Court nullifies ban

National, Normal


THE Government regulation banning Port Moresby electricity supplier Hanjung Power Limited from importing heavy fuel has been declared null and void by the National Court sitting in Waigani.
The court ruled last Friday that the whole of the Customs (prohibited imports – certain petroleum products) regulation 2008 had no effect.
Hanjung Power Ltd, owns and operates a power plant at Kanudi in Moresby Northwest had sought a judicial review of the regulation which banned it from importing the heavy fuel oil it needed to run its plant.
The type of heavy fuel oil that Hanjung uses for the two very large, slow-speed diesel engines that generate power at its plant has a sulphur content in excess of the maximum prescribed standard.
The company, however, argued that the PNG Government through the Internal Revenue Commission (IRC) had breached the principles of natural justice by not consulting with it before imposing the NEC-approved regulation.
Hanjung said the import of heavy fuel oil was essential to the viability of its business.
Handing down the decision last Friday, Justice David Cannings noted the “persistent failure” of the State to appear in court to explain why the regulation was made and what environmental issues was involved.
The favourable ruling meant that Hanjung could continue to import the heavy duty fuel that it requires to provide three thirds of Port Moresby city’s electricity supply.
“This appears to be the first case in which the National Court or the Supreme Court of Papua New Guinea had been called upon to apply the principles of natural justice to delegated legislation,” the judge said
Justice Cannings said if making a regulation would obviously have an immediate and substantial effect on a particular person’s commercial interests, the authority making the regulation had a duty to accord natural justice to that person prior to making it.
“The regulation was harsh and oppressive in its operation and though the decision to make the regulation was made under a valid law it was in the circumstances a proscribed act contrary to Section 41 of the Constitution,” he said.