In the Matter of a Board of Inquiry appointed under the provisions of s82(2) of the Public Service (Interim Arrangements) Act 1973; and In the Matter of Certain Alleged Disciplinary Offences in Office by Mr Phillip Bouraga [1982] PNGLR 178

• Jurisdiction: Papua New Guinea
• Judge: Pratt J:
• Judgment Date: 23 March 1982
• Citation: [1982] PNGLR 178
• Docket Number: Supreme Court Reference No 1 of 1982
• Court: Supreme Court
• Year: 1982
• Judgement Number: SC225

Full Title: Supreme Court Reference No 1 of 1982; In the Matter of a Board of Inquiry appointed under the provisions of s82(2) of the Public Service (Interim Arrangements) Act 1973; and In the Matter of Certain Alleged Disciplinary Offences in Office by Mr Phillip Bouraga [1982] PNGLR 178

Supreme Court: Kidu CJ, Kapi J, Pratt J

Judgment Delivered: 23 March 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 1 OF 1982 IN THE MATTER OF A BOARD OF INQUIRY APPOINTED UNDER THE PROVISIONS OF S. 82 (2) OF THE PUBLIC SERVICE (INTERIM ARRANGEMENTS) ACT 1973

AND IN THE MATTER OF CERTAIN ALLEGED DISCIPLINARY OFFENCES IN OFFICE BY MR. PHILLIP BOURAGA

Waigani

Kidu CJ Kapi Pratt JJ

26 February 1982

10 March 1982

23 March 1982

STATE SERVICES — Public Services Commission — Powers of — Disciplinary charges against Head of Department — Constitution, s. 193, Sch. 1.10 (4) — Public Service (Interim Arrangements) Act 1973, (now Public Service Act), ss. 76, 83.

STATE SERVICES — Ministers — Departmental Heads — Powers and duties of — Disciplining of Departmental Heads — Constitution, ss. 148, 193, 196Infra pp. 189, 201.1.

POLICE — Minister of Police — Control over Commissioner of Police and/or Secretary of Police — Constitution, s. 196Infra pp. 189, 201.2.

WORDS AND PHRASES — "Subject to control of"- Words of limitation — Constitution, s. 196Infra pp. 189, 201.3.

The Public Services Commission does not have power to charge the Commissioner of Police and/or the Secretary for Police with disciplinary charges under s. 76 and s. 83 of the Public Service (Interim Arrangements) Act 1973 now the Public Service Act.

A Head of a Department appointed under s. 193 of the Constitution is subject to discipline by the Head of State acting on advice, i.e. the Head of a Department may only be disciplined under Sch. 1.10 (4) of the Constitution.

The Minister of Police does not have the power of direction or control over the Commissioner of Police and/or the Secretary for Police such that he may lawfully issue orders requiring advice, briefings, and information.

However, (per Pratt J.) a Minister does have the right to request and to be furnished with information; (per Kidu C.J.) it is the obligation and responsibility of civil servants to furnish advice to their Ministers.

The Minister of Police does not have power to issue orders requiring advice, briefings and information under s. 196 of the Constitution unless those orders come from the National Executive Council.

(Per Kapi J.): The words "subject to control of" in s. 196 (1) of the Constitution are words of limitation and imply that a power or function is given to a body and that power is limited by the body to which it is made subject.

Smith v. London Transport Executive [1951] A.C. 555 at p. 569 and p. 577.

Clark (C. & J.) v. Inland Revenue Commissioners [1973] 2 All E.R. 513 at p. 520 adopted and applied.

Discussion of powers and duties of Ministers, Heads of Departments and civil servants.

Cases Cited

Clark (C. & J.) v. Inland Revenue Commissioners [1973] 2 All E.R. 513.

Michael Ayakamp v. Guringng B. [1981] P.N.G.L.R. 531.

Smith v. London Transport Executive [1951] A.C. 555; 1 All E.R. 667.

Reference

This was a reference by a Board of Inquiry set up under s. 82 (2) of the Public Service (Interim Arrangements) Act 1973, to investigate the truth of disciplinary charges made against the Commissioner of Police by the Public Services Commission. The reference was made under s. 18 of the Constitution and the questions referred are set out at pp. 180-181 of the reasons for judgment of Kidu C.J.

Counsel

B. Emos, to argue the affirmative case.

P. Donigi, to argue the negative case.

C. Maino-Aoae, intervening for the Principal Legal Adviser.

Cur. adv. vult.

23 March 1982

KIDU CJ: The Public Services Commission, on 7th December, 1981, charged Mr. Phillip Bouraga with the commission of offences within the meaning of s. 76 of the Public Service (Interim Arrangements) Act 1973.

These charges read:

"First Count:

The said phillip bouraga on or about 29th January 1981 did wilfully disobey and disregard a lawful order made by the Minister of Police, being a person having authority to make such order, in that the Minister, in writing, did ask the aforesaid phillip bouraga to advise on the overall priorities for funding for the next year and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76 (c) of the said Act.

Second Count:

The said phillip bouraga on or about 4th February 1981 did wilfully disobey and disregard a lawful order made by the Minister for Police, being a person having authority to make such order, in that the Minister, in writing, did ask phillip bouraga to brief him on the Highlands Law and Order situation and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76 (c) of the said Act.

Third Count:

The said phillip bouraga on or about 18th August 1981 did wilfully disobey and disregard a lawful order made by the Minister for Police, being a person having authority to make such order, in that the Minister, in writing, did ask the aforesaid phillip bouraga to provide more detailed information on certain disciplinary charges and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76 (c) of the said Act.

Fourth Count:

The said phillip bouraga on or about 26th November 1981 did wilfully disobey and disregard a lawful order made by the Minister of Police, being a person having authority to make such order, in that the Minister did request the aforesaid phillip bouraga to brief him on the killing of a member of the Police Force and allegations of a demonstration and strike by members of the Police Force and that phillip bouraga refused to do so and in so doing did commit a disciplinary offence under section 76 (c) of the said Act."

A board of inquiry was set up to investigate the truth or otherwise of these charges. After it completed hearing evidence, but before making its report to the Public Services Commission the board of inquiry referred to this Court three questions relating to the interpretation and application of certain provisions of Div. 4 of Pt. VI and Div. 4 of Pt. VII of the Constitution, and Sch. 1.10 (4) of the Constitution.

The questions referred to the court are framed thus:

"1. Whereas we consider that questions have arisen involving the interpretation of ss. 192, 193, 194, 198 and Sch. 1.10 (4) of the Constitution, we hereby refer the following question to the Supreme Court:

QUESTION I

Does the Public Services Commission have power to charge the Commissioner of Police and/or the Secretary for Police under the Public Service (Interim Arrangements) Act 1973 (now the Public Service Act Ch. No. 67) with the following disciplinary charges under ss. 76 and 83 of the said Act, namely:

'First Count That the said phillip bouraga on or about the 29th day of January 1981 did wilfully disobey and disregard a lawful order made by the Minister of Police being a person having authority to make such order, in that the Minister, in writing, did ask the aforesaid phillip bouraga to advise on the overall priorities for funding for the next year and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76 (c) of the said Act.

Second Count And also that the said phillip bouraga on or about the 4th day of February 1981 did wilfully disobey and disregard a lawful order made by the Minister of Police, being a person having authority to make such order, in that the Minister, in writing, did ask phillip bouraga to brief him on the Highlands Law and Order situation and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76 (c) of the said Act.

Third Count And also that the said phillip bouraga on or about the 18th day of August 1980 did wilfully disobey and disregard a lawful order made by the Minister for Police, being a person having authority to make such order, in that the Minister, in writing, did ask the aforesaid phillip bouraga to provide more detailed information on certain disciplinary charges and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76 (c) of the said Act.

Fourth Count And also that the said phillip bouraga on or about the 26th day of November 1981, did wilfully disobey and disregard a lawful order made by the Minister for Police, being a person having authority to make such order, in that the Minister did request the aforesaid phillip bouraga to brief him on the killing of a member of the Police Force and allegations of a demonstration and strike by members of the Police Force and that phillip bouraga refused to do so, and in so doing did commit a disciplinary offence under section 76 (c) of the said Act.'

And does the board of inquiry appointed under the provisions of the said...