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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCC (OS) NO 1 OF 2018
APPLICATION BY AIR NIUGINI LIMITED AND REI LOGONA PURSUANT TO CONSTITUTION, SECTION 18(1)
RE JURISDICTION OF THE OMBUDSMAN COMMISSION
Waigani: Batari J, Mogish J, Cannings J, Auka J, Berrigan J
2019: 17th December
2020: 21st February
CONSTITUTIONAL LAW – Ombudsman Commission – whether Ombudsman Commission has jurisdiction to investigate alleged wrongful termination of employment of Air Niugini Ltd employee – whether Air Niugini Ltd a “governmental body” or other body within jurisdiction of Ombudsman Commission – whether alleged wrongful termination of employment is “conduct” that may be investigated – Constitution, Division VIII.2 (the Ombudsman Commission), Section 219 (functions of the Commission) – Organic Law on the Ombudsman Commission, Part III(functions etc of the Commission), Section 13 (functions of the Commission).
Air Niugini Ltd applied under s 18(1) of the Constitution for declarations regarding the jurisdiction of the Ombudsman Commission, in response to the Commission’s decision to investigate under the Organic Law on the Ombudsman Commission a complaint of wrong conduct against Air Niugini Ltd regarding termination of employment of an employee. Two issues arose: (1) is Air Niugini Ltd a body subject to the jurisdiction of the Ombudsman Commission? and (2) is the decision to terminate employment of an employee, “conduct” of Air Niugini Ltd that can be investigated by the Ombudsman Commission?
Held:
(1) Air Niugini Ltd is not a governmental body. Nor is it a body set up by statute. It is not an entity that falls within the investigative jurisdiction of the Ombudsman Commission under s 219(1)(a) of the Constitution or s13 of the Organic Law on the Ombudsman Commission.
(2) The decision to terminate employment of an employee, is not “conduct” of Air Niugini Ltd that can be investigated by the Ombudsman Commission.
Cases Cited
The following cases are cited in the judgment:
Constitutional Reference No 1 of 1978 [1978] PNGLR 345
Daniel v Air Niugini Ltd (2017) SC1886
Keka v Yafaet (2018) SC1673
Mineral Resources Development Company Ltd v Ombudsman Commission (2008) SC931
Mineral Resources Development Company Ltd v Sisimolu (2010) SC1090
Namah v Pato (2014) SC1304
Napitalai v Wallace (2010) SC1016
National Capital District Commission v Reima (2009) SC993
PNG Power Ltd v Augerea (2013) SC1245
PNG University of Technology v Plumtrade Ltd (2012) SC1209
Public Curator v Kara (2014) SC1420
Re Petition of MT Somare [1981] PNGLR 265
SC Reservation No 1 of 1998 (2001) SC672
APPLICATION
This was an application under s 18(1) of the Constitutionfor declarations regarding the jurisdiction of the Ombudsman Commission.
Counsel
I Molloy & C Joseph, for the Applicants
V L Narokobi, M Kik & R Homni, for the Intervener, the Ombudsman Commission
21st February, 2020
1. BY THE COURT: Air Niugini Ltd and its human resources manager Rei Logona (the applicants) apply under s 18(1) of the Constitution for declarations regarding the jurisdiction of the Ombudsman Commission. They make the application in response to the Commission’s decision to investigate under the Organic Law on the Ombudsman Commission a complaint of wrong conduct against Air Niugini regarding its termination of employment of an employee, Mr Philip Douglas. They challenge the Commission’s jurisdiction to undertake such an investigation.
2. Mr Douglas was a porter. He complained to the Ombudsman Commission when he lost his job, and the Commission decided to conduct an investigation into alleged wrong conduct by Air Niugini in sacking him.
3. Air Niugini sought and was granted by the Supreme Court a declaration that it and its human resources manager have standing to invoke the Court’s jurisdiction under s 18(1) of the Constitution to interpret and apply the Constitutional Laws. The Court ruled that the applicants had standing, having regard to the principles on standing to make constitutional applications in the leading case Re Petition of MT Somare [1981] PNGLR 265, clarified in Namah v Pato (2014) SC1304, to invoke the jurisdiction of the Court under Section 18(1) of the Constitution, which states:
Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
4. The Ombudsman Commission was granted leave to intervene in the proceedings, and is the only intervener.
5. The applicants seek declarations that Air Niugini is not a governmental body or a body set up by statute or any other body or entity the conduct of which may be investigated by the Ombudsman Commission; and that even if it is such a body, that the matter the Ombudsman Commission is proposing to investigate (termination of Mr Douglas’s employment) is not “conduct” of Air Niugini which may be investigated by the Commission.
6. Two issues arise:
(1) is Air Niugini Ltd a body subject to the jurisdiction of the Ombudsman Commission? and
(2) is the decision to terminate employment of an employee,“conduct” of Air Niugini Ltd that can be investigated by the Ombudsman Commission?
7. The applicants argue both issues should be resolved in the negative. The intervener argues that both should be resolved in the affirmative.
8. This case is concerned with jurisdiction of the Ombudsman Commission under its general, ‘administrative’ function, not its Leadership Code function (conferred by s 219(1)(d) of the Constitution) and not its discriminatory practices function (s 219(1)(c) of the Constitution). Its ‘administrative’ jurisdiction is conferred by two laws: s 219(1)(a) of the Constitution and s 13 of the Organic Law on the Ombudsman Commission.
9. Section 219(1)(a) of the Constitutionstates:
Subject to this section and to any Organic Law made for the purposes of Subsection (7), the functions of the Ombudsman Commission are ... to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of—
(i) any State Service or provincial service, or a member of any such service; or
(ii) any other governmental body, or an officer or employee of a governmental body; or
(iii) any local government body or an officer or employee of any such body; or
(iv) any other body set up by statute—
(A) that is wholly or mainly supported out of public moneys of Papua New Guinea; or
(B) all of, or the majority of, the members of the controlling authority of which are appointed by the National Executive,
or an officer or employee of any such body; and
(v) any member of the personal staff of the Governor-General, a Minister or the Leader or Deputy Leader of the Opposition; or
(vi) any other body or person prescribed for the purpose by an Act of the Parliament,
specified by or under an Organic Law in the exercise of a power or function vested in it or him by law in cases where the conduct is or may be wrong, taking into account, amongst other things, the National Goals and Directive Principles, the Basic Rights and the Basic Social Obligations.
10. Section 13 of the Organic Law on the Ombudsman Commission states:
For the purposes of Section 219(1)(a) (functions of the Commission) of the Constitution the functions of the Commission, in addition to the functions specified in Section 219(1)(b), (c), (d) and (e) (functions of the Commission) of the Constitution, are to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of—
(a) any State Service or a member of any State Service; or
(b) any governmental body, or an officer or employee of a governmental body; or
(c) any other service or body referred to in Section 219(a)(functions of the Commission) of the Constitution that the Head of State, acting with, and in accordance with, the advice of the National Executive Council, by notice in the National Gazette, declares to be a service or body for the purposes of this section.
Actual and potential jurisdiction
11. The effect of s 219(1)(a) of the Constitution and s 13 of the Organic Law on the Ombudsman Commission(OLOC) is that the Ombudsman Commission has actual jurisdiction to investigate conduct on the part of the following services, bodies and persons:
12. The further effect of those two provisions is that the Commission has potential jurisdiction to investigate conduct on the part of the following services, bodies and persons:
13. A distinction must be drawn between the Commission’s actual and potential jurisdiction because of the use of the words “specified by or under an Organic Law” in the final part of s 219(1)(a). Those words qualify all of the preceding parts of s 219(1)(a), so that a service, body or person referred to in s 219(1)(a) only falls within the Commission’s jurisdiction if it is specified by or under an Organic Law.
14. Those services, bodies and persons we have referred to as falling within the Commission’s actual jurisdiction have been specified by ss 13(a) and (b) of the Organic Law on the Ombudsman Commission for the purposes of s 219(1)(a) of the Constitution.
15. Those services, bodies and persons within the Commission’s potential jurisdiction have not been specified by s 13 of the Organic Law on the Ombudsman Commission for the purposes of s 219(1)(a) of the Constitution;and we are unaware of any other Organic Law that has specified them for the purposes of s 219(1)(a). An Organic Law needs to specify a service, body or person before any of them that are within the Commission’s potential jurisdiction fall within its actual jurisdiction.
Non-contentious matters
16. It is non-contentious that Air Niugini Ltd and its human resources manager do not fall within any of the following categories of services, bodies or persons, which are actually or potentially within the Commission’s jurisdiction:
Points of contention
17. The contentious issue is whether Air Niugini Ltd and its human resources manager fall within the jurisdiction of the Ombudsman Commission due to them being categorised as:
18. Air Niugini argues that it is neither a governmental body nor a body set up by statute, the consequence being that neither it nor its human resources manager fall within the Ombudsman Commission’s jurisdiction
19. The Ombudsman Commission argues that Air Niugini Ltd falls within each of those six categories of entities as it is:
20. The Ombudsman Commission further argues, as to the human resources manager of Air Niugini Ltd, that that person is an employee of Air Niugini Ltd and therefore also falls within the Commission’s jurisdiction.
21. The pressing issues can therefore be reduced to these:
Is Air Niugini Ltd a governmental body, and within the Ombudsman Commission’s jurisdiction under s 219(1)(a)(ii) of the Constitution?
22. If it is, it will fall within the Ombudsman Commission’s actual jurisdiction, as governmental bodies have been specified under the Organic Law on the Ombudsman Commission. The term “governmental body” is defined by Schedule 1.2(1) (rules for shortening and interpretation of the constitutional laws) of the Constitution, which states:
In this Constitution or an Organic Law – "governmental body" means—
(a) the National Government; or
(b) a provincial government; or
(c) an arm, department, agency or instrumentality of the National Government or a provincial government; or
(d) a body set up by statute or administrative act for governmental or official purposes.
23. The term “National Government” is described in Section 99 (structure of government) of the Constitution, which states:
(1) Subject to and in accordance with this Constitution, the power, authority and jurisdiction of the People shall be exercised by the National Government.
(2) The National Government consists of three principal arms, namely:—
(a) the National Parliament, which is an elective legislature with, subject to the Constitutional Laws, unlimited powers of law-making; and
(b) the National Executive; and
(c) the National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.
(3) In principle, the respective powers and functions of the three arms shall be kept separate from each other.
(4) Subsection (2) is descriptive only and is non-justiciable.
24. It is non-contentious that Air Niugini Ltd and its human resources manager do not fall within the following categories of governmental bodies:
25. The contentious issue is whether Air Niugini Ltd falls within the definition of “governmental body” due to it being:
26. In three cases the Supreme Court has addressed the question of whether an office-holder or entity is a governmental body. First, in Constitutional Reference No 1 of 1978 [1978] PNGLR 345 the principal question was whether the Ombudsman Commission had power under its administrative jurisdiction to investigate conduct of the Public Solicitor or officers, including lawyers, of the Public Solicitor’s Office.
27. The Court (Prentice CJ, Wilson J; Pritchard J dissenting) answered in the negative. The Office of Public Solicitor is not a governmental body for the purposes of Section 219(1)(a) of the Constitution, because:
(i) the office is established directly by the Constitution (s 177);
(ii) the Public Solicitor is appointed by an independent constitutional institution, the Judicial and Legal Services Commission;
(iii) the Public Solicitor is free of direction and control by any person or authority, particularly the National Executive;
(iv) he is a “constitutional office-holder” as defined by s 221 of the Constitution and cannot be removed from office except for inability, misbehaviour or misconduct in office, by or in accordance with the recommendation of an independent and impartial tribunal and other provisions of Part IX of the Constitution (constitutional office-holders and constitutional institutions); and
(v) the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders and the Organic Law on Certain Constitutional Office-holders further guarantee the independence of the Public Solicitor and separate and protect the holder of the office from control and influence by the National Government.
28. Secondly, in Mineral Resources Development Company Ltd v Ombudsman Commission (2008) SC931 the question was whether the MRDC was a governmental body, which fell within the Ombudsman Commission’s administrative jurisdiction under s 219(1)(a) of the Constitution.
29. The Court (Kapi CJ, Gabi J, Hartshorn J) held that the fact that MRDC was incorporated under the Companies Act did not mean that it was not a governmental body. Four characteristics of the company were indicators of it being a governmental body:
(i) the State was the exclusive beneficial owner of shares in the company;
(ii) the company was specifically recognised in legislation such as the Mining Act and the Petroleum Act as being authorised to acquire and transfer participating interests in mining and petroleum projects on behalf of the State;
(iii) under the company’s constitution, the Minister for Finance was required to act on behalf of the exclusive shareholder, the State, in the affairs of the company; and
(iv) positions on the company’s board were reserved for the Secretary for Finance, the Secretary for Mining and the Secretary for Petroleum.
30. The Court concluded that MRDC was an entity set up by administrative acts of the National Executive Council for governmental or official purposes. It fell within paragraph (d) of the definition of governmental body and therefore its conduct could be investigated by the Ombudsman Commission.
31. Thirdly, in PNG Power Ltd v Augerea (2013) SC1245 the question was, in the context of an appeal against an order of the National Court, whether PNG Power Ltd was a governmental body that was lawfully ordered to provide an uninterrupted electricity supply to the National Court at Madang under s 225 (provision of facilities etc) of the Constitution. Section 225 provides that “it is the duty of the National Government and of all other governmental bodies ... to ensure, as far as is within their respective legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office-holders”.
32. The Court (Kandakasi J, Manuhu J, Kawi J) held that the fact that PNG Power Ltd was incorporated under the Companies Act did not mean that it was not a governmental body. Five characteristics of the company were indicators of it being a governmental body:
(i) it is an entity established pursuant to statutes: the Electricity Commission (Privatization) Act 2002 and the Electricity Industry Act (Chapter 78);
(ii) its employees were deemed to be in the public service and their terms and conditions of employment were set under the Public Services (Management) Act 1995;
(iii) its Board and its chief executive officer were appointed by the government of the day;
(iv) it was obliged to give effect to the policies of the government and not to pursue its own corporate will and desire, and was accountable to the people of Papua New Guinea through a Minister as its political head; and
(v) it was not established to make profits for the government but rather to provide quality, reliable and affordable electricity to the people of Papua New Guinea, which is a traditional function of the State.
33. In dismissing the appeal by PNG Power Ltd, the Court concluded (without identifying the paragraph of the definition of governmental body that it fell within) that PNG Power Ltd was a governmental body. It was therefore subject to a duty under s 225 of the Constitution to take steps to enable and facilitate the proper and convenient performance of the functions of the National Court (a constitutional institution); and it was lawfully ordered by the National Court to discharge that duty by providing an uninterrupted supply of electricity to the Court.
34. The Supreme Court has also on a number of occasions addressed the related, but separate and distinct, questions of whether an entity is:
35. As to whether an entity is a “statutory authority”, the leading case is:
36. As to whether an entity is part of the State for purposes of the Claims By and Against the State Act 1996, the leading cases are:
37. As to whether an entity is a public bodythe decisions of which are amenable to judicial review, the leading cases are:
38. Those cases in which the Supreme Court has addressed the question of whether an entity is a statutory authorityor part of the State or a public body are useful precedents but it must be borne in mind that the question in the present case is the separate and distinct one: whether Air Niugini Ltd is a governmental body. We endorse the point made by the Court in PNG University of Technology v Plumtrade Ltd (2012) SC1209. Labelling an entity as a governmental body does not necessarily mean it should be regarded as a statutory authority or part of the State or a public body. In that case the Court considered that Unitech was a governmental body (as it was set up by statute for official purposes) but decided that it was not part of the State (as it functioned on a daily basis as an independent body free of government direction or control). Likewise, the fact that an entity is not a public body for judicial review purposes (as in Daniel v Air Niugini Ltd (2017) SC1886) does not mean necessarily that it is not a governmental body for purposes of determining whether its conduct falls within the administrative jurisdiction of the Ombudsman Commission.
39. In light of the above cases, in particular the PNG Power Ltd case, and the two others (Constitutional Reference No 1 of 1978and the MRDC case) in which the Supreme Court addressed the question of whether the entity in question was a governmental body, we consider that the following questions should be asked when determining whether an entity is a governmental body:
(i) Is it established pursuant to statute?
(ii) Are the terms and conditions of its employees set in the same way as those of officers of the National Public Service under the Public Services (Management) Act 1995?
(iii) Are its board and its chief executive officer appointed by the government of the day?
(iv) Is it obliged to give effect to the policies of the government (and not pursue its own corporate will and desire), and is it accountable to the people of Papua New Guinea through a Minister as its political head?
- (v) Was it established to perform traditional government functions?
- (vi) Are its operations funded by government?
- (vii) Is it subject to government direction and control on a day to day basis?
- (viii) Is it subject to government control in the engagement of staff?
- (ix) Does it operate as a monopolistic service provider, as distinct from operating in a commercial environment in competition with other similar entities?
40. The first five of the above questions are drawn from the criteria identified in the PNG Power Ltd case. Others are drawn from the other cases referred to above. The questions have been posed so that answers in the affirmative will support the conclusion that the entity in question is a governmental body. Answers in the negative will support the opposite conclusion. Having answered each question in relation to the entity in question, it is then a matter of seeing whether the affirmative or the negative answers prevail. Whatever outcome is reached by that process, the elements of the definition of governmental body need to be then addressed before concluding whether the entity is a governmental body.
41. We apply that process of reasoning to Air Niugini Ltd. First, the nine questions are answered as follows:
(i) No, Air Niugini Ltd is not set up by or pursuant to any statute.
(ii) No, the terms and conditions of its employees are not set in the same way as those of officers of the National Public Service under the Public Services (Management) Act 1995. As to the terms and conditions of the employee, Mr Philip, there is evidence that they are set under a registered industrial award.
(iii) Yes, the members of the board of directors and the chief executive officer of Air Niugini Ltd are appointed by the government of the day as it falls within the definition of “Majority State Owned Enterprise” in s 2 (interpretation) of the Kumul Consolidated Holdings Act 2002, and therefore its directors, including the managing director, are appointed by the National Executive Council pursuant to s 12 (directors of Majority State Owned Enterprises) and s 46C (governance of Majority State Owned Enterprises) of the Act.
(iv) Yes, Air Niugini Ltd is obliged to give effect to the policies of the National Government (and not pursue its own corporate will and desire) by virtue of Part IVA (Majority State Owned Enterprises) of the Kumul Consolidated Holdings Act, which, amongst other things, requires submission by Air Niugini Ltd of an annual business plan for approval by the National Executive Council (s 46E), subjects it to restrictions on expenditure and acquisition and disposal of assets (s 46F) and allows the Minister to set policies and give directions to it in any matter concerning its activities (s 46I); and is thereby accountable to the people of Papua New Guinea through the Minister as its political head.
(v) No, Air Niugini Ltd was not established to perform a traditional government function.
(vi) No, its operations are not funded by government.
(vii) No, it is not subject to government direction and control on a day to day basis.
- (viii) No, it is not subject to government control in the engagement of staff.
- (ix) No, it does not operate as a monopolistic service provider. It operates in a commercial environment in competition with other airlines, both domestic and international.
42. Two of the nine questions have been answered in the affirmative, seven in the negative. It therefore appears that Air Niugini Ltd is not a governmental body. We now transpose that appearance to the elements of the definition of governmental body and determine that:
We conclude that Air Niugini Ltd is not a governmental body.
Is Air Niugini Ltd a body set up by statute, and within the Ombudsman Commission’s jurisdiction under s 219(1)(a)(iv) of the Constitution?
43. As to the Ombudsman Commission’s argument that Air Niugini Ltd falls within the jurisdiction of the Commission under s 219(1)(a)(iv)(A) or (B) of the Constitution because it is a body set up by statute that is wholly or mainly supported out of public moneys of Papua New Guinea and/or, all of, or the majority of, the members of the controlling authority of which are appointed by the National Executive, we reject it for two reasons.
44. First, Air Niugini Ltd is not a body set up by statute. It is a company established under the Companies Act 1997. It has its own constitution. Though it has its genesis in the National Airline Commission Act (Chapter 244) under which the airline known as Air Niugini, the country’s international flag carrier, was established, the company known as Air Niugini Ltd, which continues to trade as the airline Air Niugini, is a separate legal entity set up, not by, but under or pursuant to a statute, the Companies Act. There is a significant difference between bodies that are set up by statute and those that are set up under a statute. Only those set up by statute are capable of falling within the jurisdiction of the Ombudsman Commission under s 219(1)(a)(iv)(A) or (B) of the Constitution.
45. Secondly, even if Air Niugini Ltd were regarded as a body set up by statute that falls within s 219(1)(a)(iv)(A) or (B) of the Constitution (because (A) it is wholly or mainly supported out of public moneys of Papua New Guinea and/or (B) all of, or the majority of, the members of its controlling authority are appointed by the National Executive), this is not sufficient to bring it within the Ombudsman Commission’s actual jurisdiction. It would merely be within the Commission’s potential jurisdiction, as the bodies described in s 219(1)(a)(iv)(A) or (B) of the Constitution need, as we highlighted earlier, to be specified by an Organic Law, and no specification has occurred in relation to such bodies.
Conclusion on first issue
46. Air Niugini Ltd is not a governmental body and is not a body set up by statute. It follows that it and its human resources manager are not subject to the administrative jurisdiction of the Ombudsman Commission under s 219(1)(a) of the Constitution and s 13 of the Organic Law on the Ombudsman Commission.
47. This issue is academic in light of our determination of the first issue. However, it has been fully argued and it is an important issue as it also concerns the jurisdiction of the Ombudsman Commission. We determine it on the assumption that Air Niugini Ltd is a body within the Ombudsman Commission’s administrative jurisdiction.
48. Can the Commission investigate employment-related matters of such bodies, in particular decisions to terminate employment of employees?That depends on whether such decisions can be regarded as “conduct” of Air Niugini Ltd of a type referred to in s 219 of the Constitution (functions of the Commission) which relevantly provides:
(1) Subject to this section and to any Organic Law made for the purposes of Subsection (7), the functions of the Ombudsman Commission are –
- (a) to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of [a body within the Commission’s jurisdiction] ...in the exercise of a power or function vested in it or him by law in cases where the conduct is or may be wrong, taking into account, amongst other things, the National Goals and Directive Principles, the Basic Rights and the Basic Social Obligations. ...
(2) Subject to Subsections (3), (4) and (5), and without otherwise limiting the generality of the expression, for the purposes of Subsection (1)(a) conduct is wrong if it is—
(a) contrary to law; or
(b) unreasonable, unjust, oppressive or improperly discriminatory, whether or not it is in accordance with law or practice; or
(c) based wholly or partly on improper motives, irrelevant grounds or irrelevant considerations; or
(d) based wholly or partly on a mistake of law or of fact; or
(e) conduct for which reasons should be given but were not,
whether or not the act was supposed to be done in the exercise of deliberate judgment within the meaning of Section 62 (decisions in "deliberate judgment").
(3) The Commission shall not inquire into the justifiability of a policy of the National Government or a Minister or a provincial government or a member of a provincial executive, except insofar as the policy may be contrary to law or to the National Goals and Directive Principles, the Basic Rights or the Basic Social Obligations, or of any Act of the Parliament.
(4) The Commission shall not inquire into the exercise of a rule-making power by a local government body.
(5) The Commission shall not inquire into a decision by a court, except insofar as the decision may show an apparent defect in law or administrative practice to which Subsection (1)(b) would apply. ...
(8) In this section, "conduct" includes—
(a) any action or inaction relating to a matter of administration; and
(b) any alleged action or inaction relating to a matter of administration.[Underlining added.]
What type of “conduct” may be investigated?
49. The effect of s 219(1) is that the Ombudsman Commission is confined to investigating “conduct”of a body that its within its jurisdiction, which meets all of the following criteria:
50. Applying those criteria to the present case yields no issues with (3) and (4). However, (1) and (2) are contentious.
(1) Is the decision to terminate employment of an employee a “matter of administration”?
51. We uphold the argument of the applicants that a decision to terminate employment of an employee is not a decision that relates to “a matter of administration”. As Wilson J pointed out in Constitutional Reference No 1 of 1978 [1978] PNGLR 345 the purpose of conferring a traditional administrative ombudsman jurisdiction on the Ombudsman Commission was to enable the people of Papua New Guinea to ventilate complaints of maladministration against governmental bodies, to protect people from maladministration and in doing lift the standard of public administration. This is borne out by s 218 (purposes of the Commission) of the Constitution, which states:
The purposes of the establishment of the Ombudsman Commission are—
(a) to ensure that all governmental bodies are responsive to the needs and aspirations of the People; and
(b) to help in the improvement of the work of governmental bodies and the elimination of unfairness and discrimination by them; and
(c) to help in the elimination of unfair or otherwise defective legislation and practices affecting or administered by governmental bodies; and
(d) to supervise the enforcement of Division III.2 (leadership code).
52. A “matter of administration” refers, we consider, to a matter concerning the external affairs of a body: how it performs its powers and functions vis-à-vis those external to the body. In the case of Air Niugini Ltd, for example, matters of administration might include the provision of air services to remote locations in the country, how it provides services to people with disabilities, its fare pricing policies and other matters concerning the external relations of a government-owned airline. Decisions on employment-related matters, especially a decision to terminate employment of an employee, relate to the internal affairs of the body.
53. The conduct of Air Niugini Ltd and its human resources manager, at the centre of the present case – the decision to terminate Mr Douglas’s employment – which the Ombudsman Commission decided to investigate, was not an action relating to a matter of administration.
(2) Is the decision to terminate employment made in the exercise of a power or function vested in Air Niugini Ltd “by law”?
54. If it were accepted that the decision to terminate employment of an employee was “conduct” of Air Niugini Ltd, it cannot be properly said that that decision was made “in the exercise of a power or function vested” in Air Niugini Ltd or its human resources manager “by law”.
55. We uphold the applicants’ argument that the decision to terminate employment of Mr Douglas was made (or purported to be made) in the exercise of powers and functions vested in the applicants by the terms and conditions of Mr Douglas’s contract of employment. Those terms and conditions were in accordance with an agreement between Air Niugini Ltd and the National Airline Employees Association of Papua New Guinea. The contract of employment and that agreement are not ‘laws’ in the relevant sense.
Conclusion on second issue
56. The decision of Air Niugini Ltd to terminate the employment of Mr Douglas was not “conduct” of Air Niugini Ltd that can be investigated by the Ombudsman Commission.
CONCLUSION
57. In deciding to conduct an investigation into the termination of employment of the Air Niugini Ltd employee, Mr Douglas, the Ombudsman Commission exceeded its jurisdiction under s 219(1)(a) of the Constitution and the Organic Law on the Ombudsman Commission, in two respects. First, Air Niugini Ltd is not a body that is subject to the jurisdiction of the Ombudsman Commission. Secondly, the decision to terminate employment of an employee is not “conduct” of a body that can be investigated by the Ombudsman Commission. We will grant the declarations sought by the applicants. Costs will follow the event.
ORDER
Judgment accordingly.
____________________________________________________________
Ashurst Lawyers: Lawyers for the Applicants
Counsel to the Commission: Lawyer for the Intervener
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