Special Reference Pursuant to Constitution Section 19; Section 365 of the Income Tax Act [1995] PGSC 3; SC482 (29 June 1995)

Unreported Supreme Court Decisions

SC482

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR NO. 1 OF 1993
SPECIAL REFERENCE PURSUANT TO CONSTITUTION SECTION 19 - RE: SECTION 365 OF THE INCOME TAX ACT
REFERENCE BY THE PRINCIPAL LEGAL ADVISER

Waigani

Amet CJ Kapi DCJ Los J
30 August 1994
29 June 1995

CONSTITUTIONAL LAW - Special Reference under Section 19.

CONSTITUTIONAL LAW - Is there an enforceable Constitutional right under s 37(1)? The meaning and practical effect of s 37(1) discussed.

CONSTITUTIONAL LAW - Can the right under s 37(1) be qualified by an Act passed in accordance with s 38 of the Constitution.

CONSTITUTIONAL LAW - Does an Act which make reasonable provision for search and entry in connection with purposes specified under s 44(a) have to comply with s 38 of the Constitution.

Counsel

F Damem Counsel for the Negative case

B Ninai Counsel for the Affirmative case

29 June 1995

AMET CJ: This is a Special Reference by the Principal Legal Adviser (PLA) made pursuant to Constitution s. 19 seeking the opinion of the Court on the following questions relating to the interpretation and application of several provisions of the Constitution. The questions are:

1. Does Section 37(1) of the Constitution create an enforceable Constitutional right?

2. If yes to Question 1, can the right created by s. 37(1) be qualified by an Act passed in accordance with Section 38 of the Constitution?

3. Does a law which makes reasonable provision for search and entry in connection with purposes specified under paragraph (a) of Section 44 of the Constitution have to comply with Section 38 of the Constitution?

It was the Referors’ contention that the Reference of these issues had been necessary to deal with the legal and practical problems created or arising from the Courts’ judgement in SCR No. 3 of 1990 - Reference Pursuant to Constitution Section 18(2) concerning Section 365 of the Income Tax Act (the Act).

FACTS IN SCA 3 OF 1990

The Chief Collector of Taxes, the first defendant signed documents authorising his officers to exercise powers pursuant to s.365 at the premises of the Plaintiffs Coopers and Lybrand. The purpose of the search was to obtain information so as to assess or re-assess tax payers, for whom the Plaintiffs acted as accountants and tax agents, whose taxation affairs were the subject of audit.

The officers of the Chief Collector attended upon the office premises of the Plaintiffs and proceeded to conduct search and to examine and obtain copies of files and documents from files of the Plaintiffs’ clients. The Plaintiffs requested the officers to suspend the inspection in order to allow them to obtain legal advice as to whether any documents in their possession attracted legal professional privilege. This request was denied.

The Plaintiffs sought Court declarations, inter alia, that the actions of the Chief Collector and his servants and agents, constituted a breach of the Plaintiff’s right under s.37(1) of the Constitution, to the full protection of the law in that they were denied their rights at common law to seek legal advice to determine their duties to taxpayers on whose behalf they were bailees of the files and documents.

Another issue posed was whether the actions of the defendants pursuant to powers conferred by s.365 were unlawful by reason of the Act not having complied with the requirements of Constitution s.38, if actions pursuant to s.365 infringed rights under Ss.37(1), 44 and 49 of the Constitution.

The Court answered each of these principal declarations sought in the affirmative.

Section 365 of the Act provided as follows:

(1) The Chief Collector, or an officer authorized by him in that behalf, shall at all times have full and free access to all buildings, places, books, documents and other papers for any of the purposes of this Act, and for that purpose may seize, retain and remove for inspection or make extracts from or copies of any such books, documents or papers.

(2) The occupier of a building or place entered or proposed to be entered by the Chief Collector, or by an officer under Subsection (1), shall provide the Chief Collector or the officer with all reasonable facilities and assistance for the effective exercise of powers under this Section.

It was submitted for the PLA that there are three problems arising from the Supreme Court judgement in SCA 3 of 1990, and they were advanced under the following headings:

(A) UNREASONABLE EXERCISE OF POWER

It was argued that the ruling that access to Coopers and Lybrand premises and documents was unreasonably exercised will be of some concern to all government agencies which exercise search power, because, it was said, if by that ruling the Court implied that future exercise of search powers must afford opportunity for the person or firm to seek legal advice before access is exercised them from a practical standpoint this is unrealistic, and an attempt to comply with such a requirement will seriously compromise the usefulness of search and access. It was added that because in most cases where the need for search arises, the element of surprise is essential to the success of the operation. As a consequence the Court’s decision has the effect of destroying the effectiveness of the power of search.

It was further argued that if the Court’s ruling were limited to the “unreasonable” manner in which the tax officers acted, it would be rectifiable. But the Court ruling went further, to the very nature of the power of access under s 365 which it ruled interfered with the right to the protection of the law, under Constitution s.37(1).

(B) NON-COMPLIANCE WITH CONSTITUTION SECTION 38

The second difficulty with the judgement, it was submitted, was the ruling that the compliance clause in s 53 of the 1988 Act should have covered all three rights under ss 37(1), 44 and 49. This had the effect of subjecting s.44 generally to s 38 even where the law is made for the purposes specified in paragraphs (a)(i) to (vi) of s.44. This, it was submitted, was clearly not considered by the Court.

(C) PROTECTION OF THE LAW (SECTION 37(1) AND SECTION 38) OF THE CONSTITUTION

The ruling that the compliance clause needed to cover all three rights, including s 37(1) is the third difficulty. It was argued that ss 44 and 49 are both qualified rights found in Part III Subdivision C and are capable of being qualified by s 38, whereas s 37(1) is a fundamental right falling in Subdivision B which is not capable of being qualified by s 38. The implication that the s.37(1) right is capable of being qualified by a s 38 compliance proviso, it was submitted, was clearly wrong.

Q1. DOES SECTION 37(1) OF THE CONSTITUTION CREATE AN ENFORCEABLE CONSTITUTIONAL RIGHT?

Section 37(1) is in the following terms:

“Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences”.

The lawyer for the Principal Legal Adviser, the Solicitor-General, Mr F Damem has submitted that s 37(1) does not create a constitutional right which is enforceable. It was submitted that if s 37(1) was creating a substantive right it should have said so. It was further submitted that rather the section recognises that rights created in the succeeding subsections (2) to (20) and other laws are protected by subsection (1). It was submitted in conclusion therefore that, over the years the several times that the National and Supreme Courts had dealt with s 37(1) the Courts had misinterpreted and misapplied the section in treating it as an enforceable right which was capable of being breached.

Mr Damem referred to the decision of Justice Bredmeyer in the case of Tom Amaiu v The Commissioner of Corrective Institutions and the Independent State of Papua New Guinea (1983) PNGLR 85, wherein His Honour dealt with the meaning and application of Constitution s 37(1) at p 89. I will deal with the passage a little later. Mr Damem submitted that Justice Bredmeyer’s judgement was obviously made on the premise that s 37(1) is an enforceable constitutional right, but that this premise was incorrect.

Alternatively, it was submitted that even if s 37(1) is held to be an enforceable right, its application would be limited to persons in custody or charged with offences. A passage in the text “The Constitution of Papua New Guinea” by John Goldring at p 218 which stated; “The provisions of Section 37 will apply only to cases where a person may be convicted of an offence which renders him liable for a serious penalty”, was relied upon to support this submission. It was submitted that s 37(1) cannot be invoked in respect of rights of people who are not charged with offences or in custody generally.

Finally, it was submitted that the Supreme Court in SCR No. 3 of 1990 erred when it ruled that s 37(1) applied to the exercise of powers of the Internal Revenue Commissioner pursuant to s 365 of the Income Tax Act to enter premises, seize, retain and remove for inspection documents and other assets belonging to or in the custody of the occupants of premises entered.

Mr B Ninai, a senior officer in the Solicitor-Generals office appeared as friend of the Court, to assist the deliberations of the Court by arguing the affirmative case. He posed the issues in this question in two parts. Firstly, whether s 37(1) creates a right, and secondly, if so, whether such a right is enforceable.

Mr Ninai referred also to the same passage of Justice Bredmeyer’s judgement in Amaiu’s case (supra) referred to by Mr Damem. Mr Ninai also referred to Justice Bredmeyer’s judgement in University of Papua New Guinea v Ume More & Others [1985] PNGLR 48 wherein s 37(1) was dealt with, plus State v Mana Turi [1986] PNGLR 221 in which McDermott, AJ also dealt with s 37(1).

I will refer to the relevant passages of those judgements later.

In essence, it was submitted, for the affirmative answer, that these cases clearly established that, the combined effect of the phrases “Every person has the right to the full protection of the law” and “that right” operate to create a right under s 37(1).

It was further submitted that once it was established that a substantive right was created, it automatically followed that it is enforceable pursuant to s.57 of the Constitution.

It is useful now to refer to the cases referred to by the lawyers for the two sides and the passages in those cases that were attempted to be interpreted to support the different propositions being contended for.

In Amaiu’s case (supra), the applicant who was a prisoner confined in the maximum security Division B of the Bomana Corrective Institution, had made application pursuant to the Constitution for enforcement of his constitutional rights and damages for, inter alia, having been kept in solitary confinement, of being punished by being made to double up and other alleged infringements of his constitutional rights.

After setting out s 37(1) of the Constitution Justice Bredmeyer stated:

“This subsection means that every aspect of treatment given to a detainee in “B” Division must be covered by a law which for practical purposes means a provision contained in the Corrective Institution Act, Regulations or in the Commissioners Orders and Instructions. The Constitutional provision means that no aspect or at least no major aspect of a prisoner’s treatment in “B” Division should be at the whim of the Officer-in-charge of that Division or of any warder; the warders must treat a prisoner in accordance with the laws. If they fail to do so, the prisoner can seek redress under s 57 of the Constitution which gives wide powers to the National Court and the Supreme Court to enforce fundamental rights provisions. Section 37(1) means that if some aspect of the prisoners treatment in “B” Division is not regulated by a law then the section has been breached. It also means that if there is a law on some aspect of prisoner treatment, and that law is breached by the prison staff, the prisoner can claim that he has not been given the full protection of the law and under ss 57 and 58 can get redress from the Courts in the form of damages or an order compelling the warders to do something or ordering them not to do something.”.

In Ume More’s case (supra) Justice Bredmeyer said at p 55 that:

“Section 37 says: ‘Every person has the right to the full protection of the law’. It then goes on to make particular provisions about people charged with criminal offences and people in jail, but just stopping at the first part, at the first comma, every person has the right to the full protection of the law. That means that a person affected by a law has the right that the law be applied properly in relation to him, and that officials appointed by law or under the law have the duty to act in accordance with the law.”

The final reported National Court case was The State v Mana Turi (Supra). In ruling on an objection to the admissibility of the record of interview in a criminal trial, Acting Justice McDermott (as he then was) said at pp 223-224:

“This raises two consideration - the applicability of constitutional provisions and the applicability of the “Judges Rules”. I will deal first with the constitutional provisions as defence counsel has relied upon the Constitution s 42.

However another section is also relevant. The Constitution s 37(1), says that every person has, “the right to the full protection of the law ..... “ This is then amplified by the succeeding provisions of the section. ..... The section does not particularise the bold assertion that, “Every person has the right to the full protection of the law” as is done in the Fifth Amendment, and further as the succeeding words only indicate that some particularisation follows, it appears to me that this clause can stand by itself. Indeed, those words themselves speak of “that right”, which can only mean “the full protection of the law”. I am reinforced in this view because of the fundamental rights and freedoms of the individual set out in the “Basic Rights”of the Preamble to the Constitution, cl 5. The first listed are: “...... life, liberty, security of persons and the protection of the Law”. That being so, the clause means something in itself, “.... especially to persons in custody or charged with offences”.”

I am of the opinion, supported by these three National Court decisions and affirmed by the Supreme Court in SCR 3 of 1990 that s 37(1) does create an enforceable right. It is a Fundamental Basic Right, falling as it does under Division 3 Subdivision B. It is a substantive right capable of enforcement.

Just as the other two main Fundamental Rights under Subdivision B - s.35, Right to life and s 36, Freedom from inhuman treatment - are capable of enforcement, so are the s 37 rights to the “Protection of the law” capable of enforcement, including subsection (1).

The principal issue is “what is the right”. Section 37(1) declares that “Every person has the right”. What then is “the right”? The right quite simply is “to the full protection of the law”.

I consider that Bredmeyer, J. was correct in his interpretation of the meaning of s 37(1) in Amaiu’s case, in the passage quoted above. I also consider that s 37(1) means that if a particular action or conduct against or in relation to or affecting a person is not permitted by or according to the law, then that person may claim that his “right to the full protection of the law” has been breached. It also means that if there is a law/principle of law, regulation, rule etc. that governs or regulates particular conduct or action, and that law is breached or not complied with, the person aggrieved by that conduct or action can claim that his “right” to “the full protection of the law” has been breached, and under ss 57 and 58 he can seek “protection” from the Courts, in the form of damages or an order compelling the offending party to comply with the requirements of the particular law that affords “full protection” to the person aggrieved.

This is also entirely consistent with the following statement by Bredmeyer J. in Ume More’s case:

“That means that a person affected by a law has the right that the law be applied properly in relation to him, and that officials appointed by law or under the law have the duty to act in accordance with the law.”

I would add again that if officials, such as police, custom officers, taxation officers and numerous others who have statutory duties to perform under various laws, or indeed anyone also in a legal relationship who has a legal duty to comply with the law or apply the law properly in relation to another person, fail to comply with the law or to apply the law properly the person affected or aggrieved may seek enforcement of that S.37(1) right by a s 57 or 58 application.

The statement of Acting Justice McDermott in The State v Mana Turi (supra) at p 225 quoted above is also consistent with the interpretation that s 37(1) creates an enforceable right. His Honour said:

“The section does not particularise the bold assertion that, ‘Every person has the right to the full protection of the law’ as is done in the Fifth Amendment, and further as the succeeding words only indicate that some particularisation follows, it appears to me that this clause can stand by itself. Indeed, those words themselves speak of “that right”, which can only mean “the full protection of the law”.”

The Fundamental Basic Right to “the full protection of the Law” is not a mere declaratory statement, it is a substantive right standing by itself and is capable of being enforced.

I now turn to the decision of the Supreme Court in SCR 3 of 1990 which it is claimed by the Referor has given rise to this reference and the questions posed.

The Plaintiffs, Paul Anthony Atwood and 46 Others trading as Coopers & Lybrand conducted business as chartered accountants. They held and maintained files and documents on behalf of clients. The First Defendant the Chief Collector of Taxes signed documents authorising a number of his officers, the Second Defendants, to exercise powers pursuant to s 365 of the Income Tax Act 1959 (as amended) at the premises of the Plaintiffs.

The purpose of the search was to obtain information so as to assess or re-assess taxpayers, for whom the Plaintiffs acted as accountants and tax agents, whose taxation affairs were the subject of audit. The Second Defendants attended upon the premises of the Plaintiffs and proceeded to search, seize and remove documents in the possession of the Plaintiffs. The Plaintiffs requested the Second Defendants to stop the search so that the Plaintiffs may be given the opportunity to review the files for items which might be subject to legal professional privilege. The Defendants refused this request..

The end result of this was the referral to the Court of the following issue:

“Did the actions of the First Defendant, his servants and agents, including the Second Defendants constitute a breach of the right of the Plaintiffs under s 37(1) of the Constitution to the full protection of the law in that they were denied their rights at common law to seek legal advice to determine their duties to taxpayers on whose behalf they were bailees of the files and documents and specifically the Plaintiffs right to obtain advice to permit them to determine which of such books, documents, papers and records were the subject of legal professional privilege.”

In support of the affirmative proposition the Plaintiffs relied upon the ruling in the Australian case of Federal Commissioner of Taxation and Others v Citibank Ltd (1989) 85 ALR 588 in support of the proposition that the English Common Law principle of “legal professional privilege” applied to s 365 by virtue of s 37(1). That was a case of similar entry and search by officers of the Taxation Office, under the equivalent Australian provision s 263, on the premises of Citibank Ltd, an American owned bank carrying on banking business in Australia, in circumstances very similar to entry on the premises of the plaintiffs in the Coopers and Lybrand case.

The Federal Court of Australia held that:

(1) The common law principle of legal professional privilege restricts the operation of s 263. The power of the Commissioner to search and make copies of documents should be read as not referring to documents to which legal professional privilege attaches.

(2) Officers of the Taxation Office were obliged to ensure that Citibank and its staff had in the circumstances an adequate opportunity to make claims of legal professional privilege, which opportunity had not been granted. Having regard to the failure to make proper provision for the assertion and testing of claim of privilege, the way in which the right of access was exercised was beyond power.

The Supreme Court of which I was a member said at p 6 of the judgement:

“The Plaintiffs conduct business as chartered accountants. They hold and maintain files and documents on behalf of clients. We are satisfied that they were denied “adequate opportunity” by the first and second defendants to seek legal advice concerning their obligations to clients for whom they hold files and documents. In particular we are satisfied that they were denied the opportunity to seek legal advice as to claims of legal profession privilege in respect of such files and documents.”

At p 7 the Court further said:

“In the circumstances we believe that the principle should be adopted and applied as appropriate and applicable in the circumstance of this country at the present time. It is applicable to the fact of this case. Though the Plaintiffs do not carry on business as a law firm, like Citibank, they do keep files and documents belonging to clients, which could be of confidential nature. The principle does apply to those documents as well if their contents would justify the claims being made.”

The Court then concluded at pp 7-8:

“We are satisfied that this principle is appropriate and applicable to the circumstances of this country, and it is not inconsistent with custom. It therefore becomes an “underlying law” principle under Sch 2.2 of the Constitution. By virtue of s 37(1) it applied to the Plaintiffs.

We are of the view therefore that this doctrine of legal professional privilege applied to restrict the seemingly unfettered power of the Chief Collector of Taxes under s 365(1) of the Act.

In the end result, in the circumstances of this case, on the facts as have been agreed upon, we are satisfied that the Plaintiffs were denied the opportunity to seek legal advice concerning their obligations to clients for whom they hold files and documents as bailees, in particular as to whether any claims of legal professional privilege may have been available in respect of such files and documents.

To the extend that this is a legal right which needs protection then it is a breach of s 37(1) of the Constitution.”

The Supreme Court concluded that the Common Law doctrine/principle of “legal professional privilege” became, by adoption pursuant to Sch 2.2 of the Constitution, an “underlying law” principle. It became part of the laws of Papua New Guinea - per s 9 of the Constitution. It thus also became a legal “right”.

The Plaintiffs claimed they were not afforded the opportunity to exercise their legal right to seek legal advice as to whether or not they were able to make claims of legal professional privilege in respect of any books or documents. They claimed this was a denial of their “right to the full protection of the law”; that is they were not allowed to exercise their legal right to seek legal advice as to whether or not they were able to make a claim for legal professional privilege in relation to books and documents they held in their custody on behalf of their clients. This was thus in breach of their “right to the full protection of the law” as prescribed by s 37(1).

The Supreme Court upheld these submissions. The Plaintiffs had the “right” to seek the “full protection of the law” relating to legal professional privilege. Because they were denied that right, it was in breach of s 37(1) right. They thus sought remedy for that breach by relying on the provision that prescribed that fundamental basic right, s 37(1).

The Court held that s 37(1) was applicable as a substantive Constitutional right to be relied upon to protect the right to claim legal professional privilege.

This construction and application of s 37(1) by the Supreme Court has affirmed the National Court decisions in Tom Amaiu, Ume More and Mana Turi. Though these three National Court decisions were not discussed specifically in the Supreme Court decision, the decision effectively reinforces the interpretation given by Bredmeyer, J. and McDermott, AJ.

My view remains the same as expressed jointly in SCR 3 of 1990, that the right to claim legal professional privilege is a legal right that can be sought to be protected or enforced by relying on s 37(1) of the Constitution. I am not persuaded that the interpretations given by Bredmeyer, J. and McDermott, AJ are wrong.

The Court concluded in SCR 3 of 1990 that the actions of the Chief Collector of Taxes, his servants and agents in denying the Plaintiffs their “underlying law” right to seek legal advice to determine whether they could claim the further legal right of legal professional privilege was to deny the Plaintiffs “right to the full protection of the Law.”

The law, the full protection of which s 37(1) guarantees the right to, is to be found in the whole body of the laws of Papua New Guinea, as stipulated by s 9 of the Constitution which include - (f) the underlying law. It is an all inclusive fundamental basic right, the right to be accorded or to rely on the full protection of the law, whatever that particular law might be. It is, in my view, intended that if in the application of a particular law to an individual, the full protection of that law is not accorded to that individual, then he can rely on s 37(1) to claim a breach of his constitutional right and also seek remedial enforcement pursuant to ss 57 and 58.

The claimant would obviously need to point to the law to demonstrate the right that is being claimed was not fully accorded him/her. That of course, in my view, does not make the right any less a right or any less capable of enforcement. The Constitution provides adequate machinery for enforcement of rights; ss 22, 23, 57 and 58.

Furthermore, many rights under the general body of laws are capable of enforcement without need to resort to fundamental constitutional rights provisions which undergird them. That does not, in my view, mean that such rights cannot be reinforced by reference to the fundamental constitutional right provision, from which that law or right emanated. All laws creating rights and obligations derive their legitimacy and origin from the Constitution which represents the will of the people.

It was contended further by Mr Damem for the affirmative answer to question (1) that the right to the full protection of the law in the first part of s.37(1) is qualified and confined by the latter part of the subsection.

It was submitted s 37(2) - (20) enumerate the rights, especially of the persons in custody or charged with an offence. It was not intended to apply to rights found in any other law, or to any other persons not in custody or charged with an offence, it was further contended.

With respect that is a narrow and an unnecessarily restricted interpretation and application of a fundamental basic right. The clause relied upon, in my view, simply gives a greater emphasis to a special group of persons who will be requiring of that protection more so than others. It is prefaced by the word “especially”, which does not mean “only”, it means there are others but these are the special ones.

Section 37(1) is a fundamental basic right. It cannot be restricted to a particular class of people only. It cannot be confined to particular laws and rights only. It applies to all rights of all persons to be found in the whole body of laws enumerated under the Constitution s 9.

In conclusion, s 37(1) does create an enforceable fundamental basic right. The decisions in SCR 3 of 1990, Tom Amaiu, Ume More and Mana Turi in my view are the correct expressions of the interpretation to be ascribed to s 37(1) and I affirm them. The answer to question 1 is YES.

Q2. IF YES TO QUESTION 1, CAN THE RIGHT CREATED BY SECTION 37(1) BE QUALIFIED BY AN ACT PASSED IN ACCORDANCE WITH SECTION 38 OF THE CONSTITUTION?

It is trite that s 38 could only apply to regulate or restrict the exercise of a right or freedom referred to in Part II Division 3, Subdivision C - Qualified Rights ss 38 - 56. Section 37(1) is a Fundamental Right under Subdivision C. It therefore is not capable of being qualified by a law made in accordance with the requirements of s 38. The answer to this question is No.

To the extent that the Court in SCR 3 of 1990 implied that the s 37(1) fundamental right could be qualified by the Income Tax Act (as amended in 1988) if the Act complied with the requirements s 38, upon proper submissions and consideration I am now prepared to conclude that that implication is clearly not sustainable and is therefore wrong.

This does not detract from my conclusion in answer to question 1. It rather strengthens the right under s 37(1). It simply means that the s 37(1) right cannot be qualified by s 38.

To the further extent that the Court in SCR 3 of 1990 might have inferred that s 365 was unconstitutional for breach of s 37(1) of the Constitution because the Act did not comply with the requirements of s 38 to qualify the s 37(1) right to full protection of the law, (legal professional privilege) that inference is also unsustainable and is wrong.

The final conclusion of the Court in SCR 3 of 1990 was that s 365 was invalid to the extent that it purported to permit arbitrary entry upon premises, to search and remove property without adequate prior notice and opportunity to owners or occupiers of such premises to exercise legal rights (legal professional privilege) pursuant to s 37(1) of the Constitution. I shall return to this aspect later.

Q3. DOES A LAW WHICH MAKES REASONABLE PROVISION FOR SEARCH AND ENTRY IN CONNECTION WITH PURPOSES SPECIFIED UNDER PARAGRAPH (A) OF SECTION 44 OF THE CONSTITUTION HAVE TO COMPLY WITH SECTION 38 OF THE CONSTITUTION?

Section 44 - provides as follows:

No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law:

(a) That makes reasonable provision for a search or entry:

(i) under an order made by a court; or

(ii) under a warrant for a search issued by a court or judicial on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or

(iii) that authorises a public officer or government agent of Papua New Guinea or an officer of a body corporate estbalished by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or

(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or

(v) for the purpose of inspecting or taking copies of documents relating to:

(A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or

(B) the affairs of a company in accordance with a law relating to companies; or

(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connexion with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or

(b) that complies with Section 38 (general qualifications on qualified rights).

The plain answer to the issue posed is No. Section 44 is a qualified right falling withint Subdivision C. It is capable of being regulated or restricted in two ways; firstly, by a law - “(a) that makes reasonable provision for a search or entry”, in a variety of circumstances as enumerated in subparagraphs (a)(i) - (vi), or secondly by a law - “(b) that complies with Section 38 (general qualifications on qualified rights).”

I am satisfied that the Income Tax Act is a law that prima facie purports to make “reasonable provision for a search or entry” in relation to and for the purposes of the Tax Act that may fall under subparagraph (a)(iii) or (vi). It does not need to have complied with s 38 requirements.

Whether the Act does in fact and or law make “reasonable provision”or fall within any of the circumstances prescribed are issues for particular cases if they are raised or taken issue with.

For the purposes of this issue and the ruling in SCR 3 of 1990, once it is accepted or determined that the law makes reasonable provision for search and entry in connection with any of the purposes specified under paragraph (a) of Section 44, then such a law does not have to comply with the requirements of s 38 as required by paragraph (b). Paragraphs (a) and (b) are in the alternative.

CONCLUSION

The Act did not have to comply with the requirements of s.38 for the purposes of Sections 37(1) or 44 rights. To the extent that the judgement in SCR 3 of 1990 declared “that s.365 was invalid to the extent that it purports to permit arbitrary entry upon private premises, search and removal of property without adequate prior notice and opportunity to owners or occupiers of said premises to exercise legal rights pursuant to s.37(1) of the Constitution,” I am now satisfied that that is wrong. I am satisfied that s.365 is constitutionally valid. Whether in the exercise of powers pursuant thereto it is reasonable or not or whether other legal rights such as legal professional priviledge are accorded by virtue of s.37(1), these are issues of fact to be determined in the circumstances of particular cases.

KAPI DCJ: This reference has been made by the Principal Legal Adviser pursuant to s. 19 of the Constitution.

This reference has been prompted by a decision of this Court in the matter of Supreme Court Reference No 3 of 1990 (Unreported Judgment of the Supreme Court dated 17 December 1992). In that case, officers from the office of Chief Collector of Taxes acting under s. 365 of the Income Tax Act 1959 (as amended) (hereinafter referred to as "the Act") went on to the premises of Coopers and Lybrand (an accounting firm) to search for, inspect and remove documents for the purposes of the Act. At the time of the search, partners of the firm requested that the search should stop and that they should be given the opportunity to seek legal advice and review the files for items which might be subject to legal professional privilege. The search continued despite the requests until a restraining order was obtained from the National Court.

An application for judicial review was made by the members of the firm over the actions taken by the officers of the Office of Chief Collector of Taxes. The National Court then referred certain constitutional issues to the Supreme Court. The questions were:

"Are the Plaintiffs entitled to declaratory relief that the actions of the first defendant, his servants and agents, including the second defendants constituted:

1. A breach of the right of the plaintiffs under s. 37 (1) of the Constitution to the full protection of the law in that they were denied their rights at common law to seek legal advice to determine their duties to taxpayers on whose behalf they were bailees of the files and documents referred to in paragraph 3 hereof and specifically the plaintiff's right to obtain advice to permit them to determine which of such books, documents, papers and records were the subject of legal professional privilege?;

2. A breach of the rights of the plaintiffs under s 44 of the Constitution to freedom from search and entry in that neither the Income Tax Act or the Income Tax (Budget Provisions) Act 1988 which amended that Act authorised the said search and entry by the first defendant or his servants or agents (including the second defendants)?

3. A breach of the right of the plaintiffs to reasonable privacy under s 49 of the Constitution?;

4. A denial of the principles of natural justice required to be developed as part of the Underlying law of Papua New Guinea by s 60 of the Constitution.

5. An unlawful act being an act proscribed by s 41 of the Constitution in that it was harsh or oppressive or not warranted by or disproportionate to the requirements of the particular case or was otherwise, in the particular circumstances, not reasonably justifiable in a democratic society having regard for the rights and dignity of mankind?; and

6. An unlawful act in that s 365 of the Income Tax Act as amended pursuant to which the defendants purported to perform each such act was invalid by reason of the non-compliance of the said Act with s 38 of the Constitution."

In relation to question 1, the Court adopted a common law principle of legal professional privilege enunciated in the Australian case of Federal Commissioner of Taxation and Others v Citibank Ltd (1989) ALR 588 and found this to be applicable and appropriate to the circumstances of Papua New Guinea pursuant to Sch. 2.2 of the Constitution. Having adopted the principle as part of the underlying law, the Court said:

"We are of the view therefore that this doctrine of legal professional privilege applied to restrict the seemingly unfettered power of the Chief Collector of Taxes under s 365 (1) of the Act.

In the end result, in the circumstances of this case, on the facts as have been agreed upon, we are satisfied that the plaintiffs were denied the opportunity to seek legal advice concerning their obligations to clients for whom they held files and documents as bailees, in particular as to whether any claims of legal professional privilege may have been available in respect of such files and documents.

To the extent that this is a legal right which needs protection then it is a breach of s 37 (1) of the Constitution."

The Court in considering the last question concluded that Income Tax Act (as amended) complied with s 38 of the Constitution in that it expresses the purpose for the law and specifies the right which is affected, namely the right to privacy under s 49 of the Constitution. It further concluded that:

"However, as far as ss 37 (1) and 44 are concerned the situation is different .....

The Amending Act (s 53) does not mention the rights guaranteed by both s 37 (1) and s 49 of the Constitution nor does it say anything about the reasons for restricting these guaranteed rights."

According to the Principal Legal Adviser, these passages give rise to the following questions: Is there a right created under s 37 (1) of the Constitution? If there is, what is the right? Can it be enforced under the provisions of the Constitution? Can this right be qualified by an Act of the Parliament passed in accordance with s 38 of the Constitution?

In relation to freedom from arbitrary search and entry under s 44 of the Constitution, does a law which makes provision for search and entry in connection with purposes specified under paragraph (a) of s. 44 have to comply with s 38 of the Constitution?

According to counsel, the judgment of the Supreme Court in SCR 3 of 1990 (supra) does not fully deal with these issues in the decided cases and therefore need clarification. That is the reason for this reference.

The questions referred by the Principal Legal Adviser are these:

1. Does Section 37 (1) of the Constitution create an enforceable Constitutional right?

2. If yes to Question 1, can the right created by Section 37 (1) be qualified by an Act passed in accordance with Section 38 of the Constitution?

3. Does a law which makes reasonable provision for search and entry in connection with purposes specified under paragraph (a) of Section 44 of the Constitution have to comply with Section 38 of the Constitution?"

The Solicitor General, Mr Francis Damem argued the negative case and Mr B. Ninai argued the affirmative case in respect of all the questions.

QUESTION 1

Section 37 (1) of the Constitution is in the following terms:

"37. Protection of the Law

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences."

Several cases have dealt with this provision. In Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87, Mr Amaiu, a prisoner serving a term of imprisonment in Division "B" of Bomana Prison made an application to the National Court to enforce certain constitutional rights and claimed damages.

In dealing with the rights under the Constitution, Bredmeyer J said:

"The relevant sections of the Constitution can be devided into two categories. The first is s 37 (1).

'37. Protection of the Law

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.'

This subsection means that every aspect of treatment given to a detainee in 'B' Division must be covered by a law which for practical purposes means a provision contained in the Corrective Institutions Act, Regulations or in the Commissioner's Orders and Instructions. This constitutional provision means that no aspect or at least no major aspect of a prisoner's treatment in 'B' Division should be at the whim of the officer-in-charge of that Division or of any warder; the warders must treat a prisoner in accordance with the laws. If they fail to do so, the prisoner can seek redress under s 57 of the Constitution which gives wide powers to the National Court and the Supreme Court to enforce fundamental rights provisions. Section 37 (1) means that if some aspect of the prisoner's treatment in 'B' Division is not regulated by a law then the section has been breached. It also means that if there is a law on some aspect of prison treatment, and that law is breached by the prison staff, the prisoner can claim that he has not been given the full protection of the law and under ss 57 and 58 can get redress from the courts in the form of damages or an order compelling the warders to do something or ordering them not to do something."

Later on in his judgment he continued:

"The second category of constitutional rights which apply to prisoners in 'B' Division can be grouped together and I quote:

'36. Freedom from Inhuman Treatment

(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.'

'37. Protection of the Law

(17) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.'

'41. Proscribed Acts

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a) is harsh and oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having proper regard for the rights and dignity of mankind, is an unlawful act.'"

Bredmeyer J treated the right under s 37 (1) as distinct from the rights set out under s 37 (17) and other provisions of the Constitution.

In respect of the first category, namely s 37 (1), Bredmeyer J enunciated two propositions:

(1) This constitutional provision means that no aspect or at least no major aspect of a prisoner's treatment in "B" Division should be at the whim of the officer-in-charge or any warder; the warders must treat a prisoner in accordance with the laws. This means that if some aspect of the prisoner's treatment in "B" Division is not regulated by a law then the section has been breached.

(2) If there is a law on some aspect of prisoner's treatment, and the law is breached by the prison staff, the prisoner can claim that he has not been given full protection of the law.

In respect of proposition (1), if a prisoner in Division "B" is treated outside the law, then that in itself is a breach of s 37 (1). That statement immediately begs the question what is the precise nature of this right? It is impossible to answer this question with any certainty because the first part of s 37 (1) of itself does not particularise any right. It simply says "right to the protection of the law". According to counsel, the purpose of this reference is to interpret and give meaning to these words. I will return to this issue later in the judgment.

Proposition (2) deals with treatment of a prisoner in Division "B" pursuant to the law but the treatment is in breach of the precise terms of the law. Such a prisoner may seek protection in the precise terms of the law. For example, s 37 (17) provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. If this is denied to a prisoner, he may apply to have this right enforced in accordance with the precise terms of s 37 (17) of the Constitution. With respect this proposition deals with the precise terms of the law as distinct from the general "protection of the law" in the first part of s 37 (1) of the Constitution. This proposition really belongs to the second category of constitutional rights discussed by Bredmeyer J.

The next case is University of Papua New Guinea v Uma More & Others [1985] PNGLR 48. This is also a judgment of Bredmeyer J. Certain students at UPNG forcibly disrupted lectures, erected and manned barricades at the main entrance road and restricted rights of students from attending classes. Application was made by the University seeking restraining orders under the Constitution. On page 55 Bredmeyer J said:

"Section 37 says: 'Every person has the right to the full protection of the Law.' It then goes on to make particular provisions about people charged with criminal offences and people in jail, but just stopping at the first part, at the first comma, every person has the right to the full protection of the law. That means that a person affected by a law has the right that the law be applied properly in relation to him, and that officials appointed by law or under the law have the duty to act in accordance with the law."

In this passage, Bredmeyer J simply restated the distinction between the "right to protection of the law" in the first part of s 37 (1) and other rights given to people who are charged with offences or in custody.

In State v Mana Turi [1986] PNGLR 221, McDermott AJ gave a very helpful discussion on the meaning of the right to protection of the law under s 37 (1) of the Constitution. In that case, defence counsel objected to admissibility of a record of interview by the police on the basis of a breach of s 42 (3) (b) of the Constitution. In considering the application of s 42, McDermott AJ said:

"However another section is also relevant. The Constitution, s 37 (1), says that every person has, 'the right to the protection of the law...' This then is amplified by the succeeding provisions of the section. Whilst the CPC report considered this section to be the equivalent of the US 'due process' provision (CPC Report Ch 5, Pt 1, p 10), Frost CJ was of the view that the section dealt 'with similar subject matter but not necessarily in the same terms': Constitutional Reference N0 1 of 1977 [1977] PNGLR 362 at 372. With respect I agree. The section does not particularise the bold assertion that, 'Every person has the protection of the law' as is done in the Fifth Amendment, and further as the succeeding words only indicate that some particularisation follows, it appears to me that this clause can stand by itself. Indeed, those words themselves speak of 'that right', which can only mean 'the full protection of the Law'. I am reinforced in this view because of the fundamental rights and freedoms of the individual set out in the 'Basic Rights' of the Preamble to the Constitution, cl 5. The first listed are '...life, liberty, security of persons and the protection of the Law'. That being so, the clause means something in itself, '...especially to persons in custody or charged with offences.'

Generally speaking 'To protect' means to defend or guard from injury or danger, to keep safe or to take care of. Protection then, is the state of fact of being protected. It is a concept long familiar to courts and legislators alike in providing protection of rights, property, and of persons. It has included the protection of the person from himself. The protection of the person arises because the court has long presupposed fairness and propriety in the application of the criminal process. Additionally since Independence, this is also subject to the Constitution and the underlying law. The protection is something different from what is recognised as the principles of natural justice but complementary to the Rule of Law, which is especially provided for in the Constitution, s 57 (2) (c).

As 'the right to the full protection of the Law' is a fundamental one, it is subsumed in any consideration of the Constitution, s 42, 'rights', particularly in this instance those applicable to persons arrested or detained, see s 42 (2) (3) and (4)."

All these decisions support the construction that first part of s 37 (1) at the first comma is capable of standing by itself (see Bredmeyer J in University of Papua New Guinea v Uma More & Ors [1985] PNGLR 48 at 55 and McDermott AJ in State v Mana Turi [1986] PNGLR 221 at 223 and 224). I agree that this is a correct way of reading s 37 (1) of the Constitution and the "protection of the law" is referred to as a "right". The question is: what is the precise meaning and the extent of this right?

The judgement of McDermott AJ in State v Mana Turi (supra) is instructive in determining the meaning of "the right to protection of the law". At p 224 of the judgment he said:

"Generally speaking 'To protect' means to defend or guard from injury or danger, to keep safe or to take care of. Protection then, is the state of fact of being protected."

The state of fact of being protected is referred to as a "right". Precisely what this is, is not clear from s 37 (1). The concept of "protection of the law" has it's origin in the US Constitution. The Constitutional Planning Committee (CPC Report at 5/1/10) said:

"48. This is the equivalent of the 'due process' provision in the United States Constitution. We recommend the inclusion of this provision of the Ordinance subject to certain modifications in the light of the two and half years experience of the operation of the Ordinance which we have had."

The words used in our provision are not the same but it is clear from the CPC Report that the phrase is intended to deal with the same subject matter as the concept of "due process of law" in the US Constitution. The history of "due process of law" can be found in the judgment of Mr Justice Black In the Matter of Application of Paul L.Gault and Majorie Gault, Father and Mother of Gerald Francis Gault, A Minor, Appellant [1967] USSC 114; (387 U.S. 1 - Decided May 15 1967) where he said:

"The phrase 'due process of law' has through the years evolved as the successor in purpose and meaning to the words 'law of the land' in Magna Carta which more plainly intended to call for a trial according to the existing law of the land in effect at the time an alleged offence had been committed. That provision in Magna Carta was designed to prevent defendants from being tried according to criminal laws or proclamations specifically promulgated to fit particular case or to attach new consequences to old conduct."

I have reached the conclusion that the interpretation given by McDermott AJ in State v Mana Turi (supra) is the correct meaning to be given to the words "protection of the law". That is that the protection of the law is the fact of state of being protected by the law. In practical terms, if any person is treated outside the law, the person is entitled to invoke the provisions of the law.

As to the meaning of "law", the cases I have discussed do not deal with the issue. Having regard to the terms of Sch. 1.2 of the Constitution and the Supreme Court decisions in relation to interpretation of the meaning of "law" under s 37 (15) of the Constitution (see for example Avia Aihi v The State [1981] PNGLR 81) the protection of the law here means protection given by any law as defined by s 9 of the Constitution - (a) Constitution (b) Organic Laws (c) Acts (d) Emergency Laws (dd) Provincial Laws (e) Subordinate Legislation and (f) Underlying Law. While the rest of s 37 sets out protection given to persons charged with offences and in custody, the right to protection of the law is not confined to these rights. The protection of the law includes rights given by other laws set out under s 9 of the Constitution.

Where a person is treated outside the law, the person is entitled to invoke the provisions of any particular law relevant to his treatment. That is as far as the right to protection of the law can go. The first part of s 37 (1) of itself does not take the matter any further. The reason is that it does not say what the protection is in any given situation. It simply states that the protection is to be found in the law. Apart from the fact that a person may invoke the fact of protection of the law, s 37 (1) on it's own is not capable of providing any particular remedy.

This means that one has to go to the law to determine the precise nature of the protection. These laws provide the substantial rights and the remedies. Those rights can be enforced in accordance with the provisions of the particular law. If a right is given by the Constitution, (for example rights under s 37 (2) - (20) or s 42 of the Constitution) that right will be protected or enforced in accordance with the provisions of the Constitution. If a right is given by a statutory provision or under the underlying law, it will be protected or enforced in accordance with the terms of the statute or the underlying law as the case may be.

The status, the precise nature of a right and the manner in which such a right may be enforced is not determined by reference to the words "protection of the law" in the first part of s 37 (1) of the Constitution. That is determined by reference to the particular law in question.

In essence, therefore, the right to protection of the law simply means that every person is entitled to be protected by law. It is by nature a generic provision and is not capable of it's own terms to provide any particular remedy. The substantial protection is to be found in the particular laws.

Therefore, in Amaiu's case (supra), s 37 (1) on it's own terms was not capable of providing any remedy to Mr Amaiu. The claim for substantial rights or protection was based on two different categories of laws, namely constitutional rights based on ss 36, 37 (17) and 41 of the Constitution and statutory rights given under the provisions of Corrective Institutions Act which regulate the rights of detainees and powers of prison officials.

Likewise in Uma More's case (supra), s 37 (1) by itself was not capable of providing any particular remedy. The remedies sought in that case were based on constitutional rights under ss 32, 46, and 52 of the Constitution and the legality of the strike action taken by the Students Representative Council under the SRC Constitution established under the Students Representative Statute.

In Mana Turi's case (supra), the substantial right alleged to have been breached was under s 42 (3) (b) of the Constitution. The issue before the court was one of admissibility of a record of interview obtained in breach of s 42 (3) (b) of the Constitution. A person is entitled to exclude a record of interview if it is obtained in breach of s 42 (3) (b). Essentially, that is a matter of underlying law. See Constitutional Reference N0 1 of 1977 [1977] PNGLR 362.

Finally in SCR 3 of 1990 (supra) the Supreme Court was concerned with whether a common law principle of legal professional privilege was applicable within the context of the powers given to the officers of the Office of the Chief Collector of Taxes under s 365 of the Income Tax Act. The Court decided that it was applicable. The basis of that decision is the application of principles of common law under Sch 2.2 of the Constitution. That cannot be deduced from the terms of s 37 (1). Therefore the statement by the Court that:

"To the extent that this is a legal right which needs protection then it is a breach of s 37 (1) of the Constitution"

with respect is without any proper foundation. The Court did not give any detailed analysis of s 37 of the Constitution. If this is to be accepted as the proper application of s 37 (1) of the Constitution, then in my view the logical extension of this argument would have an absurd result. Breach of any protection given by any law other than the Constitution (such as Act, Regulation, Rule, Underlying Law), would be a breach of the Constitution, s 37 (1). That means that if a provision of a Local Government Rules or Custom relating to marriage is breached, the right under s 37 (1) is breached and therefore it should be enforced under s 57 of the Constitution. Clearly that is not the intention of the Constitution. Any other protection given by any other law is to be applied within it's own terms.

My answer to this question would be: Section 37 (1) of itself creates a right to the fact of protection of the law. But it does not state the nature or extent of the right. This is to be determined by reference to laws as defined under s 9 of the Constitution. Apart from the fact that a person may invoke the provision of any law, s 37 (1) on it's own is incapable of providing a right which may be enforced without reference to the provisions of any other law.

QUESTION 2

Question 2 is based on the assumption that the right set out under s 37 (1) is capable of being regulated under s 38 of the Constitution. It is clear from the conclusion I have reached that the right relate to the state of fact of being protected by law. It does not specifically state what that protection is in terms of individual rights or freedoms. Section 38 deals with the particular rights and freedoms which may be regulated or restricted by an Act of the Parliament. It does not come within these rights and freedoms. The difficulty can be seen immediately when trying to specify the right or freedom for the purposes of s 38 (2) (b) of the Constitution. In any case, s 38 was clearly enacted for the purposes of Part III Div. 3 Subdiv. C and s 37 (1) does not come within this subdivision. The right stated in s 37 (1) cannot be amended by an ordinary Act of the Parliament. It can only be amended in accordance with Part II Div. 2 Subdiv.B of the Constitution.

My answer to this Question would be: No.

QUESTION 3

This question arises out of the decision of the Supreme Court in SCR 3 of 1990 (supra). This question relates to s 44 of the Constitution. The Supreme Court suggested that the Income Tax Act had to comply with the provisions of s 38 of the Constitution. In discussing compliance with s 38, the Court said:

"The Amending Act (s 53) does not mention the rights guaranteed by both s 37 (1) and s 44 of the Constitution nor does it say anything about the reasons for restricting these guaranteed rights."

Section 44 is in the following terms:

"44. Freedom from arbitrary search and entry

No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law-

(a) that makes reasonable provision for a search or entry:

(i) under an order by a court; or

(ii) under a warrant for search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or

(iii) that authorises a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a for public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or

(iv) that authorises the inspection of goods, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea o as to standards of construction, public safety, public health, permitted to use or similar matters, or to secure compliance with the terms of a license to engage in manufacture or trade. or

(v) for the purpose of inspecting or taking copies of documents relating to:

(A) the conduct of a business. trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or

(B) the affairs of a company in accordance with a law relating to companies; or

(b) that complies with Section 38 (general qualifications on qualified rights)."

This section appears in Part III, Div 3 Part C of the Constitution which deals with Qualified Rights. In this division, a right is stated and then the Constitution qualifies the right. The Constitution provides for qualification in three ways. The first is that a right may be qualified by a law (see for example ss 44 (a), 46 (a) and (b), 47 (a), (b) and (c)). Secondly, a right may be qualified in accordance with a law that complies with s 38 of the Constitution (see for example ss 43 (f), 44 (b), 45 46 (c), 47 (d), 48, 49). Thirdly, certain rights are qualified by the Constitution itself (see for example ss 42, 43 (2) (a) - (e), 51 (1)).

In respect of protection from arbitrary search and entry under s 44, the Constitution provides for two alternative ways of qualification; namely, qualification by law under s 44 (a) or by an Act passed pursuant to s 38 of the Constitution under s 44 (b). Clearly these are alternatives. They cannot be read conjunctively. Qualification under s 44 (a) must make "reasonable provision for search and entry". Qualification under s 44 (b) must comply with the strict requirements under s 38 of the Constitution.

In SCR 3 of 1990 (supra), with respect the Court did not analyse s 44 in any great detail. It simply made the bold assertion that the Amending Act (s 53) did not comply with s 38 of the Constitution. The Amending Act made specific reference to s 49 of the Constitution because it can only be qualified by a law that complies with s 38 of the Constitution.

The proper question for the Court under s 44 (a) would have been whether the "full and free access to all buildings, places, books, documents and other papers for the purposes of the Act" given by s 365 of the Income Tax Act (as amended) was a "reasonable provision for search or entry"? If the issue is resolved in this way, the end result would be different. The provision for full and free access to documents in itself is reasonable. Anything short of this would completely hamper the work of Chief Collector of Taxes. Similar provision can be found in legislation in other countries. The problem is not in the reasonableness of the provision but in the manner the right to access to documents is exercised. I cannot find any ground for striking down s 365 of the Income Tax.

The question in SCR 3 of 1990 (supra) was whether the exercise of power by the officers of the Taxation Office was beyond their powers when they refused the members of the firm an opportunity to make claims of legal professional privilege.

In my view that was the issue in Federal Commissioner of Taxation and Others v Citibank Ltd (supra). It related to the exercise of the power. The decision of the Federal Court of Australia was that the powers of the Federal Commissioner under an equivalent of our s 365 has to be exercised subject to legal professional privilege.

This means that when the power is exercised, the officers must ensure that opportunity to claim privilege must be given and privilege documents may not be obtained. As to what are these privileged documents is a matter I do not wish to discuss as this was not raised and argued in the reference.

The practical result of this is that s 365 of the Income Tax Act is valid. The power given under this section should be exercised in the manner I have explained in this judgment.

My answer to this question would be: No.

LOS J: I have read the judgment of the Chief Justice and the Deputy Chief Justice and their answers to the three questions. The background leading to questions has been well canvassed by them. I agree with their answers to questions 2 and 3. However, I add a little more on Question 1.

QUESTION 1. DOES SECTION 37(1) OF THE CONSTITUTION CREATE AN ENFORCEABLE CONSTITUTIONAL RIGHT?

Section 37(1) reads:

“Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available especially to persons in custody or charged with offences”.

What is the right referred to in Section 37(1)? In his submissions Mr Damem for the Principal Legal Adviser referred to the decision of Bredmeyer J in the case of Tom Amaiu v The Commissioner of Corrective Institution and State of PNG (1983) PNGLR 85. Mr. Ninai appearing as amicus curie referred to other cases like UPNG v Ume More & Others (1985) PNGLR 48 and State v Mana Turi (1986) PNGLR 221. It was argued that all these cases had wrongly decided that s37(1) created a substantive and enforceable right. Mr Damem argued that the s37(1) is merely declaratory of the rights in other subsections, and provisions of the Constitution and other laws referred to in section 9 of the Constitution. In doing so he was critical on one aspect of Bredmeyer J’s decision in Amaiu’s case where he said inter alia, section 37(1) is breached “if some aspect of the prisoner’s treatment in ‘B’ Division is not regulated by a law”. The rationale of the criticism is that this is a strained meaning because the constitution contains just about every human rights available in a democratic society and every conduct in prison was bound to infringe any one of such rights or freedoms.

While I would like to think that Papua New Guinea has all the laws to cover every expected and unexpected human activity, I consider, in principle that there is bound to be a vacuum even if vacuum is only temporary. If the declaratory theory is right, where there is an act committed against a person though not against any law but reprehensible against human decency that person cannot have any protection at all. Supposing, for example, a treaty covering certain aspects of human rights has been disapproved by the Parliament under Section 117(3) of the Constitution or approval has been given but the Parliament has not done anything to give it the status of the municipal law under s.117(7) of the Constitution and in the meantime a reprehensible act is committed against a person, this person certainly would not have a protection and a remedy at all. Likewise for example if a court finds that however reprehensible the act is, it did not breach any existing law but the court does not do any thing to carry out its obligation in Schedule 2.3 of the Constitution by developing a new principle to cover the vacuum, again the person has no remedy at all.

I consider, it is not intended that a person, whether a citizen or a non-citizen, would be left without any remedy in such a situation. That it is not intended to be that way can be shown firstly by the constitutional scheme in the country. Unlike other countries which have no constitutions, the PNG constitution begins with the general statements of the Basic Rights and Social Obligations to the specific rights and the qualified rights to grant constitutional and legal protection to every person. Section 37 itself is a fine example that exhibits the intention that every person must be protected by a law. The middle part of the sub-s(1) emphasises that “the succeeding provisions of this sections are intended to ensure that the right is fully available” [emphasis is mine]. If that right, namely the right to “the full protection of the law” is not available then I consider that subsection (1) is breached.

Secondly I am fortified with my view by the Schedule 2 and other provisions of the Constitution and the case law of interpretation of human rights law on protection of human beings. I consider the fact that Schedule 2.3 obliges a court to develop a rule in a particular circumstance where there is no rule in existence means it is intended that no person shall be left without the full protection of the law. Indeed the schedule requires the court to have regard to the basic rights and the social obligations when formulating a new rule.

The case law indicates that where a treaty or an obligation is not specifically incorporated as part of a domestic law of a country, a court may interpret a part of the domestic law to an extent that it is not inconsistent with the international law. In re: Petition of MT Somare (1982) PNGLR 65, although the question of what is international law and its application arouse in relation to section 202 of the constitution, I consider the statement of law by Miles J at page 85-86 was broad enough to support the view I take of the meaning of the right in section 37(1) of the constitution.

“It is widely recognised by textwriters that there is not one indivisible law of nations, but several systems existing side by side. Papua New Guinea will develop its own system of international law. It will be developed over the years out of the international situations in which Papua New Guinea may involve itself or in which it may find itself. It will develop out of treaties and the international practices of Papua New Guinea statesmen and diplomats. It will be influenced no doubt by decisions of the United Nations and other international bodies. It is of the nature of public international law unlikely that the courts within Papua New Guinea will play a very significant part in its development. But there may be occasions in which a Papua New Guinean court will have to make a finding on a matter involving public international law. I think this case is one of them. Although international law does not rate a mention in the Constitution, s. 9, which exhaustively states those elements of which the law of Papua New Guinea consists, there will be instances when the underlying law will have to accommodate situations involving a public international law element where neither custom nor the common law-equity principles furnish a rule.”

In other countries where there is no constitution the courts have used international law to resolve uncertain ties in their status. For example United Kingdom has neither a written constitution nor legislation incorporating the European Convention on Human Rights into domestic law, the convention has been treated as relevant for the purpose of resolving uncertainties in statute law, see Waddington v Miah [1974] UKHL 6; (1974) 1 WLR 683 (HL) at pp 693H-94E. In other countries where they have constitutions like Bermuda, Republic of Singapore, Gambia and Mauritius where the constitutional provisions involved human rights the Courts have taken generous and purposive approaches to the construction of the provisions of those constitutions. In Minister of Human Affairs v Fisher [1979] UKPC 21; (1980) AC 319 (PC) at page 329 Lord Wilberford said:

“This constitutional instrument has certain special characteristics. (1) It is, particularly in Chapter 1, drafter in a broad and ample style which lays down principles of width and generality. (2) Chapter 1 is headed ‘Protection of Fundamental Rights and Freedoms of the Individual’. It is known that this Chapter, as similar portions of other constitutional instruments drafted in the post-colonial period, starting with the Constitution of Nigeria, and including the constitutions of most Caribbean territories, was greatly influenced by the European Convention for the Protection of Fundamental Rights and Freedoms. That convention was ... in turn influenced by the Universal Declaration of Human Rights 1948. These antecedents, and the form of Chapter 1 itself, call for a generous interpretation avoiding what has been called the ‘austerity of tabulated legalism’, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.”

This statement was repeated in construction of fundamental rights provisions in the constitution of Singapore in Ong Ah Chuan v Public Prosecutor (1981) AC 648. Again this principle was affirmed in construing the constitutions of Nambia and Mauritius in Attorney General of the Gambia v Momodou Jobe (1984) AC 689. Lord Diplock said at page 700:

“A Constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction.”

So from the constitutional scheme of Papua New Guinea, and the constructions by courts upon constitutional laws where human rights are involved, I have come to a strong view that section 37(1) of the constitution is not merely declaratory of the rights contained and enforceable in other sections of the constitution and the statutes but the section creates and enforceable right. The declaratory theory has a potential of having a vacuum where an individual may find himself not protected at all.

Lawyer for the Referror: Solicitor-General