Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 276
SC370
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
ENFORCEMENT PURSUANT TO CONSTITUTION, SECTION 57; APPLICATION OF KARINGU
Waigani
Kapi DCJ Bredmeyer Amet Los Hinchliffe JJ
29 March 1989
4 August 1989
LAWYERS - Lawyers Act 1986 - Membership of Law Society - Membership compulsory - Whether requirement unconstitutional - Restriction on right to freedom of association - Law Society “other association” - Provision to be read down within power so as to be voluntary - Lawyers Act 1986, s 9 - Constitution, ss 10, 47.
LAWYERS - Qualifications - Requirement for practising certificate - Requirement for insurance cover - Whether requirements unconstitutional - Whether restriction on freedom of employment - Whether “qualifications (if any) lawfully obtained” - Lawyers Act 1986, ss 35, 43 - Constitution, ss 38, 48.
CONSTITUTIONAL LAW - Qualified rights - Freedom of assembly and association - Freedom to belong to “associations” Lawyers - Compulsory membership of Law Society - Whether unconstitutional - Whether Law Society an “association” - Provision to be construed as requiring voluntary membership - Lawyers Act 1986, s 9 - Constitution, ss 10, 47.
CONSTITUTIONAL LAW - Qualified rights - Freedom of employment - Lawyers - Lawyers Act 1986 - Requirement for practising certificate - Requirement for insurance cover - Whether requirements unconstitutional - Whether “qualifications (if any) lawfully obtained” - Lawyers Act 1986, ss 35, 43 - Constitution, s 48.
CONSTITUTIONAL LAW - Construction of written laws - To be construed so as not to exceed the authority to make them - Lawyers Act 1986 - Compulsory requirement to join Law Society unconstitutional - Construction of voluntary requirement not exceeding power - Lawyers Act 1986, s 9 - Constitution, s 10.
The Lawyers Act 1986, provided as follows:
s9:     that a “lawyer admitted under this Act shall ... apply for membership” of a Law Society;
s35:    that a person should not practise as a lawyer without a current practising certificate on pain of penalty not exceeding K1,000;
s43:    “An applicant for an unrestricted practising certificate shall produce evidence of professional indemnity insurance with an insurer approved by the Society in an amount considered adequate by the Society.”
The Constitution provides:
“47.    Freedom of assembly and association
Every person has the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties, industrial organisations or other associations, except to the extent that the exercise of that right is regulated or restricted by a law ...
(d)      that complies with s 38 (general qualifications on qualified rights).”
“S 48. Freedom of employment
(1)      Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that that freedom is regulated or restricted voluntarily or by a law that complies with S 38 (general qualifications on qualified rights), or a law that imposes restrictions on non-citizens.”
“10.    Construction of written laws
All written laws (other than this Constitution) shall be read and construed subject to:
(a)      in any case — this Constitution; and
(b)      in the case of Acts of Parliament — any relevant Organic Laws; and
(c)      in the case of adopted laws or subordinate legislative enactments — the Organic Laws and the laws by or under which they were enacted or made,
and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.”
Held
(1)      Insofar as s 9 of the Lawyers Act 1986 compels all lawyers to join the Law Society it contravenes s 47 of the Constitution by restricting the lawyers’ freedom of association; the Law Society being an “other association” for the purposes of s 47.
(2)      (Kapi Dep CJ dissenting) Applying the “process of construction” under s 10 of the Constitution, s 9 of the Lawyers Act 1986 should be construed so that the words “shall apply” in s 9(1) and (2) mean “may apply”: voluntary membership of the Law Society would not be in excess of the authority to make the relevant laws and would be consistent with the freedom of association provided for in s 47 of the Constitution.
Peter v South Pacific Brewery Ltd [1976] PNGLR 537, considered and applied.
Diro v Reeve [1988] PNGLR 155, considered.
(3)      (Hinchliffe J dissenting) S 35 and s 43 of the Lawyers Act 1986 did not infringe the right to freedom of employment under s 48 of the Constitution.
(Hinchliffe J not deciding) The right guaranteed by s 48 of the Constitution is the right to choice not to practice of employment. The requirements for a practising certificate under s 35 of the Lawyers Act and for evidence of professional indemnity insurance under s 43 of the Lawyers Act were “qualifications (if any) lawfully required” within s 48(1) of the Constitution.
Premdas v Independent State of Papua New Guinea [1979] PNGLR 329 at 339, applied.
Cases Cited
Diro v Reeve [1988] PNGLR 155.
Le Compte, Van Leuven and De Meyere v Belgium (1982) 4 EHRR 1.
National Capital District Interim Commission v Bogibada Holdings Pty Ltd [1987] PNGLR 135.
Newcastle and Hunter River Steamship Co Ltd v Attorney-General for the Commonwealth (1921) 29 CLR 357.
Gunaratne v People’s Bank [1987] LRC (Const) 383.
Peter v South Pacific Brewery Ltd [1976] PNGLR 537.
Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.
Public Employees Association of Papua New Guinea v Public Services Commission [1988-89] PNGLR 585.
Summons
This was an application by a lawyer for enforcement of his constitutional rights under s 57 of the Constitution.
Counsel
C Karingu, in person.
K Y Kara, for the Law Society.
Cur adv vult
4 August 1989
KAPI DCJ: This is an application by Mr Karingu for the enforcement of his constitutional rights under s 57 of the Constitution.
The litigation in this case has arisen because of a new law passed by the National Parliament, the Lawyers Act 1986 (hereinafter referred to as the 1986 Act).
Before going into the issues raised in this case, it is necessary to give a background and the full picture of the statutory law relating to the establishment and the membership of the Law Society and the qualifications and requirements for the practice of law in this country. The applicable law is to be found in several Acts.
THE LAW SOCIETY
Before the 1986 Act, a society was incorporated under the Associations Incorporation Act (Ch No 142) known as the Papua New Guinea Law Society Incorporated (hereinafter referred to as the old Society). It served the professional interests of lawyers in Papua New Guinea. The membership of the old Society was voluntary. There was no provision under the Lawyers Act (Ch No 91) and the Lawyers Admission Rules (Ch No 91) touching on the matter of the Society. The old Society was run like any other association incorporated under the Associations Incorporation Act.
The National Parliament then passed the 1986 Act which includes provisions relating to the Law Society. The whole Act has not been brought into operation. Only parts of it have been brought into operation. A part of the Act which has been brought into operation relates to the Law Society. Under the 1986 Act, by s 2 the Papua New Guinea Law Society was established (hereinafter referred to as the new Society). Under s 9 of the Act, membership is made compulsory for all lawyers (both for those who are already admitted and practising and those who may be admitted under the 1986 Act).
The old Society was wound up by the Lawyers (Amendment No 2) Act 1987 (No 29 of 1987) and all assets and liabilities of the old Society were transferred to the new Society.
The only Society in existence is the new Society established under the 1986 Act. The issue which has arisen is whether the requirement to join the Society under s 9 of the 1986 Act is inconsistent with the freedom of association under s 47 of the Constitution.
QUALIFICATIONS FOR THE PRACTICE OF LAW
Qualifications to practise law in Papua New Guinea are governed by the Lawyers Act (Ch No 91) and the Lawyers Admission Rules (Ch No 91).
A person may be admitted either provisionally or fully. The qualifications are:
(a)      Certificate of qualification from the Principal Legal Advisor: s 8 of the Lawyers Act (Ch No 91).
(b)      Academic and practical qualifications set out under s 5 of the Lawyers Admission Rules (Ch No 91).
Mr Karingu was admitted under these provisions and is entitled to practise law on his own.
The 1986 Act was intended to repeal and replace the Lawyers Act (Ch No 91) and, of course, the rules made under it: see s 110 of the 1986 Act. However, the whole Act has not been brought into operation. Only certain provisions have been brought into operation. I have already discussed the relevant provisions which have been brought into operation in relation to the new Society.
The piecemeal manner in which this Act has been brought into operation is confusing and may give rise to other legal arguments. I need to refer to the relevant provisions.
The first provision that should be referred to is s 110 of the 1986 Act. It has not yet been brought into force. It follows from this that the provisions of the Lawyers Act (Ch No 91) and Lawyers Admission Rules (Ch No 91) are still in force unless those provisions are inconsistent with provisions of the 1986 Act, which have been brought into force.
On the question of qualifications, s 25 of the 1986 Act sets out the required qualifications and ss 26, 27, 28 and 29 set out the manner of application to the National Court for admission. All these provisions are yet to be brought into force. The consequences are that the qualifications which I have discussed under the Lawyers Act (Ch No 91) and Lawyers Admission Rules (Ch No 91) are still applicable.
The 1986 Act has introduced new provisions which now affect the qualifications to practise law. The first issue to consider is the effect of ss 33, 35, 39, 40, 41, 42, 43, 44, 45 of the 1986 Act on s 10 of the Lawyers Act (Ch No 91).
In brief, a person who is admitted must obtain an annual practising certificate under these provisions before he/she is entitled to practise law. A person who practises without a certificate is guilty of an offence (s 35(2) of the 1986 Act). Section 10 of the Lawyers Act (Ch No 91) is now inconsistent with the above-named provisions of the 1986 Act.
The combined effect of both Acts would appear to be this:
1.       A person applying to be admitted to the Court must qualify under the qualifications set out under the Lawyers Act (Ch No 91) and Lawyers Admission Rules (Ch No 91).
2.       A person so admitted shall sign the Roll in accordance with s 11 of the Lawyers Act (Ch No 91). Even though s 30 of the 1986 Act has been brought into effect, the Roll under the 1986 Act has not yet been prescribed by the National Court.
3.       A lawyer admitted as above, cannot practise until he/she has obtained a practising certificate in accordance with Pt IV of the 1986 Act.
Section 35 of the 1986 Act requires that a person shall not practise as a lawyer unless:
(a)      he has signed the Roll; and
(b)      he is the holder of a current restricted or unrestricted practising certificate.
The question of whether Mr Karingu has signed the Roll has not been raised as an issue. However, as I have already pointed out, the Roll under the 1986 Act is non-existent. Persons who may sign the Roll are those who are admitted under s 28 of the 1986 Act, but s 28 has not been brought into force.
This matter could be resolved by s 112 of the 1986 Act which has been brought into force. This is a deeming provision.
However, this raises interesting legal arguments because there is no Roll under the 1986 Act in existence. But I have to ignore these issues and assume that Mr Karingu, who was fully admitted before the 1986 Act, is deemed to have signed the Roll under the 1986 Act.
The matter in issue is the requirement now that a lawyer must have an annual practising certificate before he can practise. Also in issue is the requirement that when a lawyer applies for a certificate, he is required to show evidence of professional indemnity insurance with an insurer approved by the Society in an amount considered adequate by the Society.
The constitutional issue is whether these requirements are inconsistent with the freedom of choice of employment under s 48 of the Constitution.
When the relevant parts of the new Act came into force on 1 August 1988, for a period of about two weeks, Mr Karingu refused to apply to be a member of the Law Society under the provisions of the 1986 Act and failed to pay the required premium of K1,247.50 for the period of six (6) months commencing 1 August 1988. The consequences were that he was not granted a practising certificate and was unable to practise for the period.
I have no doubt that when this occurred, Mr Karingu had a cause of action to apply under s 57 of the Constitution to the Court for the enforcement of any constitutional rights that may have been breached by the operation of the Act.
It is clear from Mr Karingu’s affidavit that after two weeks, he applied to be a member of the Law Society and paid his insurance premiums and was granted an unrestricted practising certificate. For the year 1989, Mr Karingu is still a member of the Law Society and has paid premiums for the year and has a valid unrestricted practising certificate. In fact, he appeared as a practising lawyer before this Court in presenting his own case.
A preliminary point arising at this stage is whether there is a continuing breach of a right. It should be pointed out that the orders sought under the application by Mr Karingu are expressed in terms of declarations. This is not an application for declaratory orders under s 155(4) of the Constitution: see National Capital District Interim Commission v Bogibada Holdings Pty Ltd [1987] PNGLR 135. This is an application under s 57 of the Constitution to enforce breaches of constitutional rights. Mr Karingu alleges breaches of two fundamental rights.
First, he raises breaches of freedom of association under s 47 of the Constitution. Insofar as it is relevant to Mr Karingu, under s 47, every person has the right “to belong to or not to belong to” an association. The nature of this right is such that a person has the choice either to belong to, or not to belong to, an association. During the first two weeks after this new Act came into force in 1988, when he decided not to join the association and refused to pay the required premiums for the insurance, Mr Karingu was exercising his right under s 47 not to belong to the association. It may be argued that in those circumstances, Mr Karingu could apply under s 57 of the Constitution to protect the exercise of his choice not to join the association. Once he decided to join, it could be argued that there was no continuing breach of the right.
Similarly, he also raises the breach of right to freedom of choice of employment under s 48 of the Constitution. It is alleged that his choice to be a lawyer for which he is qualified and admitted to the Court has been affected by the requirement of a practising certificate by the Law Society. However, the freedom of choice of employment under s 48 is subject to the freedom being regulated or restricted voluntarily. It may be likewise argued that during the first two weeks after the Act came into operation when he remained without a practising certificate, his right of choice of employment as a lawyer was breached. But once he voluntarily complied with the requirements and was then entitled to practise as a lawyer, which is his choice of employment, then it may be argued that there is no longer a continuing breach. These matters were not argued at all by the parties and I do not wish to express any concluded view. However, I wish to point out that in the future, this preliminary point should be addressed if a case arises under similar circumstances. It is significant that the cause of action is properly pleaded. In the future, this case should not be taken as a precedent for bringing matters to the Supreme Court in these circumstances.
I now deal with the merits of this case.
SECTION 47 — FREEDOM OF ASSEMBLY AND ASSOCIATION
In Public Employees Association of Papua New Guinea v Public Services Commission [1988-89] PNGLR 585, I discussed the elements of this right. I said (at 589):
“This right deals with:
(a)      the right to assemble and associate;
(b)      the right to form and;
(c)      the right to belong to or not to belong to, a political party, and industrial organisation or other form of association.” (My emphasis.)
In this case, the third element is relevant. It is submitted by Mr Karingu that s 9 of the 1986 Act is contrary to s 47 and therefore should be declared invalid. Section 9 is in the following terms:
“9.      Membership of the Society
(1)      A lawyer admitted under this Act shall, within seven days of the date of his admission, apply for membership of the Society.
(2)      A person who:
(a)      immediately before the coming into operation of this Act was a lawyer admitted under the repealed Act, and
(b)      proposes to practise as a lawyer
shall apply for membership of the Society:
(c)      within sixty (60) days of the coming into operation of this Act, or
(d)      where the period of sixty (60) days referred to in par (c) has expired before he further practises as a lawyer.
(3)      An application for membership of the Society under this section shall:
(a)      be in the form; and
(b)      contain the particulars; and
(c)      be accompanied by the fee; and
(d)      be made in the manner,
prescribed in the Rules.
(4)      Membership of the Society shall be open to all persons required to apply for membership under this section.”
Counsel appearing on behalf of the Law Society conceded that s 9 and the scheme of the 1986 Act insofar as it relates to the new Society makes membership of the Society compulsory. However, he submits that s 47 of the Constitution should be read together with s 48(2) of the Constitution which is in the following terms:
“Subsection (1) does not prohibit reasonable action or provision for the encouragement of persons to join industrial organizations or for requiring membership of an industrial organization for any purpose.”
He admitted that the new Society is an “industrial organization” within the meaning of s 48(2) and clearly allows reasonable provision for requiring membership of such an organisation. He submitted that s 9 of the 1986 Act is such a provision and therefore is valid. In my opinion, this argument cannot stand. Section 47 of the Constitution speaks quite distinctively about the number of categories of organisations. It speaks of political parties, industrial organisations or other associations. The term “industrial organizations” has acquired legal meaning under our law. The term is defined by s 1 of the Industrial Organizations Act (Ch No 173). “Industrial organization” is defined to mean:
“A trade or other union, or branch of a union, or an organization or body:
(a)      that is composed of, or is representative of, employers or employees; and
(b)      one of the objects of which is, under its constitution, the regulation, in respect of industrial matters, of the relations between:
(i)       employees and employers; or
(ii)      employees and employees; or
(iii)     employers and employers,
or for taking part in or in the settlement of industrial disputes on behalf of its members ...”
This Act sets out the registration of such organisations. Clearly, the new Society under the 1986 Act is not an industrial organisation. Section 48(2) is expressly related only to industrial organisations and therefore has no application to the new Society. Section 9 of the 1986 Act and the scheme in the whole Act which compels every admitted lawyer to apply for membership in the Society is clearly inconsistent with the freedom not to belong to an association.
Counsel for the Law Society has argued in the alternative, that the new Society as established under this Act is not an “organization” under s 47, that it is not a political party, industrial organisation or other association. He argued that s 47 therefore has no application to the provisions of the 1986 Act. He supports this contention by reference to a decision of the European Court of Human Rights, Le Compte, Van Leuven and De Meyere v Belgium (1982) 4 EHRR 1 where the European Court considered the application of the equivalent provision to s 47 which is Art 11. It reads as follows:
“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”
The Court noted the matters which it took into account in reaching its conclusion at 23:
“The Court notes first that the Belgian Ordre-Des Medicins is a public law institution. It was founded not by individuals but by the legislature, it remains integrated within the structures of the State and Judges are appointed to most of its organs by the Crown. It pursues an aim which is in the general interest, namely the protection of health by exercising under the relevant legislation a form of public control over the practice of medicine. Within the context of this latter function the Ordre is required in particular to keep the register of medical practitioners. For the performance of the tasks conferred on it by the Belgian State, it is legally invested with administrative as well as rule-making and disciplinary prerogatives out of the orbit of the ordinary law (prerogatives exorbitantes du droit commun) and, in this capacity, employs processes of a public authority (see pars 20-24 above).
Having regard to these various factors taken together, the Ordre cannot be considered as an Association within the meaning of Article 11.”
The following factors were taken together to reach the conclusion that the Ordre was not an association but a public law institution.
1.       It was founded or established by the legislature.
2.       It is integrated within the structure of the State. The organs of the Ordre have judges appointed by the Crown.
3.       It has an aim of protection of health by exercising a form of public control over the practice of medicine. The various organs of the Ordre are given administrative and rule-making powers such as rules of professional conduct and infringement.
It is for the purpose of exercising public control that the Ordre is required to keep a register of all medical practitioners.
Let me consider each of these factors in relation to the new Law Society. It is true that the legislature has established the Society under s 2 of the 1986 Act. That of itself is not decisive, it must be considered with the other factors.
The Law Society has not been integrated into the structure of the State in this country. The most important organ of the Society is the Council which has the responsibility of managing the affairs of the Society: see s 18 of the 1986 Act.
The composition of the Council consists entirely of people elected by the members: see s 11(2) of the 1986 Act. Even the committees appointed by s 20 of the Act and all officers of the Society, under Pt III, Div 4, of the Act are appointed and controlled by the Council. None of this is integrated into any State organ. There is no involvement by any officer, such as a judge. The Society has been set up to function independently outside the State. The control of the practice of law is vested in the Statutory Committee and the National Court under Pt V of the 1986 Act.
The membership of the Society is not intended to control the practice of the Law. It is intended to promote certain interests and benefits for lawyers: s 7 and s 8 of the 1986 Act.
The Law Society is given rule-making powers under s 21 of the 1986 Act but these relate to the activities and procedures of the Society. They do not relate to the control of the practice of law.
The Society can gain very little assistance from the Belgian case. The Papua New Guinea Law Society is not a public law institution.
The Law Society established by the 1986 Act is an “association” within the meaning of the words “other associations” in s 47 of the Constitution. The Supreme Court of Sri Lanka considered the equivalent right which is in the following terms:
“18(f)  all citizens have the right to freedom of peaceful assembly and of association”
in Gunaratne v People’s Bank [1987] LRC (Const) 383.
Although it was dealing with a case of a trade union, the Court expressed its view of the scope of associations covered by this provision. Wanasundera J, with whom all the other members of the Court agreed, said (at 395):
“This right of association is of great value and has varied scope. It embraces associations which are political, social, economic and includes even such entities as clubs and societies.”
An association is a group of persons organised for any cause or purpose whatsoever, as long as it is lawful. This includes a wide range of groups whether they are incorporated or not. The only matter which may be required by law is registration of such associations: see s 47(a) of the Constitution.
As I have already held, the nature of a new Society under the 1986 Act is not a public law institution and essentially remains one of an association within the meaning of s 47 of the Constitution. Matters set out under s 7 and s 8 of the 1986 Act indicate that the Society is an association.
Having come to the conclusion that s 9 is inconsistent with s 47 of the Constitution, the question arises whether it can be saved under s 10 of the Constitution which provides:
“10.    Construction of written laws
All written laws (other than this Constitution) shall be read and construed subject to:
(a)      in any case — this Constitution; and
(b)      in the case of Acts of Parliament — any relevant Organic Laws; and
(c)      in the case of adopted laws or subordinate legislative enactments — the Organic Laws and the laws by or under which they were enacted or made,
and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.”
This provision was fully considered in Peter v South Pacific Brewery Ltd [1976] PNGLR 537. It would appear from the judgments of the Chief Justice and the Deputy Chief Justice that the proper approach to interpreting s 10 of the Constitution is yet to be finally settled. Frost CJ, when adopting the Australian decisions, said, at 547:
“Whether s 10 requires a different operation than is indicated by the Australian decisions, which I find of persuasive value, is a question which may be left for consideration in the future application of the section to the various types of enactments which may come up for decision. The citizen judges of this country may in the course of time prefer a different approach.”
Prentice Dep CJ adopted a unique approach by reference to peculiar characteristics of the Constitution of Papua New Guinea. In brief, he reached a conclusion which would give the Supreme Court the power to engage in judicial legislation.
The third member of the Court, Kearney J (as he then was) appears to have adopted the same line of reasoning as the Chief Justice when he said, at 560:
“In my opinion, Constitution s 10 must be applied in the light of other provisions in the Constitution, in particular s 99(3); it does not warrant an incursion by the Court upon the law-making power of Parliament, so as to create, by reading down, an Act which differs in its substance from that passed by Parliament. The Court’s function remains one of construction, the ascertaining of Parliamentary intention however conjectural, and not one of legislation.”
Although counsel were directed to address the Court on whether the section should be struck down fully or partially, they made no helpful submissions. They definitely made no reference to this case. In view of this, it is not proper to address the issue of the proper approach to the interpretation of s 10 of the Constitution. The matter should be fully argued.
In the meantime, the law to be applied on the proper interpretation of s 10 of the Constitution is set out in the majority decision of Frost CJ and Kearney J.
In dealing with s 10, Frost CJ adopted the Australian cases. He said, at 544-546:
“As an Act of the Australian Parliament, s 15a has been held to be a ‘direction binding all strictly judicial tribunals — for they alone have the constitutional duty or power of determining the validity or meaning of a statute — that every Commonwealth Act “shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth”. That portion of the section is a direction ... — to this Court in the present case — to disregard any portion of the statute that is invalid as exceeding the legislative powers of the Commonwealth. The second part proceeds to a further process of construction, namely, “To the intent that where any enactment ... would, but for this section, have been construed as being in excess of that power ... it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power”. That is to say, if, after discarding all excess exercise of legislative power, there remains any legislation that is within that power, the valid portion stands and must be given effect to’: Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319, per Isaacs CJ at pp 373-374. But as was recognized in that case by the Chief Justice, and from the time of its enactment, the section has been regarded, as it purports to be, as directed to the construction of laws for determining their meaning — Pidoto v Victoria (1943) 68 CLR 84 per Latham CJ at p 108. The contrary view was argued that s 15a was a provision affecting the operation of laws ‘in the sense that all laws are to be held to be valid in all cases to which they are, according to their terms, applicable, irrespective of failure to operate in other cases: that is, that the Act in effect says that all laws are to be construed as validly applying wherever they could by suitable limitations have been made validly applicable.’ This would seem to be the basis of the submission by the Acting Public Solicitor in the present case. But the argument was rejected for cogent reasons stated by Latham CJ in that case (op cit).
The effect of the Australian section, as it has been judicially interpreted, has been stated in Wynes, Legislative, Executive and Judicial Powers in Australia, 5th ed., at p 53 in a passage which commences with a citation from Sir Owen Dixon’s judgment in Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at p 371 and which was cited in The State v The Independent Tribunal: Ex parte Moses Sasakila [1976] PNGLR 491:
‘... His Honour said: “The effect of (severability) clauses is to reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail. To displace the application of this new presumption to any given situation arising under the statute by reason of the invalidation of part, it must sufficiently appear that the invalid provision forms part of an inseparable context.” But once it appeared that rejection of the invalid part would mean a different operation of the valid part or produce a different result, the whole must fail. This consideration supplied a strong logical ground for holding provisions to be inseverable, since in such a case there was a strong inference that Parliament did not intend that anything less than the whole Act should be law (76 CLR at p 371). At a later stage his Honour refers to the rule “that provisions are to be considered severable and general words distributable” (op cit).’
There are, however, two additional considerations, which are that ‘in no case can the Court be required to legislate nor should it do so’, and, ‘the reduced form or operation of the Act must result “in a consistent workable and effective body of provisions”.’ Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at p 493 per Barwick CJ. The former consideration is lucidly explained in Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at p 386, in the judgment of Rich, Starke and Dixon JJ. The learned judges there said of s 15a, ‘We think it cannot mean that when the Court has reached the conclusion, as we have done in this case, that a single and indivisible enactment of the Legislature is invalid, the Court is to turn aside from its judicial duties and, assuming the role of legislator, proceed to manufacture out of the material intended to compose the old enactment an entirely new enactment with a fresh policy and operation’.”
Let me restate the relevant parts of these principles. Where a provision of an Act of Parliament intended to cover two types of circumstances, one which is inconsistent with a provision of a Constitution and one which is not in excess of the authority of Parliament, the Court may ignore the invalid part and give effect to the part which is within the power of Parliament. This does not amount to judicial legislation. At 549, Frost CJ says:
“... Indeed it is merely the process of construction which this Court is required to undertake under s 10.”
These principles are better understood in the light of cases to which s 10 has been applied.
In Peter v South Pacific Brewery Ltd, the Court was considering s 131 of the District Courts Act 1963. Frost CJ, in construing the provision (at 547), says:
“... At first it did seem to me that the definition of ‘simple offence’ could be construed as a statement of the various types of summary offences distinguished by the kind of punishment prescribed. But on reflection I consider that the words used in the definition were intended to define ‘simple offence’ as a general term or expression meaning any offence punishable on summary conviction irrespective of the kind of punishment prescribed. Accordingly a distributive construction must be found if s 131 is to remain capable of reduced operation.”
Kearney J agreed with the Chief Justice on the interpretation of s 131 of the District Courts Act: see at 560.
Both the Chief Justice and Kearney J read down or qualified s 131 of the District Courts Act by ignoring the unconstitutional part of the provision (the part that related to offences punishable by imprisonment) and upheld the valid part (the part that related to offences not punishable by imprisonment). The latter is within the intention of the Parliament.
In Diro v Reeve [1988] PNGLR 155, the Court there was concerned with s 19 of the Commissions of Inquiry Act (Ch No 31). Although s 10 of the Constitution did not arise for consideration, Amet J observed that s 19 in its terms covers prosecution by the Public Prosecutor or the Police and the Secretary of the Commission. Insofar as the provisions relate to the Public Prosecutor and the Police, it is unconstitutional (see s 176(3) and s 197(2) of the Constitution).
However, in relation to the Secretary of the Commission, this was within the power of Parliament. Amet J applied the principles in Peter v South Pacific Brewery Ltd correctly when he observed (at 165):
“... To the extent that it bars any prosecution by the Public Prosecutor or the Police in discharge of their respective independent constitutional functions, except by the direction of the Commission, the section is unconstitutional. It need not be struck down in full. It should be read down subject to this ruling until properly amended. The direction of the Commissioner to the Secretary or such other person as he thinks proper, other than the Public Prosecutor or the Police, would be valid and not unconstitutional. The direction in this instance was not to the Police or the Public Prosecutor.”
The direction of the Secretary is within the intention of the Parliament and within the authority of the Parliament. There is no constitutional provision which is inconsistent with the direction of the Secretary of the Commission.
In the present case, the situation is different. The question is not whether the word “shall” under s 9(1) and (2) of the Lawyers Act 1986 is capable of meaning “may”. The question is what did the Parliament intend in s 9 of the Act? The intention of the Parliament is clear and it has not been disputed by all parties that this provision is intended to compel all lawyers to join the Society established under the 1986 Act. Section 9 is capable of this meaning only and no other as a matter of construction. It is not within the intention of the Parliament that membership of the new Society should be voluntary. This is the feature of this case which distinguishes it from the cases of Peter v South Pacific Brewery Ltd and Diro v Reeve.
When s 10 of the Constitution is applied to s 9 of the Act, s 9(1), (2) and (4) cannot stand as they are contrary to s 47 of the Constitution. There is nothing which remains which could be said to come within the power of the Parliament.
To read into s 9 the word “may” is to come up with a fresh policy and operation which is inconsistent with the intention of the Parliament expressed in the 1986 Act. Voluntary membership of the Society was never the intention of the Parliament. This is clear judicial legislation. I am not prepared to encroach upon the power given to the Parliament. Section 10 of the Constitution cannot save s 9 of the Act.
Section 9(3) of the Act on its own terms is not inconsistent with s 47 of the Constitution. This provision simply makes reference to:
(a)      the forms,
(b)      particulars,
(c)      fees, and
(d)      manner
of an application for membership of the Society. Subsection (3) is an inseparable part of subs (1) and (2) dealing with two categories of lawyer who may apply for membership. The provision begins with the words:
“An application for membership of the Society under this section ...”
Subsection (3) can only make sense with the whole. I do not think that it was the intention of the Parliament that subs (3) should stand on its own. Subsection (3) is not workable without knowing who is eligible to apply for membership. If subs (3) is struck down for the reasons given above, it does not affect the form, particulars, fee and the manner of an application for membership. The basis of their existence is to be found under rules made by the Council under s 21. The whole of s 9 is to be struck down.
The question now is whether the 1986 Act without s 9 can stand as a “workable and effective body of provisions”. Again, both counsel failed to address the Court on the issue. The assumption was that if s 9 was struck down the rest of the Act is workable.
Applying the principles set out in Peter v South Pacific Brewery Ltd by Frost CJ, that is, that s 10 of the Constitution contemplates that where a part of an Act is held to be invalid, the remaining part may be saved and may be workable:
In the present case, the remaining provisions are workable and do not depend on s 9 of the 1986 Act. In other words, s 9 is separable. As far as the Law Society is concerned, the basis of its existence remains intact under s 2 of the 1986 Act. Up to this point, it has members and the Society is able to function without s 9. The only difference now without s 9 is that it is not able to get new members. This in no way affects any of its functions and operations.
For future membership, it is now up to Parliament to reintroduce s 9 in an acceptable form and within the terms of s 47 of the Constitution.
SECTION 48 — FREEDOM OF CHOICE OF EMPLOYMENT
Prentice CJ referred to the nature of this right in Premdas v Independent State of Papua New Guinea [1979] PNGLR 329 at 339:
“... The right guaranteed is to choice not to the practice of employment.” (Emphasis in original.)
The significance of this is that the practice of the law is regulated by law. One of the requirements under the Lawyers Act is that a person must have the qualifications in order to be admitted to practise law. Section 48(1) of the Constitution recognises this:
“Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required ...” (My emphasis.)
It is to be noted that qualifications referred to in this provision have not been made subject to the concept of reasonableness set out under s 38 of the Constitution.
Does the requirement by the Society under s 43 of the 1986 Act, for an applicant to produce evidence of professional indemnity insurance which must accompany an application for a practising certificate and a practising certificate under s 35 of the Act, come within the meaning of the word “qualification” under s 48(1) of the Constitution? If the answer to this question is in the affirmative, the question of freedom of choice, and whether the freedom has been regulated or restricted in accordance with s 38 of the Constitution, does not arise.
The word “qualification” used in s 48 of the Constitution relates to qualities and the conditions which a person must meet in order to practise a vocation or profession. This word has to be interpreted widely to cover all such matters. The only requirement is that they must be lawfully required. As far as lawyers are concerned, these matters are set out in the Lawyers Act (Ch No 91) and the Lawyers Admission Rules (Ch No 91). Mr Karingu is qualified under these provisions.
Under s 33 of the 1986 Act (which has been brought into force), a person who is admitted and has signed the Roll, “may practise as a lawyer in accordance with the provisions of this Act”. These provisions may require other qualifications. Part IV of the Act deals with further practical requirements or conditions which are intended to control the practice of the law profession. The provision of insurance which is part of the requirement for a practising certificate is a matter which has been considered by the Parliament to be fulfilled before a person may practise law. I agree that all these matters come within the meaning of “qualifications”.
The idea of an annual practising certificate is that a lawyer who is granted an unrestricted practising certificate has been engaged in the continuous practice of the law and is therefore considered competent to offer his services to the public. A person who is granted a restricted practising certificate is considered not competent enough to offer his services until he has acquired sufficient skills under another lawyer. This is intended to cover new lawyers who are coming into the practice of the law for the first time. It is also intended to cover those lawyers who have practised law but have left the practice of the law and entered other fields of employment and want to come back to the practice of the law. Clearly this requirement comes within the term “qualifications”.
The requirement for an insurance premium does not come within what may be regarded as a narrow meaning of “qualification”. That is to say, qualification meaning a degree, certificate of training from the Legal Training Institute etc.
These are matters which could be said to equip a lawyer for the performance of his duties. An insurance policy does not equip a lawyer in this sense. However, there is a broader meaning of “qualification” which relates to other matters or circumstances which must be fulfilled before a person becomes entitled to practise a vocation. On this, a residential qualification comes to mind. Some jurisdictions require residence before a person may be allowed to practise law. Residence in a jurisdiction does not qualify a lawyer any better than one who is not resident.
Similarly, the legislature has considered that an insurance policy is a requirement which must be fulfilled. The idea is that every practising lawyer should be protected by insurance to ensure he is covered for the costs of any professional negligence. This is good protection for the public.
The amount of insurance premium may be a matter which could be challenged under s 41 of the Constitution. This issue has not been raised before us in this case.
I have therefore come to the conclusion that Pt IV of the 1986 Act does not affect the choice of employment under s 48 of the Constitution. Insofar as this part is concerned, there was no need to comply with s 38 of the Constitution.
The upshot of my decision is that Mr Karingu has a right to belong or not to belong to the Law Society under s 47 of the Constitution. If he decides not to belong to the Society, he can enforce the right under s 47 of the Constitution. Presently, he is a member of the Society by choice. He may remain as a member or resign from the Society.
A lawyer who is not a member of the new Society by choice is entitled to apply for a practising certificate under Pt IV of the 1986 Act and to practise law.
I would make the following orders:
1.       Section 9 of the 1986 Act is inconsistent with the freedom of association under s 47 of the Constitution and is invalid and of no effect.
2.       Section 35(1)(b) of the 1986 Act does not in any way affect the freedom of choice of employment under s 48 of the Constitution and there was no need to comply with s 38 of the Constitution.
BREDMEYER J: This is an application to enforce two freedoms guaranteed by the Constitution. The applicant raises the question of whether the Lawyers Act 1986 as amended is ultra vires the Constitution of the Independent State of Papua New Guinea.
The applicant is a partner in a three-man firm of lawyers engaged in private practice in Port Moresby. The Lawyers Act 1986 came into force in stages in 1987 and 1988 but ss 25-29, 31, 32 and 34, dealing with admission to practise, have not yet been brought into force. Admission to practise is still governed by the relevant sections of the old Lawyers Act (Ch No 91) and the Lawyers Admission Rules (Ch No 91). Mr Karingu was fully admitted to practise under that Act and those Rules and, by s 112(c) of the Lawyers Act 1986, he is deemed to have his name on the Roll of lawyers established by s 30 of the new Act and to have signed the Roll. Mr Karingu argues that he is qualified to practise because he was admitted to practise under the former Lawyers Act (Ch No 91) and Lawyers Admission Rules (Ch No 91). Under s 10 of that Act, he is “entitled to practise as a lawyer”. Section 112 of the new Act, the Lawyers Act 1986, deals with the status of a lawyer under the former Act but it does not say that a lawyer admitted under the old Act is deemed to be entitled to practise under the new Act. Section 112 says that a man such as Mr Karingu is deemed to have his name on the Roll and to have signed it, and as such, I consider that he does not require to be readmitted. I consider that by a liberal interpretation of s 33 of the Act, he “may practise as a lawyer in accordance with the provisions of the Act”.
Section 2 of the Lawyers Act 1986 establishes the Papua New Guinea Law Society which by s 3 of the Act is a body corporate with perpetual succession. By s 7 of the Act the functions of the Society are as follows:
“(a)    to promote the interest of the public and the interest of lawyers in relation to legal matters and generally to promote and uphold justice and the rule of law; and
(b)      to promote and encourage proper conduct by lawyers; and
(c)      to suppress illegal, dishonourable and improper and unprofessional practices and conduct by lawyers; and
(d)      to preserve and maintain the integrity and status of lawyers; and
(e)      to promote opportunities for the acquisition and diffusion of knowledge of the law; and
(f)      to assist in the promotion, development and reform of the law and generally to advance and develop the underlying law and jurisprudence; and
(g)      to provide a means for the amicable settlement of professional differences between lawyers; and
(h)      such other functions as are conferred by this Act or any other law.”
Section 9 of the Act makes membership of the Society compulsory. Sections 11, 12, 13 and 14 of the Act establish a Council of the Society. The president and councillors are elected from the members of the Society and they hold office for two years. Provision is made for vacancies and for meetings of the Council. Section 21 provides that the Council may make rules relating to a number of matters.
Section 2 of the Lawyers Act 1986 establishes that ss 35-37 provide for practising certificates. I quote s 35:
“35.    Requirement to Hold a Practising Certificate
(1)      A person shall not practise as a lawyer unless:
(a)      he has signed the Roll; and
(b)      he is the holder of a current restricted or unrestricted practising certificate.
(2)      A person who practises as a lawyer contrary to the provisions of Subsection (1) is guilty of an offence.
Penalty: A fine not exceeding K1,000.00.”
Section 39 provides that the Council may, on behalf of the Society, issue to a lawyer who has signed the Roll a practising certificate which can be one of two kinds — an unrestricted practising certificate or a restricted practising certificate. An unrestricted practising certificate allows the holder to practise as a lawyer in any manner allowed under the Act. A restricted practising certificate, on the other hand, entitles the holder to practise but not on his account, or in partnership with another lawyer, or to hold moneys in trust for any client.
I quote s 42 and s 43 of the Act:
“42.    Application For a Practising Certificate
(1)      An application for a practising certificate shall be made to the Secretary.
(2)      An application under Subsection (1) shall be:
(a)      in the form prescribed by the Rules; and
(b)      accompanied by any fee prescribed by the Rules.”
“43.    Society Shall Require Evidence of Professional Indemnity Insurance
An applicant for an unrestricted practising certificate shall produce evidence of professional indemnity insurance with an insurer approved by the Society in an amount considered adequate by the Society.”
In 1988, the Society determined that an applicant for a restricted practising certificate must have professional indemnity insurance to the value of one million kina. In 1989, this sum was reduced to K500,000. The Society also approved four or five insurers most of whom will give a professional indemnity cover to the value of K500,000 on the payment of a premium of K1,800. Mr Karingu, as I have said, practises in partnership in Port Moresby. Each of the three partners is required under the Act to have an unrestricted practising certificate which means paying a premium of K1,800 each to buy that insurance cover.
Mr Karingu argued that the provisions of the Lawyers Act violate his freedom of assembly and association given by s 47 of the Constitution and his freedom of employment given by s 48 of the Constitution. I quote those two sections.
“47.    Freedom of Assembly and Association
Every person has the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations or other associations, except to the extent that the exercise of that right is regulated or restricted by a law:
(d)      that complies with Section 38 (general qualifications on qualified rights).”
“48.    Freedom of Employment
(1)      Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that that freedom is regulated or restricted voluntarily or by a law that complies with Section 38 (general qualifications on qualified rights), or a law that imposes restrictions on non-citizens.
(2)      Subsection (1) does not prohibit reasonable action or provision for the encouragement of persons to join industrial organizations or for requiring membership of an industrial organization for any purpose.”
It will be seen that one of the exceptions allowed to the freedom conferred by each section is that the freedom may be regulated or restricted by a law which complies with s 38 of the Constitution. That section is headed “General qualifications on qualified rights” and it provides that a law may be passed which regulates or restricts a right or freedom granted by the Constitution provided that law complies with subs (1) and (2) of s 38. Subsection (1) provides that the law must be necessary for a specific purpose such as defence or public safety, or in order to protect the rights and freedom of others, or to make reasonable provision where the exercise of one right conflicts with the exercise of another right. The subsection further provides that the law must be “reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind”. Subsection (2) provides that the law must (a) be expressed to be a law made to restrict a constitutional right or freedom, and (b) specify the right or freedom it restricts, and (c) be passed by an absolute majority of Parliament. It is crystal clear in this case, and not disputed by counsel, that the Lawyers Act does not comply with s 38(2).
FREEDOM OF ASSEMBLY AND ASSOCIATION
The applicant argued that the Law Society is an association and is thus within the scope of s 47 of the Constitution; the Law Society argued that it is not an association but rather a statutory body or a body corporate. An association is defined in the Concise Oxford Dictionary as “an organised body of persons”. The word is defined in the National Dictionary as “a union of persons for some special cause or purpose”. I consider a fair definition of association is that it is a group of people organised together in some fashion for some common purpose. There is no basic definition of the term in the Associations Incorporation Act (Ch No 142) but rather an extended definition which is of little help for our present purposes. Section 1 of that Act provides that an association means “an association, society, club, institution, Christian Mission or other body in the country”. An association may be incorporated or unincorporated. It is true that the Law Society is created by the Lawyers Act, in particular by s 2 which provides “The Papua New Guinea Law Society is hereby established”. Section 3 provides that:
“The Society is a body corporate with perpetual succession, and shall have a seal and may acquire hold and dispose of property and may sue and be sued in its corporate name.”
So certainly the Law Society is incorporated by its own statute. Nevertheless, it has many of the features of any other association. I note that it is called a society. I note that its functions in s 7, which I have already quoted, are to promote the interests of lawyers in relation to legal matters, to promote and encourage proper conduct by lawyers, to suppress illegal and improper conduct by lawyers and so on. The affairs of the Society are conducted by a Council which is elected by the members by a secret ballot every two years. Where a member of the Council dies or otherwise vacates his office, a by-election may be held.
I consider that the Law Society is an association of lawyers brought together to promote and achieve some common goals. It is incorporated but so too are many other associations. Its one unique feature is that it is compulsory for lawyers to join but that does not in my view remove it from the general category of associations. It cannot be argued that the disciplinary powers conferred over the legal profession by the Act take the Law Society out of this general category because the important disciplinary powers conferred by the Act are not conferred on the Society at all. Section 48 of the Act establishes a Lawyers Statutory Committee which is independent of the Society. Three of its members are practising lawyers and they are appointed by the Chief Justice and one or two other lay members are appointed by the Minister for Justice. The committee is independent of the Society and is empowered to act without reference to the Society. It is not a committee of the Society but its powers can impact on the Society. For example, among the many punishments it can impose under s 54 is that it can order the holder of an unrestricted practising certificate to be given a restricted practising certificate for a certain period. That order would be made against the Society.
I am convinced that the Law Society established by the Lawyers Act is an association within the meaning of that word as used in s 47 of the Constitution. That section gives a person the right to belong or not to belong to an association subject to certain exceptions which are not relevant to this case. Mr Karingu does not want to belong to the Society but has joined it under the compulsion of s 9. I consider that that section is an infringement of his freedom of association given by s 47 and this Court is empowered under s 57(3) of the Constitution to make such orders and declarations as are necessary to give effect to this decision. I would declare that the words “shall apply” where they appear in s 9(1) and (2) of the Lawyers Act are unconstitutional. What follows from this? Can those words “shall apply” be severed? When a provision in an Act is contrary to the Constitution, we are enjoined by s 10 of the Constitution in the terms of that section to sever the bad and keep the good. Where a law has been struck down as in excess of authority it should nevertheless be read and construed “to be a valid law to the extent to which it is not in excess of that authority”.
I note that a somewhat similar problem was discussed by Amet J in Diro v Reeve [1988] PNGLR 155. Section 19 of the Commissions of Inquiry Act (Ch No 31) provided that a Commission could direct such person as it thought proper to commence a prosecution under the Act which was in conflict with s 176(3) and s 197(2) of the Constitution which provide that the Public Prosecutor and the Police respectively are free of directions and control in the performance of their prosecution duties. Amet J (at 165) said that s 19 of the Commission of Inquiry Act was unconstitutional but that it need not be struck down in full: “It should be read down subject to this ruling, until properly amended.” That is, it should be interpreted to mean that the Commission can direct persons to carry out prosecutions but not the Public Prosecutor or the Police.
Following a somewhat similar approach to that taken by Amet J, and applying the rule of construction set out in s 10 of the Constitution, I would not strike down the whole of s 9(1) of the Act. A Law Society with voluntary membership, although created by statute, does not infringe Mr Karingu’s freedom of association and it gives some effect to the will of Parliament in enacting the Lawyers Act. I would read down the words “shall apply” in s 9(1) and (2) to mean “may apply”. I would further declare that Mr Karingu is entitled to resign from the Society and get a refund of his membership fee.
FREEDOM OF EMPLOYMENT
Section 48 of the Constitution confers a freedom of employment. By s 24 of the Constitution we are allowed to look at the final report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 as an aid to interpret the Constitution. Paragraph 5/1/27 of that final report states:
“for the purpose of this recommendation ‘freedom of employment’ means freedom of choice of employment, that is to say, each person shall have the right, in accordance with his own wishes to practise any lawful profession or carry on any lawful trade or business.”
Mr Karingu has argued that his freedom of employment is restricted and reduced by the fact that he has to get an unrestricted practising certificate from the Law Society which in turn means that he has to have professional indemnity insurance cover to the extent of K500,000. Mr Karingu would like to be free of those restrictions and to practise as he did before the Act came into force without any practising certificate and without any insurance cover. To practise “in accordance with the provisions of this Act” is a reference to the necessity to have a restricted or unrestricted practising certificate (s 35) and in the case of the latter, a professional indemnity insurance cover (s 43). The Act requires a lawyer to obtain an annual practising certificate. Mr Karingu argued that the requirements of a practising certificate and professional indemnity insurance are regulations or restrictions on his freedom of employment given by s 48(1) of the Constitution and, as such, they can only be imposed by a statute which complies with s 38 of the Constitution. The contrary argument is that these two requirements are “qualifications lawfully required” and as such are valid under the first part of s 48(1) of the Constitution.
What are the objects of practising certificates? Clearly one of the objects of an unrestricted practising certificate is to ensure that the lawyer who is in unrestricted legal practice has an insurance cover to protect his clients against wrong advice and against theft and other misuse of trust funds. Experience in other countries shows that a few lawyers do from time to time give professionally negligent advice for which their clients can sue them, and also steal money from clients’ trust accounts. So the requirement of a professional indemnity insurance policy promotes the interests of the public which is one of the functions of the Society as contained in s 7(a) of the Act. If a member of the public wishes to sue his lawyer for negligent advice or for theft of trust funds, the compulsory insurance policy ensures that there are funds to meet the claim. If this were not so the lawyer may be a man of straw either by being genuinely poor or by hiding his assets in the name of members of his family and the like.
Another aim of a practising certificate, and this applies to a restricted and an unrestricted practising certificate, is that it is a means of ensuring that the lawyer remains a fit and proper person to practise. Under s 8 of the Lawyers Act (Ch No 91), an applicant for admission had to obtain a certificate from the Principal Legal Adviser that he was a fit and proper person to be admitted. An applicant who is of excellent character when he is admitted may, some time later, become involved in a number of dishonourable, disreputable or criminal activities which make him an unfit person to continue to practise as a lawyer. This function of a practising certificate can be seen in two places in the Lawyers Act. Under s 44 of the Act, the Council may refuse an application for a practising certificate on the basis that the lawyer has been called before the Council or Lawyers Statutory Committee and has failed to give a satisfactory explanation of any matter relating to his conduct or practice as a lawyer. The applicant has a right of review against that refusal to the National Court. Secondly, under s 46 and s 54 of the Act, the Lawyers Statutory Committee may suspend the lawyer from practice for such period as it thinks proper. The powers and functions and procedures of the Lawyers Statutory Committee are set out in some detail. I think it true to say that a practising certificate under the Act, of the restricted or unrestricted kind, is designed to ensure that the lawyer who was qualified as a fit and proper person to practise when first admitted to practise by the court, remains qualified by character in the same way, that is, remains a fit and proper person to continue his practice. Secondly, in the case of an unrestricted practising certificate, the aim is to ensure that a lawyer who practises in an unrestricted way on the public has professional indemnity insurance to cover him against negligent advice and against defalcations of his clients’ funds. I see that first justification for a practising certificate as a continuing character qualification, and I see that second justification as a business qualification. In other words, if a lawyer wishes to set up in unrestricted private practice, the Act requires him, as a business matter, to have an adequate insurance policy. I regard the practising certificate of both kinds required by the Lawyers Act as “qualifications ... lawfully required” under s 48 of the Constitution.
Mr Karingu’s argument assumes that, once a lawyer is initially qualified to practise, he remains qualified to practise for the rest of his life. That is not necessarily so, not only in relation to the legal profession but in relation to other professions too. To repeat the point which I have made earlier, a person of good character when admitted in 1989 may be of terrible character in 1990; his character may change for the worse. Then, a person adequately academically qualified in 1989 may, with the introduction of new laws, be inadequately qualified in the year 2009 so that he really needs a refresher course to be properly qualified. There are many professions like that. A pilot needs an annual medical check to ensure that he remains physically fit for the job and he needs an annual flying check to ensure that his skills are as good as in the previous year. If he is to fly a different aircraft, he needs to pass an exam on the flying of that aircraft.
A number of professions or businesses require a mandatory insurance policy. For example, all owners of cars are required to have third party insurance under the Motor Vehicles (Third Party Insurance) Act (Ch No 295). Thus, if a taxi-fleet owner in Port Moresby objected to paying the third party premiums on all his taxis and claimed that his freedom of employment was infringed, I would regard the requirement of a third party policy on all vehicles as a lawful business qualification for him and not a restriction on his freedom of employment which required the Motor Vehicles (Third Party Insurance) Act to be passed in accordance with s 38 of the Constitution. In my view, s 48 was not intended to allow a taxi owner to escape from the requirement of compulsory third party insurance. Although the taxi owner’s drivers were licensed to drive, that is, qualified by skills to drive, the law requires the owner to have the business qualification of third party insurance and, for that matter, registered roadworthy vehicles.
I consider that ss 35, 42 and 43 of the Lawyers Act which require practising certificates and professional indemnity insurance for an unrestricted practising certificate, require “qualifications lawfully required” and do not infringe the freedom of employment given by s 48 of the Constitution. Having said that, I am a little disturbed by the amount of cover required by the Law Society and by the amount of premium. It is an interesting comparison that compulsory third party insurance on a car is set at K100,000 and the premium for a sedan car at K120 (plus K15 stamp duty) and I would think many of our small private practitioners are unlikely to be giving advice or conducting litigation in matters of K500,000 in value and are unlikely to have that money in their trust accounts. On the other hand, I can see that partners in the bigger firms may well be giving advice on matters which exceed K500,000 in value and trust funds in excess of that sum. They may therefore, as a matter of prudence, need more cover. Mr Karingu has not addressed any legal argument challenging the amount of the cover set by the Society. He has mounted a head-on challenge to the constitutional validity of any insurance cover. I consider that he has failed in that, but nevertheless, he, and others like him, may wish to stay in the Law Society voluntarily, get elected to the Council, and lobby the Society to fix a lower insurance ceiling. Or he may be able to bring some action before the court under another section of the Constitution. Finally, he possibly could adopt the suggestion of my brother Hinchliffe J and ask the Society to fix a lower cover for him based on the nature of his practice.
I would make the following declarations:
1.       Sections 9(1) and (2) of the Lawyers Act 1986 in their present form infringe s 47 of the Constitution. To comply with the Constitution, the words “shall apply” in each subsection should be read as “may apply”.
2.       The applicant and others like him who do not wish to belong to the Law Society may resign from it and obtain a refund of their membership fees.
3.       Sections 35 and 43 of the Lawyers Act 1986 do not infringe s 48 of the Constitution.
As Mr Karingu has succeeded in part, I would grant him the costs of this application.
AMET J: The circumstances that gave rise to this application, the issues and arguments, are fully discussed in the judgments of both the Deputy Chief Justice and Bredmeyer J which I have had the benefit of reading; I will therefore be brief.
The Deputy Chief Justice has addressed a preliminary issue which was not raised with the parties, as to whether there are continuing breaches of constitutional rights and what the causes of action are for this application to be entertained. The Deputy Chief Justice concludes that, because Mr Karingu “decided to join” the Society and “voluntarily complied with the requirements” for professional indemnity insurance cover and practising certificate and was now practising as a lawyer, it may be argued that there is no longer a continuing breach.
The short answer to this, in my opinion, is that Mr Karingu did not freely decide to join or voluntarily comply with the requirements for practice. He was compelled by application of the provisions of the Act. His continued employment and practice as a lawyer depended upon his joining the Society and complying with the requirements. He could not continue to practise as a lawyer otherwise.
In these circumstances, it was considered there was adequate cause of action for enforcement proceedings to be heard and so it was decided not to raise the issue with counsel.
CONSTITUTION, S 47 — FREEDOM OF ASSEMBLY AND ASSOCIATION
It is clear that s 9 of the Lawyers Act 1986 required compulsory membership of the Law Society; counsel representing the Society did not contest this. The Society also conceded that the Act did not comply with the requirements of the Constitution, s 38(2), but it argued that it did not need to because s 9 did not infringe s 47 of the Constitution.
For the same reasons as Bredmeyer J has given, I find that s 9 infringes upon Mr Karingu’s right to freedom of association given by s 47. To the extent that the word “shall” appearing in s 9(1) and (2) denotes compulsion, it is unconstitutional. What, then, follows from this: can s 9(1) and (2) be saved by reading them down or do they have to be struck down?
The Constitution, s 10, provides that:
“10.    Construction of written laws
All written laws (other than this Constitution) shall be read and construed subject to:
(a)      in any case — this Constitution; and
(b)      in the case of Acts of Parliament — any relevant Organic Laws; and
(c)      in the case of adopted laws or subordinate legislative enactments — the Organic Laws and the laws by or under which they were enacted or made,
and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.”
Section 11 also provides that:
“(1)    This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.
(2)      The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.”
In Peter v South Pacific Brewery Ltd [1976] PNGLR 537 at 538, the majority of the Court held that:
“There being therefore a question of inconsistency arising between an Act of Parliament and the Constitution, s 10 of the Constitution is required to be applied. Section 10 of the Constitution is to be read as a rule of construction in the sense that it provides a guide for the ascertainment of the intention of Parliament in the case of partial invalidity of a law; but for the particular legislative intention always to prevail in accordance with the Spirit of the Constitution; meaning that if from the terms of an Act it appears that Parliament intended that only the Act as a whole should come into operation, then the whole would fail if there was partial invalidity.”
The Court was dealing with an apparent inconsistency between s 131 of the District Courts Act and s 37(5) of the Constitution. The head-note said that:
“In so far as s 131 of the District Courts Act 1963, purports to provide that in certain circumstances an offence the maximum penalty for which includes imprisonment (except in default of payment of a fine) may be heard summarily in the absence of the defendant, it goes beyond that for which the law may provide under s 37(5) of the Constitution ...
To read down the definition of simple offence in its application to s 131 of the District Courts Act 1963, so as to confine its operation to summary offences punishable otherwise than by imprisonment (except in default of a fine) does not amount to judicial legislation but is merely the process of construction which the Court is required to undertake under s 10.”
I agree with the conclusion reached by Bredmeyer J supported, in my view, by the same method adopted by the majority in Peter v South Pacific Brewery Ltd that by the application of the Constitution, s 10, s 9(1) and (2) of the Act can be read and construed “to be a valid law to the extent to which it is not in excess of that authority”. It is clear that the intention of Parliament was to make membership of the Law Society compulsory for all lawyers admitted to practise law. That, however, is quite clearly inconsistent with the Constitution, s 47, right to freedom of association. There can only be two methods of membership of the Law Society: voluntarily or by compulsion. The only lawful method remaining therefore is to enable voluntary membership. That is the extent of the authority of Parliament, to enact a law that enables voluntary membership of the Law Society. To the extent that it has provided for compulsory or mandatory membership, it is unconstitutional. In my view, s 10 does permit the relevant law/provision to be read and construed “... so as not to exceed the authority to make them properly given” so that “it shall nevertheless be a valid law to the extent to which it is not in excess of that authority”. I would thus read down the word “shall” appearing in s 9(1) and (2) to mean “may” to give it this voluntary effect.
The membership of the Society would now be voluntary and consistent with the individual’s freedom of association provision: s 47. Mr Karingu and any other admitted lawyers who were compelled to join the Society are entitled to a refund of their membership fee if they did not and do not wish to continue to be a member of the Society.
CONSTITUTION, S 48 — FREEDOM OF EMPLOYMENT
I agree with the conclusions of Bredmeyer J that ss 35, 42 and 43 of the Act, which require practising certificates and professional indemnity insurance for an unrestricted practising certificate, do not infringe s 48 of the Constitution. Section 48(1) provides that:
“Every person has the right to freedom of choice in employment in any calling for which he has the qualifications (if any) lawfully required ...” (My emphasis.)
The Final Report of the Constitutional Planning Committee dated 13 August 1974 stated at p 5/1/27 par 10(1) that:
“... for the purposes of this recommendation ‘freedom of employment’ means freedom of choice of employment that is to say, each person shall have the right in accordance with his own wishes, to practise any lawful profession or carry on any lawful trade or business.”
This was affirmed in Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329 at 339 that the right guaranteed is to choice not to the practice of employment. (My emphasis.)
I consider that the Act and ss 35, 42 and 43, in particular, do not infringe Mr Karingu’s right or freedom of choice of employment. He can choose to be or not to be a lawyer.
He is not compelled to be a lawyer nor is he prevented from being a lawyer. But the right to freedom of choice of employment is by the section expressly made subject to the exceptions of “a law that complies with section 38, or a law that imposes restrictions on non-citizens” such as in the Premdas case.
I consider that ss 35, 42 and 43 and indeed the whole of Pt IV on Practising Certificates do not deal with or infringe the freedom of choice of employment but the practice of that employment, as the heading suggests. In relation to the Act, of course, we are dealing with the practice of the law and none other, after a person has made his or her choice to pursue law and its practice as a profession or employment. Section 48(1) specifically provides that the choice is not necessarily absolute but dependent upon the person having “the qualifications (if any) lawfully required”.
I consider that the further requirement, or condition for professional indemnity insurance cover as prerequisite to the further condition for the obtaining of an unrestricted practising certificate before an admitted lawyer can practise, over and above the Pt III admission qualifications, is a perfectly valid “qualification lawfully required” for the practice of the choice of employment/profession as a lawyer.
Section 48(1) permits the legislature to provide, require and stipulate any or any further “qualifications lawfully required” for the practice of the “choice of employment in any calling”.
LOS J: The applicant was admitted to practise as a lawyer pursuant to the provisions of Pt III of the Lawyers Act (Ch No 91) (the repealed Act). Under the repealed Act, s 9, once a person was admitted by the Court, by virtue of that admission he became entitled to practise as a lawyer pursuant to s 10. Nothing else was needed. On passing of the Lawyers Act 1986 (the Lawyers Act), the applicant and the persons in that category who had already been admitted to practise were required to do certain things to continue to practise. First, they had to become members of the Law Society established by the Act, by s 9 of the Lawyers Act, which has been quoted in full by Kapi Dep CJ.
Further, they were required by s 35 to hold practising certificates:
“35.    Requirement to Hold a Practising Certificate
(1)      A person shall not practise as a lawyer unless:
(a)      he has signed the Roll; and
(b)      he is the holder of a current restricted or unrestricted practising certificate.
(2)      A person who practises as a lawyer contrary to the provisions of Subsection (1) is guilty of an offence.
Penalty: A fine not exceeding K1,000.00.”
When applying for a practising certificate the applicant, like others, had to produce evidence of professional indemnity insurance.
“43.    Society Shall Require Evidence of Professional Indemnity Insurance
An applicant for an unrestricted practising certificate shall produce evidence of professional indemnity with an insurer approved by the Society in an amount considered adequate by the Society.”
The applicant by compulsion of ss 9, 35 and 43 had to become a member of the Law Society, had to apply for a practising certificate, and had to take out professional indemnity by paying a premium of K1,800.
The applicant now argues that the Lawyers Act violates his freedom of assembly and association guaranteed by s 47 of the Constitution and his freedom of employment guaranteed by s 48 of the Constitution.
“47.    Freedom of Assembly and Association
Every person has the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations or other associations, except to the extent that the exercise of that right is regulated or restricted by a law:
(a)      that makes reasonable provision in respect of the registration of all or any associations; or
(b)      that imposes reasonable restrictions on public office-holders; or
(c)      that imposes restrictions on non-citizens; or
(d)      that complies with Section 38 (general qualifications on qualified rights).”
Despite being called a “society”, I think the Law Society is an association that falls into the description “other associations” in s 47 of the Constitution. One could argue that because the definite descriptions are given to “political parties”, and “industrial organizations” in s 47, by ejusdem generis rule, “other associations” must relate to either political or industrial organisations. The Law Society cannot be one of them, thus s 47 does not apply to the Law Society. This would be restricting the meaning of association unnecessarily. It seems to me the Constitutional Planning Committee (Report, par 5/1/11) had wider meaning when it used the words:
“Our recommendation safeguards the right of every person to join a political party, a trade union or any other association or group. People of like mind ... or with similar interests ... should be able to join together to work for common purposes.” (My emphasis.)
A wider meaning has also been given by courts in different jurisdictions. The Supreme Court of Sri Lanka in Gunaratne v People’s Bank [1987] LRC 383 at 395 expressed the scope of association as:
“This right of association is of great value and has varied scope. It embraces associations which are political, social, economic and includes even such as clubs and societies.”
In the light of all these, I think it would be futile to restrict the meaning of “associations”. The Law Society falls in under “other associations”. It must therefore comply with the provisions of s 47. Any restrictions or regulations of the right protected by s 47 can be imposed under a law, in this case, the Lawyers Act. But it must comply with s 38 of the Constitution. There is nothing in the Preamble to the Lawyers Act that indicates compliance with s 38. It is also conceded by counsel for the Law Society that the Lawyers Act has not complied with s 38.
In my respectful view, the Lawyers Act as a whole is not necessarily ultra vires s 38 or s 47. Many of the provisions in the Act do not infringe or have any potential to infringe s 47 of the Constitution. In this respect, I agree with the sensible line of reasoning taken by Bredmeyer J. The Court is empowered under s 57(3) of the Constitution to make such orders as are necessary. And I add that, in doing so, it must “give paramount consideration to the dispensation of justice” (s 158(2)). What justice should the Court seek to dispense? It is clear to me that the applicant does not want to be a member of the Law Society. He does not wish to be told that professional indemnity insurance is necessary. As a corollary to that, he does not want the Law Society to determine the amount of premium nor does he want the Law Society to choose an insurance company for him. On the other hand, the Law Society wants to control the practice of law from the professional point of view as well as the consumer’s point of view and to foster the rule of law in the country. These aims are reflected in s 7 of the Lawyers Act entitled “Functions of the Law Society” which has been quoted in full by Bredmeyer J above.
Obviously the Parliament found the functions of the Law Society not only admirable but necessary. Otherwise, the Lawyers Act would not have been passed. In my respectful view, if the Parliament, as the highest intelligent law-making authority in the country, had been told that to make the membership of the Law Society compulsory without complying with s 38 of the Constitution, would be ultra vires s 47 of the Constitution, it would have not rejected the whole Lawyers Act. The Parliament would have taken a course that would save the Law Society, its membership and the function of the Law Society. It would have taken one of two courses of action. First, it would have sought to comply with the provisions of s 38. Alternatively, by leaving the Act in its present form, it would have used language that left membership to the discretion of each lawyer. Having not taken the first course, the only thing it would have done was to have left it to each lawyer to decide whether to become a member of the Law Society. In practical terms, it would have used the words “may apply” instead of “shall apply” in s 9(1) and (2) of the Lawyers Act. In accordance with s 57(3), I declare now that the words “shall apply” be read as “may apply”. In this way s 9 of the Lawyers Act is read subject to s 47 of the Constitution so that by virtue of s 10 of the Constitution, s 9 of the Lawyers Act is valid to the extent to which it is not in excess of s 47.
The applicant next argues that his freedom of employment is restricted by s 35 of the Lawyers Act, which requires him to obtain and possess a practising certificate, and by s 43, which requires him as a condition of being granted a practising certificate that he must obtain and hold professional indemnity insurance. I think that the reasons why a practising certificate is necessary and why professional indemnity insurance is necessary cannot be disputed. There is, however, a difficulty with the definition of “required qualifications”. An extension of this difficulty relates to the role of the National Court and the Law Society. Both seem to arise from either the drafting of the Act or a policy decision that had gone before the drafting. Section 25 is not yet in force and if it was in force it would not affect the applicant because he was admitted under the provisions of the repealed Act. Nevertheless, as s 25 and s 26 stand, it is not clear whether admission by the Court is subject to any further requirement imposed by the Law Society.
Under the repealed Act, the Court had a last say on who was qualified to practise. This is obvious under s 9 and s 10 of the repealed Act. There is no substantial change in the wording used in s 28 of the Lawyers Act 1986 insofar as giving the power to the court to admit a person to practise is concerned. The only proviso is that the court must be satisfied that the person has “the required qualifications”. The required qualifications are defined by s 25(2) and (3):
“25.    Qualifications for Admission
(2)      The required academic qualifications referred to in Subsection (1) are:
(a)      possession of the degree of Bachelor of Laws from the University of Papua New Guinea; or
(b)      such other academic or educational qualifications as are prescribed by the Rules of Court.
(3)      The required practice qualifications referred to in Subsection (1) are:
(a)      a certificate in the form prescribed by the Rules of Court signed by the Director of the Papua New Guinea Graduate Legal Training Institute certifying that the applicant has successfully completed the course of training conducted by the Institute; or
(b)      a certificate from the appropriate overseas authority certifying that the applicant was admitted to practise in a country prescribed by the Rules of Court together with evidence that the applicant has practised as a lawyer in a country prescribed by the Rules of Court for a period of not less than three years following the date of his admission to practise in that country; and
(c)      such other practice qualifications as are prescribed by the Rules of Court made after consultation with the President; and
(d)      a certificate in the form prescribed by the Rules of Court that the applicant is a fit and proper person to be admitted to practise in Papua New Guinea.”
The members of the public who are the consumers of the legal practice expect the best from the practitioners. Continued and up-to-date qualifications are necessary for all practitioners. Therefore practising certificates are necessary. If a practitioner is sued by a dissatisfied client, the practitioner can rely on his indemnity insurance. This way the practitioner’s and the client’s needs are both catered for. But s 25 does not say so. There has been no other practice qualification prescribed by the Rules of Court pursuant to s 25(3)(c). The practising certificate and professional indemnity insurance may not be any of the “required qualifications” in s 25.
There is indication, if it can be read that way, in s 33, that admission of a person to practise by the Court does not entitle him to practise until he complies with further requirements under the Lawyers Act.
“33.    Practice
A person:
(a)      who has been admitted to practise as a lawyer under Section 28; and
(b)      has signed the Roll,
may practise as a lawyer in accordance with the provisions of this Act.” (My emphasis.)
My first impression of the phrase “in accordance with the provisions of this Act” is that the phrase refers to the manner of practice and the conduct of lawyers particularly in relation to Remuneration of Lawyers in Pt VI, Trust Accounts in Pt VII, and Deposit of Trust Funds in Pt III of the Lawyers Act. I put the limitation on the application of the phrase again because of the definition of “required qualification” in s 25. However, this is not quite correct in view of other sections in the Lawyers Act and the language of s 48 of the Constitution itself.
At the time of admitting a person to practise, take, for example, new graduates from the Legal Training Institute, the Court must be aware that many of those may not have any jobs secured for them. Others may become research officers, some may join an educational institution, others may take up graduate studies immediately after the admission. There is no compulsion to practise. Section 33 says “may practise”. If any of these persons want to practise, then they have to do so “in accordance with the provisions of the Act”. They are required to know how to run an office. They must know how to keep and maintain trust accounts. They must know how to do costing. They must appreciate that they can be sued for professional negligence. A practising certificate reflects that knowledge. Someone who is holding a practising certificate may leave the practice. He may return to practise after a period. He cannot just walk in and practise; he has to practise “in accordance with the provisions of this Act”. That is, he must apply for a practising certificate and, if he is still qualified, he may get a practising certificate.
The fact of admission by the Court cannot be sufficient evidence of continued and up-to-date practice know-how. It cannot be sufficient evidence of continuing to be “fit and proper”. The point of raising all these points is that, at the time of admitting a person to practise, the Court is aware that the person admitted has to comply with other requirements of practice if he wishes to go into practice. Section 33 brings to the notice of the Court this information. An extension of this knowledge and authority are the provisions relating to the admitted person’s right of review. Section 45 of the Lawyers Act gives a person the right to apply to the Court for review of a decision refusing to grant a practising certificate. Likewise, if a lawyer’s practising certificate is withdrawn, he may apply to the Court under s 47 to review the decision to withdraw the practising certificate. The review in either case may involve the question of fitness as to character, or as to know-how. So, this again ties in with practice “in accordance with the provisions of this Act”.
I now look at what s 48 says about the qualifications of a lawyer. The section does not give any special definition that would limit the meaning of “qualifications”. I had a difficulty because the Lawyers Act defines qualifications by the adjectives “required”, “academic”, and “practice”. I think “qualifications” used in s 48 is wide because it applies to different callings. For any calling, however, there is a restriction; a restriction by way of qualifications. This, to start with, is acknowledged by the introductory section on right to freedom in s 32 of the Constitution. Freedom “based on law consists in the least amount of restrictions on the activities of individuals ...”. There is always a restriction on any freedom. That includes freedom of employment. The right guaranteed in s 48 is freedom to choose employment or, in the context of this case, freedom to choose a profession: Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329. One can choose to become a doctor or a lawyer. But if one does not have medical qualifications, one cannot be a medical practitioner. If one does not have legal qualifications, one cannot practise as a lawyer. In my view, there is no freedom after a choice has been made to enter into a specific profession. After the choice, a person must obtain the “qualifications” pertaining to the profession and maintain those “qualifications” throughout his or her working life. The “qualifications” required by the Constitution are subject to one thing only, and that is, that “qualifications” must be “lawfully required”. In the widest sense, “qualifications” as applied to those who have chosen to be lawyers, without dividing lawyers into any categories, are the admission qualifications prescribed in Pt III and the practice requirements in Pt IV of the Lawyers Act.
In the applicant’s case, by virtue of the transitional provisions in Pt XIII of the Lawyers Act, s 111 and s 112 in particular, he is deemed to have complied with the admission-to-practise provisions under Pt III of the Lawyers Act. He has also complied with the continuing practise provisions in Pt IV. Both qualifications are lawfully required by the Lawyers Act.
I would make the following declarations therefore:
1.       that the mandatory membership of the Law Society imposed by the words “shall apply” in s 9(1) and (2) of the Lawyers Act infringes s 47 of the Constitution. But the word “shall” interpreted “may” by reason of s 10 of the Constitution does not infringe s 47 of the Constitution.
2.       that s 35 and s 43 of the Lawyers Act 1986 do not infringe s 48 of the Constitution.
As to costs, I would like to hear arguments before making any decision.
HINCHLIFFE J: The applicant is a partner in a law practice in Port Moresby. He has made a number of submissions to this Court in relation to certain provisions of the Lawyers Act 1986 (hereinafter referred to as “the Act”). Section 9 of the Act makes it compulsory for a lawyer admitted under the Act to become a member of the Papua New Guinea Law Society (hereinafter referred to as “the Society”). Section 9 has been quoted in full by the Deputy Chief Justice.
Mr Karingu argues that s 9 is unconstitutional because it is contrary to s 47 of the Constitution of Papua New Guinea which provides as follows:
“47.    Freedom of assembly and association
Every person has the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations or other associations, except to the extent that the exercise of that right is regulated or restricted by a law:
(a)      that makes reasonable provision in respect of the registration of all or any associations; or
(b)      that imposes reasonable restrictions on public office-holders; or
(c)      that imposes restrictions on non-citizens; or
(d)      that complies with Section 38 (general qualifications on qualified rights).”
Mr Karingu does not wish to be a member of the Society.
It seems to me that if s 47 applies to the Society, then the Society falls into the category of “other associations”. Clearly it is not a political party and I am unable to agree with the argument that it is an industrial organisation. I am assisted in that view by the definition of “industrial organisation” in s 1 of our Industrial Organizations Act (Ch No 173) which reads as follows:
“A trade or other union, or branch of a union, or an organization or body:
(a)      that is composed of, or is representative of, employers or employees; and
(b)      one of the objects of which is, under its constitution, the regulation, in respect of industrial matters, of the relations between:
(i)       employees and employers; or
(ii)      employees and employees; or
(iii)     employers and employers,
or for taking part in or in the settlement of industrial disputes on behalf of its members ...”
Section 7 of the Lawyers Act sets out the functions of the Society and I am quite satisfied after reading that section that the Society is not an industrial organisation.
Is it an association? The Oxford Advanced Learner’s Dictionary of Current English defines an association as “a group of persons joined together for some common purpose: the Automobile Association, the Young Men’s Christian Association”. The said Dictionary defines a society as “an organization of persons formed with a purpose; club; association”. After considering s 7 (Functions of the Society) and s 8 (Powers of the Society) of the Act, I am satisfied that the Society is an association and one that falls within s 47 of the Constitution. The fact that the Society is a body corporate with perpetual succession, to my mind, does not affect its role as an association. Many associations are incorporated.
By s 47 of the Constitution, a person cannot be compelled to belong to an association, therefore it follows that s 9(1) and (2) of the Act are unconstitutional. But does that mean that these are invalid and void or does s 10 of the Constitution become applicable? Can it save s 9 of the Act? Section 10 provides as follows:
“10.    Construction of written laws
All written laws (other than this Constitution) shall be read and construed subject to:
(a)      in any case — this Constitution; and
(b)      in the case of Acts of the Parliament — any relevant Organic Laws; and
(c)      in the case of adopted laws or subordinate legislative enactments — the Organic Laws and the laws by or under which they were enacted or made,
and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.”
It would seem that, if the word “shall” in s 9(1) and (2) of the Act was read down to read “may”, then membership of the Society would be voluntary and those parts of s 9 of the Act would no longer be unconstitutional. But can s 10 of the Constitution be applied in such a way or is reading down “shall” to mean “may” embarking on judicial legislation?
“The restriction that in no case can the Court be required to legislate cannot be excluded under s 10, for this Court has no function in relation to the legislative power which is vested in the National Parliament. Constitution, ss 99, 100.”: see Peter v South Pacific Brewery Ltd [1976] PNGLR 537 (Frost CJ (at 546)).
Clearly judicial legislation is unconstitutional.
At 547, in the said case, his Honour said:
“... My view is that s 10 is a rule of construction in the sense that it provides a guide for the ascertainment of the intention of Parliament in the case of partial invalidity of a law; but for the particular legislative intention always to prevail in accordance with the spirit of the Constitution. This means that if from the terms of an Act it appears that Parliament intended that only the Act as a whole should come into operation, then the whole would fail if there was partial invalidity.”
Again, at 550, his Honour said:
“... first, on the plain meaning of s 10 its only operation is to preserve that portion of the law which remains valid; no power is given to the Court to propound any additional provision, except as is necessarily involved and therefore impliedly permissible under the section by way of words of qualification to preserve that portion of the existing law which is not in excess of authority.”
I have reached several conclusions relating to s 9 of the Act which in my opinion save its operation in a limited form. The first is that, even though it was the Parliament’s intention that all lawyers admitted to practise be compelled to become members of the Society, it could not be said that the reading down will mean a different operation of the section. I am of the view that Parliament’s main intention was to establish the Papua New Guinea Law Society for the benefit of lawyers and therefore, indirectly, for the benefit of the public. The reading down of the word “shall” to mean “may” does not conflict with Parliament’s overall intention but it now means that lawyers can still benefit from that membership but they cannot be compelled to join. It also seems that the benefit to the public, as far as the reading down is concerned, would not be altered.
There are obvious benefits in being a member of such a body as the Society and it would not surprise me, even if membership becomes voluntary, that most lawyers still join.
Secondly, there is nothing to indicate that s 9 is incapable of any operation if membership of the Society is not mandatory. I am of the view that it is quite capable of operating when membership of the Society is voluntary.
When considering construction, the view should be taken that Parliament has legislated to bring about an effective result. That approach is supported by s 109(4) of the Constitution. Needless to say, as was stated in Peter’s case (at 542), such a construction cannot be supported if the section clearly contravenes the Constitution.
Thirdly, it could be argued that limiting the operation of the section, by reading down the word “shall” to mean “may” and thus making membership of the Society voluntary rather than mandatory, means the replacement of one word with another, and thus amounts to judicial legislation.
But I cannot accept that argument and I find confidence in that conclusion by referring again to Peter’s case and his Honour’s remarks on a similar type of argument (at 548) when he said:
“But this ground cannot be taken literally or to its fullest extent, because s 10 only comes into operation after some part of the original Act has been held invalid, so that the section contemplates that the Act as saved in operation must be in different terms.”
Like his Honour, I also found it useful to read Newcastle and Hunter River Steamship Co Ltd v Attorney-General for the Commonwealth (1921) 29 CLR 357. In not accepting the judicial legislation argument, I also refer to and repeat the passages from the case mentioned earlier in this judgment.
Hence I have reached the conclusion that to read down the word “shall” to mean “may” does not in this case amount to judicial legislation.
“ ‘Indeed it is merely the process of construction which this Court is required to undertake under s 10.”: see Peter v South Pacific Brewery Ltd at 549.
Therefore I would read down the words “shall apply” in s 9(1) and (2) of the Act to mean “may apply”.
It follows then that the applicant is not compelled to remain a member of the Society and on resignation is entitled to a refund of the membership fee.
FREEDOM OF EMPLOYMENT
Section 48 of the Constitution provides as follows:
“48.    Freedom of employment
(1)      Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that the freedom is regulated or restricted voluntarily or by a law that complies with Section 38 (general qualifications on qualified rights) or a law that imposes restrictions on non-citizens.”
Mr Karingu has submitted that his freedom of employment is restricted by the fact that in accordance with Pt IV of the Act he is compelled to take out a practising certificate (s 35). Because he requires an unrestricted practising certificate he also must be a holder of professional indemnity insurance (s 43). The opposite view is that the requirement of a practising certificate and professional indemnity insurance is part of the “qualifications lawfully required” and therefore there is no restriction on freedom of employment.
Prior to the Act, Mr Karingu could lawfully practise in his profession without a practising certificate or indemnity insurance. Some practitioners are finding it difficult to pay for the insurance, especially those in smaller or new practices.
But can it be argued that Mr Karingu does have the “qualifications lawfully required” to practise as a lawyer but his right to practise is restricted because he must take out a practising certificate (s 35) and professional indemnity insurance (s 43)? Therefore is the restriction in breach of s 48(1) of the Constitution?
Mr Karingu was admitted to practise as a lawyer under Pt III of the repealed Lawyers Act (Ch No 91) — hereinafter referred to as the “repealed Act”.
Section 10(1) of the repealed Act provides as follows:
“10.    Form of practice
(1)      A person who is admitted, or, subject to Subsection (2), a person who is provisionally admitted, is entitled to practise as a lawyer.”
There is no dispute that the applicant was admitted to practise under the repealed Act and that he has been practising as a lawyer. Under the repealed Act he obtained a certificate of qualification and because of that he was admitted to practise as a lawyer by the National Court. In fact, he was “entitled to practise as a lawyer”.
Under the present Act, the situation is different to the repealed Act in that s 33 provides as follows:
“33.    Practice
A person:
(a)      Who has been admitted to practise as a lawyer under Section 28; and
(b)      has signed the Roll,
may practise as a lawyer in accordance with the provisions of this Act.”
Under the repealed Act, there were no such words as “in accordance with the provisions of this Act”. I am of the view that those words in the present Act “marry” Pt III and Pt IV of the Act and the practising certificate and professional indemnity insurance requirements are therefore part of the “qualifications (if any) lawfully required”. In other words, a new admittee under Pt III of the present Act could not say that the requirement to obtain a practising certificate and eventually take out insurance is unconstitutional.
I might say at this stage that Pt III of the present Act, except s 30 and s 33, has not yet commenced and I am not impressed by the fact that counsel did not mention this at the hearing of the application.
Even though s 33 has commenced, it would seem to have little effect at the moment because it refers to s 28 which has not commenced. Section 28 refers to s 25 and s 26 which also have not yet commenced.
I am therefore reluctant to discuss at length the sections in Pt III of the present Act that have not yet commenced. It may well be that they will never commence or if they do, some may be in an amended form.
A person such as the applicant, who was admitted under the repealed Act, is in a very different situation. The National Court, at the time, said that he was entitled to practise as a lawyer. He had his certificate of qualification and there were no other conditions. He therefore had the “qualifications (if any) lawfully required”.
Now it is argued that the present Act adds to those qualifications in that a practising certificate and insurance are necessary or the applicant can no longer practise law. That is, all of a sudden he does not have the qualifications lawfully required to practise as a lawyer. I do not agree with that. The applicant has been admitted to practise as a lawyer by the National Court and I am of the view that that should not be altered. It would be harsh and unfair to say now, “Well, you were qualified before but now you are not”.
I am of the view that Pt IV of the present Act and Pt III of the repealed Act do not “marry” and that the said Pt IV is a restriction on the applicant’s right to practise as a lawyer and, as it stands at the moment, is contrary to s 48(1) of the Constitution.
Section 48(1) of the Constitution envisages that a law may regulate or restrict a choice of employment but it must comply with s 38 of the Constitution.
A law which regulates or restricts a freedom such as in the present Act, must comply with s 38(2):
“... a law must:
(a)      be expressed to be a law that is made for that purpose; and
(b)      specify the right or freedom that it regulates or restricts; and
(c)      be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.”
Clearly the regulation or restriction of the practice of the law under Pt IV of the Act does not comply with s 38 of the Constitution.
In conclusion, I will refer to s 43 of the present Act. It provides as follows:
“43.    Society shall require evidence of professional indemnity insurance
An applicant for an unrestricted practising certificate shall produce evidence of professional indemnity insurance with an insurer approved by the Society in an amount considered adequate by the Society.”
As I understand it at the moment, the Society has fixed a mandatory insurance cover to the extent of at least K500,000. That required the payment of a premium of K1,800 for each person who holds an unrestricted practising certificate.
On my reading of the section, it seems to me that each lawyer could assess his own situation and then in some instances possibly arrive at the conclusion that a K500,000 cover was not necessary. Perhaps K200,000 would be adequate. He could then approach the Society with his assessment and seek approval of the lesser sum. If that sum was approved, he could take out the insurance cover and then apply for an unrestricted practising certificate producing evidence of professional indemnity insurance with an insurer that has been approved by the Society in an amount that has been considered adequate by the Society.
To my mind, that would be a fairer situation than exists at the moment because I would have thought that some people do not need to take out insurance cover as high as K500,000. Clearly there are other people who would need insurance cover well in excess of K500,000 and the Society may see fit to only grant unrestricted practising certificates to those people if they have adequate insurance.
I would make the following declarations:
1.       Section 9 of the Act is not inconsistent with s 47 of the Constitution if the words “shall apply” are read down to mean “may apply” in accordance with s 10 of the Constitution.
2.       The requirement for the applicant (and other admittees under the repealed Act) to hold a practising certificate and to take out professional indemnity insurance under Pt IV of the present Act does not comply with s 38(2) of the Constitution and is invalid and of no effect.
KAPI DCJ BREDMEYER AMET LOS HINCHLIFFE JJ:  The Court makes the following declarations:
1.       The word “shall” in s 9(1) and (2) of the Lawyers Act 1986 shall be interpreted to mean “may” by reason of s 10 of the Constitution and therefore does not infringe s 47 of the Constitution.
2.       Sections 35 and 43 of the Lawyers Act 1986 do not infringe s 48 of the Constitution.
3.       The question of costs be reserved for argument at the next Supreme Court sitting.
Declarations accordingly
Lawyers for the applicant: Karingu Sitapai Kemaken & Associates.
Lawyer for the respondent: K Y Kara.