- INTRODUCTION:
The purpose of this brief is to provide information on:
- The Roles and Functions of the State Solicitor’s Office as a branch of the Department of Justice & Attorney General and as State Solicitor for the Independent State of Papua New Guinea and its instrumentalities and agencies including line departments, statutory bodies, provincial and local-level governments.
- The current staff on strength to carry out and discharge the legal duties and responsibilities of the branch.
- FUNCTIONS AND ROLES:
The State Solicitor’s Branch of the Department of Attorney General is one of various constitutional and legal offices which provide varying legal services including advice and legal representations for various clients in particular the State. The Branch is required under various Acts of Parliament including the Public Finances (Management) Act, 1995, Public Services (Management) Act, 1995 and the National Executive Council’s Handbook on Submissions, to provide legal opinion and it issues letters of legal clearance before the State makes commitment in the conduct of State business.
The branch is basically the State’s Legal Office, which assists the State to implement NEC decisions regarding any resource projects, infrastructure projects, matters of commercial undertaking or other legal advice on constitutional and legal implications on administrative and executive actions of the State.
The office prepares and provides comments on Draft Contracts and other legal instruments submitted by client Departments and agencies of the State. Similarly it issues letters of legal clearance and Certificate of Necessity on draft proposed legislations for NEC’s consideration. The office is represented on various inter and intra departmental committees as well.
2.1 STAFF ON STRENGTH
- Current Position
There are 3 sections in the Office, each of which is headed by a Deputy State Solicitor. They are the Common Law/General Advisings, Commercial Law and International Law sections. The total staff strength under the current establishment register is 46 which comprises 36 legal officer positions including the State Solicitor and the three (3) deputies. There are 10 non-legal officer positions which include seven (7) legal secretaries, one (1) administrative officer and two (2) driver positions. Late last year a decision was made to have nine (9) legal officer positions that were previously unfunded, to have funding this year. Whether this has occurred will need to be confirmed by the Human Resources Branch.
In the past, the State Solicitor’s Branch has had lawyers in excess of 40. These have been reduced due to separation of the Solicitor General’s Office (previously the Property and Civil Litigation sections) from the State Solicitor’s Office and subsequent restructure exercises that have been carried out by the Department over the years, the most recent being in 2009.
The Department’s Corporate Plan, having been launched, together with improved work attitudes by new officers who have been appointed to key positions in the Branch, has seen an improvement in the work output of the Office. The Department is currently in the process of recruiting new lawyers and once this is completed the addition of new lawyers will greatly assist in terms of effective attendance to the work load of the Office.
The current total staff strength is 24 of which 19 are legal officers including the State Solicitor. It is hoped that the full complement of the 36 legal officer positions (hopefully with funding being made available for the previously unfunded positions) will be achieved later this year with further recruitment being planned to commence soon.
- COMMERCIAL DIVISION
Apart from providing day to day legal advice to the State, the State Solicitor’s Office has been involved in negotiation processes and pre-development conferences in relation to all major projects undertaken in Papua New Guinea and continues to be involved. We continue to be involved in the existing major projects apart from providing day to day advices and legal clearance.
3.1 Introduction
The Commercial Section of the State Solicitor’s Office provides legal assistance in relation to all legal issues arising from all Government Commercial transactions. Such assistance ranges from providing general legal advice on specific legal issues put to the office by our client departments and State agencies participating in Project and Loan Negotiations, and at times the Section assists in the Alternative Dispute Resolutions (ADR) arising from interpretation and construction of the Agreements.
The primary functions of the section can be categorized into five different areas, Mining and Petroleum, Infrastructure Projects, Non Mining, Investment projects, Loans Grant Aid/Finance Assistance, and General Commercial advice.
3.2 Mining & Petroleum
The Mining and Petroleum Branch has been one of the most important and technical of the Branches with the Commercial section. This is attributed to importance of the Mining and Petroleum Industry in the country. These industries have been contributing substantially to the national budget each year since the BCL days
More over this is due primarily to the highly technical nature of the development of such project and the massive social and environmental impact it can have on the project area. The Office works very closely with the Departments of Mineral Policy and Geo Hazards and Petroleum & Energy and has maintained a very close professional relationship with these Departments who are the principal clients in that regard. The office has been involved in all the Mining projects starting from the Bougainville Copper Mine to the yet to be developed Nautilus Minerals Solwara project in the Bismark sea.
The office was also heavily involved in the negotiations and drafting of various agreements relating to the Exxon led PNG LNG project and the preparation of documents for the exit of BHP Billiton from the Ok Tedi Mining Project.
The office is current involved in the negotiations and drafting of the documents to allow the extension of the Ok Tedi mining project. The State through NEC has decided to extend the mind life beyond 2013 which is the official date for mine closure because of budget implications.
In order to implement the NEC Decision, the Inmet Corporation of Canada which has a shareholding of 18% in the Ok Tedi mining project exit the project because if it continues to be the shareholder, it will continue to veto the mine life extension. Inmet exit is being negotiated with the final outcome soon.
The state solicitor is also a member of the three person Petromin Trust the other two being the president of the PNG Law Society or his nominee and the president of the Institute of Accountants
3.3 Investment Projects
Investment projects are the non Mining Investment projects which may include Agricultural Industry, Forestry projects and Fisheries projects. Our main clients in this area have been the Trade and Industry Department and the National Fisheries Authority. We have, for example been involved in the Halla Cement Project in Lae and its recent change of ownership, the Papa Lea Lea salt project, the Tuna Cannery projects in Madang and Wewak and the recently concluded fisheries Integrated Project in Lae, Morobe Province. This office has been and will continue to be an integral part of any State team that negotiates such projects.
3.4 Infrastructure Projects
Our involvement in this area starts with our membership on the CSTB followed by negotiating with donor agencies that usually fund many of these projects. It also involves negotiating constructions contract and giving the eventual legal clearance enabling execution of such Contracts.
3.5 Loans/Government Aid General Financial Assistance
This office through the Commercial branch has participated and will continue to participate in all loan or financial assistance negotiations with various Aid Agencies and Commercial Banks. This has seen many officers from this branch accompany the State team to wherever the negotiations take place both within the country and overseas to provide on hand legal assistance during negotiations.
Our involvement has become more necessary, because after financial assistance (loan) agreement is signed a legal opinion from the State Solicitor is required to give effect to such agreements. Legal opinion from the State Solicitor is one of the conditions under the Loan Agreement.
Last year alone the state negotiated about 8 Loans form donor agencies and including ADB and the World Bank group. Some of these projects that are funded from the proceeds of these loans include the Port Moresby sewerage upgrade project, the Lae Road improvement project, Boarder Development project etc.
State also negotiated four (4) loans from the Chinese EX-IM bank to fund the PMIZ project in Madang, the construction of the dormitories at the University of Goroka.
3.6 Others
Legal issues arise from time to time and upon instruction from our clients we check out into the relevant legislations common law principles, precedents and provide advice.
We also draw up Contracts check and clear NEC Submissions, issue Certificate of Necessity to effect legislations enactment.
The section is currently headed by a Deputy State Solicitor who is greatly assisted by two principal legal officer’s one senior legal officer and two legal officers and a legal secretary. In total therefore the section currently has a staff strength of six (6).
- COMMON LAW/ADVISINGS
This Section is one of the three (3) sections in the Office. It is tasked with providing advices and opinions and legal clearances primarily on matters that are not dealt with by the Commercial and International Law sections. These are matters in the Constitutional and Administrative Law field as well as Property Law and even in contract law as well as tort, and employment law. The Deputy State Solicitor (Common Law) has two (2) principal legal officers (General Advisings and Property Advisings) and seven (7) other legal officer positions in this section, under the current establishment register. Of these three (3) positions are unfunded currently but are expected to have funding soon to enable further recruitment later in the year. One of the four (4) remaining legal officers has moved to the International Law section. The current staff strength is seven (7) which includes the legal secretary for the section. The PLO (Property advisings) position will shortly become vacant following the recent appointment of the current holder as Chief Commissioner of the National Lands Commission. This of course means that the section will be further reduced to five (5) lawyers and one (1) legal secretary.
General Advisings
The General Advising component of the Section deals in a wide area of the law as its name would suggest. It considers, for the purpose of issuing legal clearances, draft employment contracts of all departmental heads of the national departments, provincial administrators, heads of statutory bodies and draft contracts for various consultants that are engaged by a wide range of government departments and offices throughout the Public Service as well as the various statutory bodies. It also provides legal advices and opinions on issues relative to specific legal aspects of the engagement of consultants under the relevant provisions of the Public Service (Management) Act (PSMA) and the General Orders (GOs) and the Public Finance (Management) Act (PFMA) as well as the Financial Instructions issued under the PFMA. It maintains a close liaison with the Department of Personnel Management (DPM) and has often provided legal advice to that Department in the area of administrative law.
In addition it provides legal advice on issues that affect national departments, provincial governments, local-level governments and other statutory bodies, particularly in the area of constitutional and administrative law upon specific request for such advice from the any of the bodies or agencies mentioned. In the area of administrative law it provides advice on disciplinary matters from the various branches within the DJAG as well as on specific request from national departments and provincial administrations. In this regard it provides advice on the application of the provisions of the PSMA and GOs, not only on disciplinary issues, but also on other aspects such as procedures for recruitment of officers into the public service and other personnel issues e.g. entitlements, allowances etc.
It has also been involved in assisting other national Departments in other aspects. For example, last year lawyers from the section (together with those from the International Law section) assisted the Department of Community Development (DCD) to draft proposed legislation to establish a Human Rights Commission for PNG. The a/Deputy State Solicitor (Common Law) is currently a member of the National Health Reform Committee (set up by the Department of Health) that is driving reforms in the delivery of health services, particularly in the provinces, through the establishment of Provincial Health Authorities currently being piloted in three (3) provinces and to be rolled out to other provinces soon. Lawyers from the section have also been actively involved in the recent proposed amendments to the Constitution and relevant Organic Law relating to the reserved seats for women in Parliament. It has also been involved in reforms being developed by the Department of Provincial & LLG Affairs, particularly with regard to Special Purposes Authorities. It has also provided legal advice on a proposed legislation on the establishment of an Industrial Relations Commission that is being drafted by the Department of Labour & Industrial Relations DLIR. The concept which had been mooted for the last thirty years, by the DLIR, now seems to set for finalisation before the proposed legislation goes through the usual process to becoming law.
It is available to provide advice to the Secretary of DJAG (and the Minister & Attorney General), if so required, on any matter in the areas of law that are mentioned above. It has provided such assistance in the past and will continue to do so when required.
It is also required to consider and provide legal clearances, if satisfied, on proposed legislation submitted to the Office by any of the bodies mentioned earlier. It also considers and issues legal clearances with regard to proposed amendments to existing laws. There issues relative to proposed legislation which are highlighted elsewhere in this Brief.
Property Advisings
The property advising component of the Section is required to take care and carriage of at least 300 files in the Conveyancing area. These 300 files relate to the purchase of homes by public servants under various Home Ownership Schemes. These are nationwide schemes, where files are created for purchasers when instructions are received from the National Housing Corporation (NHC).
The Section is also tasked with the responsibility of providing advices on the leases or sub-leases of Office accommodation for all national departments and other government agencies where offices are rented from the private sector. There are about fifty (50) files on such leases. It also assists in provision of legal services to the State where PNG missions overseas are required to enter into lease agreements. Currently we have four (4) files for leases of Office or residential properties from our overseas missions, eg. Jakarta (Indonesia), Honiara (Solomon Islands), South Korea and Wellington (New Zealand). Payments for such overseas properties are made by the Department of Foreign Affairs whereas those within the country are paid for by Treasury Department. The budget for office accommodation alone in the country was about K99 million last year.
The property advising component of the Section also plays a major role in advising the Department of Lands on matters regarding land dealings throughout the country. Such advices relate to grants, issues arising from same, forfeitures actions, transactions, licenses and so forth. Apart from matters relating to dealings in land this section’s bulk of the work is made up of legal matters, other than commercial or international law matters.
Apart from the above the Section also assists the other two (2) sections of the Office of State Solicitor as and when required in their specific areas of Commercial as well as International Law.
5. INTERNATIONAL LAW DIVISION
The International Law Division of the State Solicitor’s Office has eight (8) positions, of which two are currently unfunded: Deputy State Solicitor – International Law (DSS – International Law) and 1 Senior Legal Officer position (SLO.4). The actual staff on strength includes the DSS and four lawyers working under him as well as one legal secretary. The substantive Principal Legal Officer position is still occupied by the current a/Deputy Secretary and there is an officer within the division currently acting on this position.
5.1 Functions
The main function of this division is to ensure that the international obligations of the State are complied with. In this regard, the division is responsible for all international law matters including those involving law of the sea, maritime and fisheries, diplomatic and consular matters, trade related issues both bilaterally and multilaterally, constitutional procedures as regards treaty making, civil aviation as regards air services agreements, intellectual property rights, environmental, security including counter-terrorism and transnational organised crime and human rights matters.
The division has a close working relationship with other Departments and Agencies to, amongst others, ensure that:
- The States’ international obligations are implemented domestically and;
- On an international level, the interests of the State are taken into consideration.
In this regard the officers of the division work with other departments to coordinate implementation of international obligations through domestic legislation.
In addition to this, and as part of the nature of their job, officers also do quite a fair bit of traveling to represent the State, as legal advisors, at international meetings, negotiations (both bilateral and multilateral) and other international activities such as in the drafting of bilateral and multilateral agreements that the State enters into with other countries.
5.2 Human Rights Commission
The Government of PNG has been discussing and debating the concept of establishing a Human Rights Commission in PNG since the early 1990’s. In 1993, during the World Conference on Human Rights in Vienna, PNG informed the Conference that it would establish a National Human Rights Commission to uphold and administer human rights rules and laws for its peoples.
In fulfilling its Vienna commitment, the NEC in its decision endorsed and approved in principle the establishment of a National Human rights Commission. It further directed the Department of Justice & Attorney General (DJAG) through the office of the State Solicitor to take carriage of the project. To date an NEC Policy Submission on the establishment of a PNG Human Rights Commission including the draft legislations and drafting instructions have been prepared, awaiting its submission to the National Executive Council.
Given that this is a specific project mandated by the NEC a separate Brief on this matter is provided with this Brief
5.3 Universal Periodic Review (UPR)
This is a reporting mechanism that was introduced in 2006 by the UN Council. It basically monitors the progress on Human Rights Issues within member countries of the UN.
PNG is scheduled to present its country report next year, 2011. PNG has to deposit the report in February 2011 and thereafter present it to the UN Council in May 2011.
One of the primary conditions of the review is for member countries to carry out broad consultations within the country. To date, PNG has completed its regional consultations and is in the process of finalizing its report. As a member of the UPR Committee (representing DJAG), officers of the division have assisted in carrying out the regional consultations within the country.
5.4 Maritime Boundaries Delimitation Project.
DJAG has played a crucial role in this project dealing with the delimitation of the various maritime zones of Papua New Guinea. PNG's maritime zones are based on interim base points which were done in 1978, long before the 1982 Law of the Sea Convention came into force. Thus these base points need to be updated and adjusted.
A presentation regarding the ‘Ontong Java Plateau – Extended Continental Shelf’ was made to the UN Commission on the Limits of the Continental Shelf in 2010.
This presentation was made by PNG, Solomon Islands and Federated States of Micronesia (FSM).
Given that this is a specific project mandated by the NEC a separate Brief on this matter is provided with this Brief
5.5 Intellectual Property Rights
DJAG is member of the National Intellectual Property Rights Committee which was set up in 1999 to consider issues arising out of PNG's membership to the World Trade Organization and the World Intellectual Property Organization and to establish the Intellectual Property Office of Papua New Guinea
Work is currently under way to draft an enabling legislation to establish the Intellectual Property Office of Papua New Guinea. The division is working closely with Intellectual Property Office as well as other stakeholders in drafting this Bill.
A current work in progress of the Committee is the drafting and finalization of an Intellectual Property Strategic Plan. A study of the IP legislative and policy framework was undertaken and amongst other issues identified was that of the need to address gaps in the IP legal framework to cater for plant variety rights, innovative patents and certification marks.
5.6 Fisheries
As the Legal Advisor to the State, DJAG through the International Law Division participates in negotiations and consultations regarding regional and international arrangements.
Some of the current on-going fisheries consultations include those regarding the US Multilateral Treaty, Niue Treaty on Cooperation in Monitoring, Control and Surveillance, the Palau Arrangement, FSM Arrangement, etc.
The division provides advice and clearance on commercial agreements in the form of Access Agreements with other foreign commercial entities wanting to access our waters for commercial fishing. Furthermore, technical legal advice is provided to the National Fisheries Authority (NFA) as and when it is requested.
5.7 Environmental Law
The division (representing DJAG) renders technical legal assistance in the formulation of policies or legislation to the Department of Environment and Conservation when the need arises.
DJAG is the lead agency in the Policy and Legislation program of the National Biodiversity Strategy and Action Plan (NBSAP) under the Convention on Biological Diversity of which PNG is party to. The NBSAP is coordinated by the Office of Environment and Conservation.
5.8 International Trade & Investment
The division in providing legal advice and assistance on any international trade-related matters works closely with the Trade Division and other line agencies. Work in this area includes:
Investment Promotion and Protection Agreements
The division (representing DJAG) is the legal advisor in investment issues dealing with the negotiation and formulation of Investment Promotion and Protection Agreements (IPPA), which are bilateral arrangements that generally aim at protecting an investor in the country. The division is currently engaged in negotiations with Japan to have in place an IPPA between PNG and Japan.
Regional and Multilateral Trade-Related Arrangements
- World Trade Organization (WTO) – PNG as a member of the WTO is to implement various international obligations conferred upon her by the WTO agreements which become binding upon membership to this organization. PNG is a part of the ‘Pacific Bloc’ (PACP) of the “African, Caribbean and Pacific” (ACP) Bloc within the WTO trading system. The division represents DJAG in regional negotiations with other PACP States on various Regional Trade Agreements (RTA’s) or Free Trade Agreements (FTA) to discuss and negotiate various trade-related issues and obligations that can be implemented both collectively as a region (Pacific) and individually.
The division has played a crucial role in the finalization of the Interim Economic Partnership Agreement (IEPA) by being the legal advisor to the PNG delegation during the negotiations of the draft text right up to its finalization. This trade agreement was signed by PNG, Fiji and the European Union (EU) in 2009 and is currently with Trade Division prior to domestic ratification by Parliament.
- Asia Pacific Economic Cooperation (APEC) – PNG’s membership to APEC has allowed the division to be part of the PNG delegation, as the legal advisor, to these meetings annually. Unlike the WTO which is a negotiating forum, APEC aims at merely facilitating free and open trade and investment within the APEC region which in turn, amongst others, enhances the work of the WTO. The division represents DJAG at the APEC Senior Officials Meetings where various trade-related issues concerning the region are discussed. Initiatives agreed to by APEC Leaders are then implemented domestically.
- Melanesian Spearhead Group (MSG) – the division is working closely with Trade Division in providing legal advice and drafting assistance for the current MSG Trade Agreement – Trade in Services text.
- Other regional trade arrangements of which the division is involved in through negotiations and consultations, include: The ‘Agreement on Closer Economic Relations’ (PACER-PLUS); The ‘Pacific Island Countries Trade Agreement – Trade in Services’ (PICTA TIS); etc.
Other trade-related areas
The division also works with other line agencies such as Internal Revenue Commission (IRC) in relation to Double Taxation Treaties which are bilateral arrangements aimed at protecting a trading partner from double taxation.
Trade-Related Legislation Gap Analysis.
DJAG through division has been tasked in October 2009, by Trade Division (Foreign Affairs & Trade) to carry out a Trade-Related Legislation Gap Analysis. The analysis is aimed at providing an overview of the existing legal framework governing trade, in particular international trade, as measured against the goalposts of the WTO.
Consultations with relevant stakeholders have already been conducted in early 2010 to ascertain sectoral policies and administrative practices which are not legislated.
A trade matrix has been populated highlighting the existing legal framework that governs trade.
This project is still a work in progress which should be completed in June this year.
5.9 Security Issues (Counter-Terrorism & Transnational Crimes)
The division also deals with security issues such as that of Counter-Terrorism and Transnational Crimes. Apart from providing legal advice and legal clearance for matters in these areas, the division participates at global meets where such security issues are discussed.
The division also assists where the need be, in drafting of bilateral arrangements such as the MOU to Combat Transnational Organized Crimes between PNG and Indonesia which is still being considered by relevant stakeholders prior to negotiation with Indonesia.
- Conclusion
The State Solicitor’s office is important for the reason that it is the clearing house where important Decisions and actions of the government and state instrumentalities are checked for consistency and conformity to all existing laws, regulations administrative and executive decisions. The State’s interests are guaranteed in that the office only serves the State and its agents only. Incidences of conflict with other clients are therefore minimized or non-existent.
It enjoys a special status in that it is meant to serve the interest of the State as against the interests of the government of the day as this may not be always in tune with the interest of the State. The office of the State Solicitor is vitally important for the purpose of effective checks, control and balances to eradicate potential misuse and abuse of administrative powers and functions.
In some instances, it has been noted that Cabinet Submissions that have gone without channeling through this office have latter been found to be contradictory and generally against the interest of the State. Some of them have ended up in court thus imposing heavy financial burden on the State.
The projected plan for the Office is to continue to provide quality legal services to our client which is the State, ensuring that the (3) sections in the office provide high quality legal advice with minimum delay.
It is in the interest of the State to ensure that the office is allowed to operate and carry out its day to day functions and activities with minimal control from outside forces and influences.
If the current staff strength is not maintained or if it is allowed to be depleted, it will seriously affect the quality and quantity of legal services and work output that the State is entitled to expect. The consequence of this is that the State will be forced to brief out commercial matters to private legal firms, which will mean that the costs to the State will swell and at times States’ interests will be compromised.
Further, based on the proposed Gas projects and other major mining and resource projects imminently to come on stream in the near future current staff strength will not perform its responsibility to a required standard.