrimination or civil action in respect of their evidence.
78. Under our proposals, however, privilege would extend to Council decisions if their release would seriously prejudice national security or proposed fiscal or revenue measures. We propose also that Ministers be exempt from subpoena by any committee. Our recommendations provide instead for procedures designed to promote maximum co-operation between the committees and Ministers. Thus Ministers would be notified in advance of the agenda of committee meetings and when matters relevant to their portfolios are under discussion, they would be entitled to attend these meetings, to address them and, except for voting, to participate fully in their proceedings.
79. In addition to the three permanent committees with specific responsibilities for subject areas, we recommend that, with the exception of Private Members Business (discussed below), and matters concerning the internal operation of the National Parliament be dealt with by a single permanent committee of senior members. This committee, to be known as the General Parliamentary Committee, would consist of the Speaker, the Chairmen and Deputy Chairmen of the other permanent committees, and, if he is not otherwise included, the Deputy Speaker. In addition to the functions already described in paragraphs 36-37 (concerning senior positions in the Parliamentary Service) and paragraph 70 (concerning the allocation of subject areas among the other permanent Committees), the General Parliamentary Committee would assume the functions of the House, Library, Broadcasting of Parliamentary Proceedings, and Standing Orders Committees, which it would replace. Two of these committees have not so far been appointed by the present House.
80. Of the remaining committees currently provided for, the functions of the Budget and Economic Development Committees could be taken over by the permanent committees described in paragraph 79, and possibly those of the Public Works Committee also. A similar recommendation is made in paragraph 49 concerning the present subordinate Legislation Committee. The Privileges Committee would remain, to be appointed as required. Finally, there is the Private Business Committee for which we propose some modifications in procedure.
81. We recommend that Standing Order continue to provide that on one sitting day per week or, if the sittings of parliament are rearranged as a result of the review of Standing Orders, during an equivalent proportion of parliament's sitting time, precedence be given to the consideration of Private Business. The Order in which items are considered should continue to be determined by the Private Business Committee, consisting of the Speaker, Deputy Speaker and five other members (not being Ministers), who are broadly representative of opinion in the parliament. We recommend that in determining the order of business, the Committee give preference to private members' bills over motions. We recommend also that the Committee be empowered to consult any member about a bill or motion he has submitted and that, subject to the approval of the member concerned, such a bill or motion might be withdrawn by leave of the Committee rather than by leave of parliament as a whole. Such a procedure, we believe, would increase the efficiency with which the legislature is able to deal with Private Business.
82. We have gone into some detail to explain our proposals for a new system of parliamentary committees because of the importance we attached to them and hence our wish that they be understood. We would emphasise that they are intended to contribute to the more effective working of a truly democratic parliamentary system. Although it would be part of their job to review government activity, and it is important that they do so, they should not be regarded as a challenge to the executive. We see the committees rather as fulfilling a role complementary to that of the executive; and the success of their work will depend a great deal on active co-operation between committee members and their staff, on the one hand, and Ministers and their departmental officers, on the other.
83. We recommend that, as at present, the National Parliament have the power to establish Select Committees at any time to inquire into, and report upon, any particular matter.
84. We propose that any disputes about membership of the parliament - such as whether a person has been properly elected or whether a vacancy has occurred - should be determined by a judge of the National Court constituted as the Electoral Court, and that appeals should be to the Supreme Court (that is, the new appellate court proposed in Chapter 8). In general however, other disputes arising from the procedures of parliament should not be subject to the jurisdiction of any court. Thus, for example, the election of the Speaker should be conclusively determined by the certificate of the Chief Justice, and the election of other office-holders, including the Prime Minister, by the certificate of the Speaker. The Speaker's certificate should be conclusive also in respect of disputes as to whether a bill has been validly passed or a motion of disallowance carried. We consider that disciplinary procedures should not be reviewable in any court. We recommend, however, that questions concerning the extent and nature of parliamentary privilege should be dealt with by the National Court, with appeals lying to the Supreme Court.
C. SUMMONING AND DISSOLUTION OF PARLIAMENT
85. Under our proposals for the executive, which include the election of the Prime Minister by the legislature, it is important that parliament should meet very soon after a general election so that a government can be formed for the ensuing period. Our proposals for the system of voting should make this possible for they will greatly reduce the time required to finalise the election results. We therefore recommend that parliament be summoned to meet between 14 and 21 days after a general election. We consider it appropriate that this first meeting of the new parliament should be summoned by the Chief Justice, and we recommend that he do so after consulting the Speaker and the Prime Minister on the precise date. It will be recalled that it is the Chief Justice who we propose should swear in the Speaker of the new parliament (paragraph 30). We think that other meetings of the parliament should be called by the Speaker for such times as are determined by the National Executive Council, and we recommend accordingly.
86. It would not be appropriate, we believe, for either the Chief Justice or the Speaker to deliver an address to parliament replacing that given in the past by the Governor General or Administrator or along the lines of the "Speech from the Throne" given in some other Commonwealth countries. We do not have a firm recommendation on an alternative. We point out, however, that if it is desired that there be some general address and debate of this kind annually, it would be quite possible for the Prime Minister to address the parliament giving an outline of the programme planned by his government. This is a matter which could be considered by those appointed to review Standing Orders.
87. At present the Papua New Guinea Act provides only that the House of Assembly should meet at least once a year. This is a provision found in the constitutions of many Commonwealth countries, but in other nations a greater number of meetings is often specified. We consider that the once a year minimum requirement is inappropriate for the pattern of meetings that has developed in Papua New Guinea. Although we envisage that meetings of parliament may eventually extend over somewhat longer periods than in the past, we think it unlikely in the foreseeable future that the pattern will change to that of only one or two quite long meetings per year as exists in some countries. We propose that the minimum requirement be altered to at least three meetings a year with a total duration of at least nine weeks - that is, an average of three weeks per meeting. We stress, however, that this is a minimum requirement, set below the present amount of annual meeting time.
88. Unless the National Parliament is dissolved earlier (in circumstances discussed in the next paragraph), we recommend that it be dissolved by the Speaker on a date within the last three months of its term fixed by the National Executive Council. We have recommended elsewhere that the Speaker and Ministers remain in office in a caretaker capacity during the period of a general election. The current practice by which all members continue to receive their salaries until the election should be continued.
89. We have looked closely at the question of a premature dissolution of the parliament, which is always a possibility under the Westminster system and most modifications of it. Although the practice appears sometimes to entail manipulation of the legislature, we concede that early dissolutions resulting in "snap elections" may be useful and relevant in certain circumstances in those countries which have a well-developed party system. We are not at all convinced, however, that the practice is appropriate for Papua New Guinea. We have found public opinion to be in favour of a fixed term of four years. The expense and difficulty of holding general elections in our country provide arguments to support this view. In general, we believe also that members of the parliament should be able to settle problems that may arise without resorting to an early dissolution which may, in any case, do nothing to help the situation.
90. We have decided to propose that an early dissolution be allowed in two kinds of circumstances. Firstly, the parliament shall be dissolved by the Speaker if, during the fourth year of its term, the National Executive Council is defeated specifically in a vote of no confidence or on an issue which the Prime Minister has declared to be one of confidence. The procedure for each of these possibilities is outlined in Chapter 7. Secondly, as a kind of safety valve to be used in what are likely to be rather extraordinary circumstances, we propose that the Speaker dissolve parliament at any time if the parliament itself so resolves.
D. ELECTIONS FOR PARLIAMENT
91. As indicated in paragraph 89, we have found wide support for retaining the present term of four years for the legislature. We consider that elections held not more than four years apart would allow the people to express their will at reasonably frequent intervals, while also providing the government with a period of office sufficient to enable it to carry out a substantial programme. Concerning the precise date, we recommend that a general election be held at such time within ten weeks after every dissolution of the National Parliament as the Speaker appoints, acting in accordance with the advice of the National Executive Council.
92. We have given careful consideration to the question of who should be in charge of carrying out elections, including the registration of voters. At present it is the responsibility of the Chief Electoral Officer, who is appointed under normal public service procedures and is a member of the Department of the Interior. As such, although he must act in accordance with the Electoral Ordinance, he is nevertheless, like any other public servant, subject to the policy instructions of his Head of Department and, ultimately, of his Minister.
93. This is the situation in many countries, but in others it is considered more appropriate that the officer responsible for conducting elections should not be open to direct political control. Consequently, he is vested with a measure of independence. We support the adoption of this approach in Papua New Guinea. It would place the officer concerned in a more clearly impartial position and, especially in the context of a developing party system, would provide some assurance to our people that elections are conducted fairly. We therefore recommend that an Electoral Commission be established and that, in respect of its functions prescribed in the Constitution or by law, it should not be subject to the direction or control of any other person or body.
94. We propose that for the purpose of conducting national and provincial elections, the Electoral Commission consist of a single commissioner. We consider also that it would be appropriate for the Electoral Commission to be formally appointed by the Speaker of the National Parliament acting on the advice of a special selection committee. We recommend this procedure and that the committee comprise the Prime Minister or another Minister representing him (chairman), the Chairman and Deputy Chairman of the First Parliamentary Committee which is responsible for constitutional matters, a provincial Premier elected by all the Premiers, and the Chairman of the Public Services Commission. The conditions of service of the Electoral Commissioner, along with those of other constitutional office-holders, are included in Chapter 14.
95. Another matter fundamental to the conduct of elections is that of electoral boundaries. Who should draw them, how often, and on the basis of what criteria? Under the present Electoral Ordinance electoral boundaries have been twice redrawn by a special committee of five persons appointed by the then Administrator. The Committee included the Chief Electoral Officer, the Surveyor-General and the Commissioner for Local Government, although the Ordinance allows other persons with similar qualifications to act in their place. We consider that the drawing of national and provincial electoral boundaries should be another function of the Electoral Commission. For this purpose, however, the Commission should be augmented by four Boundaries Commissioners, including both professional officers and laymen, with one or two additional Commissioners when provincial electoral boundaries are being considered. As Boundaries Commissioners, we recommend the Surveyor-General and Government Statistician (each of whom might be represented by a deputy from time to time); two persons nominated by the National Parliament, who may not be members of parliament or of any provincial assembly, nor public servants or provincial government employees; and, in the drawing of provincial boundaries, a person nominated by the assembly of the province concerned, subject to the same disqualifications as the nominees of the National Parliament. With parliament divided between Government and Opposition, we envisage that the two parliamentary nominees would be initially proposed by Government and Opposition members respectively.
96. At present the Electoral Ordinance provides that boundaries should be redrawn whenever the composition of the House of Assembly changes or whenever directed by the Administrator - now High Commissioner. Because of the number of seats in the House was increased at each election, boundaries have so far been redrawn twice, with effect from 1968 and 1972. With the introduction of the Constitution it is unlikely that there will be subsequent changes in the composition of the legislature for some time. The main factors that are likely to justify the future redrawing of electoral boundaries are increases and shifts of population. We therefore recommend that boundaries be redrawn after each official five-yearly census or, in any event, at not more than six-yearly intervals.
97. The procedure we propose for the approval of new electoral boundaries by the legislature does not vary greatly from that followed in the past. Following publication of provisional boundaries, a three-month period for objections and its consideration of those objections, the Electoral Commission should present its final recommendations to parliament. The parliament should have the right to approve or reject the recommendations as a whole, but not to amend them. If the recommendations are approved, the new boundaries should be gazetted to come into effect at the next national and provincial elections. If they are rejected, the Commission should present its recommendations again, with such amendments as it sees fit, within a period of three months. Should parliament reject them a second time, the next general and provincial elections should be held in accordance with the existing boundaries.
98. We have considered carefully the criteria upon which electoral boundaries should be based. Most of the submissions we have received express the view that all electorates should have about the same number of people in them, but that other factors should also be taken into account. We agree with this view. At present the Electoral Ordinance includes the distribution of population as only one of six criteria to be taken into account and does not accord it any priority. This has contributed to the present anomalies whereby the estimated population of electorates at the 1972 elections varied from 17,900 to 44,400. We propose the adoption of a population quota for electorates, from which actual numbers may vary by up to 20 per cent in order that other factors can also be considered.
(Note: The "quota" would be the number arrived at by dividing the total population of the country by the minimum number of seats in the parliament. To take a clear example, with a total population of 2,500,000 and a total of 100 seats, the quota would be 25,000 per electorate. If the maximum variation allowed were 20 per cent (that is, 5,000 where the quota is 25,000), electorates could vary in population from 20,000 to 30,000.)
99. We recommend that the degree of variation from the quota be determined on the basis of the following criteria: density of population; physical features and communications; existing electoral boundaries and those of provinces, local government council and administrative areas; and community and diversity of interests. This last criterion, however, should not be interpreted too narrowly in terms of tribal or linguistic affiliations. Although not constituting a majority of the views expressed to us, support for this factor was substantial. It was also the basis for objections to some of the provisional boundaries drawn by the Electoral Boundaries Distribution Committee in 1971. When objections were based on the grounds only of tribal or linguistic affiliations, they were rejected by the Committee. We agree with this approach. To act otherwise would lead, in the end, to the need for hundreds of electorates.
100. We recommend that only citizens of Papua New Guinea be eligible to vote in elections for the National Parliament. Otherwise, however, we consider that the present qualifications for electors should be retained: 18 years of age or over, the residence in an electorate for a period of at least six months. Citizens who have shifted residence and have not lived for six months in their new electorate would be entitled to vote in the electorate in which they last lived for six months.
101. Most colonial territories inherit the voting system found in the countries that have ruled them. There are many different methods of voting, but the preferential system is rare outside Australia. It has been transferred to Papua New Guinea with the exception that here it is not compulsory to give a preference to every candidate. The use of preferences is optional.
102. In his Report on the 1972 general election (p.18), the Chief Electoral Officer said that the optional preferential system "is becoming more and more complicated and time consuming". He added that the "system must be completely revised with a view to making it simple and less complicated so that it is easily understood by both polling officials and voters". After indicating that most members in 1972 were elected virtually by "first-past-the-post" voting, the Chief Electoral Officer concluded:
It is time Papua New Guinea looked realistically and critically at its voting system and made its own decision as to what is suitable for its future electoral needs.
In accordance with our general approach, we fully agree with this view.
103. In looking at alternative voting systems, we rejected any form of proportional representation. Although often regarded as the "fairest" system, proportional representation is also very complicated and it is usually found in countries where there are well developed political parties. On both these grounds, proportional representation would be unsuitable for Papua New Guinea.
104. The single most common voting system is "first-past-the-post" which is favoured by the Chief Electoral Officer. This system is used by Britain, the U.S.A., New Zealand and most of their former colonial territories in Africa, Asia and the Pacific that have become independent. Under this system, the people vote for only one candidate and the candidate with the most votes is declared elected.
105. Those who oppose "first-past-the-post" voting argue that, where there are more than two candidates, it is possible for one of them to win without obtaining an absolute majority (that is, more than half) of the votes; and, where there are many candidates, he can win with a fairly small proportion of the votes. Although it is true that this can happen in "first-past-the-post" voting, it is also true of the preferential system in which the use of preferences is optional, as it is in Papua New Guinea.
106. In 1970, a Commission of Inquiry into Electoral Procedures in Papua New Guinea said that the people did see the value of the preferential system even if they did not understand how it worked. In particular, the Commission stated that people were worried that under "first-past-the-post" voting, the candidate from the biggest clan or language group would always win though that group might form only a small minority in the electorate as a whole. The Commission concluded that most people wanted to keep the preferential system, and predicted that there would be an increase in the number of people who used their preferences at elections.
107. Two points need to be made about this. Firstly, the evidence of elections in this country is not conclusive one way or the other in regard to the prospects of a candidate from he biggest group. Because so many people do not use their preferences, such a candidate can, and often does, win under the present system. But it is also true that a candidate from a smaller group has often been in the lead after the first count (that is, the equivalent of "first-past-the-post") because bigger groups have split their votes between two or more candidates.
108. Secondly, it is by no means clear that an increasing number of people are using their preferences. It was found in the 1972 election that in only 13 electorates was the candidate who led on the first count defeated after preferences had been distributed. In none of these did the winning candidate receive an absolute majority of votes. In fact, in all the electorates in which the winner did receive an absolute majority, he had also led on the first count, and in relatively few of these (7) was it necessary to distribute preferences at all. By contrast, where preferences were distributed through numerous counts, winning candidates often received less than a third of the total valid votes cast.
109. On the basis of their own experience, and with the help of a fair summary of the arguments in favour of the two systems of voting, a clear majority of those who have made submissions have asked for a change to "first-past-the-post". The Committee agrees. In addition to the fact that the optional preferential system has not produced the advantages often claimed for it, "first-past-the-post" voting will mean that the people may vote only for the person they really want (something many are dong now). The system is easier to understand, easier to run, and the results become known much more quickly. For all these reasons, we recommend a change to the "first-past-the-post" system.
110. In his Report on the 1972 general election (p.11), the Chief Electoral Officer commented that "absentee voting is continuing to give 'headaches' to the electoral officials, because of its complexity and questionable worth". He added that about three-quarters of all absentee votes at the last two elections had to be rejected because of the difficulty of identifying the voters as belonging to the electorate concerned. Absentee votes have never made any difference to the result of an election in Papua New Guinea. "The whole operation", he concluded, "is a waste of money and time".
111. We agree with this view. We accept also the argument put forward by the Chief Electoral Officer that a person who is away from his electorate for less than six months (the limit now imposed by law for absentee voting) and anxious to vote in his home electorate should be able to continue to do so by applying for a postal vote. We propose, however, that there should be a strict time limit so that all postal votes must be received by the Returning Officer concerned by the end of the polling period. This may necessitate closing applications for postal votes at, say, one week prior to the start of polling.
(Note: To cast an absentee vote, an elector may go to a polling booth in any electorate, and request and mark a ballot paper for his home electorate. When the ballot boxes are opened, the absentee ballot paper is sent to the Returning Officer in the home electorate.
To cast a postal vote, an elector may apply for a ballot paper either to his nearest electoral office or by post to the Returning officer in his home electorate. If he is found to satisfy the requirements, the ballot paper is issued to him. This must be done no later than the day before polling starts. He then marks it and posts it back to the Returning Officer.
Under existing rules, the official result can be delayed for up to two weeks after polling has closed waiting for absentee and postal votes to arrive.)
112. After conferring with senior members of the Chief Electoral Office, we believe that in simplifying the system of voting - by adopting "first-past-the-post" and restricting voting by absentees to the use of postal ballots - the whole electoral machinery will run more smoothly. In addition, this should mean that the polling period can be reduced, and also the period following an election before the final results are known. These last advantages will have the very important effect of reducing the time it will take to confirm an existing government in office or to establish the need for a new one to be formed. We believe that minimizing the period of political uncertainty at election times is to be welcomed.
113. We are most concerned at the decline in the proportion of eligible electors who are voting in general elections. According to official figures, only 60 per cent of persons eligible to vote actually did so in the 1972 elections, compared with 64 per cent in 1968 and 72 per cent in 1964. We recognise that in significant measure this is a political problem, but we believe that everything possible should be done to ensure that the electoral machinery is geared to maximum participation. The Constitution should require that the electoral law contain provisions designed to ensure that, so far as is practicable, any person entitled to vote at an election of members of the National Parliament should have a reasonable opportunity of doing so. We recommend accordingly. In addition, as an ultimate safeguard, we propose that any election at which fewer than 30 per cent of persons eligible to vote did so, be declared invalid and a fresh election ordered.
114. We have given careful consideration to the question of what deposit should be paid by candidates in respect of their nominations for election to the National Parliament. We agree that a reasonable deposit should be paid to help ensure that the act of nominating is regarded with appropriate seriousness. However, we believe that the deposit should not be set at a figure so high that it is likely to exclude a great many people merely because they cannot afford the sum involved. There is a very real danger that this would be the effect of implementing the recent resolution of the House of Assembly which proposes a deposit of $200. be recommend that the deposit for candidates should remain at $100.
115. Over recent years in many countries thee have been increasingly determined efforts to find ways of preventing the corruption of political parties and election candidates. The problem is an exceedingly difficult one to solve and it is unlikely that any country has found the complete answer in the various kinds of legislation that have been adopted. We believe, however, that this should not discourage Papua New Guinea from making its own efforts to prevent corruption of this nature; and we believe that the time to act is now, when we are about to become an independent state and before corruption has the chance to take root.
116. The problem, as we see it, is twofold: firstly, to prevent parties and candidates from receiving financial and other material assistance on such a scale that there is a grave danger of their becoming the tools; whether consciously or not, of their benefactors, and in particular to prevent foreign interests from distorting our electoral process in this manner; secondly, to prevent a situation where most of our people are virtually excluded from national political office because they are unable to raise sufficient funds to compete effectively against their wealthier countrymen. Our recommendations are intended to meet these problems.
117. We propose that candidates in national elections should not declare, or allow to be declared, their affiliation with a political party or political association unless that party or association is registered. The function of registering political parties and associations should be performed by the Registrar-General, who should have independence in this matter. We provide for appeals to the courts against any decision to refuse or cancel registration. All organisations registered as political parties or associations must declare, once a year, their assets and liabilities, sources of income and amount received from each source, but this information should not include individual membership fees or the names of those who pay them. The financial information would be tabled annually in Parliament.
118. We propose further that no political party or association be allowed to accept benefits totalling more than the amount prescribed by law from any one source in one year. We recommend that the amount prescribed initially in legislation should be $1,000. We propose, however, that there should be a prohibition on political parties or associations receiving any contribution of funds or other benefit from a non-citizen or from any company, firm or other body which is effectively controlled by non-citizens.
119. We realise that this prohibition will adversely affect the functioning of the existing parties. So that national political parties will be able to function effectively without relying on donations and other benefits given to them by foreigners (corporations or individuals), we recommend that the Government should immediately explore ways of fairly distributing finance among them from a central fund made up of moneys derived from a specific tax or levy (e.g. on all companies paying company tax) and donations from foreigners. The finance distributed would be sufficient to enable political parties to pay for the running expenses of a national office, including the salaries and travelling expenses of an adequate staff, and also to assist the parties in conducting national election campaigns. There are a number of countries where schemes of this nature have been introduced. We believe that a suitable one could be established here so that political parties can contribute constructively to the political life of the country.
Election expenses of candidates
120. We propose that every person who is elected to the National Parliament should, within three months of the declaration of his election, submit to the Ombudsman Commission a statement showing the total expenditure associated with his election campaign, including the source of each item of expenditure and the total sum or value of benefits from each source. (We define the term "expenditure" in our detailed recommendations.)
121. Our proposals require that the total campaign expenditure permitted, expressly or tacitly, by any candidate for election to Parliament should not exceed the maximum amount prescribed by law. We recommend that the initial maximum should be fixed at $1,500, which appears to us as being sufficient to cover the cost of any reasonable campaign in a Papua New Guinea open electorate. There should be a similar provision relating to the maximum permissible from any source other than a political party. We recommend an initial maximum of $500. In keeping with our proposals for a similar prohibition in respect of political parties, we recommend also that no candidate for election to Parliament be permitted to accept, either directly or indirectly, any benefit in relation to his candidature from any non-citizen, or from any company, firm or other body which is effectively controlled by non-citizens.
122. We propose that a breach of the provisions limiting election expenses and receipt of benefits in relation to candidature for election to Parliament constitute an offence. The penalty should, according to law, be a fine or, in the case of a serious offence, imprisonment or loss of office as a member of Parliament.
123. It is our intention that these restrictions on the financing of political parties and election candidates should be incorporated in a Schedule to the Constitution, and that they should be able to be amended by a bill supported by an absolute majority of members of Parliament. (The actual financial limits would be prescribed in ordinary legislation.) We have in mind that the need for changes to these provisions may soon become apparent in the light of experience here and in other countries where similar restrictions have only recently been imposed.
124. We propose that the new composition we have recommended for the legislature - 101-107 members elected from open electorates - should come into effect at the next general election in 1976, but the present provisions for nominated members should be repealed without this delay.
125. The name "National Parliament" should be introduced at the outset, and also the new qualifications and disqualifications in respect of membership. The former would thus apply to any by-election that might be held after the Constitution comes into force. As noted earlier, however, we recommend that the position of the present members of the House of Assembly should not be affected by the new qualifications. Unless otherwise disqualified, they would be allowed to retain the seats to which they have been elected until the end of their term in 1976. This includes non-citizens, but as indicated in Chapter 4, they would not be eligible for election to the position of Speaker or Deputy Speaker and Chairman or Deputy Chairman of any Committee of the parliament after the Constitution comes into force.
126. The changes we have proposed in the role of the Speaker are such that there should be new elections by the parliament for the positions of Speaker and Deputy Speaker. We recommend that these elections take place at the first meeting of parliament after the Constitution comes into force as if it were the first meeting after a general election. We make similar recommendations in respect of the executive in Chapter 7.
127. By the time the Constitution is brought into force it is likely to be nearly three years since parliamentary salaries were last reviewed. We think this would be an appropriate time for a fresh examination to be carried out in the light of changing circumstances - including the adoption of the new constitution for an independent state. We therefore recommend that the first determination by the Parliamentary Salaries Tribunal be made within three months from the date the Constitution comes into force.
128. In its 1970 Report (p.16), the Commission of Inquiry into Electoral Procedures drew attention to the difficulties in holding a general election during the wet season, and to the frequent requests by polling officials for a change in the polling period. The Commission emphasised that elections would be "more manageable, less hazardous and less expensive" if moved to another time of the year. In his Report on the 1972 House of Assembly General Election (pp. 16-17), the Chief Electoral Officer also mentioned this problem and urged that serious consideration be given to making a change. We think it is time that something was done about this matter. We propose, therefore, that the next general election, which is due under present legislation in February-March 1976, be put back three months. The first general election under the Constitution should be held in May-June 1976, and we recommend accordingly.
129. We recommend that, as soon as practicable after the Constitution comes into force a new Electoral Act be passed so that the Electoral Commission may be appointed and may commence work with a minimum of delay, on the drawing of new national and provincial boundaries in accordance with the Constitution.
A. COMPOSITION OF PARLIAMENT
1. (1) There shall be a National Parliament elected under a system of universal suffrage.
(2) The National Parliament shall consist of one house.
2. The National Parliament shall comprise not less than 101 nor more than 107 elected members, the number to be an odd number determined by the Electoral Commission in accordance with the criteria laid down in Recommendation 90.
3. To be qualified to be elected to the National Parliament, a person shall -
(a) be a citizen;
(b) be 23 years of age or over; and
(c) have resided in the electorate for which he nominates for either two consecutive years immediately preceding his nomination, or five consecutive years at any time.
4. A person shall not be qualified to be elected to the National Parliament if -
(a) he is of unsound mine;
(b) he is an undischarged bankrupt;
(c) he has some other form of paid employment;
(d) having been convicted of any offence, he is under sentence of death or of imprisonment exceeding nine months imposed on him by any court; or
(e) he is declared by the responsible tribunal to be disqualified by reason of having committed a corrupt practice in relation to his election or a serious breach of the provisions limiting election expenses.
5. The seat of a member of the National Parliament shall become vacant -
(a) upon the next dissolution of the National Parliament after his election;
(b) if he resigns his seat in a signed letter delivered in the case of a member other than the Speaker, to the Speaker, and in the case of the Speaker, to the Clerk of the National Parliament;
(c) if he is absent without leave of the parliament at all times during each of two consecutive meetings of the National Parliament;
(d) if he ceases to be a citizen;
(e) if any circumstances arise that, if he were not a member of the National Parliament, would cause him to be disqualified for election as such under Recommendation 4 (a) - (d) above,
provided that a member of the parliament who is undergoing a sentence of imprisonment exceeding nine months may, if he has appealed against the conviction in respect of which he has been sentenced, or against the sentence, continue to hold his seat while determination of his appeal is pending;
(f) if, except as authorized by law, he directly or indirectly takes or agrees to take any payment for services rendered in the parliament; or
(g) if he is found by the responsible tribunal to have committed a breach of the Leadership Code, and extenuating circumstances sufficient to warrant an order other than one of dismissal from office or the imposition of a term of imprisonment exceeding nine months are not found to exist.
Note: Provision is made in Chapter 3, "The Leadership Code", for the appointment, powers etc. of tribunals to decide cases of alleged breach of the Leadership Code.
6. There shall be a Speaker of the National Parliament.
7. (1) The Speaker shall be elected in a secret ballot by the members of the National Parliament from among their own number -
(a) as the first item of business in the first meeting of the National Parliament following a general election; and
(b) in the case of a vacancy, as provided in Recommendation 16 below.
(2) (a) To be elected Speaker, a member shall obtain an absolute majority of the formal votes cast.
(b) The following provisions shall be made in the Standing Orders of the National Parliament for the election of the Speaker by an exhaustive ballot in cases where there are more than two candidates, and in the first ballot the leading candidate does not obtain an absolute majority of the formal votes cast:
(i) Subject to the following sub-paragraphs, successive ballots shall be held until a candidate obtains an absolute majority of the formal votes cast.
(ii) The number of candidates shall be reduced at each successive ballot by the exclusion of the candidate who obtained the least number of votes in the preceding ballot.
(iii) If, in the first ballot, two or more candidates each obtain the least number of formal votes, the first ballot shall be repeated. If such a tie again results and there are only three candidates, the leading candidate shall be elected, notwithstanding the fact that he did not obtain an absolute majority of the formal votes cast. If such a tie again results, and there are more than three candidates, both candidates with the least number of formal votes shall be excluded and a second ballot conducted.
(iv) If, in a second or subsequent ballot no candidate has an absolute majority, and two or more candidates obtain the least number of votes, the one to be excluded shall be the tied candidate who obtained the second to least number of formal votes in the preceding ballot. If in that ballot there had also been a tie, the procedure prescribed in (iii) shall be adopted.
8. Following his election by the National Parliament, the Speaker shall be sworn into office by the Chief Justice.
9. In addition to other functions prescribed in the Constitution, the Speaker shall have the responsibility for administering the affairs of the National Parliament and shall have direction and control of the Parliamentary Service.
10. In respect of the affairs of the National Parliament and of the Parliamentary Service, submissions by the Speaker to the National Executive Council shall be presented by the Prime Minister, who shall also be responsible in the parliament for any bills dealing with these matters.
11. The office of Speaker shall become vacant -
(a) at the commencement of the first meeting of the National Parliament following the next general election after his election;
(b) if he resigns that office in a signed letter delivered to the Clerk of the National Parliament;
(c) if he is appointed a Minister;
(d) if he ceases to be a member of the National Parliament for reasons other than a dissolution of the Parliament; or
(e) if a motion for his removal from office is passed by an absolute majority of the National Parliament in accordance with Recommendation 12 below.
12. A motion to remove the Speaker may be moved in the National Parliament only if -
(a) the designation of his successor is included in the same motion;
(b) the motion is signed by at least one-tenth of the total membership of the parliament; and
(c) at least one week's prior notice of the intention to move such a motion is given.
13. There shall be a Deputy Speaker of the National Parliament.
14. (1) The Deputy Speaker shall be elected in a secret ballot by the members of the National Parliament from among their own number -
(a) at the next sitting of the parliament after the Prime Minister has been elected and has announced the names of the Ministers following a general election; and
(b) at the next sitting of the parliament after a vacancy has occurred for reasons other than the commencement of the first meeting of the parliament following a general election.
(2) (a) To be elected Deputy Speaker, a member shall obtain an absolute majority of the votes cast.
(b) Provision shall be made in the Standing Orders of the National Parliament in the manner prescribed in Recommendation 7(2)(b) above, for the election of the Deputy Speaker by an exhaustive ballot in cases where there are more than two candidates, and in the first ballot the leading candidate does not obtain an absolute majority of the votes cast.
15. The office of Deputy Speaker shall become vacant in the same circumstances as that of the Speaker under Recommendations 11 and 12 above.
16. At the next meeting of the National Parliament following a vacancy in the office of Speaker due to -
(a) his ceasing to be a member of the parliament for any reason other than a dissolution of the parliament;
(b) his resignation from that office;
(c) his appointment as a Minister; or
(d) his loss of office as a result of a breach of the Leadership Code
the National Parliament shall elect a new Speaker. The Deputy Speaker shall act as Speaker in the interim period.
17. In respect of his functions other than that of presiding in the National Parliament, the Speaker -
(a) shall empower the Deputy Speaker in a signed letter to act on his behalf when he is absent from Papua New Guinea; and
(b) May empower the Deputy Speaker in a signed letter to act on his behalf -
(i) when he is within Papua New Guinea but likely to be out of effective and prompt communication with his office;
(ii) when he is ill or otherwise incapacitated; or
(iii) as otherwise authorised by law.
18. Subject to Recommendation 19 below, and in respect of those functions of the Speaker other than that of presiding in the National Parliament, the Deputy Speaker shall act on behalf of the Speaker -
(a) when empowered to do so by the Speaker in a signed letter;
(b) when the First Parliamentary Committee, after considering a written report signed by two medical practitioners, has resolved that the Speaker is physically or mentally incapable of performing the duties of his office; or
(c) in an emergency situation, when effective communication with the Speaker is impossible.
19. If, at the next meeting of the National Parliament, the Deputy Speaker is still acting on behalf of the Speaker pursuant to Recommendation 18 (b) above because the Speaker has not resumed his duties, the First Parliamentary Committee shall report on the situation to the Parliament during that meeting, and shall recommend that either -
(a) the Deputy Speaker continue to act for the Speaker, subject to confirmation by the parliament at successive meetings of the parliament; or
(b) the Speaker be removed from office in accordance with the Constitution.
20. (1) Any question as to whether a person has been validly election as a member of the National Parliament or whether the seat of a member has become vacant shall be determined by a judge of the National Court constituted as the Electoral Court.
(2) An appeal against a decision of the Electoral Court made under clause (1) above shall lie to the Supreme Court.
21. Whenever a seat of a member of the National Parliament becomes vacant the Speaker shall, in a signed letter, notify the Electoral Commission and the vacancy shall be filled by election in a manner provided by law.
22. There shall be an independent Parliamentary Service comprising the Clerk of the National Parliament (as head of the Service) and such other officers, including the staff of the Permanent Parliamentary Committees, as are necessary for the effective service of the parliament.
23. The Clerk shall be appointed by the Speaker after consultation with the National Executive Council, the General Parliamentary Committee (referred to below) and the Public Services Commission.
Note: Provisions for the disqualifications for appointment and continuance in office of the Clerk, his tenure, removal from office and other conditions of service, are included separately in Chapter 14, "General".
24. Other officers of the Parliamentary Service shall be appointed by the Speaker on the advice of the Clerk and, in the case of senior positions specified by law, after consultation with the General Parliamentary Committee.
25. Although the Parliamentary Service shall remain independent of the public service, this shall not prevent the transfer or promotion of officers from the public service to the parliamentary service and vice versa; public servants retaining their public service rights after they transfer to the Parliamentary Service.
26. The Speaker shall have control over conditions of service and establishment matters in the Parliamentary Service, subject to consultation with the Prime Minister or Minister assisting the Prime Minister in respect of management matters in the public services and, in the case of establishment matters involving senior positions, with the General Parliamentary Committee.
27. (1) In the Parliamentary Service there shall be -
(a) a Parliamentary Research and Information Service with an initial maximum establishment as follows:
(i) Principal Research Officer - whose position shall be at Level 1 in the public service.
(ii) Deputy Principal Research Officer - whose position shall be at Class 10 or 11.
(iii) Six Research Officers - whose positions shall be at levels up to Class 9.
(b) an Office of the Parliamentary Counsel with an initial maximum establishment as follows:
(i) Parliamentary Counsel - whose position shall be at Level 1 in the public service.
(ii) Deputy Parliamentary Counsel - whose position shall be at Principal Legal Officer level.
(c) four Executive Officers to Committees.
(2) The staff under paragraphs (a) and (b) of clause (1) above shall provide research and legal services (including parliamentary drafting services) to the Speaker, all Committees of the parliament, non-ministerial members, and to Ministers in respect of matters affecting their own constituencies.
(3) The Principal Research Officer and the Parliamentary Counsel shall each be responsible to the Speaker in respect of his professional functions and to the Clerk in respect of administrative matters. Both officers shall have special responsibilities to the Chairmen of the Permanent Parliamentary Committees for providing research and legal services to those Committees.
(4) The position of Clerk of the National Parliament should be upgraded from Level 1 to Level 2 in view of the responsibilities which it is proposed he will have under the Constitution.
28. There shall be a Parliamentary Salaries Tribunal.
29. The Parliamentary Salaries Tribunal shall consist of a judge or magistrate (Chairman), a person experienced in salary or wage fixation and a member of the Public Services Commission, to be appointed by the National Executive Council following consultation by the Prime Minister with the General Parliamentary Committee.
30. The term of office of members of the Parliamentary Salaries Tribunal shall be six years.
31. The Parliamentary Salaries Tribunal shall determine the salaries, allowances, pensions and other benefits of all members of the National Parliament, including Ministers and Officers of the parliament.
32. In making its determinations, the Parliamentary Salaries Tribunal shall be guided by -
(a) the National Goals and Directive Principles in the Constitution;
(b) the general state of the economy;
(c) changes in the cost of living;
(d) the general level of salaries and wages in the community; and
(e) the relative responsibilities of Ministers and parliamentary office-holders and other members of parliament, subject to the avoidance of any undue disparity between the respective levels of remuneration of these groups.
33. The Parliamentary Salaries Tribunal shall have the powers of a Commission of Inquiry.
34. The Parliamentary Salaries Tribunal shall make its determinations at intervals of four years -
provided that a new determination shall be made at any time after the expiration of two years from the date of the previous determination if the National Parliament so resolves.
35. A new parliament building with adequate facilities for the National Parliament under the new Constitution should be built as soon as possible.
B. POWERS AND PROCEDURES OF PARLIAMENT
36. Subject to the Constitution, the National Parliament shall have the power to make laws for the peace, progress and welfare of Papua New Guinea; and such laws may have effect outside as well as within Papua New Guinea.
37. All regulations, rules, by-laws and orders made under an enactment of the National Parliament shall be tabled in the parliament within seven days of their making if parliament is meeting, or if it is not meeting, within seven days of the commencement of the next meeting of the parliament, and shall be referral to the appropriate permanent parliamentary committees for consideration and report.
38. (1) The National Parliament shall have power to disallow any regulations, rules, by-laws or orders made under an enactment of the parliament, not later than the last sitting day of the meeting following that at which those regulations, rules, by-laws or orders were tabled.
(2) Where a motion of disallowance is moved in the National Parliament within the period specified in clause (1), that motion shall also be debated and voted upon within that period -
provided that notice of the motion is given at least one sitting day before the motion is moved.
39. (1) Subject to clause (2) below, unless the parliament otherwise in any particular case resolves, no treaty, convention, agreement, or other act which gives rise to rights or obligations on the part of Papua New Guinea at international law shall be entered into by the National Executive Council until it has been tabled in the National Parliament for not less than eight sitting days -
provided that parliament may resolve to extend this period to twelve sitting days.
(2) The requirement in clause (1) above shall not apply in any particular case where the Speaker (acting on behalf of the parliament) and the Prime Minister jointly certify that the matter is too urgent for compliance with that requirement.
(3) Where the parliament, during the period referred to in clause (1) resolves that a treaty, convention, agreement, or other act be not entered into, the National Executive Council shall not enter into that treaty etc.
40. The National Parliament may alter the Constitution, but only in accordance with its provisions.
41. A bill for an Act of the National Parliament to alter the Constitution shall not be passed unless -
(a) the bill is published in the Government Gazette and in such other manner as is prescribed by law, and circulated to members of the parliament at least one month prior to its presentation;
(b) a period of at least three months elapses between the making of the first substantive speech by the mover of the bill, and the continuation of debate or the taking of a vote on the bill after the conclusion of that speech;
(c) the bill as a whole is supported by the individually recorded votes of not less than the special majorities prescribed in the relevant schedule to the Constitution.
42. Subject to the provisions of the Constitution and the Standing Orders of the National Parliament, any member of the parliament may introduce any bill or prepare any motion for debate in, or present any petition to, the parliament, and it shall be considered and disposed of in accordance with the Standing Orders.
Note: Provisions concerning the control of financial measures in the parliament are included separately in Chapter 9, "Financial Control".
43. Subject to the Constitution, parliament may by law determine its privileges, immunities and powers and those of its members.
44. There shall be freedom of speech, debate and proceedings in the National Parliament, and those freedoms shall not be questioned in any court or place outside the parliament.
45. Neither the Speaker nor an officer of the National Parliament shall be subject to the jurisdiction of a court in respect of the exercise of a power conferred on, or vested in, the Speaker or officer in his capacity as such.
46. No member of the National Parliament is liable to civil or criminal proceedings, arrest, imprisonment, fine or damages by reason of any matter or thing which he has brought by petition, question, bill, resolution, motion or otherwise, or has said, before the parliament or a committee of the parliament.
47. For the duration of any meeting of the National Parliament, members shall enjoy freedom from arrest for any civil debt.
48. No process issued by any court in the exercise of its civil jurisdiction shall be served or executed through the Speaker, the Clerk or any officer of the National Parliament or within the precincts of the parliament while it is sitting.
49. (1) The quorum for sittings and votes of the National Parliament shall be not less than one-third of all members of the parliament.
(2) Standing Orders should be amended so as to provide that if at any time during a sitting of the parliament the quorum lapses (or, after a break, there is no quorum), the Speaker be empowered to adjourn the sitting for up to one hour if he is satisfied that there is likely to be a quorum within that time.
50. The Speaker, or in his absence, the Deputy Speaker or, if they are both absent, a member of the National Parliament (not being a Minister) elected by the parliament for that sitting shall preside at each sitting of the parliament -
provided that the Speaker or Deputy Speaker or other member presiding may designate another non-ministerial member to preside temporarily during a sitting.
51. Except as otherwise provided in the Constitution, all questions proposed for decision in the National Parliament shall be determined by a majority of the votes of the members present and voting.
52. The Speaker, Deputy Speaker or other member presiding shall not vote -
(a) unless on any question the votes are equally divided, in which case he shall have and exercise a casting vote; or
(b) except on a motion of no confidence in the Prime Minister or another Minister, in which case he shall have a deliberative vote; or
(c) except on motion relating to a bill to amend the Constitution, in which case he shall have a deliberative vote.
53. No member shall speak or vote in the National Parliament on any matter which relates directly or indirectly to a contract for the supply of goods or services to the Government of Papua New Guinea in which he has any interest.
54. (1) A bill is signed into law when the Speaker certifies that it has been passed by the National Parliament, and it becomes law on the date that it is so signed.
(2) A bill passed by the National Parliament must be so certified within 28 days of the end of the meeting of parliament at which it was passed.
55. (1) A bill passed by the National Parliament may be recommitted by the National Executive Council, through the appropriate Minister, before it has been signed into law by the Speaker -
provided that the bill is recommitted no later than two weeks after it has been passed and during the same meeting of the parliament.
(2) A bill may be recommitted to the National Parliament only once and must be debated and voted upon finally during the meeting of parliament at which it was recommitted.
56. A law, or parts of a law, shall be brought into effect by the Speaker on the date or dates fixed by the National Executive Council in the absence of any specific provision in the law itself.
Tabling of documents
57. A copy of any regulation, rule, by-law, order, treaty, agreement, report or any other document tabled in the National Parliament in accordance with the Constitution or any law shall be distributed to every member of the parliament.
58. (1) Standing Orders should be changed to include the requirement that all bills presented to the National Parliament be accompanied by explanatory notes in English, Pidgin and Hiri Motu.
(2) As far as practicable, other official documents in English tabled in the parliament should be accompanied by Pidgin and Hiri Motu translations or translated summaries.
59. The Clerk of the National Parliament shall ensure that minutes of the parliament's proceedings are kept, and that copies are available for inspection by, and supply to, the public.
60. (1) Questions concerning the extent and nature of parliamentary privilege shall be subject to the jurisdiction of the National Court with appeals lying to the Supreme Court.
(2) With the exception of cases covered by clause (1) above and questions concerning membership of the parliament covered in Recommendation 20, disputes arising from the procedures of parliament shall not be subject to the jurisdiction of any court.
(3) The election of the Speaker shall be conclusively determined by the certificate of the Chief Justice and the election of other office-holders, including the Prime Minister, by the certificate of the Speaker.
(4) Questions as to whether a bill has been validly passed or a motion of disallowance carried shall be conclusively determined by the certificate of the Speaker.
(5) Disciplinary procedures of the National Parliament shall not be reviewed by any court.
61. Subject to the Constitution, the National Parliament may regulate its own procedure and for this purpose shall make Standing Orders.
62. A thorough review of all Standing Orders of the House of Assembly should be made so that they are made appropriate to the needs of the National Parliament of Papua New Guinea.
63. There shall be in the National Parliament the following Permanent Parliamentary Committees -
(a) six Permanent Parliamentary Committees to be known respectively as the First, Second and Third Parliamentary Committees, the Public Accounts Committee, the General Parliamentary Committee, the Private Business Committee; and
(b) such further Permanent Parliamentary Committees as may be provided for by law or in the Standing Orders of the parliament.
64. (1) Subject to Recommendations 71 and 81 below, each Permanent Parliamentary Committee shall have not more than twelve nor less than ten members (not being Ministers or the Speaker) who shall be broadly representative of opinion in the National Parliament, and the membership of each Committee shall be approved by resolution of the parliament.
(2) Each Permanent Parliamentary Committee other than the General Parliamentary Committee shall elect its own Chairman and Deputy Chairman.
(3) It shall be provided in the Standing Orders of parliament that the positions of Chairman and Deputy Chairman of each Permanent Parliamentary Committee other than the General Parliamentary Committee shall be held, respectively, by a Government member and an Opposition member.
65. (1) The First, Second and Third Permanent Parliamentary Committees shall have responsibility for subject areas as follows:
(a) First Parliamentary Committee -
constitutional matters; foreign relations, trade and investment; defence; police; public employment; Ombudsman Commission
(b) Second Parliamentary Committee -
finance; industry; natural resources
(c) Third Parliamentary Committee -
social welfare (including health and education); justice
(2) The First, Second and Third Permanent Parliamentary Committees shall be empowered to meet jointly to consider any particular matter which overlaps the area of responsibility of more than one Committee, or to set up joint sub-committees for this purpose.
(3) The Public Accounts Committee shall have the responsibilities recommended in Chapter 9, "Financial Control".
(4) It shall be the responsibility of the General Parliamentary Committee (provided for in Recommendation 71 below) -
(a) to draw up in detail the allocation of responsibility for subject areas to the Committees specified in clause (1) above within the framework laid down, and to make recommendations to the parliament for these to be incorporated in Standing Orders;
(b) to resolve any disputes arising from reference of particular items by parliament to the permanent committees; and
(c) to review the allocation of responsibility for subject areas between committees from time to time and to make recommendations to the parliament for any changes.
66. (1) In the subject areas for which they have responsibility, the Permanent Parliamentary Committees shall have power -
(a) in accordance with Recommendations 37 and 69 to consider and make recommendations on -
(i) legislation presented to the parliament,
(ii) subordinate legislation tabled in the parliament, and
(iii) reports, papers, or other matters referred to them by parliament;
(b) to participate with Ministers and officials in the preparation of legislation arising from substantive statements, papers or reports made or tabled in parliament or from resolutions of parliament;
(c) to carry out inquiries into matters either referred to them by parliament or nominated on their own initiative and -
(i) to report their findings and recommendations to parliament, and
(ii) to present draft legislation on the basis of these.
(2) In the subject areas for which they have responsibility, the Permanent Parliamentary Committees shall act as consultative bodies in the matter of appointments to statutory offices where so provided in the Constitution or by law.
67. (1) For the purpose of effectively performing their functions the Permanent Parliamentary Committees shall have power to -
(a) enforce the attendance of witnesses (other than Ministers) and examine them on oath, affirmation or otherwise;
(b) compel production of documents, including decisions of the National Executive Council unless the release of any such decision would seriously prejudice national security or proposed fiscal or revenue measures; and
(c) issue a commission or request for the examination of witnesses abroad.
(2) Witnesses who appear and give evidence or produce documents before a Committee shall be given reasonable protection from self-incrimination and civil action in respect of any evidence given.
68. Parliament may make laws conferring such powers on Permanent Parliamentary Committees, and imposing such duties on persons concerned, as it considers necessary to facilitate the performance of the functions of the Committees.
69. (1) (a) Unless the requirement of this provision is waived by resolution supported by an absolute majority of the members of the parliament every Bill shall, immediately after the first substantive speech has been made by the mover of the Bill, be referred to the appropriate Permanent Committee for consideration and report to the parliament through its chairman or acting chairman.
(b) In circumstances of doubt or dispute as to the Committee to which a particular Bill should be referred, the matter shall be resolved by the General Parliamentary Committee.
(c) The report of a Permanent Committee shall contain recommendations for the approval or disapproval of the Bill or for the amendment of the Bill (with draft amendments where necessary) and shall include reasons for the recommendations.
(d) A Permanent Committee shall submit its report to the parliament within eight sitting days after the Bill has been referred to it or within such extended period being not greater than eight sitting days at a time as may be allowed by parliament.
(e) Where the report is not submitted to parliament within the time allowed under (c) above, the parliament may proceed with debate on the Bill without awaiting the report.
(2) When any matter other than a Bill, is referred to a Permanent Committee by the parliament, the Committee shall consider it and report to the parliament within the time specified by parliament in the resolution by which the reference to the Committee is made.
70. (1) The agenda for meetings of the Permanent Parliamentary Committees shall be circulated to all Ministers in advance and, at least fourteen days before Committee meetings held while parliament is in recess.
(2) Except as otherwise provided in the Constitution, when matters of direct relevance to a Minister's portfolio are under discussion by a Permanent Parliamentary Committee, that Minister shall be entitled to attend the relevant meeting of the Committee, to address it and take full part in the Committee's proceedings, but not to vote on resolutions before it.
(3) Should members of a Permanent Parliamentary Committee decide that a matter before them is not really of direct relevance to a particular Minister's portfolio, the Prime Minister shall determine whether that Minister is entitled to attend a particular Committee meeting in accordance with the preceding provision, or whether another Minister (or Ministers) should attend in his stead.
71. (1) There shall be a Permanent Parliamentary Committee to be known as the General Parliamentary Committee.
(2) The General Parliamentary Committee will be composed of the Speaker, as the chairman, the Chairmen and Deputy Chairmen of the other Permanent Parliamentary Committees and, if he is not otherwise included, the Deputy Speaker.
(3) In addition to the functions prescribed in Recommendation 65 (3) concerning the allocation of responsibility for subject areas to other Permanent Parliamentary Committees, the General Parliamentary Committee shall -
(a) act as a consultative body in the appointment of the Clerk of the National Parliament, and in appointments and establishment matters in respect of other senior officers of the Parliamentary Service;
(b) advise the Speaker on the administration of the buildings and precincts of the National Parliament, and the services and facilities for members and others, including the Library and the Research and Information Service;
(c) have responsibility for matters concerning broadcasting of parliamentary proceedings; and
(d) consider and report on possible amendments to Standing Orders with a view to the improvement of the rules of procedure for the parliament.
72. (1) The National Parliament shall have the power to establish Select Committees from time to time.
(2) Select Committees of the National Parliament shall have the powers prescribed for Permanent Parliamentary Committees in Recommendation 67 above.
73. All parliamentary committees may appoint subcommittees.
74. All parliamentary committees shall make regular reports to the parliament on the progress of their work, and minority reports (either progress or final) shall be permitted.
75. A member of the National Parliament who is not a member of a particular parliamentary committee may, with the approval of the Committee concerned, participate in public sessions of that Committee and, unless the Committee orders otherwise, question witnesses, but he shall have no power to vote.
76. In order that parliamentary committees may carry out their functions effectively -
(a) they shall have adequate finance and facilities, suitably qualified staff, and the power to engage specialist consultants; and
(b) their members shall have adequate accommodation and transport in the national capital, and allowances in respect of their duties.
77. (1) Standing Orders shall provide that on one sitting day per week or, if the sittings of parliament are rearranged as a result of the review of Standing Orders, during an equivalent proportion of parliamentary sitting time, precedence shall be given to the consideration of private business.
(2) (a) There shall be a Private Business Committee.
(b) The Private Business Committee shall consist of the Speaker, Deputy Speaker and five other members (not being Ministers), who are broadly representative of opinion in the parliament.
(c) The Private Business Committee shall determine the order in which items shall be considered during periods of parliamentary time when private business has precedence -
provided that priority shall be given to bills over motions.
(d) The Private Business Committee shall be empowered to consult any member about a Bill or motion he has submitted and, subject to the approval of the member concerned, such a bill or motion may be withdrawn by leave of the Committee rather than by leave of the parliament.
C. SUMMONING AND DISSOLUTION OF PARLIAMENT
78. The Chief Justice shall, after consultation with the Speaker and the Prime Minister, summon the National Parliament no earlier than fourteen days nor later than twenty-one days after a general election.
79. The Speaker shall appoint such other time of meeting of the National Parliament as the National Executive Council fixes according to law, and shall give such prior notice of meetings as is provided by law.
80. In any period of twelve months, there shall be at least three meetings of the National Parliament, and the meetings held shall have a total duration of at least nine weeks.
81. Unless earlier dissolved in accordance with the Constitution, the National Parliament shall be dissolved by the Speaker on a date within the last three months of its term fixed by the National Executive Council.
82. The Speaker shall dissolve the National Parliament if -
(a) the parliament so resolves; or
(b) in the fourth year of its term and in accordance with the Constitution, the parliament -
(i) passes by an absolute majority a vote of no confidence in the National Executive Council; or
(ii) does not vote in the affirmative on any question or issue which the Prime Minister has declared by notice in writing to the Speaker, and has announced to the parliament to be a question or issue of confidence in the National Executive Council.
D. ELECTIONS FOR PARLIAMENT
83. General elections for the National Parliament shall be held at intervals not exceeding four years.
84. There shall be a general election at such time within ten weeks after every dissolution of the National Parliament as the Speaker, acting in accordance with the advice of the National Executive Council, appoints by notice in the Government Gazette.
85. (1) There shall be an Electoral Commission.
(2) For the purpose of conducting national and provincial elections, the Electoral Commission shall comprise a single Commissioner.
86. The Electoral Commissioner shall be appointed by the Speaker in accordance with the advice of a special committee comprising -
(a) the Prime Minister or another Minister representing him as chairman;
(b) the Chairman and Deputy Chairman of the First Parliamentary Committee;
(c) a provincial Premier elected by all the Premiers; and
(d) the Chairman of the Public Services Commission.
Note: Provisions for the disqualifications for appointment and continuance in office of the Electoral Commissioner, his tenure, removal from office and other conditions or service are included separately in Chapter 14, "General".
87. The Electoral Commission (referred to below as "the Commission") shall have the additional function of drawing national and provincial electoral boundaries. For this purpose, in addition to the Electoral Commissioner, it shall comprise Boundaries Commissioners as follows:
(a) the Surveyor-General, and
(b) the Government Statistician
each of whom might be represented by a deputy from time to time;
(c) two persons nominated by the National Parliament, neither of whom may be a member of the National Parliament or of any provincial assembly, nor a public servant or provincial government employee; and
(d) for the purpose of drawing provincial boundaries, a person nominated by the assembly of the province concerned, subject to the same disqualifications as in the case of nominees of the National Parliament.
88. Subject to Recommendation 89 (4), national and provincial electoral boundaries shall be redrawn as soon as practicable after each official five-yearly census and, in any event, at not more than six-yearly intervals.
89. (1) Following publication of provisional boundaries and a three-month period for objections, the Commission shall present its final recommendations to the National Parliament.
(2) The National Parliament shall have the right to approve or reject the Commission's recommendations as a whole, but not to amend them.
(3) If the Commission's recommendations are approved by the National Parliament, the new boundaries shall be gazetted to come into effect at the next general and provincial elections.
(4) If the National Parliament rejects the Commission's recommendations, the Commission shall present its recommendations again, with such amendments as it sees fit, within a period of three months. If the National Parliament rejects the Commission's recommendations a second time, the next general and provincial elections shall be held in accordance with the existing boundaries.
90. Subject to there being at least one national electorate in each province, the drawing of electoral boundaries shall be based on a population quota, subject to variations of up to 20 percent to be determined for each electorate after due consideration of the following criteria:
(a) the density of population, and in particular the need to ensure adequate representation of both closely settled urban areas and sparsely populated rural areas;
(b) physical features and the means of communication;
(c) existing electoral boundaries, and boundaries of provinces, local government councils and administrative areas; and
(d) community or diversity of interests, but this should not be interpreted too narrowly in terms of tribal or linguistic affiliations.
91. The Electoral Commission shall have the power to include in its recommendations on national and provincial electoral boundaries, recommendations for consequential minor adjustments to borders between provinces so that these may be brought into line with the proposed new electoral boundaries. This power shall not extend to recommendations for the division or amalgamation of provinces or for any similar major changes.
92. In respect of its functions prescribed in the Constitution, the Electoral Commission shall not be subject to the direction or control of any other person or body.
93. In respect of electoral matters, submissions by the Electoral Commission to the National Executive Council shall be presented by the Prime Minister, who shall also be responsible in the parliament for any bills dealing with these matters.
94. (1) To be qualified to vote in an election for the National Parliament, a person shall -
(a) be a citizen;
(b) be eighteen years of age or over; and
(c) have resided in an electorate for a period of at least six months.
(2) A person who is qualified to vote under clause (1) shall be eligible to vote only in an election for the electorate in which he last resided for a period of at least six months.
95. The voting system shall be "first-past-the-post".
96. Absentee votes shall be cast by postal ballot, which may be accepted only up to the end of polling period.
97. The electoral law shall contain provisions designed to ensure that, so far as is practicable, any person entitled to vote at an election for members of the National Parliament shall have a reasonable opportunity of doing so.
98. Any election for a member of the National Parliament at which fewer than thirty percent of persons eligible to vote do so shall be declared invalid and a new election shall be ordered.
99. A candidate for election to the National Parliament shall be required to pay a deposit of $100.
100. A candidate for election to the National Parliament may not declare or allow to be declared his affiliation with a political party or political association unless that party or association is registered.
101. (1) There shall be a Registrar-General, who shall be a public officer, and whose functions shall include the registration of political parties and associations.
(2) In respect of that function he shall not be subject to the direction or control of any other person or authority.
(3) Registration of a political party or association shall not be refused or cancelled except on reasonable grounds and in accordance with law.
(4) An appeal shall lie to the National Court of Justice against refusal or cancellation of registration of a political party or association.
102. Organisations registered as political parties or political associations shall be required to declare, annually, their assets and liabilities, their sources of income, and the amount received from each source -
provided that this information shall not include individual membership fees and the names of those who, bona fide, pay them.
103. Financial information declared by political parties and political associations shall be submitted annually to the Speaker for tabling in the National Parliament.
104. (1) No registered political party may accept benefits totalling more than the amount prescribed by law from any one source in one year.
(2) The amount to be prescribed initially by law shall be $1,000.
105. A contribution to the funds of, or the conferring of a benefit upon, a registered political party or political association by a non-citizen, or by any company, form or other body which is effectively controlled by non-citizens shall be prohibited. ("Contribution" includes money to establish a political party or association.)
106. In view of the need to ensure that national political parties have sufficient funds to continue to function effectively without relying on donations and other benefits given to them by foreigners (corporations and individuals), the government should immediately explore ways of fairly distributing finance among such parties from a central fund made up of moneys derived from -
(a) a specific tax or taxes (or levy), for example on all companies which pay income tax; and
(b) donations from foreigners.
107. The finance distributed should be sufficient to enable all registered national political parties to pay for the running expenses of a national office, including the salaries and travelling expenses of an adequate staff, and also to assist these parties in conducting national election campaigns.
108. No candidate for election to the National Parliament may accept, agree to accept or, at the time of his nomination, have accepted any benefit in relation, either directly or indirectly, to his candidature from a non-citizen, or from any company or firm or other body which is effectively controlled by non-citizens.
109. Every person who is elected to the National Parliament shall, within three months of the declaration of his election, submit to the Ombudsman Commission a statement showing the total expenditure associated with his election campaign.
Note: "Expenditure" in this Recommendation includes the value of all gifts and services provided without charge in respect of personal expenses and reasonable living and travelling costs incurred before, during and after the election by that person or, with his permission, express or implied, on his behalf.
110. The statement shall specify the source of each item of expenditure and the total sum or value of benefits received from each source.
111. (1) The total campaign expenditure by, or permitted (expressly or tacitly) by a candidate for election to the National Parliament shall not exceed the maximum amount prescribed by law for such expenditure.
(2) The amount to be prescribed initially by law shall be $1,500.
112. (1) No candidate for election to the National Parliament may accept from any one source benefits in relation, either directly or indirectly, to his candidature, totalling more than the amount prescribed by law, other than from a registered political party.
(2) The amount to be prescribed initially by law shall be $500.
113. (1) A breach of the provisions limiting election expenses and receipt of benefits in relation to candidature for the National Parliament shall constitute an offence.
(2) The penalty for an offence under clause (1) above shall, according to law, be a fine or, in the case of a serious offence, imprisonment or loss of office as a member of the parliament.
114. Persons who are members of the House of Assembly at the time the Constitution comes into force may, unless otherwise disqualified, retain their seats until the next general election whether or not they possess the qualifications prescribed under Recommendation 3 above.
115. Elections for the positions of Speaker and Deputy Speaker shall be held in accordance with the Constitution at the first meeting of the National Parliament after the Constitution is brought into force as if it were the first meeting after a general election.
Note: A similar transitional provision concerning the election of a Prime Minister and the appointment of Ministers is included in Chapter 7, "The Executive".
116. The first determination by the Parliamentary Salaries Tribunal shall be made within three months of the date on which the Constitution comes into force.
117. The first general election to be held under the Constitution shall take place during the month of May or June, or the months May and June, 1976.
118. As soon as practicable after the Constitution comes into force, a new Electoral Act should be passed so that the Electoral Commission may be appointed and commence work, with a minimum of delay, on the drawing of new national and provincial electoral boundaries in accordance with the Constitution.
119. The system of Permanent Parliamentary Committees should be established as soon as possible.
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