Bougainville Copper Foundation v The Minister for Trade and Industry The Honourable Mr Galeva Kwarara and The National Investment and Development Authority (NIDA) [1988–89] PNGLR 110

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [1988–89] PNGLR 110
• Date: 31 March 1989
• Year: 1989

Full Title: Bougainville Copper Foundation v The Minister for Trade and Industry The Honourable Mr Galeva Kwarara and The National Investment and Development Authority (NIDA) [1988–89] PNGLR 110

National Court: Bredmeyer J

Judgment Delivered: 31 March 1989

1 Administrative law—Interpretation Act—implied power to revoke applies to the s7 National Investment and Development Act—the power to revoke must be exercised in the same manner and subject to the same conditions as the power to grant

STATUTES—Interpretation Act—Statutory powers—Exercise of—No power to revoke, alter or vary—Power to grant exemption—No power to revoke grant of exemption—Power deriving from Interpretation Act—Power exercisable in same manner as power to grant—National Investment and Development Act (Ch120), s7—Interpretation Act (Ch2), s35.

ADMINISTRATIVE LAW—Judicial review of administrative acts—Natural justice—Revocation of statutory licence or exemption—Scope of power to revoke—Revocation affecting livelihood—Duty to give prior notice, grounds for and opportunity to be heard—Minister acting on report of departmental officer—Revocation of statutory exemption to foreign enterprise—Rules of natural justice breached—National Investment and Development Act (Ch120), s7.

The National Investment and Development Act (Ch120), s7, empowers the relevant Minister to exempt a foreign enterprise from the operation of specified provisions of that Act "after receiving a report from the National Investment and Development Authority" and "by notice in the National Gazette". No provision is made for revoking exemptions so made.

The Interpretation Act (Ch2), s35, provides:

"Where a statutory provision confers a power to make an instrument or decision (other than a decision of a court), the power includes power, exercisable in the same manner and subject to the same conditions (if any), to alter the instrument or decision."

The Minister, acting on the report of a departmental officer, authorised the publication of a notice of revocation in the National Gazette of an exemption previously given to the Bougainville Copper Foundation.

On an application for judicial review of the decision of the Minister to revoke the exemption on the grounds that the notice of revocation was ultra vires and/or made in breach of the rules of natural justice,

Held:

(1) The general power of revocation contained in s35 of the Interpretation Act applied to s7 of the National Investment and Development Act.

(2) Accordingly, the Minister had power to revoke, alter or vary the exemption granted under s7 of the National Investment and Development Act; such power to be exercised in the same manner and subject to the same conditions as the granting of the exemption, that is, on receipt of a report from the National Investment and Development Authority and by notice in the National Gazette.

(3) In the circumstances, the Minister had not exercised the power of revocation according to its terms by acting on the report of a departmental officer and not of the National Investment and Development Authority.

(4) The power to revoke an exemption granted under s7 of the National Investment and Development Act, was a decision which directly affected personal property rights including the means of livelihood or ability to carry on business and the Minister or his investigating officer was required to observe the rules of natural justice, to the extent at least of providing the exemption holder with prior notice of the nature of the case against him and a fair opportunity to be heard.

R v Barnsley Metropolitan Borough Council; Ex parte Hook [1976] 3 All ER 452; Selvarajan v Race Relations Board [1976] 1 All ER 12 at 19; Public Disclosure Commission v Isaacs [1989] 1 All ER 137 at 142; Wiseman v Borneman [1971] AC 297 and Re Pergamon Press Ltd [1970] 3 All ER 535, considered and applied.

(5) In the circumstances, there had been a breach of natural justice in failing to disclose the evidence or facts upon which the recommendation for revocation of exemption was to be granted and in failing to provide an opportunity to contravert those facts which vitiated the revocation of the exemption.

Cases Cited

Pergamon Press Ltd, Re [1970] 3 WLR 792; [1970] 3 All ER 535.

Public Disclosure Commission v Isaacs [1989] 1 All ER 137.

R v Barnsley Metropolitan Borough Council; Ex parte Hook [1976] 1 WLR 1052; [1976] 3 All ER 452.

Selvarajan v Race Relations Board [1975] 1 WLR 1686; [1976] 1 All ER 12.

Wattle Park Pty Ltd v Commissioner of Highways (1973) 6 SASR 69.

Wiseman v Borneman [1967] 3 WLR 1372; [1967] 3 All ER 1045.

Wiseman v Borneman [1971] AC 297.

Judicial Review

This was an application for judicial review to quash a decision made by the Minister for Trade and Industry revoking an exemption from parts of the National Investment and Development Act (Ch120) previously granted to the plaintiff Foundation. Leave to apply for judicial review had previously been granted.

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Bredmeyer J: Bougainville...