Papua New Guinea is based on English common law.
Where PNG differs is that customary law is recognised through an overlay of comprehensive national legislation. This system provides for the integration of the ‘Kastim Lo’ (generally custom, but also the language and rules for each group) from across more than 800 distinct regions. For people south of the Fly River, there are many communities in the PNG islands in the Torres Strait sharing culture and families with Australian Torres Strait Islanders.
Each region has its own language and rules. Translators are required at hearings where witness can only speak a language limited to a few communities. But commonality shared, other than prevalent use of English, is use of the common language, a Pidgin referred to as ‘Tok Pisin’ – a dialect derived from German, English and the local language. Wherever province this is applied, in practice, PNG laws would be familiar to an Australian audience. The law remains written, primarily, in English, with a court system operating primarily in English. The rules of civil procedure and evidence echo the Australian.1 Statutory interpretation is essentially the same as other common law countries, such as Australia.2 Many Papua New Guinean laws copy the substance from the contemporary Australian law. This is particularly the case with Queensland legislation; an example if the Environment Act 2000 (PNG) which reflects the initial version of the Environmental Protection Act 1994 (Qld).
Before Papua New Guinean independence, creating a new country out of the previous Australian territory, some custom was recognised in few statutes. What there was included the Marriage Act, Land Titles Act and Local Courts Act, however it received its first real platform of recognition as an important part of the legal system through its inclusion in the Constitution in 1975. Prior to the constitutional ratification, the drafters created the report for the National Goals and Directives Principles (‘NGDP’). They are included in the preamble to the Constitution. It states inter alia in the Fifth Goal of the National Goals and Directives Principles that:
“Custom is to play a role and have a place in the lives of PNG in the modern world, because custom has always had a place in governing people’s lives such as resolving disputes, participation in ceremonies and the like.”
Post-independence, there remain many commonalities between the Australian and PNG legal system. However, indigenous peoples in PNG have a much more comprehensive recognition of their rights through the incorporation of their regional or communal customary law than indigenous peoples of Australia. Two areas stand out; the codification and preservation of indigenous rights and freedoms, and the continuity of the recognition of customary land holdings.
First, Australia’s Constitution provides only limited protections for the rights and freedoms of individuals in general, but bereft for the indigenous. By contrast, the PNG Constitution provides extensive protection for fundamental rights, including the right to life (section 35), the right to protection of the law (section 37), and protection from unjust deprivation of property (section 53) – even customary land.3 The PNG Constitution also empowers PNG’s superior courts, the Supreme and National Courts, to enforce those rights, including, for example, the right to claim compensation when land is acquired by the government (sections 22, 57-58).
Second, Australia (and Queensland’s) system of land tenure is, primarily, the Torrens system – comprising a central land registry. Outside of the Northern Territory jurisdiction, only the vestiges of traditional land law are recognised after the historical extinguishment of indigenous tenure.4 By contrast, about 97 per cent of land in PNG is customary, and remains in the possession – and to the benefit – of communal customary land groups.5
Where Papua New Guinean law differs significantly is in the integration of customary law. Through the tripartite statutory scheme of the Constitution of the Independent State of Papua New Guinea 1975 (PNG) (‘PNG Constitution’), the Customs Recognition Act 1963 (PNG) (‘CRA’) and the Underlying Law Act 2000 (PNG) (‘ULA’). The legislation incorporates the customary law as equivalent, but held distinct from, common law, in order to create a unique layer recognising the ‘Underlying Law‘ – statutory recognition of the throughline of the regional traditions. To resolve disagreements in that custom, such as where a matter arises before the court where a question of two or more customs are pleaded to apply, the court may adopt the system the court is satisfied would satisfy the justice of the case requires.
Custom is recognised under Section 9 of the Constitution, which also provides a list of the hierarchy of laws. This hierarchical scheme originates with the Constitution as the Supreme Law, ratifying recognition of custom, and ends with dual recognition of customary and common law as the Underlying Law. The direct source in determining what the Underlying Law is can be found in Schedule 2.1.8 of the Constitution. It provides that customary law and the common law together are the sources for the Underlying Law. It is probably best to think it about it like this: the Constitution recognises and operates as a ‘source’ of customary law; the CRA respectfully translates local custom to its place in law; and with the ULA identifying the relationship between custom and the common law. In structure, the ULA is founded in Schedule 1.2 and Section 20 of the Constitution. Section 3 of the ULA states customary law and common law are sources of the underlying law. Section 4 provides that both customary law and common law can be adopted as part of the underlying law.
What is notable is that together the CRA and the ULA provide customary law is to be applied in favour of the common law.6 Also, if a court applies common law over customary law, it must likewise give reasons for doing so. In the fundamental constitutional case of Re Petition of Michael Thomas Somare [1981] PNGLR 265, the court said a court must positively decide a custom is inapplicable before considering the common law.
Schedule 2 of the Constitution, and any act of Parliament (section 20), may recognise custom to be applicable as law in criminal and civil cases. Customary law will be applied, per Schedule 2.1.2 of the Constitution, provided it is not inconsistent with the Constitution, a statute, or otherwise repugnant to the general principles of humanity.
Subsections 4(2) and (3) of the ULA set out the conditions for which customary law can be applied. For instance, if its application is not inconsistent with written laws, then it would not be contrary to the NGDP and Basic Social Obligations. Where a court refuses to apply customary law must give reasons for the refusal to do so, by how the customary pleading failed to meet the conditions under 4(2) and (3). The CRA provides further guidance on how customary law is recognised and applied in criminal and civil cases.
Subsection 5(1) of the CRA states custom may be recognised and enforced, pleaded in all courts if such would not be in the public interest, or if in relation to a child under 16 years it would not be in the best interest of the child. Finally, for custom to be a source and applied as part of the Underlying Law, and to apply for each case whether civil or criminal, it must satisfy the repugnancy test (see Schedule 2.1.1 of the Constitution). If the custom cannot be considered consistent with basic humanity, then it cannot be applied by a Court.7 (It is a discretionary determination permitted by statute on whether to apply customary law or not, but most wrongs, criminal or civil, will require a customary law sanction in the place of or in addition to any penalty handed down by a Court.8
In criminal cases, customary law may be considered only to among other things to ascertain the existence of a state of mind of a person, or to decide the reasonableness of an act or omission, excuse, or a penalty to be applied or proceed to a conviction, penalty to be imposed or where the decision-maker determines that by not taking custom into account injustice may result. In civil cases customary law can be invoked to establish the ownership by custom or rights over, in or in connection with customary land or anything on or in customary land, or the produce of land including hunting or gathering rights.9
Takeaways for Australian lawyers
Where the Australian Native Title Act has limited provision for indigenous people, the recognition and integration of customary law in Papua New Guinea – both through statute and as its own original form of law – stands as a striking contrast.
With the evolution of the law, and as influenced by that coming from countries considering custom, it is likely that Australian Native Title will be directly influenced by the statutory scheme in Papua New Guinean Customary Land Law if the near future. I would encourage any lawyer interested in Native Title Law to research this.
Footnotes
1 Gonol D, The Underlying Law of Papua New Guinea, UPNG Press 2016
2 Section 109(4) of the Constitution; Gari Baki v Allan Kopi [2008] PGNC 251 at [16]
3 Medaing v Ramu Nico [2011] PGNC 95)
4 Weiner J and Glaskin K, Customary Land Tenure and Registration in Australia and Papua New Guinea: Anthropological Perspectives, ANU Press 2007
5 James R, Law of Land Administration and Policies of Papua New Guinea, Melanesian Law Publishers 2011
6 State v Mattau [2008] PGNC 269
7 Kumbabong v State [2008] PGSC 51
8 Kovi v State [2005] PGSC 34
9 Larcom S, “Taking customary law seriously: a case of legal re-ordering in Kieta”, Journal of Legal Pluralism, Vol 45 No 2 190-198
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