Bougainville Agreement
(7 August 1976)
Statements and Documents of Agreement Between National Government and Provincial Government of North Solomons
CONTENTS: This Agreement consists of:
I Statement of Agreed Principles
II Schedule A – Proposed Organic Laws
III Schedule B –
Part I - Administrative Arrangements
Part II - Law and Order Arrangements
IV Signature Block
This agreement between the National Government and the Provincial Government of the North Solomons refers specifically to arrangements for the North Solomons. While similar arrangements may be made for other Provinces, the provisions of this agreement are seen by the National Government as unique provisions for the Province of North Solomons.
The Parties to this agreement are:
National Government
Michael SOMARE, Prime Minister
Rabbie NAMALIN, Head of Joint Bargaining Committee
Provincial Government of North Solomons
Alexis SAREI, Premier
Leo HANNETT, Provincial Secretary
Theodore MIRIUNG, Provincial Legal Officer
Simon TANIA, Provincial Finance Officer
Father MOMIS, Head of Joint Bargaining Committee
Joseph NORO, Provincial Taxation Officer
Signed on the 7th of Aug 1976 in Port Moresby and witnessed by:
Barry STUART
Yash GHAI
I. STATEMENT OF THE UNDERTAKINGS BY THE NATIONAL GOVERNMENT AND THE PROVINCE OF BOUGAINVILLE
PREAMBLE
The spirit and guiding principles of these undertakings are set out in the Joint Communique - dated August 7th 1976.
JOINT COMMUNIQUE
"The National Government and Bougainville leadership, in a true Melanesian spirit have reached an agreement that will guarantee the Bougainville people an effective role in running their own affairs within the framework of the Papua New Guinea National Government.
Both Parties have recognized the principle of decentralization at the national, regional and local level, which is basic to any meaningful participation in the running of any democratic government. By recognizing this principle both parties firmly believe that this adds strength to the nation and is totally in line with the spirit, as enshrined in the goals and directive principles of the Papua New Guinea National Constitution.
For the terms of this agreement to be successfully implemented it is imperative that all parties involved should work together in a spirit of mutual cooperation and understanding.
It is understood by both parties that the decentralization of certain administrative, financial and legislative powers is an extremely complex matter, and that all matters necessary to the effective working of the decentralized arrangements have not been covered adequately. The whole system must grow with experience and an atmosphere of good will be required to make the system work.
In particular, the agreement on Administrative Arrangements within the Province provides only a guideline to the eventual working of the system. It is intended that there shall be only one public service, a national public service, and the national authorities will have the ultimate powers necessary to make this effective.
It is also understood that the system of concurrent legislative powers can only work if the National and Provincial Governments have realistic expectations of each other's intentions on legislation. Many of the areas covered under the concurrent legislative powers are indeed areas where the national government will enact legislation in the national interest.
For example the national government will ensure that its own legislation will assure the orderly management and development of the national economy. In particular, national legislation will govern the development of major national resources for the benefit of all Papua New Guineans.
The National Government welcomes the initiative shown by the Province to accept responsibility for a gradually increasing range of responsibilities over the administration of Provincial Affairs. It acknowledges that the Province's task will be a complex and difficult one, and it stands ready to provide any advice and assistance it can give to set up structures of management and control over the execution of provincial responsibilities.
The Provincial Government, for its part, acknowledges that the new arrangements will require very large administrative changes within the National Government, and understand that this will create some problems of implementation of the Agreement. Both parties agree to approach the big task ahead with a spirit of mutual cooperation".
POINTS OF AGREEMENT
(As agreed between the parties dated August 7th 1976)
Name of the Province
1. The name "Province of North Solomons" may be used instead of the "Province of Bougainville", but does not become the official or publicly used name of the Province until the Prime Minister has consulted with the Chief Minister of the Solomon Islands Government.
Special Package for Province of Bougainville
2. While the arrangements set out in this agreement are within a scheme of decentralization of powers within a united Papua New Guinea, the National Government may consider any parts of these arrangements as unique and special provisions for the Province of Bougainville.
Joint Implementation Committee
3. To discuss and resolve any conflicts or differences arising from this agreement into a workable plan, a Joint Implementation Committee will be established composed of
i) Secretary of the Prime Ministers Department
ii) Secretary of the Ministry of Provincial Affairs
iii) Secretary of the Department of Finance
iv) Premier of North Solomons
v) Provincial Secretary
vi) Provincial Legal Officer.
coordinator
4. The Prime Minister after consultation with the Provincial Government of North Solomons shall appoint a senior public servant to supervise and co-ordinate the implementation of all parts of this agreement. The appointed senior public servant shall provide bi-monthly reports to the Premier of North Solomons on the progress of the arrangements to implement all parts of this agreement and respond to any other requests of the Premier concerning any parts of this agreement.
Consultation
5. Both Parties agree to do everything within their power to carry our all the provisions of this agreement without delay. The other party shall be consulted before one party causes any major change to the provisions of this agreement.
Necessary Legal Steps Taken
6. National Government will ensure all laws necessary to give effect to the clear provisions of this agreement are passed as soon as possible.
Review of Proposed Laws
7. Before any laws required to carry out the provisions of this agreement are presented to Parliament, a Lawyer nominated by the Premier of North Solomons shall be given a reasonable opportunity to be consulted and to review all such proposed laws and make a report to the Joint Implementation Committee.
Good Faith
8. The parties, recognizing that the agreement does not fully cover all the provisions required to provide for a fully operational Provincial Government, will work together in good faith to establish a workable scheme of governmental structures that reflect the principles of decentralization embodied in this agreement.
Meaning of Consultation
9. For the purposes of this document and the schedules the word "consultation" means that where a law provides for consultation between persons or bodies, or persons and bodies, the consultation must be meaningful and allow for a genuine interchange and consideration of views.
Timings
10. a) Beginning - The package of powers set out in Schedule A and Schedule B and in this Statement shall be transferred to the Province of North Solomons as soon as possible.
i) All financial powers and grants - before January 1st, 1977.
ii) All legislative and administrative powers - before February 1st, 1977.
Administrative powers shall include at least those powers set out in the Cabinet decision of 1976.
* All these powers will be delegated as required under the Provincial Government Preparatory Act if the Organic Laws are not passed by the aforementioned dates.
b) Duration - The Province of North Solomons will operate under the agreed scheme of powers for two budgetary years. (January 1977 to December 1978).
c) Further Talks - During the second budgetary year, further talks over other matters may be commenced at the initiative of the Province of North Solomons.
Organic Laws on Provincial Government
11. The National Government shall take all steps required to pass as soon as possible the scheme of organic laws set out in schedule A. The Organic laws on Provincial Government will be introduced into Parliament before January 1977.
Phasing of Provincial Powers
12. Despite provisions for devolving Provincial Government powers in phases, the Province of North Solomons may request any or all Provincial powers as soon as such powers are legally or administratively capable of being transferred to Provinces.
Legislative Powers
13. a) Minister of Provincial Affairs shall review all existing national legislation concerning subjects on the Concurrent list of legislative powers and propose amendments to or propose repeal of any such national legislation which does not involve matters of national interest.
b) The minister of Provincial Affairs shall endeavour to ensure the amendments or repeal of National legislation that is inconsistent or duplicates proposed Provincial legislation concerning subjects on the Concurrent list of legislative powers when such Provincial legislation cover matters that are of primary Provincial concern and not of national interest.
c) An amendment to the Constitution should be made to clarify the capacity of the National Government to incur international obligations concerning subjects of exclusive provincial legislative competence
i) Only the National Government has the competence to enter into treaties or international agreements of any kind.
(ii) Before entering into a treaty or international obligation concerning matters of exclusive provincial legislative competence, the National Government shall consult with and acquire the consent of Provincial Governments to pass the necessary Provincial legislation to abide by the obligations of a treaty or other international agreement.
Local Government Councils
15. Upon the request of the Provincial Government, the National Government agrees to exercise their power under the Constitution to abolish all local Government Councils in North Solomons.
Government Assets Taken
16. Over by Provinces Ownership will be transferred to the Province over all capital assets that become the responsibility of the Province to maintain. The ownership of such assets shall be subject to a public trust, and thereby must be used only for public purposes.
Public Servants to Help
17. The Prime Minister will endeavour to make key public servants available to the Provincial Government to assist with matters relating to the establishment of Provincial Government.
Recognition of Provincial Laws
18. The National Government will take steps to encourage all Provinces to give effect to the valid laws of other Provinces.
Loans
19.a) Provincial Development Corporations have the capacity as any corporation to raise loans under whatever terms the market will bear and the law will allow.
b)National Government will assist the Provincial Government in acquiring appropriate loans for Provincial projects.
Flag
20. a) The Province shall be entitled to establish and use a Provincial flag.
b) Whenever the Provincial flag is flown, it shall be flown side by side with the national flag.
Non-Renewable Resource Fund
21. The non-renewable resource fund established under the B.C.L. agreement in section 16(b) and defined in the Awara agreement shall be given to the Provincial Government to be used as a non-renewable resource fund or for whatever other purposes the Province may desire.
National Fiscal Commission
22. The National Fiscal Commission may be requested by the Provincial or National Government to comment on any contested issue concerning Provincial taxing powers.
Board of B.C.L.
23. National Government will consult with the Premier of the Province of North Solomons in the appointment of the National Government nominees to the Board of B.C.L.
II. SCHEDULE A
DRAFT PROPOSAL FOR ORGANIC LAWS OF PROVINCIAL GOVERNMENT AS AGREED BETWEEN NATIONAL GOVERNMENT AND PROVINCE OF BOUGAINVILLE (As agreed between the parties dated 7 AUGUST 1976)
Contents:
I. Legislative Powers
II. Executive Powers
III. Taxing Powers
IV. General Financial Arrangements
V. Intergovernmental Relations
VII. Miscellaneous Matters
PART I
LEGISLATION AUTHORITY
(1) Subject to this organic law the National Parliament has full authority to make laws on all subjects for the Peace, Order, Welfare and Good Government of Papua New Guinea.
(2) Without limiting the full authority of the National Parliament to make laws as provided under Section (1) each Provincial Legislature has concurrent authority to make laws the main concern of which is one or more of the following subjects:
i) Community Development and Rural Development,
ii) Agriculture and Stocks,
iii) Fishing,
iv) Health,
v) Public Works mainly or entirely of services, or benefit in the province,
vi) Trading, Business, Commercial Industrial, and Investment Development,
vii) Provincial High Schools, Vocational and Technical Schools,
viii) Laws relating to Gambling, Lotteries, or any other games of chance,
ix) Tourism,
x) Transportation, including transportation facilities,
xi) Town planning,
xii) Land and Land Development,
xiii) Forestry,
xiv) Wild Life Protection,
xv) Provincial Parks and Provincial Reserves
xvi) Family and Marriage Laws,
xvii) Establishment and Administration of Provincial Courts or Tribunals of both civil and criminal jurisdiction,
xviii) Land Courts,
xix) Communications and Mass Media,
xx) Wharves and Harbours,
xxi) Aviation,
xxii) Labour and Employment,
xxiii) Research and Training Institutions,
xxiv) Marketing,
xxv) Renewable and Non-renewable resources.
National Interest Only
3. a) National legislation dealing with or concerning any subject on the Concurrent List of legislative powers shall cover only matters which are of national interest.
b) Existing national legislation covering subjects on the concurrent list of legislative powers shall be repealed by the National Government if such legislation does not concern matters of national interest.
Non-Justiciable
c) The question of whether national legislation concerning a subject or subjects on the list of Concurrent legislative powers is of national interest is non-justiciable.
Notice of National Laws
4. a) The National Government shall give notice in writing by registered mail to all Provincial Governments of any amendments or proposed legislation concerning subjects on the Concurrent list of legislative powers. The notice of such legislative changes must be sent by registered mail two months before the proposed National legislation is to come into effect.
Waiver of Notice
b) The Premier in writing may waive the notice requirements for a particular National Law if requested to do so by the Minister of Provincial Affairs and if it is deemed by the Premier to be in the public interest to do so.
Emergency Legislation
c) If it is a matter of National emergency as defined in the National Constitution the notice requirement of section 4(a) may be ignored for any emergency legislation.
Urgent Legislation
d) In the case of urgent national business where it is required in the national interest to pass legislation without delay, the notice provisions of section 4 may be ignored. In such a case the National Government must give reasons for the urgency and notification of the urgent legislation to the Provincial Government as soon as possible.
Right to be Consulted
5. The Minister of Provincial Affairs shall upon the request of a Premier of a Province consult with the Provincial Government over any proposed National legislation concerning any subject on the Concurrent list of legislative powers.
Main Concern of Provincial Laws
6. A provincial law that is not mainly concerned with at least one of the listed concurrent subjects in section (2) or is not mainly concerned with the subject of delegated legislative power under section (12) is null and void. This issue is justiciable on the motion of the National Government, or on the motion of a person, who is a resident in the Province that passed the law in issue.
Duplication and Inconsistency
7. A provincial law that either duplicates or is inconsistent with a law of the National Parliament is null and void to the extent of the duplication or inconsistency, whether the law of the National Parliament was passed before or after the provincial law. These issues are justiciable on the motion of the National Government or on the motion of a person, who is resident in the Province that passed the law in issue.
Exclusive Legislative Powers of the Provinces
8. Subject to the National Constitution and the provisions of this Organic Law, each Provincial Assembly has exclusive legislative authority to make laws the main concern of which is one or more of the following subjects:
i) Control of Mobile traders except mobile banks, by licenses which may be conditional,
ii) Community Schools and Village Self-Help Schools, (but not High Schools, Vocational or Technical Schools),
iii) The sale and distribution of alcoholic beverages,
iv) Control of Public Entertainment by licenses which may be conditional,
v) Provincial Housing (but not Nationally owned housing accommodations)
vi) Provincial Libraries,
vii) Provincial Museums,
viii) Provincial Cultural Centres or Councils,
ix) Provincial Sporting activities,
x) Local Community and Village Governments,
xi) Establishment and Administration of Village Courts of both civil and criminal jurisdiction, (Jurisdictional levels of such village Courts shall not be less nor more than the existing jurisdiction of Village Courts under the Village Courts Acts and may be increased by the National Parliament from time to time),
xii) The imposition of punishment by fine, penalty or imprisonment for enforcing any Provincial Law.
Unoccupied Fields of Exclusive Legislative Competence
9.a) Where a subject is within the exclusive legislative competence of a Provincial Assembly, and no legislation has been enacted by that Assembly, the National Parliament may make legislation in relation to that subject.
b) Nothing in the section 9(a) shall prevent the Provincial Assembly from making laws on the subject referred to in section 9(a) and the Provincial legislation passed shall prevail over National Legislation passed under section 9(a) to the extent of any inconsistency or duplication.
10. a) Where a subject in relation to which legislative competence is not vested in the Provincial Assembly and no legislation on that subject has been made by National Parliament which applies in that Province the Provincial Assembly may make laws in relation to that subject.
b) Nothing in section 10(a) shall prevent the National Parliament from making laws on the subject or subjects referred to in section 10(a) and the National legislation shall prevail over Provincial legislation passed under subsection 10(a) to the extent of any inconsistency or duplication.
Notice of Provincial Laws
11. a) The Provincial Executive is responsible for ensuring that notice reaches the National Minister of Provincial Affairs of the text of any proposed provincial legislation, whoever may be the sponsors of the proposed legislation. This refers to the final draft of the text to be submitted to the Provincial Legislature for debate and voting according to the lawful procedures of the Legislature.
Notice of Amendments
b) If and when any amendments are passed in the Provincial legislature to a proposed law notice of which has been given under (a), notice must then also be given of the amendments passed, to the National Minister of Provincial Affairs, as in paragraph (a).
Coming into force of Provincial Laws
c) No provincial law may come into force before thirty days have elapsed after the day on which the Provincial Government has mailed directly by Registered mail the draft text to the Minister responsible for Provincial Affairs. If amendments were passed, then the provincial law may not come into force until at least thirty days have elapsed after the day on which the Provincial Government has mailed directly by Registered mail the text of the amendment to Minister responsible for Provincial Affairs.
Waiver of Notice
d) The National Minister of Provincial Affairs may in writing waive the notice requirements for a particular provincial Law if requested to do so by the Provincial Government and if it is deemed by the Minister to be in the public interest to do so.
Delegation of National Legislative Powers
12. a) The National Parliament may, by enacting a statute, delegate part of its exclusive legislative powers to a Provincial Legislature. The national delegating statute may be general or specific, and may subject the delegation to limits or conditions of any kind. The same national statue may delegate executive authority to the Provincial Government corresponding to the delegation of legislative powers to the Legislature of the Province.
b) A delegating statute of the National Parliament enacted by virtue of section (12)(i) may be amended or repealed by the National Parliament, but reasonable notice of such amendment or repeal shall be given to the Provincial Executive. The amendment or repeal shall not take effect until the time for reasonable notice has elapsed. An issue concerning the period required as reasonable notice is justiciable in the Supreme Court by the National Government or the Provincial Government.
Delegation of Provincial Legislative Powers
13. a) The Provincial Assembly may, by enacting a statute, delegate part of its exclusive legislative powers to the National Parliament. The Provincial delegating statute may be general or specific, and may subject the delegation to limits or conditions of any kind. The same Provincial statute may delegate exclusive executive authority to the National Government corresponding to the delegation of legislative powers to the National Parliament.
b) A delegating Statute of Provincial Assembly enacted by virtue of section 13(a) may be amended or repealed by the Provincial Assembly, but reasonable notice of such amendment or repeal shall be given to the National Executive Council. The amendment or repeal shall not take effect until the time for reasonable notice elapsed. An issue concerning the period required as reasonable notice is justiciable in the Supreme Court by the National Government or the Provincial Government.
Territorial Limitation
All laws of the Provinces are limited in their operation and effect to the territory that is within the boundaries of the Province.
Disallowance of Provincial Laws
15. a) The National Parliament by an absolute two thirds majority may disallow or veto any Provincial Law that is contrary to the national interest and that is deemed by Parliament to be in the public interest to disallow or veto such a Provincial Law.
b) The National Parliament by simple majority vote shall by resolution give notice to the Provincial Government of Parliaments intent to disallow or veto a Provincial Law. Such notice must be given at least two months before the Parliament votes to disallow or veto a Provincial Law.
c) At least thirty days before a vote in Parliament to disallow or veto a Provincial Law, the Minister of Provincial Affairs shall consult with the Provincial Government over all issues relating to the Provincial Law in question.
EXECUTIVE AUTHORITY
Definitions
"Executive Authority" as used in this part is the authority to direct and instruct permanent public officials and servants in their administration and application of any of the laws of Papua New Guinea according to their terms, including the exercise of lawful discretions. As used in this part, the phrase 'public officials and servants' does not include the judges of any courts or other officials in a special position of independence under the constitutional law or the organic law.
Executive Authority of National Government
17. Subject only to section (18), original executive authority for Papua New Guinea in all respects is vested in the National Executive Council, and may be exercised by it directly or through a national minister in accordance with Section 149 of the Constitution.
Executive Authority of Provincial Government
18. Notwithstanding section (17), when a Provincial Legislature has duly enacted a provincial law, original executive authority respecting that law is vested in the Provincial Executive, which that body may then exercise directly or through the Head of the Provincial Executive.
Delegation of National Executive Authority
19. The National Parliament may enact a law delegating any of the Executive Authority of the National Council to a Provincial Executive, which the latter may then exercise in the manner provided in section (18). The national delegating statute may be general or specific, and may subject the delegation to limits or conditions of any kind.
Delegation of Executive Authority
20. A Provincial Legislature may enact a law delegating any of the original executive authority of the Provincial Executive to the National Executive, which the latter may then exercise in the manner provided in section (17). The provincial delegating statute may subject the delegation to limits or conditions of any kind.
Reasonable Notice
21. A delegating statute enacted by virtue of section (19) or (20) may be amended or repealed by the legislative body that enacted it, but reasonable notice of such amendment or repeal shall be given to the delegate executive body, the Provincial Executive or the National Executive Council as the case may be.
The amendment or repeal shall not take effect until the time for reasonable notice has elapsed. An issue concerning the period required as reasonable notice is justiciable in the Supreme Court by the National Government or the Provincial Government.
Responsibilities of National Public Service Commission
22. a) The Public Service Commission has the authority to assign public servants to the service of the National Government and the respective Provincial Governments. The Commission shall consult the National Executive and the Provincial Executive about the nature of these needs and what can be done to meet them.
b) The Public Service Commission controls 'personnel matters' as defined in Section 194 of the Constitution.
Executive Authority over Public Servants
23. Respecting the performance of their duties, the executive authority to instruct or direct public servants and all other persons in the service of the National Government or the respective Provincial Governments is defined by the Provisions of Sections 16 to 21.
Delegation of Powers – Public Service Act
24. The National Parliament may enact a law to provide for substantial delegations of powers over Public Servants to a member or members of the Provincial Executive and or to relevant Public Servants assigned to Provincial Governments by the Public Service Commission.
TAXING POWERS
Definition
25. Interpretation of this part. For purposes of this part, a tax has three aspects:
a) Power to levy the tax, that is, to determine the amount and incidence of the tax.
b) Power to collect the tax, and
c) The right to receive the proceeds of the tax, in whole or in part.
General Taxing Powers of National Government
26. a) All powers of taxation in all aspects are exclusively vested in the National Parliament except for the provisions of paragraph (c) of this section and except for sections (27), (28) and (29). Further definitions of the taxing powers of the National Parliament in this part are for greater certainty and are without prejudice to the generality of the foregoing.
Exclusive Taxing Powers for National Government
b) The National Parliament and Government has the exclusive power to levy and collect the following taxes:
i) Import and Export Duties
ii) Excise Duties
iii) Taxes on corporate profits
iv) Taxes on personal income
v) Royalties on minerals, timber, fish, oil, natural gas, private hydro- electric undertakings and all other renewable and non-renewable natural resources
vi) Motor Vehicle Registration fees and fees for drivers' licenses.
Taxing Proceeds for Provincial Governments
c) Each Provincial Government has the right to receive the net proceeds of the following taxes levied and collected by the National Parliament and Government, according to principles of derivation determined by the National Executive Council. The net proceeds are the gross proceeds less the cost of collection.
i) Royalties on minerals, timber, fish, oil, natural gas, and private hydro-electric undertakings, to be remitted to the Province of production;
ii) Motor vehicle registration fees, to be remitted to the Province that is the residence of the owner of the vehicle; and
iii) Fees for drivers' licenses, remitted to the Province that is the residence of the driver.
d) The royalties mentioned in Section 26(c)(i) are royalties levied as taxes and exclude the amount of royalties or other payments paid to the owner of the land as royalties or as a matter of tradition and the normal operation of the laws of property and contract.
e) Except for the remittances provided for in (c) and (d) above, the National Government retains the proceeds of the taxes it levies and collects under the authority of laws of the National Parliament, subject to the provisions of this part concerning unconditional and conditional grants to the Provinces.
Exclusive Provincial Taxing Powers
27. Subject to the limitations of section (28) and Section (29), each Provincial Legislature and Government has the exclusive power to levy and collect in the Province the following taxes, and the right to retain the proceeds thereof:
a) Retail Sales Tax on the sale of beverages
b) Retail Sales Tax on the sale of petrol and diesel fuel
c) Retail Sales Tax on the sale of all other goods and services
d) Taxes on public entertainment for which admission is charged
e) Fees for provincial licenses for mobile traders, excluding mobile banks
f) Fees for provincial licenses for any place where liquor is sold
g) Fees for licenses to operate or carry out any gambling, gaming, lottery or other game of chance.
h) Taxes on land
i) Head Tax (must be a fixed tax not dependent on income and not discriminate in any way in its incidence among persons being taxed).
Discriminatory Taxes
28. The exclusive power of a Provincial Government to levy and collect taxes and retain the proceeds thereof in section (27) is limited to taxes that do not discriminate against the residents or products of other Provinces. The National Parliament has power to enact a law to prevent or correct any discrimination. Notwithstanding anything in section (27), such a corrective or preventive national law has over-riding authority and effect.
Excessive and Discriminatory Taxes
29. The exclusive power of a Provincial Government to levy and collect taxes and retain the proceeds thereof in section (27), is limited to taxes that are set and reasonable rates and taxes which do not discriminate unjustly in their incidence between different persons in the Province, including corporate persons. The National Parliament has power to enact a law to prevent or correct the excess or discrimination. Notwithstanding anything in section (27), such a preventive or corrective national law has over-riding authority and effect.
30. The question whether a provincial tax is excessive or discriminatory is non-justiciable.
31. Before the National Parliament passes a preventive or corrective law under section (28) or (29), the National Executive Council shall refer the matter to the National Fiscal Commission which shall report within 30 days to the National Parliament and the Provincial Assembly on the question of discriminatory or excessive Provincial taxation.
Delegation of National Parliaments Taxing Powers
32. The National Parliament may by statute delegate any of its taxing powers to a Provincial Legislature, and may delegate the corresponding executive authority to the Provincial Executive. The provisions of this Act respecting legislative and executive delegations by the National Parliament are applicable to the delegations referred to in this section.
Delegation of Provincial Taxing Powers
33. A Provincial Legislature may, by enacting a law, delegate any of its taxing powers to the National Parliament or Government, on the same terms and conditions as those that apply to delegation by the National Parliament under section (32). The provisions of this Act respecting executive and legislative delegations by a Provincial Legislature are likewise applicable.
GENERAL FINANCIAL ARRANGEMENTS
34. Court Fines and Fees The Provincial Governments are entitled to the revenue from fines and fees established by Provincial Laws levied in any court.
Loans
35. Provincial Governments shall have the power to guarantee or to obtain medium-term and long-term loans from or through the National Government but not otherwise.
Business and Commercial Operations
36. The Provinces shall have the net revenue from charges for services they render or goods they supply, from commercial enterprises in which they engage, and from the investments they make.
Taxes on Government Operations
37. Land, movable property or other assets owned by the National Government are not subject to taxation by a Provincial Legislature. Land, movable property or other assets owned by a Provincial Government are not subject to taxation by the National Parliament. Notwithstanding the foregoing, National or Provincial governmental commercial enterprises shall bear the same tax burden as the corresponding private enterprises.
Conditional Grants
38. The National Government shall have power to make conditional grants to Provincial Governments for improvement programmes, other agreed development activities or any other agreed purposes.
Terms of Conditional Grants
39. The conditions imposed may be only to the effect that the funds granted should be spent generally for the purpose specified, or they may be more detailed or specified to any degree.
Derivation Grant
40. Subject to Section (41), each Province shall receive a grant equal to one and one quarter percent of the value of all exports from the province each year.
41. The entitlement of each province under this Section is the amount of the grant, fixed by section (40), less the total amount of royalties received by the Provincial Government in that year.
General Unconditional Grants
42. The National Government shall each year set aside a part of the proceeds received from national revenues for the making of unconditional grants to Provincial Governments.
National Fiscal Commission
43. The National Fiscal Commission shall make recommendations to the National Executive Council on the allocations of grants to Provincial Governments.
PART V
INTERGOVERNMENTAL RELATIONS
Delegation of Powers to Local and Village Governments
44. The Provincial Government shall have exclusive power over all matters regarding the establishment, operation and functions of all Local, village, community or any other type of government established within the Province to deal with local matters.
Conditional and Unconditional Grants to Local and Village Governments
45. The Provincial Legislature may by Statute delegate executive taxing or administrative powers and functions to Local or Village governments. The provisions of this Act respecting delegations of powers are applicable to delegations referred to in this Section.
Provincial Powers over Local Government
46. The National Government and the Provincial Government may make conditional or unconditional grants to Local or Village Governments, but the National Government shall consult the Provincial Government before making such grants, and all National grants shall be paid through the Provincial Government.
PART VI
MISCELLANEOUS MATTERS
Governmental Ownership of Property
47. Governmental ownership of land, movable property or other assets is distinct from legislative or executive authority. Such Governmental ownership is not affected by reason only of a change in the allocation or delegation of legislative or executive authority in the constitutional law, organic national law or ordinary provincial law. This applies to ownership by the National Government, the Provincial Governments, and by Local and Village Governments.
Provincial Financial Statements
48. Provincial Governments shall submit each year to the Minister of Provincial Affairs a complete, full and proper statement of all Provincial finances. The Statement shall contain such information and in such detail as the Minister for Provincial Affairs shall require from year to year.
Powers of Auditor General
49. Notwithstanding anything in this Act, the powers of the Auditor General shall apply without restriction to all activities of Provincial Governments.
PART I – ADMINISTRATIVE ARRANGEMENTS WITHIN THE PROVINCE
(As agreed by the parties dated August 7th 1976)
In order to put into perspective the roles of principal individuals, administrative and political bodies within the Province some brief explanation of their respective powers, functions and responsibilities is required. Diagram A (attached) illustrates the basic positions and functions of the persons and authorities referred to in this agreement.
The key positions, administrative and political bodies are:
1. Provincial Executive Council
2. Provincial Assembly
3. Local, Village or Community Governments
4. Provincial Policy Secretariat
5. Provincial Management Team
6. Provincial Commissioner
7. Public Service within the Province
8. National Departments in Port Moresby
9. Ministry of Provincial Affairs
10. Premiers Council
11. National Fiscal Commission.
PROVINCIAL EXECUTIVE COUNCIL
Members – Provincial Government to determine
a) if Premier is indirectly or directly elected
b) method of appointment of other members of the Executive
c) number of members of Executive up to 1/3 (plus one) of the membership of the Assembly
method of removing members of Executive from office.
Powers – Provincial Government to determine
a) if Premier or the Executive as a body are to hold the Executive powers of the Province
b) conditions of delegation of Executive powers
c) procedure of Executive meetings.
Raising Revenues and Expenditures
Only the Provincial Executive Council can propose Provincial legislation that
i) involves expenditure of money
ii) raises revenues through taxes or licenses.
Annual Budget
Provincial Executive Council is responsible to prepare and publish an annual budget for the province.
Executive Authority
Provincial Executive Council has original executive powers over all Provincial responsibilities established or regulated by Provincial laws, and has executive powers over all other Provincial administrative functions.
PROVINCIAL ASSEMBLY
Members – Provincial Government to determine
a) method of election – may be partly indirectly elected or appointed
b) number of members – must be at least a minimum of 15
c) constitutional powers, provisions, assembly procedures and elections are subject to the range of options set out in the CPC report and as amended by the Minister of Provincial Affairs.
Powers
a) all law making powers of the Province
b) all expenditure and all revenue raising schemes of the Province must be approved by the Assembly
c) all powers commensurate with the functions of a legislative body.
- All salaries and expenses of Assembly and Executive members and the operating expenses of both bodies shall be the responsibility of the Province.
3. LOCAL, COMMUNITY OR VILLAGE GOVERNMENTS
All matters in relationship to governments at the local level are within the exclusive authority of the Province.
4. PROVINCIAL POLICY SECRETARIAT
Members –
- The Provincial Executive Council shall exclusively control all matters relating to:
hiring
tenure
promotion
discipline.
- The National Government shall provide funds for the salaries of six local officers
Provincial Secretary - Level 1
Provincial Planner - Class 11
Provincial Finance Officer - Class 10
Provincial Legal Officer - Class 10
Provincial Research Officer - Class 9
Provincial Administrative Officer - Class 9
The operating and other expenses of the office shall be the responsibility of the Province.
The Province may top up from their revenues any of the salaries of those officers up to the range of a level one or may operate with less than six officers and use the unexpended monies for salaries on other matters.
The Provincial Executive Council shall have exclusive control and direction over all functions, activities and responsibilities of the Provincial Policy Secretariat.
The Provincial Policy Secretariat will
perform such functions as required by the Provincial Executive Council
provide the necessary administrative support for the Provincial Assembly.
5. PROVINCIAL MANAGEMENT TEAM
Members -
a) Provincial Secretary - who shall act as Chairman
b) Provincial Planner
c) Two other members of the Provincial Policy Secretariat
d) Provincial Commissioner
e) Senior representative or Head of each department engaged in primarily Provincial activities to include at least representatives of the following Departments
i) Health
ii) Public Works
iii) Education
iv) Primary Industries
v) Natural Resources
The above members of the Team may appoint from time to time representatives of other departments as required.
- The Team may establish working committees to carry out any special functions directed by the Team.
Executive Power and Responsibilities
- Subject to the policy directives and laws of the Provincial Government the Team shall be responsible for the planning, implementation and administration of all matters that are the responsibility of the Provincial Government.
- The National Department shall delegate to the head of each department working on Provincial functions in the Province.
(a) full powers over all programs, activities or functions that fall within Provincial responsibilities
(b) the following powers over all public servants working on Provincial responsibilities
i) discipline
ii) holiday and sick leave
iii) promotion within the Province
iv) hiring for any vacancy within the Province
v) transfers within the Province.
- All matters relating to public servants shall be conducted according to the criteria, rules and regulations of the National Public Service Board.
- The powers over public servants exercised by a head of a department within the Province shall be subject to the supervision of the Provincial Management Team.
- The Provincial Management Team may:
a) recommend the transfer out of the Province of any Public Servant
b) establish recruitment committees to recommend filling vacancies within the Province - the
Committee shall consist of at least
i) Provincial Secretary who shall serve as Chairman
ii) Nominee of the Provincial Secretary
iii) Provincial Commissioner representing the P.S. Commission
iv) Head of the affected Department within the Province
v) Representative of the Public Service Association within the Province
- The Provincial Management Team shall be consulted on the appointment of the Heads of key Provincial Departments.
- The Provincial Management Team will be responsible for
a) Preparing estimates for approval by the Provincial Executive Council
b) Co-ordinating the activities of National and Provincial operations within the Province.
c) Providing advice and assistance to the Provincial Executive Council on all matters of Provincial concern.
d) Implementing the programs of the Provincial Government.
NOTE In addition to the powers and responsibilities given to the Provinces by the Organic Laws, the Provinces will as well have:
a) responsibility for all functions and activities delegated by the National Government (refer Cabinet decision on transfer of functions to Provincial Government)
b) Exclusive budgetary powers over all Provincial functions.
- A grant as determined by the National Government equal to the total amount of National Government expenditure on the function taken over by the Province will be given to the Province. The size of the grant will be such as to allow the maintenance of the pre-existing level of services.
- The Province may expend this grant on any Provincial Priorities. The Provincial Government will consult the National Government on any changes it wishes to make in the level of services previously provided by the National Government. The Province will not make any significant changes in the levels or pattern of such services unless it advises the National Government and unless two years have passed from the date upon which it advised the National Government that it wishes to effect such significant changes. The Province will not vary the expenditure on any service previously provided by the National Government by 30 percent or more from the level at the date upon which the service was taken over by the Province without the prior agreement of the National Government.
- Reasonable notice must be given to the National Government of any Provincial plan that might significantly affect the manpower requirements within the Public Service.
6. PROVINCIAL COMMISSIONER
Appointment - To be appointed by the Ministry of Provincial Affairs after consultation with the Premier.
Powers - With respect only to the exclusive National departmental activities within the Province, the P.C. will remain as before, the representative of the National Government.
- The P.C. in a fully established Provincial Government will be phased out from all his functions that now fall within the responsibilities of a Provincial Government.
(Note - Also Premier will replace the P.C. as Chairman of Important Intergovernmental committees within the Province such as the Peace and Good Order Committee).
7. PUBLIC SERVICE WITHIN THE PROVINCE
All public servants will be National Public Servants paid for by the National Government on National Government contracts.
As previously indicated public servants working on Provincial responsibilities are subject to control at the Provincial level for the following matters:
i) promotion
ii) holiday and sick leave
iii) discipline
iv) tenure - (Transfers out of Province)
v) intra Provincial transfers
vi) hiring to vacancies within Provincial establishments
vii) executive direction
- Public Servants working in the Provincial Policy Secretariat are exclusively subject to the authority of the Provincial Executive Council.
8. NATIONAL DEPARTMENTS IN PORT MORESBY
The National Departments carrying out exclusive national functions will in respect of such functions continue to operate as before.
- The National Departments presently involved with functions that will become Provincial responsibilities will delegate to the Provincial Departmental Head powers over activities that are Provincial responsibilities and all departmental powers over public servants working on such activities.
- These delegated powers will be carried out under the supervision of the Provincial Management Team.
- Thus the Provincial Management Team will perform over matters delegated to the provincial level, the supervisory and arbitrational roles previously provided by the Departmental headquarters in Port Moresby.
9. MINISTRY OF PROVINCIAL AFFAIRS
Responsible for
i) effective conduct of interprovincial and intergovernmental affairs
ii) servicing of all Provincial requests for assistance
iii) implementation and operation of Provincial system of government.
10. PREMIERS COUNCIL
Membership
Premier of each Province (19)
Prime Minister
Minister of Provincial Affairs
Minister of Finance
Functions
To meet at least once a year to discuss
a) All matters regarding grants, loans, taxing powers and other matters of Provincial finances
b) All Provincial legislative powers
c) Any matter concerning interprovincial or intergovernmental problems.
PART II - LAW AND ORDER ARRANGEMENTS WITHIN THE PROVINCE
(As agreed by the parties dated August 7th 1976)
1. The Premier shall be the Chairman of the Peace and Good Order Committee.
2. The Premier shall be consulted before the appointment of the Senior Provincial Police Officer.
3. a) The Peace and Good Order Committee shall consist of the following members:
Premier as Chairman
Provincial Commissioner
Senior Provincial Police Officer
Senior Intelligence Officer
A representative of the Village Courts, appointed by the Provincial Executive Council
A member of the Provincial Assembly appointed by the Premier
b) An ex officio member may be appointed from time to time by the Committee to assist it in the performance of its functions. Ex officio members shall not have the right to vote.
4. The Police must consult the Peace and Good Order Committee on all matters on which the Premier so directs.
5. The Peace and Good Order Committee may review all questions of law and order and make recommendations to the Police, National Government, and Provincial Government and any other body of persons operating within the Province.
6. The Law and Order Committee may recommend the transfer of a Police Officer out of the Province.
7. There shall be established an independent Police commission to hear cases of complaints by Individuals against the Police including charges of false arrest, false imprisonment and abuse of police powers. The Commission shall have powers of subpoena and to recommend disciplinary action.
8. The Police shall enforce all valid Provincial laws.
9. The Premier shall have the right to direct the Senior Provincial Police Officer in the performance of their functions so long as the directions do not violate any laws. If the Senior Provincial Police Officer objects to a direction of the Premier he shall consult the Commissioner of Police and the matter shall be resolved by the Prime Minister after consultation with the Premier.
10. The Senior Provincial Police Officer shall not introduce or use mobile units in an area without the permission of the Premier. The Premier shall have the right generally to forbid the Senior Provincial Police Officer from the use of the Police force in certain situations. In the event of disagreement between the Premier and the Senior Provincial Police Officer the matter shall be referred to the Commissioner of Police and the matter shall be resolved by the Prime Minister for resolution who shall consult with the Premier before making a decision.
11. The Premier may appoint a Justice Committee consisting of for example:
Social Workers
Trade Unionists
Magistrates
to examine social problems of law and order. All reports of this Committee shall be sent to the Peace and Good Order Committee.
12. The Village Peace Officers are to be the responsibility of the Provincial Government so long as the powers of the Peace Officers are within the limits of Peace Officers specified in the National Village Courts Act.
13. Steps will be taken to recommend
a) that a greater number of Bougainvillians would be appointed to the Police Force in Bougainville, especially key officers
b) that a greater integration of the Police in the local community would be promoted.
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