Papua New Guinea Law Reports - 1984
[1984] PNGLR 212
SC276
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SUPREME COURT REFERENCE NO. 1 OF 1984 IN THE MATTER OF A REFERENCE UNDER S. 18(2) OF THE CONSTITUTION AND IN THE MATTER OF MOROBE PROVINCIAL GOVERNMENT
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND MICHAEL T SOMARE
Waigani
Kidu CJ Kapi DCJ McDermott J
23-24 May 1984
2 August 1984
STATE SERVICES - Provincial government - Assignment of members of National Public Service to provincial governments - Control of assigned members - Nature of office - Office outside National Public Service - Limitation on notice of services - Organic Law on Provincial Government, s. 50 - Constitution, ss 191, 192, 194.
STATE SERVICES - Provincial government - Assignment of members of National Public Service to provincial governments - Exercise of powers of Departmental Head - Limitation on carrying out functions of provincial government - Mode of appointment - Appointee outside National Public Service - Organic Law on Provincial Government, s. 50 - Constitution, s. 193 - Public Service Act (Ch. No. 67), s. 57.
STATE SERVICES - Provincial government - Assignment of members of National Public Service to provincial governments - Appointment by Prime Minister - On “recommendation” of provincial government - After “consultation” with Public Services Commission - Organic Law on Provincial Governments, s. 50.
Under the Constitution, s. 190, there is established a Public Services Commission the functions of which as prescribed by s. 191 include the management and control of the National Public Service and matters in relation to the provincial services ... as are prescribed by Constitutional Laws or an Act of Parliament. The Commission is, under s. 192, responsible only to the National Executive Council except in respect of personnel matters in respect of which “it shall comply with any general directions as to policy from the Head of State, acting in accordance with the advice of the National Executive Council”. “Personnel matters” are defined in s. 194 as meaning “decisions and other service matters concerning an individual whether in relation to his appointment, promotion, demotion, transfer ...”. Section 193 prescribes the method of appointment to certain offices.
The Organic Law on Provincial Government s. 50, provides:
“(1)    The Prime Minister, on the recommendation of the provincial government made after consultation with the Public Services Commission, may, by notice in the National Gazette, appoint a member of the National Public Service to act for the purposes of this section in relation to a province ...
(3)      The person appointed under subs. (1) shall, in relation to:
(a)      members of the National Public Service assigned to a provincial government under s. 49;
and
(b)      offices or proposed offices occupied or intended to be occupied by such officers,
be deemed, for the purposes of the National Public Service Act, to be the Departmental Head.
(4)      To the extent to which in the exercise and performance of his powers, functions, duties and responsibilities a Department Head may be, under the National Public Service Act, subject to the supervision and control of any person or authority, the person appointed under subs. (1) is subject to the supervision and control of a Committee of Management to be appointed, under a provincial law, by the provincial executive.”
Held
(1)      A person appointed under the Organic Law on Provincial Government, s. 50, who is subject to the control and supervision of a provincial government and a Committee of Management, is not an assigned public servant and is therefore outside the National Public Service and as his appointment does not involve a “personnel matter” connected with the National Public Service, ss 192 and 194 of the Constitution have no application to him and are not therefore inconsistent.
(2)      The office created to perform the administrative functions under s. 50 of the Organic Law on Provincial Government is outside the ambit of the Public Service Act (Ch. No. 67) and consequently the mode of appointment under s. 193(3) of the Constitution can have no application to the position.
(3)      To the extent that the provincial Department of a government purports to (a) take over provincial government functions; (b) give functions and responsibilities to assigned public servants; and (c) brings those officers under the direction and control of the Public Services Commission, it is inconsistent with the Organic Law on Provincial Government.
(4)      In appointing a person under s. 50(1) of the Organic Law on Provincial Government in respect of a province the Prime Minister is obliged (if he makes any appointment) to appoint a person who has been recommended for the appointment by the Provincial Government of the province in question.
(5)      The term “consultation” in s. 50 of the Organic Law on Provincial Government means that the provincial government must seek (but is not obliged to act upon) the view of the Public Service Commission on the name or names of the public servants for appointment.
Supreme Court Reference No. 1 of 1982; Re Bouraga [1982] P.N.G.L.R. 178 at 211, considered.
Cases Cited
Bowling v. General Motors-Holden’s Pty Ltd (1980) 50 F.L.R. 79.
Hunter Douglas Australia Pty Ltd v. Perma Blinds (1969) 122 C.L.R. 49.
Pauley v. Kenaldo [1953] 1 W.L.R. 187; [1953] 1 All E.R. 226.
R. v. Norfolk County Council (1891) 60 L.J.Q.B. 379.
Supreme Court Reference No. 1 of 1982; Re Bouraga [1982] P.N.G.L.R. 178.
Wainer v. Rippon [1980] V.R. 129; (1980) 42 F.L.R. 44; 129 A.L.R. 643.
Ward v. Williams (1955) 92 C.L.R. 496.
Reference
This was the reference pursuant to the Supreme Court Act (Ch. No. 37) of certain questions of law which are set out hereunder at 214.
Counsel
A. Regan, for the plaintiff.
B. O. Emos, for the first and second defendants.
Cur. adv. vult.
2 August 1984
KIDU CJ: I have read the judgments of both the Deputy Chief Justice and McDermott J. I agree entirely with their reasons and I have nothing further to add.
KAPI DCJ: This matter came before Woods J. by way of judicial review under the National Court Rules. The following declarations were sought:
“(1)    A declaration that the decision of the first defendant contained in an instrument dated 1 November 1983, to appoint Goetz Schweinfurth (referred to in the said instrument as Gus Schweinfurth) as Acting Secretary Department of the Morobe Province was null and void and of no effect;
(2)      A declaration that the decision of the first defendant contained in an instrument dated 4 April 1984 to appoint John Gaius to the office of Secretary, Department of the Morobe Province, is void and of no effect;
(3)      A declaration that the decision of the second defendant contained in an instrument dated 4 April 1984, to revoke a certain notice of appointment, is void and of no effect in so far as the said instrument purports to revoke the appointment of Goetz Schweinfurth (referred to in the said instrument as Gus Schweinfurth) to act for the purposes of s. 50 of the Organic Law in relation to the Morobe Province.
(4)      A declaration that the decision of the second defendant contained in the instrument referred to in par. (c) hereof, to appoint John Gaius to act for the purposes of s. 50 of the Organic Law on Provincial Government in relation to the Morobe Province, is void and of no effect.”
When the matter came on for hearing, the parties submitted a statement of agreed facts. It is not necessary to set out these facts. For the purposes of this reference, I am satisfied that the facts gave rise to the consideration of the “interpretation or application” of a constitutional law pursuant to s. 18(2) of the Constitution.
His Honour was bound to refer the following questions:
“(1)    Is s. 50 of the Organic Law on Provincial Government inconsistent with ss 191, 192 and 194 of the Constitution?
(2)      If s. 50 is not inconsistent with ss 191, 192 and 194 of the Constitution, I refer the following two questions:
(a)      Do the provisions of s. 50(1) of the Organic Law on Provincial Government in so far as they apply to the appointment of a person appointed to exercise the powers of a Departmental Head (for the purposes of the Public Service Act Ch. No. 67) in respect of members of the National Public Service assigned to a Provincial Government apply to the exclusion of the provisions of s. 193(3) of the Constitution and s. 57 of the Public Service Act, (Ch. No. 67)?
(b)      In appointing a person under s. 50(1) of the Organic Law on Provincial Government, in respect of a province, must the Prime Minister appoint a person who has been recommended for the appointment by the Provincial Government of the province in question?”
QUESTION 1
The central issue in this question is whether the office or the position to which the person appointed to act for the purposes of s. 50 of the Organic Law on Provincial Government (the “Organic Law”) is a position or an office within the National Public Service.
It is submitted by counsel for the plaintiff that the office which is occupied by the appointee under s. 50 of the Organic Law on Provincial Government is an office created under the Organic Law itself and is outside the National Public Service. He therefore submitted that the provisions of ss 191, 192 and 194 of the Constitution are not applicable and are therefore not inconsistent.
Counsel for the first and second defendants submitted that the office created under s. 50 of the Organic Law is an office, although created by the Organic Law it is a position within the National Public Service exercising responsibilities under the Public Service Act, (Ch. No. 67). He submitted that this view is supported by s. 191(1)(c) of the Constitution under which the Public Services Commission is responsible for provincial services. He further submitted that as this is a position within the National Public Service, personnel matters, such as appointment and promotion, are solely within the responsibility of the Public Services Commission under s. 192 and s. 194 of the Constitution. It is submitted that s. 50 of the Organic Law on Provincial Government provides a completely different mode of appointment and is inconsistent with the appointment of persons to offices within the National Public Service. See s. 193(3) of the Constitution.
Section 191 — Responsibilities of the Public Service Commission
Section 5 of Constitutional Amendment No. 3 of 1976 introduced the words “provincial services” under s. 191(1)(c) of the Constitution. There is no definition of these words either in the Constitution or in the Organic Law on Provincial Government. It is not necessary for the purposes of the issues before this Court to define these words. However these words, in themselves, would have a wider meaning to cover all services provided for the provincial government. I need not go into the details of these services as s. 191(1)(c) of the Constitution only covers those services as are prescribed by a constitutional law or an Act of the Parliament. This interpretation comes from the use of the words “the provincial services ... as are prescribed by Constitutional Laws or Acts of the Parliament”. In other words, one has to go to these laws to find out what provincial services are prescribed to come under the responsibility of the Public Services Commission.
Under the Organic Law on Provincial Government the Public Services Commission is made responsible for certain services to be made available to the provincial government. See s. 46(3) and s. 49 of the Organic Law on assignment of public servants to the provincial government. Under these provisions the Public Services Commission is the only authority which can assign or refuse to assign public servants to the provincial government. The public servants who are assigned to perform full time work for the provincial government under s. 49 of the Organic Law remain within the National Public Service. However, in the performance of day to day functions they are subject to the direction and control of the provincial government, s. 47(2). In respect of these persons, s. 192 and s. 194 of the Constitution apply. In other words, no other law can take away the control of the Public Services Commission on personnel matters relating to them.
However, the same argument cannot extend to the appointee under s. 50 of the Organic Law. The Organic Law has created a new office with a different mode of appointment. Under s. 5(4) of the Organic Law the appointee is subject to the supervision and control of a Committee of Management to be appointed under a provincial law by the Provincial Executive. He is not an assigned public servant and is therefore outside the National Public Service. Sections 192 and 194 of the Constitution can have no application to him.
Counsel for the first and second defendants further submitted that because the person appointed under s. 50 of the Organic Law is a member of the National Public Service, that is a promotion or an appointment within the National Public Service. In my view this argument cannot succeed. The Public Service Act (Ch. No. 67), envisages appointments of public servants to positions outside the National Public Service. See s. 104 of Ch. No. 67. A person appointed from the Public Service to the position under s. 50 of the Organic Law would apply for leave of absence without pay under s. 104 of Ch. No. 67. I do not think that the fact that a person has not applied for this leave should invalidate the appointment under s. 50 of the Organic Law. In fact it could almost invariably be implied from the provisions of s. 50 of the Organic Law that such leave is granted to the public servant because the Public Services Commission is consulted in the course of the appointment under s. 50 of the Organic Law.
It cannot be argued that a public servant appointed under s. 50 is simply a public servant who is acting as head of a Department. Under the Organic Law, there is no such thing as a Department. I will consider the constitutionality of the establishment of the Department of Morobe under the Public Service Act (Ch. No. 67), in Question No. 2.
I have already concluded that the position under s. 50 of the Organic Law is a position created solely by virtue of the Organic Law and is outside the National Public Service. The words under s. 50(3) of the Organic Law,
“The person appointed under Subsection (1) shall, in relation to:
(a)      ...
(b)      ...
be deemed, for the purposes of the National Public Service Act, to be the Departmental Head.”
do not bring the appointee under the National Public Service. This provision simply confers the powers on the person appointed under s. 50 of the Organic Law. These powers are exactly the same powers as are exercised by a departmental head under the Public Service Act (Ch. No. 67). This provision could have conferred different powers, but it was deliberately done this way so that the same powers could be exercised consistently in relation to assigned public servants. This provision means no more than that. The appointee still remains an officer outside the National Public Service and is still subject to the supervision and control of a provincial government and a Committee of Management: ss 47(2) and 50(4).
I note with interest that the provision of provincial administrative staff under Div. 2, Pt IX of the Organic Law is alternative and may be temporary. See s. 46(1) of the Organic Law. A provincial government under this provision may choose to provide for its services by way of contracts and employment of other consultants, advisers and other such persons. I consider that the provincial government, initially, would establish itself under Div. 2 as most of the work force would be provided for it from a pool of experienced officers within the National Public Service. However, I would think that in the process of devolution of power, and in the process of maturity, the provincial government may provide for its own services under s. 46.
The Public Services Commission, however, has a special function over all the provincial services. Under s. 191(2) of the Constitution, the Public Services Commission has the power to keep under continuous review all those services on organisational matters, the co-ordination of effort and, in particular, on conditions of employment, with a special view to avoiding wasteful duplication of effort, and competition. There is, of course, no power of direction and control given to the Commission in this function: s. 191(3) of the Constitution.
QUESTION 2(A)
It is clear from my conclusion in Question 1 that the position created under s. 50 of the Organic Law cannot come within the terms of s. 193 of the Constitution. It is interesting that Constitutional Amendment No. 3 did not amend s. 193 so as to include the appointment of officers within the provincial services. It is clear that the legislature intended that the appointment of a person under s. 50 of the Organic Law should not be included in the mode of appointment as provided for by s. 193 of the Constitution.
However the Head of State, upon advice by the National Executive Council has, by administrative act under the Public Service Act (Ch. No. 67), Pt 3, created a Department of Morobe, and created a Departmental Head for the Department. By creating this Department and the office of Departmental Head, they have brought this Department within the ambit of the Public Service Act, and under s. 193(1)(a) and (3) of the Constitution.
The Department of Morobe was created by a determination under s. 12 of the Public Service Act (Ch. No. 67), which was gazetted in the National Gazette No. G77 dated 22 November 1979. In the same Gazette the functions of the Department of Morobe were determined. As far as is relevant to this case, the Gazette sets out the functions of the Department which include general administration. This immediately raises the question of the constitutionality of the determination of the Department’s administrative functions. I will consider this question as against the two alternative administrative mechanisms provided for by the Organic Law on Provincial Government.
(a) Provincial Administrative Staff, Div. 2, Pt IX
The administrative set-up under this Division consists of the Provincial Secretariat established under s. 48, the members of the National Public Service assigned under s. 49 and the person appointed under s. 50 to control the public servants assigned. It is the function of this administrative set-up to carry out all the administrative responsibilities relating to the provincial government. Under the Organic Law the administrative function is vested in these bodies.
The creation of the Department under the Public Service Act is as a separate body to perform the administrative functions which have been assigned to the provincial administrative staff under Div. 2. The creation of the Department is made pursuant to the Public Service Act with its separate set of rules on how it is controlled and supervised. In other words, a separate body has been set up to perform the functions of the administrative body set up under the Organic Law. The administrative set-up under the Public Service Act is different to that which is established under Div. 2 of Pt IX of the Organic Law on Provincial Government. The determination to this extent is inconsistent with the Organic Law, and invalid.
(b) Administrative Arrangements under s. 46
Under the alternative arrangements in s. 46 of the Organic Law, the administrative function is also vested in the Provincial Executive: s. 17 of the Organic Law. It is the responsibility of the Provincial Executive to set up the services, if it considers it fit to do so. Under s. 17(4) the provincial government may confer these administrative responsibilities, or duties, upon another person or authority outside the Provincial Executive. Under s. 48(2) of the Morobe Provincial Constitution, it is envisaged that an Act of the Tutamang may delegate administrative responsibilities to another government group. The determination under the Public Service Act (Ch. No. 67), was made by an authority other than the provincial government or the Provincial Executive. To this extent the determination on the administrative function would be unconstitutional, and therefore invalid. In law, therefore, there cannot be a Department of Morobe with an administrative function. I reached the same conclusion in Supreme Court Reference No. 1 of 1982; Re Bouraga [1982] P.N.G.L.R. 178 at 191-192. It follows from this reasoning that the office created to perform the administrative functions under s. 50 remains outside the ambit of the Public Service Act and consequently the mode of appointment under s. 193(3) of the Constitution can have no application. However, the services provided under Div. 2 of Pt IX of the Organic Law, in reality, rely very much upon the assignment of public servants. The Public Services Commission has the discretion not to assign public servants to the provincial governments under s. 49 of the Organic Law. This can be seen as a control measure by the Public Services Commission. However, once the Public Services Commission has assigned public servants to a provincial government, they come under the control of the provincial government: see s. 47(2), s. 50(4) of the Organic Law. It is obvious that this system of government can only function effectively with the co-operation of the central government and the provincial government.
QUESTION 2(B)
All counsel in respect of this question are agreed.
The power of appointment under this provision is vested in the Prime Minister. This power must be exercised in accordance with the manner or conditions set out under s. 50 of the Organic Law; that is to say, there must be a recommendation by the provincial government after consultation with the Public Services Commission before an appointment can be made.
The impetus of appointment under this provision comes from the provincial government. It is the one that makes the final recommendation.
(a) Consultation
I agree with Pratt J. that the term “consultation” is a much less forceful term than “recommendation”. See Supreme Court Reference No. 1 of 1982; Re Bouraga [1982] P.N.G.L.R. 178 at 211. In the context of s. 50 of the Organic Law this simply means that the provincial government must seek the view of the Public Services Commission on the name or names of public servants for appointment. The recommendation by the provincial government need not be restricted by the names of people provided by the Public Services Commission. In other words, the provincial government would consider the names provided by the Public Services Commission, together with any other names it may propose itself. It is clear that the Public Services Commission can have very little control in the final recommendation.
(b) Recommendation
This is the final step before an appointment is made. It has a much stronger effect. It plays a prominent role in the final appointment. At this level the provincial government screens and eliminates names of people. When the appropriate person is recommended, that person should ordinarily be appointed by the Prime Minister. The Prime Minister cannot appoint any person outside the recommendation.
The Prime Minister, however, has the final discretion whether to appoint the person recommended. If he exercises his discretion not to appoint the recommended person, then the matter has to go back to the process of recommendation by the provincial government, and consultation with the Public Services Commission. This could result in a deadlock between the Prime Minister and the provincial government, as in this case. However, these provisions were enacted in a spirit of co-operation and mutual understanding between the Prime Minister and the provincial government. This is significant because this administrative arrangement demands that both parties (the National Government represented by the Prime Minister, and the provincial government) develop a good and harmonious relationship. In this instance, the law and the people of Morobe expect that both parties will reach agreement. They cannot be expected to have their own way. That only defies the spirit of this provision and, as a consequence, the people of the province suffer.
MCDERMOTT J: On 4 April 1984, the Head of State, acting upon advice purported to appoint John Gaius to the office of Secretary, Department of Morobe under the Constitution, s. 193(3), and the Public Service Act (Ch. No. 67), s. 57. On the same day, the Prime Minister also purported to appoint John Gaius “to act for the purposes of s. 50 of the Organic Law on Provincial Government (the Organic Law) in relation to the Morobe Province”. This is the “deemed” departmental head position in relation to the members of the National Public Service assigned to the Morobe Provincial Government.
There is a Department of Morobe Province. Perhaps its creation has led to the constitutional misconceptions giving rise to this reference. In accordance with the powers conferred by the Public Service Act, the Head of State, on advice:
(1)      established the Department of Morobe Province: s. 12(2)(a) — and also 18 other departments of provinces; and
(2)      an office of Departmental Head, called Secretary: s. 14(1)(a) — and also 18 other such positions: see National Gazette G22, 2 April 1979 and later,
(3)      purportedly made a determination of functions for these departments: see National Gazette G77, 22 November 1979.
The Department of Morobe is staffed by 1,628 members of the National Public Service assigned to the Provincial Government pursuant to s. 49 of the Organic Law. It is agreed that these public servants provide the administration of the province.
Whilst the National Gazette G24 of 6 April 1984 states the Prime Minister acted on the recommendation of the Morobe Provincial Government, this is not the fact. Mr Gaius was not recommended by that Government. The nominee was Mr Schweinfurth who, since 1 November 1983, had been acting as the Secretary and the s. 50 appointee. He was to so act for a six month period but the appointment was prematurely determined on 4 April 1984. Not unnaturally Mr Schweinfurth was the only nominee of the Provincial Government when such a request was made by the Chairman of the Public Services Commission on 21 March 1984.
As Mr Gaius was not acceptable to the Provincial Government because its own nominee was “removed” so to speak, an impasse resulted.
Common sense dictates that when a Chief Administrative Officer, the Head of the Administration in the Province is forced upon an unwilling Provincial Executive Council, effective administration becomes impossible. Our system of government by its nature is fragile. Its survival is dependent upon co-operation between its constituent parts. This co-operation is based upon trust, confidence and respect. Without these bonds between the elected representatives and their administrators, government will simply not work.
All this is trite, however, I mention it because in my view, the very good reasons for this co-operation are apparent in the legislation which enabled Provincial Governments to be established. It was through a devolution process achieved by a constitutional amendment and implemented by an Organic Law. It was done within the framework of an already existing administrative structure. The “appointment” of Mr Gaius not only ignored this enabling legislation but also the spirit of the devolution process — in two words, consultative co-operation.
It is submitted that s. 50 of the Organic Law is inconsistent with the Constitution, s. 191, s. 192 and s. 194, in as much as these sections give exclusive power over “personnel matters” (in relation to the National Public Service) to the Public Services Commission (the Commission) and thus overrides s. 50 of the Organic Law if it purports to give these powers to any person or authority other than the Commission.
Section 191(1)(b) makes the Commission “responsible in accordance with an Act of the Parliament” for “all personnel matters connected with the National Public Service”. This responsibility is, “subject to this Constitution”. Section 192 merely provides that in personnel matters, the Commission is not, other than in general policy subject to direction and control. Section 194 defines personnel matters as service matters including decisions affecting an individual. These “matters” are listed and include appointment, promotion, demotion and transfer.
What is the nature of the s. 50 position? It is not defined but is obviously a statutory one. It is a position (office) within the National Public Service, regardless of what may have appeared in the National Gazette. It is rather, one to which is attached, the powers of a particular office in the Public Service — the powers of a Departmental Head. The reasons for this are apparent from an examination of the hierarchy of control of provincial administration as set out in the Organic Law. At the top is the Provincial Government which may direct and control, (s. 47(2)), thereunder is the Provincial Secretariat which may exercise the powers of direction and control, (s. 47(3)), then comes a committee of management which may supervise and control the exercise of power by the deemed departmental head, (s. 50(4)). In practice, it appears these latter two controls do not exist. Next, is the Departmental Head (s. 50(3)) and finally those controlled, the assigned public servants (s. 49(1)) and perhaps also those persons employed under s. 46.
However, a Provincial Government’s general power to direct and control both, (a) the deemed departmental head and (b) the assigned public servants are restricted “by any law relating to the National Public Service” — s. 47(2). The only law at present is the Constitution and I have referred already to the relevant sections. The Public Service Act has no provision of the type envisaged by this section, which recognises the constitutional limitations on the powers which Provincial Governments might otherwise have over personnel matters. In summary, the Commission is given exclusive power over the career lives of members of the National Public Service. Section 50 does not make any person or authority responsible for “personnel matters connected with the National Public Service” and therefore, cannot be inconsistent with the constitutional provisions on personnel matters.
The legislature did not make the s. 50 appointee a Departmental Head. The reasons for this, given by Mr Reagan, make sense: The Parliament did not wish to create a plethora of public services: rather, it intended that provinces should have the necessary powers to organise the assigned public servants into whatever structure was desired. As long as there was a person within the province’s chosen structure who exercised the powers of a Departmental Head (and these cover a very wide range of aspects including organisation, management and control of public servants), most Public Service Act requirements could be satisfied. Other statutory office holders are in a similar position for example, the First Legislative Counsel, the Auditor-General and the Chief Collector of Taxes. There is good reason in using members of the one National Public Service to provide administrative back up for these office holders. By deeming them to be Departmental Heads, allowance is made for the independence of the office holder and also for the use of a single public service. This can also be said of the s. 50 appointee.
Whilst that appointee must be a member of the National Public Service before appointment, the requirement is only a qualification for appointment, presumably to ensure necessary expertise. In its s. 50(3) context, “deemed” makes clear that a statutory position which would not normally have certain powers attached is deemed to have those powers. On “deemed”, generally: see R. v. Norfolk County Council (1891) 60 L.J.Q.B. 379; Pauley v. Kenaldo [1953] 1 W.L.R. 187; Hunter Douglas Australia Pty Ltd v. Perma Blinds (1969) 122 C.L.R. 49 at 65 and Wainer v. Rippon [1980] V.R. 129 at 135.
The s. 50 position is clearly not one in the National Public Service and is thus removed from Commission control. An appointment to the position does not involve a personnel matter connected with the National Public Service.
The appointment of Mr Gaius gives rise to two further questions. The first concerns the relationship between s. 50 of the Organic Law, the Constitution s. 193(3) and s. 57 of the Public Service Act.
The Department of Morobe Province is not as it seems. Although created as a national department, it functions as a provincial one. It is a little like Topsy. A department created under s. 12 of the Public Service Act cannot incorporate into it assigned public servants or the offices which they occupy. There is no power for this. If a department was constituted by persons other than assigned public servants, there could be no challenge. But if it is otherwise, there is then an attempt to bring the assigned public servants back under the full control of the Commission and thus deprive the Provincial Governments of the organisation and control powers unequivocally given them by s. 47(2), (3) and s. 50(4) of the Organic Law. The difficulty can be seen in the gazetted Determination of the Departments of the Provinces. How can a determination give to assigned public servants function in areas where, by s. 24 of the Organic Law, a Provincial Government has a primary right to exercise legislative power — and hence given the complementary power to direct the assigned public servants on their functions? The Department of Morobe is obviously functioning and as the devolution process is continuing, it seems it functions at present under a legal cover which is a little bit of this and a little bit of that.
However, there should be no such uncertainty with the appointment of a person to head the provincial administration — whatever may be the title.
The misconceptions which led to S.C.R. No. 1 of 1982; Re Bouraga [1982] P.N.G.L.R. 178 are still with us. The inconsistencies seen by Kapi J., (as he then was) between the creation of a Police Department under the Public Service Act parallel with a Commissioner under the Constitution are similar to those arising in the creation of a Departmental Head under the Public Service Act parallel with an appointee under the Organic Law. His Honour concluded at 192:
“To the extent that the creation of the Department of Police is set up to take over some functions of the Commissioner, it is inconsistent with [Constitution] s. 198 and therefore unconstitutional.”
Therefore, to the extent that the Department of Morobe Province purports to (1) take over Provincial Government Functions; (2) give functions and responsibilities to assigned public servants; and (3) bring those officers under Public Service Commission direction and control it is inconsistent with the Organic Law; see ss 24, 27, 43, 47(2), 50(4) and 57.
In the same manner Pratt J., considered an appointment purportedly made by using both the Constitution, s. 193(3), and s. 57 of the Public Service Act. He said at 210:
“... as a matter of principle an appointment ... cannot be made by invoking the provisions of both the Constitution and the Public Service Act”.
After analysing the differences within these appointment provisions, he concluded (at 211) that they were “incompatible”:
“... To blithely make reference in the instrument of appointment to both the Public Service Act and the Constitution does not resolve the conflict one iota”.
The purported appointment of Mr Gaius under different powers could lead to absurd results. If he could validly receive departmental head powers in respect of the assigned public servants from both the Organic Law and the Constitution together with the Public Service Act, he could be subject to supervision and control, in the exercise of his functions from two different authorities — the Public Service Commission and the Provincial Government.
I note in passing that even if the Secretary, Department of Morobe could validly exercise powers in relation to assigned public servants, he could not be appointed to that position under the Constitution, s. 193(3). The Secretary is not a position to which s. 193(1)(a), (d), (f) or (g) apply. Indeed, I have some doubts as to whether a department as presently constituted will for long, have sufficient functions to make its continued establishment viable. Be that as it may, a Secretary for such a department should have been appointed under s. 57 of the Public Service Act.
Clearly the three sections relied upon to appoint Mr Gaius deal with different kinds of positions with departmental head responsibilities. To exercise the departmental head powers over assigned public servants, his appointment must be made under s. 50 of the Organic Law.
The second question concerns the appointee. Must the Prime Minister appoint the person recommended by the Provincial Government concerned? The answer is dependent upon the contextual meaning given to “recommendation” and “may” appearing in s. 50 of the Organic Law. The obvious answer comes from the plain ordinary meaning of the words and the section: No.
A Provincial Government is in a position of strength in the appointment process, as it makes the recommendation. The Prime Minister has a limited discretion. Whilst he can reject a nominee, he cannot appoint one of his own. He can only act upon a recommendation, and remember:
“As in all cases, the discretion must be exercised bona fide, having regard to the policy and purpose of the Act conferring the power.”
See Bowling v. General Motors-Holden’s Pty Ltd (1980) 50 F.L.R. 79 at 93-94 in applying Ward v. Williams (1955) 92 C.L.R. 496.
In my view, the common sense called for in these appointments coincides with the consultative co-operation implicit in the legislative framework enacted for the devolution of power to Provincial Governments.
In this case, the National Government has been in a most curious position. It has been forced to argue the unconstitutionality of its own legislation. As to whether it got into this position by being led or by its own volition, I do not know. If the former is the case, then it reflects most adversely upon those who advise at the highest levels.
Questions answered accordingly.
Lawyers for the plaintiff T. Doherty, Provincial Legal Officer.
Lawyers for the first defendant: State Solicitor.
Lawyers for the second defendant: State Solicitor.