Personal Properties Securities Act (the PPSA): The PPSA commenced operations on 4 May 2016, with the Personal Property Security Regulations taking effect the day after. The PPSA provided for a six-month transitional period, now expired, which allowed for security holders to register all pre-existing securities in order to maintain the priority of those securities. Security interests arising on and from 4 May 2016, that have not yet been registered, must be registered on the online Personal Property Securities Register (PPSR) to best protect that interest's priority position. The Hire Purchase Act and the Instruments Act have now been repealed, following the PPSA's commencement. All instruments and transactions formerly registered and registrable under both Acts, as well as under Part XIII of the Companies Act, should now be registered on the PPSR under the PPSA.
Conservation and Environment Protection Authority Act: The Conservation and Environment Protection Authority (Environment Management Fees) Regulation 2015 (the CEPA Regulation), commenced operation on 3 December 2015 and introduced a range of new fees that may be imposed by the Conservation and Environment Protection Authority (CEPA), and which are all classed as Environment Management fees. With the introduction of the CEPA Regulation, CEPA is now moving away from fixed fees in favour of fees set annually on a permit / project basis, calculated by reference to the proportion of CEPA's overall cost and time in administering the permit or project.
Environment (Amendment) Act: The substantive amendments to the Environment Act 1992, that were to be introduced by the Environment (Amendment) Act 2014, and which relate to the permitting process and the classification of activities, have not yet commenced. Timing around the introduction of these amendments is uncertain, although the new CEPA regulations, concerning fees and the reclassification of activities, has already commenced.
Climate Change (Management) Act 2016: This Act came into operation on 1 January 2016 and put in place an overarching climate change policy and legal framework. It sets the scene for the promulgation of regulations that will introduce various monitoring, reporting and record-keeping requirements for individuals and businesses involved in certain sectors of the PNG economy deemed to be 'regulated sectors' under the Act. The Act established the Climate Change Development Authority (CCDA), as well as its functions and powers. The Act contains a list of sectors that are deemed to 'regulated sectors' for the Act's purposes. The list of sectors may be amended by Regulation but, for the time being, includes the following: electricity generation; petroleum, energy and national gas production, refining and distribution; minerals exploration, extractions, production and refining. The Act contains requirements for the preparation of 'mitigation plans' and 'adaptation plans' by companies involved in regulated industries and provides that regulations may be made to introduce fuel standards, building standards and other development standards for individuals and companies to comply with before undertaking a number of identified developments. Such developments may include civil works, mining (both land based and seabed mining operations), oil and gas (both land based and seabed extraction operations) and forestry.
United Nations Paris Agreement (Implementation) Act: This Act was passed by Parliament in August 2016 to give the force of law in PNG to the agreement made and adopted by the Conference of Parties to the United Nations Framework Convention on Climate Change in their 21st session in 2015 in Paris. The Act's provisions will have legal effect in PNG following commencement of the Paris Agreement. The Paris Agreement Act must be read in conjunction with the Climate Change Act, as the CCDA is the government agency that will be tasked with implementing the Paris Agreement Act. The Act was certified on 28 October 2016 but has not yet commenced operation.
Kumul Structure Legislation: In June 2015, the PNG Parliament passed the following Acts aimed at reorganising and consolidating its interests in State-owned entities and holdings in existing and future mining and oil and gas projects:
- Independent Public Business Corporation of Papua New Guinea (Kumul Consolidated Holdings) (Amendment) Act 2015
- Kumul Minerals Holdings Authorisation Act 2015
- Kumul Petroleum Holdings Authorisation Act 2015
- Oil and Gas (Amendment) Act 2015.
These have now all commenced operation. Parliament has passed the following laws:
- Constitutional Amendment No. 44 (Papua New Guinea's ownership of Hydrocarbons and Minerals and the Commercialisation of Papua New Guinea's Business) Law 2016 (the Constitutional Amendment)
- Organic Law on Papua New Guinea's ownership of Hydrocarbons and Minerals and the Commercialisation of Papua New Guinea's Business (the Organic Law)
- Organic Law on the Sovereign Wealth Fund 2016 (the SWF Organic Law).
Constitutional Amendment No. 44 (Papua New Guinea's ownership of Hydrocarbons and Minerals and the Commercialisation of Papua New Guinea's Business) Law 2016
This Amendment has added a new section to PNG's Constitution that provides that 'hydrocarbons and minerals in their natural state are, and always have been, the property of Papua New Guinea'.
This is confirmation of the present legal position under the Mining Act 1992 and the Oil and Gas Act 1998 but elevated to Constitutional status.
The Amendment appears to be a response by the PNG Government to provide a higher level of certainty around the question of resource ownership and to confirm the existing law. This follows calls from some quarters for the ownership of PNG's resources to be vested in landowners – calls that have, to varying degrees, unsettled investors.
The amendments also provide for the creation of Organic Laws that may make further provision for:
- PNG's interests in hydrocarbons and minerals, including the development of, disposal of and dealing with the consolidation and commercialisation of those interests; and
- PNG's business activities and interests, and may provide for the development of, disposal of and dealing with the consolidation and commercialisation of those interests.
Organic Law on Papua New Guinea's ownership of Hydrocarbons and Minerals and the Commercialisation of Papua New Guinea's Business
This Organic Law sets out the structure of what are called the 'Kumul Companies' through which the Government will be reorganising ownership of its interests in mining and petroleum projects, as well as its ownership of State-owned entities.
It provides for the framework in which the Kumul Companies will be established and operate and make distributions, as well as around their management and corporate governance. There are provisions to the effect that the Kumul Companies are not to be regarded as the State – similar to provisions in the Kumul Minerals Holdings Authorisation Act 2015 for Kumul Mineral Holdings Limited and the Kumul Petroleum Holdings Authorisation Act 2015 for Kumul Petroleum Holdings Limited.
The Organic Law also contains open-ended non-prescriptive and non-specific provisions about the State's entitlement to participate in petroleum and mining projects, through nominated Kumul Companies. Provision is made for further Acts to give effect to these general provisions, including, if relevant, to the means by which the State's participation entitlements are exercised, setting out the terms on which costs may be reimbursed and the terms of ongoing participation. It is not clear whether this is intended to consolidate and confirm current arrangements and processes by which the State participates in projects, or it signals an intention for changes to come, perhaps following completion of, for example, the Mining Act and tax reviews.
Organic Law on the Sovereign Wealth Fund 2016
This Law was passed by Parliament on 30 July 2015 and certified on 20 January 2016. It will establish a Sovereign Wealth Fund (the Fund) together with a Board to manage it. The Board is a body corporate. The Fund comprises two distinct sub-funds called the Stabilisation Fund and the Savings Fund. The Fund's objectives are macro-economic stabilisation and inter-generational equity. The Minister determines the investment mandate, subject to the Law. Investments are only to be in foreign assets, and the Fund may not be used as collateral for borrowing or otherwise encumbered. Board members are appointed by a committee comprising the PM, the Opposition Leader, the Governor of the BPNG, the Auditor General and the President of the PNG Chamber of Commerce and Industry. Withdrawals from the Stabilisation Fund must be made through the National Budget, to smooth average five-year mining and petroleum receipts.
Sections of the Organic Law that deal with the Fund Board's establishment, the duties and responsibilities of Board members and requirements to appoint an auditor of the Fund, took effect at certification of the Organic Law; however, the substantive provisions of the Organic Law have yet to commence.
Kumul Minerals Holdings Limited Authorisation Act 2015
This Act was passed by the Parliament and commenced on 1 January 2016. The Act repealed and replaced the Petromin PNG Holdings Limited Authorisation Act 2009 and Petromin PNG Holdings Limited (Petromin) is now known as Kumul Minerals Holdings Limited (Kumul Minerals).
While it was anticipated that Kumul Minerals would be the State's nominee to acquire, hold and manage the State's interest in mining projects under the Mining Act 1992, the relevant amendments to the Mining Act have not yet been made, in the same way that amendments were made to the Oil and Gas Act to provide for Kumul Petroleum Holdings Limited to be the State's nominee to participate in oil and gas projects.
Unconventional Hydrocarbons Act 2015: This Act commenced on 26 February 2016. The UHA governs the exploration for a production of unconventional hydrocarbons in PNG (including the offshore area), and provides for the sharing of benefits arising from projects for the production of unconventional hydrocarbons with traditional landowners, provincial governments and local level governments in PNG. The UHA largely mirrors the provisions of the Oil and Gas Act 1998 (OGA); however, there are some additional provisions in the UHA that predominantly deal with a situation where a licence has been granted under the UHA for unconventional hydrocarbons and under the OGA for petroleum over the same block (subsequently referred to as a 'dual licence block').
Cybercrime Code Act 2016: The National Parliament enacted this Act on 11 August 2016, although it has yet to commence operation. Upon commencement, subsequent consequential amendments shall be made to the Criminal Code Act 1974, Evidence Act, Defamation Act 1962 and the National Information and Communication Technology Act 2009. This Act is designed to prevent, or prosecute, crimes and offences committed against individuals, the public, government agencies or corporate entities, through the use of information and communication technologies (ICT). The Act criminalises activities such as hacking/unauthorised access, illegal interception, data and system interference, data espionage, illegally remaining in an electric system or device, electronic fraud, electronic forgery, defamation, cyber bullying and harassment, and offences relating to pornography. In total, there are 26 ICT-related offences under the Act. The Act expands criminal liability for intellectual property violations, such as online copyright infringement, online trademark infringement, and patent and industrial designs infringement. The Act provides for a number of procedural mechanisms for law enforcement agencies to use to prevent, investigate and prosecute cybercrimes. It also provides for international cooperation between law enforcement agencies of countries with cybercrime laws in situations where there is an investigation or proceedings concerning criminal offences related to ICTs and the use of electronic systems and devices.
Constitutional Amendment No. 43 (Dual Citizenship) Law 2016: This Law took effect on 29 August 2016, and will enable PNG citizens to apply to the Immigration Minister to become citizens of a 'prescribed country' without losing their PNG citizenship. Prescribed countries, as set out in the yet-to-be-passed Constitutional (Dual Citizenship-Prescribed Countries) Regulation 2016 include Australia, Fiji, Germany, New Zealand, Samoa, United Kingdom, United States of America and Vanuatu. The Constitutional Amendment also provides that the following groups of non-citizens are eligible to apply for citizenship:
- a person who has or had a parent or grand-parent that is or was a citizen or is or was qualified to be a citizen; or
- a person who is a spouse of a citizen;
- a sports person who is likely to win a medal, to represent PNG in a regional or global sporting competition; and
- a person who has the resources and capital, the commitment and credentials to invest in the country's economy to create employment and impart skills to citizens.
Additional legislation in the form of the Citizenship (Amendment) Bill and a number of regulations must be enacted to give effect to the Constitutional Amendment.