Public Employees Association of Papua New Guinea v Public Services Commission [1983] PNGLR 206

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J:
• Judgment Date: 28 June 1983
• Citation: [1983] PNGLR 206
• Court: Supreme Court
• Year: 1983
• Judgement Number: SC253

Full Title: Public Employees Association of Papua New Guinea v Public Services Commission [1983] PNGLR 206

Supreme Court: Kidu CJ, Pratt J, Bredmeyer J

Judgment Delivered: 28 June 1983

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PUBLIC EMPLOYEES ASSOCIATION OF PAPUA NEW GUINEA

V

PUBLIC SERVICE COMMISSION

Waigani

Kidu CJ Pratt Bredmeyer JJ

26 April 1983

28 June 1983

STATE SERVICES — Public servants — Strike action — Breach of Public Service Act — Nature of breach — Disciplinary offence only — Not criminal offence — Public Service Act, (Ch. No. 67), s. 85 — Constitution s. 37 (3).Infra. 208.1

CRIMINAL LAW — "Criminal offence" — Distinguished from disciplinary offences — Applicability of Constitution s. 37 (3).Infra. 208.2

Section 85 (1) and (2) of the Public Service Act (Ch. No. 67), provide that an officer who takes part in specified strike action is deemed to have committed "an illegal action against the peace and good order of the country" and may if adjudged guilty thereof after investigation and hearing by the Commission be summarily dismissed.

Held

(1) The "offence" created by s. 85 (1) of the Public Service Act is a disciplinary offence and not a criminal offence.

(2) For an "offence" to be treated as a criminal offence there must exist (a) an act against the state or society which (b) semble, leads to criminal proceedings, and (c) which is subject to a penalty by way of fine or imprisonment.

(3) Section 37 (3) of the Constitution affords protection to criminal offences only and does not extend to the procedure and punishment for disciplinary offences.

(4) (Per Bredmeyer J) Section 85 of the Public Service Act is constitutionally valid.

Cases Cited

Employers Federation of Papua New Guinea, The v. Papua New Guinea Waterside

Workers and Seaman's Union and Lawrence Titimur, Tony Hartwell and Didulosi

Boshen (Unreported National Court judgment N393 dated 11 October 1982).

Iambakey Okuk v. Fallscheer [1980] P.N.G.L.R. 274.

R. v. Army Council, Ex parte Sandford [1940] 1 K.B. 719.

S.C.R. No. 1 of 1981; Re Inter-Group Fighting Act 1977 [1981] P.N.G.L.R. 151.

S.C.R. No. 1A of 1981; Re Motor Traffic Act [1982] P.N.G.L.R. 122.

Sudi Yaku v. Commissioner of Police, Ex parte The State [1980] P.N.G.L.R. 27.

Appeal

This was an appeal from a decision of Kapi DCJ refusing to grant interim injunctions to restrain the Public Service Commission from dismissing or otherwise dealing with certain public servants who had allegedly engaged in strike action contrary to the provisions of the Public Service Act, (Ch. No. 67).

Counsel

I. Molloy, for the appellant.

O. Amos, for the respondent.

Cur. adv. vult.

28 June 1983

KIDU CJ PRATT J: This appeal arises from a dispute which led the appellant Association to issue a writ against the Commission to restrain it from dismissing or otherwise penalizing certain public servants who had allegedly engaged in strike action. Following service of the writ, the Association unsuccessfully applied to the Deputy Chief Justice for an interim injunction to restrain the Commission from carrying out the dismissals pending final resolution of the matter. In the view of the learned Deputy, the applicants failed "to show that a serious question has been raised for decision". From that decision the Association appealed to this Court on two grounds:

" (1) That the National Court erred in that it went beyond deciding whether there was a serious question for decision and instead expressed an opinion on the merits and purported to decide the issue."

We say at the outset we do not consider this ground was or could have been strongly pursued by the appellant and we frankly see no merit in it. His Honour was very clearly aware of the guiding principles which governed his reasoning process on the granting or refusal to grant an interim injunction. Indeed he referred to an earlier judgment of his own, Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seaman's Union and Lawrence Titimur, Tony Hartwell and Didulosi Boshen (unreported judgment No. N393 of 11 October 1982 Kapi DCJ), where he had carefully collated the overseas and local authorities expounding the principles to be observed in granting or refusing such an application. It is not necessary for the purpose of this case to traverse the same ground. It is true that his Honour went into some detail concerning the merits of the matter, but no more in our view than was necessary to show first, what the issues were, and second, that he appreciated those issues and came to cerain conclusions in the light of established principle. We do not think that any decision was made "on the merits".

It seems to us that a much more concerted attack was mounted against his Honour's decision under the second ground of appeal. The appellant claims that an error was made in deciding there was "no serious question raised" for three separate but inter-related reasons:

" (a) in holding that the 'illegal action against the peace and good order of the country' created by s. 85 of the Public Service Act was a disciplinary offence;

(b) in holding that the said illegal action being a disciplinary offence could not also be an offence within the meaning of s. 37 (3) of the Constitution;

(c) in holding that the constitutionality of s. 85 of the Act did not arise."

Section 85 (1) and (2) of the Public Service Act, (Ch. No. 67), has appeared in several previous Public Service Acts and reads as follows:

" (1) An officer who aids, abets, foments or takes part in a strike action that:

(a) interferes with or prevents; or

(b) is intended or calculated to interfere with or prevent, the carrying on of any part of the public services or utilities of the country, or who attempts to do so, shall be deemed to have committed an illegal action against the peace and good order of the country.

(2) Any officer adjudged by the Commission, after investigation and hearing, to be guilty of any action referred to in Subsection (1) may be summarily dismissed by the Commission from the Public Service, without regard to the procedure prescribed in this Act for dealing with disciplinary offences."

When the submission is reduced to its basics, it really amounts to this: because the section is expressed to deal with "an illegal action against the peace and good order of the country", it therefore amounts to an offence against the State or a crime. This being so, the argument concludes, such strike action was either a criminal offence in toto or alternatively in addition to being some sort of disciplinary offence under the Public Service Act, was also a criminal offence, and therefore was covered by s. 37 (3) of the Constitution. This section reads:

"A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court."

The same argument of course had been placed before the learned trial judge and at the outset, his Honour took the view that s. 37 (3) of the Constitution did not apply to disciplinary offences. As support for such approach his Honour referred to S.C.R. No. 1 of 1981; Re Inter-Group Fighting Act, 1977 [1981] P.N.G.L.R. 151 and S.C.R. No. 1A of 1981; Re Motor Traffic Act [1982] P.N.G.L.R. 122. With respect, his Honour also correctly extrapolated from the authority of Sudi Yaku v Commissioner of Police, Ex parte The State [1980] PNGLR 27, the ratio that disciplinary offences are something quite distinct from crimes.

Again we agree with the approach taken by the learned judge of first instance in placing emphasis on the fact that s. 85 occurs under a part of the Act headed "Disciplinary Offences, Board of Inquiry and Appeals". The very first section of this part states that an officer who "commits a breach of this Act ... is guilty of a disciplinary offence and is liable to be dealt with and punished under this Part". One would therefore be forgiven in assuming that the various sections which occur under Pt VII are all involved with disciplinary matters or the disciplinary consequences flowing from a public servant's conviction for a criminal offence (as in s. 83). Whilst it is true that under s. 26 of the Interpretation Act headnotes, marginal notes, and footnotes do not form part of the provisions in an Act, it is therein specifically stated that chapters, parts, divisions and subdivisions shall be taken as parts of the Act. In this instance, I think this adds considerable weight to the fact that s. 85 though contained n div. 6 headed "Miscellaneous", is nevertheless still a disciplinary offence. We do not agree with the appellant's submissions that his Honour placed too much weight on the "Part heading".

Mr Molloy, however, presses most strongly his submission that any conduct which amounts to an act against the "peace and good order of the country" must of its very nature be on all fours with a crime against the State, and certainly an "offence" within the meaning of s. 37 (3) of the...