Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.
Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.
An Act of the Parliament may-
provide for the proof and pleading of custom for any purpose; and
regulate the manner in which, or the purposes for which, custom may be recognized, applied or enforced; and
provide for the resolution of conflicts of custom.
PART 2. RECEPTION OF A COMMON LAW, ETC.
Sch.2.2. Adoption of a common law
Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that-
they are inconsistent with a Constitutional Law or a statute; or
they are inapplicable or inappropriate to the circumstances of the country from time to time; or
in their application to any particular matter they are inconsistent with custom as adopted by Part I.
Subject to Subsection (1)(a), (b) and (c), the principles and rules adopted under Subsection (1) include principles and rules relating to the Royal Prerogative, except insofar as they provide for-
a power to declare martial law; or
a power to grant letters of denization or similar privileges; or
a power to do any other act, provision for the doing of which is made by a Constitutional Law or an Act of the Parliament.
The principles and rules of common law and equity are adopted as provided by Subsections (1) and (2) notwithstanding any revision of them by any statute of England that does not apply in the country by virtue of Section Sch.2.6 (adoption of pre-Independence laws).
In relation to any particular question before a court, the operation of Subsection (1)(b) shall be determined by reference, among other things, to the circumstances of the case, including the time and place of any relevant transaction, act or event.
PART 3. DEVELOPMENT OF AN UNDERLYING LAW FOR PAPUA NEW GUINEA
Sch.2.3. Development, etc., of the underlying law
If in any particular matter before a court there appears to be no rule of law that is applicable and appropriate to the circumstances of the country, it is the duty of the National Judicial System, and in particular of the Supreme Court and the National Court, to formulate an appropriate rule as part of the underlying law having regard-
in particular, to the National Goals and Directive Principles and the Basic Social Obligations; and
to Division III.3 (basic rights); and
to analogies to be drawn from relevant statutes and customs; and
to the legislation of, and to relevant decisions of the courts of, any country that in the opinion of the court has a legal system similar to that of Papua New Guinea; and
to relevant decisions of courts exercising jurisdiction in or in respect of all or any part of the country at any time,
and to the circumstances of the country from time to time.
If in any court other than the Supreme Court a question arises that would involve the performance of the duty imposed by Subsection (1), then, unless the question is trivial, vexatious or irrelevant-
in the case of the National Court- the court may; and
in the case of any other court (not being a village court)the court shall,
refer the matter for decision to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.
Sch.2.4. Judicial development of the underlying law
In all cases, it is the duty of the National Judicial System, and especially of the Supreme Court and the National Court, to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except insofar as it would not be proper to do so by judicial act.
Sch.2.5. Reports on the development of the underlying law
In their reports under Section 187(1) (reports by Judges), and in any report under Section 187(2) (reports by Judges) if in their opinion it is desirable to do so, the Judges shall comment on the state, suitability and development of the underlying law, with any recommendations as to improvement that they think it proper to make.
Sch.2.6. Adoption of pre-Independence law
In Subsection (2), “pre-Independence law” means-
a law (including a law that had not yet come into operation) that was repealed by the Laws Repeal Act 1975 made by the pre-Independence House of Assembly for Papua New Guinea, and includes-
a law that was, and to the extent that it was, continued in force under or by virtue of any such law; and
a purported law that might have been (but had not been declared by a court to be) invalid by reason of a failure to comply with any other law in respect of the manner of its assent,
other than such a law that was repealed or superseded, or had expired or was spent, before the commencement of the Laws Repeal Act 1975; and
the laws of Australia specified in Part 1 of Schedule 5 as in force in the country immediately before Independence Day; and
the laws of England specified in Part 2 of Schedule 5 as in force in the country immediately before Independence Day; and
subordinate legislative enactments under any such laws that were in force in the country immediately before the repeal, or immediately before Independence Day, as the case may be.
Subject to any Constitutional Law, all pre-Independence laws are, by virtue of this section, adopted as Acts of the Parliament, or subordinate legislative enactments under such Acts, as the case may be, and apply to the extent to which they applied, or purported to apply, immediately before the repeal referred to in Subsection (1)(a), or immediately before Independence Day, as the case may be.
For the avoidance of doubt it is hereby declared that where a pre-Independence law to which Subsection (2) applies has not been brought into operation, and does not itself express a date on which it is to come into operation, it may be brought into operation-
in the case of an Acton a date to be fixed by the Head of State by notice published in the National Gazette; and
in the case of a subordinate legislative enactment – by publication in the National Gazette.
Sch.2.7. Adoption of adopted law
A law adopted by Section Sch.2.6 (adoption of pre-Independence laws) takes effect subject to such changes as to names, titles, offices, persons and institutions, and to such other formal and non-substantive changes, as are necessary to adapt it to the circumstances of the country and to the Constitutional Laws.
A Constitutional Regulation may prescribe changes to be made for the purposes of Subsection (1) and any such regulation is conclusive to the changes so prescribed, but no omission to prescribe a change affects the generality of that subsection.
A question as to a change to be made for the purposes of Subsection (1) is not a question relating to the interpretation or application of any provision of a Constitutional Law within the meaning of Section 18 (original interpretative jurisdiction of the Supreme Court), but this subsection does not affect the operation of Section 19 (special references to the Supreme Court).
PART 5. JUDICIAL PRECEDENT
Sch.2.8. Effect of Part 5
Nothing in this Part affects or is intended to affect, except to the extent specifically set out in this Part-
the legal doctrine of judicial precedent (also known as stare decisis); or
the principles of judicial comity; or
the rules of private international law (also known as conflict of laws); or
the legal doctrine known as res judicata,
or the further development and adoption of those doctrines, principles and rules in accordance with Part 3 of this Schedule (development of an underlying law for Papua New Guinea).
Except as provided by or under an Act of the Parliament, this Part does not apply to or in respect of village courts.
Sch.2.9. Subordination of courts
All decisions of law by the Supreme Court are binding on all other courts, but not on itself.
Subject to Section Sch.2.10 (conflict of precedents), all decisions of law by the National Court are binding on all other courts (other than the Supreme Court), but not on itself (except insofar as a decision of the National Court constituted by more Judges than one is of greater authority than a decision of the Court constituted by a lesser number).
Subject to this Part, all decisions of law by a court other than the Supreme Court or the National Court are binding on all lower courts.
In Subsection (4), “lower court”, in relation to a matter before a court, means a court to which proceedings by way of appeal or review (whether by leave or as of right) lie from the first-mentioned court in relation to the matter.
Sch.2.10. Conflict of precedents
Where it appears to a court other than the Supreme Court or the National Court that-
there are more decisions of law than one that are otherwise binding on it by virtue of the preceding provisions of this Part and that, in relation to the matter before it, the decisions are conflicting; or
a decision of law that is otherwise binding on it by virtue of the preceding provisions of this Part and that is otherwise applicable to the matter before it-
is not, or is no longer, appropriate to the circumstances of the country or of the matter; or
is inconsistent with any custom that is part of the underlying law and is applicable in relation to the matter; or
is seriously inconsistent with the trend of the adoption and development of the law in other respects,
then unless the question is trivial, vexatious or irrelevant the court may, and shall if so requested by a party to the matter, state a case to the court that made the decision or decisions or the equivalent court, or if there be no such court to the National Court, and take whatever other action (including the adjournment of proceedings) is appropriate.
Where a case is stated in accordance with Subsection (1), the court to which it is stated may require or permit the Minister responsible for the National Justice Administration to be represented by counsel to assist the court.
Sch.2.11. Prospective over-ruling
Subject to any decision of law that is binding upon it, in over-ruling a decision of law or in making a decision of law that is contrary to previous practice, doctrine or accepted custom, a court may, for a special reason, apply its decision of law only to situations occurring after the new decision.
In the circumstances described by Subsection (1), a court may apply to a situation a decision of law that was over-ruled after the occurrence of the situation, or a practice, doctrine or custom that was current or accepted at the time of the occurrence of any relevant transaction, act or event.
In a case to which Subsection (1) or (2) applies, a court may make its decision subject to such conditions and restrictions as to it seem just.
Sch.2.12. Outside decisions
For the purposes of this section, except in a matter before the Supreme Court or the National Court-
a decision of law by a Full Court of the pre-Independence Supreme Court, sitting in accordance with the pre-Independence law relating to sittings of the Supreme Court, or a decision of law on appeal from a decision of that court, has the same binding force as a decision of law of the Supreme Court; and
a decision of law by a pre-Independence Supreme Court sitting otherwise than as a Full Court, of a decision of law on appeal from a decision of that court, has the same binding force as a decision of law of the National Court,
subject to any decision of law of the Supreme Court or the National Court, as the case may be, to the contrary, but otherwise no decision of law of a court or tribunal that was not established within the National Judicial System is binding on a court within it.
Subsection (1) does not prevent recourse to the decisions of law or the opinion of courts or tribunals outside the National Judicial System (including courts or tribunals of jurisdictions other than Papua New Guinea) for their persuasive value.
PART 6. THE LAW REFORM COMMISSION
Sch.2.13. Establishment of the Commission
An Act of the Parliament shall make provision for and in respect of a Law Reform Commission.
Only citizens may be members of the Commission.
Sch.2.14. Special functions of the Commission
In addition to its other functions and responsibilities under any law, it is a special responsibility of the Law Reform Commission to investigate and report to the Parliament and to the National Executive on the development, and on the adaptation to the circumstances of the country, of the underlying law, and on the appropriateness of the rules and principles of the underlying law to the circumstances of the country from time to time.
If you enjoy this article, please do not forget to check out our other articles:
