Papua New Guinea 1975 Constitution (reviewed 2016) - Page 11 of 23

Table of Contents

PART VIII. SUPERVISION AND CONTROL

Division 1. Public Finances

Subdivision A. The Parliament and Finance

209. PARLIAMENTARY RESPONSIBILITY

Notwithstanding anything in this Constitution, the raising and expenditure of finance by the National Government, including the imposition of taxation and the raising of loans, is subject to authorization and control by the Parliament, and shall be regulated by an Act of the Parliament.
For each fiscal year, there shall be a National Budget comprising-
1. estimates of finance proposed to be raised and estimates of proposed expenditure by the National Government in respect of the fiscal year; and
2. separate appropriations for the service of that year in respect of-
  1. the services of the Parliament; and
  2. general public services; and
  3. the services of the Judiciary; and
3. such other supplementary Budgets and appropriations as are necessary.
For the purposes of this Sub-division-
1. “the services of the Parliament” include the salaries and allowances (financial and otherwise) of the Members of Parliament, the maintenance of the precincts of the Parliament, and the Parliamentary Service established under the Parliamentary Service Act (Chapter 26); and
2. “the services of the Judiciary” include-
  1. the salaries and allowances (financial and otherwise) of Judges of the Supreme and National Courts; and
  2. the maintenance of the Supreme and National Courts; and
  3. the National Judicial Staff Service established under the National Judicial Staff Service Act 1987; and
  4. the salaries and allowances (financial and otherwise) of all persons appointed under the Supreme Court Act (Chapter 37), the National Court Act (Chapter 38) and the Sheriff Act (Chapter 55).
For the purposes of Subsection (2)(b)(i) and (iii), the Speaker of the Parliament and the Chief Justice respectively shall, before 30 September each year, submit to the Prime Minister estimates of expenditure for the services of the Parliament and the services of the Judiciary respectively in the following fiscal year.
Before any Budget or appropriation is prepared for submission to the Parliament, the National Executive Council shall consult with any appropriate Permanent Parliamentary Committee, but this subsection does not confer any right or impose any duty of consultation after the initial stages of the preparation of the Budget or appropriation.

210. EXECUTIVE INITIATIVE

The Parliament shall not provide for the imposition of taxation, the raising of loans or the expenditure of public moneys of Papua New Guinea except on the recommendation of the Head of State, acting with, and in accordance with, the advice of the National Executive Council.
Subject to Subsections (3) and (4), Parliament may reduce, but shall not increase or reallocate, the amount or incidence of, or change the purpose of, any proposed taxation, loan or expenditure.
Where, in the opinion of the Parliament, the proposed expenditure for the services of the Parliament or the services of the Judiciary is below the estimate submitted by the Speaker or Chief Justice respectively and is insufficient adequately to meet the requirements of that service, the Parliament may increase the expenditure to an amount not exceeding the original estimates submitted by the Speaker or the Chief Justice, as the case may be, under Section 209(2B).
For the purposes of Subsection (3), the Parliament may re-allocate, or reduce and re-allocate, the amount of expenditure appropriated for any purpose.

211. EXECUTIVE INITIATIVE

All moneys of or under the control of the National Government for public expenditure and the Parliament and the Judiciary for their respective services shall be dealt with and properly accounted for in accordance with law.
No moneys of or under the control of the National Government for public expenditure and the Parliament and the Judiciary for their respective services shall be expended except as provided by this Constitution or by or under an Act of the Parliament.

212. REVENUE AND EXPENDITURE WITHOUT PRIOR APPROVAL

If at the beginning of a fiscal year the Parliament has not made provision for public expenditure by the National Executive or expenditure by the Parliament or the Judiciary for their respective services for that year, the National Executive, the Parliament or the Judiciary, as the case may be, may without authorization other than this section but may, in accordance with an Act of the Parliament, expend amounts appropriated out of the Consolidated Revenue Fund for the purpose not exceeding in total one-third of its respective budgeted expenditure during the immediately preceding fiscal year.
The authority conferred by Subsection (1) lapses when the Parliament has made provision for the public expenditure for the fiscal year in question, and any amounts expended by virtue of that subsection are a charge against the expenditure so provided for and shall be properly brought to account accordingly.

Subdivision AA. The Sovereign Wealth Fund

212A. SOVEREIGN WEALTH FUND

There is established a fund to be called Sovereign Wealth Fund.
An Organic Law may make further provision in respect of the Sovereign Wealth Fund.

Subdivision B. The Auditor-General

213. ESTABLISHMENT OF THE OFFICE OF AUDITOR-GENERAL

An office of Auditor-General is hereby established.
The Auditor-General shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after receiving reports from the Public Services Commission and the Public Accounts Committee.
In the performance of his functions under this Constitution, the Auditor-General is not subject to the control or direction of any person or authority.

214. FUNCTIONS OF THE AUDITOR-GENERAL

The primary functions of the Auditor-General are to inspect and audit, and to report at least once in every fiscal year (as provided by an Act of the Parliament) to the Parliament on the public accounts of Papua New Guinea, and on the control of and on transactions with or concerning the public moneys and property of Papua New Guinea, and such other functions as are prescribed by or under a Constitutional Law.
Unless other provision is made by law in respect of the inspection and audit of them, Subsection (1) extends to the accounts, finances and property of-
1. all arms, departments, agencies and instrumentalities of the National Government; and
2. all bodies set up by an Act of the Parliament, or by executive or administrative act of the National Executive, for governmental or official purposes.
Notwithstanding that other provision for inspection or audit is made as provided for by Subsection (2), the Auditor-General may, if he thinks it proper to do so, inspect and audit, and report to the Parliament on, any accounts, finances or property of an inspection referred to in that subsection, insofar as they relate to, or consist of or are derived from, public moneys or property of Papua New Guinea.
An Act of the Parliament may expand, and may provide in more detail for, the functions of the Auditor-General under Subsections (1), (2) and (3), and may confer on the Auditor-General additional functions and duties not inconsistent with the performance of the functions and duties conferred and imposed by those subsections.

Subdivision C. The Public Accounts Committee

215. ESTABLISHMENT OF THE COMMITTEE

There shall be a Public Accounts Committee, which is a Permanent Parliamentary Committee for the purposes of Subdivision VI.2.E (the Committee system).

216. FUNCTIONS OF THE COMMITTEE

The primary function of the Public Accounts Committee is, in accordance with an Act of the Parliament, to examine and report to the Parliament on the public accounts of Papua New Guinea and on the control of and on transactions with or concerning, the public moneys and property of Papua New Guinea.
Subsection (1) extends to any accounts, finances and property that are subject to inspection and audit by the Auditor-General under Section 214(2) (functions of the Auditor-General), and to reports by the Auditor-General under that subsection or Section 214(3) (functions of the Auditor-General).
An Act of the Parliament may expand, and may provide in more detail for, the functions of the Committee under Subsections (1) and (2), and may confer on the Committee additional functions and duties not inconsistent with the performance of the functions and duties conferred and imposed by those subsections.

Division 1A. Salaries and Remuneration Commission

216A. THE SALARIES AND REMUNERATION COMMISSION

A Salaries and Remuneration Commission is hereby established.
The Commission shall consist of-
1. the Speaker of the Parliament as the Chairman when attending, or in his absence, his nominee who shall be the Deputy Speaker; and
2. the Prime Minister or, in his absence, his nominee who shall be a Minister; and
3. the Leader of the Opposition or, in his absence, his nominee who shall be a member of Parliament in the Opposition; and
4. the Chief Justice or, in his absence, his nominee who shall be nominated after consultation with the Judges to represent the Judges; and
5. the head of the Department of Personnel Management or in his absence, his nominee who shall be an officer of that department; and
6. the head of the Department of Labour and Employment or, in his absence, his nominee who shall be an officer of that department.
The Commission is responsible for recommending to the Parliament from time to time, at intervals determined by it-
1. the salaries, allowances and benefits, financial and otherwise (including pensions and retirement benefits if they are not provided for by law other than this provision), for all or any members of the Parliament; and
2. the salaries, allowances and benefits, financial and otherwise (including pensions or retirement benefits), for all or any members of Provincial Assemblies and members of Local-level Governments; and
3. the salaries, allowances and benefits, financial and otherwise (including pensions or retirement benefits if they are not provided for by law other than this provision) for all the Judges; and
4. the salaries, allowances and benefits, financial or otherwise (including pensions or retirement benefits if they are not provided for by law other than this provision) for all Constitutional Office-holders.
5. the salaries, allowances and benefits, financial and otherwise (including pensions or retirement benefits if they are not provided for by law other than this provision) for all Departmental Heads and the Heads of all bodies set up by statute for governmental or official purposes; and
6. the salaries, allowances and benefits, financial and otherwise (including pensions or retirement benefits if they are not provided for by law other than this provision) for the Heads of all bodies (including companies incorporated under any law) in which the National Government has a financial interest and which are declared by the Head of State, acting with, and in accordance with, the advice of the National Parliament to be bodies to which this provision applies; and
7. that the Parliament considers, and approves or rescinds, and decision made by the salaries and Conditions Monitoring Committee which the Commission, after consideration, is of the opinion should be referred to the Parliament.
The Parliament shall determine the salaries, allowances and benefits, financial and otherwise of the members of the Parliament, Provincial Assemblies, the Judges and other Constitutional Office-holders in accordance with recommendations of the Commission made under Subsection (3).
Parliament may accept or reject, but may not amend, any recommendations of the Commission.
Effect may be given to the provisions of a recommendation by the Commission under Subsection (3)(a) to (f) inclusive pending the acceptance or rejection of the recommendation by the Parliament and where effect is so given and the Parliament subsequently-
1. accepts the recommendation – the provisions of the recommendation are deemed to have had effect from the date on which they were so effected; and
2. rejects the recommendation – the provisions of the recommendation-
  1. cease to have effect from the date on which they are rejected by the Parliament
  2. are deemed to have been valid from the date on which they were effected until the date on which they are rejected by the Parliament.
An Act of the Parliament shall make further provision in respect of-
1. the salaries and remuneration for the holders of the different offices or levels of offices held by-
  1. members of the Parliament; and
  2. members of Provincial Assemblies; and
  3. the Judges; and
  4. other Constitutional Office-holders; and
2. the powers and procedures of the Commission and generally in respect of it.
The provisions of this section apply notwithstanding any law that prescribes a code of conduct for leaders or imposes a duty, restraint or obligation on leaders acquiring a benefit or gain.

Division 2. The Ombudsman Commission

217. THE OMBUDSMAN COMMISSION

There shall be an Ombudsman Commission, consisting of a Chief Ombudsman and two Ombudsmen.
The members of the Commission shall be appointed by the Head of State, acting with, and in accordance with, the advice of an Ombudsman Appointments Committee consisting of-
1. the Prime Minister, who shall be Chairman; and
2. the Chief Justice; and
3. the Leader of the Opposition; and
4. the Chairman of the appropriate Permanent Parliamentary Committee, or, if the Chairman is not a member of the Parliament who is recognized by the Parliament as being generally committed to support the Government in the Parliament, the Deputy Chairman of that Committee; and
5. the Chairman of the Public Services Commission.
The salary and other conditions of employment of the Chief Ombudsman shall not be less than or inferior to the salary and other conditions of employment of a Judge other than the Chief Justice and the Deputy Chief Justice without taking into account any conditions of employment personal to that Judge.
The salary and other conditions of employment of the Ombudsmen shall be not less than or inferior to the salary and other conditions of employment of the Public Prosecutor, without taking into account any conditions of employment personal to any particular Public Prosecutor.
In the performance of its functions under Section 219 (functions of the Commission) the Commission is not subject to direction or control by any person or authority.
The proceedings of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceeded its jurisdiction.
An Organic Law shall make further provision in respect of the appointment, powers, procedures and immunity of the Commission.
[repealed]

218. PURPOSES OF THE COMMISSION

The purposes of the establishment of the Ombudsman Commission are-

to ensure that all governmental bodies are responsive to the needs and aspirations of the People; and
to help in the improvement of the work of governmental bodies and the elimination of unfairness and discrimination by them; and
to help in the elimination of unfair or otherwise defective legislation and practices affecting or administered by governmental bodies; and
to supervise the enforcement of Division III.2 (leadership code).

219. FUNCTIONS OF THE COMMISSION

Subject to this section and to any Organic Law made for the purposes of Subsection (7), the functions of the Ombudsman Commission are-
1. to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of-
  1. any State Service or provincial service, or a member of any such service; or
  2. any other governmental body, or an officer or employee of a governmental body; or
  3. any local government body or an officer or employee of any such body; or
  4. any other body set up by statute-
    1. that is wholly or mainly supported out of public moneys of Papua New Guinea; or
    2. all of, or the majority of, the members of the controlling authority of which are appointed by the National Executive,
    or an officer of employee of any such body; and
  5. any member of the personal staff of the Governor-General, a Minister or the Leader or Deputy Leader of the Opposition; or
  6. any other body or person prescribed for the purpose by an Act of the Parliament,
  specified by or under an Organic Law in the exercise of a power or function vested in it or him by law in cases where the conduct is or may be wrong, taking into account, amongst other things, the National Goals and Directive Principles, the Basic Rights and the Basic Social Obligations; and
2. to investigate any defects in any law or administrative practice appearing from any such investigation; and
3. to investigate, either on its own initiative or on complaint by a person affected, any case of an alleged or suspected discriminatory practice within the meaning of a law prohibiting such practices; and
4. any functions conferred on it under Division III.2 (leadership code); and
5. any other functions conferred upon it by or under an Organic Law.
Subject to Subsections (3), (4) and (5), and without otherwise limiting the generality of the expression, for the purposes of Subsection (1)(a) conduct is wrong if it is-
1. contrary to law; or
2. unreasonable, unjust, oppressive or improperly discriminatory, whether or not it is in accordance with law or practice; or
3. based wholly or partly on improper motives, irrelevant grounds or irrelevant considerations; or
4. based wholly or partly on a mistake of law or of fact; or
5. conduct for which reasons should be given but were not,
whether or not the act was supposed to be done in the exercise of deliberate judgement within the meaning of Section 62 (decisions in “deliberate judgement”).
The Commission shall not inquire into the justifiability of a policy of the National Government or a Minister or a provincial government or a member of a provincial executive, except insofar as the policy may be contrary to law or to the National Goals and Directive Principles, the Basic Rights or the Basic Social Obligations, or of any act of the Parliament.
The Commission shall not inquire into the exercise of a rule-making power by a local government body.
The Commission shall not inquire into a decision by a court, except insofar as the decision may show an apparent defect in law or administrative practice to which Subsection (1)(b) would apply.
Except as provided by or under Division III.2 (leadership code), the Commission’s powers of enforcement are limited to publicity for its proceedings, reports and recommendations, to the making of reports and recommendations to the Parliament and other appropriate authorities as provided by an Organic Law, and to the giving of advice.
An Organic Law shall make provision in respect of the powers and procedures of the Commission, and in particular-
1. shall, subject to paragraph (b), make provision for the Commission to have access to all available relevant information; and
2. may impose reasonable restrictions on the availability of information; and
3. shall make provision to ensure the secrecy or confidentiality of secret or confidential information made available to the Commission or to a member of the Commission or of its staff; and
4. may limit or restrict to a reasonable extent and in a reasonable manner the jurisdiction of the Commission in relation to any matters or class of matters, and in particular in relation to national security; and
5. shall make provision for and in respect of publicity for the proceedings, reports and recommendations of the Commission.
In this section, “conduct” includes-
1. any action or inaction relating to a matter of administration; and
2. any alleged action or inaction relating to a matter of administration.

219A. OMBUDSMAN COMMEISSION COMMITTEE

An Organic Law or an Act of Parliament may provide for the establishment of an Ombudsman Commission Committee, which is a Permanent Parliamentary Committee for the purposes of Subdivision VI.2.E (the Committee System) of the Constitution.
The primary function of the Ombudsman Commission Committee is, in accordance with an Organic Law or an Act of Parliament-
1. to consider and report on any report relating to an administrative complaint; and
2. to monitor and review any aspect of the workings, functions, operations and administration of the Ombudsman Commission; and
3. to investigate, on its own initiative or on complaint by a person affected and report to Parliament, any conduct on the part of-
  1. the Ombudsman Commission or an Ombudsman Commissioner; or
  2. governmental body or an officer or employee of a governmental body,
  where the conduct is or may be wrong; and
4. to refer a matter to the appropriate authorities for further investigation and prosecution, disciplinary action and to ensure compliance with the laws, as the case may be.
An Organic Law or an Act of Parliament may provide for the Membership, procedure and expand the functions of the Committee under Subsection (2) and may confer additional functions and duties not inconsistent with the performance of the functions and duties conferred and imposed by Subsection (2).

220. REPORTS BY THE COMMISSION

The Ombudsman Commission shall, at least once in each period of 12 months, at such time as is fixed by or under an Act of the Parliament or, subject to any such Act, by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, give to the Head of State, for presentation to the Parliament, a report on the functions and workings of the Commission, with such recommendations as to improvement as the Commission thinks proper.
Nothing in Subsection (1) prevents the Commission from making, on its own initiative or at the request of the Parliament or of the National Executive, other reports on any aspect of the functions and workings of the Commission.

Division 3. The Independent Commission Against Corruption

220A. INTERPRETATION

For the purposes of this Division, unless the contrary intention appears-

“Appointments Committee” means the Appointments Committee established under Section 220B(2);

“Commission” means the Independent Commission Against Corruption established under Section 220B(1);

“corrupt conduct” means any conduct, act or omission defined in an Organic Law as a corrupt conduct;

“member” means a member of the Commission;

“Oversight Committee” means the Committee prescribed under Section 220G.

220B. THE INDEPENDENT COMMISSION AGAINST CORRUPTION

There shall be an Independent Commission Against Corruption consisting of a Commissioner and two Deputy Commissioners.
There shall be an Independent Commission Against Corruption Appointments Committee.
The members of the Commission shall be appointed by the Head of State, acting on, and in accordance with, the advice of the Appointments Committee.
An Organic Law shall make further provision for-
1. the composition of the Appointments Committee; and
2. members of the Appointments Committee (including but not limited to qualifications, selection process, terms and conditions, length of appointment, cessation of appointment and termination of appointment); and
3. the functions and powers of the Appointments Committee; and
4. the operations and procedures of the Appointments Committee; and
5. any other matters concerning or relating to the Appointments Committee.
An Organic Law shall make further provision for-
1. the qualifications, terms and conditions, length of appointment, cessation of appointment and termination of appointment of the members of the Commission; and
2. any other matters concerning or relating to the Commission.

220C. PURPOSES OF THE COMMISSION

The purposes of the Commission are to contribute, in cooperation with other agencies, to preventing, reducing and combating corrupt conduct.

220D. FUNCTIONS OF THE COMMISSION

Subject to any Organic Law made for the purposes of Section 220E, the functions of the Commission are-

to receive and consider complaints regarding alleged or suspected corrupt conduct and investigate such of those complaints as it considers appropriate; and
to investigate, on its own initiative or on complaints received, alleged or suspected corrupt conduct; and
to exchange information regarding alleged or suspected corrupt conduct and cooperate with other law enforcement, integrity and regulatory agencies, both within Papua New Guinea and internationally; and
to refer complaints regarding alleged or suspected corrupt conduct to other agencies for investigation; and
to accept the referral from other agencies of matters regarding alleged or suspected corrupt conduct for investigation; and
where the Commission, after conducting an investigation, is of the opinion that a person has committed an offence involving corrupt conduct, to refer the matter to the Public Prosecutor of the Police Force together with a statement of reasons for its opinion; and
to exercise such prosecution powers concerning or relating to corrupt conduct as may be prescribed by or under an Organic Law; and
to encourage, cooperate and coordinate with other public and private sector agencies in-
1. research regarding corrupt conduct and anti-corruption strategies, policies, practices and procedures; and
2. the development, implementation and review of anti-corruption strategies, policies, practices and procedures; and
3. training, education and awareness regarding corrupt conduct and anti-corruption strategies, policies, practices and procedures.

220E. POWERS ETC., OF THE COMMISSION

An Organic Law shall make further provision for the functions, structure, powers, procedures, operations, protections and immunities of the Commission and its staff.
Without limiting the scope of Subsection (1), an Organic Law may-
1. make provision for the Commission to have access to all available relevant information to carry out its functions; and
2. impose reasonable restrictions on the availability of information held by the Commission; and
3. make provision to ensure the secrecy or confidentiality of secret or confidential information made available to the Commission; and
4. make provision for the bodies with which the Commission may share secret or confidential information; and
5. make provision for and in respect of publicity for the proceedings, reports and recommendations of the Commission; and
6. provide for certain penalties to automatically apply to a person who has been convicted of an offence involving corrupt conduct.

220F. INDEPENDENCE OF THE COMMISSION

In the performance of its functions and powers, the Commission is not subject to the direction and control of any person or authority.
The proceedings and decisions of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceeded its jurisdiction.
The salary and other conditions of employment of the Commissioner shall not be less than or inferior to the salary and other conditions of employment of a Judge other than the Chief Justice or Deputy Chief Justice without taking into account any conditions of employment personal to that Judge.
The salary and other conditions of a Deputy Commissioner shall not be less than or inferior to the salary and other conditions of employment of the Public Prosecutor, without taking into account any conditions of employment personal to any particular Public Prosecutor.

220G. OVERSIGHT OF THE COMMISSION

An Organic Law shall make provision for an Independent Commission Against Corruption Oversight Committee, whose role shall be to monitor, review and report on the Commission’s functions, operations and exercise of powers.

220H. REPORTS BY THE COMMISSION

By 31 March each year, the Commission shall present to the Speaker of Parliament an annual report for presentation to Parliament, and shall provide a copy of the annual report to the Minister and the Oversight Committee.
The Speaker of Parliament shall present the Commission’s annual report to Parliament at the next meeting of Parliament following the receipt of the report.
Once the annual report has been presented to Parliament, the Commission shall publish the report.
An Organic Law may make provision for-
1. any particular matters which the Commission shall be obliged to report on in its annual report; and
2. the role of the Oversight Committee in-
  1. reviewing the Commission’s annual report; and
  2. reporting on the Commission’s annual report; and
  3. reviewing and making recommendations on matters within the scope of its role under Section 220G as part of its reports; and
3. the publication of the Oversight Committee’s reports.
Nothing in this section prevents the Commission or the Oversight Committee from making any other reports relating to any aspect of the Commission’s operations, functions or powers.