Wolfers, Edward P --- "Issues and Challenges In Access To Law Via Computers and The Internet In Papua New Guinea - A Consumer's Perspective" [2005] CompLRes 24 (18 November 2005)

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ISSUES AND CHALLENGES IN ACCESS TO LAW VIA COMPUTERS AND THE INTERNET IN PAPUA NEW GUINEA - A CONSUMER’S PERSPECTIVE

(Paper prepared for the 7th Conference on Computerisation of Law via the Internet, University of the South Pacific – Emalus Campus, Port Vila, Vanuatu, 17-19 November 2005)

Edward P. Wolfers[∗]

Introduction

Access to law is a constitutionally guaranteed right of all Papua New Guinea citizens, as it must be for all citizens of countries which purport to respect the rule of law. But realities can be rather different. In practice, access to law is becoming increasingly difficult for many people in Papua New Guinea. Technological development is among the factors rendering the law more remote and difficult to access for most of the population. It is difficult to be sure whether this is merely a temporary phase in the country’s development, or a long-term trend. For those who subscribe to the view that the world is becoming increasingly ‘flat’ - in that barriers, the effects of distance, and differences between countries are decreasing - the former appears to be the case.[1] But for those who perceive a digital divide[2] – between advanced industrial and developing countries, and / or between classes, employed and unemployed, and urban and rural areas within countries – the latter might seem to apply. Indeed, the divide might seem to be growing, at least for the time being.

It might of course be that the first is merely a transitional phase on the way from one to the other – a bump, so to say, or, perhaps more appropriately, a ditch across the road of technological development beyond which lies ‘flatness’. It is difficult to be sure. According to one attempt to develop a technology achievement index (purporting to be a composite measure of technology creation, diffusion of recent and old innovations, and human skills), Papua New Guinea ranks among the majority of countries which are not leaders, potential leaders, dynamic adapters or marginalized in the network age, simply one of the ‘others’[3] – perhaps an also-ran, or even a non-starter.

However, whatever the case, for people whose access to law is currently important, the long-term trend might, in any event, be irrelevant – without effective access now, they are unable to exercise their rights as well as they might if circumstances were different.

A variety of factors affect access to law in every society. These obviously include literacy, or, at least, access to other literate persons, and, where necessary, persons with knowledge of the law. In societies like Papua New Guinea where most legislation is not readily available in print, the availability of energy, communications and appliances like computers can be very important, the more so as the country’s laws are made publicly available only on CD or online.

This short paper is intended to survey some of the difficulties confronting Papua New Guineans seeking access to the laws of the country. If the conclusions it reaches seem critical of the current situation, they are not made without hope that it can be improved.

In fact, plans for improvement exist. Some progress is being made. But, even so, important issues and challenges have still to be successfully addressed.

But, first, a short note on the focus and scope of the discussion which follows.

Focus and scope

A wide variety of sources are relevant to ascertaining the law which applies in particular situations in Papua New Guinea, probably a greater variety than in most other jurisdictions. These include laws made by successive legislatures in British New Guinea (1888-1905), Papua (1906-1942), New Guinea (1921-1942), the Territory of Papua and New Guinea (1951-1975), renamed Papua New Guinea in 1971, and by the Papua New Guinea National Parliament since independence in 1975 – and by successive colonial powers at intervals between 1884 and 1975 when these legislatures did not exist.[4] They also include:

- regulations and notices made under these laws and published in the relevant Government gazettes;

- laws adopted from other jurisdictions (the United Kingdom and Australia) - sometimes by being formally adopted or enacted locally and therefore easy to identify, if not always to find - and sometimes simply by applying in consequence of the former territories’ previous status as parts of the British Empire;

- international declarations and agreements to which reference is made in the Constitution, especially in regard to human rights (s 39(3)), or treaties incorporated into Papua New Guinea law by succession at independence[5] or adoption under s 117;

- judicial decisions, both those made by the National and Supreme Courts of Papua New Guinea as well as their predecessors which heard appeals in respect of cases originating in Papua New Guinea until the country became independent (the latter included the High Court of Australia, which was the highest court of appeal under Australian rule – from 1906 in the former Territory of Papua and World War I in the former Territory of New Guinea), as well as decisions of persuasive authority made elsewhere;

- the reports and debates which can be cited as aids to interpretation under the Constitution s 24[6] - and, in respect of Part XIV – Peace-Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum, the Bougainville Peace Agreement, which ‘shall be interpreted liberally ...’ (Constitution s 278 (3) and (4)); and

-	the underlying law (Constitution s 9 (f) and Sch. 1.2 (1)) which includes both:

. customary law,[7] as well as

. ‘the principles and rules of common law and equity’ which applied in England ‘immediately before Independence Day’ (Constitution, Sch. 2.2).

Then there are:

-

laws made by provincial governments, the National Capital District Commission, and, since June 2005, by the Autonomous Bougainville Government (whose Constitution s 181 (3) refers to a number of international agreements and declarations on human rights, and in s 214 (1) to other documents prepared in the course of its development, as possible aids to interpretation); as well as

-	rules made by local-level governments (or their equivalents) around Papua New Guinea.

The focus and scope of this paper are laws formally passed by successive legislatures. While other sources of law are not dealt with in any detail here, it seems obvious that the issues and challenges involved in ensuring and securing access to laws formally enacted by successive legislatures are likely to apply even more strongly to other sources of law, especially where they are likely to be voluminous (as many court judgments are) or difficult to identify with certainty (as in the case of foreign laws, and foreign judgments regarded as ‘persuasive’ rather than binding)..

Access through literacy and lawyers

Access to law, both literally (the law itself, whether written or unwritten) and metaphorically (the bodies, both institutional and human, which apply the law), is, as previously observed, a basic right of all persons in countries which purport to uphold the rule of law. The principle or objective that the law should be accessible to all citizens is explicitly recognized in the Declaration on Free Access to Law issued by legal information institutes, including the one for the Pacific (PacLII), in 2002-3. The Declaration states that:

Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law.

It goes on to say that the terms of access must be based on the principle that:

Public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge.[8]

The Constitution of the Independent State of Papua New Guinea, which was made more than 25 years previously, contains a number of relevant provisions. They include the National Goal and Directive Principles which call generally for -

all citizens to have an equal opportunity to participate in, and benefit, from the development of’ the country (Constitution, 2. Equality and Participation),

while stating specifically that every citizen is (or should be) entitled –

to have equal access to legal processes and all services, governmental and otherwise, that are required for the fulfillment of his or her real needs and aspirations (Constitution, 2 (4)).

These general statements are subsequently translated into the constitutionally guaranteed right of all citizens (not necessarily other persons present in Papua New Guinea) to –

reasonable access to official documents, subject to the need for such secrecy as is reasonably justifiable in a democratic society (Constitution, s 51 (1)).

The qualification clearly cannot apply to the laws of Papua New Guinea as such (which are nowhere mentioned as possible candidates for exemption from the general rule).

Literacy and / or access to well-qualified legal advice are important considerations when it comes to putting words which proclaim and guarantee citizens’ rights into practice.

As with census and other official statistics, there are grounds for scepticism about the reliability of figures for adult literacy in Papua New Guinea.[9]

Thus, the Human Development Report 2005 shows the adult literacy rate as 57.3% in 2003, a modest increase from 56.6% in 1990 - and one all the more remarkable for the increase in population which has occurred over the same period (the population growth-rate in 1975-2003 was estimated to be 2.4% annually, with the total population reaching 5.7 million in 2003; the over-all growth-rate is expected to decline to 1.8% over the period to 2015). Moreover, literacy among people aged less than 15 was reported to be 68.6%. [10]

However, figures attributed to the United Nations Educational, Scientific and Cultural Organisation (UNESCO) for 2000 show that the adult literacy rate then was higher: 72.3%. Whichever (and whether any) figure is correct, the latter also shows that, over-all literacy appeared to be growing.

Importantly, closer scrutiny of the UNESCO figures reveals that only 29.1% of Papua New Guineans were literate in English in 1990 (fewer than in Tok Pisin). As very few laws are available in languages other than in English (the Constitution and perhaps a handful of others have been translated into Tok Pisin), this suggests that the overwhelming majority of Papua New Guineans do not have even the most basic ability to access the law for themselves – that is, even if the law is available. And of these, a much smaller minority are likely to be able to read what the law says for themselves with reasonable understanding (very few laws, indeed, are available even commercially in summary or simplified forms).[11] Still fewer Papua New Guineans are likely to have the skill required to research the law for themselves in order to discover their rights (again, there are very few guides available commercially or otherwise).

Most Papua New Guineans must, therefore, rely on lawyers to know or, at least, check and tell them what the law says, or else do without knowing.[12] In practice, this means that they must find the time and the funds to go and see someone from the Public Solicitor’s office, or in one of the 121 law firms which belong to the Law Society of Papua New Guinea. Almost two-thirds of these firms are located in Port Moresby (79) – while others, together with branches of the Port Moresby firms, practise in one or another of only 10 other centres (Alotau – 3, Goroka - 8, Kimbe – 2, Lae -7, Madang – 5, Mt Hagen – 10, and Kokopo / Rabaul – 4, with one each in Buka, Kavieng and Kundiawa).[13] Private, professional legal advice in Papua New Guinea is further concentrated by the likelihood that Port Moresby-based firms are likely to have more lawyers as partners or employees than firms in other parts of the country.

Given the high costs of legal representation in Papua New Guinea, where GDP per capita is estimated to be a very questionable US$2,619[1] and the minimum urban and rural wage is K74.40 per fortnight,[15] this means that the overwhelming majority of Papua New Guineans does not have ready access to professional legal advice.[16]

The alternative, which is meant for the indigent, is to rely on the hard-pressed staff of the Public Solicitor’s office, which has personnel based in only 5 centres (Port Moresby, Goroka, Lae, Mt Hagen and Rabaul), from where they go on circuit as funds and pressure of other work allow.

There is neither facilities nor funding for training and employing para-legal personnel.

Changes in the production and availability of laws

Before independence in 1975, it was more or less standard for Government stations (certainly, District [now Provincial] headquarters, generally Sub-District [now District] Offices, and even Patrol Posts) around Papua New Guinea to have bound sets of the laws of the combined Territory of Papua and New Guinea.

The character of the union between the two pre-war territories meant that, for more than a quarter of century after they had been amalgamated for most practical purposes (though formally only on an administrative basis), there were still differences between the laws which applied on either side of the country; these were especially significant in relation to local administration in areas where local government councils had not (yet) been established.[17] Thus, the base-line, so to say, for legal research, two series of five annotated volumes - one set for Papua, and a separate set for New Guinea - containing their respective consolidated and annotated laws at the end of World War II, was not uniform.[18]

However, laws made after the War applied throughout the two former territories (then known as ‘the Territory’). Apart from two early volumes covering the periods 1945-1949 and 1949-1951, these were issued in annual compilations from 1952 to 1974.[19]

The bound volumes of the laws of Papua and New Guinea (then called ‘ordinances’) were notoriously clumsy and difficult to use. The copies of individual laws produced during the year were not much more user-friendly for a reader who had to juggle them to find if a particular law had been amended, and then see how the amendment fitted in with its previous form.

It could be especially difficult to be certain which volume to check for a particular item of legislation (it was necessary to know when it was enacted). It could be even more difficult to be sure if a law had been amended without checking the index of each successive volume of laws since it was first passed. Then there was the challenge, especially great for a person without proper legal training, of integrating amendments into the main law.

By the early 1980s, accessing the current version of a particular law could require checking back over 35 years of annual volumes (sometimes, two volumes of laws a year), plus any individual ordinances produced since the last yearly cumulation. The task was made easier if a copy of J. J. Janousek’s basic, though nonetheless invaluable, reference tool, the Summary Index and tables of all enacted law of the Territory,[20] were at hand. But one still had to know the name of the law to be checked.

From 1945 until 1960, the laws of the Territory of Papua and New Guinea were annotated and printed in Sydney. The work was then transferred to Port Moresby, where it continued until just before independence; the consolidated volume of laws passed in 1974 was the last to be produced until some years after independence.

The laws of Papua New Guinea then became almost completely inaccessible for anyone who did not have ready access to the few Government offices, the National Court registry or the small number of libraries where copies were kept (and where it became increasingly difficult to keep the series up-to-date). This might have given more recent newcomers the somewhat misleading impression that ‘Papua New Guinea has always had a serious problem of access to laws’[2] – not in the sense that copies were scarce, as they usually were, but that they were almost not available at all. It certainly prompted the thought, which has since recurred,[2] whether it might be possible to win a court case in Papua New Guinea not by pleading ignorance of the law - which is clearly not an acceptable defence – but by pleading that the law has, in fact, become unknowable.

Soon after independence, an Australian aid-funded project took up the challenge of revising, consolidating and annotating the entire corpus of laws made in Papua New Guinea (though the need for revision and consolidation was foreseen in the Revision of Laws Act 1973, work did not begin immediately, and the first volume appeared only a number of years later).[2] Notwithstanding the ‘home-grown’ aspirations and character of the Papua New Guinea Constitution, the work of producing and printing the laws was moved back to Sydney.

The system began with a set of loose-leaf binders into which new or amended laws could be inserted as they became available from 1981 on (the first set of additions was dated 1/1/1980). The consolidations eliminated the need to consult prior volumes. Being published in the form of loose-leaves intended, with holes punched on each page to facilitate integration into the folders holding the principal consolidation, each year’s new laws were prepared with the intention to reduce the need to look back.

But, in practice, many recipients failed to integrate the amendments and new laws as they were received. It was, therefore, not at all unusual to see the original binders on shelves, with unopened sheaves of updates lying close by. The outcome was that the law became increasingly difficult to consult.

According to some judges, it was also open to question whether the laws revised by the officials and consultants involved in the project were accurate statements of properly enacted laws, or included changes whose substance and possible consequences extended into areas normally reserved for the legislature, and not permissible to drafters working without appropriate political direction.[2]

When the loose-leaf updates stopped being published (the latest were dated 1/1/1986), many laws became impossible to access unless a would-be reader could get past the security guards and gain permission to consult the collections held in the Legislative Counsel’s office, the Department of Justice, the National Court Registry, or the National Parliament, all of which were, of course, located in Port Moresby, specifically Waigani (even then, I recall members of staff in one of these offices warning me not to rely on their record of a particular law, and recommending I check with the Government agency functionally responsible for reliable information). The best available alternative was to travel out to the University of Papua New Guinea, where a succession of conscientious librarians, who not only collected the laws but produced a series of court judgment citators and other useful reference tools, did their best to ensure that the law could still be known.

The loose-leaf binders were eventually replaced by a series of 12 bound volumes containing exactly the same materials.[25]

Then the publication of laws stopped again. The law became increasingly difficult to access and know (prompting the same private speculation as previously whether a case could be won on the basis that the law could not be known).

In 1998, another Australian aid-funded activity, the Access to Laws Project, stepped into the breach. This led to the provision of a series of ever-more comprehensive interim CDs containing more and more of the body of Papua New Guinea law, together with National and Supreme Court judgments.

By 2001, the CD then made available for the following five years was virtually complete (both literally and metaphorically). For anyone with a computer, this could be a godsend – with some important provisos, centring on the commercial character of the arrangements.

Available for an annual subscription of A$500, which includes quarterly updates (not always frequent enough for citizens who need to comply more rapidly with changing legal requirements), cost is a potentially serious consideration for many potential Papua New Guinean consumers, even comparatively well-paid lawyers – notwithstanding that this price is less than for buyers in other countries.[26]

Moreover, awareness and access can be practical problems. Thus, I have found lawyers with practices outside Port Moresby who do not know of the new system, let alone how to obtain a subscription almost 5 years after it was introduced – even if they do have the money, a computer, access to electricity and the Internet to download updates, which many do not. Similar practical problems apply even within Government, where copies can be widely obtained at no additional cost, while updates appear to be virtually unknown.

An additional problem for at least some users is the inclusion on the CDs of what the scheme’s architect, Val Haynes, has described as a “closing down date’. This means that the CD stops functioning and access is denied at a specified date (for the first few CDs, which contained only selected laws, this was after 12 months; the current expiry date is set after 5 years – due at the end of 2005). The ostensible reason for the inclusion of this device is to ensure that users have ‘the most current statement of the law’, and do not rely on outdated materials.[27]

Just how seriously disruptive this could be was brought sharply home to the author when I found myself overseas (in a country where very few libraries, if any, have any reason to hold copies of the laws of Papua New Guinea) in the middle of some urgent legal research, important to the people with whom I was working, only to find that the period for which my CD was valid had now expired, and nothing I tried – not even changing the date on the computer – could give me access again. So near and yet so far: the CD was still in the computer, but could not be read. The laws made available through the Access to Laws Project had become inaccessible and unknowable again!

The only salvation, available for less than a year before time of writing, is to turn to the PacLII website, where the contents of the CD are available to anyone who has access to a computer, a telephone and, preferably, electricity (this is apart from the difficulties involved in reading and downloading information from PacLII on occasions when particular addresses cannot, for whatever reason, be accessed, as has been the case for quite lengthy periods when this paper was being written, or when the rate of downloading is even slower than usual - it was down from a normal 50+ Kbps to as low as 20+ Kbps in late October apparently because of the pressure on telecommunications equipment in Papua New Guinea as a result of the additional Internet traffic caused by participants in the Pacific Islands Forum then meeting in Port Moresby).

An additional shortcoming as far as most Papua New Guineans are concerned is not only that they do not have the wherewithal to obtain and access their own CD. Libraries around Papua New Guinea do not hold copies, nor do most of them provide the public with access to the Internet (even where they have it themselves). When it comes to the question of resorting to a printed alternative, the latest version of the law still available (and, even then, held by very few libraries) dates back to the Revised Laws which stopped being updated at the beginning of 1986, almost 20 years – and many new laws and amendments – ago.

Access to law via computers and the Internet

Recent technological developments mean that it is no longer necessary to have access to online electric power, telephone connections or computers in order to access information on-line (the e-mail People First Network which extends to remote, rural areas around Solomon Islands operates by short-wave radio, ‘a low-end computer’, and solar energy).[28] As technology develops, so the costs of production are likely to go down.. Both factors have the capacity to help improve access. However, the reality in contemporary Papua New Guinea is that the most readily available form of access to online information generally continues to involve all three – online electricity, a telephone line and a computer. Even so, there are plans being considered to set up a system like the Solomon Islands’ People First Network in Bougainville and other parts of Papua New Guinea.

In a paper dealing with challenges involved in measuring community access to information and communication technologies in Papua New Guinea, a senior Papua New Guinean statistician, writing in a private capacity, has shown that many of the most obvious sources do not yield accurate information, and sometimes none at all.[29] This is true even of what might seem at first sight to be obvious sources. Thus, while it might be the case that almost all computers or, at least the components from which they are assembled or with which they are repaired, are imported, the category under which they are classified in the Government’s import statistics does not refer explicitly to computers, computing equipment or computer parts, but to ‘Machinery and Mechanical Appliances; Electrical Equipment; ...’ etc. (rather unhelpfully, it provides for the separate identification of nuclear reactors, but not computers, etc.).[30] In what might be a warning symbol of the challenges to be met in obtaining other relevant information, the relevant tables have not been available in printed form since 1996, despite (or is it because of?) the support of sophisticated foreign aid-funded activities in the National Statistical Office - perhaps echoing experience in the early 1980s, when the introduction of computers there meant that information previously available was no longer provided (I clearly remember being shown a room overflowing with obviously untouched printouts, and being told that the information was almost certainly, but inaccessibly, there).

However, information can be obtained which casts significant light on the ability of Papua New Guineans to access computers (for the CDs from the Access to Laws Project) or the Internet (for PacLII and other sources). The over-all situation it depicts is, to say the least, mixed.

The figures for literacy, especially in English, the main language used on the Internet and the only such language known to a substantial number of Papua New Guineans, have already been given. That they continue to rise suggests that one key ability required to access the Internet is slowly, but nonetheless really, becoming more common.

Of the main supporting technologies, it appears that the national telecommunications provider, Telikom has the capacity to serve 85,000 telephone lines, of which 62,200 were in use in 2003.[31] The opportunity to access a telephone seems to be concentrated in and around about 25 centres.[3] While less than 1% of the population has direct access to a telephone, roughly half of those who do are concentrated in the National Capital District.[3] Expatriates, people who live or work in major urban centres, and persons in government, business or private sector employment dominate those who do. While each telephone is likely to have multiple users, the socio-economic and employment characteristics of subscribers mean that many of them are, in turn, likely to have access to more than one telephone – for example, one at home and another at work. Together, these two features raise important questions about the utility of statistics showing telephones / head of population.

The mobile telephone network can be used in only a handful of centres (usually in areas where Telikom operates too). Its current size allows for a total of 50,000 subscribers (the quota is almost full).[3] Much the same demographics apply as in the case of Telikom –and, because costs are higher as a result of charging for calls on the basis of time, probably more so.

The relatively small size of both networks,[3] combined with high maintenance costs, especially for the aging Telikom network, and the need for their dispersal around the country (as well as land compensation claims), the costs of using a telephone of any kind in Papua New Guinea tend to be quite high,[3] especially relative to incomes (a very small number of people manage, at quite considerable cost, to communicate via links with other countries).

Telikom itself admits the main network ‘is congested and unreliable’.[3] Outages are not infrequent. Some equipment is long past its use-by date, spare parts are not available, repairs are often no longer a practical option, and both replacements and expansion are needed to meet growing demand (this of a network which was state-of-the-art for a developing country in the early 1970s, and sometimes seemed to provide better services than was available then in parts of Australia). The mobile network is also congested, and in urgent need of expansion (there are frequently times of day during the working week when it can take repeated attempts to get through to another subscriber).

However, there are both Government and private radio networks providing alternative means of communication in Papua New Guinea. Their potential for transmitting information, especially text, has scarcely been tested, certainly not as thoroughly as in the case of the People First Network in Solomon Islands).

According to information provided to the author by the main electricity supplier in Papua New Guinea, PNG Power, a total of 47,519 subscribers located in or close to 32 centres are connected to the main publicly accessible electricity networks.[38] Another source states that this means that 60% of urban households have access to electricity, distributed in such a way that only 6% of residences classified as traditional and makeshift houses are connected as compared with 83% of high-cost houses and 100% of apartments[3] (those who miss out rely on kerosene for lighting, and kerosene stoves or wood for cooking),. All subscribers are subject to the unannounced black-outs and resulting inconvenience which are part of daily life in Papua New Guinea’s towns (although some have access to back-up generators kept on standby for use when the main power system fails).

In addition to the main urban networks provided by PNG Power, there are other sources of electricity around the country, generally limited to small numbers of users, and often available for only a few hours a day. These include both oil-fired and hydroelectric generators which are operated in association with mines, plantations, and other businesses, on Governemt stations, at church centres, or privately – and, of course, such sources as batteries and solar power (the way in which the hills light up at night in the area around Arawa in Central Bougainville shows what can be achieved by people with relevant skills, access to equipment, as well as plentiful water and nearby hills when it comes to hydro-electricity – though experts have described schemes in the area as including a number which are both dangerous and effective).

However, ongoing access is more than a matter of current connections. Cost to the consumer, reliability and sustainability are important considerations. These, as previously noted, raise important issues and challenges for service providers, in particular, including the need to repair, upgrade and expand for the future. As the provision of telecommunications and power generation services are at varying stages of privatisation, these challenges will generally have to be met in future by private service providers, not the state. Insofar as there is a need to change the cultures in the organizations involved, as Telikom in particular admits,[4] competition between alternative providers might help. Education, training and the development of Papua New Guinean management will be critical to success.

Remarkably similar observations apply to computing and access to the Internet.

The main regulator of Papua New Guinea’s radio and telecommunications systems is a Government monopoly, Pangtel, which administers Papua New Guinea’s official gateway to the world (known as Tiare). Its monopoly is firmly enforced; other organizations ready and seeking to provide alternative gateways are actively discouraged from doing so (when one wouldbe provider set up its own satellite system in preparation, it was reported to have been raided by a team of Telikom officials accompanied by members of a Police Mobile Unit [or riot squad], who seized a satellite dish and related equipment).[41]

Although broadband is not currently available in Papua New Guinea, the Government has approved its introduction in principle. It is now on the horizon for early implementation.[42] Meanwhile, the time required to access the Internet and the costs involved are greater than they would otherwise need to be.

Nationwide, there are 5 private Internet service providers (isp), clustered mainly in Port Moresby (one is in Lae; the Papua New Guinea University of Technology is unusual in having been its own isp since 1990).[43] This means that people in other parts of Papua New Guinea often have to use timed telephone-calls and pay trunk charges to dial up their isps. Periodic outages, some announced in advance and others occurring without prior warning, are a factor here too. These include outages caused by events on the World Wide Web as well as events arising from technical, financial and human problems experienced by isps, including problems with the Tiare gateway. The Independent Consumer and Competition Commission is in the process of developing a uniform Code of Practice for all isps.

For people who do not have their own access to an isp, there is also a number of public Internet access centres (PIACs), operated mainly by private businesses (including hotels, isp providers, and stand-alone shop-fronts) , where anyone can go and access the Internet for a fee; there are also schools, universities and some libraries which provide access to particular groups of clients. According to the source previously quoted on issues in measuring access to information and communications technology in Papua New Guinea, access to these centres is ‘very low’, and confined, at most, to 0.4% of the population (but this itself appears to be an upper estimate, based on the number of people who have access in principle, not actual users). [4]

When it comes to computers, equipment can be purchased in a number of urban centres. However, spare parts and even consumables are not always kept locally; they sometimes have to be brought up from Australia, thereby necessitating a wait of several weeks (the same is true of certain forms of technical expertise, which require technicians to travel to Papua New Guinea, usually from Australia too).

The Government has had a National Policy on Information and Communication of Papua New Guinea since late 1993. It is now, by common consent, outdated, and in need of additional work or outright replacement.[45] It is currently being revised and brought up-to-date.[4]

One of the features of this Policy is that communications and information equipment should be standardized across government[4]; this would, obviously, facilitate training, the movement of staff, as well as maintenance and repair.

However, the reality is that standardization has been honoured in the breach. The causes include; price; differing requirements, or (non-)availability of equipment and spare parts at a particular time; the preference foreign aid donors have for providing equipment made in their respective countries; and, in some cases, probably ignorance or indifference.

Other pressing issues requiring ongoing attention for sustainable use of communications and information technology are the training of staff; the timely updating of security and anti-virus programmes; the prompt payment of electricity and telephone bills required to keep systems working (where such services themselves are available); and the need for regular maintenance and the availability of spare parts. While some installations have been quite remarkable successes, the reality is that there are Government (and other) agencies where brand-new equipment has been installed on several occasions in recent years, initially used with enthusiasm, and then regretfully left until it is replaced – sometimes, again and again.

In Solomon Islands, the People First Network project, previously mentioned, appears to be successful in providing rural communities with access to e-mail and people in Honiara with the opportunity to download information from the World Wide Web (thereby creating and additional form of digital divide inside the country, while bridging another to the world outside). But, whether and how it can be sustained over a long period has still to be seen (especially, as computers begin to wear out). A similar project is under consideration for Papua New Guinea’s Autonomous Bougainville Region (again, the availability of ink, diskettes or CDs and other supplies, together with spare parts and service support, are major, potential, though frequently overlooked, concerns; so is affordability of these as well as eventual replacements).

Providing access to e-mail has obvious advantages for people in remote, rural areas. But the World Wide Web has obvious educational and other advantages which have not been widely discussed, at least not in relation to these particular projects.

For one who found himself unexpectedly having to access vast amounts of urgently required, fresh information in order to acquaint himself with issues, options and strategies which have been tried in an area of great national– and human – importance, I have often described the Internet as ‘transforming the possibilities (it doesn’t really matter where you are)’. In a country where bookshops, well-stocked newsagents and libraries are few, funds for purchasing printed materials are severely limited, and it can be difficult even to find out what might be available, the World Wide Web can be an invaluable resource. I have certainly found it to be so in relation to obtaining information about peace processes and peace-building around the world (and in preparing this paper, as the references show).

However, this is probably not the case in other areas of knowledge where fewer relevant materials are available online, at least yet. Then there are the time and costs involved in accessing the Internet and downloading the information found, even when and where electricity and telephone services are available, at least for the time being.

Quality control can also be an important issue (the reliability of sources is not always self-evident).

Finally, there is the challenge posed by the privatization or closing-off of previously points of access to materials on the Internet.

Much is made of the role that the Internet can play in promoting transparency and accountability.[48]

However, it can also effectively disenfranchise, for example when sources previously freely accessible to anyone who found the address required online are put behind passwords or made available only on a fee-for-service basis. This has, in fact, been happening with a number of treaty series, which should, surely, be as freely available as other sources of law. It has, in certain respects, been mirrored by the way in which anyone seeking access to the latest available texts of the laws of Papua New Guinea in recent years has had to purchase the CD of the Access to Laws Project or (until PacLII put most Papua New Guinea Acts online) obtain its contents from someone who has a copy. This has, in turn, been compensated for by the simultaneous production as part of the Access to Laws Project of volumes (by various publishers) of selected laws and regulations, and handbooks on particular aspects or areas of law.[4] It has also led to the production of an increasing number of other introductions and guides, not always cheaply priced, to provide information to businesses and others who need to know how the law applies to the activities in which they are or propose to become engaged.

Conclusion

The Constitution of the Independent State of Papua New Guinea is one of the most conscientiously and comprehensively ‘home-grown’, national constitutions in the world (in terms of its sources of legal authority, the way in which it was made, and the arrangements for which it provides).[50] It is, therefore, somewhat ironic to juxtapose the opening and the final Appendix:

We, the people of Papua New Guinea ...

By authority of our inherent right as ancient, free and independent peoples

... do now establish this sovereign nation ...

And ...

... establish, adopt and give to ourselves this Constitution ...

and

Schedule 5

Adopted Laws of Other Countries.

It is additionally ironic to note that, in addition to containing a number of original innovations (including the precedent-setting combination of an Ombudsman Commission to enforce a Leadership Code), the Constitution adopts and adapts a variety of institutions inherited, imposed, or otherwise transferred from other countries.

The irony is reinforced when it is recalled how a system of laws which was influenced by precedents, then edited and physically produced in Australia, before being returned to Papua New Guinea, and then made generally available via a CD which is largely produced in Australia (while owing a great deal to preparatory work in Papua New Guinea), and broadcast to the world via a website on the Internet located in Vanuatu and supported by Australian aid (again).

As suggested by the preceding discussion of the technological and other issues involved in ensuring and securing access to the laws of Papua New Guinea and the challenges to be met in bringing about improvement, most Papua New Guineans currently find themselves on the wrong side of a new, still widening – but, in principle, bridgeable – digital divide. They include many comparatively well-educated and economically well-off people (especially, those faced with competing pressures on the time required to develop the skills and the funds needed to meet the costs of accessing the Internet for the sake of learning the law, or other purposes).

However, as aspects of the Constitution and the process of publishing the law also show, Papua New Guinea law is now produced, disseminated and implemented in a globalizing environment. The situation in which Papua New Guinea finds itself is, in fact, remarkably like that outlined by one of the key proponents of the idea that the world is ‘flattening’, Thomas L. Friedman, when he observes the emergence since 2000 of a process of convergence of:

A global Web-enabled playing field that allows for multiple forms of collaboration – the sharing of knowledge and work – in real time, without regard to geography, distance, or, in the near future, even language.

As Friedman acknowledges, ‘not everyone has access’ – he says ‘yet’ – to ‘this platform, playing field, but it is open to more people in more places on more days in more ways than anything like it ever before in the history of the world. This’, he says, what he means when states that ‘world has been flattened’ – or, perhaps, more modestly and accurately, is flattening.[51]

In relation to further improving public access to Papua New Guinea law, plans for the future development of the Access to Laws Project hold out the promise of full, up-to-date coverage of all of the laws in force in Papua New Guinea on CD and at the PacLII website, together with a programme to raise public awareness of their availability – and plans to print and distribute copies of important laws around the country.[5]

The history of previous attempts to consolidate and increase the public availability of Papua New Guinea laws, especially the edition of the Revised Laws of Papua New Guinea produced following independence, offer cautionary tales regarding the proper acceptance and utility of some kinds of innovation, perhaps especially in a profession whose members are as concerned with words, rather than technology, and with precedent as lawyers.

But nothing tried, nothing gained.

Continuity can be seen in the reality that sustainability and access remain significant challenges in the difficult circumstances outlined in this paper: of harnessing the most modern technology to the cause of strengthening the rule of law – and thereby Papua New Guinea’s prospects for good governance and sustainable development (which are widely believed to be linked). Meeting these challenges and overcoming them as if they were ditches or bumps on the road is an important key to moving beyond the digital divide. Whether the opportunity costs of making improvements in these areas can be justified, especially when there are alternative ways of improving access to energy, communications and information, including law, is an important question. So is appropriateness to context.

But failure to address the issues and challenges outlined in the paper, not simply as they concern access to law but fully and effectively, will leave Papua New Guinea as one of the ‘others’ in a rapidly globalizing world, where access to law and technology, separately and together, is vital to survival, public welfare, and sustainable, meaningful participation in the fruits of technological and other forms of progress.

Meanwhile, the principle that citizens have the right – and to exercise that right must have access to means – to know the laws under which they live means that alternative ways must be found and pursued to improve access to Papua New Guinea law. There is, therefore, a sound case for resuming publication of, at least, annual cumulations of laws as they are passed – and placing copies in Government offices, libraries and other places where the public can access them around the country (as previously stated, this is, in fact, one of the current aims of the Access to Laws Project). There is a similar case for promoting public awareness, understanding and respect for the law by preparing, publishing and distributing summaries or outlines of laws of special interest and relevance to the general public or particular groups (candidates for such treatment include the Constitution, the Organic Law on Provincial Governments and Local-Level Governments, the Criminal Code, etc.). Attention should also be paid to preparing or encouraging the production of audio-visual materials for radio, television and/or public performance on a similar basis. Government bodies, foreign aid donors and others, including practising lawyers and academics, who profess to be interested in access to law, especially those actively involved in the Access to Laws Project, should be invited and encouraged to extend their previous activities and support into such new areas, at least pending significant progress in relation to the main issues and challenges previously discussed in making Papua New Guinea law more widely available on CD and on online.

A related priority should be to ensure the prompt and timely publication of laws passed by the National Parliament in media which are accessible to legal professionals as well as the public: print, public performance, CD and / or the Internet. Here the Access to Laws project seems to be making good progress in reducing the backlog of laws available on CD and online. One way of making the law available promptly and to a wider public might be to consider options for co-ordinating or piggybacking online access with the District roll-out programme through which the Department of Finance and the Bank of the South Pacific are working together to improve the delivery of their respective services to people in rural areas – so that the laws of Papua New Guinea laws can be more readily accessible to people in towns and rural areas throughout the country.

Thus can the issues and multiple challenges involved in ensuring and securing access by Papua New Guineans to law be addressed - so that the rights of citizens to know the laws under which they live are translated from words into actions. Thus, too, can the transition from previous forms of access to access via computers and the Internet begin and move ahead at least cost, socially and in other ways, and with optimal benefit on all sides – so that the laws of Papua New Guinea can become knowable in principle and known in practice to more of the people to whom they apply.

---

[∗] Professor of Politics, University of Wollongong (NSW, Australia ).

The author is grateful to Professor Don Paterson for kindly agreeing to present this paper on my behalf.

[1] The term is used in this sense and in support of such a perspective in Thomas L. Friedman, The World Is Flat: A Brief History of the Twenty-First Century, New York, 1975.

[2] See David Bolt and Ray Crawford, Digital Divide: Computers and Our Children’s Future, New York, 2000, where the term is used to refer primarily to differences in access to computers and the Internet between different groups of Americans. The term has since come to be widely used to describe differences in access, use and innovation between countries (generally, but not always, advanced industrial countries among the better-off, and developing countries among the others - see, for example, S. Nanthikesan, ‘Trends in Digital Divide’, Harvard Center for Population and Development Studies, Cambridge (Mass.), 2000, at www.hdr.undp.org/docs/publications/background_papers/nanthikesan.doc. Cf. ‘Digital divide’ in Wikipedia at en.wikipedia.org/wiki/Digital_divide, and ‘Global digital divide’, also in Wikipedia at the same address ..._divide.[]

3 M. Desai, S. Fukuda-Parr, C. Johansson, and F. Sagasti, ‘Measuring Technology Achievement of Nations and the Capacity to Participate in the Network Age’, at www.hdr.undp.org/publications/papers.cfm-80k-11 Nov 2005

See also United Nations Development Programme, Human Development Report 2001, New York, pages 48-51.

[4] The laws of the German (1884-1914) and Japanese (1942-1945) administrations are not directly relevant to subsequent Papua New Guinea law, though the former, in particular, certainly influenced administrative arrangements which were given the force of law under Australian rule – which, in turn, shaped the laws and practices which Papua New Guinea inherited at independence (see Edward P. Wolfers, Race Relations and Colonial Rule in Papua New Guinea, Sydney, 1975, passim).

[5] The treaties to which Papua New Guinea succeeded at independence are listed in Papua New Guinea Foreign Policy, the White Paper presented to the National Parliament in 1981, Appendix I.

[6] The issues involved in identifying and making use of these aids are discussed in some detail in A. J. Regan and E. P. Wolfers, ‘Aids to Interpretation of the Constitution –Some Preliminary Thoughts’ Melanesian Journal, 14, 1986, pages 153-169. See also Edward P. Wolfers, ‘Finding the Law In the Pacific Islands: Observations with Special reference to Papua New Guinea and Solomon Islands’, International Journal of Legal Information, 10 (3), 1982, pages 93-101, where the question of availability is also discussed (see page 94).

Regrettably, the only attempt to produce a scholarly, annotated version of the Papua New Guinea Constitution includes references only to the Final Report of the Constitutional Planning Committee (Port Moresby, 1974) and selected court judgments, and not the records of debates or other documents tabled when the pre-Independence House of Assembly and Constituent Assembly were engaged in making the Constitution (see Brian Brunton and Duncan Colquhoun-Kerr, The Annotated Constitution of Papua New Guinea, Waigani, 1984).

[7] Some key printed sources of information about customary law are cited in Edward P. Wolfers, ‘Finding the Law in the Pacific Islands’, op. cit., page 96, fn 11, though the list is now somewhat dated.

[8] www.worldlii.org/worldlii/declaration/

If one might be forgiven a critical note, it is hard to see how a service provided for free could be other than non-profit (unless it is offered, corruptly or otherwise, for credit against something else). .

[9] See, for example, the discrepancies between significant aspects of the 1980 and 1990 national censuses identified by Tim Curtin, cited in Sean Dorney, ‘Papua New Guinea – What Can Australia Do (Successfully)?’, Menzies Research Centre, Canberra, 2005, pages 10-12.

For a detailed discussion of the reliability of the first (sample) national census, see Edward P. Wolfers, ‘On Coming to One’s Census’, in W. Petersen, ed., Readings in Population, Macmillan Company, New York, 1972, pp. 77-85

[10] United Nations Development Programme, New York, 2005, passim.

[11] ‘Papua New Guinea’, at www.accu.or.jp/litdbase/stats/png/

[12] It seems somehow symbolic of the utility of the Internet in posting or accessing certain kinds of information about Papua New Guinea that an address described as ‘Helplinelaw.com – Legal Solutions ..... Worldwide!’, found by Googling ‘Lawyers in Papua New Guinea’, yielded no law firms or lawyers anywhere in the country (www.helplinelaw.com/lawyers/papua%20new%guine/port%20moresby on 14/11/2005). The information used in this paper concerning private lawyers and law firms came from the Papua New Guinea Law Society – by fax.

[13] For what it is worth, the list of lawyers in Papua New Guinea posted online by the British High Commission in Port Moresby (at www.britishhighcommission.gov.uk/servket/Front?pagename+OpenMarket/Xce... 14/11/2005) lists a further location, Wewak – 1 firm.

[14] Human Development Report 2005, op. cit., page 268.

See also Timothy Curtin cited in Sean Dorney, op .cit.

[15] The incomes of many Papua New Guineans in paid employment or cash-cropping are, in practice, very, very much lower.

[16] As of September 2005, K1 was roughly equivalent to US$0.3265 and A$0.4228.

[17] Edward P. Wolfers, Race Relations and Colonial Rule in Papua New Guinea, op. cit.,

[18] The Laws of the Territory of New Guinea 1921-1945 (Annotated) in force on 29th October 1945 ..., Sydney, 1947, and The Laws of the Territory of Papua 1888-1945 (Annotated) ..., Sydney 1948 respectively. Both series were actually published between 1947 and 1952.

[19] Laws of the Territory of Papua and New Guinea (Annotated), Sydney.

Following passage of the National Identity Act 1971, the series from 1971 on was renamed Laws of Papua New Guinea (Annotated).

According to the Australian National University Library Catalogue (at //library.anu.edu.au/search/tLaws+of+Papua+New=Guinea/tlaws+of=papua ....,), Volume 2 for 1956 was never published.

[20] Port Moresby, 1960, et seq.

[21] C. E. P. Val Haynes, ‘Computerising the Law of Papua New Guinea’ at www.auslii.edu.au/au/other/Compl.Res/1992/index.html

[22] The thought certainly arose when I was pondering the conclusions I drew when preparing ‘Finding the Law in the Pacific Islands ...’, op. cit.

[23] C. J. Lynch, ‘Preface’, in Revised Edition of the Laws of Papua New Guinea, Sydney, Volume 1, page 5.

[24] C. E. P. Val Haynes, op. cit., page 1 contains some additional background and details, page 3.

[25] As the binders, contents and all, were often discarded when the bound volumes were received, even the history of this revision and consolidation is difficult to recall. C. E. P. Val Haynes, ibid., pages 2-3 contains additional background and details.

[26] Having the CDs produced and sold by a private business also raises questions concerning the principle that the law ‘should be accessible to all on a non-profit basis and free of charge’ (Declaration on Free Access to Law, op. cit.).

[27] C. E. P Val Haynes, ibid., page 5.

[28] www.peoplefirst.net.sb

[29] Willie Lahari, ‘The Challenges of Measuring Community Access to Information and Communication Technologies (ICT) in Papua New Guinea’, November 2004 (at www.itu.int.ITU-D/ict/mexico04/doc/doc/30_png_e.pdf).

[30] Papua New Guinea, National Statistical Office, International Trade Statistics, Imports – 1996, page 8.

[31] Jackson Rannells and Elasallah Matatier, PNG Fact Book, South Melbourne (Vic.), (3rd edn) 2005, page 217.

However, a quick, unscientific attempt to estimate the number of telephone numbers by sampling the number of entries per page in the Papua New Guinea Telephone Directory, White Pages 2005 suggests a figure closer to roughly 35,000 + silent numbers.

[32] ‘An Overview of the Telikom National Communications Network’, at www.telikompng.com.pg/network.aspx, page 1.

[33] Jackson Rannells and Elasallah Matatier, op. cit., page 217.

[34] www.pacificmobile.com.pg.news.hotml, 14/11/2005.

[35] Willie Lahari, op. cit., page 3 estimates the total number of subscribers on both networks at 285,000, very much more than the figures previously quote suggest – without explaining how this conclusion is reached.

[36] www.telikom.com.pg/AboutUs.aspx, 9/1/2005.

[37] Telikom Papua New Guinea, ‘The Way Forward’, PNG Business Council Presentation, 8 November 2005 (Powerpoint Presentation).

A report, purporting to express a private sector perspective, makes the point even more strongly, describing Telikom as ‘one of the most inefficient telecommunications providers in the world’, with a level of service which is ‘poor and deteriorating’ (The Enterprise Research Institute, Papua New Guinea – A Private Sector Assessment: The Realities of Crisis, prepared for the Asian Development Bank, June 2003, page 55).

[38] The author is grateful to Mal Carter of PNG Power for providing this information.

[39] The Enterprise Research Institute, op. cit., page 56.

[40] See Telikom Papua New Guinea, ‘The Way Forward’, op. cit.

[41] ‘PNG Regulators Raid Port Moresby Telecom’, Papua New Guinea Post-Courier, 20 October 2005; and ‘Daltron raid yields illegal satellite unit’ at www.thenational.com.pg/1020/nation25.htm, 15/11/2005.

[42] Henao Iduhu, ‘Country Report in Papua New Guinea’, Sub-regional Conference on ICT for development in Pacific Island Developing Countries, Suva (Fiji), 2004, page 4.

[43] ‘Papua New Guinea Restrictive telecommunications policies’, at www.connected.org/keyIssues/pg1.html, 14/11/2005.

For the draft Code of Practice, see Independent Consumer and Commission, Internet Service Provider’s Code of Practice (Draft), 26 August 2005.

[44] Willie Lahari, op. cit., pages 3-4

[45] See, for example, United Nations Development Program, e-Pasifika Report: Papua New Guinea National ICT Workshop, Port Moresby, 2004, page 2., at www.undp.org.pg

[46] Henao Iduhu, op. cit., page 2.

[47] page 44.

[48] See, for example, the following Background Papers prepared for the United Nations Development Programme, Human Development Reportt, New York: 2001. ‘People’s Initiatives to Use IT for development’ 2002/13. Enrique Peruzotti and Catalina Smulovitz, ‘Civil society, the media and internet as tools for creating accountability to poor and disadvantaged groups’ 2002/18. Katarina Subasic, ‘Role of the Media and the Internet as Tools for Creating Accountability to Poor and Disadvantaged Groups’

[49] See, for example the following collections:

Papua New Guinea, Selected Laws of Papua New Guinea, Sydney 2000, which reprints the Constituion and 44 other laws, including only one Organic Law;

Papua New Guinea, Selected Regulations of Papua New Guinea, Sydney 2000;

the law and commentary contained in:

Donald R. C. Chalmers et al., Criminal Law and Practice of Papua New Guinea, Sydney, 2001; and

the following scholarly works:

Eric Kwa, Constitutional Law of Papua New Guinea, Sydney, 2001

H. A. Amankwah et al., Land Law in Papua New Guinea, Sydney, 2001

Eric Kwa (ed.), Natural Resources Law of Papua New Guinea, Sydney 2001.

[50] Edward P. Wolfers, ‘Aspects of Political Culture and Institution-Building in Melanesia: The Constitutional Planning Committee in Papua New Guinea and the Special Committee on Provincial Government in Solomon Islands’, in The Politics of Evolving Cultures in the Pacific Islands, Institute for Polynesian Studies, Brigham Young University - Hawaii Campus, Laie, 1982, pp. 280-303

[51] Thomas L. Friedman, op. cit., pages 176-7.

[52] Roslyn Hopping, Office of the Legislative Counsel and Access to Laws Project, spersonal communication.