SCR No 1 of 1981; Re Inter-Group Fighting Act 1977 [1981] PNGLR 151 (10 June 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 151 - SCR No 1 of 1981; Re Inter-Group Fighting Act 1977 

[1981] PNGLR 151

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 1 OF 1981

IN THE MATTER OF A REFERENCE UNDER S. 18 OF THE CONSTITUTION AND IN THE MATTER OF SS. 15, 16, 17, 18, 19 AND 20 OF THE INTER-GROUP FIGHTING ACT 1977

Waigani

Kidu CJ Greville Smith Andrew Pratt Miles JJ

27 April 1981

10 June 1981

CONSTITUTIONAL LAW - Validity of Statutes - Group fighting - Imposition of penalty on group leaders - Imprisonment for non-payment - Offence not defined by written law - Inter-Group Fighting Act 1977, ss. 15, 16,[ccxxxix]¹ 17,[ccxl]² 18, 19, 20[ccxli]³ - Constitution of the Independent State of Papua New Guinea, ss. 37(2),[ccxlii]⁴ 37(4)(b),[ccxliii]⁵ 42(1).

STATUTES - Validity - Group fighting - Imposition of penalty on group leaders - Imprisonment for non-payment - Offence not defined by written law - Inter-Group Fighting Act 1977, ss. 15, 16,[ccxliv]⁶ 17,[ccxlv]⁷ 18, 19, 20[ccxlvi]⁸ - Constitution of the Independent State of Papua New Guinea, ss. 37(2),[ccxlvii]⁹ 37(4)(b),[ccxlviii]¹⁰ 42(1).

POLICE OFFENCES - Group fighting - Imposition of penalty on group leaders - Imprisonment for non-payment - Offence not defined by written law - Statutory provisions unconstitutional and invalid - Inter-Group Fighting Act 1977, ss. 15, 16,[ccxlix]¹¹ 17,[ccl]¹² 18, 19, 20[ccli]¹³ - Constitution of the Independent State of Papua New Guinea, ss. 37(2),[cclii]¹⁴ 37(4)(b),[ccliii]¹⁵ 42(1).

(Miles J. dissenting), the combined effect of ss. 16, 17 and 20 of the Inter-Group Fighting Act 1977 is to provide for the conviction of a person for an offence not defined by a written law within the meaning of s. 37(2) of the Constitution and without compliance with s. 37(4)(b) and is accordingly constitutionally invalid.

Reference

This was a reference to the Supreme Court pursuant to s. 18 of the Constitution of the following questions:

In relation to the Inter-Group Fighting Act 1977:

1.       Are ss. 15 and 16 of the Act invalid in that they contravene ss. (37)(2), 37(3), 37(5), 37(8) and 59 of the Constitution?

2.       Are ss. 16 and 17 of the Act invalid in that they contravene s. 37(4) of the Constitution?

3.       Are ss. 17, 18, 19, and 20 of the Act invalid in that they contravene s. 37(8) of the Constitution?

4.       Is s. 20 of the Act invalid in that it contravenes s. 42 of the Constitution?

Counsel

A. Amet, to argue the affirmative case.

L. Daniel, to argue the negative case.

Cur. adv. vult.

10 June 1981

KIDU CJ GREVILLE SMITH ANDREW JJ:  This is a reference under s. 18 of the Constitution from the National Court and covers the constitutional validity of ss. 16, 17 and 20 of the Inter-Group Fighting Act 1977 as amended. Those sections provide, as to their central provisions, as follows:

“16.    NOTICE TO SHOW CAUSE WHY PENALTY SHOULD NOT BE IMPOSED

Where a Magistrate after conducting an inquiry under Section 15 is of the opinion that in all the circumstances the actions of the group are such that a penalty should be imposed on its leaders for the group’s part in the inter-group fight in respect of which the inquiry was held, the Magistrate shall by notice, either oral or written, served personally on those persons who are, in his opinion, leaders of the group, by an officer or a person appointed by the court for the purpose, call on those leaders to show cause, within the period specified in the notice, why a penalty should not be imposed on them on behalf of the group.”

“17.    IMPOSITION OF PENALTY

(1)      Where, in the opinion of the Magistrate, the leaders of a group on whom a notice to show cause has been served have failed to show cause or adequate cause why a penalty should not be imposed on them or any of them, those leaders, or such of them who have not shown cause or adequate cause, shall jointly and severally be liable, on behalf of the group, to a penalty not exceeding K20,000.

(2)      ...

(3)      A person shall not be liable to a penalty under this section if:

(a)      at the time that the relevant inter-group fight took place he was not present in the area occupied by the group or where the fight took place; or

(b)      if he satisfies the Magistrate that he did everything reasonably within his power to prevent the inter-group fight taking place.”

“20.    IMPRISONMENT OF GROUP LEADERS FOR NON-PAYMENT OF GROUP PENALTY

(1)      Where a penalty imposed under Section 17 remains unpaid three months after the date on which it was imposed, a Magistrate may, on the application of an officer, order that some or all of the persons who are liable for the penalty be imprisoned for a period not exceeding six months and may issue his warrant accordingly.

(2)      ...

(3)      Where at any time after an order for imprisonment is made under Subsection (1) and before the release of the persons serving a term of imprisonment under that order the penalty is paid in full or in part, any person may apply to a Magistrate to have the order for imprisonment reviewed.

(4)      Where an application for a review is made to a Magistrate under Subsection (3), the Magistrate:

(a)      shall, where the penalty has been paid in full, cancel the warrant of imprisonment and direct that any person being held in custody under the order and warrant be released; and

(b)      may, in any other case, reduce the term of imprisonment imposed on any person under the order being reviewed by such amount as, in his opinion, is proportional to the amount of the penalty paid, and shall amend the warrant of imprisonment accordingly or cancel the warrant and issue a fresh warrant.”

The Constitution is concerned to protect the right to personal liberty. Section 42(1)(b) provides that no person shall be deprived of his personal liberty except, inter alia, in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty. Section 37(2) provides, inter alia, that subject to the exception referred to therein, which is not relevant to this judgment, nobody may be convicted of an offence that is not defined by a written law. The word “offence” has no technical meaning in English law (Jowitt’s Dictionary of English Law, 2nd ed. p. 1276) nor in our view in the law of this country.

The provision that nobody may be “convicted” of an “offence” that is not defined by a written law recognizes, by the very prohibition contained therein that the term “offence” within the meaning of the section includes an “offence” not defined by a written law (and it is unreal to suppose that a law may be “defined” in any other way) and it is possible for a person to be “convicted” of such an “offence”. Otherwise the provision contained in s. 37(2) would be meaningless or self-defeating. Likewise, where it is provided in s. 37(4)(b) that a person “charged” with an offence shall be informed promptly and in detail of the nature of the “offence” with which he is “charged” this imports that the expression “charged” with an offence does not of itself imply that these things shall occur or have occurred, that is, it does not of itself, in the context of s. 37(3) mean:

“... the solemn act of calling before a magistrate an accused person and stating, in his hearing, in order that he may defend himself, what is the accusation against him.”[ccliv]¹⁶

Likewise the provision in s. 37(7) that no person shall be “convicted” on account of any act that did not, at the time when it took place constitute an offence connotes that the matter that it prohibits is possible of occurrence.

Thus the provisions referred to envisage the possible occurrence of proceedings in which some or all of the following elements occur, namely, (1) a person is “charged” without being arraigned, (2) with an “offence” which is not defined by a written law, (3) which was not in existence at the time that the act, omission or event in respect of which the person is charged occurred, and (4) the person charged is “convicted”. The provisions referred to envisage such proceedings and they prohibit such proceedings.

In our opinion an “offence” in the context of these provisions is any act or omission, whether by himself or someone else (we have in mind offences of vicarious liability) or any condition (we have in mind “status” offences) in consequence of which a person may be, after proceedings and a finding against him, imprisoned, either immediately or upon non-payment of a fine or penalty. In our view such an adverse finding is a “conviction”, an adjudication that the “offence” has been committed, and the body that makes that adjudication is a “court”, that is, a tribunal that exercises jurisdiction over persons by reason of the sanction of the law (Halsbury’s Laws of England, 3rd ed., vol. 9, p. 342).

If the foregoing is not the case then there exists in the Constitution an extensive and irrational hiatus in respect of the protection of individuals by the law in respect of the right to personal liberty.

If the matter were in doubt this Court would be disposed to close the hiatus if the provisions of the Constitution reasonably permitted of an interpretation that would do so. As Stratfield J. said in R. v. Rider[cclv]¹⁷ at p. 466:

“... there is another principle that one ought to apply, namely, that section ... exists for the purpose of the liberty of the subject, and if there is any doubt in its construction I think that one ought to lean more in favour of the subject than against the subject.”

Also, there is a principle of statutory construction that it is the duty of the court to make such construction of a statute as shall suppress the mischief and advance the remedy. See Heydon’s case[cclvi]¹⁸ where it was resolved by the Barons of the Exchequer, inter alia, as follows:

“... the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief...”

We think it abundantly clear what the mischiefs aimed at by s. 37 and s. 42 were, and the remedy intended to apply, and the reference to subtle evasions and inventions does not appear inappropriate to the Act in question and the arguments very persuasively advanced in this case on behalf of the State.

However, we think that there is no need to close a hiatus because we think that none exists.

We have considered whether the provisions of s. 42(1)(c) validate the procedures prescribed by ss. 16, 17 and 20 of the Act. We do not think they do, even in the absence of the foregoing.

Section 42(1)(c) provides as follows:

“No person shall be deprived of his personal liberty except ... by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law.”

Under the Act in question the order of the court, failure to comply with which results in deprivation of liberty, is the order under s. 17 imposing the penalty. That is not an order made to secure the fulfilment of an obligation within the meaning of s. 42(1)(c). There was no pre-existing obligation to pay the money. The order itself imposes the obligation.

Nor can it be said that the order was made to secure the fulfilment of an obligation to prevent tribal fighting. Assuming that the Act by implication imposes on leaders an obligation to prevent tribal fighting, the order imposing the penalty is made not to secure the fulfilment of that obligation but to penalise a failure, which has already occurred, to fulfil that obligation in respect of particular tribal fighting that has taken place. Of course no doubt the penalty, like all criminal penalties, is imposed to deter a repetition of the conduct that has attracted it on the instant occasion. But an obligation to prevent, or do all that he can to prevent, tribal fighting in the future is incapable of fulfilment until future occasions arise calling for its fulfilment. In other words, that obligation is inchoate or prospective only. We do not think that it was the intention of s. 42(1)(c) to allow imprisonment just in an attempt to ensure the fulfilment of obligations the occasion for which might or might not arise at some future time, and where fulfilment might occur in any event. We think that the words “secure the fulfilment of an obligation” refer to an obligation where the occasion for fulfilment has arisen, and where fulfilment in relation to that occasion is still possible, but has not yet occurred.

In our view the combined effect of the provisions contained in ss. 16, 17 and 20 of the Act is to provide for the conviction of a person for an offence that is not defined by a written law within the meaning of s. 37(2) of the Constitution, without compliance with s. 37(4)(b) of the Constitution, for an “act” that did not at the time when it took place constitute an offence (being formulated in the magistrate’s mind, during the hearing, whether expressed by him in some form or not, as the criterion upon which he should decide under ss. 16 and 17 whether a penalty should be imposed) and for the imprisonment of the person concerned, in the execution of a sentence of a court which is invalid by reason of the foregoing.

In our view, for the reasons indicated, ss. 16, 17 and 20 of the Inter-Group Fighting Act 1977 are unconstitutional and invalid. Having said that, we consider it unnecessary to answer specifically and individually the questions asked in the reference.

PRATT J:  As a result of an inter-group fight at Womai in July/August, 1980, the District Court magistrate at Kundiawa, Mr. Geoffrey Lapthorne, commenced an enquiry under s. 15 of the Inter-Group Fighting Act 1977 on the 9th October, 1980, he then being of the view that he had convicted persons involved in the said group fight. As a result of this enquiry, he issued on 17th October, 1980, a number of notices to show cause against certain clansmen as to why a penalty should not be imposed on them for the actions of the groups of which they themselves were leaders.

On 28th October, 1980 various leaders appeared before the magistrate. Of these a number gave explanations to the magistrate. Under s. 17 of the Act the learned magistrate came to the opinion that the leaders present before him (with one exception), had not shown adequate cause as to why a group penalty should not be imposed upon them on behalf of their respective groups, and accordingly ordered that each leader pay a sum of K2,000 on behalf of his group, (although one was ordered to pay K5,000). It was also further ordered that in default of payment, each defaulter was liable to imprisonment.

From these decisions a number of appeals were lodged before the National Court and came on for hearing before Miles J. this year. Included in the grounds of appeal to be argued before his Honuor was the question of whether or not Pt. IV of the Inter-Group Fighting Act contravened the provisions of the Constitution. His Honour, having formed the view that such question was not “trivial, vexatious or irrelevant”, has referred the matter to the Supreme Court under s. 18(2) of the Constitution and rr. 3 to 6 of the Supreme Court Rules 1977.

The questions referred by his Honour are:

In relation to the Inter-Group Fighting Act 1977:

1.       Are ss. 15 and 16 of the Act invalid in that they contravene ss. 37(2), 37(3), 37(5), 37(8) and 59 of the Constitution?

2.       Are ss. 16 and 17 of the Act invalid in that they contravene s. 37(4) of the Constitution?

3.       Are ss. 17, 18, 19 and 20 of the Act invalid in that they contravene s. 37(8) of the Constitution?

4.       Is s. 20 of the Act invalid in that it contravenes s. 42 of the Constitution?

Obviously from the above a number of sections in the Constitution are invoked and all sections of Pt. IV of the Inter-Group Fighting Act are under review.

Section 1 stipulates the purpose for which the Act was passed, being, inter alia, “the collective punishment of the leaders of groups involved in fighting and the imprisonment of group leaders for non-payment of penalties imposed on them as a result of their group’s participation in such fighting”. I think it is also important to bear in mind the provisions of s. 2 of the Act:

“The provisions of this Act are in addition to, and not in derogation or amendment of, the provisions of any other law.” (Emphasis mine.)

The Public Solicitor, Mr. Amet, has argued the case for the affirmative. As can be seen from the questions referred by the learned appeal judge, he relies primarily on s. 37 of the Constitution (protection of the law) as well as s. 42 (basic liberties). Reference was also made to the principles of natural justice referred to in s. 59 of the Constitution. At the risk of over-simplification, I think that Mr. Amet’s submissions may be summarized in two parts—first, that although the words “charge” and “offence” are not mentioned in Pt. IV of the Act, this is indeed what has actually occurred so far as the individual appellants are concerned; and second, if what has taken place does not amount to a “conviction for an offence” under the Act with a sentence imposed as a result of that conviction, then the imposition of a fine when conjoined with the default provisions contained within Pt. IV of the Act would lead to deprivation of personal liberty outside the permissible limits allowed under s. 42 of the Constitution.

In arguing the case for the negative, Mrs. Daniel on behalf of the Principal Legal Adviser to the National Executive Council emphasises the novelty of the provisions introducing a concept of group punishment in an attempt to “provide a solution to a Papua New Guinean problem in a Papua New Guinean manner”. I do not take any of Mr. Amet’s submissions as challenging the proposition that “the group punishment provisions are a new and specifically Papua New Guinean attempt to solve an extremely serious Papua New Guinean problem”. Nor do I take him to contradict Mrs. Daniel’s further submission that “the procedure used by the magistrate is not similar to the accusatorial procedure used in the determination of criminal matters. This procedure can be seen as a new Papua New Guinean form of action”. Mr. Amet concedes that we do have a unique Papua New Guinean problem requiring special solutions which have been dealt with by the Act, but he maintains that such solutions must comply with the provisions of the Act underlying all law in the country—namely the Constitution. As I pointed out during argument, the court is faced with the interpretation of two Acts of Parliament and consequently there is little opportunity for the application of the underlying law.

It is basic to the submissions of the State that ss. 15, 16 and 17 do not invoke the procedure or protections of the criminal law. The State’s attitude in this matter I think is best set out in that part of the reply by counsel to the submissions made by Mr. Amet in relation to s. 37(8) of the Constitution. The person being summoned by notice to show cause before the magistrate is not, says Mrs. Daniel:

“being retried for the same offence under ss. 17, 18, 19 and 20. In fact, no trial takes place under any of these sections. Under s. 17 the magistrate may impose a penalty on the group through its leaders. This could be said to be a penalty for the group’s anti-social behaviour. The group is paying the State a form of damages to compensate for the inconvenience to which the State has been put in stopping the tribal fight. The imposition of a penalty does not necessarily mean that there must have been a trial.”

The last sentence here quoted is not supported by any authority either Papua New Guinean or otherwise, and given the circumstances and nature of the present type of case, is quite devastating in its implications. What the State is really saying is that by virtue of the provisions of Pt. IV of the Inter-Group Fighting Act, a person may be penalized and sent to prison as a result of such penalty not being paid without any trial taking place. It is obvious from the subject matter on the sections (especially s. 15), that a leader may be called before a magistrate to give an explanation as to why a penalty should not be imposed upon him on behalf of the group, although he has not heard his accusers, he does not know what they have said about him and he is certainly not given any opportunity to test what has been said against him by cross-examination. Indeed some emphasis was laid by the State on the fact that the new procedure is inquisitorial and not accusatorial. It is submitted that:

“The magistrate under ss. 15 and 16 is not making a determination of guilt or innocence of an accused. He is undertaking an enquiry and forming an opinion about the group’s behaviour in relation to a specific tribal fight and under s. 16 he is asking the leaders of the group to refute that opinion. He is not making any kind of final determination.”

In the present circumstances the magistrate has made due enquiry under s. 15. During this enquiry many of the present appellants were not consulted, nor is there any indication that they were advised either before or after the enquiry of what had been said about them. A number of them did give evidence on oath but in many instances this was done without any knowledge of what had been said by other appellants and witnesses at a different time and place during the enquiry. At the conclusion of his enquiry and investigation into the matters set out in s. 15, the magistrate came to an opinion. It is hard to avoid drawing an analogy between an investigating police officer or a coroner who, having investigated and formed certain views, then proceeds to lay a charge. To say that in the present circumstances the magistrate does not lay a charge merely because the wording used by the legislators does not employ the term “offence” and does not stipulate that any person in breach of the section is “guilty of an offence”, is to avoid the central issue. One has only to attempt the experiment of drafting a suitable notice to show cause in order to appreciate exactly what is happening under s. 16. The investigating magistrate himself in this case has drafted a notice to show cause in terms which underscore the point I am making:

“NOTICE TO SHOW CAUSE WHY PENALTY SHOULD NOT BE IMPOSED

Papua New Guinea

District Court

KUNDIAWA.

To GUNUA KAMANE of WOMAI

Following an enquiry held under Section 15 of the Inter-Group Fighting Act 1977-1979 into the fight at Womai during July/August, 1980, which started between the Tunaku and Miribisi sub-clans I am of the opinion that the TONAGU sub-clan of WOMAI Rest House, SINASINA District, CHIMBU Province took part in the fight and I now call on you

To GUNUA KAMANE of WOMAI

to appear before me at the District Court at Kundiawa at 10.00 o’clock in the forenoon on Tuesday the 28th day of October, 1980 to show cause why a penalty should not be imposed on you on behalf of your group under Section 17 of the Inter-Group Fighting Act 1977-1979.

Sworn under my hand this 17th day of October, 1980.

G. C. LAPTHORNE

District Court Magistrate.”

The fact that a section does not specifically stipulate that the failure to observe a condition or to carry out an obligation or to act in breach of a prohibition contained within the Act amounts to an offence, does not of itself imply that no offence is intended to be created. What is important is the effect of the section. In the present instance the individual is told that as a leader of a group which has been found guilty of acting in contravention of the terms of the Act, he should show cause why a penalty should not be imposed on him. A failure to give a satisfactory explanation leads to the imposition of a penalty. A failure to pay that penalty leads to a term of imprisonment. The submission that in circumstances such as the present there has been a conviction for an offence which is not defined by written law, and thus a breach of the protection afforded in s. 37(2) of the Constitution, has been amply considered by the earlier judgment published herein.

What is done by virtue of a notice to show cause is in fact to charge a person. It is not to the point to draw analogies between proceedings and procedure in the District Court and Local Court for offences under various other Acts in an attempt to show that in those jurisdictions offences are in fact being dealt with, but because of a different procedure involved in the present case, no offence is being dealt with. The section has been designed to deal specifically with a particular problem plaguing the country and to give a solution to that problem by sheeting home a responsibility to someone who may or may not have been actually involved in the physical act of fighting but who is chargeable because of his status or position. Such is the point and purpose of s. 16. The plain hard facts of the matter are that the leader is charged and he is charged under s. 16 of the Act and under nothing else. In my view, there is clearly an “offence” with which the leader is “charged” and in the present case “convicted”. I agree entirely with the views expressed by the majority of the Court on this aspect of their judgment.

Once it is appreciated that what is being dealt with by the magistrate under s. 17 is an offence under s. 16, then in my view the essential weakness of the State’s position is revealed. The opening words of s. 17 read: “Where in the opinion of the magistrate ...”. It seems unarguable to me that the definite article appearing before “magistrate” can only refer to the magistrate who conducts the enquiry under s. 15 and comes to a view and thereby issues a notice to show cause under s. 16. He is thus in the position of making enquiry, bringing the accusation and then acting as judge in the cause. Indeed because the allegation stems from his very own enquiries and because it is his own opinion which is being placed in question, the conclusion is irresistible that be is being directed to act as both accuser and judge. The prohibition against such a situation being permitted in the common law is one of the cornerstones of our criminal jurisprudence enshrined in s. 37(3) of the Constitution which asserts that the person charged with an offence shall “be afforded a fair hearing ... by an independent and impartial court”. Having been charged with an offence, the individual is entitled to the protections set forth in s. 37 of the Constitution and more particularly s. 37(3). What has been omitted from the Act is a transitional section leading from the stage arrived at following investigation under s. 15 plus the issue of a summons or notice to show cause under s. 16, and the time when he is actually called upon in front of the magistrate to explain why a penalty should not be imposed. Before the provisions of s. 17 can be successfully invoked, the person summonsed must be given the opportunity to hear the allegations made against him, not from the magistrate, but from those who can give first-hand knowledge which forms the basis of such allegations. He must be given the opportunity to question those persons and such proceedings must be taken before a magistrate who has not been involved in any way with the enquiry and formulation of the summons under ss. 15 and 16 of the Act.

He is given of course some chance of stating his position for by virtue of s. 17(3) we find:

“A person shall not be liable to a penalty under this Section if:

(a)      at the time that the relevant inter-group fight took place he was not present in the area occupied by the group or where the fight took place; or

(b)      he satisfies the magistrate that he did everything reasonably within his power to prevent the inter-group fighting taking place.”

How he can do this when he may not have been apprised of the material assembled against him, let alone have heard the evidence recorded which involves him in the fight, I do not know. Whilst it may not be that the explanation sought in (a) above is a reversal of onus, I cannot read par. (b) as anything else but a reversal. In the existing words of the section, the leader is called upon to explain why the penalty should not be imposed and it is stated that he shall not be liable to a penalty if he satisfies the magistrate. It is almost impossible to imagine circumstances where material to support such application could be said to rest solely in the personal knowledge of the leader (s. 37(4)(a) Constitution). More likely, such material would be, if not common knowledge, at least known to a number of other people who would be easily ascertainable were proper enquiry made. It has already been ruled by the Supreme Court that an earlier provision of the same Inter-Group Fighting Act, namely s. 11(3), was invalid because of a breach of s. 37(4)(a) of the Constitution (see Constitutional Reference No. 3 of 1978; Re Inter-Group Fighting Act 1977[cclvii]¹⁹). In my view s. 17(3)(b) certainly suffers from the same defect as s. 11(3), and I tend to the view that par. (a) is invalid for similar reasons.

The right to hear what is said against one and to cross-examine those who supply material for evidence to establish an adverse case, is a fundamental prerequisite to a fair hearing. To some extent this proposition may involve a reasonable expectation for the observance of the principles of natural justice in a court. I do not however consider it necessary to embark on a separate investigation of that area of the law covered by s. 59 of the Constitution. In a number of authorities dealing with proceedings before various tribunals, de Smith in his Judicial Review of Administrative Action (1973) 3rd ed. at pp. 188 to 189 passes from strictly judicial bodies dealing with persons charged with offences to statutory bodies whose functions would have little in common with the judicial process. Even in the case of the latter however, it appears in most instances that the very minimum requirement is a full disclosure by the investigating authority of the material which has been compiled against a person whose status, livelihood, financial circumstances or material welfare will be adversely affected. The frequent references to “natural justice” in these authorities makes it clear to me that not only is natural justice a part of the underlying law of Papua New Guinea (see for example Iambakey Okuk and The Independent State of Papua New Guinea v. Gerald Sidney Fallscheer[cclviii]²⁰), but that it is incorporated directly into the Constitution by virtue of the provisions of s. 37(3). It is impossible to interpret the fair trial provision without resort to the expressions arising in the natural justice cases. Several examples will suffice: In In re Pergamon Press Ltd.[cclix]²¹ certain inspectors were appointed under the Companies Act (Eng.) to carry out investigations which entailed the interviewing of past and present company directors. Although it was quite clear that the inspectors’ functions were investigatory and not judicial, it was nevertheless held that in compiling their report they must act fairly. At p. 399 Lord Denning M.R., after pointing to some very serious consequences which may flow from the investigators’ examination says:

“Seeing that their work and their report may lead to such consequences, I am clearly of the opinion that the inspectors must act fairly ... The inspectors can obtain information in any way they think best, but before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him.”

Even in the case of Crofton Investment Trust Ltd. v. Greater London Rent Assessment Committee and Another[cclx]²² where it was clear that the tribunal was such that it must operate largely upon its own knowledge of conditions in the locality, reference is made by Lord Parker C.J. at p. 968 to an earlier judgment of Lord Goddard (R. v. Brighton and Area Rent Tribunal; Ex parte Marine Parade Estates (1936) Ltd.[cclxi]²³) in the following terms:

“If witnesses are tendered, I have no doubt that it is the duty of the tribunal to hear them. If they are tendered and cross-examination is desired, it is the duty of the tribunal to allow that cross-examination ... But, I repeat, it is quite obvious that these tribunals can act without having any evidence before them at all:”

R. v. The War Pensions Entitlement Appeal Tribunal and Another; Ex parte Bott[cclxii]²⁴ is another authority which stipulates as a basic requirement that even where cross-examination may not be permitted in a purely administrative tribunal, at least the party concerned must be able to read, or be apprised of, the material adduced against him. In similar vein, the Privy Council in University of Ceylon v. E.F.W. Fernando[cclxiii]²⁵ says at p. 234:

“... it was undoubtedly necessary that before any decision to report the plaintiff was reached, he should have complied with the vital condition postulated by Lord Loreburn, which adapted to the present case may be stated as being to the effect that a fair opportunity must have been given to the plaintiff to correct or contradict any relevant statement to his prejudice.”

Two cases, Blaise v. Blaise[cclxiv]²⁶ and R. v. Edmonton Justices; Ex parte Brooks[cclxv]²⁷ deal with occasions where the party adversely affected has been refused a right of cross-examination resulting thereby in a substantial miscarriage of justice.

Perhaps the two most pertinent authorities in connection with the present appeals are as follows. R. v. Newmarket Assessment Committee; Ex parte Allen Newport, Ltd.[cclxvi]²⁸ — This case concerned a failure by an assessment committee under a rating Act to hear what the landowner had to say following on receipt of further objections from the government valuation officer. At p. 373 MacKinnon L.J. says:

“It is propounded by counsel for the applicants, and is not disputed by counsel for the respondents, that, in performing their functions under sect. 37, it is elementary that the assessment committee must act judicially, hear all parties who are entitled to be heard, and act only upon evidence given in the presence of those parties after giving them an opportunity of cross-examining the witnesses opposed to them and adducing any evidence of their own.”

Perhaps even more relevant in view of the submission made by counsel for the State appearing at the bottom of p. 8 of this judgment, is the following comment by Humphreys J.:

“The point has been made by counsel for the respondents that that decision was what is called a provisional decision, or a decision come to provisionally. I do not understand that language at all. The assessment committee is bound to act judicially. They sat on an occasion when they knew, by reason of correspondence which had passed between them and the applicants, the rated occupiers of the hereditament in question, that they could not be present and that they were in fact not present. Then they considered something of which the applicants knew nothing whatever and had no notice, and they did something on that. I do not think that they can be heard to say: ‘We only provisionally decided something.’ They decided, and decided upon evidence which they had heard in the absence of the most interested party, that they would insert the hereditament in the list at a valuation of £18,000, and they wrote and said so. To my mind it is nothing to the point that they wrote to him saying: ‘If you like to come here on some subsequent day and satisfy us that we were wrong, we will hear you.’ They had sat and determined it. I think they had no more right to do that than a court of jurisdiction has to say to a person: ‘I have decided this case, but if you can satisfy me that my decision is wrong, I will hear you.’ That is not the way in which persons are permitted to act who are bound to act judicially.”

The second authority is Marriott v. Minister of Health[cclxvii]²⁹ where Swift J. refers to a decision of Lord Haldane who has adopted a passage from Lord Loreburn in Board of Education v. Rice and Others[cclxviii]³⁰:

“In disposing of a question which was the subject of an appeal to it, the Board of Education was under a duty to act in good faith, and to listen fairly to both sides, inasmuch as that was a duty which lay on everyone who decided anything.”

Later at p. 130, Swift J. himself has the following to say:

“... there must be some impropriety which goes to the root of the whole matter. If one party is heard without the other having an opportunity of knowing what he has said or of testing what he has said by cross-examination, or of making answer to what has been said, then clearly there has been an infringement of the rules of natural justice. As Lord Haldane said, nobody who has to decide anything can decide unless he hears both sides with regard to the matter.”

It seems to me therefore that to hear part of the evidence in the presence of a person affected, or not in his presence at all, and in either case to deny him access to the whole of the material which has been assembled against him, apart from denying an opportunity for cross-examination, even in an administrative hearing can hardly be said to be acting fairly let alone in what I take the position to be under s. 17 of the Inter-Group Fighting Act; to act judicially. I do not think there is anything contained in s. 22 of the Act (which extends the powers of the enquiring magistrate beyond those of a normal District Court) which permits the enquiring magistrate to act other than judicially.

I appreciate that the State has laid some emphasis on the fact that the procedures under Pt. IV are more akin to inquisitorial examination than the processes normally expected where a person is brought before a court prior to having a penalty imposed upon him. Perhaps part of the difficulty that has arisen in this legislation stems from an attempt to weld into the system the inquisitorial process. Perhaps the words of the New South Wales Law Reform Commission appearing at p. 218 of their 1978 report on the Rule Against Hearsay spell out a warning of the difficulties inherent in such an attempted marriage. At that page the commissioners extract the following paragraph from the English Committee of Supreme Court Practice and Procedure:

“We considered carefully whether it would be right to recommend the adoption in England wholly or in part of the Continental practice in regard to evidence, but we have come to a conclusion against so doing. In the first place, to do so would obviously strike at the root of the English ideas of the administration of justice. There are no doubt two views on the question which system is better adapted to elicit the truth. We are not prepared to say that in this respect the French or German systems are superior: and there is no demand, so far as we have been able to discover, for such a sweeping change ... Under the (English) system, therefore, the greatest weight and importance is attached to the oral testimony of the parties and their respective witnesses. A change to the Continental system would logically involve a shifting of this very characteristic emphasis. We do not think such a change could effectively be made unless the Continental system of the administration of justice were adopted in its entirety. The laws and rules of evidence in England are adapted to the English system of justice. Those in France and Germany are adapted to the French and German systems. They are not interchangeable. The adoption here of Continental rules and practice in regard to evidence would mean a new kind of judiciary with many hundreds of local examining magistrates.”

I take this to mean that where an attempt is made to graft a small portion of the Continental system onto the English and therefore presently Papua New Guinea system, the attempt is doomed to failure for by making a small alteration in one area of the law, it can bring about serious conflicts with other more basic areas. What the English committee seems to be saying, and I think their remarks would be completely applicable to the situation in Papua New Guinea, is that it must be all or nothing.

Accordingly the term “fair hearing” involves as a basic requirement a right to hear what is said by those who depose against the person charged and a right to cross-examine such accusers. For these reasons I am of the view that s. 17 of the Inter-Group Fighting Act is invalid as being contrary to the basic protections set out in s. 37 of the Constitution. It follows that s. 18 would likewise be invalid as would any regulations passed under s. 19. So far as concerns s. 16, I consider that section to be invalid to the extent that it calls upon a person to show cause why a penalty should not be imposed rather than call upon him to answer a charge that he has been accused of committing an offence under the group punishment provision.

The fourth ground of reference before the Court involves s. 42 of the Constitution and s. 20 of the Act. In relation to s. 20, it should be noted that the magistrate referred to in the section need not necessarily be the same magistrate who acted under ss. 15, 16 or 17. If I am incorrect in my reasoning that s. 17 of the Act is invalid because it fails to comply with requirements set forth in the Constitution and that one of the basic reasons why I am in error is there has been no offence committed, no charge laid and no conviction recorded, then if there is no sentence or order of a court in respect of an offence of which a person has been found guilty obviously s. 42(1)(b) of the Constitution has no application. It remains however to decide whether there has been a deprivation of liberty, either within or outside the terms of s. 42(1)(c) which reads:

“No person shall be deprived of his personal liberty except:

...

(c)      by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law;”

Counsel for the State maintains that a court order is properly made under s. 17 in order to ensure payment of a penalty and thus an obligation to pay is imposed by law following on, and as a result of, the order. A failure to comply with such order permits a court to impose a penalty by way of deprivation of liberty. Because s. 17(b) deals with a deprivation following the execution of a sentence or order in respect of an offence, and because the State’s argument is based on the contention that no offence has been committed, it is clear that the State is forced to rely heavily on s. 42(1)(c). The State argument is quite brief on this point. Counsel says:

“A court order is made under s. 17 to ensure the payment of the penalty. The obligation to pay is imposed by law when the order is made. If the leader as representative of the group does not comply with this order within three months, he can be imprisoned. This procedure is covered by the exception established by s. 42(1)(c), and therefore s. 20 of the Act is not unconstitutional.”

To that argument, counsel for the affirmative replies to the effect that s. 42(1)(c) is not applicable to the circumstances of a case coming within the terms of s. 16 of the Act and s. 20, simply because what the magistrate is doing is not enforcing an obligation imposed by law but rather is enforcing an order made by another court. Putting it another way, Mr. Amet says that the wording of the section would have to read not as presently worded — “imposed upon him by law” — but rather — “imposed upon him by another court”. I think this interpretation has some merit, though I would not be prepared to concede that an order made by a magistrate under s. 17 is an order of “a court” at all within the meaning of that word as used in s. 42 of the Constitution, irrespective of various sections in Pt. IV of the Inter-Group Fighting Act granting District Court powers to an enquiring magistrate. The very fact that the legislature has distinguished the magistrate’s functions under s. 15 of the Act (see s. 22) indicates that the “proceedings” referred to in ss. 23 and 24 must still be performed in a manner normally expected in a court of law and not the inquisitorial procedure prescribed in ss. 16 and 17 of the Act. However I do not think it is necessary to examine this aspect as there is a much clearer breach of s. 42(1)(c) of the Constitution. To my mind, s. 42(1)(c) is not directed to the type of situation created by Pt. IV of the Inter-Group Fighting Act but is directed to an entirely different set of circumstances. Perhaps one of the best examples of the type of legislation which this sub-section of the Constitution supports may be found in the Deserted Wives and Children Act 1951. By s. 5 of that Act, an obligation is imposed on a husband to support his wife and children and a failure to so support them will lead to a court hearing and to an order against him to fulfil his obligations. Under s. 12 of the Act the court may, upon complaint on oath, issue a warrant to apprehend a person to answer a complaint that he has failed to comply with the order and after due enquiry into such complaint may then “enforce compliance with the order by the committal of the person summonsed or apprehended to prison” for a certain period of time. There is no offence of course created under the Act and were it not for s. 42(1)(c) in the Constitution, it is clear to my mind that the apprehension and imprisonment of the erring husband would be unconstitutional. It certainly could not be supported under s. 42(1)(b) because there has been no sentence imposed and no order in respect of an offence. Section 12 however does underline the fact that s. 42(1)(c) does not envisage a committal to gaol without giving a person an opportunity to hear what is said against him before an impartial tribunal and to put his own case in reply. Putting one’s case in reply is not merely restricted to producing one’s own evidence — it is an essential part of one’s case to be given the opportunity to test the evidence which has been adduced against the cause which you seek to support. If the State submissions are correct, of course none of this procedure would be available to a person committed to prison under s. 20 of the Inter-Group Fighting Act.

Though there may possibly be an obligation placed on a leader by virtue of s. 16 of the Act to ensure that groups do not fight or desist from fighting (and I do not decide the point), there is no provision for any court to make an order to carry out this obligation (as in the case of the defaulting husband already referred to). The only orders made are (1) to show cause why a penalty should not be imposed and (2) the penalty itself. That is, the order being imposed is not passed in the positive terms, “I order you to stop the fight”, because there is an obligation to do so imposed by inference under the Inter-Group Fighting Act, but it is an order relative to a failure to carry out the obligation itself but without any proper court hearing into the facts constituting either the existence of the obligation or the failure to perform. This essential step has been omitted, and it is precisely because of the omission that the legislation cannot gain support from s. 42(1)(c). If there is an obligation imposed by law then there must first of all be a court order made ordering the enforcement of the obligation before any further proceedings can be taken. And the order must be made by a “court” within the proper and ordinary meaning of that word which implies at the very least the application of the principles of natural justice, with the possible exception of courts set up under s. 172(2) of the Constitution. What Pt. IV of the Act achieves is a final order by way of penalty without any proper hearing by a court as to whether or not the obligation vests in the first place, and when it does so find, then making an order on the party to meet his obligations or face the consequences. It is just as clear by implication that the deprivation of personal liberty following on a failure to comply with such order should only result after proper proof of such failure had been given with provision made for a proper hearing of the allegations that such failure to perform had occurred.

On this further ground then, I consider s. 20 is invalid by virtue of the provisions set forth in s. 42 of the Constitution.

I therefore agree with the majority judgment of this Court that ss. 16, 17 and 20 of the Inter-Group Fighting Act 1977 are unconstitutional and invalid, and likewise that it is unnecessary to answer specifically the questions asked in the reference.

MILES J:  An order for imprisonment made under s. 20 of the Inter-Group Fighting Act 1977 (in this judgment called “the Act”) is properly characterized as an order of a court in respect of an offence of which a leader of a group has been found guilty. Imprisonment in the execution of that order is authorized by s. 42(1)(b) of the Constitution. In my view s. 20 of the Act is severable from the preceding sections of Pt. IV. It is capable of being read subject to the provisions for securing the protection of the law to all persons set out in s. 37 of the Constitution and does not contravene these provisions. The preceding sections in Pt. IV do not involve the charging of a criminal offence nor the trial or conviction for a criminal offence and those provisions of s. 37 of the Constitution relating to offences do not apply.

In coming to the above conclusions I have borne in mind the principle that where the liberty of the person is in issue, legislation is to be strictly construed so that any doubt is resolved in favour of the person. I take this to be a principle of the underlying law as it is of the common law. But in interpreting the Constitution there are other considerations to which the underlying law is subject. Section 8 of the Constitution and Sch. 1.5(2) require all provisions in a Constitutional Law to be given their fair and liberal meaning. Section 10 of the Constitution requires a written law to be “read down” to the extent to which it is not in excess of the authority enacting it. If there is a presumption in the underlying law that legislation is not intended to restrict personal liberty, that presumption must give way to constitutional provisions. I reject the tentative submission on behalf of the Principal Legal Adviser that the urgent need to suppress inter-group fighting gives the Act some special claim to validity. The Constitution enables the National Parliament (in certain defined circumstances), to make laws qualifying or limiting the right to personal liberty and to pass emergency legislation, and those circumstances do not exist.

The history of the matters giving rise to this Reference are set out in the judgment of Pratt J. I would add to what his Honour has to say that what was being appealed against in the National Court prior to this reference to the Supreme Court was the determination of penalty pursuant to s. 17 of the Act. The question as to what right there may be to appeal to the National Court from determination of penalty under s. 17 has not been raised in this Court. The magistrate at Kundiawa may not have recognized that s. 17 is severable from s. 20. His formal decision was as follows:

“I hereby order that Gunua Kamane, Kamane Gunua, Kamane Terau and Kupu Gawa be held severally and jointly liable on behalf of their group for a group punishment fine of Five thousand kina, (K5,000) in cash to be paid within three months of this date to the Government of Papua New Guinea and in default of payment each liable for imprisonment under s. 20 of the Inter-Group Fighting Act.”

The decision purported to include an order for imprisonment under s. 20 in default of payment of penalty. It should not have done so. Proceedings for an order for imprisonment under s. 20 are different from and subsequent to a determination of penalty under s. 17 and should be heard by a different magistrate. The provisions of each section are severable from those of the other.

The thrust of the Public Solicitor’s challenge to Pt. IV of the Act is that it contravenes those provisions of the Constitution which guarantee personal liberty (s. 42) and protection of the law (s. 37). Some general observations as to the nature and extent of the constitutional protection of human rights are appropriate. The right to personal liberty and to protection of the law are complementary and in the history of legislative effort to protect human rights have developed out of the broad right to “due process of law” as it is known in some countries. The Constitution does not guarantee an absolute right to personal liberty, nor does it say that a person may be imprisoned only after trial and conviction for a criminal offence. It does provide that one of the situations in which a person may be imprisoned is after trial and conviction for an offence; it goes further to provide that a person may not be tried and convicted for an offence unless certain procedural safeguards have been observed.

The Constitution avoids the concise and sweeping provisions of the Universal Declaration of Human Rights that “Everyone has the right to life liberty and the security of person” (Art. 3) and “No one shall be subjected to arbitrary arrest detention or exile” (Art. 9). The Constitutional Planning Committee recommended avoiding such an approach, taking the view that constitutional freedoms would be more effectively guaranteed if their definition were made “as specific and as clear as possible so that the room for argument as to the meaning of particular provisions is minimised”[cclxix]³¹. The Committee considered that the detailed provisions previously in force in this country as the Human Rights Act 1971 had been found quite suitable for Papua New Guinea. In reaching this conclusion the Committee rejected the simpler, more sweeping approach of the Universal Declaration which is repeated for instance in Art. 9.1 of the International Covenant on Civil and Political Rights 1966 and in s. 20 of the abortive Australian Human Rights Bill 1973. The Papua New Guinea approach is similar to that of the European Convention on Human Rights where “two lines of the Universal Declaration are expanded to nearly a page ... when one uses the method of detailed definition” (A. H. Robertson, Human Rights in Europe, Manchester 1977, p. 50). Two results follow. One is that it is easy in examining the detailed provisions of the Constitution to lose sight of the original aim as expressed by the Constitutional Planning Committee, namely to give effect to the purposes of the Universal Declaration. The other is that in interpreting and giving effect to these more or less precisely defined rights and freedoms the court is left, as the Constitutional Planning Committee intended it should be left, with less room to manœuvre.

Lastly, it should be noted that the constitutional guarantees of personal freedom and protection of the law are not identical with the counterpart provisions in the Human Rights Act 1971. In one respect relating to the situations in which a person may be imprisoned as a result of a court order, the difference between the former and present provisions is important, even vital. I shall return to this aspect later in this judgment.

In her argument supporting the constitutional validity of s. 20 of the Act, Mrs. Daniel for the Principal Legal Adviser to the National Executive Council has expressly disclaimed any reliance upon any provision in the Constitution other than s. 42(1)(c). This is as follows:—

“(1)    No person shall be deprived of his personal liberty except:

(c)      by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law;”

The majority judgment of the court in this case is that s. 20 of the Act does not fall within s. 42 (1)(c) of the Constitution. I agree with this conclusion.

Assuming that a determination of liability under s. 17 of the Act is “an order of a court”, it is necessary before s. 42(1)(c) of the Constitution can apply that the order be “made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law”. This constitutional provision is directed at authorizing imprisonment by way of attachment of the person for non-compliance with an order of a superior court in a civil case (over and above the power to imprison for contempt of court which is authorized by s. 42(1)(b)). Attachment of the person is still a procedure available under the National Court Rules: O. 50, rr. 1 to 5. Section 91 of the Matrimonial Causes Act 1962 enables the National Court to enforce by attachment an order for payment of maintenance or costs or in respect of the custody of or access to children. A person may be liable to imprisonment for non-payment of a maintenance order made for instance under s. 12 of the Deserted Wives and Children Act 1951, or s. 63 of the Child Welfare Act 1961. Such orders to pay maintenance arise out of the obligation at law to maintain a spouse or child, an obligation which is not an obligation arising out of contract. Yet the enforcement of that obligation by court order and by imprisonment for noncompliance does not depend upon the person owing the obligation being charged and convicted of a criminal offence. It has been held elsewhere that where imprisonment is ordered by a court for the vindication of a civil right and may be avoided or ended by compliance, it is not in the nature of punishment for a criminal offence: Folwell v. Folwell[cclxx]³², cp. Dyke v. Whittleton[cclxxi]³³.

Is an order made upon a group leader to pay a penalty under s. 17 made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law? The question may be answered affirmatively only by successfully identifying the obligation which the order seeks to enforce. It is very difficult to see what such an obligation might be. It might be suggested that by inference s. 17(3) casts or recognizes an obligation on group leaders to keep out of an area where group fighting takes place and to do everything reasonably within their power to prevent inter-group fighting taking place. Wherever the onus of proof may lie, s. 17(1) does not limit the matters which may be raised in support of or in opposition to a notice to show cause to the matters set out in s. 17(3). What the criteria are for deciding whether or not a leader has “failed to show cause or adequate cause” are not stated. The failure of a leader to keep out of an area or to prevent group fighting taking place does not of itself give rise to any sort of liability enforceable by legal action. It is not clear that the intention of the legislature is to impose a legal obligation upon a leader to keep out of an area where tribal fighting takes place and to do everything reasonably within his power to prevent group fighting taking place. It would have been relatively easy for the legislature to have laid down such an obligation in clear terms. It would also have been relatively easy for the legislature to have declared that the purpose of an order under s. 17 was to secure the fulfilment of such an obligation. This was not done. The provisions of s. 8 of the Constitution, Sch. 1.5 and s. 10 do not require such matters to be read into the Act; on the contrary the principle of the underlying law that the ambiguity or doubt is to be resolved in favour of the liberty of the person should be applied.

It was put briefly in the written submission on behalf of the Principal Legal Adviser that the obligation to pay the penalty for which liability arises under s. 17(1) is “imposed by law when the order is made” and that “this procedure is covered by the exception established by s. 42(1)(c)”. This submission is in my view unsound and confuses the present constitutional provisions in s. 42(1)(c) with their counterpart in the Human Rights Act 1971. According to the provisions in s. 11(1)(c) of the former Act (which were similar to those of the European Convention on Human Rights, Art. 5(1)(b)) deprivation of liberty was authorized in two situations: the first in cases of failure to comply with an order of a court and the second in order to secure the fulfilment of any obligation imposed upon a person by law. The present constitutional provision is radically different: the authorization occurs only in pursuance of a court order and then only in the case of a court order which is of a special type, that is one which is made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon the person by law and independently of the order itself. For reasons already given, an adjudication under s. 17 of the Inter-Group Fighting Act is not such an order.

It may be sufficient to dispose of the argument in favour of the Constitutional validity of s. 20 of the Inter-Group Fighting Act 1977 to say that it involves a deprivation of personal liberty and is not authorized by s. 42(1)(c) of the Constitution, no other paragraph of s. 42(1) being relied upon. It is desirable in my view to go on to say that the true purport of s. 20 is to punish by way of imprisonment for the commission of behaviour which is treated as amounting to a criminal offence. The detailed provisions of Pt. IV obscure this essential fact but it is suggested by the use of the word “punishment” in s. 1(c) and in the heading to Pt. IV, and revealed most conspicuously by the express recognition in s. 20(2) that:

“... an order of imprisonment under Subsection (1) has the same force and effect, and shall be enforced in the same way as an order for imprisonment after conviction for an offence by a District Court.”

But to say that s. 20 creates an offence is not to say that it is invalid. The National Parliament clearly has power to legislate for the creation of criminal offences. What it is not permitted to do in creating criminal offences is to deprive the person at jeopardy of the protection of the law, particularly in the processes by which he may be found guilty of the offence created. I see nothing in s. 20 itself which denies that protection to a leader charged with failing to pay a penalty ordered under s. 17. It is somewhat unfortunate that the submission put for the Principal Legal Adviser expressly declined to take up this point, although it was to some extent anticipated by the Public Solicitor, whose argument as I understand it assumes that s. 17 and s. 20 are inseverable.

Section 20 of the Inter-Group Fighting Act 1977 in my view does not infringe any of the provisions of s. 37 of the Constitution which guarantee to every person the right to the full protection of the law. What s. 20 does is create an offence punishable by way of imprisonment. A person will be found guilty of that offence when a prosecutor has proved to a court beyond reasonable doubt that the person has failed within three months to pay a monetary penalty imposed pursuant to s. 17 upon him or upon him and other leaders jointly and severally. The offence is defined and the penalty is prescribed by a written law, namely s. 20 itself. There is no contravention of s. 37(2) of the Constitution. There is no constitutional objection to the legislature creating a criminal offence which is constituted by the failure to pay a sum of money ordered to be paid by the offender or to be paid by the offender and other persons jointly and severally.

Nor is there any contravention of s. 37(7) of the Constitution, which in effect prohibits the retrospective application of laws creating offences. Assuming, in favour of the offender, that the word “act” in s. 37(7) includes “omission”, the offence constituted by s. 20 of the Inter-Group Fighting Act 1977 is the failure to pay the penalty above referred to. It cannot be said that the failure, at the time when it took place, did not constitute an offence. The offence constituted by that failure occurs after and independently of the events which give rise to a determination of liability under s. 17 of the Act. Hence conviction for the offence does not contravene the rule against double jeopardy provided for under s. 37(8) of the Constitution.

It is significant that the authority empowered to order imprisonment under s. 20 is “a Magistrate”, not “the Magistrate” referred to in ss. 15, 16, 17 and 18. There are strong grounds for saying that the magistrate who carries out the inquisitorial procedures provided for in the preceding sections should not go on to entertain proceedings for an order for imprisonment under s. 20 because that could be in breach of the constitutional right to a fair hearing by an independent and impartial court guaranteed by s. 37(3) of the Constitution.

I turn now to those sections of Pt. IV of the Inter-Group Fighting Act which precede s. 20. In the first place they are severable from s. 20. In other words, even if s. 20 is to be struck down as in contravention of the Constitution, that does not necessarily mean that ss. 15 to 19 or any of them are for that reason invalid. Secondly, when viewed separately from s. 20, those sections do not contravene the Constitution.

What I have already said about s. 20 to some extent indicates its severability and hence the severability of the preceding sections. Furthermore, s. 10 of the Constitution requires the provisions of Pt. IV to be read severally if that would lead to the result that some or any of them will be construed as within the power of the National Parliament. Proceedings under s. 20 are criminal in nature and are not to be conducted by the same magistrate who conducts the prior inquisitorial proceedings pursuant to ss. 15 to 19. As an order for imprisonment under s. 20(1) has the same force and effect as an order for imprisonment after conviction for an offence by a District Court, there is an implied right of appeal under the District Courts Act 1963, to the National Court. I doubt whether there is the same right of appeal from an adjudication of the magistrate imposing liability to a penalty pursuant to s. 17.

It might be suggested that it is unrealistic to divide s. 20 off from the other sections of Pt. IV of the Act because those sections would be thereby rendered ineffective unless the constitutional validity of s. 20 was accepted. I would reject this suggestion if it were made. A law is not unconstitutional because it is ineffective or incomplete. The Bail Act 1977, s. 19, provides an example of a law which is incomplete in that it imposes a liability but does not provide for its enforcement. A person may undertake to a court to pay a sum to the State in the event of a defendant failing to appear at his trial and the court may order the guarantor to pay that sum to the State in that event; but there is no provision for enforcement of the order, as if it were a judgment of the court. Nor does the nonpayment by the guarantor constitute a criminal offence. There is a further analogy with the present case in that the guarantor, like the group leader, incurs a liability, perhaps even punishment, because of the conduct of another person.

The scheme of Pt. IV of the Act, apart from s. 20, is to authorize a magistrate, before whom a person is convicted of an offence relating to inter-group fighting under Pt. III, to conduct an enquiry leading eventually to the imposition of penalties under s. 17. The magistrate may conduct the enquiry on his own initiative and is obliged to do so if requested by a Peace and Good Order Committee or an officer as defined. The matters to be determined upon such enquiry are set out in s. 15. If the magistrate is of the opinion that in all the circumstances the actions of the group are such that a penalty should be imposed on its leaders for the group’s part in the fight, the magistrate may cause to be served on the leaders a notice to show cause why a penalty should not be imposed upon them on behalf of the group: s. 16. The magistrate may impose a penalty under s. 17 where in his opinion the leaders served with notice have failed to show cause why a penalty should not be imposed on them or any of them. The liability to pay the penalty is joint and several. The penalty shall not exceed K20,000. The magistrate has a wide discretion in coming to his opinion as to whether the leaders have shown cause: no precise criteria are laid down. But a leader is not liable to a penalty if at the time of the fight he was not present in the area occupied by the group or where the fight took place or if he satisfies the magistrate that he did everything reasonably within his power to prevent the fight taking place: s. 17(3).

None of this in my view infringes any of the provisions of the Constitution. It may well be that if the adjudication of liability to a penalty under s. 17 were regarded as essentially the equivalent of a conviction for a criminal offence, then there would be infringement of several constitutional provisions—notably the requirement that an offence be defined by a written law (s. 37 (2)), the right to a fair trial by an impartial court (s. 37(3)), the presumption of innocence (s. 37(4)), the rule against double jeopardy (s. 37(8)), and possibly others. But an adjudication under s. 17 is not of such a nature. The Constitution does not prohibit laws which impose penalties. Nor does the Constitution say expressly or by implication that the only penalties which may be exacted by law are penalties imposed for the commission of criminal offences. Even if it is accepted that a penalty under s. 17 is imposed upon a leader as punishment, there is nothing in the Constitution which prohibits the imposition without trial of monetary penalties as a punishment for behaviour. Such penalties are well known to the law in other areas. For instance, the Chief Collector of Taxes has in effect the power to impose penalties for underestimating income without even giving the taxpayer a hearing: Income Tax Act 1951, s. 306 and s. 316. The Chief Collector of Customs has power to impose penalties after inquiry: Customs Act 1951, s. 253. Public servants may be punished for “disciplinary offences” in proceedings which do not guarantee the protection afforded in a trial for a criminal offence: Public Service (Interim Arrangements) Act 1973, Pt. VII. Medical practitioners and other professional persons can be subjected to penalties imposed by disciplinary tribunals for behaviour which does not amount to a criminal offence, and without the protection afforded by a trial. In Australia a penalty may be recovered for breach of an industrial award in proceedings which are regarded as civil and not criminal.

It does not advance the argument against Pt. IV of the Act to say that it involves the placing of criminal liability on one person for the acts and omissions of others. The extension of the criminal law into what is called, rightly or wrongly, strict or vicarious liability is widely recognized in other countries and I do not see why it should not be recognized here. Legislation involving occupational safety, public health, environmental protection and the like often attaches criminal liability to persons such as employers and occupiers of premises by virtue of which they are punished for the acts or omissions of others. The development of company law has led to directors being made prima facie liable in criminal law for the acts of others which do not in themselves necessarily constitute an offence: see for instance s. 556 of the Australian Companies Bill 1980. For over a hundred years such “status offences” have been regarded as involving “a class of acts which are not criminal in any real sense but are acts which in the public interest are prohibited under a penalty”: Maher v. Musson[cclxxii]³⁴ quoting Davies v. Harvey [cclxxiii]³⁵.

Sections 15 to 19 of the Inter-Group Fighting Act 1977 establish an inquisitorial procedure (in which no one can be compelled to appear or testify) which may result in group leaders being ordered to pay a monetary penalty. A leader should not incur such a liability unless the magistrate has observed the rules of natural justice. As to the existence incidence and content of the duty to observe the rules of natural justice, see Iambakey Okuk and The Independent State of Papua New Guinea v. Gerald Sidney Fallscheer [cclxxiv]³⁶. The minimum requirement is to act and to be seen to act fairly: s. 57(2) of the Constitution. Natural justice and the duty to act fairly do not necessarily cast an obligation on the tribunal to inform the person whose rights are affected of all the material alleged against him, and to allow him full right of cross-examination. What it has to do is to inform him of the nature of the case and give him the opportunity to answer. Those requirements may be met under the provisions of ss. 15 to 19 of the Act by the magistrate proceeding by way of notice to show cause. The scheme of Pt. IV of the Act does not itself otherwise contravene the principles of natural justice. A magistrate who conducts the enquiry under s. 15 is not disqualified for bias by reason of having previously convicted one of the leaders any more than a sentencing judge is disqualified for having found an offender guilty. Nor is the magistrate who imposes the penalty under s. 17 disqualified for bias by reason of having issued the notice to show cause any more than a magistrate who issues a summons on complaint is disqualified from determining the complaint. An enquiry of this nature does not amount to a trial for an offence and the imposition of a penalty does not amount to a conviction or sentence for a criminal offence. Sections 15 to 19 of the Act do not contravene Constitution s. 37.

Section 20 of the Act creates a criminal offence of failing to pay a penalty imposed under s. 17. A person charged with that offence is entitled to the full protection of the law which is afforded to all persons charged with criminal offences, including the protection of s. 37 of the Constitution. There is nothing in s. 20 itself which contravenes s. 37 of the Constitution.

The Constitution protects the liberty of the person subject to his or her liability to imprisonment only after due process of law. Part IV of the Inter-Group Fighting Act 1977 does not contravene those provisions of the Constitution which afford this protection.

I would answer the questions in the reference thus:

1.       No.

2.       No.

3.       No.

4.       No. The provisions of s. 20 of the Inter-Group Fighting Act 1977 are in accordance with s. 42(1)(b) of the Constitution.

In answer to all four questions the opinion of the Supreme Court is that ss. 16, 17 and 20 of the Inter-Group Fighting Act, 1977 are unconstitutional and invalid, and it is ordered that the matter be remitted to the National Court for determination accordingly.

Solicitor for the affirmative case: A. Amet, Public Solicitor.

Solicitor for the negative case: C. Maino, Principal Legal Adviser to the National Executive Council.

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ef="#_ednref239" name="_edn239" title="">[ccxxxix]Infra p. 152.

[ccxl]Infra p. 152.

[ccxli]Infra p. 153.

[ccxlii]Infra p. 153.

[ccxliii]Infra p. 154.

[ccxliv]Infra p. 152.

[ccxlv]Infra p. 152.

[ccxlvi]Infra p. 153.

[ccxlvii]Infra p. 153.

[ccxlviii]Infra p. 154.

[ccxlix]Infra p. 152.

[ccl]Infra p. 152.

[ccli]Infra p. 153.

[cclii]Infra p. 153.

[ccliii]Infra p. 154.

[ccliv]The Queen v. D’Eyncourt and Ryan [1888] UKLawRpKQB 61; (1888) 21 Q.B.D. 109 per Field, J. at p. 119.

[cclv][1954] 1 W.L.R. 463; 1 All E.R. 5.

[cclvi][1584] EngR 9; (1584) 3 Co. Rep. 7a and 7b.

[cclvii][1978] P.N.G.L.R. 421.

[cclviii][1980] P.N.G.L.R. 274.

[cclix][1971] Ch. 388.

[cclx][1967] 2 Q.B. 955.

[cclxi][1950])2 K.B. 410.

[cclxii](1933) 50 C.L.R. 228.

[cclxiii] [1960] 1 W.L.R. 223.

[cclxiv][1969] P. 54.

[cclxv][1960] 1 W.L.R. 697.

[cclxvi][1945] 2 All E.R. 371.

[cclxvii] (1935) 105 L.J.K.B. 125, at p. 130; 154 L.T. 47.

[cclxviii][1911] 104 L.T. Rep. 689; A.C. 179.

[cclxix]Final Report of the Constitutional Planning Committee 1974 (Pt. 1) at p. 5/1/7, par. 35.

[cclxx][1921] V.L.R. 229.

[cclxxi][1969] 2 N.S.W.R. 494.

[cclxxii](1934) 52 C.L.R. 100.

[cclxxiii](1874) L.R. 9 Q.B. 433.

[cclxxiv][1980] P.N.G.L.R. 274.