What you need to know
In response to the coronavirus disease (COVID-19) pandemic, the Government of Papua New Guinea has responded with a range of legal and economic measures to mitigate the impact of the crisis, both as a health and economic emergency. This update focuses on the legal regime that has been put in place to respond to the emergency. The primary legal measure is the activation of the emergency powers permitted under the Constitution. This enables a wide range of short term measures to be put in place (subject to certain limitations), and other longer term legal measures have been implemented.
The National Parliament met at the beginning of April to confirm the appointment of Police Commissioner David Manning MBE DPS QPM as the Emergency Controller (which occurred on 23 March 2020) (Controller), and to pass legislation confirming the activation of the emergency law, the Emergency (General Provisions) (COVID 19) Act 2020 (Emergency Law). Under the Constitution, emergency laws require extension by vote in Parliament at intervals of not less than 2 months, failing which the laws (and powers of the Controller) would lapse at that time. Potentially the laws could be extended during the aftermath of the initial period of emergency.
How businesses should respond
Businesses in Papua New Guinea have, for the most part, already undertaken a review of their operations with reference to a number of key legal relationships they have in place:
- Changes in workforce - rosters, utilisation of leave, stand-downs or termination of employees
- Mobility - online application and pass systems are being rolled out via the Government website noted below.
- Logistics and contractual arrangements - including giving consideration to the ability to modify or renegotiate contracts due to the operation of force majeure clauses, or the more general principle of "contract frustration"
- Insurance - review of insurance availability under the present and foreseeable circumstances
- Finance - the banks have announced reductions in interest rates and willingness to offer certain repayment concessions (variously interest only, or repayment deferrals of up to 3 months)
- Tenancies, where lease terms, or the economic situation of the parties, leads to change or renegotiation
The Controller has, and continues, to issue various orders some of which affect business operations. Given the evolving nature of the directions we only summarise the main provisions below. The key source of information is the Government website.
Primary justice related agencies have been declared to be essential service providers who continue to work and be paid, and were also directed to implement safe work practices. This includes Police and Correctional Services.
The National and Supreme Courts are continuing to hear urgent cases, but non-urgent matters are being deferred and the National and Supreme Courts remain essentially closed. Some hearings are being conducted by telephone, while other matters are continuing to be heard in person. Lower level courts were closed during the initial 14 day lockdown period in most centres, and some have re-opened.
Outline of emergency laws and regulations
Under the Constitution, emergency laws can deal with any subject matter, but certain constitutional rights cannot be limited by emergency law, including the right to life; freedom from inhuman treatment; freedom of conscience, thought and religion. In contrast, emergency laws passed can limit the general freedoms of expression, assembly, privacy and freedom of information accorded under the Constitution.
The Emergency Law has maintained the approach of having a single Emergency Controller, who is the (National) Police Commissioner, and authority is also given to the Provincial Administrators to administer emergency orders in the Provinces. This approach is similar to, but more comprehensive and detailed, than that taken in the 2006 Southern Highlands emergency declaration (which related to law and order) or the 1994 Rabaul volcanic eruption.
Alongside the legal powers of the Controller, a Joint Agency Task Force was established at the outset of the declaration of emergency, comprising key Ministers and agencies (Prime Minister; Police Minister; Health Minister; Police Commissioner and their respective departments and agencies), operating from a National Operations Centre at Waigani, which is operating and accessible on a 24 hour basis.
Peak business agencies, including the Australia Papua New Guinea Business Council, are included in the task force, giving business houses access to information about the Government's response to the pandemic.
As noted above, there is a general power under the Emergency Law for the Controller to make emergency orders, and the following subject matters are specifically mentioned, and in many of these areas orders have already been issued:
Non-exclusive list of subject matters for emergency orders
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| Movement of persons |
Social interaction and etiquette
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Matters relating to health and quarantine
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Business activities, including informal sector
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| Price regulation |
Employment, including matters relating to superannuation
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| National public service |
Transportation |
| Education |
Establishment of provincial control points |
Procurement by the State and statutory bodies for the purposes of the emergency is not subject to the public finance and procurement regimes, but is to be done in consultation with the Controller.
The Emergency Law has provision for substantial penalties for non-compliance with the emergency orders, including fines of up to K500,000 in the case of a corporation.
Price controls on a range of basic goods and services were declared by the Treasurer for implementation by the Independent Consumer and Competition Commission (ICCC), acting under the Prices Regulation Act.
Additional changes in laws
In the April sitting, Parliament also passed legislation giving additional powers to health inspectors in relation to declared infectious diseases, and to substantially increase the monetary penalties for offences under the Public Health Act and the Quarantine Act.
How we can help
Ashurst is available to help Papua New Guinea businesses with legal issues they may face, and has the team on the ground to respond. We have been in touch with a number of stakeholders locally, and have put in place arrangements for both business as usual and continuity should things change.
We understand that we have an important role to play as business partners and members of our broader community. We are in this together and I am confident we will get through these challenging times.
Please call your usual Ashurst contact if you have any questions, or visit our content hub for more information.
Authors: Richard Flynn, Sherrie Lee Williams
