Independence, 16 September 1975

At midnight on 15 September 1975 the Australian flag came down at Independence Hill in Port Moresby and Papua New Guinea became a sovereign state. What is unusual about that date is not the ceremony but the document that took effect with it. The Constitution of the Independent State of Papua New Guinea was not drafted in Canberra or London and handed over. It was drafted in Papua New Guinea, by a committee of members of its own House of Assembly, and the government of the day did not get everything it wanted out of it.[1]

Two territories, not one

The country that became independent in 1975 had been administered as two legally distinct places for most of the preceding century, and this matters for understanding why independence took the shape it did.

Papua, in the south, was a British possession annexed in 1888 and transferred to the new Commonwealth of Australia under the Papua Act 1905. It was an Australian external territory, and people born there were British subjects and later Australian-protected persons.

New Guinea, in the north, had been German until Australian forces took Rabaul in 1914. From 1921 Australia administered it under a League of Nations Class C mandate, and after the Second World War under a United Nations trusteeship. A trust territory could not simply be absorbed; Australia was answerable to the Trusteeship Council for it, and had to report on progress towards self-government.

The two were joined administratively by the Papua and New Guinea Act 1949 (Cth), which created a single administration and a single Legislative Council while leaving the underlying legal status of each territory intact.[2] That union is why the country is called Papua New Guinea, and why the Constitution had to do some careful work in 1975 about who was a citizen.

The road through the House of Assembly

An elected House of Assembly replaced the Legislative Council in 1964, with most members returned from open electorates. It was the first body in which Papua New Guineans held a clear majority, and over three terms it became the engine of the independence movement rather than a consultative body.

The decisive shift came with the 1972 election, after which Michael Somare assembled a coalition and became Chief Minister. Self-government followed on 1 December 1973: Papua New Guinea took control of its internal affairs while Australia retained defence and external relations. Independence was then less than two years away, and the question had narrowed from whether to when and on what terms.

The Constitutional Planning Committee

In 1972 the House of Assembly established a Constitutional Planning Committee to produce a constitution. It was chaired in substance by John Momis, with Somare as formal chairman, and it did something unusual: it toured the country taking submissions, and then it wrote a report that argued with its own government.

The Committee's Final Report, delivered in 1974, proposed a far more decentralised state than the national government wanted, including strong provincial government. It also proposed the institutions that give the PNG Constitution its particular character:

• The National Goals and Directive Principles — five goals, including integral human development and PNG ways, placed at the front of the Constitution as a statement of what the state is for.
• An Ombudsman Commission and a Leadership Code, binding on leaders and enforceable, written into the Constitution itself rather than left to ordinary legislation.
• Recognition of custom as part of the underlying law.
• An entrenched constitution, alterable only by special majorities, rather than one Parliament could rewrite at will.

Not all of it survived. The decentralisation fight ran on past independence, and provincial government arrived in a different form. But the shape of the document — goals first, a leadership code, custom as a source of law, and a Supreme Court able to strike down legislation — is the Committee's.

What actually changed at midnight

Three things happened at once, and they are worth separating.

Sovereignty. Australia ceased to have any legal authority over the territory. On the Australian side this was effected by its own legislation providing for the territory to become an independent state.[3]

A new legal order. The Constitution took effect as the supreme law. Section 11 makes it supreme and provides that an act inconsistent with it is invalid — which is the foundation of every constitutional case decided in Papua New Guinea since.[1] Existing colonial legislation did not simply vanish: it was adopted and continued, subject to the Constitution, which is why Acts and ordinances made before 1975 are still cited in PNG courts today.

Citizenship. The Constitution created Papua New Guinean citizenship where none had existed, with automatic citizenship for people with the required connection to the country at independence, and provision for others to apply.

What independence did not settle

Two problems walked straight through 16 September 1975.

The first was Bougainville. Days before independence, Bougainville leaders declared a Republic of the North Solomons, driven by grievance over the Panguna mine and by the decentralisation question the Constitutional Planning Committee had tried to answer. It was settled by agreement in 1976 and by provincial government, but not resolved, and it returned in 1988 as a decade-long conflict.

The second was the reach of the state. A constitution that entrenches a leadership code and a supreme court assumes an administration able to deliver services across extremely difficult country to several hundred language groups. That gap between the constitutional design and the administrative reality is the thread running through most of what follows in Papua New Guinea's post-independence history.

Where to read the primary material

The Constitution itself is the place to start, and it is readable — it was deliberately written to be. The National Goals, the Basic Rights in Part III, and the Leadership Code in Part VIII repay reading in full rather than in summary. For how the courts have since interpreted it, the companion site PNG Law Explained covers the constitutional provisions and the Supreme Court decisions on them.