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Nuia v Sabumei [1992] PGLawRp 574; [1992] PNGLR 90 (12 March 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 90 - Nuia v Sabumei

[1992] PNGLR 90

N1054

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LEO NUIA

BENIAS SABUMEI,

MINISTER FOR DEFENCE;

PETER PEIPUL,

SECRETARY OF THE DEPARTMENT OF DEFENCE;

THE BRIGADIER GENERAL ROCKUS LOKINAP,

COMMANDER OF THE DEFENCE FORCE,

TOGETHER CONSTITUTING THE DEFENCE

COUNCIL;

THE RIGHT HONOURABLE RABBIE NAMALIU,

PRIME MINISTER AND CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL AS REPRESENTING NATIONAL EXECUTIVE COUNCIL,

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Los J

12 March 1992

CONSTITUTIONAL LAW - Military under civilian control - Control must be exercised accordingly to law - Defence Act - Only Head of State acting on advice has power to appoint or dismiss a colonel - Dismissal may be as a result of disciplinary proceedings or under the Defence (Period of Service) Regulation s 18.

DEFENCE ACT - Dismissal outside the Code of Discipline - Dismissing authority must observe natural justice principles.

INTERPRETATION ACT - Power to promote and appoint are subject to specific provisions in the Defence Act - Power to appoint implies power to remove, Interpretation Act Ch 2 s 36.

UNDERLYING LAW - Principles of natural justice.

WORDS AND PHRASES - Meaning of 'Discharge' under the Defence Act - Discharge includes dismissal or removal.

Facts

The plaintiff, a colonel in the PNG Defence Force, took proceedings in the National Court for a declaration that his dismissal from the force by the Head of State, acting with and in accordance with the advice of the National Executive Council, was null and void for want of authority. The circumstances of this dismissal were as follows: He was appointed the Task Force Commander of the PNG troops stationed in Bougainville, where there was a state of emergency following the declaration of secession by certain elements on the island. In that capacity he gave an interview to an ABC Four Corners television crew which went to Bougainville. The interview was on various aspects of the military operation and he was alleged to have made numerous allegations of the perpetuation of atrocities by the government forces, including their use of helicopters, gifts from the Australian Government, to drop dead bodies in the sea. These allegations caused embarrassment to both the PNG and Australian governments. The plaintiff was dismissed from the force on the basis of these allegations.

Issues

N1>1. Whether the Head of State, acting with and in accordance with the advice of the NEC, has the power or authority to revoke the appointment of the plaintiff as colonel and also terminate his services from the PNG Defence Force.

N1>2. Whether, as a matter of law, principles of natural justice should be observed for the dismissal.

Held

N1>1. The Head of State is the prescribed or appropriate authority to appoint or remove a member of the Defence Force to or from the rank of Colonel.

N1>2. Where a statute gives a right of dismissal expressed or implied, unless there is expressed provision in an act excluding a right to be heard, that right must be afforded to the person. The principles of natural justice are part of the underlying law of Papua New Guinea and, although the Defence Force has a special position because it is a disciplined service, there is nothing in the Defence Force Act which excludes the right to be heard.

Cases Cited

Papua New Guinea cases cited

Gegeyo v Minister for Lands and Physical Planning [1987] PNGLR 331.

Okuk v Fallscheer [1980] PNGLR 274.

Other cases cited

Grant v Secretary of State for India (1877) CPD 445.

Maxey v Attorney-General (1954) 73 NZLR 1092.

Salemi v Minister for Immigration and Ethnic Affairs [1977] HCA 26; (1977) 14 ALR 1.

Counsel

J Reeve, for the plaintiff.

J Baker, for defendants.

12 March 1992

LOS J: The Plaintiff was a colonel in the PNG Defence Force and between 1989 and 1991 he served in different capacities on the troubled islands of Bougainville. In early 1991 he was appointed the Task Force Commander of the troops on the islands. During this time, in May 1991, an ABC Four Corners television crew went to Buka Island and interviewed the plaintiff. The interview covered many aspects of the operations in Bougainville, including the allegations of killing and dumping of bodies out in the sea, using the helicopters donated by Australia. Because of his participation in the interview and many answers he had given, he was dismissed from the Force.

The plaintiff issued National Court proceedings in which he claims various declaratory orders. Many of the claims are now irrelevant after the proceedings have begun because a substantial number of facts are not in dispute and also certain issues are no longer in dispute. The remaining claims are:

N2>(4) A declaration that the Head of State, acting with and in accordance with the advice of the National Executive Council, does not have the power or authority to dismiss or discharge a member of the Defence Force holding the rank of colonel from the Defence Force.

N2>(5) A declaration that the only means prescribed under the Defence Act Ch 74 whereby a member of the Defence Force holding the rank of colonel may be discharged or dismissed from the Defence Force on the ground that he has committed a disciplinary offence or disciplinary offences or otherwise been guilty of misconduct in his official capacity is pursuant to the Code of Military Discipline, which is the schedule to the Defence Act.

N2>(6) A declaration that the plaintiff has not been validly dismissed or discharged as a member of the Defence Force.

N2>(7) A declaration that the purported discharge or dismissal of the plaintiff from the Defence Force by the first defendant, the Defence Council; and/or the second defendant, the National Executive Council, and/or the Head of State acting on advice of the second defendant is null and void and of no effect.

N2>(8) A declaration that the plaintiff is and remains a member of the Defence Force holding the rank of colonel.

N2>(9) An injunction restraining the defendants generally from conducting themselves on the basis that the plaintiff has been dismissed or discharged from the Defence Force and, in particular, but without limiting the generality of the foregoing:

(a) from paying or attempting to pay to the plaintiff moneys to which he would be entitled if validly dismissed or discharged from the Defence Force; and

(b) from requiring or attempting to require the plaintiff to complete formalities necessary for his valid dismissal or discharge from the Defence Force; and

(c) from requiring or attempting to require the plaintiff to vacate the housing accommodation with which he is provided as a member of the Defence Force.

As a result of the foregoing, only two major issues arise. The first one is whether the dismissal of the plaintiff was legal. Secondly whether, as a matter of law, the plaintiff was entitled to present his case in answer to whatever allegations were made against him.

The defendants say that the plaintiff was "not suitable for service in the Defence Force" on the grounds:

N2>"a. that Colonel Nuia had repeatedly taken un-authorised actions whilst Task Force Commander in Bougainville in that he had blown up the Monetai bridge and has landed troops on the Northern part of Bougainville, and that he had sunk a boat without authority,

N2>b. that the Defence Council had issued a strongly worded reprimand to Colonel Nuia for his action in carrying out the actions referred to in paragraph (a) and had warned him that any defiance of that reprimand would bring severe consequences,

N2>c. that despite having received this reprimand Colonel Nuia was defiant in an interview conducted with the ABC on Bougainville and that this was viewed as an action in contempt of authority,

N2>d. that his interview completely and utterly embarrassed the Government of Papua New Guinea and the Government of Australia".

Other reasons were also given but they are not relevant immediately. I will refer to them as I go along.

The instrument of dismissal is headed:

"Defence Act (Chapter 74)

REVOCATION OF APPOINTMENT AND TERMINATION OF SERVICE

'I, Serei Eri, G.C.M.G., K.St,J., Governor-General, by virtue of the powers conferred by s 18 of the Defence Act (Chapter 74) and s 10 of the Defence (Period of Service) Regulation (Chapter 74) and all other powers me enabling, acting with, and in accordance with, the advice of the National Executive Council, hereby:

(a) Revoke the appointment of Leo Nuia as Colonel;

(b) Terminate the service of Leo Nuia from Papua New Guinea Defence Force

with effect on and from 25th June 1991.

Date this 9th day of August 1991.' "

There is no dispute that the plaintiff was not charged and dealt with under the Code of Military Discipline. There is no dispute that the Defence Council has no power to discharge or dismiss a member of the PNGDF holding a rank of colonel. There is also no dispute that the National Executive Council does not have power to dismiss or discharge a member of the PNGDF holding the rank of colonel, and neither the National Executive Council nor the Head of State had power to bring disciplinary proceedings against a colonel. Only the Defence Force Commander has that power in s 8(1) of the Code of Military Discipline:

"The Commander of the Defence Force:

(a) has jurisdiction over all breaches of service discipline; and

(b) may impose any punishment provided for by Section C7 for such a breach."

Can the Head of State revoke the appointment of the plaintiff as colonel and also terminate his services from the PNGDF (with effect on and from 25 June 1991)? The instrument of dismissal refers to s 18 of the Defence Act and s 10 of the Defence (Period of Service) Regulation as enabling the Head of State to dismiss the plaintiff. Section 18 says:

"Appointments and promotions of Members of the Defence Force (other than appointments and promotions to the Office of Commander of the Defence Force), to the rank of Colonel or above, shall be made by the Head of State, acting on advice."

The section deals with "appointments" and "promotions" of members of the Defence Force to rank of colonel and above. Under the Constitution, the power to appoint or promote includes a power to demote or remove: see Sch 1.10(4). This would certainly apply in the case of appointment of the Commander of Defence Force under s 193(1)(f) and (3) of the Constitution. Colonels are appointed under the Defence Act and there is no equivalent provision in the Defence Act. One has to seek an aid from the Interpretation Act Ch 2 s 36. Section 36 has similar provisions to the provisions of the Constitution:

N2>"36. Implied power to remove or suspend

(1) Where a statutory provision confers a power to make an appointment, the power includes power, subject to Subsection (2), to remove or suspend a person so appointed.

(2) The power provided for by Subsection (1) is exercisable only subject to any conditions to which the exercise of the original power of appointment was subject."

I think that s 36 can only apply where there are no specific provisions in a statute relating to appointments and promotions. In the Defence Act, s 37 provides specific provisions for demotions or reduction in ranks.

Section 37 reads:

N2>"(1) Subject to Section 18, members of the Defence Force may be promoted by such authority and on such conditions as are prescribed;

N2>(2) A member of the Defence Force may not be reduced in rank except:

(a) at his own request; or

(b) in accordance with the Code of Military Discipline; or

(d) as otherwise prescribed."

The plaintiff's rank could only be reduced in accordance with subs (2). It is obvious there was no reduction of rank in accordance with paragraphs (a) and (b). As regards paragraphs (c) and (d), the plaintiff's counsel argues, so it seems to me, that the Head of State cannot be an authority to demote a colonel on those grounds. The first reason is a matter of definition whether the Head of State is a "prescribed authority" and the second reason is whether an opinion had been formed as to suitability of the plaintiff to remain in that rank by the prescribed authority.

While it is true that "prescribed authority" is not defined directly in the Act, it is clear in the context of the Act and its regulations which authority is the "prescribed authority." Section 1 of the Act says:

" 'prescribed' means prescribed in this Act, the regulations or the Defence Council orders."

The interpretation part of the Defence (Period of Service) Regulation says:

"unless the contrary intention appears:

appropriate authority means:

(a) in the case of an officer of the rank of Brigadier-General or Colonel - the Head of State, acting on advice".

It is clear to me, therefore, that as the only authority that can promote a member of the Defence Force to the rank of colonel under s 18 of the Act is the Head of State, for the purpose of reduction in ranks, the Head of State is the prescribed authority or appropriate authority for that purpose. But it is clear to me that the power of the Head of State to demote a colonel must be subject to conditions in s 37.

Section 18 also gives the power to the Head of State to appoint a member of the Defence Force to the rank of colonel. According to s 36 of the Interpretation Act, this power must include a power to remove a colonel. But the power to remove a colonel must be exercised pursuant to the specific provisions in the Act. The first specific conditions are set out in the Code of Military Discipline. These were not followed. But the provisions in the Defence (Period of Service) Regulation were followed. Section 10(1)(a) of the Regulation says the Head of State may terminate a colonel. Under subs (2) the termination may be on one of the specific grounds listed or generally "for any reason not suitable for service in the Defence Force." So far as compliance with s 18 of the Defence Act is concerned regarding removing a colonel, the compliance was complete.

On behalf of the plaintiff, s 10 of the Defence (Period of Service) Regulation is challenged as ultra vires the enabling sections of the Act. Section 72 of the Defence Act authorises making of the regulations to enforce the various provisions of the Act. Subsection (3) authorizes making of rules to regulate the discharge provisions of s 32 and 33 of the Act. This calls for determination of the meaning of "discharge" as used in s 33.

Section 33 says:

N2>"A member of the Defence Force may be discharged from the Defence Force by such authority and on such grounds (if any) as are prescribed."

The plaintiff's counsel argues that the meaning of "discharge" cannot be guided by the heading of the section. The heading says "Termination of Service". To support the argument, he relies on ss 26 and 69 of the Interpretation Act. Section 26(3) reads:

"The heading or head-notes to the various sections of statutory provision do not form part of the provision."

Section 69 says:

"A section of an Act has effect as a substantive enactment without introductory words."

The submissions by the plaintiff's counsel make sense when various other provisions in the Act are looked at where they use the word "discharged" ss 14(1)(a), 31(1), (2), (3) and (4), 32(4), 35(1), 36(1), (2) and (3)). Section 14(1)(a), for instance, says:

"The Reserve Force shall consist of:

(a) persons who, having been discharged from the Regular Force, have volunteered, and been accepted for service in and have been enlisted in the Defence Force otherwise than for continued full time service;"

Section 35(1) says:

"A Member of the Defence Force who has been discharged from the Defence Force may be re-enlisted in such manner and on such conditions as are prescribed."

I don't suppose the word "discharged" in each case is used in a sense of dismissal as a penalty for some wrong committed by an officer. Otherwise, a discharged person cannot be re-enlisted either in a Reserve Force or in a Regular Force. The word "discharged" seems to me to be used in a sense of a release from the obligation to serve further in the Force, not in a sense of being kicked out of the force. However, I do not think it is meant that the word discharge all through out the Defence Act is limited to the sense I referred to. Otherwise, it would leave a ridiculous result; there may not be any power at all to dismiss any member of the Defence Force. In the ordinary and wider sense of discharge, it includes removal or dismissal, and I think this is what the word discharge is meant under the Act.

DENIAL OF NATURAL JUSTICE

It is plain, and it is not denied, that the plaintiff was not given a chance to answer any allegations prior to his dismissal. On behalf of the defendants, three arguments have been raised against the plaintiffs claim under this heading:

N2>(a) there is no right to a hearing expressed in the Defence Act;

N2>(b) the common law does not imply a right to hearing in matters involving the armed forces;

N2>(c) the common law is inapplicable in Papua New Guinea.

Obviously, the main body of the Defence Act does not expressly provide for right to a hearing such as it is found in the Commonwealth Defence Act 1903 of Australia, which provides:

"Officers shall hold appointments during the pleasure of the Governor-General but the commission of an officer shall not be cancelled without the holder thereof being notified in writing of any complaint or charge made and of any action proposed to be taken against him, nor without his being called upon to show cause in relation thereto. Provided that no notification shall be necessary in the case of an officer absent from duty without leave for a period of three months or upwards."

The main argument by the defendants is that the draftsmen must have deliberately excluded such a right. I do not think a draftsman is entitled to make such an important policy decision. The whole body of the case law in Papua New Guinea, beginning with Okuk v Fallscheer [1980] PNGLR 274, is against such a submission. The cases say unless there is an expressed provision in an act excluding a right to be heard, that right must be afforded to any person.

The defendants next argued that the common law does not imply a right to a hearing in matters involving the armed forces. This is because the members of the armed forces have been treated differently in law for policy reasons, as have other groups such as prisoners and aliens. The Halsbury's Laws Vol 41 dealing with Royal Forces at p 9 was cited for this purpose:

"The terms of engagement of members of the armed forces do not constitute a contract of service in the strict sense. All such persons are appointed by the Crown under the Royal Prerogative and hold the appointments, whatever their rank, at the Crown's pleasure. They are subject to dismissal at anytime without notice and without cause being assigned and the courts will not entertain an action for wrongful dismissal or for reduction of pay."

And the counsel for the defendants gave examples of cases where these principles had been applied: Grant v Secretary of State for India (1877) CPD 445 and a New Zealand case Maxey v Attorney-General (1954) 73 NZLR 1092. It is argued that the exercise of the power in the Defence (Period of Service) Regulation by the appropriate authority is a statutory reflection of this aspect of the Royal Prerogative, since it allows for dismissal at the pleasure of the appropriate authority for the reasons set out.

It should be obvious that there are vast differences between the basis and the structure of the armed forces in England, India, Australia or New Zealand. In the United Kingdom, the Queen is the Commander-In-Chief of the armed forces and the terms of engagement of the United Kingdom servicemen do not constitute a contract because they are appointed under the Royal Prerogative by the Crown and, thus, they hold appointment at Royal pleasure. They can be dismissed without notice and they cannot sue the Crown. Australia has found it necessary to enact a law giving the military officers the rights to be heard, which I quoted earlier. Our Defence Force is established under the Constitution ss 188 and 189, and the Force is under the civilian control as opposed to the royal control. And the same Constitution in s 59 provides for the application of the principles of natural justice. Subsection (2) of s 59 says:

"The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly."

The last point on the natural justice principle raised by the defendants' counsel is that the common law principles are inappropriate to the circumstances of Papua New Guinea because they are inconsistent with the ultimate civilian control given by the Constitution. Many State Services and the Defence Force have been established under s 188 of the Constitution. Subsection (1)(c) says:

"The following State Services are hereby established:

(a) ...

(b) ...

(d) ...."

Section 189 says:

"All of the State Services other than the Defence Force shall be Civilian Services, and all of the State Services shall be subject at all times to ultimate civilian control."

Section 201 provides for the control of the Defence Force:

N2>"(1) There shall be no office of Commander-in-Chief of the Defence Force, whether honorary or otherwise;

N2>(2) The Defence Force is subject to the Superintendence and control of the National Executive Council, through the Minister responsible for the Defence;

N2>(3) No serving member of the Defence Force may be the Minister responsible for the Defence Force; and

N2>(4) The Minister responsible for the Defence Force shall not use any Military Rank or title and except to the extent provided for by Constitutional law or an Act of Parliament has no power of command within the Defence Force.

N2>(5) There shall be:

(a) within the Defence Force, an office of Commander of the Defence Force, who shall be the principal military adviser to the Minister responsible for the Defence Force on matters relating to the Defence Force; and

(b) within the National Public Service, an officer of the Service, who shall be the principal civilian adviser to the Minister on matters relating to the Defence Force,

and each of whom shall have such other powers, functions, duties and responsibilities as are prescribed by or under an Act of Parliament."

There should not be any disagreement that for various policy reasons the founders of the Constitution have decided to put the control of the Defence Force under the ultimate civilian control. But the ultimate control must be exercised according to law, and the law may be a constitutional law, a statute or an underlying law adopted under the Sch 2 of the Constitution. Section 203 of the Constitution adds more weight to this argument. The section reads:

"Since it is necessary that the Defence Force and the Members of the Defence Force have no special position under the law except to such extent as is required by the nature of the force as a disciplined force and its peculiar functions, duties and responsibilities, it is hereby declared that, except as is specifically provided by a constitutional law or an Act of the Parliament, the Defence Force and the Members of the Defence Force are subject to all laws in the same way as other bodies and persons."

The principles of natural justice are part of the underlying law of Papua New Guinea and, although the Defence Force has a special position because it is a disciplined service, there is nothing in the Defence Act which excludes a right to be heard. In fact, the Code of Military Discipline, made under the Defence Act, has very detailed provisions requiring a member of the Defence Force to be properly charged and to be given time and chance to defend himself. I refer to Section C9 (4), (5) and (6) of the Code of Military Discipline:

N2>"(4) As far as operational requirements allow disciplinary proceedings must be conducted in such a manner as to give the person charged a full and fair opportunity of presenting his defence or explanation (if any), and for that purpose and to that extent:

(a) the disciplinary officer dealing with a charge should not proceed with that charge where in his opinion it is in the interests of justice that the charge should be dealt with by another disciplinary officer; and

(b) a person charged is entitled:

(i) to have the charge reduced into writing; and

(ii) to have a copy of the charge before the proceedings commence; and

(iii) to have the charge explained to him by the disciplinary officer at or before the commencement of the proceedings; and

(iv) to examine and cross-examine witnesses called against him and persons whose statements are used against him; and

(v) to call and examine witnesses on his behalf; and

(vi) to be represented by a person subject to this Code (not being a member of the Defence Force who is the superior officer of the disciplinary officer conducting the proceedings) of his own choice.

N2> (5) A disciplinary officer conducting any disciplinary proceedings may examine persons on oath or affirmation.

N2> (6) A disciplinary officer conducting any disciplinary proceedings shall keep in the prescribed manner a record of:

(a) the charge; and

(b) the defence or explanation (if any) of the person charged; and

(d) the reasons for the decision,

and a note of the evidence given, and such other records as are prescribed."

These are the very principles that the defendant's counsel says they are not applicable to the members of the armed forces. Given the background of the plaintiff and given the various promotions that the plaintiff has had and given the circumstances under which the ABC television crew that was allowed into Papua New Guinea and then allowed to travel to Buka over the objection of the plaintiff as a Task Force Commander, it was not fair that the plaintiff got all the brunt, so to speak. The situation, therefore, warranted, and the plaintiff was entitled to expect to be given, a chance to explain his position as, in the words of Steven J in Salemi v Minister for Immigration and Ethnic Affairs (No 2) [1977] HCA 26; (1976-77) 14 ALR 1 at 34:

"... there exists no detailed judicial consideration of the basis upon which the possession of a legitimate expectation gives rise to a right to be accorded natural justice. It stems, no doubt, from the same fertile source as has nourished the concept that those who possess rights and interests should not, in the absence of enactment, be deprived of them by the exercise of an arbitrary discretion and without observance of the rules of natural justice."

Along the similar lines my brother Amet in 1987 in the case of Gegeyo v Minister for Lands and Physical Planning [1987] PNGLR 331 at 336 said:

"In the circumstances of this case it is my strong view that if any administrative decision will or may affect the reputation, integrity standing in community of persons holding public office then the minimum requirement of fairness must be afforded that person or persons. I consider that minimum requirement should be to give advice or notice in writing of the reasons for a decision proposed to be taken which will affect the status of such a person. And if that reason is likely to cast negative aspirations on the character, integrity or reputation of that person then I consider that an opportunity should be given to that person to be heard before such a reason or reasons are relied upon as the basis for that decision."

And his Honour goes on at page 338:

"I add generally, in this whole area of administrative decision making involving the legislative, the executive government and tribunals there is no room for arbitrary decision making which will affect the integrity and reputation of persons concerned without first giving some explanation and an opportunity to be heard to such persons."

The plaintiff was entitled to the benefit of the right to be heard principles adopted in our country, but he was denied this right.

In summary, only the Head of State acting on advice has a power to promote or appoint a member of the Defence Force to a rank of colonel. In the reverse, only the Head of State may demote or dismiss a colonel, but in either case the Head of State must act strictly in accordance with the provisions of the Defence Act. A colonel must be dismissed after he has gone through the Code of Military Discipline proceedings. Or a colonel may be dismissed in compliance under the Defence (Period of Service) Regulation. In case of using the latter procedure, the Head of State, like any other decision-making authority in this country, must observe the minimum requirement of natural justice. There is a duty "to act fairly and, in principle, to be seen to act fairly." The plaintiff was dismissed under s 18 of the Act and s 10 of the Defence (Period of Service) Regulation. But given the rush and an arbitrary manner in which he was dismissed, in my respectful view, and I so find, there was a breach of that minimum duty.

Accordingly, I make the following orders: In the first part, I refuse the declarations sought in paragraph (4) and (5):

In the second part, I grant the declaration sought in paragraphs (6), (7), (8) and (9), that is to say:

N2>(6) A declaration that the plaintiff has not been validly dismissed or discharged as a member of the Defence Force.

N2>(7) A declaration that the purported discharge or dismissal of the plaintiff from the Defence Force by the first defendant, the Defence Council, and/or the second defendant, the National Executive Council and/or the Head of State acting on advice of the second defendant, is null and void and of no effect.

N2>(8) A declaration that the plaintiff is and remains a member of the Defence Force holding the rank of colonel.

(a) from paying or attempting to pay to the plaintiff moneys to which he would be entitled if validly dismissed or discharged from the Defence Force; and

(b) from requiring or attempting to require the plaintiff to complete formalities necessary for his valid dismissal or discharge from the Defence Force; and

(c) from requiring or attempting to require the plaintiff to vacate the housing accommodation with which he is provided as a member of the Defence Force.

The costs follow the event.

Lawyers for the plaintiff: Warner Shand Lawyers.

Lawyer for the defendants: Attorney-General.

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