Mesulam v Joku [2023] PGSC 148; SC2499 (29 November 2023)

SC2499

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 84 OF 2022

JONATHAN MESULAM
First Appellant

PHILIP TOKAM
Second Appellant

PASTOR METAI IBAK
Third Appellant

LUCIELLE PARU
Fourth Appellant

V

GUNTHER JOKU, MANAGING DIRECTOR,
CONSERVATION AND ENVIRONMENT PROTECTION AUTHORITY
First Respondent

HONOURABLE WERA MORI MP, MINISTER FOR ENVIRONMENT,
CONSERVATION AND CLIMATE CHANGE
Second Respondent

PHILIP SAMAR, MANAGING DIRECTOR,
MINERAL RESOURCES AUTHORITY
Third Respondent

HONOURABLE JOHNSON TUKE MP, MINISTER FOR MINING
Fourth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Cannings J, Kaumi J, Purdon-Sully J
2023: 31^st October, 29^th November

FREEDOM OF INFORMATION – Constitution, s 51 – citizens’ right of access to official documents – qualifications on right of access – whether confidentiality provisions of Environment Act and Mining Act allow denial of access to official documents in control of Conservation and Environment Protection Authority and Mineral Resources Authority.

The appellants sought access to documents in the custody or control of the Conservation and Environment Protection Authority and Mineral Resources Authority relating to a seabed mining project. They were refused access so they commenced proceedings in the National Court arguing that they had a right of access under s 51 of the Constitution (right to freedom of information). The National Court entirely dismissed the proceedings because the documents sought fell within the restrictions in Constitution ss 51(1)(b) (records of meetings of National Executive Council etc), (c) (trade secrets and privileged or confidential commercial information), (e) (reports, official registers and memoranda prepared by governmental authorities) and (j) (geological or geophysical information and data concerning wells and ore bodies) and the documents were privileged documents by virtue of the confidentiality provisions of the Environment Act and the Mining Act, and the Conservation and Environment Protection Authority and Mineral Resources Authority are best placed to decide whether such privilege should be waived. The appellants appealed to the Supreme Court.

Held:

(1) Section 51 of the Constitution gives every citizen other than a citizen who has dual citizenship the right of reasonable access to “official documents”. The first question to ask where citizens seek access to documents in the possession, custody or control of a governmental body, is whether the documents are “official documents”.

(2) If the documents are official documents, citizens have a right of reasonable access to them unless the documents, or any particular document, fall within one or more of the prescribed categories in ss 51(1)(a) to (j) and there is a need for “such secrecy as is reasonably justifiable in a democratic society”.

(3) The onus of proving that a document falls within one or more of the prescribed categories and that there is a need for secrecy in regard to the document rests on the person who is seeking to deny access to the document.

(4) Requests for official documents must be subject to rigorous scrutiny. The trial judge erred in law by taking a broad-brushed approach.

(5) The appeal was upheld and the case was remitted to the National Court for a new trial.

Cases Cited

The following cases are cited in the judgment:
Mesulam & 3 Others v Managing Director, Conservation and Environment Protection Authority & 4 Others (2022) N9629
Motor Vehicles Insurance Ltd v Nominees Niugini Ltd [2015] 1 PNGLR 510

Counsel
G Geroro & A Walep, for the Appellants
T L Cooper, for the Respondent

29^th November 2023

1. BY THE COURT: The appellants sought access to documents in the possession, custody or control of the Conservation and Environment Protection Authority (CEPA) and Mineral Resources Authority (MRA) relating to the proposed Solwara 1 deep seabed mining project in the Bismarck Sea, New Ireland Province.

2. They were refused access so they commenced proceedings by originating summons in the National Court claiming that they had a right of access to such documents under s 51 of the Constitution (right to freedom of information). Annexed to the originating summons was a table that itemised 35 categories of documents sought from CEPA and/or the Office of the Minister for Environment, Conservation and Climate Change and 19 categories of documents from the MRA and/or the Office of the Minister for Mining.

NATIONAL COURT

3. A trial was conducted before Acting Justice Tamade (Mesulam & 3 Others v Managing Director, Conservation and Environment Protection Authority & 4 Others (2022) N9629). Her Honour entirely dismissed the proceedings for two reasons.

4. First, the documents sought fell within the restrictions in Constitution ss 51(1)(b) (records of meetings of National Executive Council etc), (c) (trade secrets and privileged or confidential commercial information), (e) (reports, official registers and memoranda prepared by governmental authorities) and (j) (geological or geophysical information and data concerning wells and ore bodies).

5. Secondly her Honour held that the documents were privileged documents by virtue of the confidentiality provisions of the Environment Act (s 55) and the Mining Act (s 163) and the Conservation and Environment Protection Authority and Mineral Resources Authority are best placed to decide whether such privilege should be waived.

6. Her Honour concluded:

I therefore find that the plaintiffs are on a fishing expedition with an exhaustive list and where their enquiries have been answered to the contrary, they are adamant to seek section 51 as a guaranteed right without giving due consideration to the qualifications in section 51 of the Constitution.

APPEAL

7. The appellants have appealed to the Supreme Court against the decision of the National Court. They argue that the trial judge misconstrued s 51 of the Constitution by finding that if an official document falls within one of the categories of documents prescribed by s 51(1) of the Constitution a citizen can have no access to it. They say her Honour erred in law by not considering the question whether there was a need for secrecy in relation to the document.

8. The appellants also argue that the trial judge failed to consider the application of the provisions of the Environment Act (s 55) and the Mining Act (s 163) by simply deferring to the position taken by CEPA and the MRA.

9. Curiously, of the five respondents to the appeal, only one, the third respondent, the Managing Director of the MRA, appeared and made submissions at the hearing of the appeal. He was ably represented by Mr Cooper of counsel who has assisted the Court in resolving the appeal.

10. This is a significant case, perhaps the first of its kind where the National Court has been called upon to interpret and apply s 51 of the Constitution. The absence of the other respondents, in particular the State as fifth respondent, is most disappointing.

DETERMINATION

11. We will uphold the appeal as we are persuaded by the submissions of Mr Geroro for the appellants that the trial judge did indeed misconstrue s 51 of the Constitution; and we consider that her Honour erred by not considering in detail the apparent claim of privilege arising from the so-called confidentiality provisions of the Environment Act (s 55) and the Mining Act (s 163).

12. Section 51 of the Constitution states:

(1) Every citizen has the right of reasonable access to official documents, subject only to the need for such secrecy as is reasonably justifiable in a democratic society in respect of—

(a) matters relating to national security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization); or

(b) records of meetings and decisions of the National Executive Council and of such executive bodies and elected governmental authorities as are prescribed by Organic Law or Act of the Parliament; or

(c) trade secrets, and privileged or confidential commercial or financial information obtained from a person or body; or

(d) parliamentary papers the subject of parliamentary privilege; or

(e) reports, official registers and memoranda prepared by governmental authorities or authorities established by government, prior to completion; or

(f) papers relating to lawful official activities for investigation and prosecution of crime; or

(g) the prevention, investigation and prosecution of crime; or

(h) the maintenance of personal privacy and security of the person; or

(i) matters contained in or related to reports prepared by, on behalf of or for the use of a governmental authority responsible for the regulation or supervision of financial institutions; or

(j) geological or geophysical information and data concerning wells and ore bodies.

(2) A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the right guaranteed by this section.

(3) Provision shall be made by law to establish procedures by which citizens may obtain ready access to official information.

(4) This section does not authorize—

(a) withholding information or limiting the availability of records to the public except in accordance with its provisions; or

(b) withholding information from the Parliament.

13. It will be observed that s 51 gives every citizen other than a citizen who has dual citizenship the right of reasonable access to “official documents”. So the first question to ask in a cases such as this, where citizens seek access to documents in the possession, custody or control of a governmental body, is whether the documents are “official documents”. The term is not defined by the Constitution so the Court must give it meaning in light of the nature and purpose of s 51.

14. If the documents are official documents, citizens have a right of reasonable access to them unless the documents, or any particular document, fall within one or more of the prescribed categories in ss 51(1)(a) to (j) and there is a need for “such secrecy as is reasonably justifiable in a democratic society”.

15. We agree with the appellants that the need for secrecy in s 51(1) can only be properly ascertained by applying s 39 ("reasonably justifiable in a democratic society", etc) of the Constitution, which states:

(1) The question, whether a law or act is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is to be determined in the light of the circumstances obtaining at the time when the decision on the question is made.

(2) A law shall not be declared not to be reasonably justifiable in a society having a proper regard for the rights and dignity of mankind except by the Supreme Court or the National Court, or any other court prescribed for the purpose by or under an Act of the Parliament, and unless the court is satisfied that the law was never so justifiable such a declaration operates as a repeal of the law as at the date of the declaration.

(3) For the purposes of determining whether or not any law, matter or thing is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, a court may have regard to—

(a) the provisions of this Constitution generally, and especially the National Goals and Directive Principles and the Basic Social Obligations; and

(b) the Charter of the United Nations; and

(c) the Universal Declaration of Human Rights and any other declaration, recommendation or decision of the General Assembly of the United Nations concerning human rights and fundamental freedoms; and

(d) the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, and any other international conventions, agreements or declarations concerning human rights and fundamental freedoms; and

(e) judgements, reports and opinions of the International Court of Justice, the European Commission of Human Rights, the European Court of Human Rights and other international courts and tribunals dealing with human rights and fundamental freedoms; and

(f) previous laws, practices and judicial decisions and opinions in the country; and

(g) laws, practices and judicial decisions and opinions in other countries; and

(h) the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974, as affected by decisions of that House on the report and by decisions of the Constituent Assembly on the draft of this Constitution; and

(i) declarations by the International Commission of Jurists and other similar organizations; and

(j) any other material that the court considers relevant.

16. We consider that the onus of proving that a document falls within one or more of the prescribed categories and that there is a need for secrecy in regard to the document rests on the person who is seeking to deny access to the document, in this case CEPA or the MRA.

17. This is where the learned trial judge fell into error. Her Honour found that all the documents sought by the appellants fell into 51(1)(b) (records of meetings of National Executive Council etc), (c) (trade secrets and privileged or confidential commercial information), (e) (reports, official registers and memoranda prepared by governmental authorities) or (j) (geological or geophysical information and data concerning wells and ore bodies) but did not inquire into whether there was a need for secrecy in connection with those documents, and did not put any onus on the respondents to demonstrate how or why the documents should be considered secret.

18. We consider that her Honour also erred in regarding certain provisions of the Environment Act and the Mining Act as conferring a privilege over such documents that vested in CEPA and the MRA respectively. This was, with respect, a very broad-brushed approach which had the effect of undermining the appellants’ right of access to official documents guaranteed by s 51 of the Constitution.

EFFECT OF UPHOLDING GROUNDS OF APPEAL

19. As we have upheld the appeal, we now address the consequences in terms of s 16 (decision etc on appeal) of the Supreme Court Act, which sets out a number of available options or remedies. Section 16 states:

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—

(a) adjourn the hearing from time to time; or

(b) affirm, reverse or modify the judgment; or

(c) give such judgment as ought to have been given in the first instance; or

(d) remit the case in whole or in part for further hearing; or

(e) order a new trial.
20. We will allow the appeal and quash the decision of the National Court. These remedies are not expressly provided for by s 16 but they are proper and acceptable orders to make under s 16(b) when appellants persuade the Supreme Court that the National Court has materially erred in law and/or fact (Motor Vehicles Insurance Ltd v Nominees Niugini Ltd [2015] 1 PNGLR 510).

21. We are not in a position to determine the originating summons as the decision whether to grant the appellants access to the documents they seek and if so, which documents, can only be made after rigorous scrutiny of the sort that we have outlined above. We will invoke s 16(e) and order a new trial.

22. We will order costs against all respondents except the third respondent. We again thank the Managing Director of the MRA for taking the time and effort to be involved in this important case.

ORDER

(1) The appeal is allowed.

(2) The order of the National Court in OS 1002 of 2017 of 4 May 2022 is quashed.

(3) The proceedings OS 1002 of 2017 are reinstated.

(4) There shall be a new trial of OS 1002 of 2017.

(5) The first, second, fourth and fifth respondents shall pay the appellants’ costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.

_______________________________________________________________
CELCOR Lawyers: Lawyers for the Appellants
TL Cooper Lawyers: Lawyers for the Third Respondent