Reference Jurisdiction and The Separation of Powers
In the latter case the court is, strictly speaking, not exercising a judicial function but rather, pursuant to the ruling of the Judicial Committee of the Privy Council in Attorney-General of Ontario v. Attorney-General of Canada (Reference Appeal) AC 571, one of advising the executive branch of government, a jurisdiction expressly conferred on the Supreme Court by PNG's Constitution. Other jurisdictions, notably the USA (federally, though not in all States) and Australia, eschew the reference function for their courts on the grounds that it violates the principle of the separation of powers as among the legislative, executive and judiciary; in Canada it is held that the principle is inapplicable in a parliamentary democracy.
The constitutional convention which deliberated on the drafting of Papua New Guinea's Constitution immediately prior to Independence took counsel from Canadian academics and the reference procedure was readily adopted. In Papua New Guinea jurisprudence, as in Australia, the formula "separation of powers" is frequently referred to. However, as in Australia (and unlike in the USA where the principle was enunciated and where the executive is not responsible to the legislature) it has a special limited application, being confined to describing the well-established convention of an independent judiciary, dating from the English Bill of Rights, 1689: the executive is, of course, responsible to the legislature in Papua New Guinea's Parliament.
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