|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
LA NO. 2 OF 2003
IN THE MATTER OF THE LAWYERS ACT 1986
IN THE MATTER OF AN APPLICATION BY
ROGER GILL MAGUIRE
FOR ADMISSION AS A LAWYER
WAIGANI: KANDAKASI, J.
2003: 22nd August
7th October
LAWYERS ADMISSION - Application for admission to practice by a foreign lawyer - Requirements for admission - Applicant meeting all academic and practice requirements - Attorney General effectively refusing to certify applicant as "a fit and proper person" on the basis of a policy not publicly stated - Alleged policy inconsistent with legislative intent and purpose of Layers Act 1986 - Intent of Act not to prohibit admission of foreign lawyers but to regulate it - No good basis to refuse certification - Requirement for Attorney General’s certification dispensed waived - Applicant admitted to practice - Ss. 25, 26, 27, 28 and 29 of the Lawyers Act 1986.
WORDS AND PHRASES - "Fit and proper person" - Meaning of - Factors to be considered – "Fit and proper person requirement is in addition to academic and practice qualifications – Means the personal standing and character of applicant - A person with good character record and standing as well as an ability to perform as a lawyer is "a fit and proper person" - Lawyers Act 1986 s. 25(3)(d).
Cases Cited:
In the Matter of the Lawyers Act 1996 and In the Matter of An Application by Peter Norman Moore [1993] PNGLR 470, at pp. 472 and 473.
Papua New Guinea Law Society -v- Martin Dennis McEniery [1993] PNGLR 76.
In the Matter of the Lawyers Act 1986 (as amended), and In the Matter of an Application by Godwin Haumu for Admission as a Lawyer, (Unreported National Court judgement
delivered 06/04/01) N2094.
The Application of Moge Enga and Kuipi Group in the Matter of a Decision of the Minister for Lands Concerning Section 30 Allotment
7 Mt. Hagen [1995] PNGLR 246.
An Application of the NCDIC [1987] PNGLR 339.
Pius Sankin, Jimmy Lingau and James Numbunda v Papua New Guinea Electricity Commission (ELCOM) (Unreported judgement delivered on
19/07/02) N2257.
Re John Sifta [1975] PNGLR.
Costello v. Controller of Civil Aviation [1977] PNGLR 229.
In the matter of the Lawyers Act and In the Matter of an application by Egerton MacPherson Robb [1995] PNGLR 462.
Jack Livinai Patterson v. National Capital District Commission (unreported judgement delivered 05/10/01) N2145.
Fly River Provincial Government v. Pioneer Health Services Limited (unreported judgement delivered on 24/03/03) SC705.
Counsels
Mr. K. Kua for the Applicant
Dr. J. Nonggorr for Attorney General
7th October 2003
KANDAKASI, J: In this matter, Mr. Roger Gill Maguire (the applicant) is applying under s. 28(2) of the Lawyers Act 1986 (the Act) for a waiver of the requirements for certification as "a fit and proper person" under s. 25 (3) (d) of the Act. Subject to that application being granted, he is also seeking admission as a lawyer to practice in Papua New Guinea. This follows an application by the applicant for a waiver of the requirement to sit an examination under s. 25 (5) of the Act, on the basis of his academic and practice qualifications. That application was made as a prelude to getting a certification under s. 25 (3)(d) as "a fit and proper person" before applying for admission as a lawyer under s. 26 of the Act. This application is opposed by the Attorney General but the Law Society is not.
Arguments of the Parties
The applicant accepts that it is within the discretion of the Attorney General to decide whether or not to certify a person seeking to be admitted as a lawyer in the country under s. 25 (3)(d) of the Act. But that discretion he submits must be exercised within the ambit of the Act and in particular subsection (1) of that provision as elaborated in subsection (2) and (3). On the requirement of sitting an examination, the applicant argues that, an examination is necessary only if an applicant fails to provide sufficient evidence of both his and or her academic and practice qualifications.
In his case, he argues that the Attorney General was satisfied and indeed impressed with evidence he provided in relation to both his required academic and practice qualifications as well as his personal background, standing and character as a lawyer. Despite that, the Attorney General decided not to waive the examination requirements and effectively refuse to certify him under s. 25(3)(d) of the Act as "a fit and proper person" because of an alleged policy not to waive that requirement. The alleged policy has not been formally stated and or announced in any manner, prior to its application against the applicant. This, the application argues, was not a proper reason and one, which fell outside the ambit of the Act and the requirements an applicant for admission, as a lawyer is to meet. Therefore the Attorney General erroneously refused to grant the waiver sought. Accordingly, he argues for a waiver of the requirements for certification by the Attorney General under s. 25 (3)(d) of the Act and for admission as a lawyer.
The Attorney General takes no issue on the applicant having met the required academic and practice qualifications. Also, he takes no issue that, the applicant is otherwise "a fit and proper person" to be admitted has a lawyer. The only issue he takes is that, he as discretion not to certify the applicant as "a fit and proper person" as a matter of policy not to waive the requirements for sitting an examination. In furtherance of his position, reference is made to the years that have past since independence and there being a good number of Papua New Guinean lawyers being admitted and practicing law. Furthermore, he argues that since he is charged with a duty to make a policy decision, this Court is not the proper forum to review or reconsider his decision.
The Relevant Issues
These arguments give rise to a number of issues for this Court to determine. These are:
These issues are closely related and so they need be considered together. I will therefore approach them in that manner. But before I could do that, it is necessary to set out the relevant facts and I do that first.
The Relevant Facts
The applicant is an Australian. He was born in Brisbane in the State of Queensland on the 5th of November 1955. He undertook primary schooling from 1961 to 1967 at Shorncliffe State School, which is in Brisbane. Then from 1968 to 1972, he attended St. Pauls School at Bald Hills, also in Brisbane.
He commenced is working live with 5 years article clerkship with the firm of Roderick & Beston Solicitors in 1974. During this period he also undertook studies after hours. The lectures were given by practicing barristers and solicitors, Queens Counsels and judicial officers. He further attended various courses conducted by the Queensland Law Society on matters such as obtaining client’s statements, preparation of pleadings, negotiation skills, family law subjects, conducting personal injuries claims, criminal and civil litigation, traffic matters, conveyancing and estate planning, commercial leases. By the end of the clerkship, he had his own portfolio of clients in the areas in which he had clerkship.
On the 17th of July 1979, he was admitted to practice as a Solicitor of the Supreme Court of Queensland. Following his admission, he continued to work with the firm of Roderick and Co as an employed solicitor until late 1983. In late 1983 he formed a partnership with a Peter Wallace and they together practiced under the name Maguire and Wallace, until 1987 when they split up. That saw the applicant practicing on his own under the name of R.G. Maguire.
In 1989, the applicant decided to become a barrister so he merged his firm with a Brisbane firm known as Lister Mann & Ffrench, with a view to being admitted as a barrister in mid 1990. That happened on the 16th of July 1990, when he was admitted as a Barrister of the Supreme Court of Queensland. Since then, he has been practicing as a barrister. Meanwhile, his name was removed from the Roll of Solicitors, by operation of Queensland law on being admitted as a barrister.
During his years of practice as a Solicitor, he worked in a wide range of legal fields. These included civil debt recovery, commercial disputes, insurance claims, personal injuries, both small and large scale property developments, leases and rents, sales and property claims and mortgages. He also acted in family law matters, such as domestic violence, divorce, property, maintenance and custody disputes. Further, his work covered a wide range of police and other criminal matters, ranging from disorderly behaviour or minor traffic offences to attempted rapes and charges of dangerous driving causing death.
He had a good working relationship with the local police that he regularly got invited to speak on behalf of the legal profession at the local police functions, during his time as a solicitor. Similarly, he had a good relationship with community and sporting organizations for which he provided his service in an honorary capacity. During this time, he also continued to attend courses conducted by the Queensland Law Society as part of his continuing legal education.
In his years of practice as a barrister, he continued to do work for a number of private clients but the majority of his work was for government agencies, most of which were for the Commonwealth and a number for the Queensland government, and some local government planning matters. The nature of the work he under took were criminal prosecution and defence, statutory duties and responsibilities, lawyers conduct, insurance claims, state liability, banking and other finance related law and regulations, debt recovery, taxation and stamp duties, legislative drafting and training of officers for statutory authorities. He was involved in a number of high profile litigation ending up in the Supreme Court of Queensland, where the Prime Minister of Australia and his Defence Minister were parties. These cases involved billions of dollars, immunity of Australian agents serving overseas, customs exercise and refunds, duties of tobacco companies, trade practices, fraud, damages, detinue and equitable estoppel. His Bar Association recognizes him as an expert in the area of customs exercise.
He also has a wide range of experience in the field of administrative law and he has worked with a good number of senior practitioners who have been eventually appointed as judges. These persons included Callinan J. of the High Court of Australia, Dutney J. of the Supreme Court of Queensland and several others. In some of the cases, he had acted against other senior members of the bar such as John Griffin QC, who occasionally appears before this and the Supreme Courts here.
In terms of his academic qualifications, he completed examinations held by the Solicitors Board of Queensland and completed his five years article clerkship. This is the equivalent of an undergraduate degree. Now the Queensland University of Technology administers the examinations. On the basis of his qualifications and experience, he was admitted to a Master of Laws degree with the University of Queensland in Brisbane and completed at Bond University at the Gold Coast. He achieved grades of distinction and high distinction in all of his studies. He also has a certificate in Workplace Training.
Following his masters’ degree, he tutored at both the Bond and Queensland Universities in the courses of introduction to law, criminal law, evidence and civil procedure. Further, he lectured at the same universities in evidence as an expert. More recently, he has been offered a scholarship for PhD studies in constitutional law in the area of environmental and planning laws.
In terms of his personal character and record, he has no criminal conviction or any record of ever being charged with an offence of any nature. Copies of some of the necessary documents are annexed to his affidavit sworn on the 29th of July 2003. Included in the annexures is a letter dated 18th July 2003 from the Bar Association of Queensland. This letter confirms his admission as a barrister and confirms having no record of complaints or convictions against his name or an order or direction for a removal of his name from the Roll of Barristers. There is also a letter from the Chief Justice of Queensland, Paul de Jersey dated 22nd July 2003, certify the applicant as a fit and proper person to be admitted to practice as a legal practitioner.[1]
Mid this year, the applicant wrote to the Attorney General, Mr. Francis Damem seeking a waiver of the requirement for examination before the issuance of his certificate of fitness under s. 25(3)(d) of the Act. On the material presented before him, the Attorney General was "impressed with the gentleman’s high educational qualification and wide experience."[2] But he declined to grant the application. He reasoned that:
"... after 30 years of Papua New Guinean lawyers passing out from our institutions, I do not, as a matter of policy see it appropriate to exercise waiver of the requirements provided for under the Lawyers Act. I consider that the general intent and purpose of Section 25 of the Lawyers Act is to require all foreign lawyers to sit for exams. Therefore, it would be contrary to the intent and spirit of the Act to continue to invoke the waiver under section 25(5) of the Lawyers Act."
Before arriving at that decision, the Attorney General neither required the applicant to attend before him for a personal interview nor did he require the applicant to provide further evidence of the required academic and practice qualifications in accordance with s. 25(4) of the Act.
The applicant has now come to this Court seeking a waiver of the requirements for a certificate of as a "fit and proper person" by the Attorney General, given the position the Attorney General has taken.
I consider it appropriate to start a consideration of the application with an examination of the requirements for admission under the Act first. Then I will consider whether the applicant meets those requirements in this case, warranting a grant of his application.
The Requirements for Admission as a Lawyer
The Act and the Lawyers Admission Rules 1990 (the Rules) govern the admission of lawyers to practice law in Papua New Guinea. The relevant provisions are ss.25, 26, 27 and 28 under the Act and ss. 1, 2 and 3 under the Rules. Sections 26 and 27 of the Act and ss. 2 and 3 of the Rules provide for the mode and manner in which such an application can be made and where it ought to be made. There is no issue in relation to the requirements under these provisions. I therefore take it that the applicant has met all of these requirements. Indeed a perusal of the documentation in this file confirms that position.
The arguments in this case are centred on the requirements under s.25 of the Act and s.1 of the Rules. These provisions read in these terms:
"25. Qualifications for admission.
(1) An applicant for admission to practise shall satisfy the Court that he possesses the required academic and practise qualifications and that he is a fit and proper person to be admitted as a lawyer.
(2) The required academic qualifications referred to in Subsection (1) are —
(a) possession of the degree of Bachelor of Laws from the University of Papua New Guinea; or
(c) such other academic or educational qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2).
(3) The required practice qualifications referred to in Subsection (1) are —
(a) a certificate in the form prescribed by the Rules made by the Admission Council under Section 25A(2) signed by the Director of the Papua New Guinea Graduate Legal Training Institute certifying that the applicant has successfully completed the course of training conducted by that Institute; or
(b) a certificate from the appropriate overseas authority certifying that the applicant was admitted to practise in a country prescribed by the Rules made by the Admission Council under Section 25A(2) together with evidence that the applicant has practised as a lawyer in a country prescribed by the Rules made by the Admission Council under Section 25A(2) for a period of not less than three years following the date of his admission to practise in that country; and
(c) such other practice qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2); and
(d) a certificate signed by the Attorney-General that the applicant is a fit and proper person to be admitted to practice in Papua New Guinea.
(4) In determining whether or not to grant a certificate under Subsection (3)(d), the Attorney-General may require the applicant —
(a) to attend before him for a personal interview; and
(b) to produce to him such evidence of his fitness and academic and practice qualifications as the Attorney-General thinks fit.
(5) Where the Attorney-General is of the opinion that an applicant has not provided adequate evidence of his academic and practice qualifications, he may require the applicant to sit examinations and for this purpose may set such examinations."
"1. Qualifications for admission.
(1) The required academic qualifications for the purposes of Section 25(2)(b) of the Act is a law degree, or other qualification equivalent in standard and content to a law degree from the University of Papua New Guinea.
(2) The certificate required by Section 25(3)(a) of the Act that the applicant has successfully completed the course of training conducted by the Legal Training Institute shall be signed by the Chairman of the Council, and the Director of that Institute and shall be in Form 1.
(3) For the purposes of Section 25(3)(b) of the Act, the countries are Australia, New Zealand and United Kingdom of Great Britain and Northern Ireland."
A combined reading of these provisions makes it clear, in my view that, that a person applying for admission to practice law in the country has to meet the following requirements:
(1) appropriate academic qualifications; and
(2) appropriate practice qualifications; and
(3) show that he or she is a "fit and proper person" to be admitted as a lawyer.
Appropriate academic qualification means, "a possession of a degree of Bachelor of Laws from the University of Papua New Guinea; or such other academic or educational qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2)."[3] The alternative can be "other qualification equivalent in standard and content to a law degree from the University of Papua New Guinea.[4]
As for the requirement for appropriate practice qualifications, it means two things. These are, first in the case of an applicant who as a law degree from the University of Papua New Guinea, it means a certificate from the Director of the Legal Training Institute certifying that the applicant has successfully completed a course of training conducted by that Institute. In the case of an applicant who has been admitted to practice law in certain prescribed countries outside PNG, it means a certificate from an appropriate authority certifying that the applicant has been admitted to practice law and such other requirements of the Rules. The prescribed countries are Australia, New Zealand, United Kingdom of Great Britain and Northern Ireland.
Secondly, there must be a certificate from the Attorney General that the applicant is "a fit and proper person to be admitted to practice in Papua New Guinea."[5] In order to determine whether or not the applicant is "fit and proper person", the Attorney General may require the applicant to attend on him for an interview and "produce to him such evidence of his fitness and academic and practice qualifications as the Attorney-General thinks fit."[6] If through these process, the Attorney General is of the view that the "applicant has not provided adequate evidence of his academic and practice qualifications, he may require the applicant to sit examinations and for this purpose may set such examinations."[7]
My brother Justice Sevua in, In the Matter of the Lawyers Act 1996 and In the Matter of An Application by Peter Norman Moore[8] said:
"The discretion to hold an applicant a fit and proper person to practice is a discretion which rests solely on the Attorney General by virtue of s. 25(3)(d). I cannot see any concurrent discretionary powers here to be exercised by the Court and the Attorney General. In my view, the Attorney General’s discretion is a matter of policy decision which this Court cannot interfere with unless the exercise of such a discretion is outrageous or is exercised unlawfully, for instance on the basis of race, sex or religion.
...
Because the Lawyers Act 1986 does not give the Court any discretion under s 25 (3)(d) in a situation where the Attorney General, in its discretion, has refused to issue a certificate, I have no discretion to exercise and I consider that I would be in error if I step in and exercise a discretion which I do not have."
In that case, the Attorney General refused to issue a certificate certifying that the applicant was a "fit and proper person" to be admitted as a lawyer. After noting that, His Honour said this at page 473:-
"That discretion as I said, is vested in the Attorney General alone. Since he has exercised it and has refused to issue a certificate, how then could I go around this refusal without offending a discretionary power of the Attorney General? In my view, I can not challenge the Attorney General’s exercise of his discretion unless it can be established that he has acted unlawfully, maliciously or in excess of his jurisdiction."
The Attorney General relies on this case and argues effectively that it is not open to this Court to overrule him because whether or not to certify that applicant is a policy matter which is a subject that is best left to the politicians and bureaucrats. But this argument overlooks the concluding sentence in the last of the above quotes. As far as I can see, His Honour did not rule out the power vested in this Court to review and where appropriate overrule the Attorney General, in cases where he arrives at a decision that is malicious, illegal and or in excess of his jurisdiction.
Further, with respect, His Honour appears not to have given any consideration to s.28 (2) in the context of discussing the meaning and effect of s.25 (3)(d) of the Act. This omission in my view, denied His Honour the opportunity to appreciate that, s. 28 (2) covers even the requirement for a certificate as a fit and proper person.
The Supreme Court considered that provision in, Papua New Guinea Law Society v. Martin Dennis McEniery[9] and said:
"The test to be applied is not ‘on the balance of convenience’ but whether there has been substantial compliance with s. 25 of the Act. In this case Mr. McEniery, despite his other qualifications has only minimal post admission experience in the practice of law in a prescribed country, well short of the required period of three years. On any view, this could not be said to be substantial compliance with the legislation and, therefore, he is not qualified for admission as a lawyer in Papua New Guinea at this time."
As will be apparent from the view expressed by the Supreme Court, there is no doubt that the requirements under s.25 of the Act can be waived. This is consistent with the s. 28(2) of the Act which vests a discretion in the Court to waive all or any of the requirements of s. 25 of the Act. The Supreme Court thus in my view, spoke only on the test to be applied when an application is made for a waiver rather than what can be waived and what can not be waived.
In, In the Matter of the Lawyers Act 1986 (as amended), and In the Matter of an Application by Godwin Haumu for Admission as a Lawyer, [10] I considered the requirements under s. 25 in the context of s. 28 of the Act. Then I observed that as long as the requirements under s. 25 of the Act are met, there is nothing preventing the Court from granting an application for admission. That observation I said:
"... accords well in my view, with the general import of the Supreme Court decision in the Martin Denise McEniery (supra) case where the Supreme Court said, the appropriate test is ‘whether there is substantial compliance’ with the requirements under s. 25 of the Act. Thus, in the context of a s. 25(3)(d) issue, there would be substantial compliance of the requirements of the Act if there were a certificate from the Attorney General certifying the applicant as a ‘fit and proper person’. The only way to get around that is to show by appropriate evidence that, the certificate was obtained unlawfully, maliciously or in excess of jurisdiction to use the words of Sevua J in Peter Norman Moore (supra) case. I add that, if there is prove of the Attorney General taking into account irrelevant factors or failing to take into relevant factors before deciding to issue his certificate or that he was actuated by fraud or bias towards the applicant, only then, could one go behind the certificate of the Attorney General."
That was in a case in which, the Attorney General gave his certificate under s. 25(3)(d). Despite that, the Law Society opposed the application, without questioning the issuance of the certificate.
I am of the view that, in a case where the Attorney General declines to issue his certificate under s. 25(3)(d), what I said in the above case equally applies with the necessary modifications to reflect the fact that it is a case of no certification. These views accord well with the established principle that there is no such a thing as unfettered discretion. All discretion that is vested in a public authority must be exercised in accordance with the requirements of the law and for good reason.[11]
In my view, any discussion on the question of whether a person is "a fit and proper person," one must bear in mind the meaning of that phrase. In the application of Mr. Goodwin Haumu, I discussed that. In so doing, I had regard to the decision in Re John Sifta[12] and Costello v. Controller of Civil Aviation[13]and said:
"I am of the view that, that phrase does not concern the academic or practice qualifications, which are already specifically provided for by the earlier parts of s. 25. Instead, I am of the view that, this has to do with the character, reputation or standing of the person applying to be admitted as a lawyer. That question may be determined by having regard to a number of factors. Without limiting the list I consider the following factors relevant:
After elaborating on these factors, I expressed the view that these are necessary and important factors because of the very nature the legal profession is. Hence the profession and the society as a whole expects the highest level of good conduct from lawyers. Thus, it would be in the best interest of the profession and indeed the legislation to admit persons to practice law who have proven skills and knowledge and have something to contribute to the development of the law and its practice. In addition to that, I said there is a requirement for an applicant to be of good standing and character, having shown respect for law and order, he or she is trustworthy, his or her integrity is beyond any question and does have the necessary language skills to conduct themselves as a lawyers. I then said:
"The power to make a decision as to whether a person is a fit and proper person to be admitted as a lawyer is vested in the Attorney General by virtue of s. 25(3)(d) of the Act. That discretion should be exercised after having regard to the above factors and taking into account all the factors that need to be taken into account, including any policy matters. Only if it is shown that, due to circumstances beyond the control of the applicant it is difficult to obtain such a certificate from the Attorney General and the case is proven to be one which requires a waiver of meeting that requirement, then the Court may assume that responsibility and determine the question of whether or not the applicant before it, is a ‘fit and proper person’ to be admitted as a lawyer as did his Honour, Brown J. in In the Matter of the Lawyers Act and In the Matter of an Application by Egerton MacPherson Robb [1995] PNGLR 462 at 466. Once, the discretion vested in the Attorney General has already been exercised than as Sevua, J. said in the application of Peter Norman Moore (supra), the Court has no discretion to go behind the certificate. That is subject to the exceptions mentioned in that judgment and those mentioned above."
Present Case
In the present case, I note that the Attorney General decided that the applicant has to sit for an examination. This effectively, meant that he was not prepared to certify the applicant as "a fit and proper person" although he was "impressed with the gentleman’s high educational qualification and wide experience."[14] The Attorney General’s reasoning was that, as a matter of policy, it was inappropriate for him to waive that requirement. In so doing, he noted that Papua New Guinean lawyers have passed out of our institutions for 30 years now and the general intention and spirit of the Act is to require all foreign lawyers to sit for exams.
The Attorney General did not specify, where, when and how the policy he speaks of was brought to the attention of the public and more importantly people who might seek to be admitted to practice law in PNG. As I noted in Jack Livinai Patterson v. National Capital District Commission[15] and so did the Supreme Court in Fly River Provincial Government v. Pioneer Health Services Limited,[16] legislation generally state the public policy, which is the intent and purpose of the legislation that might be in question. In this case, it is the Lawyers Act. It follows therefore that one needs to know what is the intention of Parliament behind the provisions dealing with the admission of lawyers in PNG and in particular the admission of foreign lawyers, in order to appreciate the policy behind it.
The Supreme Court in Papua New Guinea Law Society v. Martin Dennis McEniery,[17] considered that issue and decided in these terms:
"... there is clearly discernible in the legislation, a policy and intention to restrict the admission of foreign lawyers in Papua New Guinea to those applicants who comply with the strict provisions of s25 of the Act subject only to the Court's power of a waiver in individual cases. ...The intention of the legislature may be seen by the repeal of the previous s8 of the Act and the amendments thereto. Thus by further regulating the admission of foreign lawyers there is an intention to protect lawyers who have obtained their academic and legal practice qualification in Papua New Guinea against lawyers from the prescribed countries who do not have a minimum of 3 years post-admission practising experience."
In a short, it is clear that the intention of Parliament is to restrict and regulate the admission of foreign lawyers from any of the prescribed countries such as Australia. The aim is to protect Papua New Guinean lawyers from lawyers admitted in any of these countries who might not have met the minimum practice requirements of 3 years. It is clear therefore that, Parliament did not intent to prevent foreign lawyers from being admitted to practice in countries outside PNG from being admitted to practice law in PNG, as long as such persons meet the requirements under s. 25 (1) and (2) of the Act. That is the standing policy on the subject of admission of foreign lawyers.
The Attorney General took a position that was not in line with that. We therefore need to consider that position at law. It is generally accepted that legislation is an expression of policy. In other words, policy is usually translated into Acts of Parliament. Such policy expressions can be changed anytime through Parliament. That is usually effected through a change to the legislation, which is the prerogative of Parliament. Parliament can cause the change, either thorough partial amendment to existing legislation or by repealing and replacing an existing legislation. Individual, political heads and bureaucrats can only apply what Parliament has enacted. If they want any changes then, they only have the power to recommend to the National Executive Council and ultimately Parliament to cause the changes, as they consider appropriate. Until Parliament approves by an enactment of the necessary changes, individual politicians and bureaucrats and everybody else is obliged to follow the law as it is.
In this case, as far as I am aware, there has been no shift through Parliament in the policy stated in the present Act. The policy on the sitting of an examination in preparation for admission of foreign lawyers is as stated in s.25 (5) of the Act. This provision provides that:
"(5) Where the Attorney-General is of the opinion that an applicant has not provided adequate evidence of his academic and practice qualifications, he may require the applicant to sit examinations and for this purpose may set such examinations."
Put in another way, the policy is only where the Attorney General is not satisfied that the applicant has provided adequate evidence of his academic and practice qualifications, he may require the applicant to sit an examination he sets. The requirement for examination is optional and is one which the Attorney General may require, if he is first satisfied that the evidence of the applicant’s academic and practice qualifications are not sufficient. Thus, it is clear to me that he can not require an applicant to sit an examination unless, he has first come to a decision that the evidence of the applicants’ academic and practice qualifications are insufficient. All of these are within the main policy behind the Act, which is to regulate the admission of foreign lawyers and not to prevent them form being admitted.
In the case before me, the Attorney General was impressed with the applicant’s academic and practice qualifications. I am also satisfied that the applicant is qualified both academically and practice wise. The evidence before me, which was what was placed before the Attorney General too, also makes it clear that the applicant is of good moral and legal standing in his country, Australia, which is confirmed by the lack of any evidence of conviction or charge of any sort against him. Further, he has been involved as a barrister in some very high profile cases ending up in the Courts, particularly, the customs exercise area so much so that he is considered as an expert. He has also taught at university levels, a number of law subjects and in particular in the law of evidence as an expert. This gives me the impression that, if the applicant were admitted here, he would, be in a position to impart his skills and knowledge to Papua New Guineans, given his interest in teaching.
Given these, there was no reason to require the applicant to sit an examination and hence deny him a certificate as "a fit and proper person", by the Attorney General. Despite that, the Attorney General decided that the applicant should sit an examination, by refusing the applicant’s request for a waiver, making reference to a policy that was non-existent and in any event contrary to the requirements of existing law which in turn states the policy. The law and policy is for the Attorney General to require an applicant to sit an examination only where he is first satisfied that the applicant has not provided sufficient evidence of his academic and practice qualification, within the context of the main policy already discussed. The converse of this legal position is clear. If the Attorney General is satisfied of an applicant meeting the required academic and practice qualifications and is of such good standing and character as a lawyer, there is no impediment for the applicant to be issued with a certificate as "a fit and proper person".
Here, the Attorney General was satisfied that the applicant met these requirements, when he came to the conclusion that he was "impressed with the gentleman’s high educational qualification and wide experience."[18] Having arrived at that conclusion, he had no discretion other than to waive the examination requirement and eventually his certificate of fitness. Instead of doing that, the Attorney General effectively required the applicant to sit an examination reasoning as he did. The purported policy was clearly outside the clear policy behind the Act. The decision was a decision in excess of his jurisdiction and is in any case a decision that is illegal to the extent that the decision and the reasons for it fall outside the scope and or ambit of the Act.
I am satisfied at the same time that, the applicant has met all of the requirements under s.25 of the Act except for the certification requirements under s. 25 (3)(d). The Court has now found that the Attorney General has erred in effectively
failing to issue the applicant the appropriate certificate in accordance with the dictates of the evidence before him. Given this
finding and the law as discussed, I am satisfied that the requirement for the Attorney General’s certification under s. 25(3)(d)
should be waived and I so order. Similarly, given the applicant’s academic and professional qualifications, I am of the view
that he is qualified for admission as a lawyer to practice law in Papua New Guinea, and I make orders in those terms.
_______________________________________________________________________
Lawyers for the Applicant: Possman Kua Aisi Lawyers
Lawyers for the Attorney General: Nonggorr & Associates
[1] Annexure “C” to the applicants affidavit sworn on 29th of July 2003.
[2] From letter dated 1st July 2003 from the Attorney General to the applicants lawyers, Possman Kua Aisis, Lawyers, which is annexure “C” to the
applicants affidavit.
[3] S.25(2) and
[4] S.1(1) of the Rules.
[5] S.25 (3) (d) of the Act.
[6] S.25 (4) (a) and (b) of the Act.
[7] S.25 (5) of the Act.
[8] [1993] PNGLR 470, at pp. 472 and 473.
[9] [1993] PNGLR 76 at p. 79.
[10] (Unreported National Court judgement delivered 06/04/01) N2094.
[11] See The Application of Moge Enga and Kuipi Group in the Matter of a Decision of the Minister for Lands Concerning Section 30 Allotment
7 Mt. Hagen [1995] PNGLR 246 and An Application of the NCDIC [1987] PNGLR 339 as well as Pius Sankin, Jimmy Lingau and James Numbunda v Papua New Guinea Electricity Commission (ELCOM) (Unreported judgement delivered on 19/07/02) N2257.
[12] [1975] PNGLR 435.
[13][1977] PNGLR 229.
[14] Supra note 2.
[15] (unreported judgement delivered 05/10/01) N2145.
[16] (unreported judgement delivered on 24/03/03) SC705, at p.16.
[17] Supra note 9.
[18] Supra note 2.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2003/49.html