The Supreme Court has again clarified what many in the legal profession have long suspected but was often contested by the State: a Provincial Governor does not require a brief-out from the Attorney General to engage private lawyers.

In a decision handed down on 7 October 2024 in Philip Undialu v Hamaga [2024] PGSC 159; SC2711, the Court dismissed an objection raised by the State that sought to prevent the Governor of Hela Province, Hon. Philip Undialu, MP from being represented by his chosen legal team, Stout Lawyers, on the basis that no brief-out had been issued under Section 7 of the Attorney General Act.

The case arose from an earlier National Court decision made on 27 March 2024 concerning the payment of development levies from the Moran Petroleum Development Project. Governor Undialu, who was not a party to the National Court proceedings, applied to the Supreme Court for leave to review the consent orders. One of the issues raised by the State during that application was that Stout Lawyers could not act for the Governor without the Attorney General’s approval.

The State relied on Section 7 of the Attorney General Act for this objection, a provision designed to regulate representation “for the State” in legal proceedings.

His Hon Hartshorn, J who heard the application, dealt with this issue upfront. His Honour held that Section 7 did not apply to Governor Undialu in this case because he was not acting for the State. Rather, he was acting in his capacity as Governor for Hela Province, a constitutionally recognised role with responsibility under Section 22 of the Organic Law on Provincial Governments and Local-Level Governments (the Organic Law).

His Honour ruled:

“I am not satisfied that the Governor of a Province falls within the definition of ‘State’ as referred to in s.7(1) Attorney General Act, as amended. Consequently, the lawyers for the Applicant do not require a brief out pursuant to s.7(2)(i) Attorney General Act, as amended, as they are not appearing for the ‘State’.” (para 5)

Justice Hartshorn also noted that the State’s objection was based on an outdated reference to an already repealed provision of the Act:

“…the lawyers for the State in this instance have taken objection by relying on an incorrect and now non-existent section of the Attorney General Act.” (para 6)

The objection was rejected in full.

This ruling is significant for Provincial Governors, legal practitioners, and public office holders. For too long, Section 7 of the Attorney General Act has been used, or misused, to block or delay legitimate legal representation for provincial leaders. This decision confirms that:

• A Governor is not a “public body” or “State” for the purposes of Section 7, when acting for provincial interests.
• Private lawyers do not require Attorney General approval to act for a Provincial Governor.
• Representation can proceed without bureaucratic delays, especially where provincial rights or public funds are at stake.

In the case of Governor Undialu, the issue concerned the distribution of millions of kina in petroleum development levies, funds that affect landowners and communities in Hela. It was crucial that he be heard, and the Supreme Court ensured that procedural barriers did not shut him out.

Aside from dismissing the Section 7 objection, the Court also held that Governor Undialu had standing to seek review, noting that he is the “political and administrative head of Hela Province” and a signatory to the Southern Highlands/Hela Benefit Split Agreement of 2021 (paras 13–15).

The decision in SC2711 is an important precedent confirming that Provincial Governors are not bound by Section 7 of the Attorney General Act when seeking to engage private counsel.

Stout Lawyers is proud to have acted for Governor Undialu in this application and will continue to stand with leaders and communities seeking to protect their rights in accordance with the law.

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