Prove you belong: the burden the Vagrancy Act puts on citizens

by PAUL L. KEBAIJA

The Vagrancy Act 2026 is not new. Its definitions, arrest scheme, reverse onus and variation procedure are lifted from Chapter 268, the Vagrancy Act the Supreme Court struck down in SCR No 1 of 1986. The Court found that Act authorised arrest on grounds Section 42 of the Constitution does not permit. The drafters have added a Section 1 asserting compliance with Section 38. Asserting it does not make it so.

Section 3 repeats the old defect. Police may arrest anyone they reasonably believe is engaged in conduct "not acceptable in a democratic society", a phrase no citizen can obey with certainty. The person arrested must then prove a string of negatives: that they have not disregarded by-laws, have done nothing unlawful, and are not in breach of any law. Fail on one and they are liable to exclusion.

Governor Powes Parkop, who tabled the bill, said it "targets behaviour, not identity". Prime Minister James Marape said it was aimed at people who carry weapons and incite violence. Section 5(5) names something else: buai sale and chewing, littering, unlawful vending, defacing walls, public gambling. No violent crime is required, and under Section 5(1) not even a fresh conviction. A prior conviction under any law will do. So will a missed court date.

The safeguard in Section 5(3) is hollow. The court need only find that the person has a home somewhere else, and "home" includes customary land held through clan, language group or a wife's relatives. That describes almost every Papua New Guinean. A woman who has sold buai at Gerehu for twenty years still has a garden in her home province.

Section 5(2)(c)(iv) can send her to her "native village" and bar her from every urban centre and settlement in the country, not just the one she was found in. Section 5(2)(c)(ii) allows open-ended custody until repatriation is arranged. Breaching any condition carries up to five years' jail under Section 7.

The drafting is careless as well as harsh. Section 4(1)(a) lets local authorities act against a person who "has not" shown disregard for the law, the reverse of Section 3. Section 7 punishes disobeying summonses under paragraphs that issue none, and directions under a subsection that gives none. Section 8 refers to orders under a section that makes none. Section 5(2)(b)'s six-month minimum contradicts the written warning Section 5(7) prescribes for first offences. The Speaker certified it on 10 September, nearly six months after the vote, errors intact.

Marape's own statement shows whose city this law is for. He spoke of NRL crowds from 2028, APEC in 2033, and restoring the capital of the 1970s, 80s and 90s. City Hall reported he apologised to the Motu Koitabu and other residents for trouble caused by Highlanders. He announced more CCTV cameras, and nothing on housing, land or jobs for settlements built by half a century of urban drift. As Education Minister, he once proposed a database of Tari people in Port Moresby so those "doing nothing" could be sent home. The instinct is old. Only the instrument is new.

"If you live peacefully, you have nothing to fear," Marape said. Every government says that when it hands police a power no one can check.

Opposition Leader James Nomane cast the only vote against in an 80–1 division, warning the law would make Papua New Guineans exiles in their own land fifty years after Independence. In April he promised a court challenge. The Public Solicitor referred the old Act to the Supreme Court in 1986. That office should do so again before the first buai seller is put on a truck to a village she may never have lived in.