In the latter half of 1979 the Supreme Court of Papua New Guinea delivered judgment in two cases in which it was called upon to decide a number of issues of fundamental significance to the interpretation of that country’s Constitution. In the course of this litigation, several of the Justices of the Court became embroiled in confrontation with the Government. The potential for such conflict had been foreseen by the makers of the Constitution, who took the view that conflict would be ameliorated if the Court adopted an autochthonous interpretation based on the social philosophy of the Constitution and on its legislative history. This article surveys the legal issues raised in these cases and evaluates the modes of interpretation employed by the Court by contrasting an “absolutist” with a “purposive” mode, with the latter expressing the intention of the Constitution’s makers. It concludes that for the most part the Court adopted the absolutist mode, and that thereby the autochthonous nature of the Constitution has been undermined.

The author considers whether the Commonwealth can enact “manner and form” legislation, especially provisions enabling the House of Representatives to enact laws which are the subject of a deadlock between the Houses, and legislation entrenching civil liberties. He argues that the legislative power of the Commonwealth has the same properties as that of the United Kingdom Parliament, which can impose “manner and form” limitations on itself; parliamentary supremacy is procedurally self-embracing. Hence, the Commonwealth Parliament can do likewise, except in so far as the Commonwealth Constitution provides to the contrary. The Constitution does prevent Parliament requiring legislation to be enacted by specified majorities in Parliament, or substituting a new legislature for the present Parliament. But the Commonwealth Parliament can enact provisions requiring legislation to be enacted in a specified form, and can establish an additional legislature for the enactment of legislation, including appropriation laws. Such legislation may be enacted pursuant to the procedure in section 57 of the Constitution, and could provide a method of avoiding a Supply crisis like that of 1975.

The inclusion in legislation of a discretionary power to be exercised by a member of the bureaucracy is nowadays commonplace. Such a discretion is usually open-ended and the basis on which it is to be exercised is spelled out in only the most general terms. To enable the discretionary power to be exercised consistently and in accordance with the intentions of the government, it is customary to find a policy being adopted relating to the manner of exercise of the discretion. This article is concerned with the attitude adopted by courts and tribunals when reviewing governmental action based on a policy relating to a discretion. It will be seen that the courts have moderated an original approach that disapproved of the reliance by decision-makers on policy rulings. Tribunals, on the other hand, and the Administrative Appeals Tribunal in particular, will be shown to have rejected constraints that may have been thought to have been placed upon them by governmental policy statements.

Custody — Parents equally suitable custodians — Is there a presumption that a young girl should be left in the custody of her mother — Position and role of appellate court in custody proceedings — Family Law Act 1975 (Cth) — Ss. 43(c), 64(1)(a), (2)

Constitutional law—Applicability of Imperial law in Australia—Whether Merchant Shipping Act 1894-1900 (U.K.) extends to South Australia—Whether U.K. Act applies to the Crown of its own force or by virtue of Judiciary Act 1903 (Cth) — Merchant Shipping Act 1894 (U.K.) Merchant Shipping (Liability of Shipowners and Others) Act 1900 (U.K.) — Judiciary Act 1903 (Cth)