PNG's response to COVID-19

In brief 17 min read

The World Health Organization declared the coronavirus disease 2019, or 'COVID-19', a global pandemic on 11 March 2020. As of 16 April 2020, most countries around the world have reported cases of COVID-19, with Papua New Guinea only reporting two cases so far. However, there are concerns that more cases of the virus could emerge in PNG, as a result of air and ship travel, and also through land border crossings with Indonesia's Papua province. PNG's Government has responded to COVID-19 with a range of measures designed to control and manage the possible spread of the virus.

What Constitutional powers does the Government have to deal with national emergencies?

The Head of State (ie the Governor-General) may declare a national emergency if the National Executive Council (the NEC) is of the opinion that an emergency exists and that it is necessary for powers under Part X (Emergency Powers) of the Constitution to be made available.

An 'emergency' may include pestilence or infectious disease, or any occurrence that would endanger the public on an extensive scale.¹

PNG's Constitution further provides that:

• a declaration of national emergency expires 21 days after its making, unless revoked earlier or extended by Parliament (for periods of up to two months);² and
• where a national emergency is declared, Parliament must be called to sit not more than 15 days after commencement of the national emergency, and thereafter at least every two months, to consider:
  • the reasons for the declaration of national emergency;
  • any Emergency Regulations made during that time; and
  • a report on the operation of such laws.³

Where a national emergency is declared:

• Parliament may make Emergency Acts of Parliament;⁴ and
• the Head of State (on the advice of the NEC) may make Emergency Regulations,⁵

for dealing with the emergency.

Through the Health Minister, the Government also has the power to make declarations under the Quarantine Act 1953 and the Public Health Act 1973. Such declarations enliven various powers, including to restrict movement to, from or within PNG. Penalty provisions under these Acts were significantly strengthened⁶ by Parliament on 2 April 2020.

Two cases in PNG to date

As of 16 April 2020, there have been two reported cases of COVID-19 in PNG. These cases were:

• a mine worker in Bulolo district (near Lae) in Morobe Province, who had travelled through Spain shortly before arriving in PNG; and
• a woman in Kokopo district of East New Britain, who is not reported to have travelled internationally recently.

Government response to date

Emergency Regulation

On 26 March 2020, the Governor-General, acting on the advice of the NEC, declared the existence of a national emergency, with effect from 23 March 2020.

Under the same declaration, the Governor-General recalled Parliament to sit on 2 April 2020. Also on 23 March 2020, the Governor-General made the Emergency (General Powers) (COVID-19) Regulation 2020⁷ (the COVID-19 Emergency Regulation). The regulation was similarly deemed to have taken effect from 23 March 2020. This COVID-19 Emergency Regulation is discussed further below.

The session of Parliament, as called by the Governor-General, was held on 2 April 2020. During this session, the Prime Minister presented a report on the declaration of a national emergency and requested that Parliament approve the extension of the national emergency for a further two months.⁸ Parliament approved the extension by an absolute majority. For the state of emergency to extend beyond these further two months, Parliament must meet again and declare such an extension.

Emergency Acts

During its emergency meeting on 2 April 2020, Parliament enacted the following Emergency Acts to deal with COVID-19:

• the Emergency (General Powers) (COVID-19) Act 2020; and
• the Emergency (Defence Force) (COVID-19) Act 2020.

These Acts are expected to commence operation soon.

Emergency Controller

The COVID-19 Emergency Regulation created the position of Emergency Controller.⁹ In accordance with this regulation, David Manning, the Commissioner for the Royal PNG Constabulary, was appointed¹⁰ the Emergency Controller on 26 March 2020.

The Emergency Controller has broad powers under the COVID-19 Emergency Regulation, including to:

• issue emergency orders;
• restrict, or issue directions for, the movement of persons;
• regulate business activities; and
• regulate all modes of transportation.

Generally, the Emergency Controller also has the power to issue any other directions reasonably necessary to deal with the COVID-19 national emergency, and enable the implementation of all measures necessary and practical to manage the spread of COVID-19 and its eradication from PNG.

The Emergency Controller may appoint, and confer powers on, an authorised officer through a notice in the National Gazette. This power of delegation is wide, allowing the Emergency Controller to delegate all their powers except the power to delegate.

Once commenced, the Emergency (General Powers) (COVID-19) Act will repeal the COVID-19 Emergency Regulation and replicate many of its provisions.

A COVID-19 National Operations Centre (NOC-19) has been created. NOC-19 has a helpful website,¹¹ which includes copies of the Emergency Orders issued to date (discussed below) and other PNG COVID-19 updates.

National Emergency Orders issued by the Emergency Controller

Overview

The Emergency Controller has already introduced a broad range of Emergency Orders to combat the spread of COVID-19, including restrictions on social interaction and business, and tighter border controls. For example, the Emergency Controller has essentially banned¹² international visitors to the country arriving by plane, including 'fly-in fly-out' (FIFO) workers. Compared with other provinces, more onerous restrictions apply to:

• provinces neighbouring Indonesia (Western Province and West Sepik Province), plus nearby East Sepik Province; and
• any region or province with a confirmed case of COVID-19 (currently only East New Britain).

Some of the Emergency Orders appear to be internally inconsistent, and some refer to schedules that are missing. We expect that this results from the expedited introduction of these instruments in response to the emergency, and that updated versions of the orders will be made available in due course.

International border control

The Emergency Controller has tightened international border controls in response to the COVID-19 outbreak. Key measures that have been introduced include:

• a general prohibition¹³ on passengers boarding aircraft or vessels bound for PNG, or entering PNG, unless that person is approved to travel to PNG:
  • under Schedule 2 of Emergency Order No. 7, which we understand to include health workers, other COVID-19 responders, personnel of aircraft and ships and military and police personnel; or
  • by written exemption of the Emergency Controller;
• a requirement for all people who enter PNG to self-isolate for a period of 14 days;¹⁴ and
• declarations¹⁵ requiring:
  • Port Moresby's Jacksons International Airport to be the first port of entry for all aircraft travelling into PNG; and
  • Motukea in Port Moresby, or ports operated by PNG Ports in Morobe Province and Madang Province, to be the first ports of entry for all vessels travelling into PNG.

Rabaul was also designated as a permissible port of first entry for vessels; however, this has been suspended as a result of the additional restrictions currently applicable to East New Britain.¹⁶

We understand that employees of a number of resource companies have now been approved to enter PNG. We presume these employees are FIFO workers on rotation who will be subject to the requirement to self-isolate for 14 days after entering PNG. This requirement will be difficult to implement in practice for FIFO workers, as many will be in the country on rotation for shift work.

Domestic border control

The Emergency Controller has introduced domestic border control restrictions at the provincial level, through National Emergency Order No. 7. This order prohibits people travelling to or from Western Province or West Sepik Province (ie PNG's two provinces bordering Indonesia) or the adjoining East Sepik Province. Only people:

• exempted in Schedule 5 of the National Emergency Order No. 7;
• authorised by the Emergency Controller; or
• holding a travel pass,

may move to or from these provinces.¹⁷

Additional restrictions apply to any province or region in PNG with a confirmed case of COVID-19. We understand that, as of 16 April 2020, only East New Britain falls within this category. These additional restrictions include:

• a prohibition on travel to or from the relevant province or region, unless:
  • exempted in Schedule 8 of the National Emergency Order No. 7;
  • authorised by the Emergency Controller;¹⁸ and
• a nighttime curfew (subject to certain exemptions for people such as medical personnel and flight crews);
• a prohibition on all forms of public gathering, but excluding markets, hotels, restaurants and shops;
• a prohibition on gatherings of more than four people in public places; and
• a ban on alcohol sales and public transport.¹⁹

The Emergency Controller has also restricted the movement of all cargo to Western Province, West Sepik and East New Britain, being a province with a confirmed case of COVID-19. The orders refer to lists of exempted cargo.²⁰ It is unclear why the Emergency Controller has imposed a general prohibition on the movement of all cargo to these areas, with exemptions, rather than prohibiting the movement of specific items that the Emergency Controller thinks necessary to control. Interestingly, the orders controlling the movement of cargo do not ban or restrict the movement of cargo from the above areas,

Following an initial ban on all domestic travel, domestic flights to and from domestic airports within PNG are now permitted,²¹ except for travel to or from Western Province, West Sepik, East Sepik or East New Britain Provinces, which requires special authorisation. We understand that flights to and from, among other places, Port Moresby, Lae, Mount Hagen and Madang have resumed. Flights to Rabaul were also set to resume but have been affected by the current prohibition on travel to or from East New Britain (discussed above).

These restrictions on the movement of people and cargo have already begun to have a significant impact on business operations in PNG, particularly regarding the movement of agricultural products and employees who would normally be required to travel overseas or between provinces for business purposes. We understand that the Business Council of PNG and the various Chambers of Commerce around the country, along with peak representative bodies, have been working with the office of the Emergency Controller in an attempt to minimise disruption to business.

Restrictions on social interaction

The Emergency Controller has imposed restrictions on social interaction in order to combat the spread of COVID-19. There is currently a ban²² on all gatherings of 100 people or more, and the Emergency Controller may impose further measures to control overcrowding and social distancing.

The Ministry of Education has also suspended school classes until 24 April 2020, being the end of Term 1, with classes due to resume on 27 April 2020.²³

Restrictions on the sale of personal protective equipment, liquor

The Emergency Controller has ordered²⁴ that listed personal protective equipment (PPE) within PNG may only be sold to and purchased by the Emergency Controller. This PPE includes surgical masks, face shields, gloves, goggles and gowns. Through a separate order,²⁵ the Emergency Controller effectively prohibited the sale of liquor from small bottle shops for the duration of the emergency.

Roadblocks, vehicle inspections and seizure of 'declared goods'

On 10 April 2020, the Emergency Controller issued Emergency Order No. 14, allowing authorised officers to seize designated goods during roadblocks and searches of vehicles. 'Designated goods' include betel nut and other perishable goods that the Emergency Controller may declare from time to time. Authorised officers are also empowered to seize, for the duration of the state of emergency, vehicles suspected of transporting designated goods or people in contravention of prevailing travel restrictions.

Provincial administrators are authorised officers,²⁶ and can impose restrictions on movement in their provinces, including roadblocks, curfews and fines.²⁷ However, such restrictions are subject to the approval of the Emergency Controller.

Closures of particular venues

All nightclubs, gambling venues (including pokies bars), sporting venues and spectator venues were directed to close from 23 March 2020.²⁸ However, alcohol may continue to be sold on licensed premises such as at hotels and restaurants and at supermarkets and wholesalers.²⁹ Any alcohol sold must only be consumed on the premises. We think this requirement only extends to licensed premises such as hotels and restaurants where the public consumption of alcohol is authorised.

Some businesses required to operate

A number of businesses deemed to be 'essential services' are required to continue to operate during the national emergency under the National Emergency Order No. 2. These include banks, financial services providers, grocery stores, supermarkets, manufacturers and fuel stations.

All other service providers that continue to operate during the period of the national emergency are required to adopt and implement safe work practices, which may include, where necessary, limiting the number of employees in the workplace and/or adopting alternative work arrangements.

Essential public utility services such as electricity, water, sewerage and garbage, post and telecommunications will also continue to be provided during the national emergency.

Actions of the Health Minister

On 16 March 2020, Health Minister Jelta Wong issued a declaration³⁰ that:

• COVID-19 is a 'quarantinable disease' under section 11 of the Quarantine Act; and
• COVID-19 is an 'infectious disease' under s15 of the Public Health Act.

The Health Minister has also announced a number of emergency actions under the Quarantine Act. Most of these actions have been superseded by Emergency Orders, except for the following, which remain in place:

• a ban on cruise ships or yachts carrying 15 or more persons entering any port in PNG until 15 May 2020; and
• the following countries were proclaimed places infected with a quarantinable disease (COVID-19), and travel to or from these countries is currently prohibited:
  • People's Republic of China;
  • Republic of Korea (South Korea);
  • Islamic Republic of Iran;
  • the countries of the European Union; and
  • the United

We understand that these restrictions will remain in place until further notice from the Government.

Can I seek an exemption for my business from the cargo transport ban?

Yes.

There is currently a general ban on the movement of certain cargo to certain provinces, as discussed above.³¹

Where a business considers that it will be negatively impacted by this restriction, it can apply to the Emergency Controller for an exemption. See below for contact details.

Can I seek an exemption for my business from the travel ban?

Yes.

For a person to travel to Western Province, West Sepik or East Sepik Province, or a province with a confirmed case of COVID-19 (currently only East New Britain), the person must be:

• listed in Schedules 5 or 8 of Emergency Order No. 7; or
• authorised in writing by the Emergency Controller.

For flights between provinces other than Western Province, West Sepik, East Sepik Province or East New Britain, there is currently no general travel ban in place. However, any domestic flights may only occur:

• between airports listed in Schedule 7 to Emergency Order No. 7; or
• where otherwise specifically authorised in writing by the Emergency Controller.

Travel by foot, vehicle or vessel between provinces other than Western Province, West Sepik, East Sepik Province or East New Britain is not restricted.³²

We have employees currently located outside PNG. Can they fly to PNG?

Generally not. Until the expiration of the national emergency, persons cannot travel into PNG unless approved:

• under Schedule 2 of National Emergency Order No. 7, which we understand to include health workers, other COVID-19 responders, personnel of aircraft and ships and military and police personnel, and certain organisations and companies and their personnel; or
• by written exemption of the Emergency Controller.³³

If travel is approved, the first port of call for relevant persons will need to be one of those prescribed by the Emergency Controller (which include Jacksons International Airport in Port Moresby).

Anyone entering PNG who is not an exempt person must enter and remain in a designated quarantine facility for 14 days beginning on the date of their arrival in PNG.³⁴

We have employees currently located in PNG. Can they fly to our project site?

This depends on where the project site is located.

For provinces other than Western Province, West Sepik, East Sepik and East New Britain Provinces, flights between listed domestic³⁵ airports are permitted. The Emergency Controller may also provide ad hoc written authorisation for other domestic flights.³⁶

For flights to Western Province, West Sepik, East Sepik or East New Britain Provinces, the person must be:

• listed in Schedules 5 or 8 of Emergency Order No. 7; or
• authorised in writing by the Emergency Controller.

How do I seek an exemption or authorisation?

If you would like to seek a written exemption from the Emergency Controller or an authorisation under an Emergency Order, we suggest:

• submitting a request to NOC-19 Office at Morauta Haus, Waigani, telephone +675 1800 101 or +675 1800 200; or
• contacting NOC-19 through its website https://covid19.info.gov.pg/

Are there limitations on the Government's powers?

Although very broad, the powers of the Government during a national emergency are not unlimited.

The PNG Constitution provides that an Emergency Law (being an Emergency Act or Emergency Regulation) may make provision for the peace, order and good government of the country to the extent reasonably required for achieving its purpose.

Under the Emergency Regulations and the Emergency Act, the power of the Emergency Controller to deal with the national emergency is limited to taking such action as is necessary to:

• prevent the spreading of COVID-19;
• control and eradicate the danger of an outbreak of COVID-19,
• enable testing, diagnosis, and treatment of COVID-19; and
• mitigate the impact of an outbreak.

The PNG Constitution sets out certain basic rights for individuals. As described in the table at the end of this Insight, only some of these rights may be altered or infringed upon by Emergency Acts or Emergency Regulations.

The Constitution also provides for the making of Emergency Orders. Emergency Orders are not Emergency Laws. It is unclear the extent to which the Constitution permits Emergency Orders (compared with Emergency Laws) to alter, or infringe upon, basic rights of individuals.

The Constitution provides that only Emergency Laws may alter wholly or partly any Organic Law or any other law to the extent reasonably necessary to deal with the emergency concerned and with matters arising out of it. Emergency Orders, however, cannot alter Organic Law or other laws.

Opposition leader Belden Namah recently:

• emphasised the need for the Emergency Controller to act within the scope of his authority as granted by Parliament, by ensuring that Emergency Orders are consistent with the Emergency Laws; and
• raised concerns that the Emergency Controller's powers might extend beyond the scope permitted under the Constitution.³⁷

Under the Quarantine Act, the power of the Government to deal with an epidemic is limited to measures 'necessary to control and eradicate the epidemic, or to remove the danger of the epidemic, by quarantine measures or measures incidental to quarantine'.³⁸

Furthermore, where an emergency has arisen that requires action to be taken that is not authorised under the Quarantine Act, the Health Minister may take such quarantine measures that are necessary or desirable for the diagnosis, prevention and treatment of a quarantinable disease.³⁹ Any such action may only be taken with the advice of the Emergency Controller.

Can I be penalised for not complying with an order made under these Emergency Orders?

Yes.

Penalties for contravening Emergency Orders made by the Emergency Controller include fines of up to K50,000 for individuals and K500,000 for corporations.

Similar penalties apply for:

• attempting to obstruct or prevent an authorised officer from performing a duty under the Emergency Regulation;
• refusing to provide information, or giving false information, to the Emergency Controller; or
• impersonating the Emergency Controller.

Where a person returns a positive test for COVID-19, penalties for knowingly and intentionally contravening the Emergency Regulation, or directions or orders made under it, include a fine of up to K100,000.00 or imprisonment for up to 10 years. Where a person contravenes this requirement, and this results in the infection or death of another person, that person commits a criminal offence and may be liable to life imprisonment.

There are also offences associated with contravening provisions of the Quarantine Act, as well as offences associated with breaking quarantine, which can attract both fines and/or imprisonment. Generally, it is an offence not to comply with emergency action taken under the Quarantine Act and it is an offence to try to prevent others from taking such action.

Under the Public Health Act, there are also offences associated with failing to abide by restrictions on the movement of infected persons.

Parliament has significantly strengthened the penalty provisions under these two Acts since the declaration of the national emergency.

Constitutional rights that Emergency Acts and Emergency Regulations may alter