|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
HRA NO 15 OF 2024
STANIS HULAHAU
Plaintiff
V
INDEPENDENT COMMISSION AGAINST CORRUPTION
Defendant
WAIGANI : CANNINGS J
25, 28 APRIL, 22 JULY, 29 AUGUST 2025
CONSTITUTIONAL LAW – Independent Commission Against Corruption – whether an application for enforcement of human rights and a claim for damages against the Independent Commission Against Corruption involve a review of the Commission’s decisions or proceedings – Constitution, s 220F(2) – whether necessary to plead that the Commission has exceeded its jurisdiction.
PRACTICE AND PROCEDURE – whether a person applying for enforcement of human rights and making a claim for damages against the Independent Commission Against Corruption must give notice of their intention to make a claim under s 5 of the Claims By and Against the State Act.
HUMAN RIGHTS – whether the actions of a member and officers of the Independent Commission Against Corruption in entering premises of a governmental body and obtaining documents therefrom was a lawful exercise of power under s 58 of the Organic Law on the Independent Commission Against Corruption – whether unlawful obtaining documents while purporting to rely on s 58 can amount to a breach of human rights under ss 37, 44, 49 or 53 of the Constitution.
A team from the Independent Commission Against Corruption (ICAC), the defendant, entered the premises of the Papua New Guinea Immigration and Citizenship Service Authority and went to the office of the Chief Migration Officer, the plaintiff. They were investigating alleged corrupt conduct by the plaintiff. They produced a letter issued under s 58 of the Organic Law on the Independent Commission Against Corruption, requesting information and things, and, acting under the authority apparently provided by that letter, inspected the plaintiff’s office and removed from it 42 documents, a laptop computer, two mobile phones and a desktop computer. They took those documents and things to the offices of ICAC. Several weeks later, the plaintiff commenced legal proceedings against ICAC. He argued that the defendant conducted an unlawful search of his office and unlawfully seized the documents and things that were removed from his office, and by doing so, breached his human rights under various provisions of the Constitution, viz the right to the full protection of the law (s 37), the right to freedom from arbitrary search and entry (s 44), the right to privacy (s 49) and the right to protection from unjust deprivation of property (s 53). He sought a declaration as to the unlawfulness of the conduct of the ICAC team and damages for breach of human rights. The defendant opposed those claims. It argued that the proceedings should be summarily dismissed for non-compliance with s 5 of the Claims By and Against the State Act and for being an abuse of process as the proceedings are subject to s 220F(2) of the Constitution, which provides for review of the Commission’s proceedings and decisions only on the ground that it has exceeded its jurisdiction, and there was no argument or claim that it has done so. The defendant also disputed some aspects of the facts alleged by the plaintiff. It denied that the plaintiff raised any objection to what happened. It denied that the actions of the ICAC team breached the Organic Law and denied that the plaintiff’s human rights were breached. It argued that the Court should refuse all relief sought by the plaintiff.
Held:
(1) The Independent Commission Against Corruption is an independent constitutional institution, which is separate to and not subject to the direction or control of the National Government, and not part of the State. There is no obligation to give notice under s 5 of the Claims By and Against the State Act of an intention to make a claim against the Independent Commission Against Corruption. Further, the defendant adduced no evidence in support of the contention that no notice had been given. The argument for summary dismissal of the proceedings based on s 5 of the Claims By and Against the State Act was refused.
(2) The present proceedings were not a review of proceedings or decisions of ICAC and were not subject to s 220F(2) of the Constitution. The proceedings are properly regarded as an application for enforcement of human rights and a claim for damages and are authorized by ss 57 and 58 of the Constitution. The argument for summary dismissal of the proceedings based on s 220F(2) of the Constitution was refused.
(3) The plaintiff was not present when the ICAC team entered his office and by the time he arrived, a member of the team had commenced a search of his office. The plaintiff did not voluntarily provide the documents and things to the ICAC team.
(4) The actions of the ICAC team were not authorised by any provision of the Organic Law on the Independent Commission Against Corruption. In particular s 58 did not authorise their actions, as it authorises only the giving of a notice to a person to produce documents and things. The team conducted a search of the plaintiff’s office and seized documents and things and ought to have applied for and obtained a search warrant under Division VI.1 of the Organic Law before undertaking such action. The plaintiff did not give informed consent to what happened.
(5) The unlawful actions of the ICAC team breached the plaintiff's right to the full protection of the law (Constitution, s 37), but did not infringe his right to freedom from arbitrary search and entry (s 44), right to privacy (s 49) or the right to protection from unjust deprivation of property (s 53).
(6) It was declared that the defendant breached the plaintiff's right to the full protection of the law and that it is liable in damages.
Cases cited
Constitutional Reference No 1 of 1978 [1978] PNGLR 345
MRDC v Sisimolu (2010) SC1090
NCDC v Reima (2009) SC993
Ombudsman Commission v Donohoe [1985] PNGLR 348
Public Curator v Kara (2014) SC1420
Somare v Manek [2011] 1 PNGLR 220
Wartoto v The State [2015] 1 PNGLR 26
Counsel
G J Sheppard & P Tabuchi for the plaintiff
S Nepel & V R Adewat for the defendant
1. CANNINGS J: On the afternoon of Wednesday 31 January 2024 a team from the Independent Commission Against Corruption (ICAC) led by Deputy Commissioner Operations Daniel Baulch entered the premises of the Papua New Guinea Immigration and Citizenship Service Authority. They went to the office of the Chief Migration Officer, Stanis Hulahau, the plaintiff. They were investigating alleged corrupt conduct by the plaintiff. They produced a letter headed “Request for information and things under Section 58 of OLICAC” and, acting under the authority apparently provided by that letter, inspected the plaintiff’s office and removed from it 42 documents, a laptop computer, two mobile phones and a desktop computer. They took those documents and things to the offices of ICAC. These events unfolded over several hours.
2. The computers and phones were returned several months later. The plaintiff had given notice of his resignation as Chief Migration Officer shortly before these events took place but was still physically in the office on the day of the events.
3. The plaintiff commenced legal proceedings against ICAC, the defendant, on 27 February 2024 by filing a human rights enforcement
application form
(form 124 of the National Court Rules), which is the originating process for these proceedings. He argues that the defendant:
4. He seeks a declaration as to the unlawfulness of the conduct of Deputy Commissioner Baulch and the ICAC team, and damages for breach of human rights.
5. The defendant opposes those claims. It argues that the proceedings should be summarily dismissed for two reasons. First, Mr Hulahau did not give notice of his intention to make a claim against the State under s 5 of the Claims By and Against the State Act, before commencing the proceedings. Secondly the proceedings are an abuse of process as they are prohibited by s 220F(2) of the Constitution, which provides for review of the Commission’s proceedings and decisions only on the ground that it has exceeded its jurisdiction, and there is no argument or claim that it has done so.
6. The defendant also disputes some aspects of the facts alleged by the plaintiff. It denies that the plaintiff raised any objection to what happened.
7. The defendant denies that the actions of Deputy Commissioner Baulch and the ICAC team breached the Organic Law and that the plaintiff’s human rights were breached. It argues that the Court should refuse all relief sought by the plaintiff.
8. The issues are:
1 SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED DUE TO FAILURE TO COMPLY WITH SECTION 5 OF THE CLAIMS BY AND AGAINST THE STATE ACT?
9. The defendant argues that the proceedings should be dismissed as the plaintiff is seeking damages against ICAC and therefore making a claim against the State. It is argued that ICAC is part of the State. The defendant relies on a series of Supreme Court decisions to support the proposition that even where the State is not named as a defendant, court proceedings can nevertheless be regarded as involving a claim against the State if the named defendant is actually part of the State:
10. The defendant argues that these proceedings are an application for enforcement against the State of rights and freedoms under s 57 of the Constitution. The proceedings are subject to the Claims By and Against the State Act by virtue of s 2(2) of the Act, which states:
The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (compensation) of the Constitution.
11. The defendant argues that the plaintiff did not plead in his human rights application that he gave notice to the State before commencing the action, as required by s 5 of the Act. Nor did he give evidence that he complied with s 5 of the Act, which states:
(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section and Section 5A by the claimant to—
(a) the Departmental Head of the Department responsible for justice matters; or
(b) the Solicitor-General.
(2) A notice under this Section shall be given—
(a) within a period of six months after the occurrence out of which the claim arose; or
(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or
(c) within such further period as—
(i) the Principal Legal Adviser; or
(ii) the court before which the action is instituted,
on sufficient cause being shown, allows.
(3) A notice under Subsection (1) shall be given by—
(a) personal service on an officer referred to in Subsection (1); or
(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).
12. The defendant argues it is therefore safe to conclude that the plaintiff did not give notice, within six months after 31 January 2024, to the Departmental Head of the Department of Justice and Attorney-General or the Solicitor-General of his intention to make a claim against the State. As non-compliance with s 5 is a condition precedent to commencement of these proceedings, the proceedings must be dismissed.
13. I dismiss these arguments for three reasons. First it was not incumbent on the plaintiff to plead or adduce evidence of the giving of a s 5 notice. It is the defendant who should produce evidence that no notice was given. However, there is no evidence, so their argument based on s 5 goes nowhere.
14. Secondly, I disapprove of the way this argument has been raised. It should have been raised through a notice of motion, supported by affidavit, which could have been heard and determined prior to commencement of the trial. To leave it to the trial, moreover after receipt of the evidence and to only ventilate the argument during submissions, is a most irregular practice, which ought not to be condoned.
15. Thirdly, I am not persuaded that ICAC is part of the State and that a claim for damages against it must comply with s 5 of the Claims By and Against the State Act.
16. ICAC is a constitutional institution, established directly by s 220B(1) of the Constitution. It operates independently of the State by virtue of s 220F(1) of the Constitution, which states:
In the performance of its functions and powers, the Commission is not subject to the direction and control of any person or authority.
17. Under s 220B(1) of the Constitution ICAC consists of a Commissioner and two Deputy Commissioners. They are declared by s 14 of the Organic Law on the Independent Commission Against Corruption to be constitutional office-holders for the purposes of Part IX of the Constitution. They therefore have considerable security of tenure and guaranteed emoluments. Their independence is reinforced by provisions of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders.
18. The constitutional independence of ICAC and its commissioners places ICAC in a special position. It is not a part of any of the three principal arms of the National Government under s 99 of the Constitution. It is not a “governmental body” within the definition of that term in Schedule 1.2(1) of the Constitution. I draw here upon the reasoning of the majority of the Supreme Court (Prentice CJ and Wilson J, Pritchard J dissenting) in Constitutional Reference No 1 of 1978 [1978] PNGLR 345. The issue was whether the Office of Public Solicitor is a governmental body and therefore within the investigative jurisdiction of the Ombudsman Commission under the Organic Law on the Ombudsman Commission. The majority held that it was not, as the constitutional independence of the Public Solicitor meant that his office was not a governmental body.
19. No case, either National Court or Supreme Court, has been brought to my attention to support the proposition that a constitutional institution comprised of constitutional office-holders, such as ICAC, is to be regarded as part of the State for the purposes of the Claims By and Against the State Act. I find that if a person seeks to enforce human rights against ICAC, including by making a claim for damages, there is no need to give notice under s 5 of the Claims By and Against the State Act of the intention to make the claim.
20. No good case has therefore been made by the defendant for summary dismissal of these proceedings due to the alleged failure to comply with the Claims By and Against the State Act.
2 SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED FOR BEING CONTRARY TO SECTION 220F(2) OF THE CONSTITUTION?
21. The defendant argues that the plaintiff’s application is prohibited by s 220F(2) of the Constitution, which provides:
The proceedings and decisions of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceeded its jurisdiction.
22. It is argued that s 220F(2) serves as an ouster clause, which prohibits the courts from questioning the decisions and proceedings of ICAC except on the ground that it has exceeded its jurisdiction. This is said to reinforce the principle that constitutional watchdogs must not be impeded in their mandate except in limited circumstances to prevent unlawful overreach.
23. The defendant points out that there is an equivalent provision ousting the jurisdiction of the Courts in relation to the Ombudsman Commission. Section 217(6) of the Constitution states:
The proceedings of the Commission are not subject to review in any way, except by the supreme Court or the National Court on the ground that it has exceeded its jurisdiction.
24. The Supreme Court invoked that provision in Somare v Manek [2011] 1 PNGLR 220 when dismissing, as an abuse of process, an application under s 18(1) of the Constitution for declarations that the Ombudsman Commission was acting unlawfully regarding its investigation of the applicant for alleged misconduct in office. The Court held that the s 18(1) application was not premised on there being an excess of jurisdiction by the Ombudsman Commission and was therefore prohibited by s 217(6).
25. The defendant argues that the same reasoning should apply in the present case. The plaintiff is questioning the proceedings and decisions of ICAC on grounds that his human rights have been breached. He does not plead that ICAC exceeded its jurisdiction in the conduct of its investigation. The proceedings are therefore prohibited by s 220F(2) of the Constitution.
26. It is further argued that the plaintiff’s application is intended to disturb and disrupt an ongoing investigation by ICAC into his alleged corrupt conduct. Civil proceedings have been instituted to disrupt a constitutional process, a situation that is impermissible by virtue of the seminal decision of the Supreme Court constituted by five Judges in Wartoto v The State [2015] 1 PNGLR 26.
27. I acknowledge that ss 217(6) and 220F(2) of the Constitution are in the same terms. I acknowledge the binding authority of the Supreme Court’s decision in Somare v Manek [2011] 1 PNGLR 220.
28. I note that in a much older case, Ombudsman Commission v Donohoe [1985] PNGLR 348, the Supreme Court emphasised the significance of s 217(6) in limiting the nature and grounds of review of proceedings and decisions of the Ombudsman Commission. The Court declared that s 24 of the Organic Law on the Ombudsman Commission, which provided that proceedings of the Ombudsman Commission could not be reviewed except on the ground of lack of jurisdiction, was inconsistent with s 217(6) of the Constitution and therefore unconstitutional.
29. However, after carefully considering those arguments, I have decided to reject them, for three reasons. First, the plaintiff’s human rights application does not amount to a review of any proceedings or decisions of ICAC. The plaintiff does not ask the Court to review ICAC’s decision to investigate his alleged corrupt conduct. Nor is he seeking review of any proceedings of ICAC. His application is not caught by s 220F(2).
30. Secondly, I cannot see any intention expressed or implied in s 220F(2) to oust the power and duty of the National Court to protect and enforce human rights under s 57(1) of the Constitution, which states:
A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Higher Courts of Justice or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.
31. Upholding the defendant’s arguments would perhaps allow ICAC to infringe with impunity the human rights of persons it is investigating. It would perhaps have the effect of granting an immunity to ICAC from applications for enforcement of human rights.
32. Thirdly, I make the same point regarding the timing of these s 220F(2) arguments that I did regarding the defendant's arguments on s 5 of the Claims By and Against the State Act. They should have been raised through a notice of motion, supported by affidavit, which could have been heard and determined prior to commencement of the trial. To leave it to the trial, moreover after receipt of the evidence and to only ventilate the arguments during submissions, is a most irregular practice, which ought not to be condoned.
33. As to the defendant’s argument that the plaintiff’s human rights application is simply an attempt to disturb and disrupt an ongoing investigation against him, I do not think it supports the argument based on s 220F(2) of the Constitution. I will return to it later in the judgment.
34. I refuse the argument that these proceedings should be summarily dismissed as an abuse of process under s 220F(2) of the Constitution.
3 WHAT ACTUALLY HAPPENED ON 31 JANUARY 2024?
35. I base my findings of fact as to the events of 31 January 2024 on the affidavit and oral testimony of the plaintiff, and on the affidavits and oral testimonies of two witnesses for the defendant, Vagi Boga, who is ICAC’s Director of Investigations, and Mathew Damaru, who was on 31 January 2024 an Operations Consultant with ICAC.
36. The plaintiff was out of the office when the ICAC team arrived unannounced. The ICAC team was led by Deputy Commissioner Baulch and included Ms Boga, Mr Damaru, Mr Thomas Eluh (another ICAC consultant) and Ms Lorelle Toidalema (an ICAC investigating lawyer). They went to a waiting room outside the plaintiff's office. There they met the Deputy Chief Migration Officer Clarence Parisau who confirmed that the plaintiff had recently given notice of his resignation and was out of the office but would return soon.
37. Ms Boga gave evidence, which I accept, that while waiting for the plaintiff to return, Deputy Commissioner Baulch went into the plaintiff's office and “looked around”.
38. When the plaintiff returned, he went into his office and conversed with Deputy Commissioner Baulch and was introduced to other members of the ICAC team. Deputy Commissioner Baulch gave the plaintiff a letter dated 31 January 2024 under ICAC letterhead. The letter was originally addressed to Clarence Parisau whose name was crossed out by Deputy Commissioner Baulch and replaced by the plaintiff’s name. Other handwritten amendments to the original text of the letter were made by Deputy Commissioner Baulch. The full text of the letter, with the handwritten amendments shown in italics, stated:
Mr Clarence Parisau Stanis Hulahau [initials] DC Operations ICAC
Chief Deputy Migration Officer
Visa and Passport Division
Immigration and Citizenship Authority
PO Box 1790
BOROKO
NCD
Dear Sir
REQUEST FOR INFORMATION AND THINGS UNDER SECTION 58 OF OLICAC
Pursuant to section 58(1) of the Organic Law on the Independent Commission Against Corruption, you are required and requested to provide to the Commission the following information and things.
1 Mobile phones, laptops and office desktop or any other equipment provided by the Immigration and Citizenship Authority for Chief Migration Officer Stanis Hulahau.
2 Files regarding the visa applications and approvals for the following:
3 Documents or materials relating to the PNG Humanitarian Program.
4 Any other relevant information and things which would assist in our investigations.
5 Financial documents relating to the operation of the department. [initials] DB
6 Mobile phone in possession [initials] DB
7 Personal laptops that are in possession. [initials] DANIEL BAULCH Deputy Commissioner
The above information and things must be provided immediately to the
Director of Investigations Ms Vagi Boga.
Take note that pursuant to section 58(3), you may have another employee of the Immigration and Citizenship Authority service this notice.
And take note that pursuant to section 61(1), you are prohibited from disclosing the existence of this notice other than for the purpose of having an Immigration and Citizenship Authority employee respond.
Should you have any further questions or need clarification regarding this matter, please do not hesitate to contact our office on phone 3007515 or 3007522.
Yours sincerely
[signed]
MR DANIEL BAULCH
DEPUTY COMMISSIONER OPERATIONS
39. Deputy Commissioner Baulch told the plaintiff that Ms Bogi would look around his office and pick up the documents and things outlined in the letter.
40. Ms Bogi stated in her affidavit that the plaintiff replied that he had nothing to hide and invited them to go ahead and look through his office. I am sceptical about that part of her evidence. Having regard to the plaintiff’s evidence and the oral testimony of Ms Bogi, I decline to find that the plaintiff’s reply was in those terms.
41. I find that the plaintiff did not invite the members of the ICAC team to go ahead and look through his office.
42. I do not accept the defendant’s contention that the plaintiff did not raise any objection and that he in effect consented to what happened.
43. I find that he did not physically oppose the actions of the ICAC team. However, I find that he did not expressly or impliedly consent to their actions
44. Ms Bogi collected 42 documents, a laptop computer, two Samsung mobile phones and a Dell desktop computer with a USB flash drive. A handwritten list of the documents and things was prepared by a member of the ICAC team. Those documents and things were then taken to the ICAC office.
45. I conclude that as a matter of fact, what happened on 31 January 2024 is that the ICAC team:
4 WERE THE ACTIONS OF DEPUTY COMMISSIONER BAULCH AND THE ICAC TEAM AUTHORISED BY THE ORGANIC LAW?
46. The plaintiff’s contention is that the actions of Deputy Commissioner Baulch and the ICAC were unlawful as:
47. I have already found as a fact that what happened on 31 January 2024 is that Deputy Commissioner Baulch and the ICAC team conducted a search of the plaintiff’s office.
48. It was permissible for Deputy Commissioner Baulch and the ICAC team to without notice enter the ICA’s premises including the plaintiff’s office and to inspect documents and things in or on the premises and to take copies of documents. To that extent that they did those things, their actions were authorised by s 57(1) of the Organic Law on the Independent Commission Against Corruption, which provides:
For the purposes of an investigation, the Commission may, at any time—
(a) enter and inspect any premises (other than residential premises) occupied or used by a public body or public official in that capacity; and
(b) inspect any document or other thing in or on the premises; and
(c) take copies of any document in or on the premises.
49. However, I uphold the plaintiff’s argument that Deputy Commissioner Baulch and the ICAC team did more than just enter the premises, inspect the premises and documents and things on the premises and make copies of documents.
50. They searched the plaintiff’s office and seized documents and things from in it. Such actions must be authorised by s 77 of the Organic Law on the Independent Commission Against Corruption, which provides for an ICAC investigator to apply to the District Court for a search warrant for the purposes of an investigation.
51. Section 77 states:
(1) A Commission investigator may apply to the District Court for a search warrant for the purposes of an investigation.
(2) The application must be supported by an affidavit setting out the grounds on which the application is made.
(3) If it is impracticable for the application to be made in person for reasons of urgency, the application may be made by fax, email or such other means of communication approved by the Court.
(4) The application may be heard —
(a) ex parte; and
(b) in closed court or in chambers.
(5) The District Court may issue a search warrant authorising the Commission investigator to enter and search premises if the Court is satisfied there are reasonable grounds for suspecting that a document or other thing that is relevant to or connected with an investigation into corrupt conduct —
(a) is in or on the premises; or
(b) is likely to be in or on the premises,
within the next 72 hours.
52. Here, there was no search warrant, so the search of the plaintiff’s office was unlawful.
53. So too the seizure of documents and things from the plaintiff’s office. The seizure could have been authorized by s 78(3)(f) of the Organic Law on the Independent Commission Against Corruption, which provides that:
The search warrant authorises a Commission investigator to do any of the following for the purpose of the investigation: ... to seize
and retain any document or thing found in or on the premises to which the warrant relates and deliver it to the Commission.
54. However, there was no search warrant, therefore the seizure of documents and things was not authorised by ss 77 or 78 of
the Organic Law.
55. The defendant submits that what happened was authorised by the presentation to the plaintiff of the letter dated 31 January 2024, which was in the form of a notice under s 58 of the Organic Law on the Independent Commission Against Corruption.
56. Section 58 states:
(1) For the purpose of an investigation, the Commission may, by notice in writing require a person (whether or not a public official or public body) to produce a document or thing.
(2) The notice —
(a) must be signed by a member of the Commission; and
(b) must specify or describe the document or thing to be produced; and
(c) must fix a time and date for compliance with the notice; and
(d) may specify a Commission officer to whom the production is to be made; and
(e) must be served on the person required to comply with the notice.
(3) The notice may provide that the requirement may be satisfied by another person acting on behalf of the person on whom the requirement was imposed and may specify the person or class of persons who may so act.
(4) Notwithstanding any other Act, the person served with the notice must produce the document or thing required by the notice.
(5) The person served with the notice is not required to produce the document or thing required by the notice if —
(a) the Prime Minister certifies that to do so is likely to prejudice the security or defence of Papua New Guinea; or
(b) the Prime Minister certifies that to do so is likely to prejudice Papua New Guinea's relations with the Government of any other country or with any international organisation; or
(c) to do so would involve the disclosure of proceedings, deliberations or decisions of the National Executive Council, or of any committee of that Council, which the Prime Minister certifies relate to matters of a secret or confidential nature, disclosure of which would be injurious to the public interest; or
(d) to do so would be a breach of Parliamentary privilege or immunity; or
(e) the document or thing is subject to a claim of legal professional privilege.
57. I reject the defendant's submission regarding the s 58 notice, for two reasons.
58. First, the defendant misused the power to issue such a notice by using it as a means of forcing the plaintiff to yield to a search of his office and seizure of documents and things from it. A proper s 58 notice will in my view be served on a recipient and provide them with a reasonable period within which to comply with the notice. Section 58 is not intended to provide for a search and seizure operation, which is what happened here.
59. Secondly, it will be observed that in the penultimate paragraph of the s 58 notice, a prohibition was issued under s 61(1) of the Organic Law on the Independent Commission Against Corruption:
And take note that pursuant to section 61(1), you are prohibited from disclosing the existence of this notice other than for the purpose of having an Immigration and Citizenship Authority employee respond.
60. Section 61(1) states:
The Commission may include a notation in a notice issued under Section 58 to the effect that disclosure of the existence of the notice or any information about the notice is prohibited except in the circumstances specified in the notation if the Commission is satisfied that a failure to include a notation is likely to prejudice —
(a) a person's safety; or
(b) the fair trial of a person who has been, or may be, charged with a criminal offence; or
(c) the investigation to which the notice relates or an investigation into other corrupt conduct; or
(d) any action taken as a result of an investigation.
61. The reference to s 61(1) triggered the requirement to comply with s 61(2), which provides:
If a notation is included in the notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed on the person on whom the notice is served.
62. I find that there was no statement setting out the plaintiff’s rights and obligations in or attached to the letter of 31 January 2024.
63. I conclude that the actions of Deputy Commissioner Baulch and the ICAC team were not authorised by the Organic Law on the Independent Commission Against Corruption.
5 DID THE DEFENDANT BREACH THE PLAINTIFF’S HUMAN RIGHTS?
64. Though I have found that Deputy Commissioner Baulch and the ICAC team acted unlawfully on 31 January 2024 I struggle with the plaintiff’s contention that what happened amounts to a breach of all the human rights he refers to.
65. I start with the claim that the plaintiff’s right to freedom from arbitrary search and entry under s 44 of the Constitution was breached. Section 44 confers this right by stating:
No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law—
(a) that makes reasonable provision for a search or entry—
(i) under an order made by a court; or
(ii) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or
(iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or
(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or
(v) for the purpose of inspecting or taking copies of documents relating to—
(A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or
(B) the affairs of a company in accordance with a law relating to companies; or
(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connexion with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or
(b) that complies with Section 38 (general qualifications on qualified rights).
66. The plaintiff does not contend that the Organic Law on the Independent Commission Against Corruption is not such a law. His contention is that the Organic Law was breached. I have upheld that contention. But it does not necessarily follow that the plaintiff’s right to freedom from arbitrary search and entry was breached. Section 44 protects the plaintiff from arbitrary search of his person or property or to entry of his premises. I find insufficient evidence that any of the plaintiff’s personal property was searched or that his premises were entered.
67. Similarly with the plaintiff’s claim as to infringement of his right to privacy under s 49 of the Constitution, which states:
Every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).
68. I find insufficient evidence that the unlawful search of the plaintiff’s office and seizure of documents and things from it infringed the plaintiff's right to privacy.
69. As for the claim under s 53 of the Constitution, I find no infringement of the plaintiff's rights to protection against unjust deprivation of his property. The documents and things that were unlawfully seized were not his property. They were property of the Immigration and Citizenship Authority.
70. Finally, as to the claim that the plaintiff has been denied the full protection of the law under s 37(1) of the Constitution, I see some merit in it.
71. Section 37(1) states:
Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
72. The plaintiff was subject to an unlawful search and seizure of documents and things from his office. He was denied the full protection of the law. The Organic Law on the Independent Commission Against Corruption provided a procedure by which what happened on 31 January 2024 could lawfully have occurred. Deputy Commissioner Baulch and the ICAC team should have complied with the law. But they did not. By acting unlawfully, they denied the person affected by their actions – the plaintiff – the full protection of the law.
6 SHOULD THE PLAINTIFF BE GRANTED THE RELIEF THAT HE SEEKS?
73. Granting a declaration is an exercise of discretion. The defendant submitted that the plaintiff’s human rights application was simply an attempt to disturb and disrupt an ongoing investigation. If there were evidence that that was the case, I would perhaps refuse to grant a declaration. However, there is no evidence that that was the plaintiff’s motivation and I see no reason to refuse to make the declaration sough in so far as s 37(1) of the Constitution is concerned. However, declarations as to other breaches of human rights will be refused. I will grant a declaration that the plaintiff was by the actions of Deputy Commissioner Baulch and the ICAC team denied the full protection of the law.
74. The plaintiff also seeks an order for damages. Section 58(2) of the Constitution is relevant here. It states:
A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.
75. I have found that the plaintiff’s right to the full protection of the law has been infringed. Therefore, he is entitled to damages under s 58(2).
76. I would expect that an award of damages would not be a substantial amount so I will allow the parties a short time to negotiate that issue and to perhaps agree on an appropriate order as to costs of the proceedings.
ORDER
_____________________________________________________________
Lawyers for the plaintiff: Young & Williams Lawyers
Lawyer for the defendants: Principal Legal Officer, ICAC
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2025/316.html