Constitutional Reference No 1 of 1978; Re Ombudsman Commission Investigations of the Public Solicitor

• Jurisdiction: Papua New Guinea
• Judge: Pritchard J:
• Judgment Date: 06 October 1978
• Citation: [1978] PNGLR 345
• Court: Supreme Court
• Year: 1978
• Judgement Number: SC136

Supreme Court: Prentice CJ, Pritchard J, Wilson J

Judgment Delivered: 6 October 1978

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CONSTITUTIONAL REFERENCE NO. 1 OF 1978 IN A MATTER OF A REFERENCE BY THE OMBUDSMAN COMMISSION PURSUANT TO S. 19 OF THE CONSTITUTION.

Waigani

Prentice CJ Pritchard J Wilson J

1-2 May 1978

6 October 1978

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Ombudsman — Public Solicitor — Reference under s. 19 of the Constitution — Power to investigate conduct of Public Solicitor outside Leadership Code — Constitution ss. 99, 176, 188, 219Infra p. 347.1.

CONSTITUTIONAL LAW — Public Solicitor — Whether a "State Service" — Whether within description "other governmental body" — Constitution s. 219Infra p. 347.2 Sch. 1.2.

CONSTITUTIONAL LAW — Public Solicitor — Employees of Public Solicitor — Whether "officers or employees of a governmental body" — Constitution s. 219Infra p. 347.3 Sch. 1.2.

STATE SERVICES — Ombudsman Commission — Powers of — Power to investigate "conduct" of Public Solicitor and employees — Powers of investigation outside Leadership Code — Constitution s. 219Infra p. 347.4.

The Public Solicitor is not a "State Service" whose conduct the Ombudsman Commission established under s. 217 of the Constitution of the Independent State of Papua New Guinea has jurisdiction to investigate by reason of s. 219 (1) (a) (f) of the Constitution.

The Public Solicitor does not fall within the description "other governmental body" whose conduct the Ombudsman Commission has jurisdiction to investigate by reason of s. 219 (1) (a) (iii) of the Constitution.

The powers of investigation of the Ombudsman Commission to investigate "conduct" under s. 219 of the Constitution are limited to investigation of conduct of an administrative kind.

The Ombudsman Commission does not have jurisdiction under s. 219 of the Constitution, (other than in relationship to a Leadership Code matter involving the Public Solicitor's personal conduct) to investigate any conduct of the Public Solicitor or an officer or employee of the Public Solicitor's Office, on its own initiative or on complaint by a person affected.

(Per Pritchard dissenting). The Ombudsman Commission has jurisdiction to investigate any conduct of the Public Solicitor or any officer or employee of the Public Solicitor's Office, on complaint by a person affected, assuming the person affected is the Public Solicitor's client, but in any other case only if the client has waived legal professional privilege, or if unable to do so due to death or physical or mental illness, subject to the Ombudsman Commission being bound by the principles of such privilege.

The Ombudsman Commission can require the Public Solicitor to produce to the Ombudsman Commission any documents, relating to a matter under the Leadership Code relating to the Public Solicitor's personal conduct, which are in the possession or control of the Public Solicitor.

(Per Prentice CJ and Wilson J) The Ombudsman Commission cannot require the Public Solicitor to produce to the Ombudsman Commission any documents, relating to any matter being an investigation of the conduct of the Public Solicitor or an officer or employee of the Public Solicitor's Office, whether on its own initiative or on complaint by a person affected, that are in the possession or control of the Public Solicitor.

In any other matter in which the Ombudsman Commission has jurisdiction to investigate, the Ombudsman Commission can require the Public Solicitor to produce to the Ombudsman Commission any documents relating to the matter being investigated by the Ombudsman Commission that are in the possession or control of the Public Solicitor, but subject to the Public Solicitor's usual duty as a legal practitioner to claim legal professional privilege, which privilege may be waived by the client.

Reference

This was a reference by the Ombudsman Commission, established pursuant to s. 217 of the Constitution of the Independent State of Papua New Guinea, pursuant to s. 19 of the Constitution, which empowers the Supreme Court to "give its opinion on any question relating to the interpretation or application of any provision of a Constitutional law ..."

The questions referred by the Ombudsman Commission were:

"Does the Ombudsman Commission have jurisdiction:

(a) On its own initiative and/or

(b) On complaint by a person affected, to investigate any conduct of the Public Solicitor or an officer or employee of the Public Solicitor's Office?"

"Can the Ombudsman Commission require the Public Solicitor to produce to the Ombudsman Commission any documents, relating to any matter being investigated by the Ombudsman Commission that are in the possession or control of the Public Solicitor."

Counsel

S. G. Cory, for the applicant (The Ombudsman Commission).

N. H. Pratt and O. Emos, for the respondent (the Public Solicitor).

Cur. adv. vult.

6 October 1978

PRENTICE CJ: The Ombudsman Commission, by a Reference dated 1st February, 1978 under s. 19 of the Constitution, has referred for decision by this Court the following questions:

(1) "Does the Ombudsman Commission have jurisdiction

(a) On its own initiative and/or

(b) On complaint by a person affected to investigate any conduct of the Public Solicitor or an officer or employee of the Public Solicitor's Office?"

(2) Can the Ombudsman Commission require the Public Solicitor to produce to the Ombudsman Commission any documents, relating to any matter being investigated by the Ombudsman Commission that are in the possession or control of the Public Solicitor."

The Court is required (s. 19 (1) Constitution), in answering the above questions, to give its opinion relating to the interpretation of certain sections of the Constitution. The facts giving rise to the reference are not before the Court, nor does the Court require to know them.

In seeking affirmative answers the Ombudsman Commission (hereinafter referred to as "the Ombudsman") relies upon s. 219 (1) (a) (i) or (ii) of the Constitution. It is conceded that ss. 219 (a), (3), (4), (5) and (6) and sub-ss. (b), (c), (d) and (e), all of s. 219 (1), do not apply. The portion of the section that is under consideration is therefore (s. 219 (1) (a) ) as follows:

"Subject to this Section and to any Organic Law made for the purposes of Subsection (7), the functions of the Ombudsman Commission are:

(a) to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of:

(i) any state service or a provincial service, or a member of any such service; or

(ii) any other governmental body, or an officer or employee of a governmental body ...

specified by or under an Organic Law in the exercise of a power or function vested in it or him by law in cases when the conduct is or may be wrong, taking into account, amongst other things, the National Goals and Directive Principles, the Basic Rights and the Basic Social Obligations; ...."

The definition of "wrongness of conduct" appears in s. 219 (2) and "Conduct" in s. 219 (8).

Section 219 is to be construed no doubt in association with s. 218 which sets out the purposes of the Ombudsman as being:

(a) to ensure that all governmental bodies are responsible to the needs and aspirations of the People; and

(b) to help in the improvement of the work of governmental bodies and the elimination of unfairness and discrimination by them; and

(c) to help in the elimination of unfair or otherwise defective legislation and practices affecting or administered by governmental bodies; and

(d) to supervise the enforcement of Division III.2 (leadership code). (The emphasis is mine.)

Among the factors which may render conduct wrong (s. 219 (2) ), are considerations of whether it be unreasonable or unjust (b), or of whether reasons were not given when they should have been (c).

The "specification" by Organic Law relied upon, is that appearing in s. 13 (a) and (b) of the Organic Law on the Ombudsman Commission.

This reads as follows:

"For the purposes of Section 219 (1) (a) (functions of the Commission) of the Constitution the functions of the Commission, in addition to the functions specified in s. 219 (1) (b), (c), (d) and (e) (functions of the Commission) of the Constitution are to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of:

(a) any State Service or a member of any State Service; or

(b) any governmental body, or an officer or employee of a governmental body; ..."

It will be seen that the words of s. 13 of the Organic Law reproduce those of s. 219 (1) (a) (i) and (ii).

Is the Public Solicitor a "State Service"? Are legal officers employed in the Public Service working in the Public Solicitor's Office members of a State Service?

The Constitution itself (s. 188), establishes "the National Public Service" as a "State Service"; but by s. 176 (1), establishes the "office of Public Solicitor". It is contended that...