SC (SR) No 7 of 2014 & SC Refs No 1 and 2 of 2015; SC Ref No. 7 of 2014 Special Reference by the Attorney-General pursuant to Constitution, Section 19; SC Ref No. 1 of 2015 Reference by Justice Cannings pursuant to Section 18(2) of the Constitution. References concerning the Powers, Functions, Duties & Responsibilities of the Public Prosecutor & Leadership Tribunals Under Division III.2 of the Constitution & Organic Law on the Duties & Responsibilities of Leadership; SC Ref No. 2 of 2015 Reference by Justice Makail pursuant to Section 18(2) of the Constitution (2016) SC1534

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Kandakasi, Mogish, Kassman, Higgins, JJ
• Judgment Date: 01 September 2016
• Citation: (2016) SC1534
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1534

Full Title: SC (SR) No 7 of 2014 & SC Refs No 1 and 2 of 2015; SC Ref No. 7 of 2014 Special Reference by the Attorney-General pursuant to Constitution, Section 19; SC Ref No. 1 of 2015 Reference by Justice Cannings pursuant to Section 18(2) of the Constitution. References concerning the Powers, Functions, Duties & Responsibilities of the Public Prosecutor & Leadership Tribunals Under Division III.2 of the Constitution & Organic Law on the Duties & Responsibilities of Leadership; SC Ref No. 2 of 2015 Reference by Justice Makail pursuant to Section 18(2) of the Constitution (2016) SC1534

Supreme Court: Salika DCJ, Kandakasi, Mogish, Kassman, Higgins, JJ

Judgment Delivered: 1 September 2016

SC1534

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC (SR) NO. 7 OF 2014

& SC REFS NO. 1 AND 2 OF 2015

SC Ref No. 7 of 2014 Special Reference by the Attorney-General pursuant to Constitution, Section 19

SC Ref No. 1 of 2015 Reference by Justice Cannings pursuant to Section 18(2) of the Constitution. References concerning the Powers, Functions, Duties & Responsibilities of the Public Prosecutor & Leadership Tribunals Under Division III.2 of the Constitution & Organic Law on the Duties & Responsibilities of Leadership

SC Ref No. 2 of 2015 Reference by Justice Makail pursuant to Section 18(2) of the Constitution

Waigani: Salika, DCJ; Kandakasi, Mogish, Kassman, Higgins, JJ.

2016: 29th April; 1st September

CONSTITUTIONAL LAW – Power of Ombudsman Commission to issue directions – whether to persons or entities not subject to the Leadership Code – power to direct leaders – whether extends ordering breach of contract by the State – whether leaders have the right to be heard before directions are given

CONSTITUTIONAL LAW – Ombudsman Commission required to give notice of proposed referral to Public Prosecutor – right of leader to be heard on question of referral

CONSTITUTIONAL LAW – Public Prosecutor to decide to refer allegations to a Leadership Tribunal – Power to amend allegations – Failure to provide copies to leader of reasons for referral – Power to add new allegations – Role of Chief Justice

Cases Cited:

Albert Karo v. Ombudsman Commission of PNG [1995] PNGLR 547.

Application by John Mua Nilkare (1997) SC536.

CL Toulik v. Andy Kuek (2006) SC876.

Chief Collector of Taxes v. Bougainville Copper Limited; Bougainville Copper Limited v. Chief Collector of Taxes (2007) SC853.

Constitution s19 and In the Matter of a Reference by the Public Prosecutor [1992] PNGLR 336; [1993] 2 Law Reports of the Commonwealth 114.

Chief Sir Michael Thomas Somare v. Chronox Manek, (2011) SC1118

Danny Kakaraya v. The Ombudsman Commission & The State (2003) N2478.

Dr Allan Marat v. Hanjung Power Ltd (2014) SC1357.

Diro v. Ombudsman Commission of Papua New Guinea (1991) N1385.

Electoral Commission of PNG v. Simon J Solo (2015) SC1467.

Eremas Wartoto v. The State (2015) SC1411.

In re Andrew Kumbakor [2003] N2363.

Inakambi Singorom v. Klaut [1985] PNGLR 238.

In re Constitutional (Amendment) Law 2008, Reference by the Ombudsman Commission of Papua New Guinea (2013) SC1302.

Jimmy Mostata Maladina v. Posain Poloh (2004) N2568

John Kua Nilkare v. Ombudsman Commission (1996) SC498.

Mairi v. Tololo [1976] PNGLR 125

Mision Asiki v. Manasupe Zurenuoc (2005) SC797.

Morobe Provincial Executive Council (2002) SC693

Motu Koita Assembly v. National Capital District Commission (2011) N4429.

Mondale Peali Naiya Ass Inc v. William Duma (2013) SC1220;

MRDC v. The Ombudsman Commission [2008] PNGLR 443.

Micah v. Lua [2015] PGSC 40.

National Capital Ltd v. Loi Bakanio (2014) SC1392.

New Britain Palm Oil Limited v. Vitus Sukuramu (2008) SC948.

Ombudsman Commission v. Peter Yama (2004) SC747.

Peter Aigilo v. The Independent State of Papua New Guinea (2001) N2102.

PLAR No. 1 of 1980 [1980] PNGLR 326.

Re The Leadership Code: In the Matter of a Special Reference pursuant to Grand.

Re The Leadership Code: In the Matter of a Special Reference pursuant to Grand.

Rimbink Pato v. Anthony Manjin [1999] PNGLR 6.

Re Raho Hitolo, Member of the Ombudsman Commission (2004) N2745.

Re Tribunal; Re the Hon James Eki Mopio [1981] PNGLR 416

Somare, In re reference by the Public Prosecutor [2011] PGLT 2 and [2011] PGLTI

Re Referral (2008) SC1011.

Sakawar Kasieng v. Andrew Baigry (2004) N2562.

SCR Nos 12 and 12A of 1984; Joe Parakas v. The State [1985] PNGLR 224.

Severinus Ampaoi v. Bougainville Copper Ltd (2012) SC1166

Sir Michael T Somare & Ors v. Ila Geno & Ors and the Ombudsman Commission (2007) N3139.

See Reference by the Public Prosecutor pursuant to s27(2)(E) of the Organic Law on Duties and Responsibilities of Leadership - in the matter of Hon Sir Moi Avei (2007) N4633.

SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the.

Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011.

The State v. Downer Constructions (PNG) Limited (2009) SC979.

The Mineral Resources Development Company Ltd v. The Ombudsman Commission of PNG [2008] PNGLR 443.

The Independent State of Papua New Guinea v. Barclay Brothers (PNG) Ltd (2001) N2090.

The State v. Achilles James Peni (2013) N5930.

Tkatchenko v. Dessy Magaru (2000) N1956.

Zachary Gelu v. Sir Michael Somare MP (2008) N3526.

Overseas cases cited:

A Solicitor v. Law Society (NSW) [2004] 216CLR 253.

Briginshaw v. Briginshaw (1938) 60 CLR 336

Ex parte Cousens; Re Blacket and Nor (1947) 47 SR (NSW) 145.

Hardcastle v. Commissioner of Australian Federal Police (1984) 53 ALR 595.

Legal Practitioner v. The Law Society of the ACT [2015] ACTCA 20.

Moran v. Lloyds (1981) 1 Lloyds Reports 423.

NSW Bar Association v. Cummins (2001) 52 NSW LR 279.

R v. White; ex parte Brynes (1963) 109 CLR 665.

Sankey v. Whitlam [1978] 142 CLR1.

Counsel:

Mr R J Webb SC with Mr A Manase ,for Attorney General, Hon. Ano Pala, MP

Mr M Varitimos QC with Mr P Tabuchi, for the Prime Minister, Hon. Peter O’Neill, CMG

Ms T Twivey, for Secretary Finance, Dairi Vele

Mr V Narokobi with Mr M Efi, for Ombudsman Commission

Mr N Kubak with G Kubak, for the Public Prosecutor

JUDGMENT

1st September, 2016

1. SALIKA, DCJ: I have had the benefit of reading the draft judgments of my brothers Kandakasi and Higgins JJ. and I agree with their respective judgments for the reasons each have given. I wish however, to make a few comments.

2. My brothers have set out the factual background of the questions referred in detail and I need not repeat them. They have also set out the referred questions and again I do not wish to restate them. I will therefore go straight to my comments, starting with the Constitutional Provisions.

3. The primary source of the powers and functions of the Ombudsman Commission is in Section 27 of the Constitution. It provides:

“27. RESPONSIBILITIES OF OFFICE.

(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not–

(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or

(b) to demean his office or position; or

(c) to allow his public or official integrity, or his personal integrity, to be called into question; or

(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).

(3) It is the further duty of a person to whom this Division applies–

(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and

(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.

(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.

(5) A person to whom this Division applies who–

(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; o

(b)...