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SCR No 1 of 1978; Re Ombudsman Commission Investigations of the Public Solicitor [1978] PNGLR 345 (6 October 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 345 - SCR No 1 of 1978; Re Ombudsman Commission Investigations of the Public Solicitor

[1978] PNGLR 345

SC136

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CONSTITUTIONAL REFERENCE NO. 1 OF 1978 IN A MATTER OF A REFERENCE BY THE OMBUDSMAN COMMISSION PURSUANT TO S. 19 OF THE CONSTITUTION.

Waigani

Prentice CJ Pritchard J Wilson J

1-2 May 1978

6 October 1978

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Ombudsman - Public Solicitor - Reference under s. 19 of the Constitution - Power to investigate conduct of Public Solicitor outside Leadership Code - Constitution ss. 99, 176, 188, 219[dlvii]¹.

CONSTITUTIONAL LAW - Public Solicitor - Whether a “State Service” - Whether within description “other governmental body” - Constitution s. 219[dlviii]² Sch. 1.2.

CONSTITUTIONAL LAW - Public Solicitor - Employees of Public Solicitor - Whether “officers or employees of a governmental body” - Constitution s. 219[dlix]³ Sch. 1.2.

STATE SERVICES - Ombudsman Commission - Powers of - Power to investigate “conduct” of Public Solicitor and employees - Powers of investigation outside Leadership Code - Constitution s. 219[dlx]⁴.

The Public Solicitor is not a “State Service” whose conduct the Ombudsman Commission established under s. 217 of the Constitution of the Independent State of Papua New Guinea has jurisdiction to investigate by reason of s. 219 (1) (a) (f) of the Constitution.

The Public Solicitor does not fall within the description “other governmental body” whose conduct the Ombudsman Commission has jurisdiction to investigate by reason of s. 219 (1) (a) (iii) of the Constitution.

The powers of investigation of the Ombudsman Commission to investigate “conduct” under s. 219 of the Constitution are limited to investigation of conduct of an administrative kind.

The Ombudsman Commission does not have jurisdiction under s. 219 of the Constitution, (other than in relationship to a Leadership Code matter involving the Public Solicitor’s personal conduct) to investigate any conduct of the Public Solicitor or an officer or employee of the Public Solicitor’s Office, on its own initiative or on complaint by a person affected.

(Per Pritchard dissenting). The Ombudsman Commission has jurisdiction to investigate any conduct of the Public Solicitor or any officer or employee of the Public Solicitor’s Office, on complaint by a person affected, assuming the person affected is the Public Solicitor’s client, but in any other case only if the client has waived legal professional privilege, or if unable to do so due to death or physical or mental illness, subject to the Ombudsman Commission being bound by the principles of such privilege.

The Ombudsman Commission can require the Public Solicitor to produce to the Ombudsman Commission any documents, relating to a matter under the Leadership Code relating to the Public Solicitor’s personal conduct, which are in the possession or control of the Public Solicitor.

(Per Prentice CJ and Wilson J) The Ombudsman Commission cannot require the Public Solicitor to produce to the Ombudsman Commission any documents, relating to any matter being an investigation of the conduct of the Public Solicitor or an officer or employee of the Public Solicitor’s Office, whether on its own initiative or on complaint by a person affected, that are in the possession or control of the Public Solicitor.

In any other matter in which the Ombudsman Commission has jurisdiction to investigate, the Ombudsman Commission can require the Public Solicitor to produce to the Ombudsman Commission any documents relating to the matter being investigated by the Ombudsman Commission that are in the possession or control of the Public Solicitor, but subject to the Public Solicitor’s usual duty as a legal practitioner to claim legal professional privilege, which privilege may be waived by the client.

Reference

This was a reference by the Ombudsman Commission, established pursuant to s. 217 of the Constitution of the Independent State of Papua New Guinea, pursuant to s. 19 of the Constitution, which empowers the Supreme Court to “give its opinion on any question relating to the interpretation or application of any provision of a Constitutional law ...”

The questions referred by the Ombudsman Commission were:

“Does the Ombudsman Commission have jurisdiction:

(a) On its own initiative and/or

(b) On complaint by a person affected, to investigate any conduct of the Public Solicitor or an officer or employee of the Public Solicitor’s Office?”

“Can the Ombudsman Commission require the Public Solicitor to produce to the Ombudsman Commission any documents, relating to any matter being investigated by the Ombudsman Commission that are in the possession or control of the Public Solicitor.”

Counsel

S. G. Cory, for the applicant (The Ombudsman Commission).

N. H. Pratt and O. Emos, for the respondent (the Public Solicitor).

Cur. adv. vult.

6 October 1978

PRENTICE CJ: The Ombudsman Commission, by a Reference dated 1st February, 1978 under s. 19 of the Constitution, has referred for decision by this Court the following questions:

(1) “Does the Ombudsman Commission have jurisdiction

(a) On its own initiative and/or

(b) On complaint by a person affected to investigate any conduct of the Public Solicitor or an officer or employee of the Public Solicitor’s Office?”

(2) Can the Ombudsman Commission require the Public Solicitor to produce to the Ombudsman Commission any documents, relating to any matter being investigated by the Ombudsman Commission that are in the possession or control of the Public Solicitor.”

The Court is required (s. 19 (1) Constitution), in answering the above questions, to give its opinion relating to the interpretation of certain sections of the Constitution. The facts giving rise to the reference are not before the Court, nor does the Court require to know them.

In seeking affirmative answers the Ombudsman Commission (hereinafter referred to as “the Ombudsman”) relies upon s. 219 (1) (a) (i) or (ii) of the Constitution. It is conceded that ss. 219 (a), (3), (4), (5) and (6) and sub-ss. (b), (c), (d) and (e), all of s. 219 (1), do not apply. The portion of the section that is under consideration is therefore (s. 219 (1) (a)) as follows:

“Subject to this Section and to any Organic Law made for the purposes of Subsection (7), the functions of the Ombudsman Commission are:

(a) to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of:

(i) any state service or a provincial service, or a member of any such service; or

(ii) any other governmental body, or an officer or employee of a governmental body ...

specified by or under an Organic Law in the exercise of a power or function vested in it or him by law in cases when the conduct is or may be wrong, taking into account, amongst other things, the National Goals and Directive Principles, the Basic Rights and the Basic Social Obligations; ....”

The definition of “wrongness of conduct” appears in s. 219(2) and “Conduct” in s. 219(8).

Section 219 is to be construed no doubt in association with s. 218 which sets out the purposes of the Ombudsman as being:

(a) to ensure that all governmental bodies are responsible to the needs and aspirations of the People; and

(b) to help in the improvement of the work of governmental bodies and the elimination of unfairness and discrimination by them; and

(c) to help in the elimination of unfair or otherwise defective legislation and practices affecting or administered by governmental bodies; and

(d) to supervise the enforcement of Division III.2 (leadership code). (The emphasis is mine.)

Among the factors which may render conduct wrong (s. 219(2)), are considerations of whether it be unreasonable or unjust (b), or of whether reasons were not given when they should have been (c).

The “specification” by Organic Law relied upon, is that appearing in s. 13(a) and (b) of the Organic Law on the Ombudsman Commission.

This reads as follows:

“For the purposes of Section 219(1)(a) (functions of the Commission) of the Constitution the functions of the Commission, in addition to the functions specified in s. 219(1)(b), (c), (d) and (e) (functions of the Commission) of the Constitution are to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of:

(a) any State Service or a member of any State Service; or

(b) any governmental body, or an officer or employee of a governmental body; ...”

It will be seen that the words of s. 13 of the Organic Law reproduce those of s. 219(1)(a)(i) and (ii).

Is the Public Solicitor a “State Service”? Are legal officers employed in the Public Service working in the Public Solicitor’s Office members of a State Service?

The Constitution itself (s. 188), establishes “the National Public Service” as a “State Service”; but by s. 176(1), establishes the “office of Public Solicitor”. It is contended that “office” here refers not to an “organisation” (the Public Solicitor’s Office) but to a “position” (that of Public Solicitor). The term “office or institution” appears in the definition of “constitutional institution” (s. 221), and “constitutional office holder” is defined to include “the Public Solicitor”. Part II of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders which applies to the Public Solicitor (s. 1 definition, “constitutional office-holder”) appears to make a clear distinction between Constitutional office-holders and members of the National Public Service.

It would appear clear therefore, as indeed conceded by the Ombudsman that the Public Solicitor is not a “State Service” within the meaning of s. 219(1)(a)(i). The Ombudsman contends nevertheless that a legal officer working with the Public Solicitor, who is employed in the Public Service under the Public Service Interim Arrangements Act No. 81 of 1973, which is an Act of Parliament making provision as outlined by s. 195 of the Constitution, is a member of the State Service.

I will return to this submission a little later.

Does the Public Solicitor come within the description (s. 219(1) (a)(ii) “a governmental body or an officer or employee of a governmental body”?

In submitting that the description covers the Public Solicitor and his employees, the Ombudsman points to Sch. 1.2 of the Constitution, which defines “governmental body” as meaning —“(a) the National Government; or (b) a provincial government; or (c) an arm, department, agency or instrumentality of the National Government or a provincial government; or (d) a body set up by statute or administrative act for governmental or official purposes”.

He is both “an arm” and “an instrumentality”, it is submitted. There can be arms outside the “principal arms” mentioned by s. 99 of the Constitution. Reliance is placed for purposes of interpretation upon such cases as Federal Municipal Shire Council Employees’ Union v. Melbourne Corporation[dlxi]⁵ to assert a body may be for instance (in Australia) “an instrumentality of the Crown”, even if it has independent powers, if it be performing inalienable functions of government”. Insofar as he is assisting in the administration of justice; he is, it is stated, an “instrumentality of government”.

The “National Government”, by s. 99 of the Constitution, is defined to consist of “three principal arms, namely:

(a) the National Parliament ...; and

(b) the National Executive; and

(c) the National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.”

Sub-section (4) enacts that “Sub-section (2) is descriptive only and is non-justiciable”.

Section 155 of the Constitution defines “the National Judicial System” as consisting of the Supreme Court, the National Court, and such other courts as are established under s. 172. Thus the Law Officers who include the Public Solicitor are not expressed as coming within s. 99(c), though they do form part of the “National Justice Administration” (s. 154); except to the extent that the Law Officers are provided for in that part of the Constitution (Part VI) which is headed “The National Government” and that headings other than those to the various sections of a Constitutional Law do form part of the Law (Sch. 1.3(2)).

One may say at once that if the Constitution makers had intended such a striking innovation as to render the professional activities of the Public Prosecutor and the Public Solicitor open to the investigatory procedures of the Ombudsman (on other than Leadership Code matters), one would have expected that to be clearly stated. But the whole tenor of s. 219 is directed towards administrative rather than professional legal activities. One finds for example that the “conduct” which may be investigated under s. 219(a), is defined in sub-s. 8 as including “a matter of administration”. I find myself persuaded against an interpretation which would bring the Public Solicitor within the ambit of s. 219(1)(a) as being a “governmental body” (a subsidiary “arm” of the “principal arm” of government) within the meaning of that section — by consideration of the C.P.C. Final Report 11/1 par. 8, which reads as follows:

“There is, however, a tendency in some developing countries to see the role of the Ombudsman as a substitute for or an alternative to the courts. We believe that our Ombudsman Commission should have more the supervisory and investigatory role in relation to those vested with the administrative power to make decisions, rather than for the Commission to be seen as a substitute for the courts.”

That the roles of Ombudsman and Public Solicitor were visualized as relating to quite different categories, with the former being concerned with the administrative actions of the bureaucracy, appears from pars. 13, 14, 15 and 16 of 11/2 of the Final Report. The restriction to administrative activities which I consider was intended, is to be discerned again in pars. 37, 38 and 39 of 11/5 of the Final Report.

An “arm of Government” would normally be an instrumentality which acts on behalf of the government. An arm acts under the control of the body of which it is part. For myself I cannot see how as a matter of fact, the Public Solicitor in carrying out his duties to advise and represent clients can be envisaged as carrying out work on behalf of or for the government.

In endeavouring to find the conceptual basis of the powers of the Public Solicitor, one refers to s. 99 of the Constitution which asserts the “power, authority and jurisdiction” of the people is to be “exercised by the National Government”. But this is “subject to and in accordance with the Constitution”. The Constitution and Organic Laws have created and vested powers and responsibilities in certain organisations and offices, such as Public Prosecutor, Public Solicitor, Committee of Mercy and Public Accounts Committee.

Insofar as such bodies are created independent of direction and control, they would seem to be exercising the power of the people given to them as a direct grant by the Constitution and Organic Laws and their exercise of powers could not I think be said to be an exercise of power “by the National Government” in such a sense as would by itself constitute any of them “an arm” of the National Government, or department or agency or instrumentality thereof within the meaning of s. 219 and Sch. 1.2 of the Constitution.

That the Public Solicitor is not “an arm of government”, appears I consider, in the Constitutional provisions establishing the office. Section 176(1) establishes the office, that is, he is a creature of the people not of Parliament. His appointment (s. 176(2)) is by the Judicial and Legal Services Commission, itself also a creature of the people (s. 183) and not of the Parliament. And s. 176(5) enacts that “Subject to Section 177(2) (functions of the Public Prosecutor and the Public Solicitor), in the performance of his functions under this Constitution, the Public Solicitor is not subject to direction or control by any person or authority”. Section 177(2) sets out his functions and provides the sole expressed limitations on and supervision of his exercise of discretion in the performance of his legal duties. It provides that at the suit of a person who has been aggrieved by a refusal of the Public Solicitor to provide legal aid, the National or Supreme Courts may direct that he shall provide legal aid, advice and assistance to such a person. The decision to refuse legal aid could be considered to be of the nature of an administrative act, and in so far as special leave to appeal is granted in respect of that administrative act, one would tend to the conclusion on the expressio unius principle, that ss. 176 and 177 assist in the construction of s. 219 and Sch. 1.9 as not intending to apply to the Public Solicitor’s performance of his legal duties.

The C.P.C. Report stated (8/11 par. 110):

“We have found public opinion throughout the country to be in favour of making the Public Solicitor’s Office constitutionally independent of the executive government. We ourselves believe that this independence is essential in order to provide legal services to the majority of our people and to protect the rights of individuals and small groups.”

This statement (despite its application to independence from the Executive), is indicative I think, that an interpretation of the Constitution which would allow of an investigation by the Ombudsman of the Public Solicitor’s activities other than in matters involving an alleged breach by him of the Leadership Code, would be contrary to the intentions of the Constitution makers that the Public Solicitor (the protector of the legal rights of perhaps the majority of the people) should be no less in standing and independence than a private practitioner would be. Such a result would have the effect of invading the confidentiality of the solicitor/client relationships, and would, I think, reduce the Public Solicitor’s standing well below that of the independence of private practitioners. Such a construction is not one that this court should come readily to, when one considers that such was the reputation and prestige of the Public Solicitor’s Office that the Constitution makers (C.P.C. Report 11/13, 14, 15, 16) seriously considered doing without an Ombudsman Commission and investing the Public Solicitor himself with Ombudsman powers and duties.

There are nevertheless a number of checks on the performance of the Public Solicitor’s professional tasks. These arise from the existence of the remedy of a suit against him in court for any alleged negligence in the performance of his duties, and presumably from the inherent power in the National and Supreme Courts to supervise his activities as in effect an officer practising in and out of the Court; and that set out in s. 177(3) of the Constitution. And it is to be noted that in the Ombudsman’s Organic Law itself the duty of the Ombudsman to investigate the subject of any complaint is subject to the exception of where it decides “the complainant has available to him another remedy or channel of complaint which he could reasonably be expected to use ...”

It is provided by s. 223(2) of the Constitution that Organic Laws shall make provision guaranteeing the rights and independence of constitutional office-holders (of whom the Public Solicitor is one) (s. 221). This provision has been implemented by s. 13 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office Holders, which enacts that “An officer whilst acting on the instructions and on behalf of a constitutional office-holder in the performance of that office-holder’s constitutional functions is not subject to direction or control in the exercise of those functions by any person other than that constitutional office-holder.”

The Public Solicitor in Papua New Guinea is, as the Constitution intends, a most important functionary in the dispensation of justice. It has been estimated that he acts on behalf of 98% of all litigants. It does not seem to me that he could in any real sense be described as independent in the exercise of his professional duties were he subjected to the scrutiny or control of the Ombudsman. I do not think the Constitution and Organic Laws require such a construction, for to regard the Public Solicitor as an arm or instrumentality of government, a governmental body, is an abuse of language I believe, and not according to the facts of law. I consider ss. 176 and 177 of the Constitution require the opposite conclusion.

THE PUBLIC SOLICITOR’S EMPLOYEES

In one sense, employees of the Public Solicitor are members of a State Service by virtue of their having been recruited into the National Service, and being subject for conditions of service to the Public Service (Interim Arrangements) Act 1973. But I consider one must bear in mind what I regard as the expressed intention that the Ombudsman’s powers of investigation and overseeing are directed towards administrative affairs of the bureaucracy rather than to the professional activities of legal officers. And of course one realises that the vast bulk of the Public Solicitor’s professional duties are carried out by deputies and subordinates. In order that the Public Solicitor’s freedom from “direction and control by any person or authority” in the performance of his duties be effective, one would think such a grant of right must extend to the performance of their duties by his subordinates. Though members of a State Service for pay, conditions of service and discipline, they may, and ought I think, to be considered as seconded for duty to the Public Solicitor’s Office. In addition, s. 13 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office Holders, speaks directly to the point.

In other jurisdictions, an Ombudsman’s powers are restricted by definition to investigation of “administrative actions”. And exceptions from his such powers are delineated in regard to courts, judges, legal advisers to the Crown and so on.

In such a situation in Victoria, certain “activities of a legal practitioner” (the Crown Solicitor) were held not to be “administrative actions”, and therefore not examinable by the Ombudsman (Glenister v. Dillon)[dlxii]⁶. Therein Menhennitt J agreeing in the judgment of the Full Court, expressly rejected the submission that a privilege against investigation granted to “a person acting as legal adviser to the Crown” should be limited to the Crown Solicitor himself and held that the words should comprehend all the persons employed in the Crown Solicitor’s Office. This decision also, is I consider, persuasive authority to the effect that the acts of the Public Solicitor’s employees are his acts vicariously performed, and would require the same freedom from direction and control as those of the Public Solicitor himself, if s. 176 of the Constitution is to be given full force and effect. In a further decision, Nelson J decided in relation to the Victorian Ombudsman legislation, that the Victorian Public Solicitor’s performance of his duties even when of an administrative nature were related not to “a matter of administration but one related to the discharge of the judicial function of government”, and therefore fell outside the Ombudsman’s jurisdiction. (Glenister v. Dillon (No. 2.)[dlxiii]⁷)

In regard to question (2), as to whether production of documents may be ordered, an interesting argument has been presented to the effect that even if a client waived his client’s professional privilege, the Public Solicitor as a Constitutional Office Holder, has a position higher than that of a private practitioner. And of course it is difficult to consider the position created by the Constitution and the Organic Laws without having regard to the setting of the introduction for the time being of the Common law of the United Kingdom as at Independence and the relationship between the National Court, solicitors and their clients and the principle of confidentiality. In this connection reference was made to the decisions of the Court of Appeal in the United Kingdom, of D v. National Society for Prevention of Cruelty to Children[dlxiv]⁸ and of the House of Lords in Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2)[dlxv]⁹. This submission sees a question of public interest involved in ensuring that the Public Solicitor no less, and indeed more, than a private practitioner, can give an assurance not only of the existence of the normal professional privilege, but also of a supervening public interest in confidentiality.

I do not think it is necessary to investigate and decide this matter; because, for the reasons advanced above, I am of the opinion that the plain intention of the Constitution in its injunction that the Public Solicitor is to be free from direction and control is that the Public Solicitor (and this must include his employees in their professional duties) is not to be subject to investigation by the Ombudsman. A clear exception exists in the case of matters to do with the Public Solicitor himself being required to adhere to the Leadership Code and to be subject to the Ombudsman’s findings in regard thereto (s. 219(d)).

I would answer question (1) both (a) and (b):

No — other than in relation to a Leadership Code matter involving the Public Solicitor’s personal conduct.

I would answer question (2):

In a matter of the kind contemplated in question (1) — No. In a matter under the Leadership Code relating to the Public Solicitor’s personal conduct as a “leader”—Yes. In any other matter in which the Ombudsman has jurisdiction to investigate — Yes; but subject to the Public Solicitor’s usual duty as a legal practitioner to claim legal professional privilege, which privilege may be waived by the client.

WILSON J: This is a special reference to the Supreme Court brought under s. 19 of the Constitution. The Supreme Court is asked to give its opinion on certain questions relating to the interpretation or application of a provision of a Constitutional Law. The questions are:

(1) “Does the Ombudsman Commission have jurisdiction:

(a) on its own initiative and/or

(b) on complaint by a person affected to investigate any conduct of the Public Solicitor or an officer or employee of the Public Solicitor’s Office?”

(2) “Can the Ombudsman Commission require the Public Solicitor to produce to the Ombudsman Commission any documents relating to any matter being investigated by the Ombudsman Commission that are in the possession or control of the Public Solicitor?”

It is noted here that this special reference is not concerned with the question of whether or not the Public Solicitor is subject to the Leadership Code or whether or not he is, by virtue of his office, subject to investigation for alleged misconduct in office. As appeared during the course of argument, this special reference is limited to the more conventional functions of an Ombudsman Commission, viz. the investigation of, and reporting on, maladministration by governments and government officials. The answers to the questions posed are therefore subject to this qualification.

I consider that these questions may be broken down into a number of sub-questions, the answers to which point the way to the solution of the important questions arising in this special reference. However, before I proceed to deal with those sub-questions, I set out the relevant provisions of the Constitution and the Organic Law on the Ombudsman Commission.

Division 1 of Pt. VII of the Constitution provides for the establishment of the State Services. Section 188 provides as follows:

“188(1) The following State Services are hereby established:

(a) the National Public Service; and

(b) the Police Force; and

(d) the Parliamentary Service.

(2) Acts of the Parliament may make provision for or in respect of other State Services.”

Division 2 of Pt. VIII of the Constitution provides for the setting up of an Ombudsman Commission.

Section 217, inter alia, specifies whom the Commission shall consist of, provides the mode of appointment of the members of the Commission, provides for the salary and other conditions of employment of the Chief Ombudsman and the Ombudsmen, provides the Commission with immunity from direction or control by any person or authority, provides that, except as to any excess of jurisdiction, the proceedings of the Commission are not subject to review in any way, and authorizes the enactment of an Organic Law to make further provision in respect of the appointment, powers, procedures and immunity of the Commission.

In s. 218 the purposes of the Commission are set out as follows:

“218. The purposes of the establishment of the Ombudsman Commission are:

(a) to ensure that all governmental bodies are responsive to the needs and aspirations of the People; and

(b) to help in the improvement of the work of governmental bodies and the elimination of unfairness and discrimination by them; and

(c) to help in the elimination of unfair or otherwise defective legislation and practices affecting or administered by governmental bodies; and

(d) to supervise the enforcement of Division III.2 (leadership code).” (The emphasis is mine.)

In s. 219 the functions of the Commission are set out as follows:

“219(1) Subject to this section and to any Organic Law made for the purposes of Sub-section (7), the functions of the Ombudsman Commission are:

(a) to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of —

(i) any State Service or provincial service or a member of any such service; or

(ii) any other governmental body, or an officer or employee of a governmental body; or

(iii) any local government body or an officer or employee of any such body; or

(iv) any other body set up by statute:

(A) that is wholly or mainly supported out of public moneys of Papua New Guinea; or

(B) all of, or the majority of, the members of the controlling authority of which are appointed by the National Executive.

or an officer or employee of any such body; and

(v) any member of the personal staff of the Governor-General, a Minister or the Leader or Deputy Leader of the Opposition; or

(vi) any other body or person prescribed for the purpose by an Act of the Parliament,

specified by or under an Organic Law in the exercise of a power or function vested in it or him by law in cases where the conduct is or may be wrong, taking into account, amongst other things, the National Goals and Directive Principles, the Basic Rights and the Basic Social Obligations; and

(b) to investigate any defects in any law or administrative practice appearing from any such investigation; and

(c) to investigate, either on its own initiative or on complaint by a person affected, any case of an alleged or suspected discriminatory practice within the meaning of a law prohibiting such practices; and

(d) any functions conferred on it under Division III.2 (leadership code); and

(e) any other functions conferred upon it by or under an Organic Law.

(2) Subject to Sub-sections (3), (4) and (5), and without otherwise limiting the generality of the expression, for the purposes of Sub-section (1) (a) conduct is wrong if it is:

(a) contrary to law; or

(b) unreasonable, unjust, oppressive or improperly discriminatory, whether or not it is in accordance with law or practice; or

(d) based wholly or partly on a mistake of law or of fact; or

(e) conduct for which reasons should be given but were not, whether or not the act was supposed to be done in the exercise of deliberate judgment within the meaning of Section 62 (decisions in “deliberate judgment”).

(3) The Commission shall not inquire into the justifiability of a policy of the National Government or a Minister, or a provincial government or a member of a provincial executive, except insofar as the policy may be contrary to law or to the National Goals and Directive Principles, the Basic Rights or the Basic Social Obligations, or of any Act of the Parliament.

(4) The Commission shall not inquire into the exercise of a rule-making power by a local government body.

(5) The Commission shall not inquire into a decision by a court, except insofar as the decision may show an apparent defect in law or administrative practice to which Sub-section (1)(b) would apply.

(6) Except as provided by or under Division III.2 (leadership code), the Commission’s powers of enforcement are limited to publicity for its proceedings, reports and recommendations, to the making of reports and recommendations to the Parliament and other appropriate authorities as provided by an Organic Law, and to the giving of advice.

(7) An Organic Law shall make provision in respect of the powers and procedures of the Commission, and in particular:

(a) shall, subject to paragraph (b) make provision for the Commission to have access to all available relevant information; and

(b) may impose reasonable restrictions on the availability of information; and

(c) shall make provision to ensure the secrecy or confidentiality of secret or confidential information made available to the Commission or to a member of the Commission or of its staff; and

(d) may limit or restrict to a reasonable extent and in a reasonable manner the jurisdiction of the Commission in relation to any matters or class of matters, and in particular in relation to national security; and

(e) shall make provision for and in respect of publicity for the proceedings, reports and recommendations of the Commission.

(8) In this section, “conduct” includes:

(a) any action or inaction relating to a matter of administration; and

(b) any alleged action or inaction relating to a matter of administration.” (The emphasis is mine.)

Section 220 provides for the giving and presentation of reports on the functions and workings of the Commission.

In Pt. III of the Organic Law on the Ombudsman Commission the functions, procedures and powers of delegation are set out. Section 13 provides as follows:

“13. For the purposes of Section 219(1) (a) (functions of the Commission) of the Constitution the functions of the Commission, in addition to the functions specified in Section 219(1) (b), (c), (d) and (e) (functions of the Commission) of the Constitution, are to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of:

(a) any State Service or a member of any State Service; or

(b) any governmental body or an officer or employee of a governmental body; or

(c) any other service or body referred to in Section 219(a) (functions of the Commission) of the Constitution that the Head of State, acting with, and in accordance with, the advice of the National Executive Council, by notice in the National Gazette, declares to be a service or body for the purposes of this section.” (The emphasis is mine.)

Subdivision G of Div. 5 of Pt. VI of the Constitution provides, inter alia, for the establishment of the offices of Public Prosecutor and Public Solicitor.

Sub-section (5) of s. 176 provides:

“(5) Subject to Section 177(2) (functions of the Public Prosecutor and the Public Solicitor), in the performance of his functions under this Constitution the Public Solicitor is not subject to direction or control by any person or authority.”

In Sub-sections (2) to (6) of s. 177 the functions of the Public Solicitor are set out as follows:

“(2) The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular:

(a) to provide legal assistance to a person in need of help by him who has been charged with an offence punishable by imprisonment for more than two years; and

(b) notwithstanding the provisions of Section 176(5) (establishment of offices) he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court; and

(i) limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and

(ii) granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament.

(3) A person aggrieved by a refusal of the Public Solicitor to provide legal aid may apply to the Supreme Court or the National Court for a direction under Sub-section (2) (b).

(4) For the purposes of this section the need of a person is to be interpreted in relation to each particular case and, without limiting the generality of this expression account shall be taken of the means of the person to meet the probable cost of obtaining alternative legal assistance, the availability of such assistance and the hardship which might result to the person if compelled to obtain legal assistance other than by the Public Solicitor.

(5) An Act of Parliament may make provision for the Public Solicitor to make a reasonable charge for services provided by him to persons in need of his help whom he considers are able to make a contribution towards the cost of these services.

(6) An Act of Parliament may confer, or may provide for the conferring of, additional functions, not inconsistent with the performance of the functions conferred by Sub-sections (1) and (2) on the Public Prosecutor or the Public Solicitor.”

In so far as this reference involves the interpretation of the Constitution and the Organic Law on the Ombudsman Commission, then I apply, as I am required to do by s. 8 of the Constitution, the provisions of Sch. 1 to the Constitution and adopt the rules of interpretation contained therein:

Schedule 1.1 provides:

“(1) The rules contained in this Schedule apply, unless the contrary intention appears, in the interpretation of the Constitution and of the Organic Laws.

(2) Unless adopted by law for the purposes, they do not apply to any other law.”

The relevant part of Sch. 1.2 provides:

“(1) In this Constitution or an Organic Law:

...

“governmental body” means:

(a) the National Government; or

(b) a provincial government; or

(d) a body set up by statute or administrative act for governmental or official purposes;

...

(2) Unless the contrary intention appears, where an expression is defined for any purpose in this Schedule, or otherwise in a Constitutional Law, then for that purpose all grammatical variations and cognate and related expressions are to be understood in the same sense.

(3) Unless the contrary intention appears, a reference in a Constitutional Law to an institution, office, or other thing shall be read as a reference to the appropriate institution, office or thing established or provided for this Constitution, or referred to in the Preamble to this Constitution.”

Schedule 1.3(2) provides:

“(2) The heading or head-notes to the various sections of a Constitutional Law do not form part of the Law, but other headings and notes do form part of the Law.”

Schedule 1.5 provides:

“(1) Each Constitutional Law is intended to be read as a whole.

(2) All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.”

Section 24 of the Constitution provides:

“24(1) The official records of debates and of votes and proceedings:

(a) in the pre-Independence House of Assembly on the report of the Constitutional Planning Committee; and

(b) in the Constituent Assembly on the draft of this Constitution, together with that report and any other documents or papers tabled for the purposes of or in connexion with those debates, may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provision of a Constitutional Law arises.

(2) An Act of the Parliament may make provision for the manner of proof of the records and documents referred to in Sub-section (1).

(3) In Sub-section (1), ‘the report of the Constitutional Planning Committee’ means the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974.”

The first sub-question, as it seems to me, is:

Is the Public Solicitor a “State Service” by reason of s. 219(1)(a)(i) of the Constitution whose conduct the Ombudsman Commission has jurisdiction to investigate?

To answer this sub-question it is necessary to look to the provisions of s. 188 of the Constitution. It is to be noted immediately that the Public Solicitor is not included as one of the State Services thereby established, and no Act of the Parliament has made provision for or in respect of the Public Solicitor as a State Service. The Public Solicitor could hardly be said to be a member of the National Public Service and therefore a member of a State Service (see s. 188 (1) (a)). It is to be noted that his office is established by, the manner of his appointment is laid down in, his functions are set out in, and the circumstances of his removal from office, are specified in s. 176 to s. 178 of the Constitution. It would have been unnecessary to have spelt out such matters if the Public Solicitor was a public servant, because such matters are covered in the legislation appertaining to public servants. Accordingly, I answer this sub-question in the negative.

The office of Public Solicitor is, as I have stated, established by s. 176 of the Constitution; he is ex hypothesi a public office-holder. The Public Solicitor is also a Law Officer of Papua New Guinea (see s. 156 of the Constitution) and a constitutional office-holder (see s. 221 of the Constitution). He is neither a “State Service” nor a member of any State Service; he is not a member of the national public service nor is he required to be (see Organic Law on certain Constitutional office-holders and s. 223 of the Constitution).

The second sub-question, as it seems to me, is:

Is the Public Solicitor a “governmental body” whose conduct the Ombudsman Commission has jurisdiction to investigate by reason of s. 219(1)(a)(ii) of the Constitution?

“Governmental body” is defined in Sch. 1 to the Constitution. The relevant part of Sch. 1.2 has been set out earlier in this judgment but for the sake of convenience I repeat it here.

“Sch. 1.2

(1) In this Constitution or an Organic Law:

...

“governmental body” means:

(a) the National Government; or

(b) a provincial government; or

(d) a body set up by statute or administrative act for governmental or official purposes;”

Clearly the subject words are directly related to government (whether National or provincial). But what do the words “National Government” mean and what do the words “an arm ... or instrumentality of the National Government” mean?

It is clear that the words “National Government” mean something more than the National Executive, and it is inconceivable that they should be construed in a purely party-political sense so as to mean the government formed by the governing party. The headings (other than section headings of a Constitutional Law) form part of the Law (see Sch. 1.3(2)) and are aids to interpretation. There is no definition of the meaning of “National Government” in Sch. 1.2 of the Constitution, and so no assistance is to be found there. However, reading the Constitution as a whole (see Sch. 1.5(1)) and giving the subject words their fair and liberal meaning (see Sch. 1.5(2)) I interpret the words “National Government” in the Constitution to embrace the three principal arms of the National Government, namely the National Parliament, the National Executive, and the National Judicial System and the many and varied lesser arms of government within the three principal arms, as are mentioned in Divs. 2, 4 and 5 of Pt. VI of the Constitution which include, inter alia, the Parliamentary Salaries Tribunal, the Parliamentary Service, the National Executive Council, the Advisory Committee on the Power of Mercy, the Magisterial Service, the Judicial and Legal Services Commission, and also the State Services as established under Pt. VII of the Constitution.

Section 154 of the Constitution provides:

“154. The National Justice Administration consists of:

(a) the National Judicial System; and

(b) the Minister responsible for the National Justice Administration; and

Section 155(1) of the Constitution provides:

“155(1) The National Judicial System consists of:

(a) the Supreme Court; and

(b) the National Court; and

Giving the words of these two sections their fair and liberal meaning (see Sch. 1.5(2)), it is to be seen the Law Officers of Papua New Guinea (who include the Public Solicitor — see s. 156) are excluded from the National Judicial System. The Latin maxim expressio unius est exclusio alterius applies, although it may be more appropriate to state it in the form expressum facit cessare tacitum. The National Judicial System (from which the Law Officers are excluded) being one of the principal arms of the National Government, the Law Officers of Papua New Guinea are also excluded from being lesser arms of the National Government. I am attracted by Mr. Pratt’s biological metaphor to describe the Public Solicitor: if he does not form part of the body, he cannot be an appendage to the body.

In my opinion the office of Public Solicitor is therefore not an “arm ... or instrumentality” of the National Government. Quaere the office of the Public Solicitor is an arm or instrumentality of the National Justice Administration. He is, of course, a Law Officer of Papua New Guinea and a constitutional office-holder.

The Chief Justice in his judgment, a draft of which I have had the advantage of reading, sets out some further reasons why the Public Solicitor should not come within the ambit of the words “governmental body”. I find those reasons compelling, although I have not found it necessary to have recourse to such matters in arriving at my conclusion.

It therefore follows that I conclude that the Public Solicitor is not a “governmental body” whose conduct the Ombudsman Commission has jurisdiction to investigate by reason of s. 219(1)(a)(ii) of the Constitution.

A subsidiary question arises as to whether the powers of investigation of the Ombudsman Commission are limited to the investigation of conduct of an administrative kind or rather to conduct generally.

A third sub-question may therefore be formulated as follows:

Are the powers of investigation of the Ombudsman Commission limited to the investigation of conduct of an administrative kind?

It is in this context that I consider it necessary to interpret what the words underlined by me in s. 219(8) of the Constitution mean, which provides:

“(8) In this section, ‘conduct’ includes:

(a) any action or inaction relating to a matter of administration; and

(b) any alleged action or inaction relating to a matter of administration.”

In my opinion the list of matters set out in sub-sub-ss. (a) and (b) of sub-s. (8), albeit a short one and in the context of this ombudsman legislation, was intended to be exhaustive notwithstanding the use of the word “includes”. A similar conclusion was reached by a majority of the High Court of Australia in Y.Z. Finance Co. Pty. Ltd. v. Cummings[dlxvi]¹⁰ which re-affirmed the principles laid down by Lord Watson speaking for the Privy Council in Dilworth v. Commissioner of Stamps[dlxvii]¹¹ and in particular at p. 105:

“The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include’, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act must invariably be attached to those words or expressions.”

The context of Div. 2 of Pt. VII is “sufficient to show that ‘includes’ was not merely employed for the purpose of adding to the natural significance of the words or expressions defined”. In reaching such a conclusion it is necessary to consider the whole Constitution and, in particular, Div. 2 of Pt. VIII. This ombudsman legislation is clearly designed to protect the public against maladministration as well as discriminatory practices and abuses of leaders.

The powers of the Ombudsman Commission, save and except with regard to discriminatory practices and under Div. III.2 (leadership code), are limited to the investigation of administrative conduct. “Conduct” in s. 219 of the Constitution means any action (or alleged action) or inaction (or alleged inaction) relating to a matter of administration. It is government officials or public servants or members of the State Services who perform most of the administrative functions at which ombudsman legislation of this type is primarily directed. If one looks at the mischief aimed at by the ombudsman legislation in Papua New Guinea, the object was to protect the public from maladministration by government officials and hardly to protect the public (which already has recourse to other remedies) from professional misconduct or the mal-performance of legal aid services. In Judicial Review of Administrative Action (3rd ed.) by S. A. de Smith, the learned author discusses the role of the ombudsman and (at p. 7) says it is:

“to investigate and report on complaints of injustice caused by maladministration on the part of the central government and its officials in respect of matters where recourse to the courts or tribunals is normally unavailable.”

There is a further reference at p. 47:

“His function is to investigate complaints by individuals or bodies corporate ... who claim to have ‘sustained injustice in consequence of maladministration’ by central government bodies, or persons or bodies acting on their behalf, performing (or failing to perform) administrative (as distinct from judicial or legislative) functions.”

Benjafield and Whitmore, “Principles of Australian Administrative Law” (4th ed.) state (at p. 157) as follows:

“The office of Ombudsman is of Scandinavian origin and basically the holder of the modern office is expected to be the community’s ‘watchdog’ over the activities of the administration.”

It is also to be noted that in some jurisdictions the ombudsman is described as the “Commissioner for Administrative Investigation to be called The Ombudsman” (see, for example, the Victorian legislation).

I therefore conclude that the powers of investigation of the Ombudsman Commission are limited to the investigation of conduct relating to a matter of administration. In relation to the work of the Public Solicitor whose functions are “to provide legal aid, advice and assistance for persons in need of help by him” (see s. 177(2) of the Constitution), it is hard to envisage that any of his work may be characterized as administrative, except perhaps the processing of legal aid applications. His normal work, involving the provision of legal aid, advice and assistance and performed incidental to the solicitor/client relationship, can hardly be said to be administrative or relating to a matter of administration.

It will be noted that I have not attempted a definition of the phrase “relating to a matter of administration”. The difficulties involved in attempting such a definition are highlighted by Lush J in Booth v. Dillon (No. 1)[dlxviii]¹² and by Gillard J in Glenister v. Dillon[dlxix]¹³. It is sufficient for me to state my reasons for reaching my conclusion that little, if any, of the work of the Public Solicitor may be so characterized. The limits of the phrase, whilst necessarily difficult to ascertain for the purposes of a general definition, are not difficult to ascertain here, at least as far as legal aid, advice and assistance are concerned.

I do not find it necessary to go as far as Gillard and Menhennitt JJ went in Glenister v. Dillon[dlxx]¹⁴ in defining the words “administrative” and “administration”. What that decision of the Full Court of Victoria does is to lend support to my conclusion regarding the second sub-question raised in this special reference, viz. that the Public Solicitor is not a “governmental body”; Gillard and Menhennitt JJ thought that the words “administrative” and “administration” related to the executive part of government. If the Public Solicitor is not a “governmental body” because he is not “an arm or instrumentality” of the government, then a fortiori his conduct cannot be said to “relate to a matter of administration”.

The questions asked in this special reference also involve a consideration of whether the Ombudsman Commission may nonetheless, in circumstances in which it has no jurisdiction, have jurisdiction over officers or employees employed in the Public Solicitor’s Office on account of the fact that they may be public servants (see s. 13(a) of the Organic Law on the Ombudsman Commission — “a member of a State Service”). Having regard to the provision of s. 13 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders, which provides protection for the officers under the control of the Public Solicitor as a Constitutional Office-holder, the officers or employees employed in the Public Solicitor’s Office have the same immunities from investigation as does the Public Solicitor himself. For it to be otherwise the Public Solicitor would lose the independence which the Organic Law seeks to guarantee to him. In the event of a query being raised, the Public Solicitor could easily give a directive or order forbidding his staff from communicating with the Ombudsman Commission who may be purporting to investigate any conduct of the Public Solicitor or one of his officers or employees. It is inconceivable that the legislature intended that the Ombudsman Commission should have no jurisdiction to investigate the Public Solicitor himself, but yet should be able to achieve that result by exercising an apparent power to investigate the Public Solicitor’s staff. That power is, in my view, more apparent than real.

My answers to the sub-questions are therefore as follows:

1. Is the Public Solicitor a “State Service” whose conduct the Ombudsman Commission has jurisdiction to investigate by reason of s. 219(1)(a)(i) of the Constitution?

Answer: No.

2. Is the Public Solicitor an “other governmental body” whose conduct the Ombudsman Commission has jurisdiction to investigate by reason of s. 219 (1)(a)(ii) of the Constitution?

Answer: No.

3. Are the powers of investigation of the Ombudsman Commission limited to the investigation of conduct of an administrative kind?

Answer: Yes.

It therefore follows that my answer to the first question asked in this special reference is as follows:

(1) Does the Ombudsman Commission have jurisdiction

(a) on its own initiative and/or

(b) on complaint by a person affected to investigate any conduct of the Public Solicitor or an officer or employee of the Public Solicitor’s office?

Answer: No.

The second question asked in this special reference arises when the Ombudsman Commission is investigating the conduct of some person it has jurisdiction to investigate and, in order to complete those investigations, it is considered desirable that certain documents in the possession or control of the Public Solicitor for and relating to the matter being investigated be produced to the Ombudsman Commission. The second question would also arise if the Ombudsman Commission had jurisdiction to investigate any conduct of the Public Solicitor or an officer or employee of the Public Solicitor’s office.

As Mr. Cory for the Ombudsman Commission conceded, the answer to this question is obvious. The Ombudsman Commission can require the Public Solicitor to produce to the Ombudsman Commission any documents relating to any matter being investigated by the Ombudsman Commission that are in the possession or control of the Public Solicitor subject to the Public Solicitor’s usual duty as a legal practitioner to claim legal professional privilege, which privilege, of course, may be waived by the client, as it is a privilege which reposes with the client and not the legal practitioner. Halsbury’s Laws of England (3rd ed.) vol. 36 p. 51.

My answer to the second question asked in this special reference is as follows:

(2) Can the Ombudsman Commission require the Public Solicitor to produce to the Ombudsman Commission any documents relating to any matter being investigated by the Ombudsman Commission that are in the possession or control of the Public Solicitor?”

Answer: In a matter of the kind contemplated in question (1) — No. In a matter under the Leadership Code relating to the Public Solicitor’s personal conduct as a “leader”— Yes. In any other matter in which the Ombudsman has jurisdiction to investigate — Yes; but subject to the Public Solicitor’s usual duty as a legal practitioner to claim legal professional privilege, which privilege may be waived by the client.

PRITCHARD J: The Ombudsman Commission, being one of the authorities entitled so to do under s. 19(3) of the Constitution, has referred the following questions of constitutional interpretation to this Court pursuant to s. 19, namely:

(1) “Does the Ombudsman Commission have jurisdiction:

(a) on its own initiative and/or

(b) on complaint by a person affected to investigate any conduct of the Public Solicitor or an officer or employee of the Public Solicitor’s office?”

(2) “Can the Ombudsman Commission require the Public Solicitor to produce to the Ombudsman Commission any documents, relating to any matter being investigated by the Ombudsman Commission that are in the possession or control of the Public Solicitor?”

Before answering these questions it is necessary to consider the nature of the office of the Public Solicitor and secondly the nature of the powers vested in the Ombudsman Commission itself.

The office of the Public Solicitor was established under s. 176(l) of the Constitution along with that of the Public Prosecutor. That section is contained in Pt. VI of the Constitution which is entitled “The National Government”. Division 1 of Pt. VI, entitled “General Principles”, contains only s. 99 which reads:

“99. Structure of Government.

(1) Subject to and in accordance with this Constitution, the power, authority and jurisdiction of the People shall be exercised by the National Government.

(2) The National Government consists of three principal arms, namely:

(a) the National Parliament, which is an elective legislature with, subject to the Constitutional laws, unlimited powers of law-making; and

(b) the National Executive; and

(c) the National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.

(3) In principle, the respective powers and functions of the three arms shall be kept separate from each other.

(4) Sub-section (2) is descriptive only and is non-justiciable.”

Division 2 of Pt. VI is entitled “The National Parliament”, and contains ss. 100 to 136. Division 3 is entitled “Special Instances of the Legislative Power” and contains only s. 137. Division 4 is entitled “The National Executive” and contains ss. 138 to 153.

Division 5 is entitled “The Administration of Justice”. Section 154 defines the National Justice Administration as consisting of:

(a) the National Judicial System; and

(b) the Minister responsible for the National Justice Administration; and

Section 155 defines the composition of the National Judicial System.

Section 156 defines the Law Officers of Papua New Guinea as being:

(a) the principal legal adviser to the National Executive; and

(b) the Public Prosecutor; and

Thereafter the Constitution deals with the exercise of the judicial power, the creation of the Supreme and National Courts, the appointment of Judges, the establishment of the Magisterial Service and the Office of the Chief Magistrate.

Section 176(1) as I have said, established the office of the Public Solicitor. Section 176(2) provides for the appointment of the Public Prosecutor and the Public Solicitor by the Judicial and Legal Services Commission. Section 176(5) provides that in the performance of his functions under the Constitution the Public Solicitor is not subject to direction or control by any person or authority.

The functions of the Public Prosecutor and the Public Solicitor are set out in s. 177 and the sub-sections relative to the Public Solicitor are:

“(2) The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular:

(a) to provide legal assistance to a person in need of help by him who has been charged with a offence punishable by imprisonment for more than two years; and

(i) limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and

(ii) granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament.

(3) A person aggrieved by a refusal of the Public Solicitor to provide legal aid may apply to the Supreme Court or the National Court for a direction under Sub-section (2)(b).

(4) For the purposes of this section the need of a person is to be interpreted in relation to each particular case and, without limiting the generality of this expression, account shall be taken of the means of the person to meet the probable cost of obtaining alternative legal assistance, the availability of such assistance and the hardship which might result to the person if compelled to obtain legal assistance other than by the Public Solicitor.

(6) An Act of the Parliament may confer, or may provide for the conferring of, additional functions, not inconsistent with the performance of the functions conferred by Sub-sections (1) and (2), on the Public Prosecutor or the Public Solicitor.”

Sections 178 to 182 deal with the removal from office of not only the Public Solicitor, but Judges, the Public Prosecutor and the Chief Magistrate. The grounds of removal are:

(a) for inability (whether arising from physical or mental infirmity or otherwise) to perform the functions and duties of his office; or

(b) for misbehaviour; or

The tribunal which hears such matters is constituted by three Judges, former judges or judges of another country with a legal system similar to Papua New Guinea. When such a charge is pending the person whose removal is sought may be suspended by the Judicial and Legal Services Commission (except in the case of the Chief Justice).

The Judicial and Legal Services Commission which appoints the Public Solicitor (and others) consists of the Minister for Justice, the Chief Justice, the Deputy Chief Justice, the Chief Ombudsman and a member of the Parliament appointed by it. The Commission is established under s. 183(4) of which states that it is not subject to direction or control by any person or authority.

There are further Constitutional references to the Public Solicitor but I will return to them later. The provisions I have set out and referred to above are all contained in Pt. VI — “The National Government”. Schedule 1.3(2) to the Constitution provides “The heading or head-notes to the various sections of a Constitutional Law do not form part of the Law, but other headings and notes do form part of the Law”. In Sch. 1.2(1) “Constitutional Law” means the Constitution, a law altering it, or an Organic Law.

It is therefore clear in my mind that the use of the word “government” throughout the Constitution, certainly throughout Div. VI, is far removed from the “government of the day” concept, but envisages the Concise Oxford Dictionary definition of “govern” meaning “Rule with authority, conduct the policy, actions and affairs of State”. Adopting this concept, and accepting the heading “The National Government” as part of the law, Div. VI sets up the following bodies and offices as its component parts:

1. The National Parliament including the Offices of Speaker and his deputy, the Electoral Commission (to be the subject of an Organic Law), the Parliamentary Salaries Tribunal and the Parliamentary Service, the head of which is the Clerk of the National Parliament.

2. The National Executive, including the Ministry, the office of Prime Minister and other ministers, the National Executive Council, the office of its Secretary and the Advisory Committee on the Power of Mercy.

3. The National Judicial System comprising the Supreme Court, National Court and such other courts as may be established, the office of Chief Justice and other judges, the Magisterial Service and office of Chief Magistrate with provision for the independence of the courts in the exercise of their judicial powers or functions.

4. The office of the Public Prosecutor with provision for his independence in the exercise of his functions.

5. The office of the Public Solicitor with similar independence.

6. The Judicial and Legal Services Commission with similar independence in the exercise of its functions.

In my view these six bodies are thus the arms of the National Government, the first three mentioned being clearly spelt out as the “principal arms” in s. 99, the other three being, for lack of a better word, “lesser” or “ancillary” arms.

On further reflection the Magisterial Service is in itself a separate arm of the National Judicial System. The reason for this is simply that the constitution of the Supreme and National Courts and the appointment and number of the Judges are clearly defined. Prior to Independence, Judges never were public servants; however the great majority of magistrates were, serving with the Justice Department. The concept of independence of the judiciary clearly led to the creation of the Magisterial Service with no definition of its court structure, and the fact is that on Independence all magistrates previously full-time employees of the Justice Department, were granted leave from the Public Service (which protected their Public Service entitlements to leave, furlough etc.) and pursuant to the Magisterial Service Act 1975 which came into force at Independence, they were quite clearly no longer regarded as public servants, the Act providing for a determination to be made by the Judicial and Legal Services Commission in relation to their conditions of service. Until that determination is made, the Act goes on to provide that the Public Service (Interim Arrangements) Act 1973 should continue to apply to magistrates as if they were public servants, but that the Chief Magistrate is deemed to be their Departmental Head, and the Judicial and Legal Services Commission is deemed to be the Public Services Commission. The Chief Magistrate is also deemed to be the Departmental Head of all administrative, legal and court staff employed in the Service and at its courts for the purpose of the Public Service (Interim Arrangements) Act.

Neither the Public Solicitor, nor for that matter the Public Prosecutor, was deemed to be a Departmental Head as was the Chief Magistrate. Their staff, both lawyers and others, belong to the Justice Department. They are provided pursuant to s. 225 of the Constitution which reads:

“s225. Provision of facilities, etc

Without limiting the generality of any other provision of this Constitution, it is the duty of the National Government and of all other governmental bodies, and of all public office-holders and institutions, to ensure, as far as is within their respective legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office-holders.”

In other words, although these public servants work for the Public Prosecutor or Public Solicitor they remain Justice Department employees, and the Secretary for Justice remains their Departmental Head. However, the guarantee of independence of both these Constitutional Office-holders; (which they are declared to be in s. 221 of the Constitution) is reflected in s. 13 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders which reads:

“s13. Protection of Officers under Control of Constitutional Office-holders

An officer whilst acting on the instructions and on behalf of a constitutional office-holder in the performance of that office-holder’s constitutional functions is not subject to direction or control in the exercise of those functions by any person other than that constitutional office-holder.”

The qualifications for appointment and conditions of employment of the Public Solicitor are dealt with in ss. 3 and 4 of the Organic Law on Certain Constitutional Office-holders. Briefly his qualifications are that he has practised as a lawyer for more than three years after obtaining full admission, and if not in Papua New Guinea he must have had such experience in a country with a legal system substantially similar to that of this country and be entitled to be admitted here. The salary and other conditions of service of the Public Solicitor are as determined by the Head of State on advice from the National Executive Council. His salary and other expenditure of his office, are in fact paid from State funds. The Organic Law also contains provisions dealing with period of appointment, disqualification from office, making a declaration of office, restriction on political, business and other financial activities, resignation, retirement and the necessity to furnish an annual report to the Head of State for presentation to the National Parliament with such recommendations as to improvement as he thinks proper.

Other references to the Public Solicitor in the Constitution are in s. 37(4)(e) which guarantees that a person charged with an offence who is entitled to legal aid shall be permitted to defend himself by the Public Solicitor, and s. 42(2)(b) which guarantees that a person arrested or detained who is similarly entitled, shall be permitted to communicate without delay with the Public Solicitor.

As one of the Law Officers of Papua New Guinea, the Public Solicitor is spelt out in s. 57 of the Constitution as having an interest in the protection and enforcement of the Basic Rights contained in Div. 3 of Pt. III and being entitled to apply for their protection and enforcement to the Supreme or National Courts.

Further, as a Law Officer, the Public Solicitor is among those authorities set out in s. 19(3) of the Constitution who alone have the entitlement to make an application under s. 19(1) to the Supreme Court for its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or of a proposed law.

The foregoing summarizes the Constitutional office of the Public Solicitor. No Act has been passed pursuant to s. 177(2)(c)(ii) above, laying down the order of priorities therein referred to and no Act has been passed pursuant to s. 177(6) above, conferring any additional functions upon him. An Act relating to this last matter has been passed in respect of the Public Prosecutor (The Public Prosecutor (Office and Functions) Act 1977) which is irrelevant here except to say that it confirms what I have said above about his legal staff, they are responsible to him in the prosecution function but in all other respects to their own Departmental Head. In accordance with s. 177(5) of the Constitution, the Public Solicitor (Charges) Act 1976 was passed but it deals with that subject matter only and is irrelevant for the purpose of the matter now under consideration.

I will return later in this judgment to the nature of the office of the Public Solicitor and now discuss the nature of the Ombudsman Commission.

Part VIII of the Constitution is entitled “Supervision and Control”. Division 1 containing ss. 209 to 216 deals with the Parliament and Finance and establishes the office of Auditor-General and the Public Accounts Committee. Division 2 containing ss. 217 to 220 deals with the Ombudsman Commission. Section 217(1) lays down that the Commission shall consist of the Chief Ombudsman and two Ombudsmen. Section 217(2) provides that the members shall be appointed by the Head of State on the advice of the Ombudsman Appointments Committee consisting of the Prime Minister as Chairman, the Chief Justice, the Leader of the Opposition, the Chairman of the appropriate Permanent Parliamentary Committee (with certain reservations unnecessary to mention here) and the Chairman of the Public Services Commission. Sub-sections (3) and (4) deal with the salary of the members of the Ombudsman Commission. Sub-section (5) provides that the Commission is not subject to direction or control by any person or authority in the exercise of its functions which are set out in s. 219. Sub-section (6) provides that its proceedings are not subject to review in any way except by the Supreme Court of National Court on the ground that it has exceeded its jurisdiction. Sub-section (7) provides for an Organic Law to make further provision for the Commission’s appointment, powers, procedures and immunity.

I set out s. 218 in full:

“218. Purposes of the Commission

The purposes of the establishment of the Ombudsman Commission are:

(a) to ensure that all governmental bodies are responsive to the needs and aspirations of the People; and

(b) to help in the improvement of the work of governmental bodies and the elimination of unfairness and discrimination by them; and

(c) to help in the elimination of unfair or otherwise defective legislation and practices affecting or administered by governmental bodies; and.

(d) to supervise the enforcement of Division III.2 (leadership code).”

Partly because it is necessary in comparing the function of the Ombudsman Commission in this country with the function of Ombudsmen elsewhere, I set out in full s. 219.

“219. Functions of the Commission

(1) Subject to this section and to any Organic Law made for the purposes of Sub-section (7), the functions of the Ombudsman Commission are:

(a) to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of:

(i) any State Service or provincial service or a member of any such service; or

(ii) any other governmental body, or an officer or employee of a governmental body; or

(iii) any local government body, or an officer or employee of any such body; or

(iv) any other body set up by statute:

(A) that is wholly or mainly supported out of public moneys of Papua New Guinea; or

(B) all of, or the majority of, the members of the controlling authority of which are appointed by the National Executive,

or an officer or employee of any such body; and

(v) any member of the personal staff of the Governor-General, a Minister or the Leader or Deputy Leader of the Opposition; or

(vi) any other body or person prescribed for the purpose by an Act of the Parliament;

(b) to investigate any defects in any law or administrative practice appearing from any such investigation; and

(d) any functions conferred on it under Division III.2 (leadership code); and

(e) any other functions conferred upon it by or under an Organic Law.

(2) Subject to Sub-sections (3), (4) and (5), and without otherwise limiting the generality of the expression, for the purposes of Sub-section (1)(a) conduct is wrong if it is:

(a) contrary to law; or

(b) unreasonable, unjust, oppressive or improperly discriminatory, whether or not it is in accordance with law or practice; or

(d) based wholly or partly on a mistake of law or of fact; or

(e) conduct for which reasons should be given but were not,

whether or not the act was supposed to be done in the exercise of deliberate judgment within the meaning of Section 62 (decisions in “deliberate judgment”).

(4) The Commission shall not inquire into the exercise of a rule-making power by a local government body.

(5) The Commission shall not inquire into a decision by a court, except insofar as the decision may show an apparent defect in law or administrative practice to which Sub-section (1)(b) would apply.

(7) An Organic Law shall make provision in respect of the powers and procedures of the Commission, and in particular —

(a) shall, subject to paragraph (b), make provision for the Commission to have access to all available relevant information; and

(b) may impose reasonable restrictions on the availability of information; and

(c) shall make provision to ensure the secrecy or confidentiality of secret or confidential information made available to the Commission or to a member of the Commission or of its staff; and

(e) shall make provision for and in respect of publicity for the proceedings, reports and recommendations of the Commission.

(8) In this section, “conduct” includes:

(a) any action or inaction relating to a matter of administration; and

(b) any alleged action or inaction relating to a matter of administration.”

Section 220 requires the Commission to furnish an annual report to the Head of State for presentation to the Parliament on the functions and workings of the Commission, with such recommendations as to improvement as the Commission thinks proper.

The Ombudsman Commission has further very important responsibilities under the following sections of the Constitution:

To give advice as to any other office, position or calling of the Governor-General: s. 87(3) and (4).

To take into account the National Goals and Directive Principles and also the Basic Social Obligations, in its responsibility to enforce the Leadership Code: s. 25-31 and s. 63.

To refer questions of Constitutional interpretation to the Supreme Court under s. 19 (as it has in the present case).

There are also provisions for an Organic Law to be passed under which the Ombudsman Commission must have declared to it contributions to political parties (s. 129(1)(b) and (f)) and candidates, s. 130(1)(a). No such Organic Law has as yet been enacted.

I will not go into detail on the subject of the Leadership Code except to say that generally it provides for the Ombudsman Commission to investigate and if necessary refer to a tribunal established for the purpose, any misconduct in office by the persons set out in Div. 2 of Pt. III of the Constitution, s. 26(1) of which reads:

“26. Application of Division 2

(1) The provisions of this Division apply to and in relation to:

(a) the Prime Minister, the Deputy Prime Minister and the other Ministers; and

(b) the Leader and Deputy Leader of the Opposition; and

(d) head of provincial executives; and

(e) all constitutional office-holders within the meaning of Section 221 (definitions); and

(f) all heads of Departments of the National Public Service; and

(g) all heads of or members of the boards or other controlling bodies of statutory authorities; and

(h) the Commissioner of Police; and

(i) the Commander of the Defence Force; and

(j) all ambassadors and other senior diplomatic and consular officials prescribed by an Organic Law or an Act of the Parliament; and

(k) the public trustee; and

(l) the personal staff of the Governor-General, the Ministers and the Leader and Deputy Leader of the Opposition; and

(m) executive officers of registered political parties as defined by Section 128 (“registered political party”); and

(n) persons holding such public offices as are declared under Sub-section (3) to be offices to and in relation to which this Division applies.”

The responsibilities of Leadership, the nature of the investigations the Ombudsman Commission can conduct and other relevant matters are set out in the Organic Law on the Duties and Responsibilities of Leadership, the detail of which as I said, I will not dwell on here.

Because the Constitution’s provisions concerning the Ombudsman Commission are so detailed the Organic Law on the Ombudsman Commission is relatively short. It contains only 38 sections. In addition it did not bring into play the functions set out in s. 219(1)(a)(iii) to (vi) above.

Section 13 of the Organic Law reads as follows:

“13. Functions of the Commission

For the purposes of Section 219(1)(a) (functions of the Commission) of the Constitution the functions of the Commission, in addition to the functions specified in Section 219(1)(b), (c), (d) and (e) (functions of the Commission) of the Constitution, are to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of:

(a) any State Service or a member of any State Service; or

(b) any governmental body, or an officer or employee of a governmental body; or

It will be noted that the wording of sub-s. (a) is not identical with the wording of s. 219(1)(a)(i). This is due to the latter having been amended. Instead of the Organic Law being amended the same result was achieved by a declaration under s. 13(c) promulgated in the National Gazette No. G 105 of 29th December, 1977 which also brought within the Ombudsman Commission’s jurisdiction those persons and bodies set out in s. 219(1)(a)(iii) to (v).

I would now like to refer to a number of cases cited in argument, portions of the Final Report of the Constitutional Planning Committee 1974 (hereinafter referred to as “the C.P.C. Report”) and the various arguments put to us by counsel.

The five cases to which I particularly wish to refer are all Victorian cases, concerning the Ombudsman in that State. They can be distinguished, I believe, from the problem now before us, but are of assistance in the manner I indicate.

Booth v. Dillon (No. 1.)[dlxxi]¹⁵ simply decided that a complaint of assault upon a prisoner by a warder in a gaol was in the circumstances “relating to a matter of administration” in that it allegedly took place in front of the Governor of the Prison and the Chief Prison Officer and thus went to irregularities in the administration of enforcement of discipline, governing both prisoners and staff, i.e. it was not an assault simpliciter. It is of no assistance here except that at p. 295 Lush J said:

“Counsel’s researches revealed that no assistance is available from authority. The only reported decision of a superior court appears to be Re Alberta Ombudsman Act (1970), 10 D.L.R. (3rd) 47 which is not relevant to the present problem. In each jurisdiction, the Ombudsman has those powers which his legislation gives him. The references made to various statutes in the course of argument show a greater uniformity of language than might have been expected when different Parliaments set about giving content to an idea which had no precise demarcation. Nevertheless, the task remains one of statutory construction.”

Booth v. Dillon (No. 2.)[dlxxii]¹⁶ dealt with two questions of distinction between what were matters of “policy” as opposed to “administration” concerning Pentridge Gaol and is again of no assistance but to reaffirm the differences in the wording of the Victorian Ombudsman Act 1973 and our Constitutional laws here.

Glenister v. Dillon (No. 1.)[dlxxiii]¹⁷ is a decision of the Full Supreme Court. It decided that a provision in the Victorian Ombudsman Act prohibiting the Ombudsman from investigating any administrative action taken by a person acting as legal adviser to the Crown or as counsel for the Crown in any proceedings meant that the Ombudsman had no jurisdiction to conduct investigations into complaints alleging a failure by the Crown Law Department to bring two persons in custody to trial within a reasonable time. It should be noted that there is no similar prohibition under our legislation, and the position of our Public Prosecutor may well, one day, come under scrutiny in this regard. The decision again reflected the difference in literal terms between the Victorian Act and its New Zealand counterpart. Gillard J discussed the popular notion of the function of an Ombudsman and then went on to consider the meaning of the expression “administrative action” in the legislation. I will refer to this later. His Honour and Menhennitt J went on to conclude that for the purposes of ss. 2 and 13 of the Victorian Act the expression referred to some act or omission in the executive or administrative arm of government in contradistinction to the legislative and judicial arms of government.

This distinction between the executive, legislative and judicial functions of government was followed by Nelson J in Booth v. Dillon (No. 3.)[dlxxiv]¹⁸ and Glenister v. Dillon (No. 2.)[dlxxv]¹⁹, the latter decision specifically saying that the Victorian Public Solicitor, whose principal function is to represent accused persons in criminal matters, is thereby performing a function ancillary to the discharge of the judicial function of government. His Honour in each case refers to the “three traditional functions of government”. I say here and now, there is no such tradition in Papua New Guinea. Except to the extent that the principles and rules of common law and equity in England are adopted under Sch. 2.2 to our Constitution, in Papua New Guinea we do not call on traditions of government from anywhere in the world at all; we look to our own constitutional laws and them alone. The Constitution and the Organic Laws are the Supreme Law of Papua New Guinea and their provisions are self-executing to the fullest extent their respective natures and subject matters. permit (Constitution s. 11.).

Under s. 24 of the Constitution the C.P.C. Report, together with the official record of debates, votes and proceedings of the pre-Independence House of Assembly and the Constituent Assembly on the draft of the Constitution may be used, where relevant, as aids to constitutional interpretation. No submission has been made to us that there are any relevant debates, votes or proceedings as aforesaid but some reference has been made to the C.P.C. Report itself. I should say now that it has not been suggested to us that we may gain any assistance from the Report in relation to the concept of the Structure of Government referred to in s. 99. This is indeed the position and the over-all framework of the Constitution concerning the National Government is quite different to the lay-out recommended in the report. However, it can be noted that in Ch. 7 of the C.P.C. Report, entitled “The Executive” par. 1 reads:

“Power belongs to the people

1. The Committee proposes that the first part of our Constitution should include an article which states: Power belongs to the people and it shall be exercised in accordance with this Constitution. We believe it is important to make clear in this way that the power exercised under the Constitution is derived from the people. In the great majority of the societies that make up our nation, it was from the people rather than from kings or chiefs that power was taken by the colonial rulers. It is therefore appropriate that it be the people to whom that power should now be returned. The principle that power derives from the people provides the basis of the Constitution.”

This concept has found its way into s. 99(1) which is set out above. It must be remembered that the concept of a Head of State was not recommended by the C.P.C. Report and it may well be that the subsequent acceptance by the Constituent Assembly of that concept affected the final draft of the Constitution.

In relation to the Ombudsman Commission the C.P.C. Report is far more helpful. Firstly, in dealing with the Leadership Code at ch. 3 p. 4, par. 35, entitled “Supervision and enforcement of the Code” says:

“We intend the Leadership Code to be more than mere directives. It should be morally and legally binding on ‘leaders’, and firmly enforced. It is for this reason that we have recommended that a particular, independent institutition of government, the Ombudsman Commission (which in Ch. 11 we propose should be established) ought to have responsibility for overseeing the Code and seeing to it that leaders comply with its provisions. We have preferred not to recommend the establishment of a separate institution to carry out this role as we are opposed to any unnecessary multiplication of institutions of government. It is our firm view that the Ombudsman Commission is particularly well suited to carrying out this role as its members should be people who themselves have complete integrity, and its procedures and powers can readily be adapted to this purpose. Experience in other countries has shown that ombudsmen quite frequently come upon instances of corruption in the course of their investigations into administrative malpractices, so that we would anticipate that this additional role will mesh in quite well with its general jurisdiction.”

The creation of the Ombudsman Commission is discussed in Ch. II of the Report. At par. 4 the Report says:

“The ‘Ombudsman’ is an independent government official who receives complaints about government agencies mainly from people who feel they have been unfairly or unreasonably dealt with by officials. This work involves the Ombudsman in investigating these complaints (and sometimes initiating investigations himself) and, if he finds evidence of, for example, administrative injustice or unreasonable delay in taking action, he makes recommendations to remedy the situation.”

Paragraph 5 reads:

“The court system is for various reasons restricted in being able to provide a remedy in many situations even when it is clear that an obvious wrong has been done to someone. Courts for instance, are reluctant to inquire into the fairness or otherwise of an administrative decision, on the basis that administrative decisions and actions are of the essence of the exercise of executive power, and only if it is clear either that a particular executive act or decision was beyond the scope of a specific executive power, or there has been an obvious mistake in law, or the rules of natural justice have been ignored, do the courts see intervention on their part as being justified.”

After discussing the general concept of the creation of the position of Ombudsman in developing countries the report continues:

Paragraph 9:

“This does not mean that we see the Ombudsman as in any way less significant. In fact, we recognize that sometimes access to courts is difficult, for psychological or other reasons, and the courts are not always able to provide redress sufficiently promptly or in the most effective way. In such situations, the Ombudsman could be the more appropriate channel for the redress of grievances.”

The report went on to consider the prospect of combining the functions of the Ombudsman and the Public Solicitor, but on deciding that conflict of interest could arise, rejected this concept.

The proposed powers and functions of an Ombudsman for Papua New Guinea are discussed from par. 17 of Ch. 11 onwards. The opening sentence of that paragraph reads:

“Papua New Guinea’s ombudsmen should be available to assist ordinary people throughout the country who feel aggrieved by actions or omissions of the bureaucracy or of any institution of government.”

In par. 37 the three main areas of responsibility are set out, namely:

“We recommend that the Commission should have a general jurisdiction similar to that possessed by Ombudsmen in other countries, but that in addition it should have two specific areas of responsibility — one concerned with the supervision and enforcement of the Leadership Code which, in Ch. 3, we have recommended be incorporated as a schedule to the Constitution, and the other the enforcement of legislation prohibiting discriminatory practices.”

On the general jurisdiction of the Ombudsman Commission at pars. 38-40 the C.P.C. Report said this:

“38. The Commission’s general jurisdiction should, we believe, be very broad, covering the full range of administrative activities of government departments and authorities. Experience in other countries has shown that attempts to define an ombudsman’s jurisdiction in a detailed way have been unproductive as they have led to numerous disputes over its exact limits. We believe it is far better to define the scope of the Commission’s general functions broadly, give the Commission scope for rejecting complaints or declining to investigate a particular matter on the basis of certain specific provisions in the Constitution or in ordinary legislation, and also to state in the Constitution certain matters in respect of which the Commission is to have no power to investigate. Our recommendations have been made accordingly.

39. The proposed general jurisdiction of the Commission enables it to enquire into the conduct of persons such as those in a government department, a disciplined force, (the Defence Force, the Police Force, etc.) statutory authority, local government council, the staff of a minister, constitutional office-holders, members of government committees, and in the Parliamentary Service.

40. We recommend that the Commission be able to investigate, either after receiving a complaint, or on its own initiative, acts or omissions by officials which appear to it to be instances of maladministration or unfairness. The Commission also should be able to look into any apparent defects or unfairness in laws made by parliament or in the way in which such laws are being applied by those responsible for administering them. Our purpose here is to ensure that the Commission is able to recommend that action be taken to remedy a situation where injustice is being caused, even though this is not due to an administrative action or omission, but to an unsatisfactory provision in an Act of Parliament or a regulation or rule made under it.”

The Report goes on to discuss the concept of decentralization at par. 80, (it must be remembered of course that Provincial Government was not accepted by the Constituent Assembly and was only adopted after Independence) and suggests that branch offices of the Ombudsman and the Public Solicitor be co-ordinated at provincial level, on an agency basis for whichever of those two Offices may be the more appropriate to handle the particular problem.

At par. 82 the C.P.C. Report summarizes its hopes and aspirations for the Ombudsman Commission:

“82. We are convinced that the careful balancing of the rights of the individual against the rights of the society at large must be maintained if the rewards of our development are to be enjoyed by all our people. The Ombudsman Commission should make a major contribution to maintaining this balance. The uneducated and the politically weak who tend to lose out in the complicated government system of today should see the Commission as their helper. Those in government and in other official or leadership positions should see it as a body which fulfils an important role of promoting efficiency and integrity in public life.”

All the above paragraphs are taken from the narrative section of Ch. 11 and the specific suggestions made are reflected in the recommendations at the end of the chapter.

By and large, most recommendations of the C.P.C. Report were adopted by the Constituent Assembly but a number were not or were adopted in different form. It will be noted that in par. 39 set out above, specific mention was made of the jurisdiction of the Ombudsman Commission extending to Constitutional office-holders. This was a specific recommendation made in par. 13 of the Recommendations to Ch. 11 at pp. 11-13 of the C.P.C. Report. The wording of s. 219 (Functions of the Commission) of the Constitution is quite different to the wording in recommendation 13 abovementioned. There is no reference in s. 219 to Constitutional office-holders as such. Part IX of the Constitution is entitled “Constitutional Office-holders and Constitutional Institutions”. For the purpose of that Pt. s. 221 defines “Constitutional office-holder” as meaning:

“(a) A Judge; or

(b) the Public Prosecutor or the Public Solicitor; or

(d) a member of the Ombudsman Commission; or

(e) a member of the Electoral Commission; or

(f) the Clerk of the Parliament; or

(g) a member of the Public Services Commission; or

(h) the Auditor-General; or

(i) the holder of any other office declared by an Organic Law or an Act of the Parliament to be a constitutional office for the purposes of this Part.”

In Sch. 1.2 of the Constitution among the Rules for Shortening and Interpretation of the Constitutional Laws is the following:

“Governmental body” means:

(a) the National Government; or

(b) a provincial government; or

(d) a body set up by statute or administrative act for governmental or official purposes;”

Assuming for a moment, and I will return to this matter shortly, that the Public Solicitor and the Public Prosecutor are “governmental bodies” within the above definition, it will be seen that the power of the Ombudsman Commission to investigate “conduct” under s. 219 on the part of any of the constitutional office-holders as defined in s. 221, in fact extends to all of them except a member of the Ombudsman Commission itself, which is fairly understandable, and the Auditor-General. In this last regard it is interesting to note that in s. 13 of the Victorian Ombudsman Act the Ombudsman is specifically prohibited from investigating any administrative action taken by the Auditor-General in that State.

I will explain briefly how in my view s. 219 extends to a number of these Constitutional office-holders. For example, the members of the Electoral Commission are members of that Commission by virtue of s. 126 of the Constitution and the Organic Law enacted pursuant to that section. As such they are an integral part of the National Parliament, i.e. under Div. 2 of Pt. VI of the Constitution. The National Parliament is one of the principal arms of the National Government under s. 99 and therefore it and all its component parts are a “governmental body” within the meaning of the above definition and consequently within the ambit of s. 219. Next, the Clerk of Parliament. His office is required to be established under s. 132(2) of the Constitution, s. 132(1) providing that an Act of the Parliament shall make provision for and in respect of a Parliamentary Service, separate from the other State Services. That Act in fact is the Parliamentary Service Act 1975. The Clerk of Parliament thus clearly comes within sub-s. (d) of the definition of “governmental body”. In fact the Parliamentary Service is subject to s. 219 for a second reason, it is a State Service established under s. 188 of the Constitution as well.

The members of the Public Services Commission although given certain independence in their function (ss. 192 and 194) can come within the scrutiny of the Ombudsman Commission as they are, inter alia, specifically made responsible for the efficient management and control of the National Public Service which is one of the four State Services established under s. 188, the other two State Services not so far mentioned in this judgment being the Police Force and the Papua New Guinea Defence Force.

The Chief Magistrate has a two-fold function. Firstly he has a judicial function. Under s. 175(3) he is ex officio a member of all courts (except Village Courts) established under s. 172 of the Constitution. Those courts are set out in s. 9 of the Organic Law on Immediate and Transitional Constitutional Provisions. In that function he has the guarantee of independence set out in s. 157 (Independence of the National Judicial System). He is thus part of that system, a principal arm of the National Government, and thus clearly within the definition of “governmental body”. His second function, that of being responsible to the Judicial and Legal Services Commission for the efficient functioning and operation of the Magisterial Service (Constitution s. 173(3)), I have discussed in detail earlier in this judgment. He has considerable administrative responsibility in addition to his judicial responsibility.

I now turn to the arguments put to us by counsel, the first of which relates to the nature of the office of the Public Solicitor. It is obvious that his responsibilities go much further than providing legal aid in criminal cases, although that function places the greatest work load upon him. He is a constitutional office-holder with very clear responsibilities to the people under the Constitution. He is, counsel agree, subject to the Leadership Code and there is no doubt that the Ombudsman Commission can exercise all its powers in that regard concerning the Public Solicitor’s personal conduct, subject to one reservation I will mention later.

This first argument involves the question of whether the Public Solicitor is a State Service or a governmental body for the purposes of s. 13(a) or (b) of the Organic Law on the Ombudsman Commission and likewise for the purpose of s. 219(a)(i) or (ii) of the Constitution. It was not put by Mr. Cory, counsel for the Ombudsman Commission, that the Public Solicitor was liable to investigation by the Ombudsman unless he fell within one or both of these two categories, the latter of course, having its meaning defined in Sch. 1.2 of the Constitution as above set out.

If the answer to this question is that the Public Solicitor falls within neither category, it renders it unnecessary to consider, in relation to the first question in the reference, what powers of investigation the Ombudsman may have, with two exceptions, firstly in relation to the Leadership Code which as I have said above, I will refer to later in this judgment, and secondly in relation to the public servants employed in the Public Solicitor’s Office whom I have also referred to earlier in this judgment. Although these officers are in fact employed in a State Service, the Public Service, I am satisfied that whilst they are employed in the office of the Public Solicitor, by virtue of s. 13 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders (which is set out above), whatever immunity to investigation is enjoyed by the Public Solicitor must of necessity be enjoyed by them whilst serving him.

Turning to the question posed, I firstly say that I am in no doubt that the Public Solicitor is not a State Service. I have mentioned the four State Services above. They are established under Pt. VII of the Constitution and it is crystal clear that the office of Public Solicitor is not included among them. Mr. Cory virtually concedes this except to include the Public Solicitor’s staff to whom I have just referred. The next question, and to my mind the fundamental question, is whether the Public Solicitor is a governmental body or not.

Mr. Cory submitted that the Public Solicitor is an instrumentality of the National Government within the definition of “governmental body” in Sch. 1.2. He quotes in support of this submission Federal Municipal Shire Council Employees’ Union v. Melbourne Corporation[dlxxvi]²⁰ comparing the Public Solicitor with “an instrumentality of the Crown” with independent powers performing inalienable functions of government. This argument does not attract me. An instrumentality is merely an agency, in the case of local government bodies or statutory bodies, created by Act of Parliament. The Public Solicitor is not so created. He is created by the Constitution, his is an independent office, he is responsible to the people in his specialized field and is a separate arm of the National Government not an instrumentality responsible or subservient to any one of the three principal arms. He is specifically not included in the National Judicial System which is solely a system of courts.

In other words he is, as Mr. Cory also submits, an arm of Government, conducting the “policy, actions and affairs of State” within the meaning of the definition of “govern” I have quoted earlier in this judgment, in his own specialized field on behalf of the people, with his duties to them spelt out in the Constitution and reflected in their right to have his services as contemplated in s. 37 of the Constitution (“Every person has the right to the full protection of the law”) s. 42 of the Constitution (“A person who is arrested or detained — shall be permitted ... to communicate ... with ... the Public Solicitor if he is entitled to legal aid”) and in the Preamble to the Constitution firstly, (“every citizen to have equal access to legal processes and all services, governmental and otherwise, that are required for the fulfiment of his or her real needs and aspirations”) and secondly (“All persons are entitled ... to ... security of the person and the protection of the law”).

This concept of government is somewhat like a play. You have the principal actors and the supporting cast. “Principal” means (Concise Oxford Dictionary) “First in rank or importance, chief, main, leading.” The supporting cast sustains and gives strength to the principals, but each of course plays an independent role and the totality of the performers comprise the whole of the cast. If our Constitution-makers envisaged the traditional English concept of three arms of Government only, the word “principal” need never have appeared in s. 99. As I have said earlier, the Public Solicitor, Public Prosecutor and the Judicial and Legal Services Commission are created as part of the National Government under Pt. VI of the Constitution, not one of them is created under any of the three principal arms, each one is separate and each has a distinct responsibility to the people as a part of the whole of the National Government, the vast majority of their functions being directly related to the administration of justice and the judicial system.

I now turn to the next question, what are the Ombudsman Commission’s powers in relation to the Public Solicitor? This question, and I exclude the Leadership Code function here, involves three main considerations. The first is of course, that the Ombudsman Commission’s power to investigate “conduct” under s. 219 of the Constitution is confined to matters relating to administration. I have read the judgment of my brother Wilson in draft, and I agree that the wording of s. 219(8) in this regard is exhaustive, despite the use of the word “includes”. The extracts from the C.P.C. Report set out above also support this view. I will return to the examination of what may or may not be a matter of administration in the legal function of the Public Solicitor after considering the other two main considerations I have referred to above.

The second consideration is the guarantee of independence in the performance of his functions given to the Public Solicitor in s. 176(5) of the Constitution. He is not subject to direction or control by any person or authority in such performance. It is stressed by Mr. Cory that the power of the Ombudsman Commission is to investigate and to make recommendations only, and in exercising this role, it cannot be said that the Commission is in any way attempting to direct or control the Public Solicitor in the performance of his function. Fundamentally I agree with this, but if the Commission decided to launch a wholesale investigation on its own initiative into the administration of the Public Solicitor’s office it could virtually frustrate the Public Solicitor’s ability to carry out his responsibilities and in that sense he would be “controlled” by the Commission in that he is prevented from performing his Constitutional functions. For this reason, except in relationship to the Leadership Code, I believe the Ombudsman Commission cannot investigate the Public Solicitor’s Office on its own initiative, but only on complaint by a “person affected”.

The third consideration is that of the privilege of solicitor and client. It is accepted by Mr. Cory that the Ombudsman Commission cannot compel the Public Solicitor to divulge his clients’ affairs and that the concept of this traditional privilege is part of our underlying law. It is agreed by both counsel that this privilege is the client’s, and he alone can waive it. It is this matter of privilege which is the reservation I mentioned above concerning the Ombudsman Commission’s powers under the Leadership Code. I originally felt that the Commission in such a case should be bound by professional privilege to the same extent as the Public Solicitor, but because disclosure may have to be made by the Ombudsman Commission if action is taken under the Leadership Code, on reflection this would be too restrictive a view. The client, I believe, would be adequately protected by ss. 20 and 21 of the Organic Law dealing with the maintenance of secrecy.

However, Mr. Pratt, counsel for the Public Solicitor, advanced the argument that even if the client waives privilege, the Public Solicitor as a Constitutional Office-holder, is under an even higher obligation not to disclose his client’s affairs than a private practitioner. I fail to follow this argument; in fact my view is the reverse. I believe, if the client waives privilege, the Public Solicitor’s constitutional responsibilities to the people are such that he is not only bound to immediately follow his client’s request to hand over his papers but further to provide a full and frank explanation of his handling of the client’s affairs, whether the inquiry is made by another lawyer acting on behalf of the client or by the Ombudsman Commission, presuming of course, it has the power to make the inquiry, which I will shortly discuss.

Mr. Pratt’s arguments have been that the Public Solicitor is not either a State Service or a governmental body and therefore not liable to investigation by the Ombudsman Commission and secondly, that on the authority of a number of the Victorian cases mentioned above, his functions do not relate to the executive function of government but to the judicial function and are therefore not matters of administration. This last submission I will also discuss shortly. Mr. Pratt made a number of other submissions, not so much to the effect that the Ombudsman Commission had no power to investigate the Public Solicitor, but that it should not.

The first submission was that in the event that the Public Solicitor refused to grant a person legal aid (which Mr. Pratt says “may” be an administrative function), the Ombudsman Commission should have no power to investigate as, under s. 177(3) of the Constitution, such a person has the right to apply to the Supreme Court or National Court for a direction that the Public Solicitor do provide such aid under s. 77(2)(b). Mr. Pratt says by inference, therefore, such a person should not be permitted to make a complaint to the Ombudsman Commission as he has this remedy open to him. What this submission chooses to ignore however, is that such a person may have no knowledge of his rights and the fact is, although I am aware of a number of cases in which the Public Solicitor has refused legal aid, not one application under s. 177(3) has been made to our courts in the three years since Independence. It is my view, that the Ombudsman Commission, if complained to by such a person, is entitled to investigate such a refusal, and if it feels there are grounds to do so, may recommend that the person approach the Registrar of this court with a view to making such an application.

The next submission is that if for example a client of the Public Solicitor had asked for his papers back, he has the remedy of either going to the National Court, or to a court of summary jurisdiction, for an order that his papers be returned. This argument again overlooks the fact that the client may have no knowledge of his rights and overlooks secondly, that as he was a person entitled to legal aid in the first place, he logically can probably not afford to get legal assistance to assist him with such a problem. Clearly, the Ombudsman Commission, on a complaint made in such a case, can investigate such a matter.

The next submission is that the Ombudsman Commission should have no right to investigate the Public Solicitor because the Public Solicitor as a legal practititoner is subject to the supervision of the National Court. I find this argument without much merit also. Firstly, again the client may not know how to approach the National Court, secondly, we have no Law Society with disciplinary control of practitioners in this country and thirdly whatever power the National Court may have over the Public Solicitor, it certainly can only relate to a matter which the Public Solicitor is conducting before the court, it cannot relate to the Public Solicitor’s duties in a case where no action has been brought.

The next submission is that a client of the Public Solicitor has a right to sue him for professional negligence if negligence in fact is alleged against him. This argument again ignores the fact that the client may not know this and the fact that having been granted legal aid in the first place, he probably cannot afford a solicitor to act for him. The argument also tends to overlook the fact that the liability of a solicitor to his client arises out of contract not in tort (see Charlesworth on Negligence, 5th ed. p. 311 and the authorities there cited). In a legal aid situation a fundamental bar to an action for professional negligence founded in contract is the absence of consideration, which is essential to a valid contract. This matter was not referred to by counsel in argument. It may well be that the real cause of action is for damages for breach of a statutory duty (see Charlesworth 5th ed. p. 1182 and the authorities there cited). I will not dwell on this matter now. I might add here that if my views on the status of the Public Solicitor within the framework of the National Government in the Constitution are correct, such an action would probably lie against the State and not the Public Solicitor in person.

These arguments all tend to be suggesting that because a client of the Public Solicitor has these remedies available to him the Ombudsman Commission should not investigate such complaints. However, it is quite clear that the discretion not to investigate a complaint if the complainant has another remedy or channel of complaint that he could reasonably be expected to use is a matter for the Ombudsman Commission to decide. (Section 16(3) of the Organic Law). In other words the Commission is not debarred from investigating.

The arguments also tend to indicate to me a suggestion that there is something so special about professional legal work that lawyers have a protection against investigation greater than that of other professional men serving government. We lawyers are often accused of being too conservative. I am not. In my view there is nothing of “the sacred cow” about the practice of the law. It is my view that if certain aspects of the legal work of the Public Solicitor are “administrative” in nature, as opposed to the exercise of professional skills as such, they are no more immune to investigation by the Ombudsman Commission than administrative acts by accountants, engineers, doctors or other professional men in government service.

That the jurisdiction of the Ombudsman Commission in Papua New Guinea extends into the judicial system in my view can be no more clearly indicated than in s. 219(5) of the Constitution which is set out earlier in this judgment. Even a decision of a court may be investigated if it shows an apparent defect in law or administrative practice. As opposed to judicial decisions, administration in the court systems themselves would appear clearly within the ambit of the Ombudsman Commission’s powers of investigation. I have above referred to the volume of administrative responsibility vested in the Chief Magistrate.

Mr. Cory has submitted to us that s. 218 and s. 219 of the Constitution must be read together. I agree. Section 218(a) says that one of the purposes of the Ombudsman Commission is to ensure that all governmental bodies are responsible to the needs and aspirations of the people. I have already referred to the people’s rights to the protection of the law in the Constitution and in its preamble. It is my view that the rights of the people to the services of the Public Solicitor are so explicit, that the Ombudsman’s function, so clearly indicated in the passages from the C.P.C. Report I have set out in length above, is to ensure that the people enjoy those rights and they are not wrongly deprived of them.

The question then is what are acts of administration, or maladministration in the function of the office of the Public Solicitor which may attract the attention of the Ombudsman Commission?

I said above I would later refer to the judgment of Gillard J in Glenister v. Dillon (No. 1.)[dlxxvii]²¹. At p. 556 his Honour quotes Holdsworth History of English Law, vol. XIV, p. 91 cf. pp. 202-203:

“By administrative powers, I mean powers neither legislative nor judicial in character which are given to the Crown or to Ministers or to departments of the central government to enable them to carry out their executive duties.”

Further down that page his Honour says:

“As generalization, I cannot accept the argument that merely because the action was of a professional character, it could not be an administrative action in a department.”

He later says of the Crown Solicitor:

“Merely because he is a professional man and may be acting as such, that does not mean in my view that he is necessarily not performing some act of administration in the Law Department ...”

On p. 557 his Honour says:

“I am not prepared to accept the general proposition that because a professional man is carrying out his professional work as such, it is not therefore an administrative action taken in the government department of which he may be an officer.”

Whilst I agree with these general statements of Gillard J, his Honour then proceeded to consider the meaning of the word “administration” in the Victorian Act and decided that it referred to the executive function of government. His Honour at p. 558 referred to another example of the use of the word “administration” in Mainka v. Custodian of Expropriated Property[dlxxviii]²² where reference is made to Article II of the mandate given to the Commonwealth of Australia over the former German New Guinea in 1920 as follows:

“The mandatory shall have full powers of administration and legislation over the Territory.”

Although his Honour says that this is an example of “administration” as synonymous with executive action I must point out that it appears to include the judicial function as well.

As I said before, this Victorian case and the two in the following year, apart from being decided on the wording of the Victorian legislation, finally turned on the acceptance by the Judges of the concept of the three traditional arms of government. As I have also said, there is no such tradition here. One perhaps should pose the question “When is an act of administration not an act of administration?” In Victoria, the answer is “when it is not an act relating to the executive function of government”. In Papua New Guinea, I believe the distinction between administration in the field of justice and the judicial power itself can be no more clearly demonstrated than by ss. 154 and 155 of the Constitution, the former setting up the National Justice Administration, the latter the National Judicial System. The Public Solicitor is a component part of the former, not the latter. No clearer example of the splitting of the traditional English judicial function into two distinct parts could be envisaged. The former, which includes the latter, has the administrative responsibility with regard to justice and the latter the purely judicial responsibility, namely the hearing and determining of court cases. I am not prepared to say that under our Constitution the National Justice Administration is not administration, but part of the judicial function of government.

I am unable, and we were not addressed on this aspect, to lay down where administrative actions in the Public Solicitor’s Office cease and actions based on the exercise of professional legal skill commence. I can, however, give some examples of what I consider to be actions falling short of the exercise of professional expertise and which therefore fall into the field of administration in the Public Solicitor’s office.

The first, as I have mentioned, is a wrongful refusal to grant legal aid. The others, all consequent upon the grant of legal aid could be: failure to institute proceedings and as a result the client’s action becoming statute-barred, unnecessary and unreasonable delay in handling a client’s affairs, failing to attend court to represent the client on the day of the hearing, suing unsuccessfully the wrong person, settling an action without instructions, acting contrary to the client’s interests without instructions, failing to give the client reasons for action taken or decisions made despite requests to do so, refusing to hand over to a client his personal papers, and so on. Under s. 219(2) “conduct” does verge into the field of law, but I do believe the Ombudsman Commission cannot question the reasons behind actions taken or advice given by the Public Solicitor in the exercise of his professional legal skill.

Finally may I add this. Under Sch. 1.5(2) of the Constitution the provisions of Constitutional Laws are to be given their fair and liberal meaning. I have done this in this judgment but where my opinion has been uncertain and I have had to lean one way or another in reaching a conclusion in interpretation, I have leant in the way which in my view best protects and advances the interests of the people to whom the Constitution belongs, and whose hopes and aspirations it purports to record and guarantee, in accordance not only with the preamble but with the C.P.C. Report’s clear views that the people’s interests are paramount.

I therefore answer the questions posed in the reference:

1(a) On its own initiative in relation to a matter under the Leadership Code relating to the Public Solicitor’s personal conduct, yes, and in all other matters no.

(b) On complaint by a person affected, yes, assuming the person affected is the Public Solicitor’s client, but in any other case only if the client has waived legal professional privilege, or if unable to do so due to death or physical or mental illness, subject to the Ombudsman Commission being bound by the principles of such privilege.

2. In a matter under the Leadership Code relating to the Public Solicitor’s personal conduct, yes. In any other matter in which the Ombudsman Commission has jurisdiction to investigate, yes, but subject to the Public Solicitor’s usual duty to claim legal professional privilege, which privilege may be waived by his client.

ORDER OF THE COURT:

The questions referred by the Ombudsman Commission for the opinion of the Supreme Court are answered as follows:

Question: (1) Does the Ombudsman Commission have jurisdiction:

(a) On its own initiative and/or

(b) On complaint by a person affected to investigate any conduct of the Public Solicitor or an officer or employee of the Public Solicitor’s office?

Answer: “No”—(to both (a) and (b)) other than in relation to a Leadership Code matter involving the Public Solicitor’s personal conduct.

Question: (2) Can the Ombudsman Commission require the Public Solicitor to produce to the Ombudsman Commission any documents, relating to any matter being investigated by the Ombudsman Commission that are in the possession or control of the Public Solicitor?

Answer: In a matter of the kind contemplated in question (1) — No.

In a matter under the Leadership Code relating to the Public Solicitor’s personal conduct as a “leader”— Yes.

In any other matter in which the Ombudsman has jurisdiction to investigate — Yes; but subject to the Public Solicitor’s usual duty as a legal practitioner to claim legal professional privilege, which privilege may be waived by the client.

Solicitor for the applicant: S. G. Cory.

Solicitor for the respondent: C. Maino-Aoae, Acting State Solicitor.

[dlvii]Infra p. 347.

[dlviii]Infra p. 347.

[dlix]Infra p. 347.

[dlx]Infra p. 347.

[dlxi][1919] HCA 73; (1919) 26 C.L.R. 508 at p. 529.

[dlxii][1976] VicRp 57; [1976] V.R. 550 at p. 556.

[dlxiii][1977] V.R. 151.

[dlxiv][1976] 2 All E.R. 993.

[dlxv][1974] A.C. 405.

[dlxvi](1964) 109 C.L.R. 395.