N4030

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 579 OF 2006

IN THE APPLICATION FOR JUDICIAL REVIEW

BETWEEN:

THE NATIONAL AGRICULTURE QUARANTINE & INSPECTION AUTHORITY
Plaintiff

AND

JERRY TETAGA, CHAIRMAN OF PUBLIC SERVICES COMMISSION
First Defendant

AND

STEVEN RAMBE
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Injia, CJ
2009: 18th September

JUDICIAL REVIEW – Public Service Commissions decision to annul NAQIA’s decision to terminate second defendant – second defendant General Manager of NAQIA – main issue - whether PSC has power, authority or jurisdiction to deal with and determine application for review brought before it by employee or officer employed by NAQIA under the NAQIA Act – grant of relief – certiorari - PSC does not have jurisdiction to review collective decision made by controlling Board of statutory authority such as NAQIA Board vested with corporate status – decision quashed and decision of NAQIA Board restored – s.18 Public Service (Management) Act 1995, ss 190, 191, 194 & 195 Constitution, ss 20-27 NAQIA Act and s 18, O.16 r.3 National Court Rules

Cases Cited:

Asakusa v Kumbakor (2008) N3303.
David Nelson v Pruaitch (2004) N2536; 
John Kapil Worm v Malcom Culllingan & The State (1995) N1333;
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.
Mathew Petrus Himsa v Richard Sikani (2007) N2307; 
Sulaiman v UPNG (1987) N610
Zachary Gelu v Francis Damem & Ors (2004) N2762.

Counsel:

G. Muroa, for the Plaintiffs
L.Kari, for the Second Respondent
No appearance for the First and Third Defendants

18th September, 2009

1. INJIA, CJ: The plaintiff (NAQIA) is a statutory authority established under the National Agriculture Quarantine and Inspection Authority Act 1997 ("NAQIA Act"). It applies for judicial review of the First Defendant’s (PSC) decision to annul NAQIA’s decision to terminate the Second Defendant’s (Mr Rambe) employment pursuant to s 18 of the Public Service (Management) Act 1994 ("PSM Act"). NAQIA seeks an order in the nature of certiorari to quash the PSC’s decision.

2.  The application is contested by Mr Rambe. The PSC and First and Third Defendants (the State) were served with the application and supporting affidavits but showed no interest in the proceedings.

GROUNDS OF REVIEW

3.	The grounds of relief pleaded in the amended Statement filed on 18th October, 2006, under O 16 r3 of the National Court Rules, are as follows:

(i)	The decision of the First Defendant made on or about 9th June 2006 to hear and determine the Second Defendant’s application for review of the Plaintiff Authority’s decision dated 15th July, 2004 to terminate the Second Defendant’s contract of employment was erroneous and therefore is ultra vires the power of the First Defendant as the First Defendant lacks power in that:-

•	the Second Defendant was employed by the Plaintiff under powers given to it under the National Agriculture & Quarantine Authority Act and not under the Public Services (Management) Act;

•	the Plaintiff is the legal authority to make the decision to terminate the Second Defendant’s Contract and the First Defendant had no power to overrule the Plaintiff’s decision;

•	the provisions of the Public Services (Management) Act relevant to employment of officers at the level of the Second Defendant do not apply to the Plaintiff Authority’s employees;

•	the first Defendant did not have the authority to entertain, hear and determine an appeal or application from the Second Defendant to review the Plaintiff’s decision to terminate the Second Defendant’s employment contract because the Second Defendant’s application to the First Defendant was not a "personnel matter" coming within Section 191(1)(a) of the Constitution.

(ii)	the decision of the First Defendant made on or about 9th June, 2006 which purported to annul the Plaintiff Authority’s decision to terminate the Second Defendant and direct the Plaintiff Authority to re-instate the Second Defendant to his former substantive position in the Plaintiff Authority without loss of salary and other entitlements retrospective to the date of his termination is ultra vires the power of the First Defendant and therefore unlawful as the First Defendant does not have any power to direct the Plaintiff in that:-

•	The Second Defendant was employed by the Plaintiff under powers given to it under the National Agriculture & Quarantine Authority Act and not under the Public Services (Management) Act.

•	The Plaintiff is the legal authority to make the decision to terminate the Second Defendant’s Contract and the First Defendant had no power to overrule the Plaintiff’s decision;

•	The provisions of the Public Services (Management) Act relevant to employment of officers at the level of the Second Defendant do not apply to the Plaintiff Authority’s employees;

(iii)	The decision of the First Defendant made on or about 9th June 2006 annulling the decision of the Plaintiff Authority dated 15th July 2004 to terminate the Second Defendant’s contract of employment and directing the Plaintiff authority to re-instate the Second Defendant to his former substantive position in the Plaintiff Authority without loss of salary and other entitlements is unreasonable within the Wednesbury principle in that the decision is not in accordance with law as the First Defendant does not have power under the Public Services Management Act 1995 (as amended either to annul the Plaintiff Authority’s decision to terminate the Second Defendant for cause or to direct the Plaintiff Authority to re-instate the Second Defendant who was terminated for cause under the National Agriculture Quarantine and Inspection Authority Act 1007 to his former position within the Plaintiff authority in that, as an employer, the Plaintiff Authority has the power to terminate under its enabling legislation.

4. The main issue raised by the grounds is whether PSC has the power, authority or jurisdiction to deal with and determine an application for review brought before it by an employee or officer employed by NAQIA under the NAQIA Act.

EVIDENCE

5. The evidence is in affidavits. The plaintiff relies on two affidavits filed by NAQIA’s Managing Director Mr Andrew Yamanea sworn on 16th August, 2006 and 14th November 2007 respectively. The Second Respondent relies on his affidavit filed on 3rd August, 2007.

FACTS

6. The undisputed facts are as follows. The plaintiff is a qualified economist. He holds a degree of MSc. Ag. Studies (University of Queensland, Australia), Post Graduate Dip. Agric. Economics, (University of New England, Australia) and B. Econ. (UPNG). Prior to his employment with NAQIA, he served for some 18 years with the Department of Agriculture and Livestock. On 2nd July 2008, he entered into a three year written contract of employment with the NAQIA to serve as General Manager of the Corporate Services Division. The contract period was for three (3) years.

7. At the material time, Mr Yamanea was NAQIA’s Managing director. Mr Rambe served under Mr Yamanea’s management between 4th September 2003 to 4th June 2004. On 16th June 2004, Mr Yamanea brought five (5) disciplinary charges against Mr Rambe. The charges ranged from failure to secure the safety of an office motor vehicle allocated to him and neglect of duty. It is necessary to reproduce a sample of the notice of charge. The Charge document states:

"FORM 9.3
"PUBLIC SERVICES (MANAGEMENT) ACT 1995

"NOTICE OF CHARGE UNDER SECTION 25 OF THE TERMS AND CONDITIONS OF CONTRACT OF EMPLOYMENT

"To: Mr Stephen Rambe
General Manager – Corporate Services 
NAQIA
BOX 741
PORT MORESBY NCD 

PLEASE TAKE NOTICE THAT: Pursuant to the provisions of Section 25 of your contract of employment, you are hereby charged with having committed serious disciplinary offences, within the meaning of Section 1.11(a), (d) and (e) of the NAQIA Disciplinary Procedures which is part of the terms and conditions of the contract.

FACT: You have failed to skillfully, diligently and in a timely manner perform all the duties of work and achieved the specified outputs and do all things necessary to maintain or improve the efficiency of working within NAQIA’s Business and Strategic Plan and Budget constraints as applicable in that:-

(a)	You failed to ensure that tax returns to Internal Review Commission were promptly paid thereby causing NAQIA to incur K111,468.63 of unbudgeted funds for 2004; and

(b)	You failed to ensure payments of tenancy agreements thereby causing NAQIA to incur K42 000.00 of unbudgeted funds for 2004; and

(c)	You caused NAQIA to incur approximately K200 000.00 of unbudgeted funds for 2003 and 2004 when engaged new recruits without meeting procedural requirements on recruitments; and

(d)	You failed to ensure payment of lease rentals with proper tenancy agreements in place enabling NAQIA to incur additional costs.

"Theses conducts, actions and or inactions are deemed to be in breach of the performance of your duties under Section 16 of the Terms and Condition of the Employment contract and also Division 1 and 2 (Accountable Officer) of the duties and responsibilities of the Financial Management Manual 2002.

"PLEASE TAKE FURTHER NOTICE: You may, if you so decide, request to sight copies of non-confidential documents or reports, or obtain extracts or information from those documents or reports that are relevant to the charges made against you hereunder, to enable you to obtain such information in accordance with arrangements determined by the Managing Director.

"PLEASE TAKE FURTHER NOTICE: That in accordance with Section 25, of the Terms and Conditions (Section 1:23 of the NAQIA Disciplinary Procedures), you are required to respond in writing to the charges within 7 days of receipt of the charges, to enable you to state whether you admit or deny the truth of the charges, and give any explanation in writing that you may think fit for my consideration.

"AND PLEASE TAKE FURTHER NOTICE: That should you fail to respond in the manner required, within the stipulated time, you may be deemed to have admitted the truth of the charges, and thereby render liable to termination for cause.

Dated this 16th day of June 2004.

 (Signature)
  Managing Director 

8. Following service of the charges, Mr Rambe was suspended from duties. On 21st June 2004, Mr Rambe through his lawyer, Keta Lawyers, replied to the charges. He denied all the charges.

9. On 15th July 2004, Mr Yamanea determined the charges. He found the charges established and terminated Mr Rambe’s contract of employment. Mr Yamanea gave a 8-page written reasons for decision. In the decision Mr Rambe was advised that he had a right of appeal "through the appropriate appeal authorities according to Laws of Papua New Guinea, should you desire to do so."

10. By letter dated 4th October 2004, Mr Rambe appealed to the NAQIA Board. On 17th August 2005, Mr Rambe submitted a further letter of appeal to NAQIA Board for further appeal. The NAQIA Board considered the matter and dismissed the appeal. On 13th September 2005, Mr Yamanea on behalf of the NAQIA Board advised Mr Rambe of the decision of "NAQIA Board Special Appeals Committee." The advice was accompanied by a 3-page written decisions which gave reason for the decision.

11. On 17th June 2004, Mr Rambe wrote to PSC seeking a review of NAQIA’s board’s decision on his appeal. On 13th September 2004, by letter, the PSC advised Mr Rambe that the PSC lacked jurisdiction to review the decision as it involved a Contract Officer with a Statutory Corporation. The PSC then referred the matter to the Department of Personnel Management (DPM).

12. DPM referred the letter to the Salaries and Conditions Monitoring Committee (SCMC). SCMC acknowledged receipt of the letter and by letter dated 12th October 2004, the SCMC sought a response from Mr Yamanea. Mr Yamanea responded by saying SCMC lacked jurisdiction to deal with the matter. SCMC by letter dated 18th July 2004 decided that Mr Rambe had been wrongly dismissed and ordered his re-instatement. On 3rd August 2005, Nonggorr Lawyers for NAQIA in writing to SCMC protested the decision saying SCMC lacked jurisdiction to deal with the matter.

13. Also in this period, Mr Rambe took up the matter with two (2) State Ministers. The Ministers told Mr Yamanea to reinstate Mr Rambe but he refused to do so.

14. On 19th September 2005, Mr Rambe re-applied for a review by PSC under s 18 of PSM Act. In the application for review, Mr Rambe sought PSC’s decision to direct NAQIA board to annul decision to dismiss him, reinstatement and payment of backdated entitlements. On 7th October 2005 PSC issued notices of a hearing under s 18 of PSM Act to Mr Rambe and NAQIA. NAQIA attended the hearing and was represented by Nonggorr Lawyers. NAQIA disputed PSC’s jurisdiction to hear the matter. PSC dismissed the objection and heard the matter. On 9th June 2006, PSC granted the review and decided to annul Mr Yamanea’s decision of 15th July 2004 and reinstate him to his position. The Commission published a 6-page written decision in which it gave reasons for decision. The Plaintiff now seeks a review of this decision.

Relevant Statutory Provisions

15. To my knowledge this is the first case in which the PSC’s power to review a decision of a Chief Executive or governing board of a statutory authority on a personnel staff matter is questioned and parties seek a judicial determination on the issue. For this reason, it is necessary to set out the relevant provisions of the Constitution, NAQIA Act and PSM Act under consideration in full. Those are ss 190, 191, 194 & 195 of the Constitution, ss 20-27 of NAQIA Act and s 18 of the PSM Act. 

16. Sections 190 of the Constitution establishes the PSC whilst ss 191, 194 & 195 set out the functions of the PSC in personnel matters as follows: 

"191. Functions of the Commission.

(1) The Public Services Commission shall be responsible, in accordance with an Act of the Parliament, for—

(a) the review of personnel matters connected with the National Public Service; and

(b) the continuous review of the State Services (other than the Papua New Guinea Defence Force), and the services of other governmental bodies, and to advise, either on its own initiative or on request, the National Executive Council and any authority responsible for any or those services, on organizational matters.

(2) The Public Services Commission has such other functions as may be prescribed by or under a Constitutional Law or an Act of the Parliament.

(3) In carrying out its function under Subsection (1)(b), the Public Services Commission—

(a) shall take into account the government policy on a particular matter when advising the National Executive Council and the other authorities responsible for those services; and

(b) shall not have any power to direct or control a State Service or the services of other governmental bodies.

(4) The Public Services Commission shall, in respect of each year, prepare and forward to the Speaker for presentation to the Parliament, a report on the advice it has given during the year to the National Executive Council or other authorities in accordance with Subsection (1)(b) indicating in particular the nature of the advice given and whether or not that advice was accepted."

194. "Personnel matters.

In this Division, "personnel matters" means decisions and other service matters concerning an individual whether in relation to his appointment, promotion, demotion, transfer, suspension, disciplining or cessation or termination of employment (except cessation or termination at the end of his normal period of employment as determined in accordance with law), or otherwise."

195. Organization, etc., of the State Services.

"Subject to this Part, Acts of the Parliament may make provision for or in respect of the State Services, and in particular for and in respect of—

(a) the structures and organizations of the State Services; and

(b) the employment of persons in the State Services; and

(c) the terms and conditions of appointment to, and of employment in, the State Services."

17. Sections 20-27 of the NAQIA Act state as follows:

"Division 3.—Staff of the Authority.

20. Managing Director.

(1) There shall be a Managing Director of the Authority whose manner of appointment, suspension and dismissal are as specified in the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.

(2) The Managing Director is—

(a) the Chief Executive Officer of the Authority; and

(b) responsible to the Board for the efficient carrying out of the functions and responsibilities of the Authority.

(3) Subject to the Salaries and Conditions Monitoring Committee Act 1988, the terms and conditions of appointment of the Managing Director are as determined by the Board.

21. Functions of the Managing Director.

(1) The Managing Director shall—

(a) manage the Authority in accordance with the policy and direction of the Board; and

(b) advise the Board on any matter concerning the Authority referred to him by the Board; and

(c) carry out and perform the duties required of him under this Act and under his contract of employment.

(2) The Managing Director has such other duties as the Board shall from time to time determine.

22. Termination of appointment of the Managing Director.

(1) If the Managing Director—

(a) becomes permanently incapable of performing his duties; or

(b) resigns his office by writing under his hand to the Minister; or

(c) occupies or holds any other paid office or employment or engages in the practice of any profession or business without the written consent of the Minister; or

(d) becomes bankrupt or applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his debtors or makes an assignment or his remuneration for their benefit; or

(e) is convicted of an offence punishable under a law by death or by imprisonment for one year or longer and, as a result of the conviction, is sentenced to death or imprisonment,

the Minister shall terminate the appointment.

(2) The Minister may, at any time, by written notice, advise the Managing Director that he intends to terminate his appointment as Managing Director on the grounds of inability, inefficiency, incapacity or misbehaviour.

(3) Within 14 days of the receipt of a notice under Subsection (2), the Managing Director may reply in writing to the Minister, who shall consider the reply and, where appropriate, after considering a recommendation of the Board, terminate the appointment.

(4) Where the Managing Director does not, within fourteen days of the receipt of a notice under Subsection (3), reply in writing to the Minister, his appointment is terminated.

(5) Where the appointment of the Managing Director is terminated under this section, the Minister shall, by a notice in the National Gazette, declare the office vacant.

23. Appointment of Officers.

(1) The Board may appoint to be officers of the Authority such persons it considers fit and necessary for the purposes of the Authority.

(2) Subject to the Salaries and Conditions Monitoring Committee Act 1988, the terms and conditions of appointment of officers of the Authority are as determined by the Board in accordance with this Act.

24. Temporary and casual employees.

(1) The Managing Director may, with the approval of the Board, appoint such temporary and casual employees as are necessary for the purposes of the Authority.

(2) Employees appointed under Subsection (1) shall be employed on such terms and conditions as the Board determines.

25. Consultants.

(1) The Board may, from time to time—

(a) within the limit of funds available for the purpose; and

(b) on such terms and conditions as are fixed by the Minister on the advice of the Board.
appoint such consultants as are necessary for the purposes of the Authority.

26. Contract of employment.

The Managing Director and every other officer of the Service (other than temporary or casual employees) shall be employed under a contract of employment which—

(a) in the case of the Managing Director, shall be executed by the Head of State, acting on advice of the Minister, and by the Managing Director; and

(b) in the case of any other employee, shall be executed by the Managing Director on behalf of the Authority and the employee.

27. Public Service rights.

Where—

(a) an officer of the Public Service is appointed as Managing Director; and

(b) an officer of the Authority was, immediately before his appointment, an officer of the Public Service,

his service as Managing Director or an officer of the Service, as the case may be, shall be counted as service in the Public Service for the purpose of determining his rights (if any) in respect of—

(c) leave of absence on grounds of illness; and

(d) furlough, or pay in lieu of furlough (including pay to dependents on the death of the officer)."

18. Section 18 of the PSM Act states as follows: 

"PART III.—REVIEW OF PERSONNEL MATTERS.

18. Review of Personnel Matters in Relation to Appointment, Selection or Discipline.

(1) The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected by the decision.

(2) A complaint referred to in Subsection (1) shall be—

(a) in writing; and

(b) made to the Commission by the officer within 60 days of the date on which the decision was made, but the Chairman may waive the time limit where the delay beyond the period of 60 days was beyond the control of the person seeking to make the complaint; and

(c) copied to the Departmental Head of the Department of Personnel Management by the officer making the complaint.

(3) The procedure to be followed in a review under this section is as follows:—

(a) the Commission shall summons—

(i) the Departmental Head of the Department of Personnel Management or his delegate; and

(ii) the Departmental Head of the Department in which the officer is or was employed, or his delegate, to represent that Department; and

(iii) the officer making the complaint, who may at his request and at his own cost, be represented by an industrial organization of which he is a member, or by a lawyer;

(b) the persons summonsed under Paragraph (a) shall make themselves available to appear before the Commission within 14 days of the date of summons;

(c) the Commission shall—

(i) consider all the facts relative to the matter, including—

(A) the views of the persons summonsed under Paragraph (a); and

(B) the personnel management policies of the National Public Service; and

(C) the cost implications of any decision which it may make; and

(ii) make a decision to uphold, vary or annul the decision the subject of the complaint; and

(iii) give immediate notification of its decision to the persons summonsed under Paragraph (a);

(d) the decision of the Commission under Paragraph (c)(ii)—

(i) shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the Commission where the reason for the delay is beyond the control of the Commission; and

(ii) shall become binding after a period of 30 days from the date of the decision"

Submissions of the Parties in General 

19. Counsel’s submissions were centered around the interpretation of s 191 (a) and s 194 of the Constitution, s 18 of the PSM Act and ss 20-27 of the NAQIA Act and relevant provisions of the NAQIA Standard Contract Terms and Conditions of Senior Officers Contract Citizen Employee (Standard Terms) made by the NAQIA Board under s 20 of the NAQIA Act and NAQIA Disciplinary Procedures made by the Board " to compliment provisions of the NAQIA Act, the NAQIA Personal Administration Manual, the Public Services Management Act and other relevant legislation currently in operation in Papua New Guinea": see Preamble of Disciplinary Procedures. 

20. All three grounds of review raise the same issue – whether PSC has the power or jurisdiction to review Mr Yamanea’s decision to terminate Mr Rambe’s employment and the confirmation of that decision by the NAQIA Board. 

 Plaintiff’s submissions

21. Dr Muroa of counsel for NAQIA makes several submissions. The first leg of his submissions is that Mr Rambe is a junior officer employed on contract by NAQIA and his dismissal was done under the terms of that contract. The PSM Act does not empower the PSC to review decisions on personnel matters concerning contract officers of statutory authorities such as NAQIA which is set up under the NAQIA Act. This Act provides for the establishment of a service distinct from the general public service under the PSM Act. The NAQIA Act provides a complete and separate rules and procedures for dealing with personnel matters concerning all staff of the NAQIA staff service; the only exception being the position of the Managing Director. The NAQIA board being the only controlling statutory body set up under the NAQIA Act to deal with personnel matters arising under the NAQIA Act, its decision on a personnel matter is final. 

22. He submits the PSC’s power of review under s 18 of the PSM Act applies only to officers employed in the National Public Service as stipulated under s 191 (a) and s 194 of the Constitution. Its jurisdiction, responsibilities, powers and functions on personnel matters do not extend to other state services established under separate Acts of the Parliament (as permitted by s 188(2) of the Constitution) such as the NAQIA Staff service. 

23. The second leg of his submission is that Mr Rambe’s employment is under the Contract of Employment with NAQIA. His rights are private in nature and his remedy lies in a common law action for damages for breach of private employment contract; his remedy does not lie in public law which is enforceable under the judicial review procedure in Order 16 of the National Court Rules: John Kapil Worm v Malcom Culllingan & The State (1995) N 1333; Mathew Petrus Himsa v Richard Sikani (2007) N 2307; Sulaiman v UPNG (1987) N 610.

24. There are other submissions raised in Dr Muroa’s written submissions such as unreasonableness under Wednesbury principle but this is not raised in the grounds of review. The unreasonableness of a decision is a distinct common law ground for seeking judicial review relief and it has to be specifically and separately pleaded: see O 16 r (1). Therefore this issue is not properly before me for consideration. The same applies to Mr Muroa’s submissions relating to the PSC taking into account irrelevant considerations and failing to take into account relevant considerations. For proper or recognized grounds of judicial review, see Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. For proper pleading of those grounds in a Statement filed under O 16 r 3, see Asakusa v Kumbakor (2008) N 3303.

 Second Defendant’s submissions

25. Mr Kari of counsel for Mr Rambe submits that NAQIA is a government body whose staff service is established by an Act of the Parliament established - under the NAQIA Act - and its officers or staff employed under that Act are officers of the State. NAQIA is fully funded by the State in all aspects of its operation. There is no provision in the NAQIA Act which precludes a NAQIA employee from being member of the National Public Service. The staff of NAQIA are members of the national public service and a decision in a personnel matter involving a member of the NAQIA service is reviewable by the PSC. 

26. He submits the situation is confirmed by the NAQIA Act and By-Laws made under the Act and in the disciplinary procedures made under the Act. In fact the disciplinary process documents used by NAQIA in this case confirms that the provisions of PSM Act and General Orders made under that Act applies to NAQIA. The charge documentation applied by Mr Yamanea under the disciplinary procedures (form 9.3) shows that the review or appeal process under PSM Act was available to Mr Rambe. Mr Kari makes extensive references to the PSM Act and General Orders in these documents. 

27. He submits the Minister responsible for NAQIA took the same position that officers aggrieved by a decision of the NAQIA Board should seek review of it by PSC. This advice or direction was lawfully issued by the Minister under s 19 of the NAQIA Act but it was ignored by Mr Yamanea. 

28. He submits Mr Rambe followed the correct procedure for administrative review to address his grievances and the PSC made the correct decision and it should not be disturbed.

29. In the alternative if the Court were to decide that the PSC has no jurisdiction, then the Court is invited to rule otherwise pursuant to the powers vested in the Court by s 155 (4) of the Constitution. 

30. Finally Mr Kari submits an officer of the State, whether or not employed under written contract, are public officials: David Nelson v Pruaitch (2004) N2536; Zachary Gelu v Francis Damem & Ors (2004 ) N2762. A decision by a government authority affecting such person’s employment is amenable to judicial review and these proceedings have been correctly filed. 

Determination of issues

31. I dispose off two preliminary issues arising from the submissions. The first is that there is no question that this Court has jurisdiction to judicially review a decision of the PSC made under s 18 of the PSM Act. There is ample case authority for this proposition of law which I need not repeat here.

32. The second issue is whether this Court has jurisdiction to review the initial decision to terminate Mr Rambe’s employment contract made by Mr Yamanea and the subsequent decision by the NAQIA Board. In my view the decision that is the proper subject of judicial review is the PSC’s decision. PSC has already conducted and completed an administrative review of NAQIA’s decisions and it is not open for this Court to conduct another fresh round of reviews of those primary decisions. In any case Mr Yamanea’s decision or the Board’s decision is not and should not be the subject of this review. There is ample authority for this principle. 

33. The main issue before me raises an important point of law in relation to the powers and functions of the PSC to assume jurisdiction of and conduct review of personnel matters involving employees of governmental bodies. It is unfortunate that the PSC did not appear in Court to present its views on the point despite being accorded the opportunity to do so by the plaintiff and the Court. In the end Mr Kari ended up presenting his clients case which required him to defend the PSC’s decision and quiet ably did so. The point has been sufficiently argued before me and I am able to determine the issue.

34. The answer to the issue lies in the scheme of State Services provided in the Constitution, the PSM Act and the NAQIA Act and the very words and phrases used in the relevant statutory provisions set out earlier in this judgment. I have closely read these provisions and at the outset I should say that no issues of constitutional interpretation arises and both parties have correctly not mentioned any constitutional issues which this Court could refer to the Supreme Court. The meaning of these provisions are clear in themselves and they remain to be applied to the circumstances of the case before me. 

35. Under the Constitution, the National Public Service is one of four establishments which constitute the State Services: s 188 (1). Section 188(2) of the Constitution allows for "Acts of the Parliament" to make provisions for and in respect of "other State Services", other than those four listed in s 188(1). 

36.  Although it is generally understood that the National Public Service covers the total government workforce, as to the type of organized workforce that may constitute the National Public Service is left to "Acts of the Parliament": s 195 of the Constitution. 

37. The PSM Act provides for the organization, etc; of the Public Service. The Preamble of this Act expressly states the purpose of the Act to be "to implement Section 195 (Organisation, etc., of the State Services) of the Constitution in relation to the Public Service"; and "to make provision for ensuring the implementation of decisions, directions and policies of the National Executive Council by the National Public Service and public bodies, and for related purposes." Therefore, there is no question that the public services organizational establishment and the public service workforce that is established by this Act comes within the term National Public Service in s 181(1) and s 195 of the Constitution. There is also no question that the public service established under this Act is part of the State Services.

38. The main purpose of PSM Act as stated in its Preamble is that it is a national public service machinery that implements the decisions, directions and policies of the National Government through the National Public Service through government Departments headed by Departmental Heads. Departmental Heads are given all powers necessary to carry out their duties including power to recruit personnel, determine their terms and conditions of employment and their discipline. The Departmental Heads are answerable to the PSC on staff organizational matters including their decisions on staff discipline or personnel matters being made subject to review by the PSC under s 18 of the Act. 

39. The question is whether the NAQIA Act establishes a public service machinery of a similar nature to that of the PSM Act such that it may come within the meaning of National Public Service as part of State Services. In the absence of any express provision in the NAQIA Act similar to those found in the PSM Act, it is not safe to find that NAQIA Act comes under the National Public Service in s 181 (1) of the Constitution. The next question is whether the NAQIA Act establishes a public service establishment or machinery that comes under the phrase "other State Services" in s181(2) of the Constitution. The NAQIA Act does not make express reference to s 182 (2) and more particularly s 195 of the Constitution. Also the NAQIA Act does not establish a service staff of NAQIA in a way that the PSM Act does. In the circumstances, it is not safe to find that the NAQIA Act establishes a service staff that constitutes a State Service. In any event, the corporate entity status of NAQIA conferred by (s 3) removes any doubt that the NAQIA officers are corporate staff whose engagement, terms and conditions of employment and discipline and the staff organizational machinery that goes with it, all of which are placed in the hands of the Managing Director and the NAQIA Board (s 4), is removed from the general public service establishment. 

40. The PSM Act governs the employment of officers or employees of the general public service under an organizational structure in which employees are engaged by established government departments headed by departmental heads. The PSC is given the controlling or supervisory power over staff organizational and personnel matters and this includes power to review disciplinary action taken against employees employed under that Act by Departmental Heads. Section 18 of the PSM Act sets out an elaborate administrative review process on personnel matters. 

41. The PSC’s responsibility over personnel matters in respect of officers employed in the National Public Service or a State Service is spelt out by s 191 (1) of the Constitution. The PSC " is responsible, in accordance with an Act of the Parliament, for … the efficient management and control of the National Public Service" and "all personnel matters connected with the National Public Service": s 191 (1) (a) & (b). The words "personnel matters" is defined in s 194. In respect of "the services of other governmental bodies", the PSC’s functions "are as prescribed by Constitutional Laws or Acts of the Parliament": s 191 (1) (c). It may be that NAQIA may come within the definition of "governmental body" which includes "a body set up by statute for governmental or official purposes" in Schedule 1.2 of the Constitution. However, neither the PSM Act nor the NAQIA Act prescribe the PSC’s functions to include personnel discipline matters concerning officers of NAQIA, as required by s 191 (1) (c) of the Constitution. In the circumstances the PSC should not assume a power or jurisdiction in a personnel matter which is not expressly conferred upon it by statute. 

42.  Section 27 of the NAQIA Act makes a clear distinction between an officer of the National Public Service who is appointed as an officer of NAQIA for purpose of determining his employment rights. This provision does not confer on NAQIA Staff public service rights under PSM Act.

43.  I note that the NAQIA Board has adopted provisions of the General Orders and the disciplinary procedures under the PSM Act as part of its disciplinary process. To the extent that the disciplinary procedures under the PSM Act are adopted and applied, that is a matter in the discretion of the NAQIA Board. That does not necessarily mean the Board or the Chief Executive Officer of NAQIA is exercising powers under the PSM Act. I am satisfied on the material before me that those procedures were adopted to guide the disciplinary process under the NAQIA Act.

44. Reading all these provisions together, the PSC’s jurisdiction to review personnel matters under s 18 of the PSM Act is confined to officers employed in the National Public Service under the PSM Act. In respect of the review of a personnel matter of officers by other State Services, the PSM Act or any other Act which establishes that other State service under which the employee or officer is employed must expressly provide for the PSC to assume jurisdiction. 

45. The nature of the functions performed by officers employed by the State under the PSM Act and the NAQIA Act are distinct and their staff organizational matters, terms and conditions and discipline process are intended to be kept separate. Under the PSM Act the Departmental Head’s decision is subject to review by the PSC whereas a decision by the Chief Executive Officer of NAQIA is reviewable by the NAQIA Board. A person dissatisfied with the decisions of those two bodies has recourse to the Courts under the general law. It does not sound right to me that the PSC which has jurisdiction under s 18 of the PSM Act to review a single Departmental Head’s decision on a personnel matter of an officer employed under the PSM Act has the same power to review a collective decision made by the highest controlling Board of a statutory authority such as the NAQIA Board which is vested with corporate status, without express power been granted to do so. 

46.  Finally, I do not consider it is within this Court’s power to invent an appeal or review process and validate what has happened under s 155(4) of the Constitution. That would be tantamount to legislating from the bench.

47. For these reasons I am of the view that the PSC lacked jurisdiction to review the matter. The decision is quashed and the decision of the NAQIA Board and Mr Yamanea are restored. 

48. Costs shall follow the event.

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Nonggorr & Associates: Lawyer for the Plaintiff
PNG Legal Services: Lawyer for the Second Defendant