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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REF NO 2 OF 2021
SPECIAL REFERENCE BY THE OMBUDSMAN COMMISSION PURSUANT TO CONSTITUTION, SECTION 19(1)
RE THE ORGANIC LAW
ON THE INDEPENDENT COMMISSION AGAINST CORRUPTION
Waigani: Kandakasi DCJ, Cannings J,
Hartshorn J, Yagi J, Murray J
2022: 26th April, 7th September
CONSTITUTIONAL LAW – constitutional institutions – Constitution, Division VIII.3 (the Independent Commission Against Corruption) – Organic Law on the Independent Commission Against Corruption – effect of Organic Law on qualified rights – whether Organic Law complies with Constitution, s38.
CONSTITUTIONAL INSTITUTIONS – Independent Commission Against Corruption – whether powers of investigation and prosecution are duplication of powers and functions of existing constitutional institutions – whether duplication renders the Organic Law unconstitutional – whether Organic Law is an unwarranted infringement on the independence of other constitutional institutions – whether offence provisions of Organic Law are harsh and oppressive and invalid and ineffective.
The Ombudsman Commission referred 28 questions of constitutional interpretation and application regarding the Organic Law on the Independent Commission Against Corruption to the Supreme Court under s 19(1) of the Constitution. The questions concern the constitutionality of various provisions of that Organic Law, which was made by the Parliament in 2020 pursuant to Division VIII.3 of the Constitution (the Independent Commission Against Corruption). Division VIII.3 was inserted by Constitutional Amendment No 40 of 2014. The 28 questions were put into five categories. A: Purpose of the Independent Commission Against Corruption (ICAC), questions 1 to 3 concern the purpose of establishment of the ICAC. B: Qualified rights, questions 4 to 7 ask whether the Organic Law on the Independent Commission Against Corruption makes appropriate provision for the exercise of the right to vote and stand for elective public office and whether s 6 of the Organic Law is unconstitutional. C: Duplicity of functions, questions 8 to 17 raise issues regarding the apparent duplication of functions of the ICAC with functions of existing constitutional institutions, the Ombudsman Commission, the Police Force, the Public Prosecutor and courts within the National Judicial System. D: Independence of constitutional institutions, questions 18 to 22 ask whether some provisions of the Organic Law offend against the independence of constitutional institutions. E: Breach of human rights, questions 23 to 28 ask whether specified provisions of the Organic Law infringe on rights guaranteed by the human rights provisions of the Constitution.
Held:
(1) Questions regarding the purposes of the ICAC were vague and hypothetical and the Court declined to give an opinion on them.
(2) The Organic Law did not have to comply with the requirements of s 38 of the Constitution.
(3) The investigative and prosecutorial powers and functions of the Independent Commission Against Corruption are conferred by Division VIII.3 of the Constitution. Though there is a duplication of some powers and functions of existing constitutional institutions, that does not render the Organic Law on the Independent Commission Against Corruption invalid or ineffective.
(4) There is no infringement in the manner alleged of the independence of existing constitutional institutions.
(5) There is no infringement in the manner alleged of the human rights of persons whose conduct is investigated as alleged corrupt conduct.
(6) In summary, none of the questions were answered in the manner contended for by the referrer. None of the provisions of the Organic Law on the Independent Commission Against Corruption were found to be invalid or ineffective or otherwise unconstitutional.
Cases Cited
The following cases are cited in the judgment:
Goli Golu v The State [1979] PNGLR 653
Kamit v Aus-PNG Research and Resources Impex Ltd [2007] 1 PNGLR 222
Koniel Alar and Hosea Biu v The State [1979] PNGLR 300
Morobe Provincial Government v John Kameku [2012] 1 PNGLR 41
Petrus and Gawi v Telikom PNG Ltd [2008] PNGLR 161
SC Ref No 1 of 1984, Re Minimum Penalties Legislation [1984] PNGLR 314
SC Ref No 1 of 2017, Re Constitution, s 28(5) & the Organic Law on the Duties and Responsibilities of Leadership (2017) SC1645
SC Ref No 2 of 2018, Re Public Money Management Regularisation Act 2017 (2020) SC1944
Counsel:
A Kupmain & P Koralyo, for the Referrer
T Tanuvasa, for the Intervener
7th September, 2022
1. BY THE COURT: The Ombudsman Commission has referred various questions of constitutional interpretation and application regarding the Organic Law on the Independent Commission Against Corruption to the Supreme Court under s 19(1) (special references to the Supreme Court) of the Constitution.
2. The questions concern the constitutionality of various provisions of that Organic Law, which was made by the Parliament in 2020 pursuant to Division VIII.3 of the Constitution (the Independent Commission Against Corruption).
3. Division VIII.3 was inserted by Constitutional Amendment No 40 of 2014. The Organic Law commenced operation on 18 May 2021 (National Gazette G315 of 2021).
4. When we refer to ‘the Organic Law’ in this judgment, we are referring to the Organic Law on the Independent Commission Against Corruption. When we refer to ‘the Commission’ or ‘the ICAC’, we are referring to the Independent Commission Against Corruption.
PARTIES
5. The Attorney-General was the only person granted leave to intervene in this reference, so there are only two parties: the referrer (Ombudsman Commission) and the intervener (Attorney-General).
CATEGORIES OF QUESTIONS
6. We adopt the categorization of questions set out by the Ombudsman Commission in the amended reference filed on 13 July 2021:
A – Purpose of the Independent Commission Against Corruption: questions 1 to 3 concern the purpose of establishment of the ICAC.
B – Qualified rights: questions 4 to 7 ask whether the Organic Law on the Independent Commission Against Corruption makes appropriate provision for the exercise of the right to vote and stand for elective public office and in particular whether s 6 of the Organic Law is unconstitutional.
C – Duplicity of functions: questions 8 to 17 raise issues regarding the apparent duplication of functions of the ICAC with functions of existing constitutional institutions, the Ombudsman Commission, the Police Force, the Public Prosecutor and courts within the National Judicial System.
D – Independence of constitutional institutions: questions 18 to 22 ask whether some provisions of the Organic Law offend against the independence of constitutional institutions that are comprised of constitutional office-holders, including the Ombudsman Commission.
E – Breach of human rights: questions 23 to 28 ask whether specified provisions of the Organic Law infringe on rights guaranteed by the human rights provisions of the Constitution and are unconstitutional.
7. We address each of the 28 questions in turn. After stating each question, we set out the positions of the parties before providing the Court’s opinion on the question, which is summarised as an answer to each question.
A – PURPOSE OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION: QUESTIONS 1 TO 3
QUESTION 1: WHETHER SECTION 3 OF THE OLICAC EXCLUSIVELY PROVIDES FOR THE ICAC TO ‘CONTRIBUTE’ AND ‘COOPERATE’ IN MATTERS UNDER THE CRIMINAL CODE ACT?
8. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
9. Section 3 of the Organic Law states:
The Criminal Code Act 1974 applies to all offences under this Law.
10. We agree with the intervener that this is a trivial and vague question which does not require detailed consideration.
11. We invoke Order 4, rule 18 of the Supreme Court Rules 2012 (a rule made under s 19(4)(c) of the Constitution, in respect of cases and circumstances in which the Court may decline to give an opinion) which states:
The court may decline to give an opinion on the question the subject of the reference or special reference if in [its] opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Answer to question 1
12. We decline to give an opinion as the question is trivial and hypothetical.
QUESTION 2: WHETHER THE INTENT OF THE ESTABLISHMENT OF ICAC PURSUANT TO SECTION 220C OF THE CONSTITUTION IS TO COMPLEMENT THE FUNCTIONS OF EXISTING LAW ENFORCEMENT AGENCIES, WHICH INCLUDES THE LAW ENFORCEMENT AND INTEGRITY AGENCIES LISTED UNDER SECTION 4 OF THE OLICAC?
13. The positions of the parties are:
| Referrer | Intervener |
| Yes | Yes |
14. Section 220C of the Constitution describes the purposes of establishing the ICAC in the following terms:
The purposes of the Commission are to contribute, in cooperation with other agencies, to preventing, reducing and combating corrupt conduct.
15. Section 4 is the main definition provision of the Organic Law. It includes the following definitions:
"relevant agency" means —
(a) an integrity agency; or
(b) a law enforcement agency; or
(c) a regulatory agency.
"integrity agency" means —
(a) the Ombudsman Commission; or
(b) the Office of the Auditor-General; or
(c) the Public Services Commission; or
(d) the Judicial and Legal Services Commission.
"law enforcement agency" means —
(a) the Royal Papua New Guinea Constabulary; or
(b) the Office of the Public Prosecutor; or
(c) the Financial Assessment and Supervision Unit.
"regulatory agency" means an agency or body established by or under a Constitutional Law or an Act whose functions include setting, monitoring or enforcing compliance with standards or obligations prescribed by or under that or another Constitutional Law or Act.
16. With respect, this is another trivial and vague question which does not require detailed consideration. The purposes of establishing the ICAC are prescribed by s 220C of the Constitution. We see no point in trying, in a factual vacuum, to define the purposes in any other way.
Answer to question 2
17. We decline to give an opinion as the question is trivial and hypothetical.
QUESTION 3: WHETHER SECTIONS 5, 6, 7, 8 AND 9 OF THE OLICAC DEFINE THE ‘SCOPE’ OR ‘EXTENT’ OF THE PURPOSE OF THE ESTABLISHMENT OF THE ICAC AS PROVIDED UNDER SECTION 220C OF THE CONSTITUTION?
18. The positions of the parties are:
| Referrer | Intervener |
| No | No |
19. Sections 5 to 9 are in Part I (preliminary) of the Organic Law are in the following terms:
5. Corrupt conduct.
(1) Conduct of a public official is corrupt conduct if —
(a) the conduct constitutes or involves, or is engaged in for the purpose of—
(i) dishonestly exercising official functions; or
(ii) abusing official functions; or
(iii) exercising official functions in a way that is not impartial; or
(iv) misusing information or material acquired in the course of official functions; or
(v) obstructing, interfering with or perverting the administration or the course of justice; and
(b) the conduct could amount to a disciplinary offence or a criminal offence.
(2) The conduct of a person (whether or not a public official) is corrupt conduct if —
(a) the conduct affects or influences, or could affect or influence, any of the conduct mentioned in Subsection (1) by a public official; and
(b) the conduct could amount to a disciplinary offence or a criminal offence.
(3) The conduct of any person (whether or not a public official) is corrupt conduct if the conduct —
(a) allows, encourages, causes, aids, abets, incites, induces, counsels or procures or assists to conceal corrupt conduct; or
(b) is an attempt, preparation or conspiracy to commit corrupt conduct; or
(c) is directly or indirectly connected with, or is a part of a course of activity involving corrupt conduct.
(4) Conduct may be corrupt conduct regardless of whether the conduct or part of the conduct occurred before the commencement of this Organic Law.
6. Conduct of public officials.
(1) If conduct of a person occurs before the person becomes a public official, the conduct may be corrupt conduct of a public official if the conduct is connected to the exercise of the person's official functions after the person became a public official.
(2) Conduct of a person may be corrupt conduct of a public official regardless of whether —
(a) some of the conduct occurs after the person ceases to be a public official; or
(b) the person ceases to be a public official after the conduct concerned occurred; or
(c) the conduct is for the benefit of the person as a public official.
7. Conduct outside Papua New Guinea.
Conduct that occurs outside of Papua New Guinea may be corrupt conduct if—
(a) the conduct is connected to other conduct that occurs in Papua New Guinea; or
(b) the conduct is committed by a citizen; or
(c) a citizen or the State is affected by or connected with the conduct; or
(d) the conduct occurs on an aircraft that is registered under the laws of Papua New Guinea; or
(e) the conduct occurs on a vessel that is flying the national flag of Papua New Guinea; or
(f) the conduct concerns property or funds that are located in Papua New Guinea, or are moved out of or into Papua New Guinea.
8. Public body.
(1) A body, authority or entity is a public body if —
(a) it is established for a public purpose by or under a Constitutional Law or an Act; or
(b) it is established by an administrative act for governmental or official purposes.
(2) Without limiting Subsection (1), each of the following is a public body:
(a) the National Parliament; and
(b) the National Government or an arm, department, agency or instrumentality of the National Government; and
(c) a State Service; and
(d) a Provincial Government and a Provincial Assembly, or an arm, department, agency or instrumentality of a Provincial Government; and
(e) a Local-level Government or an arm, agency or instrumentality of a Local-level Government; and
(f) the Supreme Court, the National Court, a District Court, a Village Court or any other court established by or under a Constitutional Law or an Act.
9. Public official.
(1) A person is a public official if the person is —
(a) subject to the leadership code under Section 26 of the Constitution; or
(b) a member of staff, an officer or a member of a public body; or
(c) a person —
(i) employed, engaged or contracted to perform services for a public body or public official in their official capacity; or
(ii) engaged or contracted to act on behalf of a public body or public official in their official capacity; or
(d) a person appointed to an office or position by the Governor-General.
(2) Subsection (1) applies regardless of whether the person is —
(a) paid or unpaid; or
(b) elected or appointed; or
(c) temporarily or permanently engaged, employed or appointed.
20. With respect, this is another vague question which does not require detailed consideration. To ask whether the above provisions of the Organic Law define the scope or extent of the purpose of establishment of the ICAC is an academic exercise. Asked in a factual vacuum, the question serves no useful purpose.
Answer to question 3
21. We decline to give an opinion as the question is trivial and hypothetical.
B – QUALIFIED RIGHTS: QUESTIONS 4 TO 7
QUESTION 4: WHETHER SECTION 6 OF THE OLICAC PARTICULARLY SUBSECTIONS (1) AND (2) IN EFFECT RESTRICTS THE EXERCISE OF THE RIGHT TO VOTE AND STAND FOR PUBLIC OFFICE AS PROVIDED UNDER SECTION 50 OF THE CONSTITUTION?
22. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
23. Section 6 of the Organic Law is one of the provisions that clarifies what is regarded as corrupt conduct of a public official. We fail to appreciate how it restricts the exercise of the right to vote and stand for public office under s 50 of the Constitution.
Answer to question 4
No.
QUESTION 5: IF THE ANSWER TO QUESTION 5.4 IS YES, THEN OUGHT THE OLICAC TO HAVE QUALIFIED THIS RIGHT PURSUANT TO SECTION 38 OF THE CONSTITUTION?
24. The positions of the parties are:
| Referrer | Intervener |
| Yes | Not necessary to answer |
25. We have answered question 4 no, so this question is superfluous.
Answer to question 5
26. We decline to give an opinion as the question is trivial and hypothetical.
QUESTION 6: IF THE ANSWER TO 5.5 IS YES, THEN WHETHER SECTION 6 OF THE OLICAC IS REASONABLY JUSTIFIABLE IN A DEMOCRATIC SOCIETY HAVING PROPER REGARD FOR THE RIGHTS AND DIGNITY OF MANKIND AS REQUIRED PURSUANT TO SECTIONS 38 AND 39 OF THE CONSTITUTION?
27. The positions of the parties are:
| Referrer | Intervener |
| No | Not necessary to answer |
28. We have answered question 5 no, so this question is superfluous.
Answer to question 6
29. We decline to give an opinion as the question is trivial and hypothetical.
QUESTION 7: IF THE ANSWER TO QUESTION 5.6 IS NO, THEN SECTION 6 OF THE OLICAC IS UNCONSTITUTIONAL AND INVALID.
30. The positions of the parties are:
| Referrer | Intervener |
| Yes | Not necessary to answer |
31. This is not a question. It is a proposition. However, if it is expressed as a question, it would be ‘Is s 6 of the Organic Law unconstitutional?’ Nothing has been put before us to show that it is.
Answer to question 7
No.
C – DUPLICITY OF FUNCTIONS: QUESTIONS 8 TO 17
QUESTION 8: WHETHER SECTIONS 5, 8 AND 9 OF THE OLICAC IN SO FAR AS IT PURPORTS TO PROVIDE THE FUNCTIONS FOR THE ICAC TO CONDUCT INVESTIGATIONS AND MAKE REFERRALS ON MATTERS OUTSIDE THE CRIMINAL CODE ACT [IS] CONSISTENT WITH SECTIONS 220C AND 220D OF THE CONSTITUTION WITH PARTICULAR REFERENCE TO SECTION 220D(b)(f)(g) OF THE CONSTITUTION?
32. The positions of the parties are:
| Referrer | Intervener |
| No | Yes |
33. Sections 5 (corrupt conduct), 8 (public body) and 9 (public official) of the Organic Law are set out above, in question 3. These provisions describe the type of conduct to be regarded as corrupt conduct. It is the ICAC’s purpose, under s 220C of the Constitution, to contribute to its prevention, reduction and combating.
The functions of the ICAC, as distinct from its purposes, are set out in s 220D of the Constitution in the following terms:
Subject to any Organic Law made for the purposes of Section 220E, the functions of the Commission are —
(a) to receive and consider complaints regarding alleged or suspected corrupt conduct and investigate such of those complaints as it considers appropriate; and
(b) to investigate, on its own initiative or on complaints received, alleged or suspected corrupt conduct; and
(c) to exchange information regarding alleged or suspected corrupt conduct and cooperate with other law enforcement, integrity and regulatory agencies, both within Papua New Guinea and internationally; and
(d) to refer complaints regarding alleged or suspected corrupt conduct to other agencies for investigation; and
(e) to accept the referral from other agencies of matters regarding alleged or suspected corrupt conduct for investigation; and
(f) where the Commission, after conducting an investigation, is of the opinion that a person has committed an offence involving corrupt conduct, to refer the matter to the Public Prosecutor or the Police Force together with a statement of reasons for its opinion; and
(g) to exercise such prosecution powers concerning or relating to corrupt conduct as may be prescribed by or under an Organic Law; and
(h) to encourage, cooperate and coordinate with other public and private sector agencies in —
(i) research regarding corrupt conduct and anti-corruption strategies, policies, practices and procedures; and
(ii) the development, implementation and review of anti-corruption strategies, policies, practices and procedures; and
(iii) training, education and awareness regarding corrupt conduct and anti-corruption strategies, policies, practices and procedures.
34. Question 8 asks whether ss 5, 8 and 9 of the Organic Law are consistent with s 220C (purposes of the Commission) and s 220D (functions of the Commission) of the Constitution.
35. As for s 220C, those provisions of the Organic Law are clearly consistent with the purposes of the ICAC: preventing, reducing and combating corrupt conduct.
36. As for s 220D, there can be no inconsistency between this provision of the Constitution and ss 5, 8 and 9 of the Organic Law due to the qualifying words at the beginning of s 220D:
Subject to any Organic Law made for the purposes of Section 220E, the functions of the Commission are ...
37. The Organic Law on the Independent Commission Against Corruption is an Organic Law made for the purposes of s 220E (powers etc of the Commission), which states:
(1) An Organic Law shall make further provision for the functions, structure, powers, procedures, operations, protections and immunities of the Commission and its staff.
(2) Without limiting the scope of Subsection (1), an Organic Law may:
(a) make provision for the Commission to have access to all available relevant information to carry out its functions; and
(b) impose reasonable restrictions on the availability of information held by the Commission; and
(c) make provision to ensure the secrecy or confidentiality of secret or confidential information made available to the Commission; and
(d) make provision for the bodies with which the Commission may share secret or confidential information; and
(e) make provision for and in respect of publicity for the proceedings, reports and recommendations of the Commission; and
(f) provide for certain penalties to automatically apply to a person who has been convicted of an offence involving corrupt conduct.
38. Section 220D is therefore saying that the functions of the ICAC that it prescribes are subject to any statement of functions set out in the Organic Law. This means that even if we were persuaded that any functions of the ICAC set out in ss 5, 8 and 9 of the Organic Law were inconsistent with the statement of functions in s 220D of the Constitution, it would be of no consequence as s 220D is to be read subject to the Organic Law.
39. The answer to this question, which can be summarised as whether ss 5, 8 and 9 of the Organic Law are consistent with ss 220C and 220D of the Constitution, must therefore be in the affirmative.
Answer to question 8
Yes.
Ombudsman Commission
QUESTION 9: WHETHER THE APPLICATION OF ‘PUBLIC OFFICIAL’ ON PROPER INTERPRETATION UNDER SECTIONS 5 AND 9 OF THE OLICAC DUPLICATES SECTIONS 26 AND 219(1) OF THE CONSTITUTION?
40. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
41. Section 9 of the Organic Law defines public official in the following terms:
(1) A person is a public official if the person is —
(a) subject to the leadership code under Section 26 of the Constitution; or
(b) a member of staff, an officer or a member of a public body; or
(c) a person —
(i) employed, engaged or contracted to perform services for a public body or public official in their official capacity; or
(ii) engaged or contracted to act on behalf of a public body or public official in their official capacity; or
(d) a person appointed to an office or position by the Governor-General.
(2) Subsection (1) applies regardless of whether the person is —
(a) paid or unpaid; or
(b) elected or appointed; or
(c) temporarily or permanently engaged, employed or appointed.
42. Section 26(1) of the Constitution prescribes the persons who are subject to the Leadership Code:
The provisions of this Division apply to and in relation to—
(a) the Prime Minister, the Deputy Prime Minister and the other Ministers; and
(b) the Leader and Deputy Leader of the Opposition; and
(c) all other members of the Parliament; and
(d) members of Provincial Assemblies and Local-level Governments; and
(e) all constitutional office-holders within the meaning of Section 221 (definitions); and
(f) all heads of Departments of the National Public Service; and
(g) all heads of or members of the boards or other controlling bodies of statutory authorities; and
(h) the Commissioner of Police; and
(i) the Commander of the Defence Force; and
(j) all ambassadors and other senior diplomatic and consular officials prescribed by an Organic Law or an Act of the Parliament; and
(k) the public trustee; and
(l) the personal staff of the Governor-General, the Ministers and the Leader and Deputy Leader of the Opposition; and
(m) executive officers of registered political parties as defined by Section 128 ("registered political party"); and
(n) persons holding such public offices as are declared under Subsection (3) to be offices to and in relation to which this Division applies.
43. Section 219(1) of the Constitution prescribes the functions of the Ombudsman Commission in the following terms:
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—
(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; and
(b) to investigate any defects in any law or administrative practice appearing from any such investigation; and
(c) to investigate, either on its own initiative or on complaint by a person affected, any case of an alleged or suspected discriminatory practice within the meaning of a law prohibiting such practices; and
(d) any functions conferred on it under Division III.2 (leadership code); and
(e) any other functions conferred upon it by or under an Organic Law.
44. We agree with the referrer’s proposition that a person referred to in s 26(1) or 219(1) of the Constitution would be a public official as defined in s 9 of the Organic Law. However, it does not follow that s 9 of the Organic Law is a duplication of those constitutional provisions.
Answer to question 9
No.
QUESTION 10: WHETHER SECTIONS 5, 8, 9, 32, 34, 45 AND 53(1) OF THE OLICAC ARE INCONSISTENT WITH SECTIONS 218 AND 219 OF THE CONSTITUTION, WHERE IT PURPORTS TO GIVE THE ICAC POWERS TO INVESTIGATE CORRUPT CONDUCT UNDER THE LEADERSHIP CODE?
45. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
46. Sections 5, 8 and 9 of the Organic Law are set out above. The other provisions on which this question is based – ss 32, 34, 45 and 53(1) – are in the following terms:
32. Functions and powers of the Commission.
In addition to the functions and powers of the Commission specified in Division VIII.3 (the Independent Commission Against Corruption) of the Constitution, the Commission has —
(a) such functions and powers as are conferred on it by this Law or any other Constitutional Law or Act; and
(b) the power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its functions or the exercise of its powers.
34. Investigation and prosecution of corrupt conduct
(1) Without limiting how the Commission may prevent and reduce corrupt conduct, the Commission may —
(a) investigate alleged or suspected corrupt conduct, including offences mentioned in Subsection (2), and perform functions or exercise powers under Parts IV, V and VI; and
(b) prosecute indictable offences relating to corrupt conduct in accordance with Part VII.
(2) The Commission may investigate —
(a) offences under this Organic Law; and
(b) other offences under the Criminal Code Act 1974 that fall within the definition of corrupt conduct; and
(c) offences under any other laws that fall within the definition of corrupt conduct.
45. Duty to notify Commission of possible corrupt conduct.
(1) Subject to Subsections (3) and (4), notwithstanding any other Act, any person to whom Division III.2 (leadership code) of the Constitution applies is under a duty to report to the Commission any matter that the person suspects on reasonable grounds concerns or may concern corrupt conduct.
(2) The person must report the matter to the Commission as soon as practicable after the person becomes aware of the matter, and may do so orally or in writing.
(3) The duty to report under this section does not apply if —
(a) the Prime Minister certifies that to do so is likely to prejudice the security or defence of Papua New Guinea; or
(b) the Prime Minister certifies that to do so is likely to prejudice Papua New Guinea's relations with the Government of any other country or with any international organisation; or
(c) to do so would involve the disclosure of proceedings, deliberations or decisions of the National Executive Council, or of any committee of that Council, which the Prime Minister certifies relate to matters of a secret or confidential nature, disclosure of which would be injurious to the public interest; or
(d) to do so would be a breach of Parliamentary privilege or immunity; or
(e) the matter is subject to a claim of legal professional privilege.
(4) The Commissioner of Police, the Public Prosecutor, the Public Solicitor, a Judge, the Chief Magistrate or a member of the Ombudsman Commission is not under a duty to report to the Commission, any matter that concerns or may concern corrupt conduct if he becomes aware of the matter while performing official duties, unless the matter concerns or may concern corrupt conduct of —
(a) in the case of the Commissioner of Police - a member of the Police Force; or
(b) in the case of the Public Prosecutor - a member of the staff of the Office of the Public Prosecutor; or
(c) in the case of the Public Solicitor - a member of the staff of the Office of the Public Solicitor; or
(d) in the case of a Judge - another Judge, or an officer or employee of the National Judicial Staff Service; or
(e) in the case of the Chief Magistrate - a Magistrate or a member of the staff of the Magisterial Service; or
(f) in the case of a member of the Ombudsman Commission - another member of the Ombudsman Commission or an officer or employee of the Service of the Ombudsman Commission.
53. Investigations generally.
(1) The Commission may conduct an investigation into alleged or suspected corrupt conduct —
(a) on its own initiative; or
(b) in response to a complaint made; or
(c) in response to a report or reference made to it by another agency or body.
47. We agree with the central tenet on which question 10 is based: that the Organic Law gives the ICAC power to investigate alleged or suspected corrupt conduct, which conduct might also be alleged or suspected misconduct in office under the Leadership Code. Is this inconsistent with ss 218 and 219 of the Constitution?
48. Section 218 (purposes of the Commission) prescribes the purposes of establishing the Ombudsman Commission, one of which is to supervise enforcement of the Leadership Code.
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).
49. Section 219 (functions of the Commission) was set out earlier. It prescribes the functions of the Ombudsman Commission, one of which is (due to the combined effect of s 219(1)(d) of the Constitution and the Organic Law on the Duties and Responsibilities of Leadership), investigation of alleged or suspected misconduct in office.
50. We agree that there is an overlap between the investigative powers of the ICAC and the investigative powers of the Ombudsman Commission. However, we do not agree that there is in an inconsistency between the Organic Law and ss 218 and 219 of the Constitution.
51. Sections 218 and 219 do not purport to confer exclusive jurisdiction on the Ombudsman Commission to investigate all conduct falling within the definition of alleged or suspected misconduct in office. Such conduct can already be investigated by other law enforcement or integrity agencies such as the Police and the Auditor-General.
52. We discern nothing in the Constitution to prevent the Parliament establishing another institution to investigate conduct that can already be investigated by existing institutions. Whether that is a sensible strategy to adopt is not for this Court to decide. What we have to decide is whether it is constitutional to do so. We are not convinced that it is unconstitutional.
Answer to question 10
No.
QUESTION 11: IN THE ALTERNATIVE, WHETHER SECTIONS 5, 8, 9, 32, 34, 45, AND 53(1) OF THE OLICAC IS INCONSISTENT WITH SECTIONS 220C AND 220D OF THE CONSTITUTION TO THE EXTENT THAT IT PURPORTS TO PERFORM THE FUNCTIONS AND DUTIES OF THE OMBUDSMAN COMMISSION AS THE ENFORCER AND SUPERVISOR OF THE LEADERSHIP CODE AND ARE THEREFORE UNCONSTITUTIONAL AND INVALID?
53. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
54. Our answer to this question is driven by our answer to question 10. There is no inconsistency in the manner alleged between the Organic Law and the Constitution.
Answer to question 11
No.
Royal Papua New Guinea Constabulary (RPNGC)
QUESTION 12: WHETHER SECTIONS 5, 8, 9, 34 AND 99 OF THE OLICAC ARE INCONSISTENT WITH SECTION 197 OF THE CONSTITUTION, WHERE IT PURPORTS TO GIVE THE ICAC POWERS TO INVESTIGATE UNDER THE CRIMINAL CODE ACT?
55. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
56. Sections 5 (corrupt conduct), 8 (public body), 9 (public official) and 34 (investigation and prosecution of corrupt conduct) of the Organic Law are set out above.
57. Section 99 (arrests) has not been referred to earlier. It states:
(1) This section applies to an indictable offence relating to "corrupt conduct".
(2) A Commission investigator has the same duties and powers under the Arrest Act 1977 in relation to an indictable offence as a police officer would have under that Act in relation to the indictable offence, other than the powers under Part II (circumstances justifying arrest without warrant) of that Act.
(3) A Commission investigator also has the same duties and powers under the Arrest Act 1977 in relation to an indictable offence as a member of the public would have under that Act in relation to the indictable offence.
(4) A Commission investigator has the same duties and powers under the Bail Act 1977 in relation to an indictable offence as a police officer would have under that Act in relation to the offence, but the Commission is not a bail authority within the meaning of that Act.
(5) A Commission prosecutor has the same duties and powers under the District Courts Act 1963 in relation to an indictable offence as a police officer would have under that Act in relation to the indictable offence.
58. Section 197 of the Constitution (functions of the Police Force) states:
(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.
(3) It is a further function of the Police Force to assist in the fulfilment by Papua New Guinea of its international obligations by taking part in an international peace-keeping or relief operation.
(4) The Police Force, or a part of the Police Force, in respect of its function under Subsection (3)—
(a) may be ordered on or committed to an international peace-keeping or relief operation only by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, given after the approval of the Parliament; and
(b) shall operate in another country in accordance with an Act of the Parliament which makes provision for its presence in that other country and in particular for or in respect of—
(i) the assertion of the exclusive jurisdiction of courts and tribunals of Papua New Guinea, and of Police Force authorities, over members of the Police Force in that other country; and
(ii) the manner of its operations in that other country.
59. We agree with the proposition underlying this question: that the Organic Law gives the ICAC investigative powers, including the power of arrest, which is conventionally regarded as a power of police investigation.
60. However, we do not agree that such powers fall within the exclusive domain of the Police Force. The Organic Law does not purport to establish ICAC as a Police Force or other disciplined force in a way that would infringe s 199 (other forces) of the Constitution, which states:
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.
61. The establishment of ICAC and conferral on it of powers of arrest is quite unlike the facts in the leading case, Koniel Alar and Hosea Biu v The State [1979] PNGLR 300. There is nothing in the Constitution to suggest that powers of arrest cannot be conferred on other law enforcement agencies, such as the ICAC.
Answer to question 12
No.
QUESTION 13: IN THE ALTERNATIVE WHETHER SECTIONS 5, 8, 9, 34 AND 99 OF THE OLICAC ARE INCONSISTENT WITH SECTIONS 220C AND 220D OF THE CONSTITUTION TO THE EXTENT THAT IT PURPORTS TO PERFORM THE FUNCTIONS AND DUTIES OF THE RPNGC AND ARE THEREFORE UNCONSTITUTIONAL AND INVALID?
62. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
63. The referrer argues that because s 220C (purposes of the Commission) of the Constitution uses words such as “contribute” to preventing, reducing and combating corruption and “in cooperation with other agencies”, the intention is expressed that the ICAC should not have independent powers of investigation or prosecution.
64. With respect, we consider that argument to be fallacious. Section 220D (functions of the Commission) of the Constitution foreshadows that the ICAC would have such independent powers. For example, the functions of the ICAC include:
65. There is no inconsistency between ss 5, 8, 9, 34 and 99 of the Organic Law and ss 220C and 220D of the Constitution.
Answer to question 13
No.
Public Prosecutor
QUESTION 14: WHETHER SECTIONS 5, 8, 9, 34(1)(b), 101 AND 102 OF THE OLICAC ARE INCONSISTENT WITH SECTION 177 OF THE CONSTITUTION, WHERE IT PURPORTS TO GIVE THE ICAC POWERS TO PROSECUTE CORRUPT CONDUCT UNDER THE CRIMINAL CODE AND THE LEADERSHIP CODE?
66. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
67. Sections 5 (corrupt conduct), 8 (public body), 9 (public official) and 34 (investigation and prosecution of corrupt conduct) of the Organic Law are set out above.
68. Sections 101 (obtaining consent of the Public Prosecutor to prosecute certain offences) and 102 (appeals and other proceedings) of the Organic Law have not been referred to earlier. These provisions state:
(1) The Commission prosecutor may prosecute the trial of an indictable offence relating to corrupt conduct with the written consent of the Public Prosecutor and in accordance with law.
(2) The Commission may request the consent of the Public Prosecutor to prosecute —
(a) a particular indictable offence relating to corrupt conduct; or
(b) a class of indictable offences relating to corrupt conduct.
(3) The request for consent must be in writing.
(4) The Public Prosecutor must, within 60 days after receiving the Commission's request, notify the Commission in writing of his or her decision to consent to the prosecution or refuse consent.
(5) If the Public Prosecutor refuses to consent to the prosecution, the Public Prosecutor must include in the notice under Subsection (4) the reasons for the refusal, indicating whether the Public Prosecutor —
(a) considers that there is no reasonable prospect of a conviction; or
(b) considers that the prosecution is not in the public interest; or
(c) intends to conduct the prosecution.
(6) If within 60 days after receiving the Commission's request to prosecute an indictable offence relating to corrupt conduct, the Public Prosecutor has not responded in writing to the request, the Public Prosecutor is deemed to have consented to the prosecution by the Commission.
102. Appeals and other proceedings.
If the Public Prosecutor consents or is deemed to have consented to the prosecution of the trial of an indictable offence relating to corrupt conduct, the Commission may conduct any other proceeding arising out of or relating to the prosecution, including any appeal.
69. The question raised by the referrer is whether those provisions are inconsistent with s 177 (functions of the Public Prosecutor and the Public Solicitor) of the Constitution, which relevantly provides:
(1) The functions of the Public Prosecutor are—
(a) in accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court, to control the exercise and performance of the prosecution function (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court, and before other Courts as provided by or under Acts of the Parliament; and
(b) to bring or to decline to bring proceedings under Division III.2 (leadership code) for misconduct in office.
70. The question asserts that the Organic Law ‘purports to give to the ICAC powers to prosecute corrupt conduct under the Criminal Code and the Leadership Code’. We agree that it purports to give the ICAC power to prosecute corrupt conduct under the Criminal Code. Section 34(1)(b) of the Organic Law provides that the ICAC may “prosecute indictable offences relating to corrupt conduct in accordance with Part VII”.
71. However, we see nowhere in the Organic Law that it purports to give the ICAC power to prosecute corrupt conduct under the Leadership Code.
72. The question remains whether by giving the ICAC power to prosecute corrupt conduct under the Criminal Code, the Organic Law is inconsistent with s 177(1)(a) of the Constitution. The answer is no because s 101 of the Organic Law is a substantial qualification of the prosecution function of the ICAC: it cannot prosecute without the consent of the Public Prosecutor. This is consistent with the control of the exercise and performance of the prosecution function that vests in the Public Prosecutor under s 177(1)(a) of the Constitution.
73. It must be appreciated that potentially anyone in Papua New Guinea, especially a law enforcement or integrity agency, can prosecute an indictable offence, provided the consent of the Public Prosecutor is obtained (Kamit v Aus-PNG Research and Resources Impex Ltd [2007] 1 PNGLR 222). The Criminal Code explicitly provides a procedure in s 616 (information by leave of the Court by private prosecutors) for private prosecutions.
74. There is nothing particularly unusual about provisions of the Organic Law that allow the ICAC to conduct its own prosecution of indictable offences. Those provisions are not inconsistent with s 177 of the Constitution.
Answer to question 14
No.
QUESTION 15: IN THE ALTERNATIVE WHETHER SECTIONS 5, 8, 9, 34(1)(b), 101 AND 102 OF THE OLICAC ARE INCONSISTENT WITH SECTIONS 220C AND 220D OF THE CONSTITUTION TO THE EXTENT THAT IT PURPORTS [TO] PERFORM THE FUNCTIONS AND DUTIES OF THE PUBLIC PROSECUTOR AS THE CONSTITUTIONAL AUTHORITY VESTED WITH THE POWERS OF PROSECUTION AND ARE THEREFORE UNCONSTITUTIONAL AND INVALID?
75. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
76. This question is really a rehash of question 14. We see nothing in s 220C (purposes of the Commission) or 220D (functions of the Commission) of the Constitution that prevent the ICAC from performing a prosecution function. On the contrary s 220D(g) states that it is a function of the ICAC “to exercise such prosecution powers concerning or relating to corrupt conduct as may be prescribed by or under an Organic Law”.
77. Sections 5, 8, 9, 34(1)(b), 101 and 102 of the Organic Law facilitate the performance of a prosecution function by the ICAC and they are not in conflict with the prosecution function of the Public Prosecutor. The Constitution guarantees that the Public Prosecutor controls the exercise and performance of the prosecution function of the State. There is nothing in the Organic Law that interferes with that preeminent position of the Public Prosecutor.
Answer to question 15
No.
Quasi-judicial powers
QUESTION 16: WHETHER SECTIONS 5, 8, 9, 63, 67, 68, 74 AND 168 OF THE OLICAC ARE INCONSISTENT WITH SECTION 159(3) OF THE CONSTITUTION, WHERE IT PURPORTS TO GIVE THE ICAC POWERS TO CONDUCT HEARINGS AND EXERCISE QUASI-JUDICIAL FUNCTIONS UNDER THE CRIMINAL CODE AND THE LEADERSHIP CODE?
78. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
79. Sections 5 (corrupt conduct), 8 (public body) and 9 (public official) of the Organic Law are set out above. Sections 63 (hearings), 67 (power to examine on oath), 68 (Commission may summon person), 74 (directions at a hearing) and 168 (guidelines) of the Organic Law have not been referred to earlier. These provisions state:
63. Hearings.
(1) The Commission may hold a hearing for the purposes of an investigation.
(2) The hearing must be held before at least one member of the Commission.
(3) The Commission may decide to hold the whole or a part of the hearing either in public or in private.
(4) In making a decision under Subsection (3), the Commission may have regard to the following:
(a) the benefit of exposing the public to, and making the public aware of, corrupt conduct; or
(b) the seriousness of the corrupt conduct being investigated; or
(c) whether the evidence that may be given, or a matter that may arise, during the hearing is likely to be of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence; or
(d) the risk of any unfair prejudice to a person's reputation that is likely to be caused if the hearing takes place in public; or
(e) whether the public interest in holding the hearing in public is outweighed by the public interest in preserving the privacy of the person concerned; or
(f) whether a public hearing would prejudice any of the following matters:
(i) defence; or
(ii) public safety; or
(iii) public order; or
(iv) public welfare; or
(v) the investigation into or the prosecution of corrupt conduct.
(5) The Commission must make a written record of a hearing.
67. Power to examine on oath.
(1) The Commission may take evidence on oath or affirmation at a hearing.
(2) For the purposes of Subsection (1), the member of the Commission presiding at the hearing —
(a) may require a person attending the hearing to give evidence either to take an oath or make an affirmation; and
(b) may administer the oath or affirmation.
68. Commission may summon person.
(1) The Commission may summon a person to attend a hearing to do any of the following:
(a) give evidence; or
(b) produce a document or thing; or
(c) give evidence and produce a document or thing.
(2) The summons must —
(a) be signed by a member of the Commission; and
(b) set out the general nature of the corrupt conduct the subject of the hearing; and
(c) in the case of a summons to produce the document or thing; and
(d) specify the time and date of the hearing; and
(e) be served on the person required to attend the hearing.
(3) Notwithstanding any other Act, a person served with a summons must comply with it.
(4) A person summoned to give evidence at a hearing is entitled to be paid the same fees, allowances and expenses as a witness in legal proceedings before the National Court.
74. Directions at a hearing.
(1) The Commission may issue directions for the purposes of a hearing, including directions as to who may be present at a hearing or part of a hearing.
(2) A person commits an offence if the person contravenes a direction.
Penalty: A fine not exceeding K5,000.00 or imprisonment for a term not exceeding 12 months, or both.
168. Guidelines.
The Commission may issue guidelines for the purposes of effective implementation of this Law.
80. The question raised by the referrer is whether those provisions are inconsistent with s 159(3) (tribunals etc outside the National Judicial System) of the Constitution, which states:
No person or body outside the National Judicial System, has, or may be given, power to impose a sentence of death or imprisonment, or to impose any other penalty as for a criminal offence, but nothing in this subsection prevents—
(a) the imposition, in accordance with law, of disciplinary detention or any other disciplinary punishment (other than death) by a disciplinary authority of a disciplined force on persons subject to the disciplinary law of the force; or
(b) the imposition, in accordance with law, of disciplinary punishments (other than death or detention) on members of other State or provincial services; or
(c) the imposition of reasonable penalties (other than death or detention) by an association on its members for breaches of its rules.
81. The question is whether the highlighted provisions of the Organic Law –ss 5, 8, 9, 63, 67, 68, 74 and 168 – are inconsistent with s 159(3) of the Constitution due to them giving the ICAC powers to conduct hearings and exercise quasi-judicial functions.
82. The highlighted provisions certainly give the ICAC power to conduct hearings. Part V of the Organic Law, consisting of ss 63 (hearings) to 76 (surrender of passport of witness) is devoted to hearings.
83. The highlighted provisions also authorise the exercise of what may be regarded as quasi-judicial functions, including:
84. We agree with the referrer’s assertion that the Organic Law authorises ICAC hearings in relation to alleged or suspected corrupt conduct, and that such conduct can include offences under the Criminal Code and misconduct in office under the Leadership Code.
85. The question is whether the Organic Law’s authorisation of the conduct of hearings and the conferral of such quasi-judicial functions on the ICAC is inconsistent with s 159(3) of the Constitution.
86. To be inconsistent with s 159(3) the Organic Law would need to give to the ICAC, being “a body outside the National Judicial System”, power to impose a sentence of death or imprisonment, or to impose any other penalty as for a criminal offence”.
87. None of the highlighted provisions authorise the ICAC imposing anything in the form of a penalty for a criminal offence. The question must be answered in the negative. The highlighted provisions do not conflict with s 159(3) of the Constitution.
Answer to question 16
No.
QUESTION 17: IN THE ALTERNATIVE, WHETHER SECTIONS 5, 8, 9, 63, 67, 68, 74 AND 168 OF THE OLICAC ARE INCONSISTENT WITH SECTIONS 220C AND 220D OF THE CONSTITUTION TO THE EXTENT THAT THE ICAC PURPORTS TO PERFORM THE FUNCTIONS AND DUTIES OF THE NATIONAL JUDICIARY AS THE CONSTITUTIONAL AUTHORITY VESTED WITH THE POWERS TO MAKE DECISIONS IN CRIMINAL MATTERS AND ARE THEREFORE UNCONSTITUTIONAL AND INVALID?
88. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
89. This question is based on a false premise: that the Organic Law authorises the ICAC to perform judicial functions. We concluded in question 16 that that is not the case.
90. In any event, question 17 is really a rehash of question 16. We see nothing in s 220C (purposes of the Commission) or 220D (functions of the Commission) of the Constitution that would prevent the ICAC from conducting hearings.
91. There is no indication in the other provisions of the Constitution of any prohibition against allowing the ICAC to conduct hearings. Section 220B(5) of the Constitution requires the making of the Organic Law, by stating:
An Organic Law shall make further provision for —
(a) the qualifications, terms and conditions, length of appointment, cessation of appointment and termination of appointment of the members of the Commission; and
(b) any other matters concerning or relating to the Commission.
92. Section 220E (powers etc of the Commission) of the Constitution complements s 220B(5), by stating:
(1) An Organic Law shall make further provision for the functions, structure, powers, procedures, operations, protections and immunities of the Commission and its staff.
(2) Without limiting the scope of Subsection (1), an Organic Law may:
(a) make provision for the Commission to have access to all available relevant information to carry out its functions; and
(b) impose reasonable restrictions on the availability of information held by the Commission; and
(c) make provision to ensure the secrecy or confidentiality of secret or confidential information made available to the Commission; and
(d) make provision for the bodies with which the Commission may share secret or confidential information; and
(e) make provision for and in respect of publicity for the proceedings, reports and recommendations of the Commission; and
(f) provide for certain penalties to automatically apply to a person who has been convicted of an offence involving corrupt conduct.
93. The import of this question is whether the provisions of the Organic Law authorising the conduct by the ICAC of private and public hearings is unconstitutional. The question must be answered in the negative.
Answer to question 17
No.
D – INDEPENDENCE OF CONSTITUTIONAL INSTITUTIONS: QUESTIONS 18 TO 22
QUESTION 18: WHETHER SECTION 8 OF THE OLICAC IN SO FAR AS IT PURPORTS TO BIND CONSTITUTIONAL INSTITUTIONS CREATED UNDER SECTION 221 OF THE CONSTITUTION WHICH ARE CREATURES OF CONSTITUTIONAL LAWS CAN ONLY BE DONE THROUGH CONSTITUTIONAL AMENDMENT IN COMPLIANCE WITH SECTIONS 12 AND 13 OF THE CONSTITUTION?
94. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
95. It is difficult to appreciate the import of this question. It seems to ask whether s 8 of the Organic Law is unconstitutional because it amends the Constitution without complying with ss 12 and 13 of the Constitution.
96. Section 8 (public body) states:
(1) A body, authority or entity is a public body if —
(a) it is established for a public purpose by or under a Constitutional Law or an Act; or
(b) it is established by an administrative act for governmental or official purposes.
(2) Without limiting Subsection (1), each of the following is a public body:
(a) the National Parliament; and
(b) the National Government or an arm, department, agency or instrumentality of the National Government; and
(c) a State Service; and
(d) a Provincial Government and a Provincial Assembly, or an arm, department, agency or instrumentality of a Provincial Government; and
(e) a Local-level Government or an arm, agency or instrumentality of a Local-level Government; and
(f) the Supreme Court, the National Court, a District Court, a Village Court or any other court established by or under a Constitutional Law or an Act.
97. The question is problematic in four respects. First, s 8 does not purport to “bind” any person or institution. It is a definition section. It defines what a public body is, for the purposes of other provisions of the Organic Law. That is all it does.
98. Secondly, the question asserts that constitutional institutions are “created” by s 221 (definitions) of the Constitution. That is not correct. Section 221 does not create any institutions or offices. It simply defines “constitutional institution” and “constitutional office-holder” for the purposes of Part IX (constitutional office-holders and constitutional institutions) of the Constitution. Section 221 states:
In this Part—
"constitutional institution" means any office or institution established or provided for by this Constitution, other than an office of Head of State or of a Minister, or the National Executive Council;
"constitutional office-holder" means—
(a) a Judge; or
(b) the Public Prosecutor or the Public Solicitor; or
(c) the Chief Magistrate; or
(d) a member of the Ombudsman Commission; or
(e) a member of the Electoral Commission; or
(f) the Clerk of the Parliament; or
(g) a member of the Public Services Commission; or
(h) the Auditor-General; or
(i) the holder of any other office declared by an Organic Law or an Act of the Parliament to be a constitutional office for the purposes of this Part.
99. Thirdly, s 8 of the Organic Law does not in any way, directly or indirectly, amend or purport to amend the Constitution or any of the Organic Laws that create the offices of constitutional office-holders. There is no requirement to comply with the provisions of Subdivision II.2.B (constitutional alteration and Organic Laws) of the Constitution.
100. Fourthly, it is incorrectly implied that the procedures for alteration of the Constitution are prescribed by ss 12 and 13 of the Constitution. The required procedures are in Subdivision II.2.B, comprising ss 13 to 17.
101. Section 8 is not unconstitutional.
Answer to question 18
No.
QUESTION 19: WITHDRAWN.
102. This question was withdrawn with leave of the Court.
QUESTION 20: WHETHER SECTION 8(1)(a) OF THE OLICAC OFFENDS THE INDEPENDENCE OF THE FOLLOWING CONSTITUTIONAL INSTITUTIONS:
(a) THE OMBUDSMAN COMMISSION, SECTION 217(5) AND 217(6) OF THE CONSTITUTION?
(b) THE PUBLIC PROSECUTOR, SECTION 176(3) OF THE CONSTITUTION?
(c) THE PUBLIC SOLICITOR, SECTION 176(5) OF THE CONSTITUTION?
(d) THE CHIEF MAGISTRATE, SECTION 175(4) OF THE CONSTITUTION?
(e) THE ELECTORAL COMMISSION, SECTION 126(6) OF THE CONSTITUTION?
(f) THE PARLIAMENTARY SERVICE, SECTION 132(2) OF THE CONSTITUTION?
(g) THE PUBLIC SERVICES COMMISSION, SECTION 192 OF THE CONSTITUTION?
(h) THE AUDITOR-GENERAL, SECTION 213(3) OF THE CONSTITUTION?
(i) THE NATIONAL JUDICIAL SYSTEM, SECTION 157 OF THE CONSTITUTION?
103. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
104. Section 8(1)(a) of the Organic Law states:
A body, authority or entity is a public body if ... it is established for a public purpose by or under a Constitutional Law or an Act.
105. As we pointed out in our answer to question 18, s 8 of the Organic Law is a definition provision. It is not self-executing. It does not bind any person, office-holder or institution. It does not offend the independence of any the constitutional office-holders or constitutional institutions referred to.
Answer to question 20
No.
QUESTION 21: IN THE ALTERNATIVE, [WHETHER] THE BROAD INTERPRETATION OF SECTION 8 OF THE OLICAC IN SO FAR AS ‘PUBLIC BODIES’ IS CONCERNED, BINDS THE NATIONAL PARLIAMENT AND THE NATIONAL JUDICIARY, AND ARE THEREFORE INCONSISTENT WITH SECTIONS 100 AND 155 OF THE CONSTITUTION RESPECTIVELY?
106. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
107. This question relates to ss 100 and 155 of the Constitution. Section 100 (exercise of the legislative power) states:
(1) Subject to this Constitution, the legislative power of the People is vested in the National Parliament.
(2) Subsection (1) does not prevent a law from conferring on an authority other than the Parliament legislative powers or functions (including, if the law so provides, a further power or further powers of delegation and sub-delegation).
(3) Nothing in any Constitutional Law enables or may enable the Parliament to transfer permanently, or divest itself of, legislative power.
108. Section 155 (the national judicial system) states:
(1) The National Judicial System consists of—
(a) the Supreme Court; and
(b) the National Court; and
(c) such other courts as are established under Section 172 (establishment of other courts).
(2) The Supreme Court—
(a) is the final court of appeal; and
(b) has an inherent power to review all judicial acts of the National Court; and
(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.
(3) The National Court—
(a) has an inherent power to review any exercise of judicial authority; and
(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,
except where—
(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or
(d) the Supreme Court assumes jurisdiction under Subsection (4); or
(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.
(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
(5) In a case referred to in Subsection (3)(e), the National Court has nevertheless an inherent power of review where, in its opinion, there are over-riding considerations of public policy in the special circumstances of a particular case.
(6) Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System.
109. This question asks whether s 8 of the Organic Law is inconsistent with ss 100 or 155 of the Constitution. We reiterate that s 8 is simply a definition provision. It is not self-executing. It is not inconsistent with s 100 or s 155.
Answer to question 21
No.
QUESTION 22: IF THE ANSWER TO QUESTION 5.21 IS YES, THEN DOES SECTION 8 OF THE OLICAC INFRINGE ON THE SEPARATION OF POWERS PROVIDED BY SECTIONS 99 AND 100 OF THE CONSTITUTION, AND THEREFORE IS UNCONSTITUTIONAL AND INVALID?
110. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
111. This question is based on question 21 being answered yes. It was answered no. If it had been answered yes, the answer would be to the same effect as our answers to previous questions based on s 8. Section 8 is simply a definition provision. It is not self-executing. It cannot be and is not offensive to any other constitutional provision or principle including the principle of separation of powers entrenched by s 99 of the Constitution and exemplified by s 100 of the Constitution.
Answer to question 22
No.
E – BREACH OF HUMAN RIGHTS: QUESTIONS 23 TO 28
QUESTION 23: WITHDRAWN
112. This question has been withdrawn with the leave of the Court.
QUESTION 24: WHETHER SECTIONS 52, 56, 60, 65, 71 AND 84 OF THE OLICAC ARE IN EFFECT HARSH AND OPPRESSIVE WHEREBY THE PENALTIES ARE NOT PROPORTIONAL TO THE OFFENCES AND IN BREACH OF SECTIONS 37, 41 AND 59 OF THE CONSTITUTION.
113. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
114. This question concerns ss 52, 56, 60, 65, 71 and 84 of the Organic Law. These provisions state:
52. Public statements.
The Commission may, subject to other laws, make or publish a public statement about a complaint or investigation concerning alleged or suspected corrupt conduct if, in the Commission's opinion, it is appropriate to do so in the public interest, having regard to the following:
(a) the benefits to an investigation that might be derived from making the statement;
(b) the risk of prejudicing the reputation or safety of a person by making the statement;
(c) whether the statement is necessary in order to allay public concern or to prevent or minimise the risk of prejudice to the reputation of a person;
(d) if an allegation against a person has been made public and, in the opinion of the Commission, the person is not implicated in corrupt conduct - whether the statement would redress prejudice caused to the reputation of the person as a result of the allegation having been made public;
(e) the risk of adversely affecting a potential prosecution of a criminal offence or a disciplinary proceeding.
56. Failure to provide statement of information.
A person commits an offence if he or she refuses or fails to provide a statement of information as required by a notice under Section 54.
Penalty: A fine not exceeding K10,000.00 or imprisonment for a term not exceeding two years, or both.
60. Failure to comply with notice to produce.
A person commits an offence if the person is served with a notice under Section 58 and that person fails to comply with the notice.
Penalty: A fine not exceeding K 10,000.00 or imprisonment for a term not exceeding two years, or both.
65. Rules of evidence do not apply.
(1) The Commission is not bound by the rules of evidence at a hearing and may inform itself as the Commission considers appropriate.
(2) The Commission must conduct a hearing with as little formality and technicality as the Commission considers appropriate.
71. Offences for attendance at hearings, etc.
(1) A person commits an offence if —
(a) the person is served with a summons to attend a hearing to give evidence; and
(b) the person fails —
(i) to comply with the summons; or
(ii) to attend and report to the Commission from day to day unless excused or released from further attendance by the Commission; or
(iii) to make an oath or make an affirmation at the hearing; or
(iv) to answer a question at the hearing that the Commission requires the person to answer.
Penalty: A fine not exceeding K10,000.00 or imprisonment for a term not exceeding two years, or both.
(2) A person commits an offence if —
(a) the person is served with a summons to produce a document or thing; and
(b) the person fails to comply with the summons.
Penalty: A fine not exceeding K10,000.00 or imprisonment for a term not exceeding two years, or both.
(3) It is a defence to an offence of failing to comply with a summons under Subsections (1) and (2) if —
(a) the Prime Minister certifies that to do so is likely to prejudice the security or defence of Papua New Guinea; or
(b) the Prime Minister certifies that to do so is likely to prejudice Papua New Guinea's relations with the Government of any other country or with any international organisation; or
(c) to do so would involve the disclosure of proceedings, deliberations or decisions of the National Executive Council, or of any committee of that Council, which the Prime Minister certifies relate to matters of a secret or confidential nature, disclosure of which would be injurious to the public interest; or
(d) to do so would be a breach of Parliamentary privilege or immunity; or
(e) the answer is subject to a claim of legal professional privilege.
84. Obstruction of person executing a search warrant.
A person commits an offence if the person prevents, hinders or obstructs:
(a) a Commission investigator executing a search warrant; or
(b) a police officer or technical officer assisting a Commission investigator executing a search warrant.
Penalty: A fine not exceeding K10,000.00 or imprisonment for a term not exceeding two years, or both.
115. Four of the six provisions the subject of this question are offence provisions. Two – s 52 (public statements) and s 65 (rules of evidence do not apply) – are not. They seem to have been included by mistake. We will ignore them in addressing this question.
116. The four offence provisions are:
117. The maximum penalty for any of those offences is a fine not exceeding K10,000.00 or imprisonment for a term not exceeding two years, or both.
118. The question asks whether those offence provisions are harsh and oppressive due to the penalties being “not proportional to the offences and in breach of ss 37, 41 and 59 of the Constitution”.
119. The first comment we make is that the penalties do not appear to be harsh or oppressive or disproportional. The penalties are unremarkable.
120. The second and more significant point is that the Court will always exercise restraint in declaring that the penalties for an offence provided for by written law are excessive. The referrer seems to be arguing that the legislative “act” of imposing what is argued to be disproportional penalties for committing offences under the Organic Law is harsh, oppressive or otherwise proscribed under s 41 (proscribed acts) of the Constitution, which states:
(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 or oppressive; or
(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,
is an unlawful act.
(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.
(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.
121. A similar argument was raised by the same referrer, the Ombudsman Commission, in SC Ref No 2 of 2018; Re Public Money Management Regularisation Act 2017 (2020) SC1944. It was argued that s 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku [2012] 1 PNGLR 41; Petrus and Gawi v Telikom PNG Ltd [2008] PNGLR 161). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:
122. It was further argued that there being no qualification provided by s 41 as to the nature of “acts” covered by it, s 41 extends to all acts, including private acts and public acts, whether executive, judicial or legislative in character. The penalties available under the Public Money Management Regularisation Act (in the case of an offence by a person, imprisonment for a term not exceeding 15 years and a fine not exceeding K2,000,000.00) were argued to be so disproportionate to the conduct constituting the offences that the act of creating such penalties was harsh and oppressive and not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
123. The Supreme Court was not persuaded by those arguments and had difficulty with the notion that a legislative act, such as imposition of a penalty for committing an offence, could be determined by the Court to be harsh or oppressive etc, with the consequence that the legislative provision in question would be rendered “unlawful”.
124. There is no case in which s 41 has been held to have such a broad application. In SC Ref No 1 of 1984, Re Minimum Penalties Legislation [1984] PNGLR 314, which concerned the constitutionality of a suite of laws that imposed minimum, mandatory penalties for certain offences, it was argued that sentences imposed by the courts could be challenged under s 41. However, it was not argued that the laws that imposed minimum penalties were unconstitutional on the ground that the legislative act of making those laws offended s 41.
125. The penalties provided by the Organic Law are not minimum or mandatory penalties. Without an express statement to that effect the normal rule of statutory interpretation, codified by ss 14 and 15 of the Interpretation Act, would apply: the penalties are the maximum that can be imposed, and the sentencing court has discretion to impose any penalty within the available range (Goli Golu v The State [1979] PNGLR 653).
126. As for the other aspect of this question – that the four offence provisions are harsh and oppressive due to the penalties being in breach of ss 37 (protection of the law) and 59 (principles of natural justice) of the Constitution – we find no merit in the underlying arguments.
127. The question whether ss 52, 56, 60, 65, 71 and 84 of the Organic Law are harsh and oppressive must therefore be answered in the negative.
Answer to question 24
No.
QUESTION 25: WHETHER SECTIONS 55, 59 AND 70 OF THE OLICAC INFRINGE ON THE GUARANTEED RIGHT OF THE FULL PROTECTION OF THE LAW AND THE PRINCIPLES OF NATURAL JUSTICE AS PROVIDED BY SECTIONS 37 AND 59 OF THE CONSTITUTION?
128. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
129. This question concerns ss 55, 59 and 70 of the Organic Law. These provisions state:
55. Self-incrimination, etc
(1) A public body or public official is not excused from producing a statement of information on the ground that doing so incriminates the body or official.
(2) A statement of information —
(a) is not admissible in evidence against the body or official in any civil or criminal proceedings; and
(b) is admissible in a hearing of the Commission.
59. Self-incrimination, etc
(1) A person is not excused from producing a document or thing on the ground that doing so incriminates the person.
(2) A document or thing produced —
(a) is not admissible in evidence against the person in any civil or criminal proceedings; and
(b) is admissible in a hearing of the Commission.
70. Self-incrimination, etc
(1) A person who is summoned to produce a document or thing at a hearing, is not excused from producing the document or thing on the basis that doing so incriminates the person.
(2) A person who is a witness at a hearing is not excused from answering a question at the hearing, whether or not the person is summoned to give evidence, on the basis that doing so incriminates the person or exposes the person to a penalty.
(3) Evidence given, at a hearing (including a document or thing produced)—
(a) is not admissible in evidence against the person in any civil or criminal proceeding; and
(b) is admissible at the hearing.
130. Sections 55, 59 and 70 of the Organic Law are self-incrimination provisions. They provide that a person is not excused from producing a statement of information (s 55) or a document or thing in response to a notice to produce (s 59) or a document or thing under summons (s 70) on the ground that doing so incriminates the person.
131. The referrer argues that these provisions infringe on the rights of all persons to the full protection of the law and the protection of the principles of natural justice under ss 37 and 59 of the Constitution.
132. Section 37 (protection of the law) of the Constitution relevantly provides:
(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. ...
(10) No person shall be compelled in the trial of an offence to be a witness against himself.
133. Section 59 (principles of natural justice) of the Constitution states:
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
134. We consider that there is adequate protection provided in each of ss 55, 59 and 70 of the Organic Law against the risk of offending against ss 37(1) and 37(10). There is a stipulation in those provisions that a statement of information (s 55) or a document or thing produced in response to a notice to produce (s 59) or a document or thing produced under summons (s 70) is not admissible in evidence against the person in any civil or criminal proceeding. It is through that stipulation that the full protection of the law is afforded to the person who complies with the mandatory provisions of the Organic Law for production of statements, documents and things.
135. As for the argument implied in the question that the self-incrimination provisions offend against the principles of natural justice, it was not pursued in oral or written submissions. In any event, we fail to see any merit in the argument.
136. The question must be answered in the negative.
Answer to question 25
No.
QUESTION 26: WHETHER SECTION 65 OF THE OLICAC, WHEREBY RULES OF EVIDENCE WILL NOT APPLY IN THE ICAC’S INVESTIGATION ON CORRUPT CONDUCT, IN ITS OPERATION RESTRICTS A PERSON’S GUARANTEED RIGHT TO A FAIR HEARING AND FULL PROTECTION OF THE LAW BY VIRTUE OF SECTIONS 37 AND 59 OF THE CONSTITUTION?
137. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
138. This question concerns s 65 (rules of evidence do not apply) of the Organic Law, which states:
(1) The Commission is not bound by the rules of evidence at a hearing and may inform itself as the Commission considers appropriate.
(2) The Commission must conduct a hearing with as little formality and technicality as the Commission considers appropriate.
139. The question is whether s 65 infringes on the rights of all persons to the full protection of the law and the protection of the principles of natural justice under ss 37 and 59 of the Constitution. Sections 37 and 59 were set out in question 25.
140. The referrer argues that s 65 does infringe on the rights conferred by ss 37 and 59. The intervener argues the opposite.
141. We uphold the intervener’s position, for the simple reason that it is accepted as a general principle in Papua New Guinea (indeed, we suggest, in most common law jurisdictions) that it is not necessary, in order to afford a person under inquiry or investigation the full protection of the law and the principles of natural justice, for the rules of evidence to apply to the proceedings of an administrative or investigative tribunal or agency.
142. This was demonstrated in SC Ref No 1 of 2017; Re Constitution, s 28(5) & the Organic Law on the Duties and Responsibilities of Leadership (2017) SC1645. That case was a s 19 reference in which (ironically) the Ombudsman Commission challenged the constitutionality of amendments to the Organic Law on the Duties and Responsibilities of Leadership that would require leadership tribunals to comply with the rules of evidence. The five members of the Supreme Court (Injia CJ, Kirriwom J, Batari J, Kandakasi J, Cannings J) ruled unanimously on this issue that the amendments were unconstitutional as the amendments would have the effect of turning leadership tribunal proceedings into court proceedings, which was expressly prohibited by the Constitution.
143. It was observed that in Papua New Guinea the only decision-making authorities that are required to comply with legal formalities and the rules of evidence are the Courts, particularly the superior courts (the Supreme Court and the National Court) comprising the National Judicial System under s 155 (the national judicial system) of the Constitution. These are obligations and expectations that arise by practice and convention, rather than by constitutional or legislative prescription. Even then, they are not overriding obligations imposed on every court, in every case.
Some courts, such as the Village Courts, and Land Courts, are specifically required to not apply the rules of evidence (Village Courts Act, s 59 (evidence etc); Land Disputes Settlement Act Chapter No 45, s 35 (practice and procedure of local land courts).
144. In the National Court there are some proceedings in which legal formalities and the rules of evidence do not apply. For example, s 217 (real justice to be observed) of the Organic Law on National and Local-level Government Elections provides that in determining election petitions:
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
[Emphasis added.]
145. Section 66 (conduct of the proceedings generally) of the Juvenile justice Act 2014 provides that in criminal proceedings regarding juveniles:
A Court shall, with due regard to a juvenile's procedural rights, conduct proceedings in an informal manner to encourage maximum participation by the juvenile and the juvenile's parents.
[Emphasis added.]
146. As for administrative tribunals, which are not established as courts, some are obliged to not comply with legal formalities and the rules of evidence. For example disciplinary committees established under the Teaching Service Act 1988 to determine disciplinary charges against members of the Teaching Service are subject to procedural requirements under Section 87(5) (proceedings before committee):
The Disciplinary Committee shall make a thorough investigation without regard to legal forms or solemnities or the rules of evidence, and may inform itself on any matter in such manner as it thinks proper.
[Emphasis added.]
147. Section 57(3) (inquiry to be held) of the Accountants Act 1996 provides that in relation to inquiries by the Accountants Statutory Committee regarding accountants:
In conducting the inquiry, the Accountants Statutory Committee is not bound by technical rules of evidence or by legal procedures, but may inform itself in such manner as it thinks fit.
[Emphasis added.]
148. Many administrative tribunals, including disciplinary tribunals that have powers and functions similar to those of a leadership tribunal, are not subject to any express procedural requirements about formalities and the rules of evidence. For example, s 53(1) (powers and procedures of the committee) of the Lawyers Act 1986 provides that in relation to proceedings of the Lawyers Statutory Committee:
The Committee shall have the powers of a Commission of Inquiry under the Commissions of Inquiry Act (Chapter 31) but may otherwise determine its own procedures when enquiring into complaints of improper conduct and shall observe the rules of natural justice in carrying out an inquiry.
149. Section 65 of the Organic Law is not an unusual provision and does not restrict rights to the full protection of the law or natural justice.
Answer to question 26
No.
QUESTION 27: WHETHER SECTIONS 70, 73, 78, 80, 83 AND 90 OF THE OLICAC INFRINGE ON THE GUARANTEED RIGHT OF THE FULL PROTECTION OF THE LAW AND THE PRINCIPLES OF NATURAL JUSTICE AS PROVIDED BY SECTIONS 37 AND 59 OF THE CONSTITUTION?
150. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
151. This question concerns ss 70, 73, 78, 80, 83 and 90 of the Organic Law. These provisions state:
70. Self-incrimination, etc
(1) A person who is summoned to produce a document or thing at a hearing, is not excused from producing the document or thing on the basis that doing so incriminates the person.
(2) A person who is a witness at a hearing is not excused from answering a question at the hearing, whether or not the person is summoned to give evidence, on the basis that doing so incriminates the person or exposes the person to a penalty.
(3) Evidence given, at a hearing (including a document or thing produced)—
(a) is not admissible in evidence against the person in any civil or criminal proceeding; and
(b) is admissible at the hearing.
73. Commission may retain documents and things.
(1) If a document or thing is produced in accordance with a summons, the Commission —
(a) may take possession of, and may make copies of, the document or thing or take extracts from the document; and
(b) may retain possession of the document or thing for such period as is necessary for the purposes of the investigation to which the document or thing relates.
(2) While retaining the document or thing, the Commission must allow a person who is entitled to inspect the document or view the thing to do so at the times that the person would ordinarily be able to do so.
(3) If the retention of the document or thing by the Commission is not or ceases to be, reasonably necessary for the purposes of the investigation or a prosecution to which the document or thing relates, the Commission must deliver the document or thing to the person who appears to the Commission to be entitled to possess the document or thing.
(4) The Commission must make a record of all documents or things produced.
78. Authority conferred by search warrant.
(1) A search warrant must —
(a) state who is authorised to execute the warrant; and
(b) contain a statement of the purpose for which the warrant is issued; and
(c) specify the premises to which the warrant relates; and
(d) state whether entry is authorised at any time of the day or night or during specified hours of the day or night; and
(e) state that a failure to cooperate with the person executing the warrant may amount to an offence; and
(f) specify any other conditions to which the warrant is subject.
(2) The search warrant authorises a Commission investigator to do any of the following for the purpose of executing the warrant:
(a) to enter and search and, where necessary, use reasonable force to break into or open —
(i) premises to which the warrant relates; or
(ii) part of, or anything in or on, the premises; or
(b) to stay in or on the premises to which the warrant relates for the time reasonably necessary to exercise powers authorised under the warrant and this Division; or
(c) to pass over, through, along or under other premises to enter the premises to which the warrant relates; or
(d) to remove wall or ceiling linings or floors of a building, or panels of a vehicle; or
(e) to dig up land; or
(f) to detain a person in or on the premises to which the warrant relates for the time reasonably necessary to find out if that person has anything sought under the warrant; or
(g) to search a person if the Commission investigator reasonably suspects that the person —
(i) is, or has been, on or in the premises to which the warrant relates; or
(ii) is about to enter the premises,
and the person has on or about his or her body
a document or thing connected with the investigation; or
(h) to use force against a person that is necessary and reasonable in the circumstances; or
(i) to give directions with respect to the stopping or movement of any vehicle to which the warrant relates.
(3) The search warrant authorises a Commission investigator to do any of the following for the purpose of the investigation:
(a) to take photographs, films or audio, video or other electronic recordings; or
(b) to examine, copy or take extracts from a document; or
(c) to examine, use or test anything, including electronic devices or cause or require it to be examined, used or tested; or
(d) to open anything in or on the premises to which the warrant relates that is locked; or
(e) to search for and record fingerprints found on or in the premises to which the warrant relates, and take samples of things excluding human biological fluid or tissue found on or in the premises for forensic purposes; or
(f) to seize and retain any document or thing found in or on the premises to which the warrant relates and deliver it to the Commission; or
(g) to take a vehicle to a place with appropriate facilities for searching the vehicle and to search the vehicle; or
(h) to seize any illegal item or material, detain and refer the illegal item or material to the relevant bodies or agencies.
80. Search of a person under a search warrant.
(1) In searching a person under a search warrant, a Commission investigator—
(a) may run his or her hands over the person's outer clothing; and
(b) may require the person to remove a coat, jacket, hat or shoes the person is wearing, and may run his or her hands over the person's remaining outer clothing; and
(c) may require the person to surrender an item for inspection; and
(d) may use reasonable force to remove an item from a person if the person does not comply with a requirement to remove or surrender the item under Paragraph (c); and
(e) may inspect an item that a person has removed or surrendered or that has been removed from a person; and
(f) must conduct the search in a manner that affords, to the extent that the circumstances of the search warrant permit, reasonable privacy and respect for human dignity to the person being searched; and
(g) must conduct the search as quickly as is reasonably practicable in the circumstances of the search.
(2) A search must be conducted by a person of the same sex as the person being searched unless it is not reasonable or practicable to do so in the circumstances of the search.
(3) If a person is searched, the Commission investigator executing the search warrant or a person assisting the Commission investigator must make available a copy of the warrant to the person.
83. Commission may retain documents and things.
(1) If a document or thing is seized under a search warrant, the Commission investigator —
(a) may take possession of and may make copies of, the document or thing or take extracts from the document; and
(b) may retain possession of the document or thing for such period as is necessary for the purposes of the investigation or prosecution to which the document or thing relates.
(2) While retaining the document or thing, the Commission must allow a person who is entitled to inspect the document or view the thing to do so at the times that the person would ordinarily be able to do so.
(3) If the retention of the document or thing by the Commission is not or ceases to be, reasonably necessary for the purposes of the investigation or a prosecution to which the document or thing relates, the Commission must deliver the document or thing to the person who appears to the Commission to be entitled to possess the document or thing.
(4) The Commission must make a record of all documents or things seized under a search warrant.
90. Authorisation by an interception warrant.
(1) An interception warrant may authorise one or more of the following:
(a) the use of an interception device on specified premises; or
(b) the use of an interception device in or on a specified object or class of object; or
(c) the use of an interception device in respect of the conversations, activities or location of a specified person or a person whose identity is unknown.
(2) An interception warrant of a kind mentioned in Subsection (1)(a) authorises —
(a) the installation, use and maintenance of an interception device of the kind specified in the warrant on the specified premises; and
(b) the entry, by force if necessary, onto the premises, and onto other specified premises adjoining or providing access to the premises, for any of the purposes referred to in Paragraph (a) or Subsection (5).
(3) An interception warrant of a kind mentioned in Subsection (1)(b) authorises —
(a) the installation, use and maintenance of an interception device of the kind specified in the warrant in or on the specified object or an object of the specified class; and
(b) the entry, by force if necessary, onto any premises where the object, or an object of the class, is reasonably believed to be or is likely to be, and onto other specified premises adjoining or providing access to those premises, for any of the purposes referred to in Paragraph (a) or Subsection (5).
(4) An interception warrant of a kind mentioned in Subsection (1)(c) authorises —
(a) the installation, use and maintenance of an interception device of the kind specified in the warrant in or on premises where the person is reasonably believed to be or likely to be; and
(b) the entry, by force if necessary, onto the premises, or other premises adjoining or providing access to those premises, for any of the purposes referred to in Paragraph (a) or Subsection (5).
(5) An interception warrant further authorises —
(a) the retrieval of the interception device; and
(b) the installation, use, maintenance and retrieval of enhancement equipment in relation to the interception device; and
(c) the disconnection of, or otherwise making inoperative, any security system for the purpose of the installation, use, maintenance or retrieval of the interception device or enhancement equipment; and
(d) the temporary removal of an object or vehicle from premises for the installation, maintenance or retrieval of the interception device or enhancement equipment and the return of the object or vehicle to the premises; and
(e) the breaking open of anything for the installation, maintenance or retrieval of the interception device or enhancement equipment; and
(f) the connection of the interception device or enhancement equipment to any source of electricity and the use of electricity from that source to operate the device or equipment; and
(g) the connection of the interception device or enhancement equipment to any telecommunications system or network that may be used to transmit information in any form and the use of that telecommunications system or network in connection with the operation of the device or equipment; and
(h) the provision of assistance or technical expertise to the Commission investigator responsible for the execution of the warrant in the installation, use, maintenance or retrieval of the interception device or enhancement equipment; and
(i) the use of a person to translate or interpret conversations intercepted under the interception warrant.
(6) An interception warrant may authorise the doing of anything reasonably necessary to conceal anything done in relation to the installation, use, maintenance or retrieval of an interception device or enhancement equipment under the warrant.
(7) An interception warrant may authorise the interference with property of a person who is not the subject of the investigation in respect of which the warrant was issued but, if the interference would be on premises not specified in the warrant, only if the Court issuing the warrant is satisfied that it is necessary to do so in order to give effect to the warrant.
(8) A Commission officer may use an interception device under an interception warrant only in the performance of his or her functions or the exercise of his or her powers.
152. Sections 70 and 73 are in Part V the Organic Law, which deals with hearings of the ICAC. Sections 78, 80, 83 and 90 are in Part VI of the Organic Law, which deals with warrants and distinguishes between search warrants (Division VI.1) and interception warrants (Division VI.2). These six provisions and others in Parts V and VI of the Organic Law confer powers of investigation on the ICAC.
153. The referrer argues that these provisions infringe on the rights of all persons to the full protection of the law and the protection of the principles of natural justice under ss 37(1) and 59 of the Constitution.
154. Section 37(1) (protection of the law) of the Constitution provides:
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. ...
155. Section 59 (principles of natural justice) of the Constitution states:
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
156. We note none of ss 70, 73, 78, 80, 83 and 90 of the Organic Law confer unrestrained powers of investigation.
157. Section 70(1) and (2) (self-incrimination etc) provide that a person summoned to produce a document or thing at a Commission hearing is not excused from producing the document or thing on the basis that doing so incriminates the person. However, that power is qualified by s 70(3): evidence given at a hearing is not admissible in evidence against the person in any civil or criminal proceeding.
158. Section 73 (Commission may retain documents and things) provides in sub-section (1) that if a document or thing is produced in accordance with a summons, the Commission may take possession of it. However, that power is qualified by sub-sections (2), (3) and (4), which entitle the person from whom the document or thing was summoned to inspect it, require the Commission to deliver the document or thing if retention of the document or thing ceases to be reasonably necessary and require the Commission to make a record of all documents or things produced.
159. Section 78 (authority conferred by search warrant) states in sub-sections (2) and (3) what a search warrant authorises a Commission investigator to do. However, the conferral of power by those sub-sections is qualified by the specifications in sub-section (1) about the terms of the search warrant and by the procedure that must be followed under s 77 (application for a search warrant) to obtain a search warrant.
160. Section 80 (search of a person under a search warrant) specifies how a search of a person must be conducted and contains numerous restrictions and stipulations. For example, a Commission investigator must perforce of s 80(1)(f) conduct the search in a manner that affords, to the extent that the circumstances of the search warrant permit, reasonable privacy and respect for human dignity to the person being searched.
161. Section 83 (Commission may retain documents and things) provides in sub-section (1) that a Commission investigator may amongst other things take possession of a document or thing seized under a search warrant. However, that power is qualified by sub-sections (2), (3) and (4), which entitle the person from whom the document or thing was seized to inspect it, require the Commission to deliver the document or thing if retention of the document or thing ceases to be reasonably necessary and require the Commission to make a record of all documents or things produced.
162. Section 90 (authorisation by an interception warrant) states in detail in sub-sections (1) to (7) what an interception warrant authorises to be done. However, the conferral of power by those sub-sections is qualified by the specification in sub-section (8) that a Commission officer may use an interception device under an interception warrant only in the performance of his or her functions or the exercise of his or her powers, and by the procedures that must be followed under ss 86 (application for interception warrant), 87 (consideration of application for interception warrant) and 88 (issue of interception warrant) to obtain an interception warrant and the contents of a warrant, which must comply with s 89 (contents of an interception warrant).
163. We consider, overall, that the qualifications in the Organic Law on the exercise of the powers of investigation conferred by ss 70, 73, 78, 80, 83 and 90 of the Organic Law, are sufficient. Those provisions have the effect of affording the protection of the law to all persons who are affected by the exercise of those powers of investigation.
164. As for the argument implied in the question that the self-incrimination provisions offend against the principles of natural justice, it was not pursued in oral or written submissions. In any event, we fail to see any merit in the argument.
165. The question must be answered in the negative.
Answer to question 27
No.
QUESTION 28: IF THE ABOVE QUESTIONS 5.23, 5.24, 5.25, 5.26, AND 5.27 ARE ANSWERED IN THE AFFIRMATIVE, THEN ARE SECTIONS 5, 52, 53, 55, 56, 59, 60, 65, 70, 71, 73, 78, 80, 83, 84 AND 90 OF THE OLICAC UNCONSTITUTIONAL AND INVALID?
166. The positions of the parties are:
| Referrer | Intervener |
| Yes | No |
167. This question based on questions 23 to 27 or at least one of them being answered in the affirmative. They were all answered in the negative. This question is therefore trivial and hypothetical.
Answer to question 28
168. We decline to give an opinion as the question is trivial and hypothetical.
ORDER
(1) The questions the subject of this reference are answered as follows:
Question 1 : Decline to give opinion
Question 2 : Decline to give opinion
Question 3 : Decline to give opinion
Question 4 : No
Question 5 : Decline to give opinion
Question 6 : Decline to give opinion
Question 7 : No
Question 8 : Yes
Question 9 : No
Question 10 : No
Question 11 : No
Question 12 : No
Question 13 : No
Question 14 : No
Question 15 : No
Question 16 : No
Question 17 : No
Question 18 : No
Question 19 : Withdrawn
Question 20 : No
Question 21 : No
Question 22 : No
Question 23 : Withdrawn
Question 24 : No
Question 25 : No
Question 26 : No
Question 27 : No
Question 28 : Decline to give opinion
(2) The parties shall bear their own costs of the reference, including all applications and interlocutory proceedings relating to the reference.
Judgment accordingly.
________________________________________________________________
Counsel to the Commission: Lawyer for the Referrer
Solicitor-General: Lawyer for the Intervener
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