Customs Recognition (Repeal) Act 2025: Reframing the role of Custom in Papua New Guinea’s legal system

PLN PNG
Jan 28
4 min read

Snapshot

The Customs Recognition Act (Chapter 19) (Customs Act) has been repealed by the Customs Recognition (Repeal) Act 2025 (Repeal Act).
The Repeal Act removes statutory guidance on how Courts determine and apply Custom in legal proceedings.
Customary Law remains recognised under the Constitution of Papua New Guinea (Constitution) and the Underlying Law Act 2000 (Underlying Law Act), but without the procedural clarity previously provided by the Customs Act.

Papua New Guinea’s legal system, like other Pacific Island jurisdictions, is founded on legal pluralism; the coexistence of two or more legal frameworks within a single jurisdiction. In Papua New Guinea, Custom, Common Law, and Statutory Law operate concurrently, each contributing to the development of the Underlying Law.

During his keynote address commemorating 50 years of Papua New Guinea Independence at the Federal Court of Australia in Sydney on 20 August 2025, Chief Justice Sir Gibbs Salika reflected on this theme. His Honour emphasised:

The Constitution’s vision of a legal system that reflects PNG’s cultural identity;
The need for Courts to develop jurisprudence that is “homegrown” and responsive to local realities;
The importance of judicial independence and integrity in maintaining public trust, especially in a pluralistic system where Custom and formal law must coexist.

Sir Salika’s reflections reinforced the idea that Custom is not a relic, but a living source of law that must be nurtured through thoughtful legal development and respectful engagement with communities. The passage of the Repeal Act aligns with this position; It is not a retreat from current legal framework, but a refinement. It places greater responsibility on Courts and legal practitioners to uphold and apply Custom through constitutional interpretation and the jurisprudential framework established under the Underlying Law Act.

Rationale for repeal

On 3 June 2025, the National Parliament passed the Repeal Act, formally repealing the Customs Act, which had been enacted in 1963 to provide a mechanism for Courts to determine and apply Custom. The object of the Customs Act was to recognise Custom as a source of law, allowing Courts to treat questions of Custom as matters of fact and to rely on flexible evidentiary standards.

On 5 June 2025, Justice Minister and Attorney General Pila Ninigi welcomed the Repeal Act, stating:

“The Constitution provides under Section 20(1) that an Act of Parliament will provide for the development of underlying laws in PNG. In the absence of such an Act, Parliament adopted the Customs Recognition Act 1963 prior to Independence only as an interim measure.” [1]

He explained that the Underlying Law Act was passed to fulfil this constitutional mandate, but the Customs Act was never expressly repealed. As a result, both laws coexisted and were interchangeably used for over two decades, causing confusion among judges and lawyers. The Repeal Act resolves this ambiguity and affirms the Underlying Law Act as the primary legislative framework for recognising and applying Custom. [2]

What were the key features of the Customs Act?

Under the Customs Act, Courts were empowered to treat Custom as a matter of fact, with provisions that allowed for:

Admission of hearsay, opinion, and community knowledge, and the ability to inform themselves as deemed appropriate, including referring to books, reports, statements from Local Government Councils, and expert evidence; [3]
Enforcement of Custom unless it conflicted with public interest or the best interests of a child; [4]
Consideration of Custom in criminal cases for purposes such as:
- Determining a person’s state of mind;
- Assessing the reasonableness of an act, omission, or excuse;
- Deciding whether to convict or impose a penalty;
- Preventing injustice by taking Custom into account; [5]
Consideration of Custom in civil matters, including:
- Ownership and rights over Customary Land, sea, reefs, rivers, lakes, and water;
- Devolution of Customary Land;
- Trespass by animals;
- Marriage, divorce, custody, and guardianship of infants under Customary Marriage;
- Transactions regulated wholly or partly by Custom; [6]
Consideration of Custom in matters relating to guardianship, custody of infants, and adoption; [7]
Resolution of conflicts between systems of Custom by adopting the system that best serves justice, or applying the ordinary rules of the Underlying Law with necessary modifications, subject to the discretion of the Court. [8]

What are the implications?

The repeal of the Customs Act reframes and, importantly refines the role of Custom in Papua New Guinea’s legal system. It consolidates the recognition of Custom under the Constitution and the Underlying Law Act, removing statutory procedures that previously guided Courts.

Legal practitioners must now rely on constitutional principles and judicial discretion to admit and interpret Custom, which may lead to evidentiary uncertainty and inconsistent application across jurisdictions.

While Custom remains a foundational source of law in Papua New Guinea’s pluralistic legal system, its visibility and enforceability now depend on how effectively Courts and lawyers engage with community knowledge, precedent, and the broader jurisprudential framework. The change highlights the need for legal capacity building, clearer jurisprudence, and stronger collaboration with communities to ensure Custom continues to be meaningfully integrated into formal legal processes.

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