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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]
SCR N0 2 of 2004
Special Reference Pursuant to Constitution
Section 19
Special Reference by the MOROBE PROVINCIAL EXECUTIVE.
Waigani: Kapi CJ., Injia DCJ., Los J., Hinchliffe J., Sakora J.
8th December 2004, 13th May 2005
CONSTITUTIONAL LAW – Special Reference S 19 of the Constitution – Whether the Enhanced Co-operation between Papua New Guinea and Australia Act, 2004 (No. 8 of 2004) is inconsistent with Constitution, s 21, 22, 23, 34, 37, 42, 44, 47, 49, 52, 53, 176, 177, 197, 198 of the Constitution.
PRACTICE AND PROCEDURE – Whether the reference is trivial, vexatious and hypothetical under Order 4 rule 16 of Supreme Court Rules considered.
Cases cited:
SC Reference No 2 of 1981 [1982] PNGLR 150
SC Reference No 3 of 1982 [1982] PNGLR 405
SC Ref No 5 of 1982 [1982] PNGLR 379
SC Reference No 5 of 1985 [1985] PNGLR 329
Patterson Lowa v Mt Kare (Unreported Judgment of the Supreme Court dated 7th August 1991, SC430).
Legislations cited:
Constitution
Enhanced Co-operation between Papua New Guinea and Australia Act, 2004 (No. 8 of 2004) (ECP Act)
Supreme Court Rules
Police Act
Criminal Code
Counsel:
S. Reid with R. Pato for Morobe Provincial Executive
J. Nonggor for the Attorney-General
L. Henao for the National Executive Council.
H. Ette for the Police Commissioner
C. Manek for the Office of the Public Prosecutor
13th May 2005
BY THE COURT: The Morobe Provincial Executive (MPE) filed a Special Reference under s 19 of the Constitution. The MPE is entitled to make such an application before the Supreme Court to seek the Court’s opinion on any question relating to the interpretation or application of any provision of a constitutional law or constitutional validity of a law or proposed law under s 19 (3) (eb) of the Constitution.
The law, the constitutional validity of which is questioned in this reference is the Enhanced Co-operation between Papua New Guinea and Australia Act, 2004 (No. 8 of 2004) (ECP Act). The National Parliament passed the ECP Act on 27th July 2004 and was certified on 9th August 2004.
The background to the Act may be briefly summarized as follows. The Executive Governments of Australia and Papua New Guinea after having discussed issues of assistance to Papua New Guinea in a series of meetings in 2003, entered into the Joint Agreement on Enhanced Cooperation between Papua New Guinea and Australia on 30th June 2004 (Agreement).
The Executive Government of Papua New Guinea desiring to enact the Agreement as law, passed the ECP Act in the National Parliament and adopted the Agreement as part of the law in the Schedule to the Act. Article 2 of the Schedule to the Act sets out the purpose of the law:
“Australia may, in consultation with the Government of Papua New Guinea, deploy police and other personnel to Papua New Guinea to work in partnership with the Government of Papua New Guinea to address core issues in Papua New Guinea in the area of governance, law and order and justice, financial management, economic and social progress as well as capacity in public administration, including the Royal Papua New Guinea Constabulary.”
Counsel for the Attorney-General raises a preliminary issue under O 4 r 16 of the Supreme Court Rules which provides:
“The Court may decline to give an opinion on the question the subject of the reference or special reference if in the opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.”
He submits that the Court in the exercise of its discretion may refuse to answer the questions referred under s 19 if in its opinion the questions referred are trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
In this connection, he submits that the Court should distinguish two types of reference. First, questions that require opinion that will influence the way actions are taken or decisions are made by any person as from the time the opinion is given because the law in issue is\ applicable and the issues raised are current. Second, questions that require answers that may or may not be relevant in the future. He submits that in the latter category, the Supreme Court may refuse to give an opinion simply because the issue may not arise at all and it would be academic and mere conjecture for it to express an opinion on the matter.
He submits that if a question is posed for opinion on the basis of facts which might arise in the future, the Court can properly decline to answer the question until the facts that give rise to the question arises.
In the present reference, he submits that the Court should refuse to answer the questions because they are speculative and that the issues should be left to be decided when the issues arise in a particular case.
He submits that the questions raised in this reference do not serve the purposes set out by the Constitutional Planning Committee (see CPC Report Chapter 8 paragraph 153). Therefore, he submits that the Court should in the exercise of its discretion decline to answer all the questions.
We can briefly deal with the arguments raised under O 4 r 16 of the Supreme Court Rules. We do not consider that the questions raised by this reference are either trivial or vexatious.
We also consider that the issues raised are of immediate relevance in that the ECP Act is in force and the Australian Police personnel are now in Papua New Guinea performing their duties under the EPC Act. Therefore the issues raised are relevant.
The question is: whether the questions raised are “hypothetical”? The word “hypothetical” is defined by Oxford Dictionary to mean “supposed but not necessarily real or true.” In the context of court proceeding, there cannot be a cause of action unless real and true facts constitute a cause of action. Rules of pleading require that essential facts which constitute a cause of action must be pleaded. If a matter is tried the party relying on a cause of action must prove the relevant facts.
Order 4 r 16 of the Supreme Court Rules is expressly made applicable to a reference (s 18 (2) of the Constitution) and a special reference (s 19 of the Constitution). The issue of “hypothetical” can only be relevant to a reference under s 18 (2) of the Constitution. That is to say, a reference under s 18 (2) may only be referred on a constitutional issue that may be raised by real facts in a particular case. A court or tribunal may not refer a “hypothetical” question under s 18 (2) of the Constitution. It can only refer matters raised in a case before the court or tribunal. The Supreme Court has previously sent s 18 (2) references back to the National Court on the basis that they were hypothetical. The Court has ruled that the National Court must find real facts which raise the constitutional law issue before it can refer the matter (see SC Reference No 2 of 1981 [1982] PNGLR 150, SC Reference No 3 of 1982 [1982] PNGLR 405, SC Ref No 5 of 1982 [1982] PNGLR 379, SC Reference No 5 of 1985 [1985] PNGLR 329 and Patterson Lowa v Mt Kare (Unreported Judgment of the Supreme Court dated 7th August 1991, SC430).
We do not consider that the word “hypothetical” in the Rules was meant to apply to a reference under s 19 of the Constitution which provides:
“19. Special references to the Supreme Court.
(1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.”
Section 19 envisages a number of “hypothetical circumstances”. First, “any question relating to the interpretation or application of a Constitutional Law” could relate to construction of a word. That question need not arise in a cause of action in a particular case. That question can be referred directly to the Supreme Court. It is “hypothetical” (see SCR N0. 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518).
Second, a question may be referred on the question of application of a constitutional law. That can also be raised on a hypothetical basis. This was envisaged in the CPC Report (Chapter 8, paragraph 153). Clearly, questions involving validity of a proposed law under s 19 of the Constitution is “hypothetical” and may be referred.
Section 19 reference is by nature “hypothetical” in that there need not be a cause of action or facts which constitutes an action in law as in a case before a court or a tribunal under s 18 (2) reference.
That is not to say that any of the designated authorities under s 19 of the Constitution can refer any constitutional law issue and the Supreme Court may determine the issues. It is a matter of discretion of the Court and the other considerations set out under O 4 r 16 of the Rules are relevant. We have already held that the questions are neither trivial nor vexatious. We have also held that the questions have immediate relevance to the circumstances now, namely, that Australia Police Personnel are on the ground and are exercising authority under the relevant provisions of the ECP Act and the questions raised will have immediate relevance and are likely to arise.
We also need to bear in mind that the procedure for special reference under s 19 of the Constitution was intended for constitutional law issues only. Where the questions raise non-constitutional law issues, this Court cannot deal with such issues (SCR N0. 2 of 1981; Re Electoral Boundaries (supra)). We will determine whether the questions referred raise constitutional issues when we consider each of the questions referred.
We would dismiss the preliminary point raised by counsel for the Attorney-General.
The starting point in considering the issues raised before the Court is s 117 (7) of the Constitution which provides:
“Notwithstanding the consent of Papua New Guinea to be bound as a party to a treaty, no treaty forms part of the municipal law of Papua New Guinea unless, and then only to the extent that, it is given the status of municipal law by or under a Constitutional Law or an Act of the Parliament.”
The ECP Act under s 4 provides:
“Subject to this Act-
(a) the provisions of the agreement have the force of law;
(b) to the extent that any rights, powers, functions, jurisdictions or exemptions that the Agreement confers, or any duties or responsibilities that the Agreement imposes, are inconsistent with an Act of the Parliament-
- (i) the Act is deemed to have been amended to the extent necessary to permit the conferral or imposition; and
- (ii) the rights, powers, functions, jurisdiction or exemptions are deemed to have been conferred; and
- (iii) the duties or the responsibilities are deemed to have been imposed.”
The Agreement has been adopted as part of the ECP Act in the Schedule and therefore the Agreement forms part of the Act and has force of law. The Executive Government of Papua New Guinea has previously enacted legislation in which other international agreements have been made part of the law of Papua New Guinea. The manner in which the Agreement has been adopted in the ECP Act is not an issue before us.
As a consequence of the ECP Act, Australian Federal Police personnel have been deployed and are presently performing their duties in Papua New Guinea.
We now turn to consider the questions referred.
Counsel for the Attorney-General, Dr Nonggor devoted a good part of his submissions on the status of Agreement adopted under the ECP Act as a treaty and its binding effect at international law. We do not consider that the issues raised by the reference relate directly to the status of the ECP Act (Agreement) in international law. The questions raised relate to constitutional validity of the ECP Act. It is necessary to set out the questions referred:
“1. Is Article 3.6 of the Schedule invalid in that it purports to exempt Assisting Australian Police Personnel from the jurisdiction of any Papua New Guinea court thereby depriving persons whose guaranteed rights or freedoms contained in Part III Division 3 of the Constitution are contravened by such personnel from seeking redress or remedy from such personnel in the National or Supreme Courts under section 21, 22, 34, 57 or 58 of the Constitution?
(a) A designated person or related person who allegedly commits an offence in Papua New Guinea;
(b) The victim (or victims)” of an offence allegedly committed by a designated person or related person in Papua New Guinea.
7 Is Article 11.1 of the Schedule invalid in that it purports to exempt designated persons with respect to acts or omissions done within the course of, incidental to, official duties from the jurisdiction of the courts and tribunals of Papua New Guinea thereby depriving persons whose guaranteed rights or freedoms contained in Part III Division 3 of the Constitution are contravened by such acts or omissions from seeking redress or remedy from such person in the National or Supreme Courts under section 21, 22, 34, 57 or 58 of the Constitution.”
Question 1
This question deals with Article 3.6 which provides:
“Subject to this Agreement, Assisting Australia Police Personnel shall not be subject to any regulations concerning the administration or discipline of the Royal Papua New Guinea Constabulary, or to the jurisdiction of any Papua New Guinea disciplinary authority, court or tribunal.”
This question is referred on the premise that Article 3.6 grants immunity to Assisting Australian Police Personnel (AAP) from any prosecution by any person whose rights under the Constitution may be breached or for any other remedy provided by law.
It is necessary to examine the terms and effect of Article 3. This Article deals with the question of control of AAP in respect of performance of police functions as distinct from matters of administration and discipline of AAP who are deployed in Papua New Guinea under the ECP Act.
The RPNGC Police Commissioner has ultimate command and control of Royal Papua New Guinea Constabulary (RPNGC). In the performance of police functions on a day to day basis, the AAP “will comply with the lawful directions, organizational strategies and effective control of the RPNGC Commissioner of Police (Article 3.1). The AAP are subject to the regular management of their immediate supervisor. We take the immediate supervisor in this context to mean immediate supervisor in RPNGC.
Article 3.3 gives the most senior member of AAP the responsibility for general administration and control over AAP. In our view this must relate to administration in personnel matters as opposed to the matters set out in Article 3.1. The matters set out under Article 3.1 relate to function of the Police Force to lay, prosecute or withdraw charges in respect of offences. In the performance of such duties, AAP are subject to the directions and control of RPNGC Police Commissioner. In these matters the police (RPNGC and AAP) are not subject to control or direction under s 197 of the Constitution:
“197. Functions of the Police Force.
(1) The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament—
(a) to preserve peace and good order in the country; and
(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.
(2) Subject to Subsection (4), insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.
....”
Consistent with Article 3.3 (that is in matters of administration and discipline), the AAP are subject to the laws, procedures and standards of conduct applicable to them in Australia and may be disciplined in accordance with those laws (Article 3.5).
Article 3.6 is to be read in this context. It deals with administration in personnel matters and discipline over AAP. The ECP Act makes a clear distinction between members of RPNGC and AAP on personnel matters and discipline. They are indeed members of two different disciplined forces.
The next question that arise is: is the control of AAP by the head of AAP on matters of administration and discipline contrary to s 198 of the Constitution? It provides:
“198 Commissioner of Police.
There shall be, within the Police Force, an office of Commissioner of Police, who shall be responsible for the superintendence, efficient organization and control of the Force in accordance with an Act of the Parliament.”
So far as the responsibility of the Commissioner for the superintendence, efficient organization and control relates to the functions of the police, Article 3.1 comes within the scope of s 198 of the Constitution and is not inconsistent with the role and function of the Commissioner.
Article 3.6 provides that in matters of administration or discipline (as set out in Article 3.3 and 3.5), AAP are not subject to “regulations concerning the administration or discipline of the Royal Papua New Guinea Constabulary, or to the jurisdiction of any Papua New Guinea disciplinary authority, court or tribunal.” The effect of this Article is that where a matter of administration or discipline arises in respect of any AAP, they will not be subjected to the discipline of RPNGC or to the jurisdiction of any Papua New Guinea disciplinary authority, court or tribunal. The reference to “Papua New Guinea disciplinary authority, court or tribunal” in this context refer to disciplinary authority or tribunal under PNG law and any review of such authorities by courts under the law with regard to matters of administration or discipline. That means that on matters of general administration or discipline, AAP will be dealt with in accordance with the law in Australia and any review of such a decision would be dealt with in accordance with the applicable law in Australia. The AAP will not be left without any remedy.
So far as administration is concerned, the Police Commissioner has ultimate control. However, s 198 provides that this control is “in accordance with an Act of Parliament.” This section does not define the responsibilities of the Commissioner but leaves this to be defined in an Act of Parliament. The relevant Act under consideration is the ECP Act. The Act seeks to treat AAP differently. This is understandable as AAP are members of the Australian Federal Police who are given police powers and functions. As we have already pointed out in terms of the performance of police powers AAP are subject to the orders and instructions of the Police Commissioner.
So far as administration and discipline is concerned, they are subject to the applicable laws in Australia. This is not inconsistent with s 198 of the Constitution.
We do not read Article 3.6 to have the wide ranging scope as is implied by the Question and as submitted by Counsel for the Referrer. This Article is confined to matters of administration and discipline.
We do not consider that this Article protects AAP from prosecution for breach of fundamental rights under the Constitution or any other actionable right by any person under the law. For instance it could not be said that AAP are not to be prosecuted for a criminal offence under this Article. This Article deals primarily with matters of administration and discipline of AAP.
In terms of powers and functions, there is no distinction between members of AAP and members of RPNGC (Article 3.7). The question is: is the Police Commissioner responsible for the superintendence, efficient organization and control of the Force including AAP? In terms of carrying out police functions, AAP will comply with the lawful directions, organizational strategies and effective control of the RPNGC as required by the Commissioner of the RPNGC or his delegate and they will be subject to their immediate supervisor in RPNGC (Article 3.1). As we have already pointed out, Article 3.1 is consistent with s 197 of the Constitution in this regard.
However, Article 3.4 is inconsistent with Article 3.1 but more importantly undermines the control of the Police Commissioner under s 198 of the Constitution with regard to police functions. Article 3.4 provides:
“Assisting Australian Police Personnel are subject to the orders of, and instructions from the head of the Assisting Australian Police. The head of the Assisting Australian Police shall report to the Commissioner of the Royal Papua New Guinea Constabulary. The head of the Assisting Australian Police shall be responsible to the Commissioner of the Australian Federal Police.”
This provision makes AAP subject to the Head of AAP and he is responsible to the Commissioner of the Australian Federal Police. In so far as this Article relates to functions of the police, this will undermine the authority of RPNGC Commissioner as set out under Article 3.1 and is inconsistent with s 197 of the Constitution. Article 3.4 is therefore inconsistent and invalid (see s 10, 11 (2) of the Constitution).
Question 2
Article 3.7 provides:
“Members of the Assisting Australian Police shall exercise the functions, powers, authorities and privileges exercised by members of the Royal Papua New Guinea Constabulary, including the powers of arrest.”
This question is referred on the premise that Article 3.7 deals with rights or freedoms under Part III Division 3 of the Constitution, and in particular liberty of the person (s 42), freedom from arbitrary search and entry (s 44), freedom of assembly and association (s 47), right to privacy (s 40), right to freedom of movement (s 52) and protection from unjust deprivation of property (s 53).
Whilst the Article on the face of it does not deal with any of the rights and freedoms referred to, the issue of rights and freedoms arise from the nature of the powers granted to AAP by the Article. The nature of the functions and responsibilities granted by the Article are no different to the functions and the powers of members of RPNGC. The relevance of this is that in the performance of their functions both members of RPNGC and AAP may affect the rights and the freedoms of persons guaranteed under the Constitution.
The argument is that under Part III Division 3 of the Constitution, certain rights may be qualified. So far as an Act may qualify or affect a right or freedom or powers exercised under an Act, s 38 of the Constitution requires how such a right or freedom may be qualified. Section 38 provides:
“38. General qualifications on qualified rights.
(1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that—
(a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary—
(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—
(A) defence; or
(B) public safety; or
(C) public order; or
(D) public welfare; or
(E) public health (including animal and plant health); or
(F) the protection of children and persons under disability (whether legal or practical); or
(G) the development of under-privileged or less advanced groups or areas; or
(ii) in order to protect the exercise of the rights and freedoms of others; or
(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,
to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.
(2) For the purposes of Subsection (1), a law must—
(a) be expressed to be a law that is made for that purpose; and
(b) specify the right or freedom that it regulates or restricts; and
(c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.
(3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.”
An Act of Parliament may regulate or restrict a freedom from arbitrary search and entry under s 44, freedom of thought, conscience and religion under s 45, freedom of expression under s 46, freedom of assembly and association under s 47, freedom of employment under s 48, right to privacy under s 49, right to freedom of information under s 51, right to freedom of movement under s 52. All these rights may be qualified in accordance with s 38 of the Constitution.
It is argued that as the nature of functions and powers given to members of RPNGC under the Police Act may infringe the rights and freedoms set out above, the Police Act must comply with s 38. In fact it is argued, the Police Act complies with this requirement under section 1 of the Police Act:
“1. Compliance with constitutional requirements.
This Act, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.3.C (qualified rights) of the Constitution, namely—
(a) the right to freedom from arbitrary search and entry conferred by Section 44 of the Constitution; and
(b) the right to freedom of assembly and association conferred by Section 47 of the Constitution; and
(c) the right to privacy conferred by Section 49 of the Constitution; and
(d) the right to freedom of information conferred by Section 51 of the Constitution,
is a law that is made for the purpose of giving effect to the public interest in public safety and public order.”
Counsel for the Referrer submits that powers of police under the Police Act may regulate and restrict any of those rights or freedoms, and the Police Act has complied with s 38 of the Constitution. Therefore it is argued that the Police Act is valid.
Counsel submits that functions and powers of AAP are not covered by Police Act but their powers are granted by Article 3.7 of the ECP Act. Those powers are no different to powers granted to members of RPNGC under the Police Act. It follows that these powers when exercised may regulate and restrict the right to freedom from arbitrary search and entry conferred by Section 44, the right to freedom of assembly and association conferred by Section 47, the right to privacy conferred by Section 49 and the right to freedom of information conferred by Section 51.
Counsel submits that the ECP Act should comply with s 38 as required by s 44, 47, 49 and s 51 respectively which require that a law that regulates or restricts a freedom must comply with s 38 of the Constitution.
We agree with the submissions made by counsel for the Referrer. The ECP Act failed to comply with s 38 of the Constitution. To the extent that Article 3.7 grants powers to AAP which may affect the rights and freedoms referred to, it has not complied with s 38 and therefore those powers to the extent they regulate or restricts the rights and freedoms are invalid and of no effect.
We do not consider that compliance under s 1 of the Police Act can have any application to the ECP Act. It is a separate Act and not be read as part of the Police Act. AAP are members of another disciplined force who are given the same powers. The National Parliament ought to have considered and complied with s 38 of the Constitution at the time the ECP Act was passed.
We consider that the ECP Act is invalid to the extent that it failed to comply with s 38 of the Constitution.
Question 3.
We have already dealt with the validity of Articles 3.6. On matters of administration and discipline, they are not subject to regulations of administration and discipline of RPNGC. That does not give them greater rights than the members of RPNGC. As members of Australian Federal Police, they will be subject to regulations of administration and discipline applicable to them in Australia.
Article 3.7 provides:
“Members of the Assisting Australian Police shall exercise the functions, powers, authorities and privileges exercised by members of the Royal Papua New Guinea Constabulary, including the power of arrest.”
This Article grants AAP police powers and functions. This question has been referred in the context of contravening s 199 of the Constitution which provides:
“199. Other forces.
There shall be only one Police Force in Papua New Guinea, but this section does not prevent—
(a) the creation of reserve or special forces, or other similar forces (by whatever name known); or
(b) the creation of special bodies, or the authorization of persons other than members of the Police Force, for the administration or enforcement of particular laws; or
(c) the conferring of police powers on persons who are not members of the Police Force,
by or under an Act of the Parliament.”
This provision authorizes setting up of forces other than the Police Force under three categories. The ECP Act does not fall under s 199 (a) as it is not a reserve, specialist or some other similar force. It would not fall under s 199 (b) because it is not a special body for the administration or enforcement of particular laws. The ECP Act falls under s 199 (c) because it in effect confers police powers on persons who are not members of the Police Force.
However, the powers granted to AAP are no different to powers of the members of RPNGC. The exercise of these powers like members of RPNGC would regulate and restrict the right to freedom from arbitrary search and entry conferred by Section 44, the right to freedom of assembly and association conferred by Section 47, the right to privacy conferred by Section 49 and the right to freedom of information conferred by Section 51. While the exercise of powers under the Police Act has complied with s 38 of the Constitution, the ECP Act has not complied with s 38 (see Question 2).
Question 4
Article 4.2 provides:
“Members of the Assisting Australian Police may possess, carry and use arms in accordance with their internal orders or rules, and in a manner compatible with the possession, carriage and use of arms by the Royal Papua New Guinea Constabulary.”
This question may be considered in two parts. The first relate to granting of powers to AAP to use fire arms in a manner compatible with use of arms by the Royal Papua New Guinea Constabulary. No question of any constitutional law has been raised with regard to granting of powers to use fire arms. There is no constitutional provision on the use of fire arms by the police. In so far as Article 4.2 grants powers of the RPNGC on use of fire arms on members of AAP is concerned, this may be done by an Act under s 199 (c) of the Constitution.
However, the second part of the question raises the question of contravention of rights and freedoms under s 42, 44, 47, 49, 52 and 53 of the Constitution. As we understand the argument, this is the same argument raised in question 2 where the nature of the functions and powers granted under Article 3.7 may affect the rights and freedom under the Constitution and therefore the ECP Act has to comply with s 38 of the Constitution. The argument is that firearms may be used in circumstances where liberty of the person may be affected or similar rights may be affected by the use of fire arms. We have already dealt with this argument and we find the Act invalid for not complying with s 38 of the Constitution. We adopt the same reasoning here.
Question 5
Article 8 provides:
“Article 8
Criminal Jurisdiction
1. Subject to the provisions of this article, Papua New Guinea and Australia shall have concurrent jurisdiction over Designated and Related Persons with respect to offences committed within the territory of Papua New Guinea and punishable by the law of Papua New Guinea.
(b) Where a Designated or Related Person has committed an offence punishable by Papua New Guinea law but not by Australian law, the exercise of jurisdiction shall take place after mutual consultation and a decision of the Joint Steering Committee taken in accordance with Article 9 of this Agreement.
3. In the cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:
(a) Australia shall have the primary right to exercise jurisdiction over Designated and Related Persons subject to Australian law in relation to:
(i) offences against the property of Australia
(ii) offences against the person or property of a Designated or Related Person; or
(iii) acts or omissions of Designated Persons that are taken in the course of, or are incidental to, official duties.
(b) In the case of offences not covered by subparagraph 3(a), the exercise of jurisdiction shall take place after mutual consultation and a decision of the Joint Steering Committee taken in accordance with Article 9 of this Agreement.
(c) For the purposes of sub-paragraph (a)(iii) of this paragraph a certificate issued by the authorities of Australia that the offence arose out of an act or omission done in the course of, or incidental to, official duties, shall, in any proceedings before a court or tribunal, be conclusive evidence of the facts so certified.
(d) Legal proceedings shall not commence, for the purposes of sub-paragraph 2(b) and 3(b), where a certificate has been issued by the authorities of Australia which states that the offence is under investigation or consideration in accordance with Article 9. Legal proceedings shall not commence until the investigation or consultation is completed, and a certificate is issued by the representatives of the Parties which states that the proceedings may commence.
(e) If the State having the primary right to exercise jurisdiction under this article decides not to exercise jurisdiction, it shall notify the authorities of the other State in writing as soon as practicable. The authorities of the State having primary jurisdiction shall give sympathetic consideration to a request from the authorities of the other State for waiver of jurisdiction. Regard shall be had for the responsibilities of the authorities of Australia for the good order and discipline of Designated and Related Persons subject to Australian law
4. The designated authorities of Australia and the authorities of Papua New Guinea shall assist each other in the arrest of Designated or Related Persons in Papua New Guinea and, subject to paragraphs 6 and 7 of this article, in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions.
5. The designated authorities of Papua New Guinea shall immediately notify the designated authorities of Australia of the detention of any Designated or Related Person.
6. Where the authorities of Papua New Guinea have detained a Designated or Related person with respect to an offence over which Papua New Guinea and Australia have concurrent jurisdiction, the authorities of Papua New Guinea shall immediately, upon request by Australia, release the Designated or Related Person to the custody of Australian authorities. In such circumstances consultations shall take place under the terms set out in subparagraphs 2(b), 3(b).
7. The Government of Papua New Guinea may request the Government of Australia to arrange for the departure from Papua New Guinea of any Designated Person or Related Person over whom Australia has exercised jurisdiction pursuant to sub-paragraphs 2 and 3. Upon receipt of such a request the head of the Assisting Australian Police shall arrange for the departure of that Designated Person or Related Person from Papua New Guinea as soon as practicable.
8. The authorities of Australia and the authorities of Papua New Guinea shall notify each other by regular updates of all cases falling within this article.
9. Papua New Guinea shall not carry out the death sentence on a Designated or Related Person.
10. Where an accused has been tried in accordance with the provisions of this article by the authorities of Australia or by the authorities of Papua New Guinea, and has been convicted or acquitted (which expressions shall include any other final disposal of a charge) they may not be tried again for the same or substantially the same offence by the authorities of either State. This paragraph shall not prevent the authorities of Australia from dealing with a Designated or Related Person for any violation of rules of discipline or code of conduct breaches arising from an act or omission which constituted an offence for which he was tried by the authorities of Papua New Guinea.
11. In addition to the provisions of any agreement entered into between Australia and Papua New Guinea concerning the transfer of prisoners from one country to the other, where a Designated or Related Person has been sentenced under the law of Papua New Guinea to a sentence of imprisonment and the Designated or Related Person makes a request, which is supported by the authorities of Australia, that the sentence of imprisonment be served in Australia, this request shall be given sympathetic consideration by the authorities of Papua New Guinea.
12. Whenever a Designated or Related Person is prosecuted under the jurisdiction of Papua New Guinea, the Designated or Related Person shall be entitled:
(a) to a prompt and speedy trial;
(b) to be informed, in advance of trial, of the specific charge or charges to be made against them;
(c) to be confronted with the witnesses against them;
(d) to have compulsory process for obtaining witnesses in their favour, if they are within the jurisdiction of Papua New Guinea;
(e) to have legal representation of their own choice for their defence or to have free or assisted legal representation under the conditions prevailing for the time being in the part of Papua New Guinea in which they are being prosecuted;
(f) if they consider it necessary, to have the services of a competent interpreter;
(g) to be held in safe, secure and humane conditions, and
(h) to communicate with a representative of Australia and, where the rules of the court permit, to have such a representative at their trial.”
This Article has been raised within the context of protection of the law under s 37 of the Constitution which provides:
“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.
(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.
(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.
(4) A person charged with an offence—
(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and
(c) shall be given adequate time and facilities for the preparation of his defence; and
(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.
(5) Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.
(6) Nothing in Subsection (4)(f) invalidates a law which imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of a person charged with an offence are to be paid their expenses out of public funds.
(7) No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.
(8) No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.
(9) No person shall be tried for an offence for which he has been pardoned.
(10) No person shall be compelled in the trial of an offence to be a witness against himself.
(11) A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.
(12) Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.
(13) Nothing in Subsection (12) prevents a court or other authority from excluding from the hearing of the proceedings before it persons, other than the parties and their legal representatives, to such an extent as the court or other authority—
(a) is by law empowered to do and considers necessary or expedient in the interests of public welfare or in circumstances where publicity would prejudice the interests of justice, the welfare of persons under voting age or the protection of the private lives of persons concerned in the proceedings; or
(b) is by law empowered or required to do in the interests of defence, public safety or public order.
(14) In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.
(15) Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.
(16) No person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.
(17) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
(18) Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.
(19) Persons under voting age who are in custody in connexion with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age.
(20) An offender shall not be transferred to an area away from that in which his relatives reside except for reasons of security or other good cause and, if such a transfer is made, the reason for so doing shall be endorsed on the file of the offender.
(21) Nothing in this section—
(a) derogates Division III.4 (principles of natural justice); or
(b) affects the powers and procedures of village courts.
(22) Notwithstanding Subsection 21(b) the powers and procedures of village courts shall be exercised in accordance with the principles of natural justice.”
Article 8 deals primarily with commission of criminal offences by Designated Related Persons (DRP).
Article 8.1 grants concurrent jurisdiction to Australia and Papua New Guinea over commission of criminal offences by DRP. No question of constitutional validity has been raised on this provision.
Where DRP commits an offence subject to Australian law, but not by Papua New Guinea law, Australia shall have the right to exercise exclusive jurisdiction (Article 8.2 (a)). No question of constitutional validity has been raised on this provision.
However, under Article 8.(2) (b), where DRP commits a criminal offence punishable by Papua New Guinea law but not by Australian law, the exercise of jurisdiction is made subject to a mutual consultation and decision of the Joint Steering Committee taken in accordance with Article 9 of this Agreement.
It is necessary to set out the terms of Article 9 which provides:
“Article 9
Consultation and Complaints
1. The Parties will establish a Joint Steering Committee to ensure continuing consultation on implementation of the Enhanced Cooperation Program. The Joint Steering Committee shall comprise members nominated by each Party.
2. As a matter of priority, the Joint Steering Committee shall determine the manner in which it shall meet and operate.
3. Any member of the Joint Steering Committee may request consultations between them on the implementation of Article 8 and consideration under subparagraphs 8(2)(b) and 8(3)(b) regarding the commencement of legal proceedings. At the request of either Party, an investigation shall be carried out into the incident which gave rise to the request for consultations prior to the commencement of those consultations. Consultations under this sub-section shall be held as soon as practicable after such an investigation is completed. The Parties to this Agreement shall in all cases including those giving rise to concurrent jurisdiction assist each other in the carrying out of all necessary investigations and proceedings into offences, and in the collection and production of evidence including the seizure of and the handing over of objects, documents, articles and proceeds in connection with an offence, in accordance with their laws. The handing over of such objects, documents, articles and proceeds may, however, be made subject to their return within any reasonable time specified by the authority delivering them.
4. Decisions of the Joint Steering Committee shall be made by agreement between the Parties.
5. Any member of the Joint Steering Committee may put in writing any complaint regarding the conduct of a Designated or Related Person and regarding implementation of Article 8.
6. Any complaint made pursuant to paragraph 4 may be the subject of consultation under this Article.”
The question referred raises the constitutional validity of Article 8 as contravening s 37 of the Constitution, in particular the rights under the provision. The rights set out under s 37 relate to rights of persons who are charged with criminal offences and those who are kept in custody.
Article 8 (2) (b) does not deal directly with any of the rights set out under s 37 of the Constitution. This Article does not deal specifically with right of arrest of DRP offenders or rights of DRP officers who may be arrested or taken into custody which would attract the rights under s 37. The Article simply designates the applicable law (or the forum of law) so far as commencing prosecution of those offenders is concerned. When an offender is dealt with under PNG law, the rights set out under s 37 of the Constitution would be applicable. We do not read Article 8 (2) (b) as depriving DRP from seeking the protection of rights under s 37 of the Constitution.
However, Article 8 (2) (b) regulates or restricts the exercise of prosecution powers under Papua New Guinea law. The reference to the Joint Steering Committee (JSC) must refer to investigation of, commencement and prosecution of offences committed by DRP under Papua New Guinea law. Exercise of this discretion is made subject to the agreement and decision of the JSC. It is not clear as to the nature of the decision that may be made by the Committee and whether or not the prosecuting authority is bound by the decision of the JSC on whether to commence or not to commence proceedings.
Moreover, under this provision, where the offence is not regulated by Australian law, what interest would Australia have in having to discuss such a matter in JSC. To allow JSC to discuss the issue of commencement of prosecution is tantamount to an attempt to interfere with exercise of prosecution power by the police on whether to commence or not to commence prosecution under Papua New Guinea law.
So far as commencement of proceeding is concerned, the prosecuting authority in the majority of cases is the RPNGC which has authority to commence prosecution. The effect of these Articles (Article 8 (2) (b) and Article 9) is that where the police have power to commence prosecution, either on summarily offences or indictable offences, the police is made subject to this provision. No such action would be taken until the JSC made a decision. The police are not only prevented from commencing a prosecution, but it can only commence where the JSC states that it may commence (see Article 8.3 (d) of the ECP Act).
It would appear from the nature of the provisions relating to appointment of JSC, the members are appointed by the Executive arm of both Governments. Such a cause of action would be to say the least, is an attempt by the Executive arm of the Government to interfere with the prosecution authority of the police under s 197 of the Constitution.
Counsel for the Police Commissioner submits very strongly that JSC provision would be an interference with prosecuting authority of the police (s 197 of the Constitution). The provision of JSC to discuss the commencement of prosecution of an offence is an attempt to influence the prosecuting authority of the police. This provision is therefore inconsistent with s 197 (2) of the Constitution and therefore invalid.
We consider that the Public Prosecutor may come into the picture on the question of commencing prosecution in an ex-officio indictment under Criminal Code. We cannot imagine the JSC interfering with the laying of charges by the Public Prosecutor after a committal hearing. That is a power within the jurisdiction of the Public Prosecutor under s 176 (3) (a) but subject to s 176 (3) (b) of the Constitution. To subject the exercise of this discretion to JSC is to interfere with the prosecuting authority under the Constitution.
There may be other legislation under which prosecution of certain offences may be given to persons other than the police or the Public Prosecutor. These circumstances have not been referred. However, We express the tentative view that if such prosecution authority is given to any other person other than the police or the Public Prosecutor under an Act of Parliament, the question may not be a constitutional issue and therefore we should not express a view on the matter.
Article 8 (2) (b) is invalid for the reasons we have stated above.
Article 8.3 deals with offences committed by DRP against property of Australia, offences against a person or property of DRP or acts or omissions of DRP that are taken in the course of or, or are incidental to official duties and Australia and Papua New Guinea have concurrent jurisdiction.
Under Article 8.3 (b), the exercise of jurisdiction under Papua New Guinea law cannot take place until after mutual consultation and a decision of JSC is taken in accordance with Article 9 of the ECP Act.
Article 8.3 (d) directs that legal proceedings shall not commence if by a certificate issued by authorities of Australia states that an offence is under investigation in accordance with Article 9 and after mutual consultation is completed, and a certificate is issued which states that the proceedings may commence. This is an interference with exercise of prosecution discretion.
Article 8.3 (e) further directs authorities having primary jurisdiction shall give sympathetic consideration to a request from the authorities of the other state for waiver of jurisdiction. This is part of the work of JSC which seeks to interfere with the prosecution authority. In so far as this relates to the police it is inconsistent with s 197 of the Constitution and in so far as it relates to the Public Prosecutor, it is an interference with the discretion of Public Prosecutor under s 176 (3) (a) but subject to s 176 (3) (b) of the Constitution.
In this regard, we dopt our reasoning and conclusion in relation to Article 8 (2) (b) of ECP Act.
Question 6
The Public Prosecutor exercises its discretion after a person who has committed a crime has been committed to stand trial. Up to that stage the Police Commissioner has the function to prosecute a criminal offender. We have already dealt with the interference with the Police prosecuting authority in the earlier questions.
As to the prosecuting authority on ex-officio indictments, we have already dealt with the effect of Article 8.2 (b) and 8.3 with regard to commencement of proceedings in ex-officio indictments in question 5.
As we have pointed out previously, there is no provision for the JSC in dealing with a decision by the Public Prosecutor whether to lay a charge or not after a DRP is committed for trial. To do so is to interfere with the discretion of the Public Prosecutor and it is inconsistent with s 176 (3) (a) of the Constitution.
Question 7
Article 11.1 provides:
“Article 11
Claims and Civil Jurisdiction
1. Designated Persons shall not be subject to the civil jurisdiction of the courts and tribunals of Papua New Guinea with respect to acts or omissions done within the course of, or incidental to, official duties.”
This Article is worded widely to oust the civil jurisdiction of the courts in any civil matter arising out of acts or omissions done within the course of, or incidental to official duties. This kind of approach is to be distinguished from abolition of causes of action which may arise from acts or omissions of DRP. An Act of Parliament may abolish a principle of the underlying law (Schedule 2.3 (1) (a) of the Constitution). Equally an Act of Parliament may repeal a cause of action given by an earlier Act (see s 4 of ECP Act).
This Article is expressed in general terms and covers any cause of action under constitutional laws over which the courts have jurisdiction. In this regard, human rights granted by the Constitution may be enforced by the National Court under s 57 of the Constitution. There are other constitutional remedies such as compensation under s 58 of the Constitution.
Section 23 of the Constitution grants power to the National Court to sanction any breach of a prohibition, restriction or duty imposed by a constitutional law.
To the extent that Article 11.1 affects the rights of persons to enforce these rights before the courts in Papua New Guinea, it is inconsistent with the Constitutional provisions relating to the jurisdiction of the courts over those matters under the Constitution and therefore invalid.
We would answer the questions as follow:
Question 1 – No.
Question 2 – Yes.
Question 3 – See answers in Questions 1 and 2.
Question 4 – Yes.
Question 5 – Yes.
Question 6 – Yes.
Question 7 – Yes.
Lawyers for the Referror : Pato Lawyers
Lawyers for the State : Nonggor & Associate Lawyers
Lawyers for the National Executive Council : Henao Lawyers
Lawyer for the Police Commissioner : H. Ette, Lawyer
Lawyer for the Office of Public Solicitor : C. Manek, Public Prosecutor
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